Topic: Land

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 

MEMORANDUM[*]

OVERVIEW

In 1960, the Tongass Alaska Girl Scout Council (“Girl Scouts”) acquired an annual renewable special use permit from the Forest Service to occupy 4.7 acres of land on the White River, near the city of Ketchikan. The Girl Scouts erected five wooden structures on this site that they used for camping. During the ensuing years, the Girl Scouts used this camp very infrequently. They did not use the camp at all in five of the last seven years of their permit (1970, 1971, 1972, 1975, and 1976). In 1973 they used the camp for 12 days. The Girl Scouts let their use permit expire at the end of 1976. The Girl Scouts informed the Forest Service that the site was not adequate for their needs, and that they were not interested in renewing their permit. The Forest Service accordingly cancelled the 1977 bill for the permit, and informed the Girl Scouts that they had one year in which to remove their dilapidated structures.

Meanwhile, on December 18, 1971, Congress enacted the Alaska Native Claims Settlement Act (“ANCSA” or “the Act”). Cape Fox Corporation (“Cape Fox”), a Native Village Corporation, selected the White River lands in question, pursuant to the Act, sometime between 1974 and 1976. On May 18, 1979, Cape Fox received an interim conveyance of the lands from the Government. In early 1993, the Girl Scouts requested a reconveyance of the disputed lands from Cape Fox. The Girl Scouts argued that they were entitled to the disputed five acres as a nonprofit organization under 43 U.S.C. § 1613(c)(2). Cape Fox disagreed, however, and refused to reconvey the land.

It is undisputed that the Girl Scouts did not occupy the lands in question at the time Cape Fox received its patent in 1979. Cape Fox argues that this renders the Girl Scouts ineligible for a reconveyance. The Girl Scouts filed the current complaint in May 1993.

Considering motions for summary judgment from both parties, a Magistrate Judge recommended summary judgment in favor of Cape Fox. The District Court agreed, and granted Cape Fox’s motion for summary judgment on July 18, 1994. It then reaffirmed its judgment on September 30, 1994. The Girl Scouts appeal that decision. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

DISCUSSION

This court reviews the district court’s grant of summary judgment de novo. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994).

The Girl Scouts argue that they are entitled to a reconveyance under 43 U.S.C. § 1613(c)(2). Section 1613(c) provides:

Patent requirements; order of conveyance; vesting date; advisory and appellate functions of Regional Corporations on sales, leases or other transactions prior to final commitment.

Each patent issued pursuant to subsections (a) and (b) shall be subject to the requirements of this subsection. Upon receipt of a patent or patents:
. . .
(2) the Village Corporation shall then convey to the occupant, either without consideration or upon payment of an amount not in excess of fair market value, determined as of the date of initial occupancy and without regard to any improvements thereon, title to the surface estate in any tract occupied as of December 18, 1971 by a nonprofit organization.

The Girl Scouts argue that Congress, in section 1613(c)(2), legislatively vested reconveyance rights in all nonprofit organizations that occupied lands on December 18, 1971. Accordingly, they argue that they need not have maintained occupancy, or valid existing rights under section 1613(g),[1] beyond the 1971 date in order to maintain their vested right in the property in question.

Cape Fox responds that the plain meaning of the statute indicates that a claimant must be an occupant at the time of the original conveyance to the Village Corporation, as well as in 1971.

In Buettner v. Kavilco, 860 F.2d 341, 343 (9th Cir. 1988), we stated that the plain language of ANCSA § 1613(c)(1) requires conveyance of title to the surface estate to anyone occupying the land ‘as a primary place of residence’ as of the magic date of December 18, 1971.” There is no dispute that the Girl Scouts occupied the land in question on this date. However, the Girl Scouts subsequently relinquished their permit. We hold that the Girl Scouts are not entitled to a reconveyance because they voluntarily relinquished any claim they may have had to the White River lands by voluntarily relinquishing their use permit and by completely, and inarguably, abandoning the property.

CONCLUSION

For the foregoing reason, we affirm the judgment of the district court.  

I. INTRODUCTION

The Alaska Native Claims Settlement Act (ANCSA) requires village corporations to convey land used as a subsistence campsite to the occupant. The question presented is whether an occupant may be entitled to more than one campsite for a given subsistence use. We answer “yes” because the act contains no limitations pertaining to subsistence campsites and multiple campsites are frequently needed for the subsistence lifestyle which Congress meant to protect.

II. FACTS AND PROCEEDINGS

John Swiss is a big game guide and subsistence hunter and fisherman. In 1949 he and his family began setnet fishing at Polly Creek; in 1951 he opened a commercial big game guiding business. Swiss set up permanent hunting camps in several places around the state. One of these was at Black Lake, the site at issue in this case. In 1967 Swiss built a cabin at the site. This camp has been used as a place out of which hunters were guided and for obtaining meat for personal use from moose, caribou and ptarmigan.

Pursuant to section 14(a) of ANCSA, 43 U.S.C. § 1613(a), Chignik River Limited (Chignik) selected and received title to large blocks of federal land including the land on which the Black Lake camp stands. Section 14(c)(1) of ANCSA, 43 U.S.C. § 1613(c)(1), requires village corporations to convey to “any Native or non-Native occupant” title to the surface estate of tracts of land obtained under section 14(a) used, 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.” Id.

Swiss has received a conveyance of a primary place of business site. This was his guiding campsite at Cathedral Creek. He has also had a tract near Fan Creek conveyed to him as a subsistence campsite. In this case, Swiss ultimately came to claim that he was entitled to conveyance of the Black Lake camp as another subsistence campsite.[1]

When Chignik failed to take action on Swiss’s application for a conveyance he filed suit. On cross motions for summary judgment, the superior court ruled that Swiss was not entitled to the Black Lake parcel as a subsistence campsite because he had already received a conveyance of the Fan Creek subsistence campsite and he claimed both sites for the same subsistence use — gathering meat. The court also awarded Chignik Civil Rule 82 attorney’s fees of $ 6,891.60 and costs of $ 1,383.80.

Swiss appeals, claiming that an occupant is not limited to a conveyance of a single subsistence campsite for a particular subsistence use under section 14(c)(1). Chignik argues that the superior court was correct in its reasoning regarding the number of subsistence campsites to which an occupant is entitled and, in the alternative, that Swiss did not use the Black Lake camp as a subsistence campsite but as a commercial camp and that the conveyance should be denied on that ground.

III. DISCUSSION

A. Conveyance Under Section 14(c)(1).

ANCSA section 14(c)(1), 43 U.S.C. § 1613(c)(1), provides:

Each patent issued [to a village corporation under section 14(a) and (b) of the act] shall be subject to the requirements of this subsection. Upon receipt of a patent or patents:

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

In Hakala v. Atxam Corporation, 753 P.2d 1144 (Alaska 1988), we interpreted the “primary place of business” provision of section 14(c)(1) to mean that “for each business in which a person engages, there can be only one primary place of business.” Id. at 1148. Thus, an occupant is entitled to conveyance of only one parcel of land as a primary place of business for a given business.

In this case, the superior court reasoned that the statutory limitation placed on the conveyance of a “primary place of business” should also be read into the clause providing for conveyance of a subsistence campsite. The court wrote:

The language of Sec. 14(c)(1) limits conveyances of businesses and residences to the primary business and residence site and conveyances of reindeer husbandry sites to the headquarters for such activities. That indicates that even though long time users of the land had secondary business sites, residences, and reindeer husbandry sites, they are not entitled to a Sec. 14(c)(1) conveyance for those sites. By the same token, the conveyance of one subsistence campsite for a particular subsistence purpose should act to bar the conveyance of additional subsistence sites used for the same purpose.

