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BLM Policy Statement on Procedures for Surveys of 14(c) Reconveyances.

City of Seldovia, Alaska vs. Seldovia Native Association, Inc., U.S. District Court for the District of Alaska, Case no. A89-252 Civil (1993) (14(c)(3) reconveyances) 


Amended Policy Statement for Preparation and Processing of the Map of Boundaries under ANCSA 14(c)

The purpose of this policy statement is to provide guidelines for the preparation of a Map of Boundaries as required by 43 CFR 2650.5-4. The submission of a uniform Map of Boundaries will enable the Bureau of Land Management's (BLM) Division of Cadastral Survey and Geomatics to execute an efficient survey program for the 14(c) lands which will meet the applicants requirements in a more timely manner.

If at all possible, the Map Boundaries should be submitted in total. In accordance with 43 CFR Section 2650.5-4(c)(2) "(l)ands shown by the records of the Bureau of Land Management as not having been conveyed to the village corporation will be excluded by adjustments on the map."

1. The map is intended to include all 14(c) tracts which are to be surveyed. The map should be prepared on an enlargement of the best and latest aerial photography available or on a reproducible media such as a mylar or acetate photo overlay at the same scale . A scale of 1 inch = 50 feet or 1 inch = 100 feet is best for 14(c)(1) and (2) lots in a crowded village situation. A scale of 1 inch = 200 feet or larger is usually adequate for 14(c)(3) grants or outlaying subsistence tracts. In some cases, BLM's Branch of Mapping Science may have the best photography available; in other cases, the photography may have to be purchased from another government agency or a private aerial photo contractor. In either case, BLM is usually able to refer one to the best available source for aerial photographs. If the available photographs do not encompass all the tracts involved, a supplemental sheet of the same scale as the photo may be added to cover the immediate surrounding area. Delineated thereon will be the majority of:

a.14(c)(1): Tracts occupied as a primary place of residence.
b. 14(c)(1): Tracts occupied as a primary place of business.
c. 14(c)(2): Tracts occupied by nonprofit organizations.
d. 14(c)(3): The boundaries of municipal lands for community expansion and/or city maintained lots or rights-of-ways.
e. 14(c)(4): Tracts utilized for airport sites, airways beacons, and other navigation aids.

2. The tracts which cannot feasibly be shown on the photo because of their remote locations from the village proper can be shown on U.S. Geological Survey (USGS) quadrangle (1:63,360) maps.
14(c) tracts shown on the USGS quadrangle map will generally include:

a. 14(c)(1) remote claims: Subsistence campsites and headquarters for reindeer husbandry.
b. 14(c)(3): That portion of the municipal lands not included in the village photo.
c. Any other tracts identified under ANCSA Section 14(c) not included in the village photo.  Any enlarged drawing and written description for each individual tract or group of tracts will be shown on a separate sheet. These supplemental drawings will include the scale, date, north arrow, topographic features (lakes, rivers, swamps, ridges, etc), any improvements to include, description of comer markings, bearings (or approximate directions such as northwesterly, southeasterly, etc.), and distances of boundary lines, applicant's name, and a reference (number or name) corresponding to the site location as shown on the USGS quadrangle maps. Examples of the preceding requirement may be obtained from the BLM (AK-925).

3. In accordance with 43 CFR Section 2650.5-4(b), BLM will survey the exterior boundaries of all ." . . tracts required by law to be conveyed by the village corporations pursuant to section 14(c) of the Act." For the convenience of the village corporations and the surveyors, the Map of Boundaries may include vacant lots, lots occupied after December 18, 1971, and other non-14(c) lots. However, non-14(c) lots must be clearly identified as such and will not be surveyed by BLM.

