Pence v. Andrus

• Decision Date: 22 November 1978
• Docket Number: No. 77-2387,77-2387
• Citation: 586 F.2d 733
• Parties: Sarah PENCE, Sophia Grindle, Annie Blue, Basille Jackson, Jack Koutchak, Angela Odinzoff, and on behalf of all other Alaska Natives similarly situated, Plaintiffs-Appellants, v. Cecil D. ANDRUS, Individually and as Secretary of the Interior and his agents the United States of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 733

586 F.2d 733

Sarah PENCE, Sophia Grindle, Annie Blue, Basille Jackson,

Jack Koutchak, Angela Odinzoff, and on behalf of

all other Alaska Natives similarly

situated, Plaintiffs-Appellants, v. Cecil D. ANDRUS, Individually and as Secretary of the

Interior and his agents the United States of

America, Defendants-Appellees.

No. 77-2387.

United States Court of Appeals,

Ninth Circuit.

Nov. 22, 1978.

Michael Frank, Anchorage, Alaska, for plaintiffs-appellants.

Charles E. Biblowit, Atty., Washington, D. C., for defendants-appellees.

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

Before WRIGHT, GOODWIN and ANDERSON, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

In Pence v. Kleppe, 529 F.2d 135 (9th Cir. 1976) (Pence I ), this court ordered the Secretary of the Interior to adopt regulations governing the granting of allotments under the Alaska Native Land Allotment Act (ANLAA) ¹ which would meet at least the minimum due process requirements outlined in the opinion.

The Secretary approved the adoption of new procedures by the Interior Board of Land Appeals (IBLA), then moved for dismissal. Appellants, all members of a class of Native Alaskans claiming to be eligible for allotments under the ANLAA, protested that the regulations adopted do not comply with the Pence I requirements and petitioned to enjoin use of the new procedures. ² They now appeal from the district court's orders denying them injunctive relief and granting partial summary judgment to the Secretary on the question whether the new regulations comply with due process. ³

The district court judge found that appellants lacked standing to raise the question whether the new regulations comply with due process because they had not yet been subjected to those regulations and thus, had suffered no injury. He found, however, that the regulations satisfied the court's due process objections in Pence I. The judge then certified the questions of appellants' standing to challenge the new regulations and of the constitutionality of those regulations as suitable for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

We hold that appellants have standing to contest only whether the new procedures comply with the Pence I mandate. We find that the procedures do comply, therefore appellants' request for injunctive relief was properly denied and summary judgment for the Secretary on this issue must be affirmed.

BACKGROUND

The ANLAA, now repealed, but with a saving clause for applications pending on December 19, 1971, provided that Alaska Natives may acquire title to designated Alaska lands. Section 270 1 of the ANLAA authorized the Secretary to allot up to 160 acres to qualified applicants "in his discretion and under such rules as he may prescribe." Section 270 3 required applicants to make "proof satisfactory to the Secretary . . . of substantially continuous use and occupancy of the land for a period of five years." ⁴

In Pence I, the court described the procedures employed by the Bureau of Land Management (BLM), acting as agents for the Secretary, to implement the statute. 529 F.2d at 137-38. Once an application for an allotment was submitted to the BLM, the applicant was given 30 days notice that a field examination would be made to determine whether the requisite evidence of five year use and occupancy could be found. ⁵ The examination, made by helicopter, provided the basis for a preliminary finding by the BLM.

Although the applicant could supplement an initial negative finding with written evidence, there was no opportunity to present oral evidence to the BLM before a final decision issued. The unsuccessful applicant could then appeal in writing and request an oral factual hearing before an administrative law judge, but the granting of the The court reasoned that the ANLAA provided eligible Alaska Natives with a sufficient property interest to merit due process protection. It found the BLM procedures constitutionally deficient, primarily because they did not provide applicants with an opportunity to present oral evidence to the decisionmaker (the BLM) prior to issuance of a final decision. The court remanded the case to the district court with instructions to the Secretary "to develop regulations which provide for the required procedures, subject to review by the district court and, if necessary, by this court." 529 F.2d at 143.

hearing was entirely within the discretion of the BLM.

