Topic: Land

OVERVIEW

The Bureau of Land Management (“BLM”) conveyed the lands underlying 30 miles of the lower Gulkana River to Ahtna, Inc. (“Ahtna”), a native regional corporation under the Alaska Native Claims Settlement Act (“ANCSA”), 43 U.S.C.A. §§ 1601-1629(e) (West 1986 Supp. 1989). The district court set aside the conveyance, holding that segment of the Gulkana was navigable when Alaska became a State in 1959, and therefore, the underlying lands were the property of Alaska, not subject to conveyance by the federal government. Ahtna appeals. We affirm.

FACTS AND PROCEEDINGS

The facts are not disputed. The Gulkana River System (“the River” or “the Gulkana”) is composed of clear water streams located in south central Alaska. The River flows through diverse lands containing tundra, spruce forests, and lakes. It displaces 3,600 to 4,800 cubic feet per second from May to September, decreasing to 200 to 300 cubic feet per second from November through April, when the River lies frozen. The parties stipulate that the physical characteristics of the River, such as water volume, gradients, geology, and general weather, are the same as they were when Alaska became a State in 1959.

The part of the River at issue in this case is its lower 30 miles (“the lower Gulkana”), extending from Sourdough Campground (River mile 33.5) to the River’s mouth at the Copper River (mile 0). The shallowest part of the River, at mile 3.75, is normally a foot and a half deep, diminishing to a foot during low-flow season. On average, however, the River in these lower 30 miles is 125-150 feet wide and 3 feet deep.

The parties agree that today, between mile 3.75 and mile 30, and between mile 0 and mile 3.5, the River is customarily used, or is susceptible to use, by the following types of watercraft: (1) flat or round-bottom aluminum or fiberglass powerboats 16 to 24 feet long by 4 to 10 feet wide, capable of carrying loads between 900 and 2,000 lbs.; (2) inflatable rafts between 12 and 15.5 feet long by 4 to 7 feet wide, with a load capacity of 1,250 to 2,000 lbs.; and (3) square-sterned motorized freight canoes and double-ended paddle canoes 15 to 19 feet long, capable of carrying loads of 500 to 900 lbs.

In the years immediately preceding Alaska’s admission into the Union, from the 1940’s to 1959, hunters and fishermen travelled the River in powered 16 to 24-foot fiberglass and aluminum watercraft. The watercraft had a load capacity of approximately 1,000 lbs.

Most of the use of the River is recreational. On a typical busy weekend day in June or July, 20 boats will use the lower 30 miles of the River, carrying approximately 60 people.

Since the 1970’s it has been possible to take guided fishing and sightseeing trips on the River. The industry employs watercraft of the type stipulated to be customarily used in the Gulkana, that is, 20 to 24-foot long aluminum powerboats and 12 to 15.5-foot long inflatable rafts. Today, the industry employs over 400 people. Rafts usually carry five passengers and one guide, providing for a load often in excess of 1,000 lbs. Average fare is $150.00 per passenger.

On May 16, 1979, the BLM made an administrative decision finding that (1) the lower Gulkana River was not navigable, and (2) that the underlying submerged lands were federally-owned property subject to conveyance to village corporations under ANCSA.[1] Alaska v. United States, 662 F. Supp. 455, 456-57 (D.Alaska 1987). The BLM thereafter made an interim conveyance of the submerged lands of the lower Gulkana to Ahtna, a native regional corporation organized under ANCSA.[2]

The State of Alaska challenged the conveyance to Ahtna. States generally hold title to the lands underlying navigable rivers within their boundaries. Utah v. United States, 482 U.S. 193, 196, 107 S.Ct. 2318, 2320, 96 L.Ed.2d 162 (1987). Alaska maintained before the district court that the lower Gulkana was navigable, that title to the underlying lands belonged to Alaska, and that the BLM’s conveyance was therefore void. Alaska v. United States, 662 F. Supp. at 456. The parties stipulated to all the relevant facts.

The district court granted summary judgment in favor of Alaska. The court concluded that in most cases, including this one, a river functions as a “highway for commerce,” and therefore is navigable, if it is capable of transporting people or goods. Id. at 466. Since the stipulated facts showed that the lower Gulkana has been and is used for transport of goods and people, the court concluded the portions of the River here at issue were navigable. Id. at 467-68.

Ahtna appeals. The United States, which before the district court endorsed the BLM’s determinations of nonnavigability, now argues as an appellee that the lower Gulkana is navigable but for reasons other than those stated by the district court. Amicus Arctic Slope Regional Corporation joins Ahtna in support of a determination of nonnavigability. Amici, affiliates of the National Wildlife Federation, outdoor sports organizations, and several States, join the State of Alaska in support of a decision of navigability.

STANDARD OF REVIEW

The facts are undisputed. We review de novo the granting of summary judgment in favor of Alaska. Gabrielson v. Montgomery Ward Co., 785 F.2d 762, 764 (9th Cir. 1986).

DISCUSSION

I. The Navigability Determination

The several States ordinarily hold title to the lands underlying navigable rivers within their boundaries. Two sources of authority justify this rule. One is the “equal footing doctrine,” which guarantees to newly-admitted States the same rights enjoyed by the original thirteen States and other previously-admitted States. Utah v. United States, 482 U.S. at 196, 107 S.Ct. at 2320; Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 228-29, 11 L.Ed. 565 (1845). One of these rights is title ownership to the lands underlying navigable rivers. Utah v. United States, 482 U.S. at 196, 107 S.Ct. at 2320; see also United States v. Alaska, 437 F.2d 1081, 1084 (9th Cir. 1971).

The second source of authority for the rule is the Submerged Lands Act of 1953. By that act, Congress vested in the States “title to and ownership of the lands beneath navigable waters within the boundaries of the respective States.” 43 U.S.C. § 1311(a) (1982). Congress explicitly provided for this rule to apply to Alaska when Alaska became a State in 1959. 48 U.S.C. Chapter 2 (“the Statehood Act”) note 6(m) prec. sec. 21 (1982).

Thus, the dispositive issue before the district court was whether the lower thirty miles of the Gulkana were navigable. If navigable, title to the submerged lands passed to Alaska at statehood, and the BLM was without power to convey the lands to Ahtna. If non-navigable, the lands remained federal and available for conveyance to Ahtna under ANCSA.

Whether a river is navigable is a federal question. United States v. Holt State Bank, 270 U.S. 49, 55-56, 46 S.Ct. 197, 199, 70 L.Ed. 465 (1926). The relevant navigability test states as follows: 

Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.

The Daniel Ball, 77 U.S. (19 Wall.) 557, 563, 19 L.Ed. 999 (1870); see, e.g., Oregon v. Riverfront Protection Ass’n, 672 F.2d 792, 794 (9th Cir. 1982).[3] Although the river must be navigable at the time of statehood, United States v. Utah, 283 U.S. 64, 75, 51 S.Ct. 438, 440, 75 L.Ed. 844 (1931) (footnote omitted), this only means that, at the time of statehood, regardless of the actual use of the river, the river must have been susceptible to use as a highway for commerce. Id. 283 U.S. at 83, 51 S.Ct. at 443.

A river’s use “need not be without difficulty, extensive, or long and continuous” for the river to be a highway for commerce. Riverfront Protection, 672 F.2d at 795 (portion of the McKenzie River found navigable when used to transport “thousands of logs,” even though shallow areas and sand bars made the transport difficult). It is not essential that the river be used for the transportation of water-borne freight by a carrier whose purpose is to make money from the transportation. Utah v. United States, 403 U.S. 9, 11, 91 S.Ct. 1775, 1776, 29 L.Ed.2d 279 (1971)(ranchers transporting own cattle from mainland to islands used the river as a highway). Indeed, it is not even necessary that commerce be in fact conducted: “The question of . . . susceptibility in the ordinary condition of the rivers, rather than of the mere manner or extent of actual use, is the crucial question. . . . The extent of existing commerce is not the test.” United States v. Utah, 283 U.S. at 82, 51 S.Ct. at 443.

Ahtna and amicus argue that the principal uses of the Gulkana have always been recreational, and that recreational uses do not support a finding of navigability. This argument is unpersuasive. The test is whether the river was susceptible of being used as a highway for commerce at statehood, not whether it was actually so used.

Under the facts of this case, we think the present use of the lower Gulkana is commercial and provides conclusive evidence of the lower Gulkana’s susceptibility for commercial use at statehood. The parties agree that in 1970 guided fishing and sightseeing trips began to be conducted with watercraft customary for that time period. A substantial industry of such transportation for profit emerged in the lower Gulkana, which industry today employs approximately 400 people. To deny that this use of the River is commercial because it relates to the recreation industry is to employ too narrow a view of commercial activity. “[N]avigability is a flexible concept and ‘[e]ach application of the [Daniel Ball test] . . . is apt to uncover variations and refinements which require further elaboration.'” Alaska v. United States, 754 F.2d 851, 854 (9th Cir. 1985) (quoting United States v. Appalachian Elec. Power Co., 311 U.S. 377, 406, 61 S.Ct. 291, 299, 85 L.Ed. 243 (1940)).

Our conclusion that the present commercial use of the lower Gulkana provides conclusive evidence of its susceptibility for commerce at statehood follows from the facts stipulated to by the parties. The parties stipulated that the River’s physical characteristics have remained unchanged since statehood. They also agreed that the watercraft customary for the River’s use at statehood included powered boats with a load capacity of approximately 1,000 lbs. We note that the rafts employed today in the guided and fishing industry have a maximum load capacity of 2,000 lbs. We therefore think that the watercraft customary at statehood could have at least supported commercial activity of the type carried on today, with minor modifications due to a more limited load capacity and rudimentary technology. We therefore conclude that the lower Gulkana was susceptible for use as a highway for commerce at statehood.

II. Reservation of the Riverbed at Statehood

Assuming the lower Gulkana was navigable at statehood, Ahtna argues on appeal that title to the underlying lands did not pass to Alaska because Congress intended to reserve title to the submerged lands of the lower Gulkana for the United States at the time Alaska became a State. Ahtna’s argument is based on note 4 of the Statehood Act, which provides:

As a compact with the United States said State[Alaska] and its people do agree and declare that they forever disclaim all right and title to any lands or other property not granted or confirmed to the State . . . under the authority of this Act, the right or title to which is held by the United States . . ., and to any lands or other property (including fishing rights), the right or title to which may be held by any Indians, Eskimos, or Aleuts (hereinafter called natives) or held by the United States in trust for said natives . . . .

48 U.S.C. note 4 prec. sec 21 (1982) (emphasis added).

According to Ahtna, note 4 meant to reserve the lands underlying Alaska’s navigable rivers because ANCSA later provided that Alaskan natives may have held title to those lands, bringing them within the reservation of note 4. See 43 U.S.C. § 1603(b)(extinguishing “[a]ll aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy, including submerged land underneath all water areas . . . .”) (emphasis added).

Alaska and amici first contend that Ahtna’s argument is not properly before this court because it was raised for the first time on appeal. We discuss the merits of Ahtna’s argument because the issue is purely legal and the facts are fully developed. See Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir. 1986).

