Gwitchyaa Zhee Corp. v. Alexander

• Citation: 464 F.Supp.3d 1056
• Decision Date: 02 June 2020
• Docket Number: No. 4:18-cv-0016-HRH,4:18-cv-0016-HRH
• Parties: GWITCHYAA ZHEE CORPORATION and Gwichyaa Zhee Gwich'in Tribal Government, Plaintiffs, v. Clarence ALEXANDER and Dacho Alexander, Defendants and Third-Party Plaintiffs, v. David Bernhardt, in his official capacity as Secretary of the United States Department of the Interior, Third-Party Defendant.
• Court: U.S. District Court — District of Alaska

464 F.Supp.3d 1056

GWITCHYAA ZHEE CORPORATION and Gwichyaa Zhee Gwich'in Tribal Government, Plaintiffs,

v.Clarence ALEXANDER and Dacho Alexander, Defendants and Third-Party Plaintiffs,

v.David Bernhardt, in his official capacity as Secretary of the United States Department of the Interior, Third-Party Defendant.

No. 4:18-cv-0016-HRH

United States District Court, D. Alaska.

Signed June 2, 2020

Christopher J. Slottee, Howard S. Trickey, Lee Colin Baxter, Holland & Knight LLP, Anchorage, AK, for Plaintiffs.

Richard L. Pomeroy, Dean Dunsmore, U.S. Attorney's Office, Anchorage, AK, Erika Danielle Norman, U.S. Department of Justice, Washington, DC, for Third-Party Defendant.

James M. Hackett, James M. Hackett, Inc., Fairbanks, AK, for Defendants and Third-Party Plaintiffs.

ORDER

Motion for Summary Judgment; Cross-Motion to Dismiss

H. Russel Holland, United States District Judge Plaintiffs move for summary judgment.¹ This motion is opposed by defendants, and they cross-move to dismiss plaintiffs' complaint.² Defendants' cross-motion is opposed.³ Oral argument was not requested and is not deemed necessary.

Facts

Plaintiffs are Gwitchyaa Zhee Corporation ("GZ Corporation") and Gwichyaa Zhee Gwich'in Tribal Government ("the Tribal Government"). GZ Corporation is an Alaska Native Village corporation. The Tribe is a federally recognized tribe. Defendants are Clarence Alexander and his son, Dacho Alexander.

The land at issue in this case was once owned by the federal government. But, in 1971, "[t]he United States Congress enacted" the Alaska Native Claims Settlement Act (ANCSA). Ogle v. Salamatof Native Ass'n, Inc., 906 F. Supp. 1321, 1328 (D. Alaska 1995). "ANCSA extinguished the Native people of Alaska's claims to aboriginal land title, and in return federal lands and other consideration were transferred to Alaska Natives." Id. "In order to accomplish this purpose, the United States Congress created regional and village corporations that were intended to receive the lands conveyed." Id. Pursuant to ANCSA, public lands were withdrawn and then village and regional native corporations could select the lands to which they were entitled. Chickaloon-Moose Creek Native Ass'n, Inc. v. Norton, 360 F.3d 972, 974-75 (9th Cir. 2004). After a selection was made by a village corporation, the Secretary of Interior was directed to determine how many acres the corporation was entitled to and then issue "a patent to the surface estate...." 43 U.S.C. § 1613(a). If, however, the lands had not been surveyed, the Secretary was to convey lands to Native corporations by an "interim conveyance." 43 U.S.C. § 1621(j)(1). A patent would be issued once the lands in question had been surveyed. Id. Section 14(c)(1) of ANCSA provides that once a village corporation received a patent,

the [c]orporation shall first convey to any Native or non-Native occupant, without consideration, title to the surface estate in the tract occupied as of December 18, 1971 ... as a primary place of residence, or as a primary place of business, or as a subsis-tence campsite, or as headquarters for reindeer husbandry[.]

43 U.S.C. § 1613(c)(1).

"To facilitate the transfer of section 14(c) properties to lawful claimants, the Secretary of the Interior enacted regulations requiring the survey of the lands claimed by the villages." Ogle, 906 F. Supp. at 1328. 43 C.F.R. § 2650.5–4 "requires village corporations to file a map delineating its land selections, including tracts that are to be reconveyed under section 14(c)." Id. "The map is then used by the Bureau of Land Management (‘BLM’) as a ‘plan of survey.’ " Id. Once the surveys were completed, the BLM was to submit an official plat to the village corporation showing the boundaries for all § 14(c) claims. After the village corporation approved the official plat, the village corporation was to issue deeds to the § 14(c) claimants.

