Chugach Alaska Corp. v. Lujan, 89-35773

• Decision Date: 24 September 1990
• Docket Number: No. 89-35773,89-35773
• Parties: CHUGACH ALASKA CORPORATION; The Grouse Creek Corporation, both Alaska Corporations, Plaintiffs-Appellees, v. Manuel LUJAN, JR., Secretary of the Interior of the United States of America; Department of the Interior, of the United States of America, Defendants-Appellants, State of Alaska, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 454

915 F.2d 454

CHUGACH ALASKA CORPORATION; The Grouse Creek Corporation, both Alaska Corporations, Plaintiffs-Appellees, v. Manuel LUJAN, JR., Secretary of the Interior of the United

States of America; Department of the Interior, of

the United States of America,

Defendants-Appellants,

State of Alaska, Defendant.

No. 89-35773.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 1990.

Decided Sept. 24, 1990.

Ellen J. Durkee, U.S. Dept. of Justice, Washington, D.C., for defendants-appellants.

Frederick H. Boness, Preston, Thorgrimson, Shidler, Gates & Ellis, Anchorage, Alaska, for plaintiffs-appellees.

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

Before WRIGHT, WALLACE and KOZINSKI, Circuit Judges.

KOZINSKI, Circuit Judge:

Congress enacted the Alaska Native Claims Settlement Act, 43 U.S.C. Secs. 1601-1629a, (ANCSA) to settle the land claims of Alaska Natives and Native groups. 43 U.S.C. Sec. 1601(a). ANCSA authorizes the Secretary of the Interior to convey certain public lands to Native groups that are incorporated under Alaska law but that do not qualify as Native villages. 43 U.S.C. Sec. 1613(h)(2). We consider whether the Secretary's regulations regarding the qualification of Native groups, 43 C.F.R. Secs. 2653.6(a)(4), (a)(5), are consistent with the statutory definition, 43 U.S.C. Sec. 1602(d).

Facts

In 1976 the Grouse Creek Corporation applied as a Native group for a conveyance of 6720 acres of National Forest land. ¹ Under the applicable regulations, a group qualifies as a Native group only if a majority of the residents of the locality are members. The Bureau of Indian Affairs found that the Grouse Creek group did not qualify: Only eleven of thirty-one residents were members of the Grouse Creek group. The Grouse Creek group appealed, and the administrative law judge redrew the boundaries of the locality. Nonetheless, he found that the Grouse Creek group fell just short of meeting the majority requirement even within the new boundaries: Fifteen of thirty residents were members. Because less than a majority of the residents of the locality were members of the Grouse Creek group, it did not qualify as a Native group.

Critical to this determination was the Secretary's decision to count one family of five, the Munsons, as residents of the locality but not as members of the Grouse Creek group. The Munsons are Alaska Natives enrolled in the Native Village of Eklutna. Nonetheless, they have lived in the Grouse Creek locality at all relevant times. ²

The Grouse Creek Corporation appealed the ALJ's decision to the Interior Board of Land Appeals, which affirmed. Because the IBLA concluded that, even within the more favorable boundaries, less than a majority of residents were members of the Grouse Creek group, it did not review the boundary determination.

The district court reversed. It agreed that, because the Munsons are not enrolled in the Grouse Creek locality, they could not be members of the Grouse Creek group. However, the court also held that the Munsons' enrollment in another locality precluded them from being residents of the Grouse Creek locality. It therefore concluded that there were twenty-five residents, not thirty. Because fifteen out of twenty-five residents were members, the district court concluded that the members would constitute a majority of the residents if the ALJ's boundaries were correct. The court remanded to allow the IBLA to consider the boundary issue. ³

The Secretary appeals.

Discussion

I

Because the district court remanded to the agency, it is not clear that we have jurisdiction over the appeal. Under 28 U.S.C. Sec. 1291, we have jurisdiction only over appeals from final orders; in general, remand orders are not considered final. See, e.g., Eluska v. Andrus, 587 F.2d 996, 999-1001 (9th Cir.1978); see also 15 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure Sec. 3914, at 550-51 (1976). However, a remand order is considered final where (1) the district court conclusively resolves a separable legal issue, (2) the remand order forces the agency to apply a potentially erroneous rule which may result in a wasted proceeding, and (3) review would, as a practical matter, be foreclosed if an immediate appeal were unavailable. See Stone v. Heckler, 722 F.2d 464, 466-67 (9th Cir.1983); Kaho v. Ilchert, 765 F.2d 877, 880-81 (9th Cir.1985); Regents of Univ. of Cal. v. Heckler, 771 F.2d 1182, 1186-87 (9th Cir.1985).