Thus, under the reasoning employed by the superior court, one could obtain conveyances of a game subsistence campsite and a berry picking subsistence campsite but not two game subsistence campsites. As Swiss had claimed his Fan Creek and Black Lake camps as game subsistence sites, and had obtained a conveyance of the former, the superior court concluded he was not entitled to the latter.

B. Does Section 14(c)(1) Limit Conveyance of Subsistence Campsites to One Campsite Per Subsistence Use?

Swiss argues that our Hakala decision provides the key to the outcome of this case. He notes that “in contrast to the ‘primary’ place of business requirement and the ‘primary’ place of residence requirement in Section 14(c)(1), the ‘subsistence campsite’ category is not so qualified.” He concludes,

given this Court’s holding in Hakala that a “primary” place of business can only be a single site, the fact that Congress did not similarly qualify subsistence campsite claims should have led the court below to the opposite conclusion: that Congress, by not imposing the “primary” qualifier on subsistence campsites (as it had done for places of business and places of residence), explicitly did not intend to limit a claimant to only one subsistence campsite.

Chignik argues in opposition that Swiss's interpretation of the act would cause too much ANCSA land to be conveyed out of the hands of village corporations.

In our view, Swiss has the better of the argument. Section 14(c)(1) does not impose an express limitation on the number of subsistence campsites as it does for residences and businesses. This omission implies that no limitation was intended. See Croft v. Pan Alaska Trucking, Inc., 820 P.2d 1064, 1066 (Alaska 1991) (designating certain things in a statute indicates that omissions should be understood as exclusions); Burrell v. Burrell, 696 P.2d 157, 165 (Alaska 1984) (“It is an accepted rule of statutory construction that to include specific terms presumptively excludes those which are not enumerated.”).

Furthermore, practical considerations also indicate that a rule of one game campsite per occupant was not intended. Many Alaskan Natives leading a traditional subsistence lifestyle rely on more than one species for meat. Each species may be harvested in a different location, thus requiring several subsistence campsites. Further, some species are migratory and pursuing them requires more than one campsite. Imposing a single-campsite limit for taxing game would ignore these realities.

The influential report of the Federal Field Committee for Development Planning in Alaska, Alaska Natives & the Land (1968), submitted to Congress as background for ANCSA, recognized these facts and the consequent need for multiple campsites:

Alaska is often pictured as a hunter’s paradise. No vision could be more misleading. True, there are areas where wildlife abounds. There are other areas, some as large as most states, where few or no game animals exist. A case in point is the northern caribou that wander over the Arctic tundra, inhabiting one area for a few months then migrating to another.

Oftentimes they are found hundreds of miles from where they were at the same time in previous years. Sometimes they avoid using a part of their range or migrating route for years. Other large areas such as the Yukon-Kuskokwim deltas support only waterfowl and small furbearers. Much the same may be said for the Aleutian Islands. It is only when discussing southern and interior Alaska that we can deal in terms of biological populations existing permanently in the same location. And even these are subject to the cyclic fluctuations common to most forms of wildlife.

To a human population depending upon these resources for survival, this meant adoption of a way of life that would enable them to obtain food, clothing and shelter at all times of the year. Most imperative was continual contact with their food supply. It also meant a human population density at a level commensurate with the natural productivity of the land and the waters. That the Native people were able to devise means of covering long distances in search of food, for living in the open for long periods of time, of traveling over moving sea ice, and means of preserving their food [**10] during that part of the year when the temperature was above freezing is proof of their resourcefulness and energy.

Id. at 91.

Grants of fishing, hunting, and food-gathering sites may be made to individuals now using them or to Native groups for later transfer to the individuals in possession. Since agencies do not have knowledge of the locations of all such camps nor their users, the most practical approach is to have government teams meet with villages in the field to obtain applications from villagers for the sites they use. Even residents of the largest villages continue to use historic sites for hunting, fishing, and trapping — sometimes for longer periods than they reside in what may be called their home villages.

Congress might impose a maximum number of subsistence-use sites and a maximum acreage that might be embraced by all applications from each head of a household or other adult, but in so doing it should be remembered that the number of subsistence sites required for each family in their subsistence quest varies throughout the state.

While the 160-acre limitation of the Alaska Native Allotment Act might be adequate, the limitation to only four parcels would not cover the number of sites now in use by many families.

Id. at 539.

Based on the structure of section 14(c) and the nature of the subsistence hunting practices which Congress sought to protect, we conclude that the superior court erred in holding that an occupant is entitled to conveyance of only one subsistence campsite for subsistence game under section 14(c)(1).

C. Did Swiss Use the Black Lake Camp as a Subsistence Campsite?

Chignik contends that the superior court’s grant of summary judgment should be upheld on the alternate ground that Swiss used the Black Lake site primarily for business and only incidentally as a subsistence campsite and that he is not entitled to conveyance of the site under section 14(c)(1). We decline to make such a determination on the record before us.

No standard has been set to determine whether a site which is used for subsistence and for another purpose qualifies as a subsistence campsite under ANCSA. Chignik suggests that the decision should turn on the “predominant character” of the use of the site. Swiss suggests that qualifying subsistence usage need only be “not inconsequential” or, alternatively and more restrictively, “substantial.” Other standards are also conceivable. The question as to what the applicable standard should be was not litigated in the superior court, and has not been brought into focus in the parties’ briefs before this court. Therefore, we do not believe that it would be appropriate to decide at this time what the standard should be. On remand, the superior court should invite additional briefing, decide on the appropriate standard, find the facts, and apply them to the standard.

D. Attorney’s Fees and Costs.

We reverse the superior court’s award of attorney’s fees and costs to Chignik because the award is not now appropriate given our reversal of the underlying decision.

IV. CONCLUSION

For the reasons stated, we REVERSE the judgment of the superior court and REMAND for further proceedings in light of this opinion.

Seldovia Native Association, Inc. (“Seldovia”), a corporation organized under the Alaska Native Claims Settlement Act, brought this takings action seeking compensation from the United States for the value of certain lands in Alaska. Seldovia claims that recent administrative decisions of the Department of the Interior deprived Seldovia of its interest in the lands and constituted both a taking and a breach of the government’s fiduciary obligations. The United States contends that no taking or breach of fiduciary duty occurred and that Seldovia’s claims are barred by the statute of limitations. The Court of Federal Claims agreed with the United States and dismissed Seldovia’s claims. Seldovia Native Ass’n v. United States, 35 Fed. Cl. 761, modified, 36 Fed. Cl. 593 (1996). We affirm.

I

The Alaska Native Claims Settlement Act (“ANCSA”), Pub. L. No. 92-203, 85 Stat. 668 (1971) (codified as amended at 43 U.S.C. §§ 1601-1629f), is a complex piece of legislation that fundamentally altered land rights in Alaska. The Act sought to achieve “a fair and just settlement of all claims by Natives and Native groups of Alaska, based on aboriginal land claims.” 43 U.S.C. § 1601(a). Several years of hearings and detailed studies commissioned by Congress preceded the enactment of the ANCSA. See, e.g., Federal Field Committee for Development Planning in Alaska, Alaska Natives and the Land (1968). Reports accompanying the final bills in the House and Senate indicate that Congress believed it had struck a fair balance among the competing interests. See S. Rep. No. 92-405, at 85-86 (1971); H.R. Rep. No. 92-523, at 4-6 (1971). The Act was well received by the major groups that stood to benefit from it, including the Alaskan Natives. See, e.g., Robert D. Arnold, Alaska Native Land Claims at v, 145-46 (1976).