Ahtna’s argument fails. The federal government has the power to convey a Territory’s lands underlying navigable waters prior to that Territory becoming a State, thereby defeating the future State’s right to the lands. Utah v. United States, 482 U.S. at 197, 107 S.Ct. at 2321. The Government could probably likewise reserve unto itself the same lands prior to statehood. See id. at 201, 107 S.Ct. at 2323. Nevertheless, “[g]iven the [federal government’s] longstanding policy of holding land under navigable waters for the ultimate benefit of the States, . . . [the Supreme Court will] not infer an intent to defeat a State’s equal footing entitlement from the mere act of reservation itself.” Id. at 202, 107 S.Ct. at 2323. The party seeking to defeat the State’s interest has to show that (1) Congress clearly intended to include land under navigable waters within the federal reservation, and (2) Congress affirmatively intended to defeat the future State’s title to such land. Id.

In Utah v. United States, the Court decided whether the federal government had effectively reserved for itself the bed of the Utah Lake by laws enacted prior to statehood. To meet the first prong of the test, the Court required clear reference to the particular lands in the respective legislation. The court noted that “‘Congress has never undertaken by general laws to dispose of’ land under navigable waters.” Id. at 203, 107 S.Ct. at 2324 (quoting Shively v. Bowlby, 152 U.S. 1, 48, 14 S.Ct. 548, 566, 38 L.Ed. 331 (1894)). The bed of Utah Lake was therefore not reserved by a law purporting to reserve “‘all the lands which may hereafter be designated or selected . . . for sites for reservoirs.'” Id. at 198, 107 S.Ct. at 2321 (quoting the Sundry Appropriations Act of 1888, 25 Stat. 505). The law’s generality was not cured by the fact that, prior to Utah’s statehood and pursuant to the reservation law, a United States Geological Survey reported the reservation of the “site of the Utah Lake” pursuant to the reservation law, but not the bed of the lake.[4] Id. at 199, 206-07, 107 S.Ct. at 2322, 2325-26. The Court concluded that other references to the bed of the lake did not unambiguously reflect congressional intent to reserve the bed of the lake, and so failed to definitely declare “or otherwise [make] very plain” Congress’ intention to reserve title to the submerged lands. Id. at 207, 107 S.Ct. at 2326 (quotation omitted).

Ahtna contends that note 4 reserves title to the lands underlying Alaska’s navigable rivers to the United States. We are not persuaded that such interpretation of note 4 could survive the first prong of the test articulated in Utah v. United States. Note 4 not only omits specific reference to the lands underlying the lower Gulkana, it also omits reference to any submerged lands. Thus, note 4 embodies too general a statement from which we could “infer an intent to defeat [Alaska’s] equal footing entitlement.” Utah v. United States, 482 U.S. at 202, 107 S.Ct. at 2323. We need not reach the issue of whether note 4 would survive the second prong of the test. See id.

CONCLUSION

We will not infer congressional intent to deprive Alaska of its title to submerged lands of navigable rivers within its boundaries based on the general language contained in note 4 of the Statehood Act. Because the lower Gulkana was susceptible for use as a highway of commerce at statehood, the lower Gulkana was navigable, and title to its submerged lands vested in Alaska at statehood.

AFFIRMED.

Tanacross, Inc., a native village, challenges the district court’s entry of summary judgment for the United States, the General Services Administration (“GSA”), the Bureau of Land Management (“BLM”), the Secretary of the Interior (“Secretary”) in his official capacity, and the Alaska State Director of the BLM in his official capacity. Tanacross claims the district court erred in holding Tok Terminal in Alaska was not available for native selection under the Alaska Native Claims Settlement Act (“ANCSA”), 43 U.S.C. § 1601 et seq., because the land was “withdrawn . . . for national defense purposes.” Tanacross also claims the Secretary was required to revoke the withdrawal of Tok Terminal by the final selection date. Tanacross further asserts there were material issues of fact which were not resolved. We affirm.

Tanacross’ selection of Tok Terminal under ANCSA was denied by BLM because the land was withdrawn for national defense purposes. According to the provisions of 43 U.S.C. § 1610(a)(1), “lands withdrawn or reserved for national defense purposes” were explicitly excepted from native selection. Tok Terminal was withdrawn for use by the Army under Public Land Order 1887 (1959).

We review an order granting summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 496 U.S. 937 (1990). Taken in the light most favorable to Tanacross, we must determine whether “there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989).

“An administrative agency’s interpretation of a statute it is charged with administering is accorded substantial deference.” Seldovia Native Ass’n, Inc. v. Lujan, 904 F.2d 1335, 1342 (9th Cir. 1990). The agency’s interpretation is upheld if it is “reasonable and is not contrary to congressional intent.” Id.

I

Tanacross concedes that a withdrawal remains in effect until it is formally revoked, United States v. Consolidated Mines & Smelting Co., Ltd., 455 F.2d 432, 445-46 (9th Cir. 1971); Buch v. Morton, 449 F.2d 600, 607 (9th Cir. 1971), and that the withdrawal for the Department of the Army was never formally revoked. Tanacross distinguishes these cases by suggesting that the terminal had been “transferred to the GSA for disposal,” so “the withdrawal was not held by any military service and the national defense purposes exception no longer applied.” In whatever sense the land was transferred to GSA, the Army continued to hold the property despite filing the notice of intent to relinquish it. This fact is critical. Sitnasuak Native Corp., 91 I.B.L.A. 86, 91 (1986). Under both BLM and GSA regulations, the Army still held the property. 43 CFR 2374.1(c); 41 CFR 101-47.201-3(b); 41 CFR 101-47.103-7. Though GSA had authority to sell or otherwise dispose of the property, the property was not held by GSA nor was the withdrawal revoked. See Alaska Pipeline, 38 I.B.L.A. 1, 17 (1978).

Tanacross’ argument, in essence, is that while courts may be hesitant to scrutinize the actual use of a property, the Army’s authorization for GSA to dispose of the property is an objective indication of the terminal’s use which we should be willing to recognize. The clear emphasis in Consolidated Mines and Buch, however, is that nothing short of a formal withdrawal would change the land’s status, even if any change in purpose was objectively verifiable. Any other result would lead to “confusion . . . in the field of property law, a field in which certainty has undisputed advantages.” Consolidated Mines, 455 F.2d at 446. The sole fact that the land was still withdrawn by the Army is controlling, even if the Army took steps indicating it might soon get rid of the property or had no further need of it. See David W. Harper, 74 I.D. 141, 149 (1967); Tenneco Oil Co., 8 I.B.L.A. 282, 283-84 (1972).

It was not unreasonable for BLM to conclude that the land was “withdrawn . . . for national defense purposes” until the withdrawal was formally revoked.

II

Tanacross maintains BLM failed to take required steps to revoke the withdrawal so that the terminal would be available for selection. According to Tanacross, BLM should not have considered whether the land was improved because improvements on land available for selection under ANCSA are not a factor.

Tok Terminal was never available for selection under ANCSA since it was explicitly excepted from withdrawal under 43 U.S.C. § 1610(a)(1). ANCSA does not apply, so BLM must follow the provisions of the Federal Property and Administrative Services Act, 40 U.S.C. § 471 et seq., which requires BLM to assess whether the property is “not suitable for return to the public domain for disposition under the general public-land laws because such lands are substantially changed in character by improvements or otherwise.” 40 U.S.C. 472(d).

III

Tanacross also argues the withdrawal should have been revoked under the terms of a 1974 Department of Interior-GSA agreement. Section II of the agreement, which Tanacross raised in the Alaska Native Claims Appeal Board (ANCAB) proceeding, applies only to surplus real property. Because Tok Terminal was never declared surplus, Section II is not applicable here.

Tanacross now argues BLM did not follow Section III of the agreement because BLM did not make Tok Terminal available for native selection even though there was no federal program need. Tanacross waived this argument by not presenting it before ANCAB. Getty Oil v. Andrus, 607 F.2d 253, 256 (1979). The administrative record also indicates both BLM and the Coast Guard did need the property. A.R. Vol. 1 at 84. Tanacross does not deny these needs existed.

IV

Tanacross asserts summary judgment was improper because there were disputed material facts. Tanacross proposes that BLM’s intentions to make use of the land biased the agency, improperly influencing its decisionmaking. Tanacross does not suggest BLM’s determination that the terminal was substantially changed in character by improvements was erroneous. Once BLM determined the land was improved, it was proper for BLM, like any other agency, to indicate that it needed the property. Besides, the record indicates it was GSA, not BLM, that initially decided the land would be retained by the government.

Tanacross states the terminal’s use for defense purposes (past the final selection date) is still in dispute. The terminal’s actual use, as noted above, is not material to the issue whether the land was still withdrawn for national defense purposes at the time of selection.

Tanacross also asserts that BLM expedited other land dispositions so the land would be available for native selection by the final selection date. Tanacross argues that the failure to expedite the processing of Tok Terminal violates the Equal Protection and Due Process Clauses. Tanacross cannot claim that BLM was dilatory in making Tok Terminal available for native selection because the terminal was simply not available for native selection at any time.

The district court’s entry of summary judgment is AFFIRMED.

Sealaska Corp. appeals the district court’s denial of its motion to enjoin Shee Atika, Inc. permanently from using Sealaska’s rock, sand, and gravel without Sealaska’s consent. Shee Atika cross appeals. We dismiss Shee Atika’s cross appeal, and affirm the district court’s order denying Sealaska’s request for an injunction.

BACKGROUND

Sealaska is a regional corporation, formed pursuant to the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C. § 1606. Shee Atika is an urban corporation formed under ANCSA, 43 U.S.C. § 1613(h)(3). Shee Atika owns the surface estate in approximately 22,000 acres on Admiralty Island, much of which is forested. The subsurface estate, including rock, sand, and gravel, is owned by Sealaska. See 43 U.S.C. §§ 1611, 1613; Tyonek Native Corp. v. Cook Inlet Region, Inc., 853 F.2d 727 (9th Cir. 1988). Despite Sealaska’s repeated demands, Shee Atika has refused to pay Sealaska for the rock it uses in building roads and other facilities necessary for harvesting timber.

In 1992, Shee Atika brought this action, seeking a declaration that it has a right to use rock, sand, and gravel from Sealaska’s subsurface estate without paying Sealaska. Sealaska counterclaimed, requesting a permanent injunction prohibiting Shee Atika and those harvesting its timber from taking rock, sand, and gravel without Sealaska’s consent.

On February 22, 1993, in response to the parties’ crossmotions for partial summary judgment, the district court denied Sealaska’s request for a permanent injunction. Thereafter, Sealaska brought this interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(1). Shee Atika crossappealed.

JURISDICTION

Both Shee Atika’s cross appeal and Sealaska’s appeal are taken pursuant to 28 U.S.C. § 1292(a)(1). That statute gives us jurisdiction over:

Interlocutory orders of the district courts. . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where direct review may be had in the Supreme Court.

The district court’s February 22 order specifically denied Sealaska’s request for an injunction. This appeal therefore falls squarely within the language of section 1292(a)(1).[1] Relying on Carson v. American Brands Inc., 450 U.S. 79, 84, 67 L. Ed. 2d 59, 101 S. Ct. 993 (1981), however, Shee Atika argues that we do not have jurisdiction to hear Sealaska’s appeal unless Sealaska further demonstrates that the district court’s order threatens it with imminent irreparable injury.

