Topic: Land

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

Order

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

Discussion

I. Background

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Aside from conflicting with the stated purpose of ANCSA, the procedures proposed by both Judge Kleinfeld and the defendant are inconsistent with constitutional due process requirements. Congress is generally under no obligation to create a property right in any private individual or group. Once Congress decides to vest property rights in an individual, however, those rights are protected by the Due Process Clause. Arnett v Kennedy, 416 U.S. 134, 167 (1974), reh’g denied, 417 U.S. 977, see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985);[4] McGraw v. City of Huntington Beach, 882 F.2d. 384, 389 (9th Cir. 1989); Dorr v. Butte County, 795 F.2d 875, 877 (9th Cir. 1986). The Due Process Clause prevents adjudication of a dispute over property rights by men and women who have even an indirect interest in the outcome. Gibson v. Berryhill, 411 U.S. 564, 579 (1973) (board of opticians consisting of independent opticians was prohibited from determining whether other opticians could practice as employees because board members would obtain a financial advantage by eliminating competition from companies who hire opticians); Ward v. Village of Monroeville 409 U.S. 57 (1972); California Tahoe Regional Planning Agency v. Sahara Tahoe Corp., 504 F. Supp. 753, 761 (D. Nev. 1980).

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I. Introduction

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

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

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

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

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

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

II. Facts and Proceedings

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

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

B. BLM Waives Administration Of The Material Site.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

D. Procedural Background

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

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

III. STANDARD OF REVIEW

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

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

IV. DISCUSSION

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

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

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

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

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

We have recognized:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

VI. CONCLUSION

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