In the period leading up to the enactment of the ANCSA, there was substantial pressure on Congress to achieve a comprehensive resolution of Native claims. The terms of Alaska’s entrance into the Union in 1959 granted the State the right to select up to 103 million acres of public lands. See Alaska Statehood Act, Pub. L. No. 85-508, 72 Stat. 339 (1958). Lands to which the “right or title . . . may be held by Eskimos, Indians, or Aleuts,” however, were exempted from selection by the State. See Alaska Statehood Act § 4. Because the legal status of Native title to many lands in Alaska was uncertain, Native groups filed protective land claims encompassing approximately 300 million acres of land, or 80% of all the land in Alaska. In response to those claims, the federal government instituted a “land freeze” policy that halted the transfer of lands to the State or to private parties. That policy, however, could not be maintained indefinitely, particularly after the discovery of oil in northern Alaska in the 1960s. See S. Rep. No. 92-405, at 73, 96-98; Alaska Natives and the Land, at 442, 525-27.

The ANCSA authorized the transfer to Native Alaskans of 40 million acres of land and $962.5 million in direct payments and mineral royalties. See S. Rep. No. 92-581, at 38-39 (1971). In exchange, all Native land claims in Alaska based on aboriginal occupancy were permanently extinguished. See 43 U.S.C. § 1603. Congress declared that “the settlement should be accomplished rapidly, with certainty, in conformity with the real economic and social needs of Natives, without litigation [and] with maximum participation by Natives in decisions affecting their rights and property.” 43 U.S.C. § 1601(b). In fact, implementation of the ANCSA has fallen considerably short of that objective.

Instead of producing a quick and comprehensive resolution of Native land claims, many of the ANCSA’s provisions have required extensive administrative involvement and generated protracted legal struggles. This litigation, which Seldovia initiated some 20 years after the enactment of the ANCSA to challenge the partial resolution of its land claims, exemplifies the difficulties that have been encountered.

The ANCSA did not convey land or money directly to individual Alaskans, but instead provided for distributions to be made to corporations that reflected preexisting Native organizations. The ANCSA required each of the approximately 200 Native villages to create “village corporations” to receive land grants. See 43 U.S.C. § 1607. The plaintiff in this case, Seldovia Native Association, Inc., is one such village corporation. On a larger scale, regional corporations were established to mirror existing regional Native associations. See 43 U.S.C. § 1606. The regional corporation to which the residents of Seldovia belong is Cook Inlet Region, Inc. (“CIRI”).

To effectuate land distribution to the village corporations, the ANCSA established a three-step regimen — withdrawal, selection, and conveyance. The Secretary of the Interior was required to withdraw certain public lands for transfer. Withdrawals were made in units of “townships,” a standard land surveying unit of 36 square miles (or 23,040 acres). The Secretary was required to withdraw all available public lands in the township in which any Native village was located, as well as all public lands in two concentric rings of townships around the village. See 43 U.S.C. § 1610(a). The withdrawal for each village would consist of all available public lands in the 25-township area including and surrounding the village.

Each village corporation was entitled to select a certain number of acres from the withdrawn land, based on the size of its Native population. See 43 U.S.C. § 1613(a). These selections were known as “12(a) selections,” a reference to the pertinent section of the ANCSA. See ANCSA § 12(a), 43 U.S.C. § 1611(a). Seldovia’s population entitled it to 12(a) selections totaling 115,200 acres, or the equivalent of five townships.

In some instances, the initial land withdrawals in the 25-township region were insufficient to allow the village corporation to select its full 12(a) entitlement. In heavily populated areas, for example, the supply of public land was often quite limited. Land withdrawals were also limited to those public lands that were not already subject to “valid existing rights,” see 43 U.S.C. § 1610(a), i.e., lands that had not already been designated to be used for parks, for strategic reserves, or for other purposes.

When the initial land withdrawals were inadequate, the Secretary was authorized to make further withdrawals, known as “deficiency withdrawals,” from the nearest available public lands. The Secretary was directed, “insofar as possible,” to withdraw public lands “of a character similar to those on which the village is located and in order of their proximity to the center of the Native village.” 43 U.S.C. § 1610(a)(3)(A). In making deficiency withdrawals, the Secretary was required to withdraw three times the amount of the deficiency remaining after the initial withdrawal from the 25-township area. The village corporation could then complete its 12(a) selections from the deficiency withdrawals.

The ANCSA also provided a second means of land distribution to the village corporations. After each village corporation completed its 12(a) selections, section 12(b) of the ANCSA called for the Secretary to allocate additional lands to the various regional corporations based on the Native population of each region, until the sum of the 12(a) and 12(b) entitlements totaled 22 million acres. See ANCSA § 12(b), 43 U.S.C. § 1611(b). The regional corporations were required to reallocate the 12(b) acreage among the native villages in the region “on an equitable basis after considering historic use, subsistence needs, and population.” 43 U.S.C. § 1611(b). As in the case of the 12(a) selections, if the supply of public lands in the initial withdrawal area surrounding a village proved insufficient to satisfy the village’s 12(b) entitlement, the village corporation could select its remaining acreage from lands withdrawn by the Secretary in deficiency withdrawals.

Finally, the ANCSA provided for some land to be distributed to the regional corporations for their own use. The regional corporations were entitled to proportionate shares of 16 million acres and to the subsurface estate in all the lands selected by the village corporations in their respective regions. See 43 U.S.C. §§ 1611(c), 1613(f); S. Rep. No. 92-581, at 35.

After the Secretary withdrew a particular parcel of land and a village or regional corporation selected it, the ANCSA contemplated that the Secretary would “immediately” convey the land by issuing a patent for it. See 43 U.S.C. § 1613 (a), (e). In fact, however, the offices responsible for issuing the patents needed time to survey the land, ascertain that the selections were valid, and sort out any conflicting claims. As a result, the actual conveyance of land under the ANCSA often proceeded slowly.

The process of land withdrawal and selection did not go smoothly in the Cook Inlet region. The Cook Inlet region is the most developed and heavily populated area of Alaska. Much of the public land in the region had already been patented to the State of Alaska and therefore was not available for selection by the village corporations. See Alaska Natives and the Land, at 500. Several Native villages, including Seldovia, were located along the coast of the inlet, so that many of the encircling townships were completely or partially submerged. Some of the villages were also located in close proximity to one another so that their natural withdrawal areas overlapped. As a result, many of the village corporations in the region were unable to select their full statutory land entitlements from the townships surrounding their villages. The Secretary was thus forced to make deficiency withdrawals from other public lands in order to satisfy the villages’ 12(a) and 12(b) entitlements.

Although the deficiency withdrawals for the Cook Inlet region contained sufficient acreage for each village corporation to complete its 12(a) and 12(b) selections, there were gross disparities in the value of the withdrawn lands. Some withdrawals along the western shore of Cook Inlet contained valuable timber resources and were highly desirable, while other tracts were located along glacial plains or in inaccessible mountainous areas. Rather than attempt to allocate lands of roughly equal value for each village in the region, the Secretary of the Interior decided to allow all the village corporations to make selections from the entire deficiency withdrawal pool.

The village corporations in the Cook Inlet region encountered considerable difficulty in attempting to comply with the ANCSA rules and deadlines governing land selection and distribution. In fact, the entire selection process appears to have been plagued by imperfect communication and misunderstandings between the Department of the Interior, CIRI, and the various village corporations. Eventually, the ANCSA had to be amended to resolve the problems flowing from the 12(a) and 12(b) selections in the Cook Inlet region. Those amendments gave rise to the claims at issue in this case.

