Ogle v. Salamatof Native Ass'n, Inc.

• Decision Date: 02 November 1995
• Docket Number: No. A94-579 CV (JKS).,A94-579 CV (JKS).
• Citation: 906 F. Supp. 1321
• Parties: Boy Dexter OGLE, Plaintiff, v. SALAMATOF NATIVE ASSOCIATION, INC., Defendant.
• Court: U.S. District Court — District of Alaska

906 F. Supp. 1321

Boy Dexter OGLE, Plaintiff, v. SALAMATOF NATIVE ASSOCIATION, INC., Defendant.

No. A94-579 CV (JKS).

United States District Court, D. Alaska.

November 2, 1995.

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Michael W. Flanigan, Walther & Flanigan (Walther), Anchorage, AK, for plaintiff.

Peter Reed Ehrhardt, Robinson, Beiswenger & Ehrhardt, Soldotna, AK, for defendant.

ORDER

SINGLETON, District Judge.

Boy Dexter Ogle ("Ogle") sues Salamatof Native Association, Inc. ("Salamatof") in equity for specific performance of a federal statutory duty to reconvey land claimed pursuant to 43 U.S.C. § 1613(c). In addition, Ogle seeks damages based upon supplemental state claims. This Court has jurisdiction over the reconveyance claim pursuant to 28 U.S.C. § 1331 and jurisdiction over the supplemental claims pursuant to 28 U.S.C. § 1367.¹

Salamatof seeks dismissal pursuant to 43 U.S.C. § 1632(b). Docket Nos. 15 & 21. Salamatof contends that Ogle failed to commence this action within one year of the filing of the map of boundaries, and thereby lost his right to sue. Id. The motion is opposed. Docket No. 18. Ogle argues that he was not given sufficient notice of Salamatof's actions regarding his claim to satisfy due process. Id. Both parties request oral argument. Docket Nos. 22 & 23. However, the record has been fully developed and oral argument would not be helpful. D.Ak. LR 7.1(i); see United States v. Cheely, 814 F.Supp. 1430, 1436 n. 4 (D.Alaska 1992).

The Court has reviewed the record and concludes that the motion to dismiss should be denied in part and granted in part. Ogle has no viable state claim against Salamatof and his supplemental claims will be dismissed. On the other hand, the existing record leaves open the possibility that Ogle did not receive notice of certain significant events in a manner conforming to due process. If, after a full development of the facts, Ogle establishes that due process was violated, he may be entitled to a judicial remedy. Constitutional due process assures Ogle of notice at two significant stages: First, when the village corporation is preparing its map and considering claims for reconveyance; and second, after the village corporation has considered the claims for reconveyance and proceeds to file its map with the Department of the Interior. The filing of the map effectively announces the village corporation's ruling on claims of reconveyance. Further proceedings will be necessary to determine whether Ogle had actual, inquiry, or constructive notice at each of these crucial points in the determination of his claim. See 58 Am.Jur.2d, Notice §§ 5-6, 9, & 15 (1989).²

Actual notice has been said to be of two kinds: (1) express, which includes direct information, and (2) implied, which is inferred from the fact that the person charged had means of knowledge, which it was his duty to use. 58 Am.Jur.2d, Notice § 6. Thus, notice is regarded in law as actual where the person sought to be charged therewith either knows of the existence of the particular facts in question or is conscious of having the means of knowing it, even though such means may not be employed by him or her. See Perry v. O'Donnell, 749 F.2d 1346, 1351 (9th Cir.1984). Similar to implied actual notice is constructive notice. 58 Am.Jur.2d, Notice § 7. Constructive notice is a legal inference or a legal presumption of notice which may not be disputed or controverted. See Butte & Superior Copper Co. v. Clark-Montana Realty Co., 249 U.S. 12, 39 S.Ct. 231, 63 L.Ed. 447 (1919); Hotch v. United States, 14 Alaska 594, 212 F.2d 280 (9th Cir.1954). The importance of the classification of notice of this character arises from the fact that constructive notice is a legal inference, while implied actual notice is an inference of fact. 58 Am.Jur.2d, Notice § 7. Finally, the closely related concept of inquiry notice exists where a person has knowledge of such facts as would lead a fair and prudent person using ordinary care to make further inquiries. Shacket v. Roger Smith Aircraft Sales, Inc., 651 F.Supp. 675, 690 (N.D.Ill.1986), aff'd, 841 F.2d 166 (7th Cir.1988); see discussion at 58 Am.Jur.2d, Notice §§ 6 & 15 (creating a third type of notice which resembles both constructive and actual notice). Under this theory, a person who fails to diligently inquire is charged with knowledge that would have been acquired through such inquiry. 58 Am.Jur.2d, Notice, § 15.

