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Koniag, Inc. v. Andrew Airways, Inc.

United States District Court, D. Alaska

September 30, 2014

KONIAG, INC., an Alaska corporation, Plaintiff,
v.
ANDREW AIRWAYS, INC., an Alaska corporation, DEAN T. ANDREW, an individual, and ALICIA L. REFT, individually and as President of the Karluk IRA Tribal Council, Defendants.

ORDER RE MOTION TO DISMISS

SHARON L. GLEASON, District Judge.

At Docket 36, Defendant Alicia L. Reft ("Reft") filed a Motion and Memorandum to Dismiss Complaint against Alicia Reft in her Capacity as President of Karluk Tribal Council and Individual Capacity. At Docket 39, Plaintiff Koniag, Inc. ("Koniag") filed its Opposition to Reft's Second Motion to Dismiss and Reft filed a reply at Docket 42. Oral argument was held on January 7, 2014.[1] Thereafter, the parties attempt to settle the dispute for several months but the discussions ultimately appear to have been unsuccessful.[2] For the following reasons, the Court will grant Reft's motion.

BACKGROUND

The relevant facts for purposes of the motion to dismiss, as alleged in Koniag's Complaint, are as follows:

Koniag is an Alaska Native Regional Corporation established pursuant to Section 7 of the Alaska Native Claims Settlement Act of 1971.[3] Koniag merged with the Karluk Native Corporation in 1980 (the "Merger"), pursuant to 43 U.S.C. § 1627.[4] As a result of the Merger, Koniag now owns the land that had previously been patented to the Karluk Native Corporation.[5] Koniag's Complaint alleges that Andrew Airways Inc. and its principal owner and operator, Dean T. Andrew (together, the "Andrew Defendants"), at the direction and license, lease, authorization, or permission of Reft, built a cabin known as Mary's Creek Cabin (the "Cabin") on Koniag's land without Koniag's authorization or consent.[6] Koniag's Complaint also alleges, upon information and belief, that the Andrew Defendants operate the Cabin as a rental property.[7]

The parties in this case, or parties related to them, have been involved in other actions in the recent past, including a lawsuit in the Karluk Tribal Court filed in 2012 by the Native Village of Karluk against Koniag concerning, among other things, the Merger and the rights to the land Koniag owns as a result of the Merger.[8] In an action filed in this Court by Koniag, also in 2012, the Court held that the Karluk Tribal Court had no basis for exercising jurisdiction over Koniag in that tribal court action.[9]

Koniag brought the present action for intentional trespass, ejectment, and to quiet title in connection with the Cabin.[10] Koniag also seeks a declaratory judgment that (1) any challenge to the Merger is time-barred; (2) the removal of the Cabin will not violate the Native American Graves Protection and Repatriation Act (NAGPRA);[11] (3) the land obtained by Koniag through the Merger may not be adversely possessed; (4) neither Reft nor the Native Village of Karluk, acting through Reft, may disturb Koniag's interest in its land through retrocession from Public Law 280;[12] and (5) neither Reft, nor the Native Village of Karluk, acting through Reft, may exercise governmental or proprietary jurisdiction over Koniag, its land, or the Cabin.[13] On August 5, 2013, Koniag filed a Notice of Voluntary Dismissal of Claims Against Andrew Airways and Dean T. Andrew Without Prejudice and Without Costs.[14]

Reft filed the present motion to dismiss, asserting that the Court lacks subject matter jurisdiction over this action and that she is protected by the doctrine of sovereign immunity.[15]

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) allows a party to seek dismissal of a complaint for lack of subject matter jurisdiction. Challenges to subject matter jurisdiction can take two forms, facial or factual. In a facial challenge to subject matter jurisdiction, "the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction."[16] "Whether subject matter jurisdiction exists therefore does not depend on resolution of a factual dispute."[17] Rather, the allegations in the complaint are "assume[d]... to be true and [the court] draw[s] all reasonable inferences in [plaintiff's] favor."[18] In a factual attack, "the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction."[19] Here, Reft maintains that this Court does not have federal question jurisdiction under 28 U.S.C. § 1331 because all of Koniag's allegations invoking federal law are, in fact, solely in anticipation of Reft's defenses to Koniag's state law causes of action.[20] This is a facial attack on the Court's subject matter jurisdiction.

DISCUSSION

Federal Rule of Civil Procedure 12(b)(1) provides that a party may seek dismissal of an action based on an assertion that the court lacks subject matter jurisdiction. Reft maintains that this Court does not have subject matter jurisdiction because there is no diversity jurisdiction and no federal question jurisdiction under 28 U.S.C. § 1331.[21]

I. Koniag's Complaint Does Not Present A Federal Question on its Face

"The presence or absence of federal question jurisdiction is governed by the well-pleaded complaint rule, ' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint."[22] "Federal jurisdiction cannot be predicated on an actual or anticipated defense."[23] Indeed, it is well-established that an anticipated federal defense is insufficient to create ...


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