II

Seldovia’s takings claims are based on land that it chose in its 12(a) and 12(b) selections. Before any action was taken on Seldovia’s selections, legislative amendments to the ANCSA redefined the pool of lands available for selection by the village corporations. As a result, some lands initially chosen by Seldovia were no longer available. Seldovia argues that its initial act of selection was sufficient to give it compensable rights in the selected lands and that later decisions by the Department of the Interior rejecting Seldovia’s claims constituted a compensable taking of those lands.

Resolving the takings claims requires us to consider two distinct issues. The first is whether Seldovia’s claims are barred by the statute of limitations. The government argues that, for any particular parcel, Seldovia’s claim accrued on the effective date of the legislative amendment to the ANCSA that affected the disposition of that parcel. Seldovia argues that its claim with respect to a particular parcel did not accrue until the date of the Interior Department’s decision denying Seldovia’s rights to that parcel or transferring it to a third party. If the former, then Seldovia’s claims are barred by the statute of limitations. If the latter, then Seldovia’s claims are timely. The second issue concerns the extent to which Seldovia’s act of selection gave it compensable property rights in the selected properties. That issue turns on whether the process of selection under the ANCSA sufficiently fixes property rights in identifiable parcels of land.

Our analysis of the ANCSA amendment that affected Seldovia’s 12(b) selections leads us to conclude that Seldovia’s principal takings claims for the 12(b) selections arose when the amendment went into effect in 1978. As to those selections, there is no need to determine whether selection alone is sufficient to confer vested rights.

With respect to Seldovia’s 12(a) selections, we hold that Seldovia’s claims are not subject to the statute of limitations bar. Nonetheless, we conclude that those selections did not give rise to compensable property rights in the selected lands, for two reasons. First, we hold that the land selections made under the authority of the ANCSA did not have sufficient fixity or convey sufficient rights to support a takings claim. Second, many of Seldovia’s 12(a) selections failed to comply with the requirements of the ANCSA and failed to give rise to property rights for that reason as well.

We address the statute of limitations issues first because they are jurisdictional. See Bray v. United States, 785 F.2d 989, 992 & n.2 (Fed. Cir. 1986).

A. Accrual of 12(b) Selection Claims — Kamishak Bay

Seldovia filed this suit in February 1992, alleging a taking by the United States. Because the statute of limitations for takings claims is six years, see 28 U.S.C. § 2501, Seldovia’s claims are timely only if they accrued after February 1986. Takings claims accrue on the date “when all events have occurred that fix the alleged liability of the Government and entitle the plaintiff to institute an action.” Alliance of Descendants of Texas Land Grants v. United States, 37 F.3d 1478, 1481 (Fed. Cir. 1994). Thus, the key date for accrual purposes is the date on which Seldovia was clearly and permanently deprived of the lands it had selected.

The total amount of land available for selection under section 12(b) was indeterminate until all of the village corporations completed their 12(a) selections. The Department of the Interior was then responsible for proportionately dividing the 12(b) lands among the regional corporations. The regional corporations in turn were required to determine how many acres to allocate to each village corporation. The village corporations would then make selections of the allocated acreage from the available lands. Each of these actions had to be undertaken in a relatively compressed time frame, as the filing deadline for 12(b) selections was December 18, 1975, only one year after the 12(a) selection filing date. See 43 U.S.C. § 1611(c)(3).

Timely implementation of section 12(b) in the Cook Inlet region proved impossible. As the deadline for the 12(b) selections drew near, it became evident that CIRI would not be able to determine the acreage entitlement of each of the village corporations in the region. The Interior Department was able to provide CIRI with only a rough estimate of how much acreage would be available for 12(b) distribution to the village corporations. To complicate matters, it was uncertain whether two of the Native villages in the Cook Inlet region would be eligible to participate in the distribution.

In order to comply with the statutory filing deadline, all of the village corporations in the Cook Inlet region agreed to file a “blanket” selection of all the available lands, thereby preserving their rights to the land. CIRI filed the blanket application, which was signed by Seldovia and the other village corporations, on December 15, 1975. The blanket application covered approximately 2,350,000 acres of land, far more than the collective entitlements of all the village corporations.

During the same period, several of the village corporations, including Seldovia, held a meeting to make prioritized selections of the 12(b) lands. Many of Seldovia’s high priority selections were located in the Kamishak Bay area, which lies directly opposite Seldovia on the western shore of Cook Inlet. Seldovia filed two applications with the Bureau of Land Management covering the selections it made at the prioritization meeting. No other village corporation filed an individual 12(b) land selection.

Throughout the 12(b) land selection process, CIRI, the United States, and Alaska were engaged in ongoing negotiations to resolve a number of disputes that had arisen during the implementation of the ANCSA in the Cook Inlet region. CIRI was displeased with the quality of lands that had been withdrawn for it under the ANCSA, and it had filed a lawsuit, joined by the village corporations, against the Secretary of the Interior. Both the United States and Alaska also wished to retain for other purposes land that had originally been withdrawn for allocation to the village corporations under section 12(b) of the ANCSA. The parties concluded an agreement, entitled the “Terms and Conditions,” on December 10, 1975. The Terms and Conditions purported to resolve all outstanding issues among the parties.

On January 2, 1976, Congress enacted legislation adopting the Terms and Conditions. See Pub. L. No. 94-204, § 12, 89 Stat. 1150 (1976) (codified as amended at 43 U.S.C. § 1611 note). The purpose of the legislation was to effect an exchange of lands among the three parties. The land pool allocated for CIRI under the ANCSA was revised to include certain valuable oil-producing properties. The legislation designated certain lands in the Kamishak Bay area for conveyance to the State of Alaska, even though those lands had previously been part of the deficiency withdrawal made for the village corporations. The legislation further provided that Alaska’s entitlement to the Kamishak Bay lands would take precedence over the villages’ conflicting 12(b) selections, but not over their 12(a) selections. The lands that the United States wished to develop as a national park in the Lake Clark area had also been part of the original deficiency withdrawal, but under the Terms and Conditions legislation that land would not be available for selection by the village corporations. CIRI was additionally required to fulfill its obligation to reallocate 12(b) lands to the village corporations from a designated group of lands in the deficiency withdrawal. The legislation extended the filing deadline for the village corporations’ 12(b) selections for another year, until December 18, 1976. See 43 U.S.C. § 1611 note.

The Terms and Conditions legislation required two pertinent conditions to be fulfilled before it would take effect. First, CIRI and the village corporations had to dismiss with prejudice the lawsuit they had filed against the Secretary of Interior. See 43 U.S.C. § 1611 note. Second, Seldovia and the other village corporations had to agree to relinquish any selections they had made in the Lake Clark region that was designated to become a national park. See 43 U.S.C. § 1611 note. Thus, although the village corporations had not been parties to the Terms and Conditions agreement, they held an effective veto power over the legislative implementation of the agreement.

The Terms and Conditions legislation took effect in March 1978 when Seldovia agreed to dismiss the lawsuit against the Secretary and to relinquish its claims to 12(b) selections in the Lake Clark area. On the form on which Seldovia relinquished its Lake Clark selections, which were minimal, Seldovia added the following notation: “All other 12(b) selections made by Seldovia Native Association, Inc. shall remain valid.”

As noted, Seldovia had previously filed its own 12(b) land selections in addition to the blanket filing made by CIRI on behalf of all the village corporations. Seldovia’s takings claims are based on the selections it filed on its own behalf. Those claims can be broadly divided into two classes. The first consists of lands that Seldovia selected in the Kamishak Bay area on the western shore of the Cook Inlet.