Shee Atika’s reliance on Carson is misplaced. In Carson, the Supreme Court considered whether section 1292(a)(1) permitted appeal from an order denying the parties’ joint motion for approval of a consent decree that contained an injunction as one of its provisions. Id. at 80. Because the order did not, on its face, deny an injunction, an appeal from the order did not fall precisely within the language of section 1292(a)(1). The Court nevertheless permitted the appeal. The Court stated that, while section 1292(a)(1) must be narrowly construed in order to avoid piecemeal litigation, it does permit appeals from orders that have the “practical effect” of denying an injunction, provided that the would-be appellant shows that the order “might have a serious, perhaps irreparable, consequence.” Id. at 84.

We find nothing in Carson to suggest that the requirement of irreparable injury applies to appeals from orders specifically denying injunctions. Carson merely expanded the scope of appeals that can be taken under section 1292(a)(1), but in so doing imposed an additional requirement on appeals that do not fall directly within the meaning of the statute. Sealaska appeals from the direct denial of a request for an injunction. Carson, therefore, is simply irrelevant.[2] We conclude that we have jurisdiction over Sealaska’s appeal.

We cannot say the same for Shee Atika’s cross-appeal. The district court’s February 22 order neither denied Shee Atika an injunction, nor directed Shee Atika to do anything. To the extent that the order has the practical effect of denying Shee Atika an injunction (an argument Shee Atika does not make), Shee Atika makes no showing of irreparable injury as required by Carson. Therefore, we have no jurisdiction to entertain Shee Atika’s cross-appeal. It is dismissed.

THE MERITS

On the merits, Sealaska’s appeal is controlled by our contemporaneous decision in Koniag, Inc. v. Koncor Forest Resource Mgmt. Co., 39 F.3d 991, 1994 U.S. App. LEXIS 30645 Nos. 93-36138 & 93-36164 (9th Cir. 1994). In that case we held that, where there is no other practical source of rock, sand, and gravel necessary for the development of a surface estate granted to a village corporation under ANCSA, the subsurface is burdened by a servitude whereby its owner may not unreasonably deny the surface owner access to rock, sand, and gravel necessary for surface development.[3]

These conditions obtain here. The parties do not dispute that Shee Atika has no practical source of rock, sand, and gravel other than Sealaska’s subsurface estate. Nor do they dispute that Shee Atika’s land is valuable principally as a source of timber. Finally, they do not dispute that Shee Atika cannot harvest its timber without using rock, sand, and gravel to build roads, logging camps, and other facilities. Accordingly, Shee Atika has a right not to be unreasonably denied access to Sealaska’s rock, sand, and gravel to the extent necessary to harvest its timber. See id. Sealaska’s requested complete injunction conflicts with this right, and the district court therefore properly denied the injunction without prejudice.

No. 93-35258: DISMISSED.

No. 93-35187: AFFIRMED.

On consideration of the appellee’s petition for rehearing, filed on October 14, 1994,

IT IS ORDERED:

1. The petition for rehearing is GRANTED in part. Changes are made on pages 15 and 34.

2. Opinion No. 4134, published on October 7, 1994, is WITHDRAWN.

3. Opinion No. 4142, is issued on this date in its place

Entered by direction of the Court at Anchorage, Alaska on November 4, 1994.

OPINION

I. INTRODUCTION

The Alaska Native Claims Settlement Act (ANCSA or the Act) enacted in 1971 (codified at 43 U.S.C. § 1601-1629a (1986)) extinguished the aboriginal title claims of the Native people of Alaska in exchange for 962.5 million dollars and 44 million acres of public land. In order to receive this money and land, the Act called for the creation of thirteen regional and over two hundred village corporations. See Kenai Peninsula Borough v. Cook Inlet Region, Inc., 807 P.2d 487, 490 (Alaska 1991).

Congress included in ANCSA a number of provisions designed to protect the rights of those who have valid existing rights to land subject to conveyance under the Act. Thus conveyances to Native corporations must be made subject to the provisions of existing leases, contracts and permits. ANCSA § 14(g), 43 U.S.C. § 1613(g). Those who have made prior lawful entries for the purpose of gaining title to a homestead, a headquarters site, a trade and manufacturing site, or a small tract site are protected and entitled to a patent when they meet the requirements of the law under which they enter. ANCSA § 22(b), 43 U.S.C. § 1621(b). Similarly, those who have prior valid mining claims and locations are protected. ANCSA § 22(c), 43 U.S.C. § 1621 (c). In addition, there are provisions which require conveyances to individuals or organizations on the basis of their occupancy for a particular purpose rather than the presence of a valid existing right or a lawful entry under the public land laws. This case involves the interpretation of two such provisions, sections 14(c)(1) and (2).[1] See 43 U.S.C. § 1613(c)(1) & (2).

Section 14(c)(1) requires village corporations to reconvey land “to any Native or non-Native occupant” who occupied the land on a specific date,[2] for any one of four designated purposes: as a primary residence, a primary place of business, a subsistence campsite, or a headquarters for reindeer husbandry. Section 14(c)(2) requires village corporations to reconvey to “the occupant” land which is occupied as of December 18, 1971,[3] by a nonprofit organization. The main issue in this case is the meaning of the term “occupant” as used in these sections.

II. FACTS AND PROCEEDINGS

Lillian Capener is a missionary affiliated with the Assemblies of God Church. She and her husband, Reverend A.E. Capener, built a church, house and garage on federal land in the village of St. Paul in 1966. The Capeners entered the land under the auspices of a special use permit issued by the Bureau of Commercial Fisheries to the “Assemblies of God Home Missions Department” dated July 7, 1966. The permit was for the described purpose of “constructing, establishing, creating, and maintaining a church and parsonage, and for no other purpose whatever during the period from July 1, 1966, to June 30, 1976.” The permit provided for automatic yearly renewals after June 30, 1976, unless terminated with thirty days written notice.

Reverend and Mrs. Capener constructed the church building on Lot 1, Block 20, City of St. Paul. Their house was located on Lot 3. The Capeners added a small garage, a large garage and a basement to the house. The large garage has been used for a motorcycle rental and tourist service business since 1972 or 1973. Mrs. Capener testified that Lot 2 is used for parking and as a garden incidental to her business and home.

In 1974 the Village Corporation of St. Paul, Tanadgusix Corporation (TDX), selected property under ANCSA which encompassed the lots in question.[4] In 1979 the Bureau of Land Management issued a patent to TDX which included these lots, subject to existing permit rights and to the duty to convey if and as required by section 14(c) of ANCSA.

In September of 1980 TDX informed the Capeners and the Home Missions Department that it now administered the special use permit. TDX notified them that it was terminating the permit as of June 30, 1981, unless new lease arrangements could be made. The Home Missions Department and the Capeners refused to enter into a lease and asserted a claim under section 14(c) of ANCSA. A.E. Capener died in 1986. Lillian Capener continued to reside on the property, to conduct church services, and to operate the motorcycle rental and tourist service business.

Effective June 19, 1988, TDX purported to terminate the special use permit. On August 2, 1988, Capener and W.J. Bransford, District Superintendent of the Alaska District Council, Inc., an Assemblies of God organization, were sent notices to quit the St. Paul premises. A few days later Capener discussed the situation with Assembly of God officials in Anchorage and Missouri and was told “I could have this property to do with as I wish, as at the time, they could not afford the legal expenses. They specifically called to tell me that I could ‘sell’ it for whatever I wished and I could ‘keep the money.'” On August 10, 1988, Bransford, on behalf of the Home Missions Department and the Alaska District Council, Inc., signed a document which “disclaims all interest” in the lots and the special use permit.

On September 12, 1988, TDX filed a forcible entry and detainer action against Capener. The trial court dismissed the complaint because a question of title had been raised. TDX was allowed to amend its complaint to assert claims for ejectment and quiet title. Capener counterclaimed, contending that title ought to be quieted in her favor. She also sought a declaration that she is the lawful owner of the lots. Both parties moved for summary judgment. The trial court granted the motion of TDX, denied that of Capener, and entered a final judgment in favor of TDX on all of its claims. This appeal followed.

III. DISCUSSION

A. Section 14(c) contentions.

The major issues in this case require an understanding of the meaning and operation of sections 14(c)(1) and (2) of ANCSA. We set forth these provisions as well as section 14(c)(3) in the margin at this point.[5]

Capener relies on sections 14(c)(1) & (2) to support her right to title to the property in question. Her first argument, concerning Lots 2 and 3, is essentially a plain language argument. She contends that the literal language of 14(c)(1) only requires occupancy, as of January 19, 1979,[6] as a primary residence or primary place of business. She argues that she meets this requirement as she had occupied the house as her residence for more than eleven years as of the critical date and had used the annexed garage for her rental and tourist service business for some six years.

With respect to Lot 1, the church building, Capener contends that the Assemblies of God faith is not of a hierarchical nature and that each minister and local church is autonomous. She argues that the local church, an unincorporated nonprofit organization, has been the occupant of Lot 1 since well before the critical date under section 14(c)(2), December 18, 1971, and under a plain reading of that section is therefore entitled to a conveyance. She is its representative and should, she contends, take title as trustee.

With respect to all three lots, Capener makes an alternative claim that she is the transferee of the Home Missions Department because it “yielded any interest it might have to her in advance of the general disclaimer.”

TDX makes two arguments as to why Capener should not be considered an occupant despite her claim that she meets the literal definition of that term. First, TDX argues that the fact that the permittee was the Home Missions Department disqualifies Capener from occupant status. Second, TDX argues that even if Capener had been the permittee, she could not have received a conveyance because the permit was revocable.

Concerning Capener’s argument that the local church organization was the occupant of the church building, TDX similarly contends that the fact that the permit was issued to the Home Missions Department disqualifies any such local organization from claiming rights under section 14(c)(2) as an occupant. With respect to Capener’s claim that the Home Missions Department orally transferred the property to her, TDX contends that such a transfer would be ineffective because the Home Missions Department had no conveyable legal interest, transfer of the permit was invalid under the terms of the permit, and the transfer was barred by the statute of frauds.

B. Summary of questions presented and holdings under section 14(c).

The parties’ arguments raise at least three legal questions which require resolution in this case. They can be expressed as follows:

1. Assuming the occupancy purpose requirements of section 14(c)(1) or (2) are met, can a permittee under a revocable permit be an occupant entitled to a reconveyance?
2. Assuming the occupancy purpose requirements of section 14(c)(1) or (2) are met, can one who occupies property which is subject to a revocable permit issued to another be an occupant entitled to a reconveyance?
3. Can the right to reconveyance under section 14(c)(1) or (2) be transferred subsequent to the occupancy date set forth in the Act?

For the reasons that follow, our answers to these questions are:

1. Yes.
2. Yes, if the occupier has an equitable ownership interest in the improvement on the property on the legal occupancy date.
3. Yes.

Because questions of fact exist concerning the equitable ownership interest of Capener and the local church, and concerning whether a transfer was intended from the Home Missions Department to Capener, we reverse the judgment of the superior court and remand this case for further proceedings.