4. Federal Regulation 43 CFR 2650.5-4(c)(1) states that the boundaries of all Section 14(c) reconveyances shall be identified (staked or marked) on the ground, as well as shown on the Map of Boundaries. The location of the individual comers should be marked on the ground with durable materials to eliminate the possibility of boundary conflicts with adjacent tracts and to assure the actual location of the tract. Each tract should also be identified as to location by one of the following means:

a. A tie to an existing survey monument of record.
b. Natural features (river frontage, etc.).
c. Occupancy (ties to improvement thereon).
d. A tie to an adjacent (located) 14(c) tracts.
e. Written metes-and-bounds description.

5. Roads, trails and/or reconveyance easement which are proposed but not constructed must be staked or marked on the ground. Existing rights-of-ways will be surveyed along an apparent centerline. Street names and/or label distinctions for rights-of-ways must be designated on the Map of Boundaries and will be noted by name on the final ANCSA 14(c) plat(s).

6. It is essential that conflicts among potentials claimants identified under the ANCSA 14(c) reconveyances or between transferees and the village corporation be resolved before submission of the Map of Boundaries. Alaska National Interest Lands Conservation Act (ANILCA), Section 902(b) provides a one (1) year "statute of limitations" for such actions that may require judicial review. (See Appendix)

7. Any Map of Boundaries will have a title block identifying the municipality (or unincorporated village) and the village corporation. Also shown within the title block will be the following certification statement: "To the best of our knowledge, all conflicts concerning property lines shown on this Map of Boundaries have been resolved." In addition, the Map of Boundaries will contain the statement: "This Map of Boundaries represents the final discharge of all the Corporation's obligations under ANCSA 14(c)."

Separate signature lines shall be included in the title block which state: "The Map of Boundaries shown hereon has been received and reviewed by the Division of Cadastral Survey and Geomatics, Bureau of Land Management, Alaska State Office, and is 'accepted' for filing according to Section 902(b) of ANILCA." This statement is to be signed and dated by the Special Instructions Team Leader. Another line should state: "This Map of Boundaries is hereby 'approved' to be used as the Plan of Survey for the ANCSA 14(c) parcels shown hereon," to be signed and dated by Chief, Branch of Survey Preparation and Policy Interpretation.

The Map of Boundaries will be accompanied by a corporate resolution authorizing the Map of Boundaries and designating the corporate officer to sign and submit the map. Written agreements must be included when 14(c)(3) selections total less than 1280 acres, per Section 1405 of ANILCA.

8. The Bureau of Land Management will examine and review each submitted map for conformance with laws, regulations and policies, ensuring that the map and descriptions are complete enough to warrant an ANCSA 14(c) survey. This review and examination should be completed within 30 calendar days and the Map of Boundaries will either be accepted by Bureau of Land Management or returned to the Village Corporation for additional information.

9. If the Map of Boundaries is accepted, the start of the one-year statute of limitations for challenging each corporation's ANCSA 14(c) decisions, as identified in Section 902(b) of ANILCA, will date back to the "official filing date" of the Map. The "official filing date," as defined in 43 CFR Section 2650.0-5(m), is the date of postmark of the final accepted version of the Map. If the postmark cannot be ascertained or was hand delivered, the official filing date becomes the date of receipt by BLM.

If the Map is returned one or more times for additional information or completely rejected by BLM, the "official filing date" which will commence the Section 902(b) statute of limitations will be the date of postmark of the submitted additional information which completes the Map. If the Map had been rejected in total, the "official filing date" will be the date of postmark of the final accepted version of the Map.

The BLM will notify village residents of the acceptance of the Map and the commencement of the period for challenging the corporation's decisions by publishing a Public Notice in local and statewide newspapers and requesting that the local Postmaster post a Notice in the local Post Office. The BLM will also inform the Village Corporation of the acceptance in writing and circulate such notification through ANCSA 14(c) support agencies.

10. A village corporation which has no 14(c)(1), (2) and/or (4) obligations should submit a letter to the Bureau of Land Management certifying that fact. This letter will serve as a "Final Map of Boundaries," and should be signed by the appropriate designated corporate officer and accompanied by a corporate resolution authorizing the submission. The postmark date of this letter will be considered the "official filing date," which will formally start the one-year statute of limitations.

