648 F.2d 496 (9th Cir. 1980), 78-2986, Aleknagik Natives Ltd. v. Andrus

Docket Nº:78-2986.
Citation:648 F.2d 496
Party Name:ALEKNAGIK NATIVES LIMITED, Aleknagik City Council, Aleknagik Village Council, Ekwok Natives Limited, Ekwok City Council, Ekwok Village Council, Nondalton Native Corporation, Nondalton City Council, Nondalton Village Council, Appellants, v. Cecil D. ANDRUS, Secretary of the Interior, George E. M. Gustafson, Townsite Trustee; Robert Kesling, Anne Kes
Case Date:April 07, 1980
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 496

648 F.2d 496 (9th Cir. 1980)

ALEKNAGIK NATIVES LIMITED, Aleknagik City Council, Aleknagik

Village Council, Ekwok Natives Limited, Ekwok City Council,

Ekwok Village Council, Nondalton Native Corporation,

Nondalton City Council, Nondalton Village Council, Appellants,


Cecil D. ANDRUS, Secretary of the Interior, George E. M.

Gustafson, Townsite Trustee; Robert Kesling, Anne

Kesling, Vincent McClelland, and all

others similarly situated, Appellees.

No. 78-2986.

United States Court of Appeals, Ninth Circuit

April 7, 1980

On Petition for Rehearing June 2, 1981.

Page 497

[Copyrighted Material Omitted]

Page 498

James F. Vollintine, Anchorage, Alaska, for appellants.

Mary Ann Walsh, Dept. of Justice, Washington, D.C., argued, Jacques B. Gelin, U.S. Dept. of Justice, Washington, D.C., on brief, for appellees.

Appeal from the United States District Court for the District of Alaska.

Before CHAMBERS and TANG, Circuit Judges, and THOMPSON, [*] District Judge.

TANG, Circuit Judge:

The plaintiffs, three native Alaskan village corporations organized under the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C. §§ 1601-1628, and the village and municipal councils for those villages, filed a quiet title and ejectment action contesting the Secretary of the Department of the Interior's (Secretary) interpretation of ANCSA to allow non-native entry upon townsite lands that were unoccupied at the date of ANCSA's enactment. Besides the Secretary, also named as defendants were the townsite trustees and three non-native persons, as alleged representatives of a class who have entered or intend to enter townsite lands under color of the Alaska Native Townsite Act (ANTA), of May 25, 1926, 44 Stat. 629, 43 U.S.C. §§ 733-736 (repealed), or the Townsite Act of March 3, 1891, 26 Stat. 1099, 43 U.S.C. § 732 (repealed). The district court refused class certification, denied the plaintiffs' motion for a preliminary injunction to enjoin further encroachment upon the townsites, and dismissed the action for failure to exhaust administrative remedies. On the plaintiffs' appeal we find that the district court incorrectly dismissed the complaint and should have granted preliminary injunctive relief.

In 1960 and 1961, the plaintiffs applied to the Bureau of Land Management for administration of their villages as townsites under § 3 of ANTA, 43 U.S.C. § 735. Under ANTA procedures, after an application has been made, the Secretary appoints a trustee who determines whether the proposed site qualified for townsite status. If so, the Trustee would then make an application for survey. The BLM then surveys the land and subdivides it into the townsite under the joint guidance of the trustee and village council. After the approval of the survey, the Secretary then issues patents for the surveyed townsite lands to the trustee, and individual members of the tribe could obtain lots within the townsite. Accordingly, after the surveys of the three proposed townsites were approved in this case, the Secretary issued patents to the trustee and the trustee made lot awards to the townsite occupants who occupied lots on the date of the approval of the subdivisional survey.

Under § 11(a)(1) of ANCSA, 43 U.S.C. § 1610(a)(1), public lands in and around Native villages are withdrawn, "subject to valid existing rights," from all forms of appropriation under the public land laws. The gravamen of the plaintiffs' complaint is that, upon its enactment, ANCSA withdrew all unsurveyed and unsubdivided lands within the townsites and, therefore, these lands were no longer open to settlement by non-natives. The plaintiffs thus contend that the Secretary who ruled that the trustee's entry constituted a valid existing right

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and directed the Natives not to select any lands within the townsites during the three-year period designated for selection under § 12(a) of ANCSA, 43 U.S.C. § 1611(a), cannot issue ANTA patents to non-Natives who commenced occupancy after the enactment of ANSCA.