C. The trial court’s opinion.

The trial court explicitly dealt only with Capener’s argument that she was an occupant of the residence and place of business under section 14(c)(1). The court’s opinion on this point was as follows:

In its briefing, TDX correctly asserts that only the church possessed a possible § 14(c)(1) claim, a claim which has never been adjudicated and which the church has now disclaimed. Mrs. Capener occupied the land subject to the church’s rights, and the church, not Mrs. Capener, received the permit. As TDX points out, the church could have removed the Capeners from the property at any time.

TDX also points to the fact that the permit was subject to revocation, and argues that TDX validly exercised this revocation right. TDX further argues that the property could not qualify as a primary place of business, because the rental business constitutes an unlawful occupation, run in violation of the permit, and without TDX’s permission.

The Alaska Supreme Court, in interpreting § 14(c), broadly interpreted the “primary place of business” requirement. In Hakala v. Atxam, 753 P.2d 1144 (1988), the court found that Congress intended § 14(c)(1) to give title to people who “had previously utilized the lands in an established, legal and routine fashion”. Id. at 1147. The United States Court of Appeals in Donnelly v. United States, 850 F.2d 1313 (9th Cir. 1988), articulated the other side of the spectrum when it held that § 14(c)(1) could not be used to give “amnesty” for “trespassers, failed homesteaders, or land users without any vested rights prior to December 1, 1971”. Id. at 1320 (quoting the District Court). The Donnelly court added that “there was no indication of congressional intent to override the established principle that individuals could obtain no rights to withdrawn lands. . . .” Moreover, the congressional intent to provide a “just and fair settlement” of native land claims is inconsistent with an interpretation of § 14(c)(1) that could reduce the land patented to native corporations in favor of trespassers”. Id.

In Hakala, the court wanted “to protect a wide array of existing legitimate businesses” and thus granted the appellants, Hakala and Kitchen, title to a cabin and its curtilage, from which appellants had conducted guiding operations for over 15 years. Hakala, 753 P.2d at 1147, 1148. The Hakala case differs from that of Mrs. Capener, however, because in Hakala the business did not violate any permit terms. In fact, Kitchen had express authority to conduct this business because he held a permit, issued by the State of Alaska, that gave him the exclusive right to guide customers in the disputed area, as well as a guiding license. The state, by contrast, has never issued any permit, license, or similar right to Mrs. Capener. The state issued a revocable permit to the church, which had the right, at any time, to remove the Capeners and replace them with different missionaries.

Similarly, the appellants Buettner and Hamar in Buettner v. Kavilco, Inc., 860 F.2d 341 (9th Cir. 1988), personally obtained revocable special use permits from the United States Forest Service that allowed each appellant to live on Kasaan Island. The Native Corporation of Kavilco then selected this land, later attempting to revoke the permits and enter lease agreements, which the appellants refused. The court found that the appellants “as permittees . . . were entitled to occupy the land although it was owned by someone else”, thus deciding that § 14(c)(1) requires native corporations to convey title to permittees, so long as the permittee fulfills § 14(c)(1)‘s occupancy requirements. Id. at 343. (Emphasis added). Again, unlike Buettner and Hamar, Mrs. Capener does not hold a permit. Since her entitlement to occupy depended solely on the permittee-church, which could have removed her from the property at any time, she possesses a far weaker interest than did the Hakala and Buettner appellants.

In determining the issues in this case, it is helpful to examine the Congressional purpose behind the ANCSA. The Hakala court stated that Congress intended to give native tribes “title to a portion of the lands which they occupied”, noting that Congress was “sensitive to the impoverished condition of natives and the lack of opportunity natives have to improve their condition”. Hakala, 753 P.2d at 1147 (quoting House Comm. on Interior and Insular Affairs, Alaska Native Claims Settlement Act of 1971, H.R. Rep. No. 523, 92d Cong., 1st Sess., reprinted in 1971 U.S. Code Cong. & Admin. News 2191, 2193, 2196). Defendant’s analysis of § 14(c)(1) would undermine this ANCSA purpose, and would contradict the policy that courts construe the ANCSA in favor of natives where the statute contains ambiguous language. Id. at 1147.

Additionally, Secretarial Order No. 3016 and accompanying Memorandum, Valid Existing Rights Under the Alaska Native Claims Settlement Act, 85 Interior Dec. 1 (1977), sheds light on the legislative intent behind the ANCSA. The Memo defines the meaning of “valid existing rights” in § 14(g), which provides that:

All conveyances made pursuant to this Act shall be subject to valid existing rights. Where, prior to patent of any land or minerals under this Act, a lease, contract, permit, right-of-way, or easement (including a lease . . .) has been issued for the surface or minerals covered under such patent, the patent shall contain provisions making it subject to the lease, contract, permit, right-of-way, or easement, and the right of the lessee, contractee, permittee, or grantee to the complete enjoyment of all rights, privileges, and benefits thereby granted to him. Upon issuance of the patent, the patentee shall succeed and become entitled to any and all interests of the state or the United States as lessor, contractor, permittee, or grantor, in any such leases, contracts, permits, rights-of-way, or easements covering the estate patented. . . . 43 U.S.C. § 1613(g); emphasis added.

The Memo notes that the regulations distinguish between rights “leading to acquisition of title”, which the Act intends to exclude from conveyance to natives; and “rights of a temporary nature”, which the Act intends to convey, but with the condition that the right be protected “for the duration of the interest”. Id. at 5, citing 43 C.F.R. 2650.3-1(a).

The Memo- discusses the problem posed by lands which the state conveyed, leased or patented before the state had received final approval for state selection. It indicates that the position of the recipients of these types of interests should not be worsened by the passage of the ANCSA, saying that “the House Committee report reflects Congress’ concern that a lease issued by the State which on its terms was conditional on the issuance of a patent to the State not be terminated by virtue of the Native selection”. Id. at 6-7, citations omitted.

Mrs. Capener did not hold a license or permit, nor any other vested right or interest that could “lead to the acquisition of title” at the time of the Act’s passage. Because Mrs. Capener has no claim which could have ripened into a title interest had ANCSA not passed, she cannot now acquire title because the Act did pass, particularly considering the Act’s purpose of giving title to Alaska Natives. For these reasons, the court GRANTS summary judgment in plaintiff’s favor.

In terms of the legal questions presented in this case as defined in part III B, supra, the superior court thus gave a negative answer to the second question — whether one who occupies property subject to a revocable permit issued to another is entitled to a 14(c) reconveyance. Concerning the first question — can a permittee under a revocable permit be entitled to a reconveyance — the superior court gave no answer, but discussed Buettner v. Kavilco, Inc., 860 F.2d 341 (9th Cir. 1988), which indicates that this question should be answered in the affirmative.

D. Case law interpretations of section 14(c).

As the superior court’s decision points out, we interpreted one aspect of section 14(c)(1) in Hakala v. Atxam Corp., 753 P.2d 1144 (Alaska 1988), and the Ninth Circuit Court of Appeals considered this section in two cases, Donnelly v. United States, 850 F.2d 1313 (9th Cir. 1988) cert. denied by Lee v. Eklutna, Inc. & Donnelly v. Eklutna, Inc., 488 U.S. 1046, 102 L. Ed. 2d 1001, 109 S. Ct. 878 (1989), and Buettner v. Kavilco, Inc., 860 F.2d 341 (9th Cir. 1988).

In Hakala, a guide, Kitchen, and his transferee made a 14(c)(1) claim against a village corporation to a small cabin which Kitchen had erected on public lands. Hakala, 753 P.2d at 1145. The cabin served as the base camp for Kitchen’s bear hunting operations. Id. The main controversy in the case, which we resolved in favor of Kitchen, was whether the cabin was “a primary place of business” under 14(c)(1). Id. at 1146-49. Holding that Kitchen was entitled to a section 14(c)(1) reconveyance of the cabin site and surrounding curtilage we stated:

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

Id. at 1147. In reaching this conclusion, we adopted Kitchen’s “common-sensical interpretation” of the statutory term “a primary place of business.” Id.

Although the trial court in the present case stressed that Kitchen had an exclusive guiding permit from the State of Alaska, such a permit would not have given Kitchen a right to build a cabin on federal public land. Thus, in Hakala, the village corporation argued that Kitchen was a trespasser on the critical date in 1971.[7] Kitchen did not contest this assertion. Our opinion in Hakala neither resolved nor discussed the question whether Kitchen initially built his cabin on public land without a permit.

Donnelly v. United States, 850 F.2d 1313 (9th Cir. 1988), involved the case of homesteaders, the Donnellys, who located part of their homestead on public lands which had been withdrawn from entry for a possible power development project. Id. at 1315. The Donnellys’ entry took place some time in the 1950’s. In 1975 the United States filed a trespass action against the Donnellys, who counterclaimed under the Quiet Title Act, 28 U.S.C. 2409a. Id. at 1316. In 1979 the United States patented the disputed land to a village corporation against which the Donnellys filed a third-party claim under section 14(c)(1) of ANCSA. Id. The United States’ trespass action was dismissed. Id. The district court then decided the case in favor of the United States and the village corporation. Id. On appeal, the Ninth Circuit affirmed, holding: (1) that the twelve-year statute of limitations under the Quiet Title Act barred the Donnellys’ claim against the United States; and (2) the Donnellys’ 14(c) claim against the village corporation lacked merit because they were trespassers:

As the district court noted, § 14(c)(1) could not operate as “a sort of amnesty provision extending rights to individuals who are merely trespassers, failed homesteaders, or land users without any vested rights prior to December 1, 1971,” because there was no indication of congressional intent to override the established principle that individuals could obtain no rights to withdrawn lands. Moreover, the congressional intent to provide a “just and fair settlement” of native land claims is inconsistent with an interpretation of § 14(c)(1) that would reduce the land patented to native corporations in favor of trespassers.

Id. at 1320 (citation omitted). On rehearing a footnote was added recognizing that Hakala represented contrary authority:

Counsel for appellant has called to the attention of the court a decision of the Supreme Court of Alaska, Hakala and Kitchen v. Atxam Corp., 753 P.2d 1144 (1988), decided after the filing of the decision in this case, that reaches a contrary result.

Id. at 1320-21, n.9.

The Donnelly court went on to discuss the Donnellys’ contention that they were not trespassers as they had equitable title to the land. Id. at 1321. The court refused to resolve this issue, holding that it was dependent on the quiet title claim which was barred by the Quiet Title Act statute of limitations. Id.

Buettner v. Kavilco, Inc., 860 F.2d 341 (9th Cir. 1988), involved the holders of two long-term revocable Forest Service permits who built residential cabins on the land. Ultimately, the land was patented to a village corporation which sought to increase the permittees’ rent. Id. at 342. When the permittees refused to pay the increased rent, the village corporation sought to eject them. Id. The permittees countered by bringing a quiet title action which was resolved by the federal district court in favor of the village corporation. Id. On appeal the Ninth Circuit reversed, rejecting the village corporation’s argument that the permittees were bound by the terms of the permit under section 14(g) of the act.[8] Id. at 343. The Ninth Circuit held that the existence of the permits did not bar the permittees from being entitled to reconveyances under section 14(c)(1):

We discern no inconsistency between this plain reading of section [14(c)(1)] and the provisions of section [14(g)]. The latter section applies to lessees, contractees, permittees, and grantees of rights-of-way and easements. It is true that a person with rights under section [14(g)] might also have rights under section [14(c)(1)]. On the other hand, persons having rights under section [14(g)] will not necessarily come within the scope of section [14(c)(1)]. For example, United States Forest Service special use permit-holders who did not occupy their sites as a primary residence on December 18, 1971, would be protected only by section [14(g)].

