Appeal from the United States District Court for the Eastern District of Washington Robert H. Whaley, Senior District Judge, Presiding D.C. No.2:08-cv-00177
The opinion of the court was delivered by: M. Smith, Circuit Judge
Argued and Submitted January 13, 2011-Seattle, Washington
Before: Susan P. Graber and Milan D. Smith, Jr., Circuit Judges, and Charles R. Breyer,*fn1 District Judge.
Opinion by Judge Milan D. Smith, Jr.
Plaintiff-Appellant Wapato Heritage, L.L.C. (Wapato), appeals the district court's order denying its motion for summary judgment and motion for reconsideration, and granting Defendants-Appellees' motion for summary judgment and motion to dismiss. We address whether Wapato's predecessor-in-interest, William Wapato Evans, Jr. (Evans), effectively exercised his option to renew a lease agreement (Lease) between Evans and certain Native American landowners (Landowners) covering real property known as Moses Allotment No. 8 (MA-8). The district court ruled that Evans did not comply with the Lease's requirements that he notify all the Landowners that he intended to renew the Lease. Wapato, the current holder of all the Lessee's rights under the Lease, timely appealed. We have jurisdiction under 28 U.S.C. § 1291.
Wapato argues on appeal that the terms of the Lease are ambiguous as to whether the Bureau of Indian Affairs (BIA) was a Lessor under the Lease, therefore precluding summary judgment. We hold that the Lease is not ambiguous and that the BIA was not a Lessor under the Lease. We also hold that Evans (and later Wapato) failed to provide the required notice to the Landowners and thus did not effectively exercise the option to renew the Lease. Wapato's other claims of error are addressed in a memorandum disposition filed contemporaneously with this opinion. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1907, the United States granted MA-8 to Wapato John as part of an agreement between the Moses Band and the Secretary of the Interior (Secretary). The United States holds MA-8 in trust for Wapato John and his heirs, one of whom was Evans. Evans's grandsons are currently the sole owners of Wapato Heritage, L.L.C. The Department of the Interior (Department), which has delegated its authority to the BIA, administers MA-8. The Colville Agency (Agency) is a local BIA agency, located in Nespelem, Washington.
In 1982, Evans owned an approximate 5.4% beneficial interest in MA-8, and sought to negotiate a 25-year ground lease of all the landowner rights in MA-8. Sixty-four percent of the Landowners (including Evans) eventually consented to the Lease. A majority of the Landowners signed a "Statement of Awareness," which outlined the material provisions of the Lease and authorized the Superintendent of the Agency to execute the Lease on their behalf pursuant to 25 C.F.R. § 162.2[(a)](5). In due course, the Secretary authorized George Davis, the Superintendent, to sign the Lease. Pursuant to that authority, Davis approved the Lease (Lease No. 82-21) on February 2, 1984, on behalf of the consenting Landowners, the remaining 36% of the trust beneficiaries, and the Secretary. The Lease was executed in conformity with 25 U.S.C. § 415 and Part 162 of the implementing regulations.
The Lease contains an option to renew, which reads as follows:
3. TERM - OPTION TO RENEW:
The term of this lease shall be twenty-five (25) years, beginning on the date that the lease is approved by the Secretary.
This lease may be renewed at the option of the Lessee for a further term of not to exceed twenty[-]five (25) years, commencing at the expiration of the original term, upon the same conditions and terms as are in effect at the expiration of the original term, provided that notice of the exercise of such option shall be given by the Lessee to the Lessor and the ...