Some of those lands have since been transferred by the United States to the State of Alaska, while the remainder have been selected by the State but not yet approved for conveyance. As described below, the claim to the Kamishak Bay lands arose in 1978 and is now barred by the statute of limitations.

A second class of 12(b) selections that Seldovia argues were taken are lands selected by Seldovia that have since been transferred to CIRI pursuant to another agreement between CIRI and the United States. Because some of the takings claims based on those selections are not barred by the statute of limitations, we address those claims in section C, below.

The government argues that Seldovia’s takings claims with respect to its Kamishak Bay selections accrued when the Terms and Conditions legislation became legally operative. Relying principally on this court’s decision in Catawba Indian Tribe v. United States, 982 F.2d 1564 (Fed. Cir. 1993), the government contends that the Terms and Conditions legislation unambiguously barred Seldovia from receiving any of its 12(b) selections in the Kamishak Bay area. As such, the government argues, any takings claim for those lands accrued in 1978 and is now barred by the six-year statute of limitations.

For its part, Seldovia argues that the Terms and Conditions legislation did not terminate its entitlement to the lands it had selected. Rather, Seldovia contends that it retained an expectation of receiving its 12(b) selections until 1990, when the Interior Board of Land Appeals interpreted the Terms and Conditions legislation in a manner adverse to Seldovia. Accordingly, Seldovia argues, its takings claims are timely. In addition, Seldovia points out that the Department of the Interior still has not transferred all of Seldovia’s 12(b) selections in the Kamishak Bay area to the State of Alaska. With respect to those lands, Seldovia argues that while its takings suit might be characterized as unripe, it cannot be untimely.

This court’s decision in Catawba Indian Tribe v. United States, 982 F.2d 1564 (Fed. Cir. 1993), is instructive on this issue. In 1962, Congress enacted a “Termination Act” that ended the trust relationship previously in effect between the Catawba Tribe and the United States. One of the provisions of the Termination Act was that the Tribe would thereafter be subject to all state laws, just like any other citizens. Id. at 1566.

In the 1980s, the Catawba Tribe began proceedings to reclaim certain ancestral lands that had been taken from it. 982 F.2d at 1567. In a 1986 decision, the Supreme Court rejected the Tribe’s claims. The Court found that the Termination Act unambiguously subjected the Tribe to South Carolina laws, including the State’s ten-year adverse possession statute. Id. at 1568. As more than ten years had passed between the Termination Act and the Tribe’s suit, title to the lands had irrevocably passed through adverse possession.

The Catawba Tribe then filed suit in the Claims Court, arguing that the government had taken its claim to the lands by virtue of assuring the Tribe that the 1962 Act would have no effect on those claims. 982 F.2d at 1568. The trial court dismissed the suit as untimely. This court affirmed, ruling that the statute of limitations on the Tribe’s takings claim began to run in 1962, not on the date of the Supreme Court’s decision in 1986. In pertinent part, the court held that the Termination Act’s “objective meaning and effect were fixed when the Act was adopted. Any later judicial pronouncements simply explain, but do not create, the operative effect.” Id. at 1570. Although the Tribe was unaware of the effect of the Termination Act, that did not toll the statute of limitations when the relevant facts were not inherently unknowable. Id. (citing Menominee Tribe of Indians v. United States, 726 F.2d 718, 720-21 (Fed. Cir. 1984)); see also Alliance of Descendants of Texas Land Grants, 37 F.3d at 1481 (statute of limitations for takings claim began to run when treaty extinguished claims, not when claimants realized the effect of the treaty).

Under that analysis, we must determine whether the Terms and Conditions had an unambiguous meaning such that its effect was fixed when the agreement was enacted. The government argues that paragraphs III(A) and VII(A) of the Terms and Conditions unambiguously cut off Seldovia’s rights in the contested 12(b) selections. We examine each section in turn.

Paragraph III(A) of the Terms and Conditions obligates the Secretary of the Interior to convey to Alaska “twenty-six (26) townships of land in the Talkeetna Mountains, Kamishak Bay, and Tutna Lake areas, the identities of which are set forth in Appendix E hereof.” Appendix E of the Terms and Conditions, however, lists 33 townships of land and additional portions of another township. The preamble to Appendix E clarifies that the State’s entitlement is to “the equivalent of 26.0 townships of land (599,040 acres) from the following described lands, subject to valid village selections under Section 12(a), but not 12(b), of ANCSA.”

Seldovia argues that because Alaska was entitled to select only 26 of the 33 available townships, Seldovia had no reason to believe that all of its 12(b) selections in the Kamishak Bay area would be rejected. Accordingly, Seldovia claims it could not have brought a takings suit until Alaska had selected its full entitlement under paragraph III(A), because only then would Seldovia be able to ascertain which lands had been taken.

The government responds that the apparent discrepancy between the State’s entitlement to only 26 townships and the 33 townships listed in Appendix E is misleading. Many of the townships listed in Appendix E are only partial townships. Because some of the townships are located along the coast of Cook Inlet, much of the land in those townships is submerged and therefore unavailable for selection. The government contends that it was understood by all parties that the actual amount of land represented by the 33 listed townships is approximately equal to the 26-township entitlement. The government concludes that Seldovia should have realized upon the enactment of the Terms and Conditions that all of the non-submerged land in the 33 townships would go to Alaska in satisfaction of the grant in paragraph III(A).

If the government’s argument relied solely on paragraph III(A) of the ANCSA, it would fail. Paragraph III(A) grants a fixed amount of land to Alaska, to be selected from a specified list. Although the parties may have intended for all the land in Appendix E to go to the State, as the district court for the District of Alaska recently found in another case brought by Seldovia, that result is not immediately apparent from reading the statutory language. Notably, paragraph III(A) contains no language suggesting that the Appendix E lands are granted exclusively to Alaska, or that all competing claims in the area are extinguished.

It also appears that even now Alaska’s entitlement relative to the total amount of property listed in Appendix E is unclear. Surveys of the lands listed in Appendix E are incomplete, so that the precise amount of available acreage in the listed townships is unknown. A recent decision of the Interior Board of Land Appeals indicates that the available land in Appendix E exceeds the State’s entitlement by approximately 12,600 acres. See Seldovia Native Ass’n, 113 IBLA 218, 224 n.3 (1990). Another 30,000 acres have been withheld from transfer to the State pending a more complete survey. As Seldovia points out, its total 12(b) selections in the Kamishak Bay area amount to approximately 20,000 acres. Although the government emphasizes that Alaska had no obligation to make its selections so as to minimize conflicts with Seldovia’s selections, it seems indisputable that Seldovia would not have been able to identify the lands that would go to Alaska (thereby creating a takings claim) until Alaska’s full land entitlement was satisfied. For that reason, paragraph III(A) does not support the government’s contention that Seldovia’s takings claim accrued in 1978.

The government, however, has a second and more compelling argument. It points to paragraph VII(A) of the Terms and Conditions, which it contends limits Seldovia’s 12(b) entitlement to areas other than Kamishak Bay. Paragraph VII(A) of the Terms and Conditions required CIRI to fulfill its obligation under the ANCSA to reallocate acreage to the village corporations by “allocating Section 12(b) selections to the following areas . . . .” The listed areas do not include the lands Seldovia selected in Kamishak Bay.