Id. at 343. In reaching this conclusion, the Ninth Circuit noted that its interpretation of 14(c)(1) was in accordance with the interpretation given that section by this court in Hakala. Id.

E. Purpose of section 14(c).

In determining the meaning of a statute, we begin with an examination of the language employed construed in light of the purpose of the statute. Beck v. State, Dept. of Transp. & Public Facilities, 837 P.2d 105, 117 (Alaska 1992). The purpose of legislation can often be understood by considering the problem which the legislation was designed to address.

The overall objective of ANCSA is clear. It is the prompt and “just settlement of all claims by Natives and Native groups of Alaska, based on aboriginal land claims . . . .” ANCSA § 2, 43 U.S.C. 1601(a). In an enactment of the magnitude of ANCSA, however, there are many subsidiary, more specific purposes. The specific purpose of section 14(c) may be ascertained by an examination of the problem that section was intended to address.

The central problem was that in most of Alaska’s villages, individual Natives did not own the land on which their houses were located. More generally, the non-ownership problem also applied to non-Natives in the villages and to business and subsistence sites. The influential report to Congress of the Federal Field Committee for Development Planning in Alaska, Alaska Natives and the Land (U.S. Govt. Anchorage, 1968) (hereafter Alaska Natives and the Land) made this clear:

Another characteristic of village Alaska is that most of its people live not on land they own, but on the public domain. Two thirds of Alaska’s 7,500 village families own no land at all.

Village Alaskans own in fee less than 500 acres of 375 million acres of their Native land. These parcels of land are held by about 1,400 families who have received or petitioned for unrestricted title to their townsite lots. Under restricted title, somewhat more than 15,000 acres are held by 961 households. Most of this acreage is in 175 allotments obtained by Natives in the 62 years since the Indian Allotment Act was enacted; the remainder is in 786 townsite lots in 32 villages.

Very little acreage — in townsite lots or allotments — is in northern and western Alaska, where most Alaska Natives live.

. . . . 

Without title and without tenure, the vast majority of the rural people live on, range over, and use the public domain as they have for generations.[9]

Alaska Natives and the Land, supra p.21 at 45-46 (footnotes omitted). 

In another section the report again observed that the Alaska Native Allotment Act of 1906 and the Townsite Act of 1926 had largely failed to distribute needed land to individual Natives:

Specific land legislation passed for Alaska Natives — the Alaska Native Allotment Act of 1906 and the Townsite Act of 1926 — has failed to meet the land needs of the Native people. In the 62 years since passage of the Native Allotment Act only slightly more than 15,000 acres of land have been deeded, by restricted deed, to 175 Native allottees. And in the 42 years since the passage of the Townsite Act, only 28 Native villages have been surveyed with deeds issued to their inhabitants; and title in fee simple to less than 500 acres has been conveyed.[10]

Id. at 537. The report noted that lack of ownership contributed to the problem of inadequate housing:

While the low cash income of villagers is an important reason behind substandard dwellings in village Alaska, it is not the sole explanation. Federal programs of insured loans are not available, even to those with ability to repay, if they do not possess title to the land upon which a house is to be situated, and most Alaska villagers are landless.

Id. at 73. Discussing the economic consequences of a land claims settlement, the report stated:

The absence of title to land occupied by Natives in Alaska villages is clearly an obstacle to financing homes, businesses, and community facilities. The grant of title to these lands would just as clearly have a beneficial effect on the village economy. . . .

Grants of land title for homesites, businesses, community facilities, and special-purpose locations such as fish camps and burial grounds should not be expected to have any negative effects on general economic development. Some question might be raised about sites in existing withdrawals such as national forests. The total area of land involved is so small, however, that we can find no instance in which such transfers would subvert the purposes of the original withdrawal.

Id. at 529.

Addressing the problem of lack of individual, as distinct from collective, village land ownership is then the primary purpose of section 14(c)(1) and (2) of the Act. Arnold, supra note 1, at 250-51, describes the process of individual conveyancing under the Act as follows:

Although most of the land that is conveyed to Natives under the settlement act goes to corporations they own, perhaps 10,000 Natives are entitled by the act to become property owners as individuals. There are three ways in which this can take place: (1) by reconveyance by a village; (2) by individual application from those living at isolated locations; and (3) by obtaining an allotment filed for prior to passage of the act.

. . . . 

Most Natives who become individual landowners will receive their land by reconveyance from their village corporations.

Once village corporations receive title (patent or interim conveyance) to lands they have selected, they are, among other things, to reconvey parcels of land to individual occupants of such parcels. Specifically, they are required to give surface title at no cost to Natives and non-Natives who are using such parcels as:

. a primary place of residence;
. a primary place of business;
. a subsistence campsite, or
. a headquarters for reindeer husbandry.

Although there were about 49,000 Natives who considered their place of residence to be one of the 203 village corporations, it is not clear that all of them will receive tracts of village land. . . .

Persons who receive land from their village corporations may immediately sell or lease it. There is no restriction (as there is with stock ownership) against the sale of land. Individually held lands are subject to property taxes if they are developed or leased. . . .

Individuals receiving title do not obtain the subsurface estate. Except for the wildlife refuges and Naval Petroleum Reserve No. 4, the subsurface belongs to the regional corporation. . . .

Transfer of title to individuals is but one task of reconveyance imposed on a village corporation. It is also required to convey surface title to nonprofit organizations (such as churches) for tracts they occupy, either without cost to the organization or for what the land was worth when it was first occupied. It must also convey to the municipal, state, or federal governments surface title to lands where airports or air navigation aids are located. And it must convey to its municipal government no less than 1,280 acres of the remaining improved lands in the village; if there is no city government, this acreage is to be conveyed to the State where it would be held in trust.

Another text, David S. Case, Alaska Natives and American Laws (1984), recognizes that the primary purpose of section 14(c) is to convey land in settled areas to individual occupants. It states that in this respect 14(c) was intended to serve the same purpose as the townsite laws which were previously applicable to Alaska.[11]

Section 14(c) of ANCSA appears to be an alternative to the subsequently repealed Alaska townsite laws. As now amended, it requires each village corporation to deed to local residents, businesses and non-profit organizations the surface estate of those village lands they occupied as of December 18, 1971. As originally enacted, a minimum of 1,280 acres of the remaining surface estate also had to be conveyed to the incorporated municipality or to the state in trust for any future municipality, but 1980 amendments to ANCSA now permit village corporations to negotiate lower municipal grants with the state or affected municipalities.

. . . . 

Congress repealed [the 1926 Alaska Native Townsite Act] because ANCSA had made it “obsolete” . . . .

Id. at 167-168 (footnote omitted). 

F. “Occupant” as defined by the dictionary and townsite act case law.

Webster’s Third New International Dictionary offers the following definitions of the term “occupant”:

1 a : one who takes the first possession of something that has no owner and thereby acquires title by occupancy b : one who takes possession under title, lease or tenancy at will 2 a : one who occupies a particular place or premises : TENANT, RESIDENT . . . b: one who holds a particular post 3 : one who has the actual use or possession of something <<limped hurriedly to grab a table whose approx. s had scarcely risen fully to their feet . . .>

Only definitions 1a, 1b and 2a could be applicable to the present problem as the others do not refer to the occupancy of real estate. Of these, application of la is to be doubted since there is no suggestion that Congress intended the benefit of 14(c)(1) to be limited to the first occupant of a dwelling in a village as distinct from subsequent occupants. The distinction between 1b and 2a seems to be that under 1b there is a connotation that an occupant must have a legal status whereas under 2a one may be an occupant merely by virtue of residence.

Under either definition 1b or 2a Capener qualifies as an occupant. Thus if the dictionary alone were to be our guide both of the legal questions involving the meaning of “occupant” posed by this case — can a holder of a revocable permit be an occupant and can one who occupies property which is subject to a revocable permit issued to another be an occupant — would require unqualified affirmative answers. However, the townsite act cases offer further guidance in defining the term occupant.

As noted, section 14(c) is meant to address the same general purpose as the townsite laws previously governing Alaska. See Case, supra, p. 25 at 167-68. These, in turn, had their counterparts in laws governing the settlement of the western states. See Oswald v. Columbia Lumber Co., 425 P.2d 240, 241 n.1 (Alaska 1967); see also Aleknagik Natives, Ltd. v.
United States, 635 F. Supp. 1477, 1479 (D. Alaska 1985) (recognizing extension of federal townsite laws to Alaska pursuant to Townsite Act of March 3, 1891, 26 Stat. 1099, 43 U.S.C. § 732 (repealed 1976)). Generally, under these laws the “occupant” of premises on the legally relevant date was entitled to a conveyance, usually on payment of survey costs. See e.g., Townsite Act of 1867, 43 U.S.C. § 718 (repealed 1976); Oswald, 425 P.2d at 242; Johnston v. Smith, 39 Ariz. 337, 6 P.2d 891, 893 (Ariz. 1931); Singer Mfg. Co. v. Tillman, 3 Ariz. 122, 21 P. 818 (Ariz. 1889); Clark v. Titus, 2 Ariz. 147, 11 P. 312 (Ariz. 1886); Amador County v. Gilbert, 133 Cal. 51, 65 P. 130 (Ca. 1901); City of Pueblo v. Budd, 19 Colo. 579, 36 P. 599 (Colo. 1894); City of Helena v. Albertose, 8 Mont. 499, 20 P. 817 (Mont. 1889); Hall v. North Ogden City, 109 Utah 325, 175 P.2d 703 (Utah 1946); Holland v. Buchanan, 19 Utah 11, 56 P. 561 (Utah 1899); Lockwitz v. Larson, 16 Utah 275, 52 P. 279 (Utah 1898); Pratt v. Young, 1 Utah 347 (Utah 1876) aff’d Cannon v. Pratt, 99 U.S. 619, 25 L. Ed. 446 (1878). In view of the similarity of purpose between section 14(c) and the townsite laws, the meaning of “occupant” as used in these laws may be a valuable guide.[12]

The Supreme Court of Arizona in Singer Manufacturing Co. 3v. Tillman, Ariz. 122, 21 P. 818 (Ariz. 1889), laid out the definition of “occupant” and the rules defining “occupancy” for the purpose of the townsite act governing Arizona:

An “occupant,” within the meaning of the townsite law of congress, is one who is a settler or resident of the town, and in the bona fide, actual possession of the lot at the time the entry[13] is made. One who has never been in the actual possession of a lot cannot be said to be an “occupant” thereof. The occupancy referred to must be actual, and cannot be begun by agency, no one being allowed to take up lots by his agent. The occupancy may be for residence, for business, or for use, but the residence, business, or use must be by the claimant. A party having a bona fide occupancy can afterward lease the ground and still retain his right thereto, and he may sell his claim, except that no contract, either for the sale or lease, which conflicts with the requirements that the title shall be made to an inhabitant who is an occupant and has an interest, will be recognized in deciding to whom the government title shall go; and a party purchasing an interest in such property can have government title to the extent of such interest, provided he becomes an occupant, thus showing no one is entitled to or can receive government titles to a town lot unless he is in the actual, bona fide possession and occupancy of the lot.

