Seldovia Native Ass'n, Inc. v. Lujan

Decision Date31 May 1990
Docket NumberNo. 89-35295,89-35295
Citation904 F.2d 1335
PartiesSELDOVIA NATIVE ASSOCIATION, INC., Plaintiff-Appellant, v. Manuel LUJAN, Jr., * individually and in his capacity as Secretary of the Interior of the United States; United States of America; Theodore G. Smith, individually, and in his capacity as Director of Forest Land and Water Management for the State of Alaska; Eunice M. Berglund; Margaret A. Leis; Theodore A. Richards; Charlotte E. Calhoun; David Vanderbrink; Geraldine Faller; Allan B. Billings; Judith Miller; Raymond E. Miller; Elizabeth Cummings; Gale Forrest Kay; William Findlay Abbott; Amy K. Bollenbach; Susan Campbell; Harry F. Kroll, II; Vivian MacInnes; Daniel Winn; Nels Pilskog; Keith Richard Saville, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Roger W. DuBrock, Law Offices of Roger W. DuBrock, Anchorage, Alaska, for plaintiff-appellant, Seldovia Native Ass'n, Inc.

Madeleine R. Levy, Asst. Atty. Gen., Anchorage, Alaska, for defendant-appellee, State of Alaska.

David C. Shilton, Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for Federal defendants-appellees.

Appeal from the United States District Court for the District of Alaska (Anchorage).

Before KOELSCH, ALARCON and RYMER, Circuit Judges.

ALARCON, Circuit Judge:

The Seldovia Native Association (SNA) filed this action for declaratory and injunctive relief on January 12, 1981. An amended complaint was filed on April 17, 1987. SNA sought a declaration that the construction of the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C. Secs. 1601-1629e, adopted by the Secretary of the Interior (the Secretary) was invalid. The Secretary's construction of ANCSA validated the State of Alaska's grant of leases with purchase options on lands subsequently claimed by SNA pursuant to ANCSA.

SNA and the federal government filed cross-motions for summary judgment. The State filed a motion to dismiss the action. On February 13, 1989, the district court granted summary judgment in favor of the federal defendants and the individual defendants. The cause of action alleged against an individual defendant sued in his official capacity as a state officer was dismissed as barred by the eleventh amendment. Final judgment was entered on March 14, 1989. SNA filed a timely notice of appeal on April 6, 1989.

We must decide whether the purchase options granted by the State of Alaska are "valid existing rights" not subject to selection by Native Alaskans under ANCSA. SNA contends that purchase options are not included within the savings provisions of ANCSA. The State maintains that in enacting ANCSA Congress intended to preserve all prior property interests, and, therefore, purchase options granted by the State of Alaska under the Alaska Statehood Act are "valid existing rights."

PERTINENT FACTS

In 1958, Congress enacted the Alaska Statehood Act, Pub.L. No. 85-508, 72 Stat. 339, 340 (1958) (codified at 48 U.S.C. note prec. Sec. 21 (1982)). The Alaska Statehood Act authorized the State of Alaska to select acreage from public lands that were "vacant, unappropriated, and unreserved at the time of their selection." Alaska Statehood Act Sec. 6(b), 48 U.S.C. note prec. Sec. 21. Section 6(g) of the Alaska Statehood Act provided:

Following the selection of lands by the State and the tentative approval of such selection by the Secretary of the Interior Id. Sec. 6(g). Pursuant to section 6(g), the State created the "open-to-entry" (OTE) program. Alaska Stat. Sec. 38.05.077 (1968). Under the OTE program, individuals could lease up to five acres of state land classified as "open-to-entry." Id. Sec. 38.05.077(3), (7). The lessees were granted an option to purchase the land. The option could be exercised by satisfying two conditions: conduct of a survey and payment to the State of the fair market value of the land as of the date of entry. Id. Sec. 38.05.077(4), (8). These options are referred to as "conditional purchase options" or "OTE purchase options." Under the implementing regulations, the Department of the Interior issued "tentative approval" to the State only "after determining that there is no bar to passing legal title ... other than the need for a survey of the lands or for the issuance of patent or both." 43 C.F.R. Sec. 2537.3(d).

... but prior to the issuance of final patent, the State is hereby authorized to execute conditional leases and to make conditional sales of such selected lands.

In 1959, the State filed selections for land in Kachemak Bay, near the Village of Seldovia. The Bureau of Land Management (BLM) tentatively approved these selections in 1960, 1964, and 1966. The State classified the land as "open-to-entry" under Alaska Stat. Sec. 38.05.077. Between 1968 and 1972, the State issued OTE leases with conditional purchase options to the individual defendants in this case.

