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Gwitchyaa Zhee Corp. v. Alexander

United States District Court, D. Alaska

December 19, 2019

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

          H. RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE

         Cross-motions for Summary Judgment

         Plaintiffs move for summary judgment on Clarence Alexander's § 14(c)(1) claim.[1]This motion is opposed, [2] and defendants move for summary judgment against plaintiffs.[3] Defendants' motion for summary judgment is opposed.[4] Oral argument was requested and has been heard.

         Facts

         Plaintiffs are Gwitchyaa Zhee Corporation (“GZ Corporation”) and Gwichyaa Zhee Gwich'in Tribal Government. Defendants are Clarence and Dacho Alexander.

         This case involves Clarence's § 14(c)(1) claim under the Alaska Native Claims Settlement Act (“ANCSA”). “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 Pursuant to ANCSA, public lands were withdrawn and then village and regional native corporations could select the lands to which they were entitled. Id. at 974-75. After a selection was made by a village corporation, the Secretary of Interior 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 provides 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). “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.” Ogle v. Salamatof Native Ass'n, Inc., 906 F.Supp. 1321, 1328 (D. Alaska 1995). 43 C.F.R. § 2650.5-4 “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.'” Id. Once the surveys were completed, the BLM was to submit an official plat to the village corporation showing the boundaries for all § 14(c)(1) claims. After the village corporation approved the official plat, the village corporation issued deeds to the § 14(c)(1) claimants.

         On October 30, 1984, Clarence submitted a § 14(c) application to GZ Corporation.[5] Applicants were required to attach a “sketch map of the parcel” being claimed.[6] There is a sketch map attached to Clarence's § 14(c) application which indicates that he was claiming a triangular-shaped parcel, approximately 5.77 acres in size, that did not include the Joe Ward barge landing area or the pond.[7] Clarence has testified that the handwriting on this sketch map is not his and that he believed that his § 14(c) application had a different sketch map attached.[8] But, the Alexanders have not been able to come forward with a copy of this other sketch map.[9] In his application, Clarence indicated that he had occupied the land in question since 1974, when he “purchased the house from James Ward, Sr.”[10]

         GZ Corporation received an interim conveyance of the lands at issue in this lawsuit on March 22, 1985.[11]

         On August 6, 1990, GZ Corporation approved Clarence's § 14(c) application.[12] On August 7, 1990, GZ Corporation notified Clarence that his § 14(c) application (application #002) “for primary place of residence” had been approved.[13] GZ Corporation advised Clarence that “[t]he next step in this long process is to prepare your claim in a plan of survey. . . .”[14]

         In 2007, GZ Corporation hired Fort Yukon resident and GZ Corporation shareholder Gary Lawrence to complete the Fort Yukon Map of Boundaries (“FYMOB”).[15] Lawrence testified that he did not have a surveying background, that he did not do any physical surveys of any of the § 14(c) claims, and that he did not post any of the proposed boundaries for the § 14(c) claims.[16] Lawrence testified that he worked off of other people's maps.[17]

         On June 27, 2007, the patent for the lands involved in this lawsuit was issued to GZ Corporation.[18]

         In November 2007, Lawrence sent a letter to all § 14(c) applicants advising them that he would be meeting with each applicant “to develop a strip map” and advising that “[e]ach applicant is awarded 5 acres[. Y]ou can have less than 5 acres, but you can't go over unless it was approved when your application was approved by the corporation.”[19] At his deposition, Clarence agreed that this letter had been sent to his correct mailing address, but he testified that he did not remember receiving the letter.[20] Lawrence testified that he included a copy of the strip map with the letter he sent to Clarence, but it is not clear if this was the hand-drawn sketch map discussed above.[21]

         Lawrence testified that he spoke to Clarence about a month after sending the letter and told Clarence that his claim was “over 5 acres. So he told me that he didn't want the lake. . . . [H]e told me that he didn't want the lake so I cut it out.”[22] Lawrence later appeared to change his mind as to when this conversation took place, suggesting it may have been in the summer of 2008.[23] Clarence denied ever speaking to Lawrence about the boundaries of his § 14(c) claim, [24] but he testified that he did tell Lawrence not to include the pond area, by which he meant not to “measure” it.[25] Clarence may have been indicating to Lawrence that the pond area should not be included as part of the acreage of his § 14(c) claim, not that the pond area should not be within the boundaries of his § 14(c) claim.