21 P. 818, 818 (Ariz. 1889) (citations omitted.) See also Cain Heirs v. Young, 1 Utah 361, 364 (1876), rev’d on other grounds, Stringfellow v. Cain, 99 U.S. 610, 25 L. Ed. 421 (1878); Pratt v. Young, 1 Utah 347, 352-54 (1876) aff’d Cannon v. Pratt, 99 U.S. 619, 25 L. Ed. 446 (1878).

The townsite act cases interpreting the term “occupant” assume that an occupant who is merely a tenant does not qualify for a conveyance. The occupant must have a colorable claim to equitable ownership of the improvements. Singer Mfg. Co. v. Tillman, 21 P. at 818. However, the actual occupier at the legally relevant date is presumed to be entitled to a conveyance. Pratt v. Young, 1 Utah at 353, 356.

Further, the rules concerning whether an occupier had an interest sufficient to entitle the occupier to a deed as an occupant were not strict or technical.[14] Thus, in Singer Manufacturing Co. v. Tillman, Tillman initially was merely a tenant of the landlord, Mund. 21 P. at 818. Mund then gave a mortgage to third parties. Tillman did not pay rent and asked Mund to make repairs to the premises. Id. Mund refused, saying he wanted nothing further to do with the premises. Id. At this point, in the court’s view, Tillman became an occupant in his own right. Shortly thereafter,[15] entry for the purposes of the townsite act was made by the probate judge who deeded the property to Tillman as the occupant. Subsequently, the mortgagees foreclosed. The court found in favor of Tillman since the mortgagor’s (Mund’s) right was extinguished before he executed the mortgage by his failure to remain in physical occupancy.

In Pratt v. Young, Orson and Sarah Pratt were the initial occupants of a house in Salt Lake City. 1 Utah at 355, 359. In 1861 they moved and sold the house to Young and certain members of Young’s family occupied it. Id. at 359. In 1868 Sarah Pratt resumed possession of the house. Id. at 355-56, 359-60. The entry date establishing the relevant date of occupancy occurred subsequent to Sarah Pratt’s resumption of possession. Id. at 355. In a contest between Sarah Pratt and Young as to who was entitled to a deed to the house under the townsite act, Sarah Pratt prevailed. Id. at 360. She had been given possession of the house by Young “without any contract for rent or any understanding or agreement expressed or implied, that she should become or be the tenant of [Young]. . . .” Id. at 359-60. Several other cases recognize that an occupant need not comply with technical legal requirements in order to establish his or her interest in the land. See, e.g., Hall v. North Ogden City, 109 Utah 325, 175 P.2d 703, 708-711 (Utah 1946) (discussing several cases where occupancy was sufficient to give party title to land). See also Ashby v. Hall, 119 U.S. 526, 30 L. Ed. 469, 7 S. Ct. 308 (1886) (occupant’s right to land established upon entry of townsite and nothing more was necessary).

G. The meaning of “occupant” under section 14(c).

Having reviewed the language and purpose of section 14(c) and the relevant case law, we are in a position to interpret the meaning of the term “occupant.” The dictionary definition, “one who occupies a particular place or premise” captures the intended meaning accurately for most cases.[16] However, for situations involving tenancies or similar relationships this definition is inadequate. It would require a reconveyance to an occupier who is merely a tenant of the owner of the improvements. Such a person’s property interest is not strong. Further, in some cases this would be unjust to the owner of the improvements, as where the owner holds under a long-term government lease and would be protected for the term of the lease under section 14(g), while the tenant, whose sole residence is on the premises, would have a claim to title under section 14(c)(1). Moreover, case law construing the term “occupant” in the analogous townsite act context seems to be clear that one who is merely a tenant is not an occupant.

It is necessary therefore in tenancy cases to add to the dictionary definition a requirement that the occupier have an equitable interest in the improvements. The definition in such cases thus would be “one who occupies a particular place or premise and has an equitable interest in the improvements thereon.”[17] As in the townsite act cases, there should be a rebuttable presumption that the occupier on the critical date is the occupant and thus entitled to a conveyance assuming that the occupancy purpose requirements are met. In determining whether an occupier has the requisite equitable interest, technical or strict property concepts need not be adhered to. This approach is employed in the cases interpreting the townsite acts. See, e.g., Singer Mfg. Co., 3 Ariz. 122, 21 P. 818; Pratt, 1 Utah at 353 (quoted supra in note 14). It seems especially appropriate to section 14(c), since 14(c)’s purpose is to distribute individual titles to residents of Alaska villages where concepts of American property law have been little used.

We are mindful of the rule of construction that ambiguous laws affecting Natives should be construed in favor of Natives. Hakala, 753 P.2d at 1147. This rule should not be applied in favor of TDX in this case for a number of reasons. First, TDX offers no interpretation of section 14(c) which is reasonably consistent with the language of that section, or its purpose. Second, the central purpose of 14(c) was to effect the transfer of title to thousands of Alaska Natives individually. A narrow construction of 14(c) would serve to thwart rather than further that purpose.[18] Third, as section 14(c) is structured, questions of entitlement as to improved land in and around Native villages involve as competing claimants not individual occupants and village corporations, but individual occupants and municipal corporations (or the State of Alaska in trust for future municipal corporations). Under section 14(c)(3), improved land in and around Native villages which is not transferred to individual occupants under (c)(1) or (2) is to be conveyed to the municipal corporation for the village or, if there is none, to the state in trust for a future municipal corporation.

H. A permittee may be an “occupant.”

We return to the first question raised by the parties’ arguments: whether a permittee holding under a revocable permit may be entitled to a section 14(c) conveyance or whether the permittee’s rights are limited by the terms of the permit. Our answer is that the permittee may be entitled to a 14(c) conveyance.

The permittee must be an occupant within the meaning of section 14(c) — an occupier with an equitable interest in the improvements — and the purpose of the permittee’s occupancy must be one of the purposes recognized by section 14(c)(1) or (2). The Act does not impose as an additional requirement a condition that an occupant not hold under a government lease or permit. Indeed, since the Act mandates conveyances to non-Native residential occupants whose rights are based solely on the fact that they occupy dwellings built on the public domain without a permit, it would be paradoxical to deny a conveyance to residential occupants who have made permitted entries.[19] We conclude therefore that a permittee may be an occupant. The fact that the permittee may also have rights under the permit which are preserved under section 14(g) does not preclude the permittee from receiving a conveyance under section 14(c). Our conclusion on this point comports with the Ninth Circuit’s decision in Buettner.

I. An occupier of property subject to a revocable permit issued to another may be an “occupant.”

The second question raised by the parties’ arguments is whether a person who occupies property which is subject to a revocable permit issued to another may be entitled to a section 14(c) conveyance. Our answer is that such an occupier may be entitled to a conveyance, if the occupier has an equitable ownership interest in the improvements, and meets the occupancy purpose requirements of the Act. The Act does not impose additional requirements. We have concluded above that the existence of a permit is irrelevant to eligibility for a 14(c) conveyance and that the terms of an existing permit do not bar a conveyance. It follows that the fact that a permit may have been issued in the name of a non-occupant should not preclude a conveyance to an occupant who meets section 14(c) requirements.

J. The right to a reconveyance can be transferred subsequent to the legal occupancy date.

The third legal question raised by the parties’ arguments is whether an occupant entitled to a 14(c) reconveyance from a village corporation may transfer the occupant’s right to a reconveyance to a third party. The answer to this question clearly is affirmative.

An occupant’s right to a 14(c) reconveyance is an individual property right which vests on what the Ninth Circuit has called the “magic” date. Buettner, 860 F.2d at 343. Property interests are alienable in the absence of specific prohibitions on alienability. See Roger A. Cunningham, et al., The Law of Property § 2.1, at 29 (2d. ed. 1993). No such prohibitions exist in ANCSA. Moreover, under the townsite acts an occupant could transfer his interest subsequent to the legal occupancy date and prior to receipt of the deed. McKennon v. Winn, 1 Okla. 327, 33 P. 582, 585 (Okla. 1893). TDX’s argument that the permit terms prohibit the Home Missions Department from making a conveyance to Capener after the legal occupancy date lacks merit, for just as the inconsistent terms of the permit do not control an occupant’s right to a conveyance they do not deprive the occupant of the power to transfer that right.

K. Genuine issues of material fact exist which preclude summary judgment.

An affirmative burden falls on one who seeks summary judgment to establish the absence of genuine issues of material fact. Wickwire v. McFadden, 576 P.2d 986, 987 (Alaska 1978); Clabaugh v. Bottcher, 545 P.2d 172, 175 n.5 (Alaska 1976). Our resolution of the legal questions raised by the parties’ arguments makes it apparent that Capener’s right to a conveyance depends on the resolution of certain fact questions including, at least, the following:

1. Did Capener have an equitable interest in the improvements on Lot 3 on January 19, 1979? If so, is Lot 2 part of the curtilage of the house and business on Lot 3?
2. Did the local church organization have an equitable interest in the improvements on Lot 1 or Lot 3 on December 18, 1971?
3. Did the Home Missions Department transfer its interest in the property to Capener prior to executing the general disclaimer.[20]

As TDX has not negated the existence of genuine issues concerning these questions, summary judgment was improper. The judgment of the superior court must therefore be reversed and this case remanded for further proceedings.[21]

REVERSED and REMANDED.

Dissent

COMPTON, Justice, dissenting.

I am unpersuaded by this court’s analysis of Section 14 of the Alaska Native Claims Settlement Act (ANCSA). Further, I conclude that the superior court reached the correct result. Therefore I dissent.

The Assemblies of God’s entitlement to occupy and use the land was based on a Special Use Permit issued to it by the United States Department of the Interior, Fish and Wildlife Service, Bureau of Commercial Fisheries. The permit gave the Assemblies of God “the right to occupy and use [the land] for the purpose of constructing, establishing, creating, and maintaining a church and parsonage, . . . and for no other purpose whatsoever.” The permit had a ten year primary term, with automatic annual renewals unless terminated by either party by thirty days written notice. Upon expiration or termination of the permit, the Assemblies of God had the right, upon fulfillment of certain terms and conditions, to remove all structures, except those furnished by the government. If it failed to do so, any structures became property of the United States. The permit was not transferable, and no interest could accrue to a third person without permission of the Director of the Bureau of Commercial Fisheries. The only rights and liabilities created by the permit were between the United States Government and the Assemblies of God.

Lillian Capener and the late Reverend A. E. Capener were never permittees under the Special Use Permit. They did not “enter the land under the auspices of a special use permit . . . .” They entered the land under the auspices of the Assemblies of God. The Capeners’ presence on the land was as missionaries for the Assemblies of God.[1] By virtue of their mission, they had permission to use the parsonage.[2] On the “magic” dates the Assemblies of God had not terminated the Special Use Permit, nor had it divested the Capeners of their mission.

The court acknowledges that the term “occupant” is ambiguous. The fact that the court goes to such great lengths to craft its definition of “occupant” demonstrates this clearly. However, in my view the court not only crafts an incorrect definition, but also misapplies it even if correct.