In contrast to paragraph III(A), paragraph VII(A) unambiguously bars Seldovia from receiving any of its 12(b) selections from lands in the Kamishak Bay area. Paragraph VII(A) is a direct statement of how CIRI is to fulfill its obligations to distribute acreage among the village corporations. While paragraph VII(A) does not identify the particular parcels that Seldovia will receive in fulfillment of its 12(b) entitlement, it clearly restricts Seldovia and the other village corporations to making their selections in the specified areas. Seldovia’s argument that paragraph VII(A) permits Seldovia to make selections in other areas is simply inconsistent with the plain language of the provision. Unlike paragraph III(A), paragraph VII(A) leaves no room for interpretation by the Bureau of Land Management. Instead, paragraph VII(A) is similar to the Termination Act in Catawba Tribe in its specificity and clarity. From the day the Terms and Conditions became effective, Seldovia lost any rights it might have had in 12(b) selections outside the specified areas.

Seldovia argues that even if the Terms and Conditions clearly terminated the villages’ rights to make 12(b) selections in the Kamishak Bay area, Seldovia was nonetheless required to seek an interpretation of the legislation from the Bureau of Land Management before instituting a takings suit. For that reason, Seldovia argues, its cause of action for a taking of the 12(b) selections in the Kamishak Bay area did not accrue in 1978, when the Terms and Conditions legislation became effective.

The premise of Seldovia’s argument is flawed, because the decision to deny Seldovia land in the Kamishak Bay area was one made by Congress, not by the Department of the Interior. Thus, the taking, if there was one, was complete at the time the Terms and Conditions legislation went into effect. The unavailability of any administrative remedy for Seldovia’s complaint regarding the Kamishak Bay lands distinguishes this case from Hodel v. Virginia Mining & Reclamation Ass’n, 452 U.S. 264, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981). In Hodel, the Supreme Court rejected a takings claim based on the enactment of the Surface Mining and Recovery Coal Act because the claimant had not made use of the opportunity to seek an administrative waiver specifically provided for in the Act. The Court viewed the claim as not ripe for judicial review, noting that “if [plaintiffs] were to seek administrative relief under these procedures, a mutually acceptable solution might well be reached with regard to individual properties, thereby obviating the need to address the constitutional questions.” Id. at 297. The Terms and Conditions described in this case have no similar provision allowing for an administrative waiver of either the land grant to Alaska or the restriction on the 12(b) selections of the village corporations.

Seldovia makes the further argument that it was unaware of the effect of the Terms and Conditions at the time of its enactment and points to various documents that support that contention. The documents include the addendum to the relinquishment that Seldovia signed to put the Terms and Conditions into effect, and a letter that Seldovia sent to the Secretary of the Interior. Those documents, however, pertain only to Seldovia’s subjective understanding of the effect of the Terms and Conditions and are therefore irrelevant. As this court noted in Catawba Tribe, a subjective misapprehension as to the effect of a statute does not toll the statute of limitations. In addition, it is well established that a relinquishment of a land claim is not rendered ineffective because it was executed based on a mistaken factual belief. See, e.g., Leo J. Kottas, 73 Im. Nat. Int. Dec. 123, 129-30 (1966) (relinquishment based on alleged misunderstanding effective in the absence of fraud or duress); Harold N. Aldrich, 73 Im. Nat. Int. Dec. 70, 73 (1966) (relinquishment filed on mistaken advice of Bureau of Land Management effective); cf. United States v. Santa Fe Pac. R.R., 314 U.S. 339, 356-58, 86 L. Ed. 260, 62 S. Ct. 248 (1941) (tribe’s request for establishment of reservation amounted to a voluntary relinquishment of other tribal lands, which could not later be rescinded).

Seldovia’s subjective misunderstanding of the Terms and Conditions would be relevant only if it could show that the government affirmatively misled it as to the effect of the agreement. See Alliance of Descendants of Texas Land Grants, 37 F.3d at 1482 (intentional deception or fraud by the government could toll statute of limitations). Seldovia, however, has not presented evidence sufficient to raise any issue of misleading conduct on the part of the government. In sum, because paragraph VII(A) of the Terms and Conditions clearly barred Seldovia from receiving 12(b) selections in the Kamishak Bay area, Seldovia’s claims to those lands accrued in 1978. Those claims are therefore time-barred.

B. Accrual of 12(a) Selection Claims

The 12(a) land selection process in the Cook Inlet region gave rise to its own set of difficulties. To ensure that all villages received some valuable land and to avoid the problem of overlapping selections, the village corporations agreed to make their 12(a) selections in a series of rounds. The selections were made and timely filed with the Bureau of Land Management by the statutory deadline of December 18, 1974. See 43 U.S.C. § 1611(a)(1). Seldovia’s 12(a) selections encompassed both lands from the townships surrounding Seldovia and other lands that were part of the deficiency withdrawals.

On May 18, 1976, the Bureau of Land Management issued a decision rejecting many of the 12(a) selection claims filed by Seldovia and the other village corporations in the Cook Inlet region. The rejection was based on the selection requirements of 43 U.S.C. § 1611(a)(2), which mandate that the 12(a) selections “shall be contiguous and in reasonably compact tracts . . . in whole sections and, wherever feasible, in units of not less than 1,280 acres.” The Bureau of Land Management determined that many of Seldovia’s selections did not conform to the statutory rules, and that the village corporations could not waive the statutory requirements in an effort to attain a more equitable distribution of land.

The consequences of the Bureau of Land Management’s ruling were potentially serious for Seldovia and the other villages. At that time, the ANCSA provided no means of waiving the statutory requirements or resubmitting invalid selections once the statutory deadline had passed. (A later amendment to the ANCSA allowed the Secretary of the Interior to waive the compactness and contiguity requirements when necessary). Thus, the Secretary’s rejection carried with it the risk that the villages would lose a portion of their statutory land entitlement.

Seldovia and the other village corporations authorized CIRI to pursue a legislative resolution to the problem. The “12(a) Conveyance Agreement,” as it was termed, called for CIRI to seek legislation to restore the villages’ full 12(a) entitlements. The proposed mechanism was for CIRI to receive title to the invalidly selected lands from the United States and subsequently to reconvey those lands to the village corporations. Under the terms of the 12(a) Conveyance Agreement, the 12(a) selections made by Seldovia and the other village corporations would govern the reconveyance from CIRI unless the parties agreed to the contrary. The 12(a) Conveyance Agreement was executed on August 28, 1976.

CIRI and the Department of the Interior promptly reached an agreement (the “CIRI/Interior Agreement”) on August 31, 1976. The CIRI/Interior Agreement called for the transfer of certain withdrawn lands described in Appendix A of the Agreement to CIRI “as soon as reasonably possible” for reconveyance to the village corporations. The Agreement also recited that certain other public lands, described in Appendix C, were to be conveyed to CIRI for the village corporations “to the extent the lands conveyed [from Appendix A] when added to lands otherwise heretofore received or to be received by such village corporations are insufficient to satisfy their statutory entitlement.” The 12(a) Conveyance Agreement between CIRI and the village corporations was attached to the CIRI/Interior Agreement as Appendix B. On October 4, 1976, Congress enacted a statute that implemented the CIRI/Interior Agreement. See Pub. L. No. 94-456, § 4, 90 Stat. 1935 (1976) (codified as amended at 43 U.S.C. § 1611 note).

Although the CIRI/Interior Agreement purported to solve the problem concerning the village corporations’ 12(a) selections, the meaning of the Agreement immediately became the subject of dispute. The Department of the Interior insisted that the provisions of the CIRI/Interior Agreement required CIRI to take and reconvey all of the Appendix A lands to the village corporations before transferring any lands in Appendix C. CIRI and the village corporations contended that the original 12(a) selections took precedence, regardless of whether the selected lands were listed in Appendix A or in Appendix C. In particular, Seldovia wished to receive its 12(a) selections that were listed in Appendix C rather than being restricted to lands in Appendix A, which Seldovia considered inferior in quality. In December 1994, the Assistant Secretary of the Interior issued an opinion rejecting Seldovia’s and CIRI’s position regarding the interpretation of the CIRI/Interior Agreement. That opinion was subsequently confirmed as a final agency decision. See Cook Inlet Region, Inc., 132 IBLA 186 (1995). Recently enacted legislation specifically permits CIRI, Seldovia, and the other affected village corporations to bring suit in federal district court challenging the agency’s interpretation of the CIRI/Interior Agreement. See Department of the Interior and Related Agencies Appropriation Act, Pub. L. No. 105-83, § 121, 111 Stat. 1543, 1566 (1997).