The district court here invalidated the Secretary's interpretation of the statute, conclusively resolving that separable legal issue. On remand, the IBLA was to set the locality's boundaries and apply the district court's interpretation to determine whether the Grouse Creek group met the majority requirement; this proceeding would be a waste if the district court's interpretation proved erroneous. And, failure to permit immediate appeal might foreclose review altogether: Should the Secretary lose on remand, there would be no appeal, for the Secretary cannot appeal his own agency's determinations. We therefore conclude that the order is final and appealable under 28 U.S.C. Sec. 1291.

II

Neither the Secretary's interpretation of the regulations nor the regulations themselves may stand if manifestly contrary to the statute. See Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984). However, the Secretary's interpretation is entitled to great deference; even if we would adopt a different interpretation, we must uphold the Secretary's as long as it is reasonable. Seldovia Native Ass'n v. Lujan, 904 F.2d 1335, 1342 (9th Cir.1990); Haynes v. United States, 891 F.2d 235, 238-39 (9th Cir.1989); see Chevron USA, Inc., 467 U.S. at 842-44, 104 S.Ct. at 2781-83. ⁴

Under the regulations, the BIA must determine whether a Native group meets the majority requirement in two steps. First, it must count the members of the Native group who reside and are enrolled in the locality, 43 C.F.R. Secs. 2653.6(a)(4), (a)(5); then it must count all the residents. If more than half of the residents are Native group members, the group is eligible; if half of the residents or fewer are members, it is not. Plaintiffs challenge both the regulation defining who counts toward the majority and who counts as a resident.

A. According to plaintiffs, Native groups are eligible for conveyances so long as a majority of the residents are Natives; under the Secretary's regulations, however, Native groups are eligible only if a majority of the residents are members of the Native group seeking the conveyance. 43 C.F.R. Secs. 2653.6(a)(4), (a)(5). Whether we count all Natives or members only is critical here. Twenty of thirty residents--a majority--are Natives. But only fifteen residents--less than a majority--are members. This difference arises because one family of five, the Munsons, are Natives, but are not members of the Grouse Creek group.

The statute provides that:

"Native group" means any tribe, band, clan, village, community, or village association of Natives in Alaska composed of less than twenty-five Natives, who comprise a majority of the residents of the locality.

43 U.S.C. Sec. 1602(d).

Plaintiffs argue that because the clause "who comprise a majority of the residents" modifies the word "Natives," the statute requires that a majority of the residents be Natives and doesn't require that a majority be members. Admittedly, the clause dangles a bit--it is not entirely clear to whom the word "who" refers. One plausible reading, however, is that the clause modifies the entire preceding phrase--"tribe, band, clan, village, community or village association of Natives"--not just the word "Natives," thus requiring that a majority of the residents be members of the tribe, band, clan, village, community or village association that seeks the conveyance.

Even if we were to read "who comprise a majority" as modifying Natives, we would still have to rely on the preceding half of the definition in determining to which Natives it refers; the context indicates that the Natives who must comprise a majority of the residents are the twenty-five or fewer Natives who make up the tribe, band, clan, village, community or village association. It is one of these interpretations, neither of which is unreasonable, that the Secretary adopted in his regulations.

As plaintiffs point out, other sections of ANCSA do require Natives, not group members, to constitute a majority of the residents. For example, section 1610(b)(3), which determines the eligibility of certain Native villages for ANCSA benefits, requires "a majority of the residents [to be] Natives." 43 U.S.C. Sec. 1610(b)(3)(B). Had Congress used identical language in spelling out the criteria for Native groups, 43 U.S.C. Sec. 1602(d), the Secretary would have been required to count all Natives toward the majority requirement. But Congress used different language here, language that is readily susceptible to the Secretary's interpretation. If anything, Congress' use of different language in different parts of ANCSA suggests that it meant the provisions to function differently.

The Secretary's interpretation of 43 U.S.C. Sec. 1602(d) makes sense. The statute takes land out of the public domain and places it in the hands of private groups. See 43 U.S.C. Sec. 1613(h)(2). Residents who are not members will cease to have any rights to use or enjoy the transferred land. Under the plaintiffs' construction of the statute, the Munsons would count in favor of the transfer even though they, along with the rest of the public, may lose rights as a result. Requiring the recipients of the land--the group members--to make up a majority of the residents ensures that a non-member majority is not denied access to public lands for the benefit of a group-member minority.

We have little difficulty concluding that 43 C.F.R. Sec. 2653.6(a)(4)...