11. Some villages may elect to hire a private surveyor to survey all or a portion of their land for reconveyance purposes. In such cases, that village corporation must pay the entire cost of such contract survey with no present or future reimbursement by BLM's ANCSA 14(c) survey program.

Those ANCSA 14(c) surveys done under private contract with a village corporation will be documented with BLM prior to the actual survey. Assignment Instructions will be issued and the final ANCSA 14(c) plats will be reviewed by BLM, to insure their sufficiency as "federally mandated" 14(c) surveys. A letter of compliance from the Deputy State Director of Cadastral Survey and Geomatics will be required to accompany the plat(s) before they will be accepted for recording at the local Recording District. See: ANCSA 14(c) Private Survey Policy of February 7, 1990.

12. All ANCSA 14(c) reconveyances are the responsibility of each village corporation. BLM does not have any authority to adjudicate transfer decisions. Any dispute over 14(c) reconveyances must be resolved between the village corporation, each city (or the Municipal Trustee on behalf of an unincorporated community), individuals or any other claimant(s). The only certain method by which a village corporation can receive protection under ANILCA Section 902(b) is to file a Map of Boundaries.

13. Survey of the 14(c) parcels will not be scheduled until the Final Map of Boundaries has been received and approved by BLM.

BLM will not normally approve a Map of Boundaries until after the one year. statute of limitations expires. However, when funding is available, BLM will approve a Map of Boundaries earlier and proceed to survey if a village corporation is willing to sign a "waiver" stating that it will bear the responsibility for any additional survey required because of post-approval changes or amendments. This would include the entire cost of the additional surveying and/or platting and would require the services of a private surveyor.

14. Any changes or amendments to the final Map of Boundaries, after it has been submitted to the BLM and accepted, but not surveyed, will be handled as follows:

Changes or amendments which clarify or alter a description on the accepted Map of Boundaries will be incorporated into the Plan of Survey by the BLM prior to the actual field survey. These changes or amendments will be submitted as amended Maps of Boundaries and will not require any posting of Public Notice by the BLM or any changes in the one-year statute of limitations, unless the affected parties do not agree with the changes.

If any parties whose rights are affected by the changes or alterations do not consent to them, then a new statute of limitations period will begin. This new limitations period runs for only those changes to which the affected parties did not consent. This new challenge period will begin with the "date of filing" of the amended Map of Boundaries. The village corporation shall be responsible for notifying the parties affected by any amendment to a map of boundaries. If any affected parties cannot be personally notified, the village corporation shall be responsible for posting and publishing notice of the proposed changes.

George P. Oviatt
Deputy State Director for Cadastral
Survey and Geomatics, Alaska

APPENDIX Amended Policy Statement
ANCSA 14(c) - May 8, 1998

Definition of Terms

Map of Boundaries: The initial map submitted by Village Corporation of the BLM describing boundaries of tracts to be reconveyed pursuant to ANCSA Section 14(c).

Date of Filing: The date of postmark of the accepted version of the Map of Boundaries. If the postmark cannot be ascertained or was hand delivered, the official filing date becomes the date of receipt by BLM. This is the "official filing date" and commences the one-year statue of limitations contained in ANILCA Section 902(b).

Date of Acceptance: The date of the BLM accepts a Map of Boundaries as complying with the requirements of the Policy Statement.

Date of Public Notice: The date upon which BLM gives public notice that a Map of Boundaries has been filed and that the ANILCA Section 902(b) statue of Limitations is running.

Partial Map of Boundaries: A Map of Boundaries for a partial reconveyance of ANCSA Section 14(c) selections.

Final Map of Boundaries: A Map of Boundaries submitted by a Village Corporation that contains all known obligations to reconvey and pursuant to ANCSA Section 14(c).