The government contends that any taking of Seldovia’s 12(a) selections occurred upon the enactment of the CIRI/Interior Agreement because, in the government’s view, that Agreement bars Seldovia from receiving any of its 12(a) selections from lands that are listed in Appendix C. Because the CIRI/Interior Agreement was enacted in 1976, the government argues that the statute of limitations bars Seldovia’s 12(a) claims.

We disagree with the government about when the effect of the CIRI/Interior Agreement on Seldovia’s 12(a) selections of Appendix C lands became fixed. Unlike the effect of paragraph VII(A) of the Terms and Conditions on the Kamishak Bay selections, the Appendix C lands were not permanently withheld from Seldovia under the CIRI/Interior Agreement. Even under the government’s interpretation of the CIRI/Interior Agreement, it was still possible that Seldovia might be entitled to some or even all of its selections in Appendix C, depending on the extent to which it and the other village corporations were unable to fulfill their 12(a) entitlements from lands in Appendix A. The competing interpretations of the CIRI/Interior Agreement offered by the Secretary and the villages have also delayed final land conveyances that might have settled the question of how the Agreement would affect Seldovia’s 12(a) selections. That question remained unresolved until 1994, when the Secretary issued a final decision rejecting any claim by CIRI or the village corporations to the lands in Appendix C. Therefore, the date of that decision, rather than the date of enactment of the CIRI/Interior Agreement, marks the time at which all the events necessary to fix the liability of the United States had occurred and Seldovia’s cause of action for a taking of its 12(a) selections accrued. Accordingly, the statute of limitations does not bar Seldovia’s claims based on its 12(a) selections.

C. Compensable Rights in Selected Lands

In the preceding sections, we have held that the statute of limitations bars Seldovia’s takings claims based on its 12(b) selections in the Kamishak Bay area, but not the claims based on its 12(a) selections. With respect to the claims that are not barred by the statute of limitations, we must determine whether Seldovia’s selections conferred rights compensable under the Fifth Amendment. Before addressing that question, however, we must determine the legal effect of the Bureau of Land Management’s partial rejection of Seldovia’s 12(a) selections.

As we have noted, many of Seldovia’s 12(a) selections were rejected by the Bureau of Land Management for failure to comply with the statutory requirements of compactness, contiguity, and minimum acreage limitations. Those findings were never overturned, and we therefore take as established that Seldovia’s initial 12(a) selections were at least partially invalid under the ANCSA. No additional selections were ever submitted. Because Seldovia agrees that only valid selections can confer property rights, any takings claims based on the invalidated selections must fail.

Nothing in the 12(a) Conveyance Agreement between CIRI and the village corporations (or the CIRI/Interior Agreement that was enacted into law) altered the legal effect of these initial selections. Both of those agreements were specifically aimed at remedying consequences flowing from the invalidity of the original selections. They did not purport to change the statutory requirements so that the original selections would be deemed valid under the ANCSA. They also did not contain any provision for resubmitting the village corporations’ selections. Instead, the parties chose to remedy the problem by a direct transfer of land through CIRI. The parties may have anticipated that the village corporations would receive the same lands that were designated in their invalid selections, but their actions did not alter the legal status of those initial selections.

The broader question — whether rights vest under the ANCSA upon selection — has general applicability to both Seldovia’s 12(a) and 12(b) selections. We conclude that selection under section 12 of the ANCSA is insufficient to convey compensable property rights, because selections by the village corporations lack fixity, i.e., selection does not sufficiently identify specific parcels in which rights are to be transferred. Under the ANCSA, village corporations may select lands far in excess of their entitlement, see 43 C.F.R. § 2651.4(f), and the same land may be selected by several village corporations. As a result, no village corporation can identify with certainty any parcel of land that it stands to receive until the Department of the Interior surveys the land, confirms the absence of preexisting rights to the land, and sorts out the competing claims to the parcel.

In an attempt to avoid these difficulties, Seldovia proposes some limitations on its general principle that selection is sufficient to confer compensable rights. Seldovia notes that each village corporation has a claim to only a fixed amount of acreage, so that no takings claim could be maintained for land in excess of that amount. In addition, Seldovia argues that because the village corporations are allowed to prioritize their land selections under the ANCSA, the lands in which each village corporation claims an interest can be identified with sufficient specificity. See 43 C.F.R. § 2651.4(f). To the extent that conflicts arise among village corporations with respect to specific parcels, Seldovia claims that the ANCSA already contains a dispute resolution mechanism, which provides the appropriate means for handling any problems. See 43 U.S.C. § 1611(e) (providing for arbitration among village corporations in case of disputes over land selection rights).

Neither of these points addresses the primary flaw in Seldovia’s argument — that selection alone does not adequately identify the lands that are to be conveyed to a village corporation. As the government points out, a village corporation is free until conveyance to change its priorities regarding the parcels it has selected. This adds to the fundamental indeterminacy of the land selections. Even in the case of high priority selections by a village corporation, other village corporations may assign a similarly high priority. Nor is it a sufficient answer to point to the arbitration process designed to resolve disputes among the village corporations as to how property rights should be allocated. The need for arbitration simply underscores the point that the rights of the village corporations are not fixed at the time of selection.

Moreover, the act of selection under the ANCSA does not give the selecting party the right to lease or convey the land selected, the right to exclude others from entering the land, or the right to control the disposition of any resources on the land. See 43 U.S.C. § 1621(i) (giving the Secretary of the Interior broad latitude to administer withdrawn lands prior to conveyance). Thus, Seldovia did not enjoy any of the rights usually associated with a compensable interest in property, such as “the right to possess, use and dispose of” property, see United States v. General Motors Corp., 323 U.S. 373, 377-78, 89 L. Ed. 311, 65 S. Ct. 357 (1945), or the rights to alienate or to exclude others, see Nollan v. California Coastal Comm’n, 483 U.S. 825, 831, 97 L. Ed. 2d 677, 107 S. Ct. 3141 (1987). See generally J. Sackman, Nichols on Eminent Domain § 5.01[5][b] (3d ed. 1997).

In sum, following its land selections, Seldovia had an expectation of receiving a certain amount of acreage, but it had no vested right to a specific parcel of land. The land grant cases on which Seldovia relies are distinguishable on precisely that ground. In United States v. Wyoming, 255 U.S. 489, 65 L. Ed. 742, 41 S. Ct. 393 (1921), and Payne v. New Mexico, 255 U.S. 367, 65 L. Ed. 680, 41 S. Ct. 333 (1921), the statutes at issue granted the States certain lands on which to establish state schools. If the land identified in the statute was unavailable for some reason, the States were permitted to make in lieu selections of other unreserved federal lands. The Court held that a valid in lieu selection of land transferred equitable title to the States, even though the Secretary of the Interior acted to rescind the selections before a patent was granted. See Wyoming, 255 U.S. at 497; Payne, 255 U.S. at 370. Seldovia argues that those cases stand for the proposition that land rights vest upon selection, but the selections at issue in Wyoming and New Mexico were of specific, identifiable parcels. There were no overlapping selections, nor were the States free to alter their selections once they had been filed. After completing the selection procedures, the States exercised full control over the land even before a patent issued. See Wyoming, 255 U.S. at 495. As the Supreme Court observed in Wyoming, the rights that adhere under land grant statutes must be analyzed according to the terms of the individual statute, id. at 508, and under the statute at issue in that case, property rights vested with selection.

