Topic: Land

I. INTRODUCTION

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

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

II. FACTS AND PROCEEDINGS

A. The Dispute

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

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

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

B. Statutory Background

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

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

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

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

(b) Aboriginal title and claim extinguishment where based on use and occupancy; submerged lands underneath inland and offshore water areas and hunting or fishing rights included
All aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy, including submerged land underneath all water areas, both inland and offshore, and including any aboriginal hunting or fishing rights that may exist, are hereby extinguished.

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

C. Proceedings

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

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

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

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

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

III. STANDARD OF REVIEW

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

IV. DISCUSSION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

b. ANCSA does not distinguish between claims and defenses.

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

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

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

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

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

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

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

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

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

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

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

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

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

V. Conclusion

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

MEMORANDUM OPINION

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

I. BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. LEGAL STANDARD

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

III. ANALYSIS

A. Statutory Authority to Take Alaska Land Into Trust.

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

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

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

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

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

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

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

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

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

B. Regulatory Authority

i. Effects of 25 C.F.R. § 151.1

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

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

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

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

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

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

ii. Legality of 25 C.F.R. § 151.1

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

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

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

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

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

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

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

IV. CONCLUSION

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