United States District Court, D. Alaska
GWITCHYAA ZHEE CORPORATION and GWICHYAA ZHEE GWICH'IN TRIBAL GOVERNMENT, Plaintiffs,
v.
CLARENCE ALEXANDER and DACHO ALEXANDER, Defendants/Third-Party Plaintiffs,
v.
DAVID BERNHARDT, Acting Secretary of Interior, in his official capacity, Third-Party Defendant.
ORDER DEFENDANTS/THIRD-PARTY PLAINTIFFS' MOTION
TO AMEND
H.
Russel Holland United States District Judge.
Defendants/third-party
plaintiffs Clarence and Demetrie Alexander move to amend
their answer, counterclaim, and third-party
complaint.[1] This motion is unopposed by plaintiffs
Gwichyaa Zhee Gwich'in Tribal Government and Gwitchyaa
Zhee Corporation, [2] presumably because the Alexanders are
in fact only seeking leave to amend their third-party
complaint. The Alexanders' motion to amend is opposed by
third-party defendant David Bernhardt, Acting Secretary of
the Interior.[3] Oral argument was not requested and is
not deemed necessary.
Concurrent
with this order, the court is entering an order granting
plaintiffs' motion to amend their complaint. The
Alexanders have stated that they will file another motion to
amend their third-party complaint if the court grants
plaintiffs' motion to amend. While it struck the court
that it might be more efficient to summarily deny the instant
motion, because the Alexanders' proposed third-party
amended complaint is poorly drafted, the court offers the
following in the hope of narrowing the problems with any
future motion by the Alexanders to amend their third-party
complaint.
Background
This
case currently involves a dispute over a parcel of land known
as Tract 19A which was part of an ANCSA conveyance of land
from the United States to plaintiff GZ Corporation.
Plaintiffs allege that in 2008, in order to comply with their
obligations under § 14(c)(1) of ANCSA, they submitted a
“Map of Boundaries” to the Bureau of Land
Management (BLM) “that identified . . . 14(c)(1) Claims
. . . encompassing Fort Yukon and its nearby surroundings. .
. .”[4] Plaintiffs allege that the Fort Yukon
Map of Boundaries created Tracts 19 and 19A.[5] Plaintiffs
allege that survey drawings were done after the Fort Yukon
Map of Boundaries was submitted to the BLM but that the
drawings for Tracts 19 and 19A were originally incorrect
because defendants “convinced the surveyor to include
more acreage in their § 14(c)(1) Claim than identified
on the Fort Yukon Map of Boundaries.”[6] Plaintiffs
allege that the survey drawings were corrected in 2014
“to provide the appropriate boundary for Tracts 19 and
19A.”[7] Plaintiffs allege that after they
received the final survey drawings, “GZ Corporation
began to execute deeds to provide formal documentation of the
§ 14(c)(1) Claims.”[8] Plaintiffs allege that
they quitclaimed Tract 19 to Clarence Alexander in 2016 but
that they retain title to Tract 19A.[9]
The
Alexanders, however, contend that the boundaries on the Fort
Yukon Map of Boundaries are incorrect and that Clarence
Alexander's § 14(c)(1) claim includes some or all of
Tract 19A.[10] The Alexanders also contend that
there are issues as to whether plaintiffs complied with the
regulatory requirements for § 14(c)(1) claims. In
addition, the Alexanders contend that they have obtained
documents via FOIA requests that show that the acreage of
Tract 19 was reduced sometime between 2011 and 2014, that the
BLM permitted GZ Corporation to “replat” Tract 19
in 2013-2014, and that this replatting resulted in the
reduction of Tract 19, the relocation of Tract 9,
[11] and the creation of Tract 19A.
Plaintiffs
have brought an ejectment claim against the Alexanders; and
the Alexanders have asserted four counterclaims against
plaintiffs. The Alexanders have also filed a third-party
complaint against the Secretary. The third-party complaint
asserts an APA claim against the Secretary. The Alexanders
seek review of the 2008 decision by the BLM to accept GZ
Corporation's Fort Yukon Map of Boundaries.[12] The
Alexanders also may be attempting to assert a separate due
process claim.[13]
Pursuant
to Rule 15(a)(2), Federal Rules of Civil Procedure, the
Alexanders now move to amend their third-party complaint. The
Alexanders seek to add third-party defendants, add claims,
and amend their existing claims asserted against the
Secretary. Specifically, the Alexanders seek to add as
defendants the Department of Interior, the BLM, and the
BLM's Chief Cadastral Surveyor for Alaska. The proposed
amended third-party complaint, while far from a model of
clarity, appears to assert four separate causes of action.
First, the Alexanders propose to assert an APA claim seeking
review of the 2008 acceptance of GZ Corporation's Fort
Yukon Map of Boundaries and the 2014 approval of GZ
Corporation's plan of survey.[14]Second, the Alexanders
propose to assert an APA claim based on allegations that the
third-party defendants failed to give the Alexanders adequate
notice before accepting the Map of Boundaries in 2008 and
approving the plan of survey in 2014.[15] Third, the
Alexanders propose to assert claims that 43 U.S.C. §
1624, Part 2650, and 43 U.S.C. § 1632(b) are
unconstitutional as applied to them.[16] Fourth, the
Alexanders propose to assert an APA claim based on
allegations that the third-party defendants have failed to
act on a request for relief that the Alexanders submitted on
August 23, 2018.[17]
Discussion
“Rule
15(a) is very liberal and leave to amend ‘shall be
freely given when justice so requires.'”