By contrast, the text of the ANCSA indicates that selection alone was not intended to convey vested rights in specific parcels of land. An amendment to the ANCSA provides for an “interim conveyance” of land for the period following selection but preceding issuance of a patent. See 43 U.S.C. § 1621(j) (added as part of the Alaska National Interest Lands Conservation Act (“ANILCA”), Pub. L. No. 96-487, § 1410, 94 Stat. 2371, 2496 (1980)). The amendment provides that title to lands which are subject to transfer to the village corporations but which have not yet been surveyed may be transferred by means of an interim conveyance, which would “convey to and vest in the recipient exactly the same right, title, and interest in and to the lands as the recipient would have received had he been issued a patent by the United States.” In other words, an interim conveyance vests equitable title in the village corporation. The implication of that provision is that prior to its enactment, no such rights had yet been conveyed. If selection alone had been sufficient to give the village corporations vested rights in the land, the interim conveyance mechanism would have been unnecessary.

A more recent amendment to the statutory scheme further clarifies that no enforceable rights to identifiable parcels of land arise from selection. Following the Exxon Valdez oil spill in Alaska, Congress amended ANILCA to provide that “solely for the purpose of bringing claims that arise from the discharge of oil, the Congress confirms that all right, title, and interest of the United States in and to lands validly selected pursuant to the [ANCSA] by Alaska Native corporations are deemed to have vested in the respective corporations as of March 23, 1989.” 43 U.S.C. § 1642; see H.R. Conf. Rep. No. 101-653, at 175 (1990), reprinted in 1990 U.S.C.C.A.N. 854. Again, this remedial statute would not have been necessary if, under the ANCSA, rights to land passed upon selection. In the amendment, Congress chose to vest rights “solely” for the limited purpose of bringing claims related to oil spills. In addition, the right to bring suit identified in section 1642 is effective only if a village corporation agrees to accept an interim conveyance with respect to a specific parcel of land. Thus, the text of the statute reinforces the point that it is conveyance, rather than selection, that confers compensable rights in identifiable lands.

Seldovia’s argument to the contrary is based largely on section 1613(a) of the ANCSA, which provides that “immediately” after selection, the Secretary “shall issue” the village corporation a patent to the surface estate. Because that provision uses mandatory language, Seldovia argues that it should be construed to require equitable title to the selected properties to pass at the time of selection. The legislative history of the ANCSA, however, makes clear that section 1613(a) was meant simply to encourage prompt performance of the Secretary’s duties. See S. Rep. No. 92-581 at 43 (explaining that the conveyance of lands provision of the ANCSA “parallels in structure and purpose” a Senate draft requiring the Secretary to “promptly survey” selected lands and then issue a patent). In light of the other provisions of the ANCSA indicating that equitable title does not pass automatically with selection, as well as the practical problems inherent in conveying equitable title to lands that have not been adequately identified, we do not believe that the use of the word “immediately” requires the ANCSA to be interpreted to grant compensable property rights upon selection.

Our decision is in accordance with the only other court decision to consider this question, Cape Fox Corp. v. United States, 4 Cl. Ct. 223 (1983). Although Cape Fox is not binding authority for this court, the trial judge in that case examined and rejected many of the same statutory arguments raised by Seldovia and characterized the rights arising upon selection as “contingent and speculative.” Id. at 236-37. We agree that the selection procedures under the ANCSA do not envision the attachment of compensable property rights until title is transferred, either by interim conveyance or by issuance of a patent.

D. Diminution of Selection Rights and Survey Rights

Seldovia raises two other takings claims, which require only brief discussion. Seldovia’s complaint alleges that the Terms and Conditions and the CIRI/Interior Agreement effected a taking because they diminished Seldovia’s 12(a) and 12(b) selection rights. That claim has no merit, because Seldovia’s acreage entitlement remained unchanged following the implementation of the Terms and Conditions and the CIRI/Interior Agreement. Seldovia also alleges that the CIRI/Interior Agreement effected a taking of its survey rights under the ANCSA. Section 13 of the ANCSA requires the Secretary to “survey the areas selected or designated for conveyance to Village Corporations.” 43 U.S.C. § 1612(a). The CIRI/Interior Agreement provides that the Secretary will survey only the exterior boundaries of the entire area to be conveyed to CIRI. To the extent that Seldovia may have a property interest in having its selections surveyed, and that the CIRI/Interior Agreement may have diminished that interest, that takings claim clearly would have arisen in 1976 when the CIRI/Interior Agreement became law. See Catawba Indian Tribe v. United States, 982 F.2d 1564 (Fed. Cir. 1993). The operative effect of the CIRI/Interior Agreement with respect to surveying was fixed upon its enactment, and Seldovia’s takings claim is now time-barred.

III

Finally, Seldovia argues that the government breached its fiduciary duties to the corporation and is fully liable for the value of the selected lands on that alternative ground. The Court of Federal Claims held that it had no jurisdiction over those claims because they failed to satisfy the requirements set out by the Supreme Court in United States v. Mitchell, 463 U.S. 206, 77 L. Ed. 2d 580, 103 S. Ct. 2961 (1983). Mitchell held that a plaintiff claiming a breach of fiduciary duty must identify a statute that creates a trust relationship and mandates the payment of money for damages stemming from the breach of that trust relationship. Id. at 226-27; see also Testan v. United States, 424 U.S. 392, 400, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1976).

The text and legislative history of the ANCSA make clear that Congress sought to avoid creating any fiduciary relationship between the United States and any Native organization. See 43 U.S.C. § 1601(b); S. Rep. No. 92-405, at 108 (1971). Moreover, there is no provision of the ANCSA that mandates the payment of money for failure to carry out the provisions of the statute. Accordingly, we agree with the Court of Federal Claims that it lacked jurisdiction over Seldovia’s breach of fiduciary duty claims.

AFFIRMED.

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

I.

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

A. The Alaska Native Claims Settlement Act

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

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

B. The Villages’ Section 12(a) Selections

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

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

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

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

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

C. The Terms and Conditions Agreement

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

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

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

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

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

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

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

E. The Deficiency Agreement

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

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

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

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

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

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

Deficiency Agreement (emphasis added).

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

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

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

Id., at § 4.

F. The Present Dispute

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

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

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

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

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

II.

A. Standard of Review

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

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

B. The Deficiency Agreement

1. The Plain Language

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

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

2. “Statutory Entitlement”

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

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

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

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

3. Paragraph B

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

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

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

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

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

4. Practical Construction and Denial of Summary Judgment

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

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

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

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

6. Canons of Construction

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

C. Ninilchik

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

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

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

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

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

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

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

III.

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

The judgment of the district court is

AFFIRMED. 

O’Scannlain, Circuit Judge:

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

I

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

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

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

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

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

Leisnoi timely appealed.[5]

II

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

A

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

Section 14(f) reads, in relevant part:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B

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

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

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

1

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

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

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

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

2

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

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

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

a

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

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

b

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

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

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

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

c

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

III

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

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

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

AFFIRMED.

O R D E R of Summary Judgment

I. INTRODUCTION

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

II. BACKGROUND

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

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

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

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

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

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

III. LEGAL STANDARD

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

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

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

IV. DISCUSSION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

V. CONCLUSION

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

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