Date of Approval: The date of BLM approves the final map of boundaries.

Plan of Survey: The approved final Map of Boundaries becomes the Plan of Survey used to guide the survey of the ANCSA Section 14(c) reconveyances.

Amended Map of Boundaries: A map of Boundaries that amends the boundaries contained in a previously submitted and accepted Map of Boundaries.


ANCSA 14(c) References

Alaska Native Claims Settlement Act (ANCSA), December 18, 1971, Public Law 92-203, (85 Stat. 703), Section 14(c)(1), (2), (3), (4).

Code of Federal Regulations: Dept. Of the Interior, Bureau of Land Management, 43 CFR 2650.5-4, "Village Surveys" and 43 CFR 2650.0-5(m) defining 'official filing date.'

Alaska National Interest Lands Conservation Act (ANILCA), December 2, 1980, Public Law 96-487.

Section 902(b), "Statute of Limitations"

Section 1404(a), (b), (c), "Vesting Date for Reconveyances"

Section 1405, "Reconveyance to Municipal Corporations"

Section 1437, "Reconveyance; Disputes"

ANCSA Public Law 92-203 (85 Stat. 703)December 18, 1971 and ANILCA PL 96-487 (Sec. 1404 & 1405)December 2, 1980

Sec. 14(c) Each patent issued pursuant to subsections (s) and (b) shall be subject to the requirements of this subsection. Upon receipt of a patent or patents:

(1) the Village Corporation shall fires convey to any Native or non-Native occupant, without consideration, titles to the surface estate in the tract occupied as of December 18, 1971 (except that occupancy of tracts located in the Pribilof Islands shall be determined as of the date of initial conveyance of such tracts to the appropriate Village Corporation) as a primary place of residence or as a primary place of business, or as a subsistence campsite, or as headquarters for reindeer husbandry;

(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 128, 1971, by a non-profit organization:

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

(4) the 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.


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

United States District Court for the District of Alaska

Case No. A89-252 Civil

April 9, 1993


Attorney for plaintiff: Gerald Sharp, Preston, Thorgrimson, Ellis & Holman, Anchorage, Alaska.

Attorneys for defendant: Roger DuBrock, Law Offices of Roger DuBrock; and John Baker, Assistant Attorney General, State of Alaska.


Judge James K. Singleton:

ORDER

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

DISCUSSION

I. Background

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

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

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

[T]he Village Corporation shall convey to any Municipal Corporation in the Native village or to the State in trust for any Municipal Corporation established in the Native village in the future, title to the remaining surface estate of the improved land on which the Native village is located and as much additional land as is necessary for community expansion, and appropriate rights-of-way for public use, and other foreseeable community needs: Provided, That the amount of lands to be transferred to the Municipal Corporation or in trust shall be no less than 1,280 acres unless the Village Corporation and the Municipal Corporation or the State in trust can agree in writing on an amount which is less than one thousand two hundred and eighty acres: Provided further, That any net revenues derived from the sale of surface resources harvested or extracted from lands reconveyed pursuant to this subsection shall be paid to the Village Corporation by the Municipal Corporation or the State in trust: Provided, however, That the word "sale", as used in the preceding sentence, shall not include the utilization of surface resources for governmental purposes by the Municipal Corporation or the State in trust, nor shall it include the issuance of free use permits or other authorization for such purposes;
43 U.S.C. § 1613(c)(3). These conveyances are termed "reconveyances," because the village corporation must reconvey to third parties land that the federal government has conveyed to it. In order to encourage a final settlement with respect to the land, all conveyances pursuant to Section 14(c)(3) are subject to a one-year statute of limitations period. 43 U.S.C. § 1632(b).