AmerisourceBergen Corp. v. Dialysist West, Inc., 465
F.3d 946, 951 (9th Cir. 2006) (quoting Bowles v.
Reade, 198 F.3d 752, 757 (9th Cir. 1999)). “But a
district court need not grant leave to amend where the
amendment: (1) prejudices the opposing party; (2) is sought
in bad faith; (3) produces an undue delay in litigation; or
(4) is futile.” Id. The Secretary only argues
that amendment would be futile. “Futility of amendment
can, by itself, justify the denial of a motion for leave to
amend.” Bonin v. Calderon, 59 F.3d 815, 845
(9th Cir. 1995). “The test for futility ‘is
identical to the one used when considering the sufficiency of
a pleading challenged under Rule 12(b)(6).'”
Fresno Unified School Dist. v. K.U. ex rel. A.D.U.,
980 F.Supp.2d 1160, 1179 (E.D. Cal. 2013) (quoting Miller
v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir.
1988)). “‘[T]o survive a motion to dismiss, a
complaint must contain sufficient factual matter to state a
facially plausible claim to relief.'” Id.
(quoting Shroyer v. New Cingular Wireless Serv.,
Inc., 622 F.3d 1035, 1041 (9th Cir. 2010)). Futility may
also “include[] the inevitability of a claim's
defeat on summary judgment.'” Calif. ex rel.
Calif. Dep't of Toxic Substances Control v. Neville
Chemical Co., 358 F.3d 661, 673-74 (9th Cir. 2004)
(quoting Johnson v. Am. Airlines, Inc., 834 F.2d
721, 724 (9th Cir. 1987)).
The
Secretary first argues that it would be futile to allow the
Alexanders to amend as to their proposed APA claim based on
allegations that the BLM's acceptance of the 2008 Map of
Boundaries and approval of the 2014 plan of survey were
arbitrary and capricious. The Secretary argues that amendment
as to this claim would be futile because ANCSA gave the
Secretary very limited duties with regards to the conveyance
of lands. The Secretary contends that the Alexanders want him
to determine that they are entitled to Tract 19A, but he
argues that he has no duty or authority to determine
entitlement to any Section 14(c) reconveyances.
“ANCSA
extinguished all aboriginal title and claims of aboriginal
title to lands in Alaska in exchange for the distribution of
$962, 500, 000 and over forty million acres of land to Alaska
Natives.” Chickaloon-Moose Creek Native Ass'n,
Inc. v. Norton, 360 F.3d 972, 974 (9th Cir. 2004).
“ANCSA did not convey lands directly to village or
regional corporations, but provided a method for
accomplishing transfer.” Id. Pursuant to
ANCSA, public lands were withdrawn and then village and
regional native corporations could select the lands to which
they were entitled. After a selection was made by a village
corporation, the Secretary 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)(i). A patent would be issued once the lands in
question had been surveyed. Id.
Section
14(c)(1) of ANCSA provided that once a village corporation
received a patent, the corporation was to
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
subsistence campsite, or as headquarters for reindeer
husbandry[.]
43 U.S.C. § 1613(c)(1). Section 14(c) made provision for
“such sums as may be necessary for the purpose of
providing technical assistance to Village Corporations
established pursuant to this chapter in order that they may
fulfill the reconveyance requirements of this
subsection.” 43 U.S.C. § 1613(c). Section 14(c)
authorized “[t]he Secretary [to] make funds available
as grants to ANCSA or nonprofit corporations that maintain
in-house land planning and management capabilities.”
Id.
The
Secretary argues that he has limited authority under Section
14(c) and that he does not have the authority to make any
determinations as to Section 14(c) reconveyances. Moreover,
the Secretary contends that once a village corporation has
received a patent, the corporation has full legal title to
the land and that he no longer has jurisdiction over the
land. See West v. Standard Oil Co., 278 U.S. 200,
211-12 (1929) (“[t]he issue of the patent terminates
the jurisdiction of the Department [of Interior] over the
land”).
The
Secretary acknowledges that he has a duty to survey ANCSA
land selections. Specifically, 43 U.S.C. § 1612(a)
provides:
The Secretary shall survey the areas selected or designated
for conveyance to Village Corporations pursuant to the
provisions of this chapter. He shall monument only exterior
boundaries of the selected or designated areas at angle
points and at intervals of approximately two miles on
straight lines. No. ground survey or monumentation will be
required along meanderable water boundaries. He shall survey
within the areas selected or designated land occupied as a
primary place of residence, as a primary place of business,
and for other purposes, and any other land to be patented
under this chapter.
But,
the Secretary argues that nothing in Section 1612(a) creates
any duty to determine entitlement to any Section 14(c)
reconveyance.
The
Secretary also argues that there are no regulations that
create a duty to determine the entitlement to a Section 14(c)
reconveyance. The regulation governing village surveys can be
found at 43 C.F.R. § 2650.5-4. Section 2650.5-4(b)
provides that “[s]urveys 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). . . .” Section
2650.5-4(c)(1) provides that
[t]he boundaries of the tracts described in paragraph (b) of
this section shall be posted on the ground and shown on a map
which has been approved in writing by the affected village
corporation and submitted to the Bureau of Land Management.
Conflicts arising among potential transferees identified in
section 14(c) of the Act, or between the village ...