         GZ Corporation submitted the FYMOB to the BLM on April 11, 2008.[26] The FYMOB consisted of two sheets but it was accompanied by supporting documents, which included the

Agreement with the City of Fort Yukon, G.Z. Corporation, and the Gwichyaa Zhee Gwich'in Tribal Government (Including Amendments and Resolutions), List of all applicable surveys relating to the Map of Boundaries, List of all approved 14(c)(1) applicants with current phone numbers and addresses, [and] Individual Strip maps of all 14(c)(1) claims.[27]

         On April 30, 2008, Al Breitzman, on behalf of the BLM, “accepted” the filing of the FYMOB. After accepting the FYMOB, the BLM sent a public notice “concerning all ANCSA 14(a) land reconveyance decisions” by the GZ Corporation to the Postmaster in Fort Yukon to be posted “on a bulletin board where residents passing through the area can read it.”[28] The notice stated that GZ Corporation had “now officially filed with the Bureau of Land Management (BLM) their final Alaska Native Claims Settlement Act (ANCSA) 14(c) Map of Boundaries.”[29] The notice provided that “[i]f you have an interest in the designated parcels, you should contact the Village Corporation to review the map of boundaries to be sure the map includes your claim.”[30] The notice further provided that

[i]f you disagree with the Village Corporation's boundary decisions, you should contact the Corporation. If the disagreement is not resolved, you must start a court action within one year of the date shown above. If you have a dispute and do not start a court action within one year, you will forfeit your claim.[31]

         And, the notice provided that “[t]he official filing date of the map of boundaries is: April 11, 2008.”[32] In addition to the notice being posted at the Fort Yukon post office, it was also posted at the Alaska Commercial store and at the offices of plaintiffs.[33] The same notice was also published in the Anchorage Daily News and the Fairbanks Daily News-Miner.[34]

         The FYMOB showed Clarence's § 14(c) claim as claim 002R:

         (Image Omitted)

         This matched the sketch map that was included with Clarence's § 14(c) application.[35] But, in the supporting documents accompanying the FYMOB, there is an aerial map that includes the pond and the tip of the triangle as part of Clarence's § 14(c) claim:

         (Image Omitted)

         There is a note in blue ink on Clarence's application which is included in the FYMOB supporting documents, which asks “is barge landing as marked on sketch? Excluded or included? or is aerial correct?”[36] And, there is a second note, in red ink, that states “using MOB Aerial.”[37] There is no evidence in the record as to who wrote these notes.

         Clarence avers that the aerial photograph “accurately shows the triangular boundaries of my 1984 § 14(c)(1) claim, formed by the Yukon River on one boundary, and formed by two roadways on the other two boundaries of my property[.]”[38] Clarence avers that his § 14(c) claim included “the Joe Ward barge area (formerly known as the McInnoy Slough area) and the pond area, both of which areas are located within the triangular boundaries shown on the aerial photograph.”[39]

         On May 1, 2009, the BLM “approved” the FYMOB “to be used as the plan of survey for the ANCSA 14(c) parcels shown hereon.”[40] The BLM advised GZ Corporation that “[t]he one-year time clock” for disputes related to the FYMOB had “expired on April 30, 2009” and that “[t]he Fort Yukon ANCSA 14(c) survey will be executed in the future, as funding becomes available.”[41]

         On August 3, 2010, a list of ANCSA 14(c) reconveyances for Fort Yukon showed Tract 19, which was Clarence's § 14(c) claim, as being 8.79 acres.[42]

         In October 2010, Eric Stahlke, the Cadastral Survey manager for Tanana Chiefs Conference, advised the BLM that Clarence was “claiming the barge landing” as part of his § 14(c) claim, “though there is a state road that goes right to it.”[43]