I. The Court’s Definition of “Occupant” Is Unpersuasive.

The court concludes that an “occupant” is “one who occupies a particular place or premises and has an equitable interest in the improvements thereon.”[3] The first half of the definition is simply a self evident dictionary definition. The second half presumably distinguishes one kind of tenant from another kind of tenant.[4] However, the appended language does not appear to correct the problem the distinction allegedly addresses. The court remarks that the dictionary definition

would require a reconveyance to an occupier who is merely a tenant of the owner of the improvements. . . . In some cases this would be unjust to the owner of the improvements, as where the owner holds under a long-term lease and would be protected for the term of the lease under section 14(g), while the tenant, whose sole residence is on the premises, would have a claim to title under 14(c)(1). . . In the analogous townsite context [it] seems to be clear that one who is merely a tenant is not an occupant. . . .
It is necessary therefore in tenancy cases to add to the dictionary definition a requirement that the occupier have an equitable interest in the improvements.

Opinion at 30. The language appended by the court merely narrows the category of tenants who will divest their landlords; it does not eliminate the problem. Under the definition crafted by the court, the tenant (sub-lessee) of the holder of a long-term government lease (sub-lessor), who occupies the land as a primary residence or business and who has an equitable interest in improvements put on the premises with the sub-lessor’s consent, would become the owner of the property the sub-lessor leased to that tenant.

The definition employed by the court creates an impossible situation. The patent, by which the Village Corporation obtains title from the United States, is subject to the lessee/sublessor’s “complete enjoyment of all rights, privileges, and benefits thereby granted him [by the lease].” Section 14(g). The described sub-lessee is entitled to a conveyance of title from the Village Corporation “without consideration.” Section 14(c)(1). Thus the sub-lessee’s title is subject to the sub-lessor’s existing rights, which may include entitlement to rent from the sub-lessee, who is now the owner. Presumably if the sub-lessee defaults in the payment of rent, the lessee/sub-lessor may evict the person who is now the owner of the property.

I am unpersuaded that this attempted differentiation between various kinds of tenants, one of whom obtains title and the other of whom occupies in accordance with the terms of a lease which cannot be transformed into title, justifies the court’s definition of “occupant.” The definition will exacerbate the problem. A tenant by any other name will still be a tenant. The problem will be the same: the tenant’s Section 14(c)(1) rights will conflict with the United States’ lessee’s Section 14(g) rights.

The court’s definition of occupancy is flawed even when viewed only in the context of Section 14(c)(1). As used in Section 14(c)(1), “occupant” applies to four classes of activity on land: (1) primary place of residence, (2) primary place of business, (3) subsistence campsite, or (4) headquarters for reindeer husbandry. Acknowledging the inadequacy of its craftsmanship, the court restricts its definition of occupant to the first two classes of occupants. As it states, in the other categories “improvements may be either non-existent or relatively unimportant.” Opinion at 30 n.17. While that may be true, on what basis can such a definitional distinction be made between category 1 and 2 occupants on the one hand, and category 3 and 4 occupants on the other? I suggest there is none. Furthermore, given the nomadic culture of many of Alaska’s Natives, an equitable interest in improvements is a concept of questionable utility.

II. The Court Improperly Applies Its Own Definition of “Occupant.”

The court’s definition of occupant requires that the occupier of the premise have an “equitable interest in improvements.” Even under this definition, Mrs. Capener would not be entitled to a conveyance of title.

The court correctly notes that a tenant is not an occupant “in the analogous townsite act context.” Opinion at 30. The relationship between the Assemblies of God and Mrs. Capener is consistent with, and most analogous to, the relationship between landlord and tenant. The Assemblies of God and Mrs. Capener could not both occupy the land in the statutory sense. And while a tenant might have a claim to ownership of improvements under specific circumstances, the court cites no authority for the proposition that the mere existence of such a claim transforms the tenant into an occupant entitled to a conveyance of title. Furthermore, given the terms of the permit, Mrs. Capener cannot have had an equitable interest in the improvements on the land vis-a-vis the United States. The permit states that any improvements will be forfeited to the United States if not removed by the permittee, the Assemblies of God.

Whether a permit holder ever can receive title under Section 14(c) is a question that is not necessary to decide, as Mrs. Capener was not a permit holder. She was on land permitted to another, at the sufferance of another, with no expectation of ever gaining title. The only “equitable interest in improvements” that may have existed was held by the Assemblies of God.
Mrs. Capener’s sponsor, the Assemblies of God, was denied title when it tried to obtain it outside of the context of ANCSA.[5] The Assemblies of God has never pursued any ANCSA claim. It has never asserted a Section 14(g) claim to protect its valid existing rights as permittee. It has never pursued a Section 14(c)(2) claim to “[a] tract occupied . . . by a nonprofit organization,” although there appears to be no dispute that the Assemblies of God is a nonprofit organization, and that it occupied the land. Yet whatever claim the Assemblies of God may have had, its claim was either as a permittee or as a nonprofit organization which occupied the land.

III. A More Appropriate Definition of “Occupant.”

In determining the meaning of “occupant,” we are constrained to follow the rule that ambiguities in ANCSA are to be resolved in favor of Natives. Hakala v. Atxam Corp., 753 P.2d 1144, 1147 (Alaska 1988) (citing United States v. Atlantic Richfield Co., 612 F.2d 1132, 1138-39 (9th Cir. 1980); Alaska Public Easement Defense Fund v. Andrus, 435 F. Supp. 664, 670 (D.Alaska 1977)). Although the court is “mindful” of the rule, it explicitly declines to follow it.[6] I do not know what the court means by this. If there is no ambiguity, the rule does not apply. If there is an ambiguity, the court must follow the rule. The rule requires that the ambiguity must be resolved in favor of Natives. This should not mean that the Natives must provide the best resolution of the ambiguity, else the rule is meaningless. I suggest that the Natives must advance an interpretation that is reasonable. For the reasons set forth in supra note 3, I conclude they have done at least that.

Persons entitled to assert occupancy rights under the Townsite[7] and Native Townsite Acts[8] were not required to have a patent, lease, contract, permit, right-of-way, or easement. In other words, they had no Section 14(g) “valid existing rights.” The protection for such users has to come from elsewhere. It comes from Section 14(c). According to David S. Case, The Special Relationship of Alaska Natives To The Federal Government (1978),

The Native Townsite Act was administered in the same way and according to the same regulations as an earlier 1891 Act which granted citizens (usually non-Natives) the right to establish townsites in Alaska. . . . These procedures made no distinction between Native and non-Native in townsite administration. Prior to 1959, it was possible for both Natives and non-Natives to be deeded lots within the subdivided portion and to occupy land in the unsubdivided portion of the same townsite. . . . The Townsite Act was repealed in 1976, and Section 14(c) of ANCSA provides an alternative for municipalities to acquire municipal lands. However, the townsites established under the 1926 Act were not eliminated either by ANCSA or the 1976 repeal of the Native Townsite Act. . . . Non-Natives can continue to establish new occupancy rights under the 1926 Act on the same types of land for which ANCSA supposedly prohibited occupancy rights as of December 18, 1971.

Id. at 60 (citations omitted). 

ANCSA is a coherent act. Section 22(b) protects existing rights that might eventually lead to title, such as homesteads and mining claims. Section 14(g) protects the existing rights of those temporarily on the land.[9] Section 14(c) protects the rights of those without “existing rights,” such as those who but for ANCSA, and its repeal of the Native Allotment Act,[10] may have had reasonable expectations that entry could be made under the Townsite and Native Townsite Acts, following which they would obtain title.[11]

In my view a more suitable definition of occupant would be a user whose continued use 1) is not protected by another section of ANCSA, and 2) is reasonably expected to continue without interference by the United States. This definition would bring within its ambit persons living in a community which could have gained de jure status under the Townsite and Native Townsite Acts, and whose entitlement under those now repealed acts is not clear.

The concept of title to land as we understand it is one grounded in common or civil law. It is not a concept of Native culture. However, if the Native concept of continued use is kept in mind, the definition is appropriate to the purpose of ANCSA.

Congress’ use of the term “occupied” becomes more understandable when considered in the context of its traditional use in Native legislation. The term has typically been applied in the context of Native aboriginal title rights. See David S. Case, Alaska Natives and American Laws 56-75 (1984) (providing a legal history of the aboriginal title rights of Alaska Natives; “occupy” terminology occurs frequently).[12] A basic tenet of statutory construction is a presumption that words that have acquired special meaning in the law carry that meaning in new legislation. See O’Callaghan v. State, 826 P.2d 1132, 1134 (Alaska 1992). ANCSA extinguished aboriginal title in Alaska. However, the purpose of Section 14(c) is to protect existing users or occupants. The passage of ANCSA did not change the use occupants made of the land, often the very use that aboriginal title was crafted to encompass.

Finally, the practical effect of a conveyance from the Village Corporation is important to keep in mind. Unlike the regional corporations, a village’s pool of land shrinks every time land is conveyed.[13] This land was not a gift from the government, but rather was payment given in exchange for an arguably legally enforceable right. Given this historic fact, and ANCSA’s purpose, the court should not interpret ANCSA “to defeat the manifest intent of Congress.” United States v. Atlantic Richfield Co., 612 F.2d 1132, 1139 (9th Cir. 1980).

This case involves interpretation of the land reconveyance provision of the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C. § 1613(c). The City of Ketchikan seeks conveyance from the Cape Fox Corporation of surface title to 38 acres upon which its Beaver Falls hydroelectric powerhouse is located. The City appeals the district court’s grant of summary judgment to Cape Fox. Upon de novo review, Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994), we affirm.

BACKGROUND

Congress enacted ANCSA in 1971. The Act is a legislative compromise, written in response to conflicts among the federal government, the state of Alaska, Alaska Natives and non-Native settlers over ownership of Alaskan lands. It awarded Alaska Natives $ 962.5 million and approximately 40 million acres of public land, in exchange for extinguishment of their aboriginal title claims. See 43 U.S.C. §§ 1603, 1605(a), 1611.

The Act divides Alaska into 12 geographic regions, each with a Native Regional Corporation. 43 U.S.C. § 1606(a). Within the Regional Corporations are approximately 200 Village Corporations. 43 U.S.C. § 1607. Subject to certain restrictions, the Village and Regional Corporations were allowed to select land in “contiguous and . . . reasonably compact tracts” from the available public lands in Alaska. 43 U.S.C. § 1611(c)(2). The Village Corporations received title to the surface estate, and the Regional Corporations received the subsurface estate. 43 U.S.C. § 1613(f). The Village Corporations are required to reconvey, without consideration, the surface title to Native or non-Native “occupants” who meet certain conditions. 43 U.S.C. § 1613(c). Those legal occupants who do not meet the conditions may continue their occupancy, but do not receive title. 43 U.S.C. § 1613(g).

The City of Ketchikan operates electric, water and telecommunications utilities under the name Ketchikan Public Utilities (KPU). As part of its electric utility, it runs the Beaver Falls hydroelectric powerhouse, which is located six and a half miles from Ketchikan. The City constructed the facility in 1945 on public lands within the Tongass National Forest and has since operated pursuant to a 50-year license from the Federal Power Commission. The lease and license expired at the end of 1995. The City has obtained a new 30- year license subject to its ability to secure the right to use the land. See Ketchikan Public Utilities, 69 Fed. Energy Reg. Comm’n Par. 62,113 (1994), as modified by, 74 Fed. Energy Reg. Comm’n Par. 61,051 (1996). The City has never owned the land.