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

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

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

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

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

Decisions made by a Village Corporation to reconvey land under section 14(c) of [ANCSA] shall not be subject to judicial review unless such action is initiated before a court of competent jurisdiction within one year after the date of the filing of the map of boundaries as provided for in regulations promulgated by the Secretary.
43 U.S.C. § 1632. Judge Kleinfeld thought that because the statute discussed "decisions made by a village corporation," Congress intended that SNA had the initial right to select land for reconveyance, i.e., propose a map describing land to be conveyed, which the Court would review. He refused, however, to afford the village corporation's decision any special deference 3.

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

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

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

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

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

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

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

A court properly exercises its discretion to reconsider an issue in only three instances: (1) the first decision was clearly erroneous and would result in manifest injustice; (2) an intervening change in the law has occurred; or (3) the evidence on remand is substantially different.
The instant case presents the rare situation where a previous ruling would contradict two well-established lines of Supreme Court precedent. Supreme Court decisions are, of course, controlling on this Court. In this situation, the Court has little choice but to follow the Supreme Court's reasoning rather than that of the conflicting previous ruling.

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

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

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

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

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

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

Conclusion

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

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

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

Upon receipt of a patent or patents to selected lands, Village Corporations or the Services Corporation on their behalf . . . (C) shall issue deeds pursuant to subsection 11(g), without payment of any consideration, to any Municipal Corporation in the Native Village or to any Municipal Corporation established in the Native Village or to any Municipal Corporation established in the Native Village within five years of the date of enactment of this Act, to the surface estate of the improved land on which the village is located and of as much additional land as is necessary for community expansion, for appropriate rights-of-way for public use, airport sites, and such other interests in land as are reasonably necessary for public use and for foreseeable community needs . . . And provided further, That the amount of lands to be transferred to the Municipal Corporation shall be no less than one hundred and sixty acres[.]
Id. (emphasis added); see also, Senate Report (Committee on Interior and Insular Affairs) on Alaska Native Claims Settlement Act of 19971, S. Rep. 143, 175, 92d Cong., 1st Sess. § 15(b)(2)(C)(1971). Section 14 was adopted as proposed by the Conference Committee Report with one important substantive change: the village corporation was required to convey 1280 acres to the municipality, not 160 acres. Alaska National Interest Lands Conservation Act, Pub. L. No. 92-203, 85 Stat 688, 1971 U.S.C.C.A.N., 794-95. ANCSA Section 14 was amended in 1980 to allow the village corporations to convey less than 1280 acres to municipalities under certain circumstances. Pub. L. No. 96-487 § 1405, 94 Stat. 2371, 2494 (codified as amended, 43 U.S.C. § 1613(c)(3)(1986)).

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

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

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

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

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

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

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

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

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

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

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

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

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


Footnotes

          Footnote 1-- Aboriginal title is a right to land created by the possession of the land from time immemorial. It is not protected by the United States Constitution. See Trustee-Hit-Ton Indians v. United States, 348 U.S. 272, reh'g denied, 348 U.S. 965 (1955). Congress therefore had the power to extinguish such title. [return to text]

          Footnote 2-- The case came to this Court upon appointment of Judge Kleinfeld to the Ninth Circuit. At that time, the motions for summary judgment had been completed. This Court prepared the case for trial and conducted a bench trial. [return to text]

          Footnote 3-- Judge Kleinfeld stated from the bench, "I do not see though a basis for according a special level of deference for applying an arbitrary and capricious standard to the decision made by the village corporation. The statute doesn't's say that . . . The language in 5 U.S.C. § 706 on scope of review for administrative agencies applying an arbitrary and capricious standard is limited to administrative agencies. Seldovia Native Corporation in an Alaska business corporation organized for profit. It would be--it would probably be a breach of the fiduciary duty of the directors under Alaska law if they acted as disinterested parties, because they owe a duty of loyalty to their stockholders. That distinguishes them from an agency." Docket No. 61 at 35 (transcript of May 28, 1991 oral argument). [return to text]

          Footnote 4-- 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,'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1973), quoting Arnett v. Kennedy, 416 U.S. 134 (1974). [return to text]


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