Rather than promulgate new regulations, the Interior Board of Land Appeals (IBLA) announced in Donald Peters, 26 I.B.L.A. 235 (1976) (Peters I ), that it would henceforth apply the Interior Department's existing contest regulations, published at 43 C.F.R. § 4.451 Et seq. (1976), to the adjudication of Native allotment applications. ⁶ The Secretary approved the adoption of the regulations. Although they do not alter the field examination procedure, the regulations provide for an oral hearing before an administrative law judge prior to the BLM's final decision on the applicant's allotment claim.

Peters, whose application was remanded to the BLM for proceedings under 43 C.F.R. § 4.451 Et seq., sought and received reconsideration of the decision in Peters I. He argued that the procedures adopted were too "technical and formal" to provide due process protection to often illiterate Native applicants. On reconsideration, the IBLA reaffirmed its contention that the regulations meet the Pence I requirements. Donald Peters (On Reconsideration) 83 I.D. 564, 28 I.B.L.A. 153 (1976) (Peters II ).

The case was not appealed, but appellants here raise essentially the same due process argument urged by the applicant in Peters II. ⁷ They complain Inter alia that the notice of a preliminary adverse finding (the contest complaint) is not likely to reach applicants, nor to be understood by them; and in particular that an applicant must respond to the contest complaint with a specific answer in writing within 30 days or lose the opportunity for an oral hearing.

STANDING

Before we can reach the merits of appellants' due process claim, we must decide the preliminary question whether they have standing to challenge the constitutionality of the contest complaint procedures. The regulations, having just been adopted, have not yet been applied to these plaintiffs. ⁸ It follows, the Secretary argues, that appellants have not been injured in fact and therefore lack standing to challenge the constitutionality of the regulations.

Standing is one aspect of justiciability: "whether the plaintiff has 'alleged such a personal stake in the outcome of the controversy' as to warrant His invocation of federal-court jurisdiction . . . ." Warth v. Seldin,422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (emphasis in original)). The plaintiff must have suffered "some threatened or actual injury resulting from the putatively illegal action . . . ." Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973). Furthermore, in class actions, the named representatives "must allege and show that they personally have been injured, not that The Secretary's argument also raises the question of ripeness, another aspect of justiciability related to the question of standing. ⁹ Standing and ripeness are similar in that both doctrines prevent courts from becoming enmeshed in abstract questions which have not concretely affected the parties. ¹⁰ In Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967), the Supreme Court explained that ripeness has "a twofold aspect, . . . the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration."

injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent." Warth, 422 U.S. at 502, 95 S.Ct. at 2207 (quoted in Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40 n.20, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)); O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).

Within the context of pre-enforcement challenges to agency regulations, fitness for judicial decision requires a finding that the agency action is final and that the issues involved are legal ones. Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. 1507. Here, adoption of the contest complaint procedures is sufficiently final, ¹¹ but the question whether the new procedures afford allotment applicants due process is not purely legal.

The court in Pence I identified certain minimum due process requirements that the Secretary had to meet in promulgating new regulations. It recognized, however, that "(b)eyond this bare minimum, it is difficult to determine exactly what procedures would best meet the requirements of due process." 529 F.2d at 143.

The court pointed out that "the very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." 529 F.2d at 142 (quoting Goss v. Lopez, 419 U.S. 565, 577-78, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975)). The question whether the new procedures protect due process rights of applicants requires factual development, and should not be decided in the abstract as appellants would have us do. ¹²

Appellants also fail to meet the second leg of the Abbott Laboratories test: hardship to the parties. They do not allege that the regulations have an impact on them which "is sufficiently direct and immediate." 387 U.S. at 152, 87 S.Ct. 1507; Cf. Regional Rail Reorganization Act Cases It is by no means clear that the class representatives or any other members of the appellant class will be injured as a result of the decision to adopt the contest complaint procedures. The class certified by the district court consisted of "those Alaska Natives, . . . , who were eligible to apply for land allotments pursuant to (AN...