In addition to their primary claim, the plaintiffs raise a number of other claims designed to exclude non-Natives from encroaching upon these townsite lands. Thus, they alleged that the Secretary violated procedural requirements of ANCSA, 43 U.S.C. § 1624, by failing to publish ANCSA land selection regulations; that the Secretary failed to communicate with the plaintiffs on their rights to select land as required by 43 U.S.C. § 1601(b); that the Secretary breached his fiduciary obligation to the plaintiffs by applying regulations promulgated to govern non-Native townsites to Native (ANTA) townsites; and that under ANTA, townsites in the Native villages must be administered exclusively for the benefit of Natives. The plaintiffs sought a wide variety of declaratory and injunctive relief, including a deletion from the patents issued by the Secretary to the Trustee of all land that was unsubdivided and unoccupied on the date of ANCSA's enactment. The plaintiffs also moved for a temporary restraining order and a preliminary injunction closing the townsites to further entry during the pendency of the law suit. The district court denied the injunction and dismissed the suit for failure to exhaust administrative remedies. A motions panel of this court issued an order pending appeal that directed the Secretary to prevent non-Native entries on townsite lands and to inform members of the public that the lands are not open to entry, and enjoined him from granting any patent or interest in the townsite lands.



Under the doctrine of exhaustion of administrative remedies, "no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Myers v. Bethlehem Shipbuilding Co., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938).

(1-4) The basic purpose of the doctrine of exhaustion of administrative remedies is to allow an administrative agency to perform functions within its special competence to make a factual record, to apply its expertise and to correct its own errors so as to moot judicial controversies. Parisi v. Davidson, 405 U.S. 34, 37, 92 S.Ct. 815, 817, 31 L.Ed.2d 17 (1972); Marshall v. Burlington Northern Inc., 595 F.2d 511, 513 (9th Cir. 1979). Although exhaustion of administrative remedies is typically required as a condition for judicial review, the requirement is not absolute. See, e. g., White Mountain Broadcasting Co. v. FCC, 194 U.S.App.D.C. 355, 359, 598 F.2d 274, 278 (D.C.Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979). The doctrine must be applied in each case with an understanding of its purposes and the particular administrative scheme involved. McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969). Where pursuit of administrative remedies does not serve the purposes behind the exhaustion doctrine, the courts have allowed a number of exceptions. Thus, exhaustion is not required if administrative remedies are inadequate or not efficacious, see American Federation of Government Employees, Local 1668 v. Dunn, 561 F.2d 1310, 1314 (9th Cir. 1977), Humana of South Carolina, Inc. v. Califano, 191 U.S.App.D.C. 368, 379, 590 F.2d 1070, 1081 (D.C.Cir. 1978); where pursuit of administrative remedies would be a futile gesture, see Pence v. Kleppe, 529 F.2d 135, 143 (9th Cir. 1976); Porter County Chapter of the Izaak Walton League of America, Inc. v. Costle, 571 F.2d 359, 363 (7th Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 115 (1978). Where irreparable injury will result unless immediate judicial review is permitted, Rhodes v. United States, 574 F.2d 1179, 1181 (5th Cir. 1978); or where the administrative proceeding would be void, see Winterberger v. Teamsters, Local Union 162, 558 F.2d 923, 925 (9th Cir. 1977).

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Unless statutorily mandated, application of the doctrine is in the sound discretion of the courts. See Eluska v. Andrus, 587 F.2d 996, 999 (9th Cir. 1978); Montgomery v. Rumsfeld, 572 F.2d 250, 253-54 (9th Cir. 1978). In deciding how to exercise its discretion, the court should balance the litigant's need for judicial resolution against the agency's interests in having an opportunity to make a factual record and exercise its discretion without the threat of litigious interruption, in discouraging frequent flouting of the administrative process, and in correcting its own mistakes to obviate unnecessary judicial proceedings. Montgomery, 572 F.2d at 253; United States v. Newmann, 478 F.2d 829, 831 (8th Cir. 1973).

A number of considerations lead us to conclude that the district court erred in requiring the plaintiffs to pursue administrative remedies.

Administrative review of decisions relating to disposition of townsite land is potentially available through two administrative boards, the Interior Board of Land Appeals (IBLA) and the Alaska Native Claims Appeal Board (ANCAB). See Valid Existing Rights under the Alaska Native Claims Settlement Act, 85 Interior Dec. 1, 3 (1977). IBLA decides the correctness of Department of Interior decisions relating to the use and disposition of public lands and their resources as well as the use and disposition of mineral resources in certain acquired lands of the United States. 43 C.F.R. § 4.1(3). ANCAB considers Interior...

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