DISCUSSION

I. Background

Central to this case is the Fifth Amendment to the United States Constitution, which provides in relevant part: "No person shall ... be deprived ... of property, without due process of law; ..." This provision acts as a limitation on actions by the United States Government.³ The phrase "due process of law," which also occurs in the Fourteenth Amendment to the Constitution as a limitation on actions by the states, encompasses two general ideas: the protection of substantive rights (substantive due process) and the protection of procedural fairness (procedural due process). See Zinermon v. Burch, 494 U.S. 113, 125-28, 110 S.Ct. 975, 983-85, 108 L.Ed.2d 100 (1990).⁴ In this case, we are concerned with procedural due process. Specifically, where it is assumed for the purposes of argument that an Alaska Native has used a parcel of land as a primary residence, a primary place of business, or a subsistence campsite, thereby earning a right to reconveyance under 43 U.S.C. § 1613(c)(1), the Court must determine what process is due before that right to reconveyance may be extinguished.⁵

In context, due process normally requires notice and an opportunity to be heard. Thus, where any proceeding will finally determine a person's property rights, he is entitled to notice reasonably calculated, under all of the circumstances, to apprise him of the pendency of the proceeding and an opportunity to present his claim or objections. Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 484, 108 S.Ct. 1340, 1344, 99 L.Ed.2d 565 (1988). What is "reasonable notice" depends upon all the circumstances and requires a delicate balancing of the people's interest in a final resolution of disputes and the claimant's right to protect his property. Id.; see also Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983); Texaco, Inc. v. Short, 454 U.S. 516, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Actual notice is required as a precondition to a proceeding which will adversely affect the property interests of any party if its name and address are reasonably ascertainable. Tulsa, 485 U.S. at 485, 108 S.Ct. at 1344. In determining whether the name and address of a claimant is "reasonably ascertainable," the party having the duty to give notice need only exercise "reasonably diligent efforts" to discover the claim. Id.

In order to resolve this case, we must therefore decide a number of questions: First, whether Salamatof's role in evaluating and determining section 14(c) claims makes it a federal actor for the purposes of Fifth Amendment analysis; second, whether Salamatof's actions in developing a map addressing and resolving section 14(c) claims constitutes a "proceeding" which requires notice; third, if a proceeding is contemplated, whether the village corporations must afford section 14(c) claimants, like Ogle, a particular type of "hearing" in order to evaluate their 14(c) claims;⁶ and fourth, whether additional notice should have been given to Ogle of the village's filing of the map and the need to seek judicial review within a definite period or forever be barred from any judicial relief. In order to address these issues in context, it is necessary to review the applicable provisions of the Alaska Native Claims Settlement Act ("ANCSA").

The United States Congress enacted ANCSA in 1971. 43 U.S.C. §§ 1601-1629(a) (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. In order to accomplish this purpose, the United States Congress created regional and village corporations that were intended to receive the lands conveyed.

Included in ANCSA are a number of provisions designed to protect the rights of those with existing rights to land conveyed under ANCSA. Existing leases, homesteads, mining claims, and similar sites are protected. See 43 U.S.C. §§ 1613(g), 1621(b), 1621(c). Another provision, commonly known as section 14(c), requires the conveyance of lands by the village corporation to individuals on the basis of their occupancy for a particular purpose rather than their common law property rights. See 43 U.S.C. § 1613(c). The uses deemed sufficient to give rise to such a claim include claims that the property was a primary place of residence, a primary place of business, or a subsistence campsite. 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. See 43 C.F.R. § 2650.5-4. This regulation 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." Section 2650.5-4 provides, in pertinent part:

§ 2650.5-4 Village Surveys.

(a) Only the exterior boundaries of contiguous entitlements for each village corporation will be surveyed ...

(b) Surveys will be made within the village corporation selections to delineate those tracts required by law to be conveyed by the village corporations pursuant to section 14(c) of the Act.

(c)(1) The boundaries of the tracts described in paragraph (b) of this section shall be posted on the ground and shown on a map

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