In 1984, Cape Fox, a Native Village Corporation, acquired surface title to 428 acres of federal land pursuant to ANCSA. The Beaver Falls powerhouse is situated upon approximately 38 acres of that land. The City of Ketchikan seeks surface title pursuant to two ANCSA conveyance subsections. It argues that the Beaver Falls site is a primary place of its electric utility business pursuant to subsection 1613(c)(1), and that the City is entitled to the land as a nonprofit organization under subsection (c)(2). The district court granted Cape Fox’s motion for summary judgment, finding neither conveyance provision applicable. The City appealed.

Discussion

I. “Primary Place of Business”: § 1613(c)(1)

The City first argues that it is entitled to title to the disputed site under subsection 1613(c)(1), which provides:

the Village Corporation shall first convey to any Native or non-Native occupant, without consideration, title to the surface estate in the tract occupied as of December 18, 1971 .. . as a primary place of residence, or as a primary place of business, or as a subsistence campsite, or as headquarters for reindeer husbandry. . . . (emphasis added).

The City’s argument depends on whether the power plant could be considered “a primary place of business” on December 18, 1971. Congress has not used this exact term in any other statute, and the legislative history provides no guidance as to its definition. Only one opinion has considered its meaning. See Hakala v. Atxam Corp., 753 P.2d 1144 (Alaska 1988). Thus we look to the statute’s plain language. In re Hanna, 72 F.3d 114, 115 (9th Cir. 1995).

The City argues that by using the article “a” rather than “the,” Congress indicated that a business can have more than one primary place. We disagree. Despite the use of “a,” the word “primary” connotes a single leading location. See Black’s Law Dictionary 1071 (5th ed. 1979) (primary means “First; principal; chief; leading. First in order of time, or development, or intention.”); Webster’s New World Dictionary 1129 (2d ed. 1974) (primary means “first in time or order of development; primitive; original; earliest first in importance; chief; principal; main”). Because we believe that the focus of the phrase is the word “primary,” we hold that a business may have only one “primary place.” To read the statute otherwise would change the meaning of “primary” to merely “significant.”

Although a business may have only one primary location, a person or corporation may have more than one business. Accord Hakala, 753 P.2d at 1148 (“We find that for each business in which a person engages, there can only be one primary place of business.”) (emphasis added). The City argues that KPU encompasses three distinct businesses: an electric utility, a telecommunications utility and a water utility. For purposes of this opinion only, we agree that these utilities should be considered separate businesses and that each may have its own primary place of business. [1] Thus we must decide whether the electric utility’s primary place of business is the Beaver Falls plant or its downtown Ketchikan office. [2]

In defining “primary place of business,” Cape Fox urges us to look to the definition of the “principal place of business” used in personal jurisdiction analyses. See 28 U.S.C. § 1332(c)(1) (“[A] corporation shall be deemed to be a citizen .. . of the State where it has its principal place of business”); Danjaq, S.A. v. Pathe Communications Corp., 979 F.2d 772, 776 (9th Cir. 1992) (“The bulk of corporate activity, as evidenced by the location of daily operating and management activities, governs the choice of a principal place of business.”). The City concedes that under that analysis the powerplant is not its primary place of business.

Although the jurisdiction cases provide some guidance, we do not believe that that analysis is determinative. In ANCSA, Congress chose to use language similar to section 1332(c), but not identical. See BFP v. Resolution Trust Corp., 511 U.S. 531, 128 L. Ed. 2d 556, 114 S. Ct. 1757, 1761 (1994) (holding that the neologism “reasonably equivalent value” does not necessarily carry the same meaning as traditional “fair market value”). Moreover, the policy concerns behind the jurisdictional definition are inapt in the ANCSA context. The underlying purpose of diversity jurisdiction is to protect out- of-state corporations from local prejudices. See Danjaq, 979 F.2d at 774; S. Rep. No. 1830, 85th Cong., 2d Sess. 4 (1958). This reasoning bears no relation to Alaskan land selection.

The Alaska Supreme Court’s decision in Hakala, although not binding on this court, provides a better analysis. That court  recognized that Congress wanted to protect existing businesses, as well as to help Native Alaskans. With that in mind, the court “adopted an interpretation of the phrase ‘a primary place of business’ which effectuated Congress’ intent to protect a wide array of existing legitimate businesses.” Id. Refusing to create “rigid and arbitrary requirements,” the court interpreted “primary place of business” as the “place which serves as the center of activity for that  business.” Id. [3] We adopt the Hakala court’s description of the test.

With this test in mind, we hold that the downtown office was the “nucleus” and “center” of KPU’s electric business activity in 1971. Although Beaver Falls generated 55% of KPU’s power, the location was but one of four electricity-generating facilities owned by the City. The management of KPU, including the management of its electric utility business, was conducted at an office in downtown Ketchikan. All customer interactions and general administrative functions were conducted at that office. Of the 30 employees who worked solely for the electric utility in 1971, only three worked at Beaver Falls. The utility also had a vast undertaking in electricity distribution and sales that did not take place at Beaver Falls. We conclude that the Beaver Falls plant was not the electric utility’s primary place of business. [4]

II. “Nonprofit Organization”: § 1613(c)(2)

The City also argues that it is entitled to a reconveyance as a “nonprofit organization” based on the plain language of subsection 1613(c)(2). It provides:

The Village Corporation shall then convey to the occupant . . . title to the surface estate in any tract occupied as of December 18, 1971 by a nonprofit organization. (emphasis added).

The City argues that because KPU does not make a profit and is an organization, it is a “nonprofit organization” under subsection 1613(c)(2). We disagree.

When we construe statutory language we look first to its plain meaning, In re Hanna, 72 F.3d at 115, but our inquiry does not stop there. “When we look to the plain language of a statute in order to interpret its meaning, we do more than view words of subsections in isolation. We derive meaning from context, and this requires reading the relevant statutory provisions as a whole.” In re Rufener Constr., Inc., 53 F.3d 1064, 1067 (9th Cir. 1995). We note that any ambiguity in a statute must be interpreted liberally in favor of the Native tribes. Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766, 85 L. Ed. 2d 753, 105 S. Ct. 2399 (1985); Tyonek Native Corp. v. Secretary of the Interior, 836 F.2d 1237, 1239 (9th Cir. 1988).

The structure of section 1613(c) is important to our analysis. This section awards specific conveyances to a limited group of occupants. Subsection (a), discussed earlier, conveys land to four groups: occupants who have a primary residence, a primary place of business, a subsistence campsite or reindeer husbandry headquarters. Subsection (b) conveys land to nonprofit organizations. Subsections (c) and (d) involve conveyances to Native and non-Native municipal corporations. 5 The City argues that it fits the definitions of both nonprofit organization and municipal corporation, and should receive the benefits of both conveyance provisions. There are several problems with its argument.

First, the City’s argument makes subsections (3) and (4) superfluous. Security Pacific Nat’l Bank v. Resolution Trust Corp., 63 F.3d 900, 904 (9th Cir. 1995) (We must avoid a construction which renders any language of the enactment superfluous.”). By the City’s reasoning, a municipal corporation, as a nonprofit organization, would receive a conveyance of all occupied lands pursuant to subsection 1613(c)(2). Thus, subsection (3), which requires conveyance to municipal corporations in Native villages of all improved land on which the village is located, would be unnecessary because under subsection (2) the municipal corporation would already have received the conveyance. Similarly, subsection (4), which awards the government any airstrips, airport sites and the like, would also be unnecessary.

Second, Congress did not define “nonprofit organization” in ANCSA but it did define “municipal corporation.” A municipal corporation is “any general unit of municipal government under the laws of the State of Alaska.” 43 U.S.C. § 1602(i). The City of Ketchikan, which operates KPU, is organized under Alaska law as a municipal corporation. See Alaska Stat. § 29.71.800(13) (defining it as “a political subdivision incorporated under the laws of [Alaska] that is a home rule or general law city, a home rule or general law borough, or a unified municipality.”). Neither the City nor the utility is organized under Alaska statutes for nonprofit organizations. See Alaska Stat. § 10.20. It seems logical that Congress would look to state law for both definitions. If so, the City is a municipal corporation and not a nonprofit organization. The City owns, runs and controls KPU. According to the City, it “owns” the Beaver Falls facility. It is the City that brought this action (see caption “City of Ketchikan, a municipal corporation, d/b/a Ketchikan Public Utilities”) and it is the City holding the license to run the Beaver Falls powerhouse. For purposes of ANCSA, the City (and thus KPU) is a municipal corporation, and not a “nonprofit organization.”

Third, even if the City were considered to be both a municipal corporation and a nonprofit organization, the municipal corporation’s more specific provisions must prevail. Security Pacific, 63 F.3d at 904. In this type of case, the more specific provisions (subsections (3) and (4), which grant limited conveyances to municipal corporations) become an exception to the general rule (subsection (2), which grants conveyance to nonprofits of all occupied lands). See id. (citing 2A Sutherland Stat. Constr. § 47.17).

We conclude that the City of Ketchikan, doing business as Ketchikan Public Utilities, does not qualify for a reconveyance as a nonprofit organization under ANCSA.

CONCLUSION

The City of Ketchikan ultimately fails in its effort to win surface title to the 38 acres upon which its Beaver Falls facility is located. This result is not inequitable. The City has been afforded many protections and benefits under ANCSA. Every Alaska city received a two-mile “buffer zone” around its boundary in which the Native villages could not select any land. 43 U.S.C. § 1621(l). The City of Ketchikan was the only municipal corporation in all of Alaska to secure a six- mile buffer zone. Id. It is also protected by the reconveyance provisions of subsection 1613(c)(4), which ensures land for airstrips and the like. And the City’s license with the federal government was protected by subsection 1613(g), which allowed the City to continue operating its power plant unchanged for the past 10 years, even though the land’s ownership changed hands.

Finally, we note that the City has never owned this land but only leased it from the federal government. When its lease expired the City would have been forced to renegotiate with whoever then owned the land. There was no guarantee that the government would retain ownership in perpetuity. As the Federal Energy Regulatory Commission recently noted

Ketchikan will have to make the necessary arrangements with Cape Fox for the land use rights it needs for the [hydroelectric] project. The financial interest in the land
now rests with Cape Fox, not the United States. At the same time, Ketchikan will have access, permitting it to continue to operate its project, so long as it is prepared to reasonably compensate Cape Fox for the land involved. Ketchikan Public Utilities, 74 FERC at 13, 15.

We AFFIRM the summary judgment in favor of Cape Fox.

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

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

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

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

DISCUSSION

I. Background

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

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

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

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

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

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

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

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

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

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

43 C.F.R. § 2650.5-4.

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

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

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

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

II. Constitutional Due Process

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

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

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

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

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

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

III. Salamatof had no Fiduciary or Trust Duty to Ogle

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

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

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

CONCLUSION

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

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

IT IS THEREFORE ORDERED:

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

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

HONORABLE JAMES K. SINGLETON

United States District Court Judge