Congress passed ANCSA on December 18, 1971, to settle Alaskan Natives' aboriginal claims to the land and resources of Alaska. H.R.Rep. No. 523, 92d Cong., 1st Sess. 1-4, reprinted in 1971 U.S.Code Cong. & Admin.News 2192, 2192-96. Section 4 of ANCSA, 43 U.S.C. Sec. 1603, provides that all prior conveyances of land under federal law or tentative approvals under section 6(g) of the Statehood Act operated to extinguish aboriginal title at the time the conveyance was made or approval was given, and all remaining claims by Native Alaskans based on aboriginal right, title, use, or occupancy of the land were extinguished as of December 18, 1971. United States v. Atlantic Richfield Co., 612 F.2d 1132, 1134 (9th Cir.), cert. denied, 449 U.S. 888, 101 S.Ct. 243, 66 L.Ed.2d 113 (1980). In consideration for the relinquishment of claims based on aboriginal title, Congress granted to Native Alaskans $962,500,000 and 40 million acres of land. Id.; see also H.R.Rep. No. 523, 92d Cong., 1st Sess. 2, reprinted in 1971 U.S.Code Cong. & Admin.News at 2193. ANCSA established a process whereby land would be withdrawn from selection by the State, made available for selection by Native Alaskans to fulfill their allotment under ANCSA, and then conveyed to Native Alaskans. See 43 U.S.C. Secs. 1610(a), 1611(a)(1), 1613(a).

The land granted to Native Alaskans was to come primarily from public lands, defined as "all Federal lands and interests therein located in Alaska," with the exception of lands used for federal installations and tentatively approved land selections made by the state pursuant to section 6(g) of the Alaska Statehood Act. 43 U.S.C. Sec. 1602(e) (1982). Section 11(a)(1) of ANCSA provides that certain public lands surrounding Native Alaskan Villages are withdrawn from all forms of appropriation under the public land laws and from selection under the Alaska Statehood Act:

The following public lands are withdrawn, subject to valid existing rights, from all forms of appropriation under the public land laws, including the mining and mineral leasing laws, and from selection under the Alaska Statehood Act, as amended:

(A) The lands in each township that encloses all or part of any Native village identified pursuant to subsection (b) of this section;

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

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

The following lands are excepted from such withdrawal: lands in the National Park System and lands withdrawn or reserved Id. Sec. 1610(a)(1). Some of the land available for conveyance to Native Alaskans was to come from tentatively approved land. 43 U.S.C. Sec. 1610(a)(2). Section 11(a)(2) provides that tentatively approved land described in section 11(a)(1) was withdrawn from further appropriation and from the creation of new third-party interests by the State:

for national defense purposes other than Naval Petroleum Reserve Numbered 4.

All lands located within the townships described in subsection (a)(1) hereof that have been selected by, or tentatively approved to, but not yet patented to, the State under the Alaska Statehood Act are withdrawn, subject to valid existing rights, from all forms of appropriation under the public land laws, including the mining and mineral leasing laws, and from the creation of third party interests by the State under the Alaska Statehood Act.

Id. Sec. 1610(a)(2). (emphasis added). As a result, the State could not grant OTE leases under section 6(g) of the Statehood Act after the passage of ANCSA. Rights previously granted, however, were protected as "valid existing rights." See Id. Secs. 1610(a)(1)-(2).

ANCSA established Native Village corporations to hold, manage, and distribute lands granted pursuant to ANCSA on behalf of Native Alaskan Villages. Id. Secs. 1602(j), 1607. Section 12(a)(1) allowed the Native Village corporations up to three years after December 18, 1971, to select land withdrawn under section 11(a). Id. Sec. 1611(a)(1). Section 12(a)(1) provides, in pertinent part:

During a period of three years from December 18, 1971, the Village Corporation for each Native village identified pursuant to section 1610 of this title shall select, in accordance with rules established by the Secretary, all of the township or townships in which any part of the village is located, plus an area that will make the total selection equal to the acreage to which the village is entitled under section 1613 of this title. The selection shall be made from lands withdrawn by section 1610(a) of this title....

43 U.S.C. Sec. 1611(a)(1).

Section 14(a) provides that, upon proper selection of withdrawn lands, the Secretary must convey to the Native Village corporation a patent to the surface estate for that land. Id. Sec. 1613(a). All such conveyances to Native Village corporations are subject to valid existing rights:

All conveyances made pursuant to...

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