On January 7, 1974, Clarence purchased a "cabin located down on native land by a slough known as McInroy Slough or Joe Ward Slough" from Jim Ward, Sr.⁴ Clarence avers that in 1974, he and his wife "lived in Jimmie Ward Sr.'s house, and also exclusively occupied the Ward property, including the area known as the Joe Ward barge area and the pond area[.]"⁵ Clarence avers that his family lived in the house until 1977 and thereafter rented the house to others.⁶

On October 30, 1984, Clarence submitted an ANCSA § 14(c) application to GZ Corporation.⁷ As required, there was a sketch map attached to Clarence's § 14(c) application which indicated that he was claiming a triangular-shaped parcel, approximately 5.77 acres in size, that did not include the Joe Ward barge landing area or the pond.⁸ Clarence has testified that the handwriting on this sketch map is not his and that he believed that his § 14(c) application had a different sketch map attached.⁹ But, the Alexanders have not been able to come forward with a copy of this other sketch map.

On March 22, 1985, GZ Corporation received an interim conveyance of the lands at issue in this lawsuit.¹⁰ Approximately 4,361 acres of land were conveyed to GZ Corporation in this interim conveyance.¹¹

On August 6, 1990, GZ Corporation approved Clarence's § 14(c) application.¹²

On June 27, 1994, GZ Corporation transferred four and half townships of surface estate to the Tribal Government.¹³ There is no information in the record as to what lands were included in this 1994 transfer. However, plaintiffs allege that the 1994 Transfer Agreement "purports to transfer GZ Corporation's title in the land at issue in this lawsuit to the Tribe[,]" but that "exempt from that transfer" is "any land GZ Corporation is required to transfer as a § 14(c)(1) claim."¹⁴

On March 7, 1996, plaintiffs and the City of Fort Yukon reached a settlement, whereby 144.97 acres of the land that had been transferred to the Tribal Government was transferred to the City of Fort Yukon.¹⁵ The land at issue in this lawsuit was not part of the 144.97 acres.¹⁶

On June 27, 2007, the patent for the lands involved in this lawsuit was issued to GZ Corporation.¹⁷

On April 11, 2008, GZ Corporation submitted the Fort Yukon Map of Boundaries ("FYMOB") to the BLM.¹⁸ Clarence's § 14(c) claim was shown on the FYMOB as claim 002R. The boundaries of claim 002R matched the sketch map that was included with Clarence's § 14(c) application.¹⁹

On May 1, 2009, the BLM "approved" the FYMOB "to be used as the plan of survey for the ANCSA 14(c) parcels shown hereon."²⁰

The April 27, 2011 "special instructions" for the Fort Yukon survey indicated that Clarence's § 14(c) claim (Tract 19) consisted of "8.79+-acres" and that it was "shown on Sheet 5 of the Plan of Survey."²¹

By November 2011, defendants "knew ... that Clarence's § 14(c) claim did not include all of the land that he thought it should."²²

On June 2, 2014, the BLM issued its "Section 14(c) plat" for GZ Corporation, which showed Clarence's § 14(c) claim as Tract 19, the area around the pond as Tract 19A, and the barge landing area as part of Tract 9.²³

On January 29, 2016, GZ Corporation issued a quitclaim deed to Clarence for "Tract 19 located in Section 12, T20N, R11E, Fairbanks Meridian, as described at pages 1 and 2 of Plat No. 2014-78 recorded June 10, 2014, in the Fairbanks Recording District."²⁴ The quitclaim deed was recorded with the Alaska Department of Natural Resources Recorder's Office, Fairbanks Recording District on February 2, 2016.²⁵

On June 16, 2017, plaintiffs allege that they "wrote a letter to the Alexanders asking them to remove all personal equipment and debris from Tract 19A by June 30, 2017."²⁶ Plaintiffs allege that defendants did not remove their possessions from Tract 19A by June 30, 2017 and so, plaintiffs allege that on September 28, 2017, they wrote another letter to defendants demanding that they remove all of their possessions and exit Tract 19A by October 9, 2017.²⁷ Defendants did not do so and thus on February 26, 2018, plaintiffs commenced this action, asserting a single ejectment claim against defendants.

On January 8, 2019, plaintiffs filed an amended complaint in which they allege that defendants have moved their belongings onto not only Tract 19A but also a portion of Tract 9 and "the triangle-shaped parcel of land at the end of the Barge Landing Road."²⁸ Plaintiffs seek to eject defendants "from Tract 9, Tract 19A, and the triangle-shaped parcel of land at the end of the Barge Landing Road where it meets the Yukon River...."²⁹

On December 19, 2019, the court granted plaintiffs' motion for summary judgment and held that "[t]he Alexanders are time-barred from seeking judicial review of Clarence's § 14(c) claim."³⁰

Plaintiffs now move for summary judgment on their ejectment claim. Pursuant to Rule 12(b)(6), defendants now move to dismiss plaintiffs' first amended complaint. To the extent that defendants are seeking to dismiss plaintiffs' first amended complaint, the court has already determined that plaintiffs' first amended complaint states a plausible claim for ejectment.³¹ However, as defendants themselves appear to recognize, their motion to dismiss is in substance a cross-motion for summary judgment in which defendants advance their adverse possession affirmative defense.³² The court has thus treated defendants' motion to dismiss as a cross-motion for summary judgment.

Discussion

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The initial burden is on the moving party to show that there is an absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets its initial burden, then the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding a motion for summary judgment, the court view...