         The April 27, 2011 “special instructions” for the Fort Yukon survey indicated that Clarence's § 14(c) claim (Tract 19) consisted of “8.79+ acres” and that it was “shown on Sheet 5 of the Plan of Survey.”[44] Sheet 5 of the Plan of Survey showed Tract 19 as being a triangular-shaped parcel similar to that shown in the aerial photo, but without the very tip of the triangle included in the tract.[45] The special instructions gave the surveyor the authority to

make minor adjustments to the Fort Yukon ANCSA 14(c) Plan of Survey due to unexpected conditions found during the course of the field survey and to avoid creating unmanageable slivers or strips of land. Any major change will be coordinated with the Gwitchyaa Zhee Corporation and the Bureau of Land Management ANCSA 14(c) specialist. All major changes will be documented and submitted to the Bureau of Land Manage- ment ANCSA 14(c) Specialist to file with the Fort Yukon ANCSA 14(c) case file.[46]

         On July 15, 2011, Stahlke was contracted by the BLM to do the Fort Yukon survey.[47]

         Dacho avers that in the summer of 2011, he received a copy of a survey document that showed Clarence's § 14(c) claim as “consisting of 8.80 acres.”[48] He avers that this survey document did not show the Joe Ward barge landing area as part of Tract 19.[49]

         On September 8, 2011, Clarence signed an affidavit in which he averred that he had “reviewed the reconveyance requests submitted by the” GZ Corporation “to the BLM” and “[t]he 14(c) reconveyance map filed by the” GZ Corporation “does not accurately document my reconveyance request.”[50] Clarence took this affidavit with him to a meeting of GZ Corporation's board of directors on September 8, 2011, which he attended along with Dacho.[51] According to the minutes from that meeting, the Alexanders complained about Clarence's § 14(c) claim not including the Joe Ward barge landing area and they asked that the boundaries be clarified.[52] The Board took no action on Clarence's § 14(c) claim at the meeting.[53]

         But, on September 26, 2011, Fannie Carroll, the general manager of GZ Corporation, emailed Stahlke that she had “notice[d]” that Clarence's § 14(c) claim “goes around the pond[] and does not include the barge landing area on either side, how is it that the tract grew, to the now surveyed lot which goes beyond the same pond on the MOB?”[54] Stahlke responded on September 27, 2011, that “[w]hy [the BLM] added the pond onto Tract 19 and boundaries that expand past the MOB location is a question I cannot answer. Perhaps it was to eliminate an unmanageable sliver between the original barge land[ing] road and Mr. Alexander's application.”[55]

         After the September 2011 board meeting, Dacho “contacted the BLM office in Anchorage” and spoke to “Al Breitzman [who] told me that after the one year statute of limitations had run, the only way to change the survey was either by the surveyor or by GZ Corp., and that there was no legal recourse available at that point in time[.]”[56]

         In November 2011, the Alexanders, along with attorney Mike O'Brien, met with Stahlke and the president of the Tanana Chiefs Conference to discuss the Alexanders' contention that Clarence's § 14(c) claim did not include all the land he thought it should.[57]In response to plaintiffs' first requests for production, the Alexanders stated that O'Brien “attended [this] 2011 TCC meeting in Fairbanks with [them] as [their] attorney.”[58] On November 14, 2011, the Alexanders signed a letter that was sent to the president of the Tanana Chiefs Conference to memorialize the meeting.[59] In the letter, the Alexanders stated that “at issue is .3 acres claimed by” Clarence “on the westernmost point of his requested conveyance. . . .”[60]

         On May 31, 2012, Breitzman advised GZ Corporation that the survey for Clarence's § 14(c) claim was

correct relative to the submitted Map of Boundaries. The Map, when compared to the detailed information in the binder, was a bit unclear as to the extent of the claim. The Map and one site diagram showed the claim stopping short of the road to the barge landing. Another drawing in the binder shows the boundaries of the claim over a blown up aerial photo and has the claim all the way over to the road. After TCC staff on the ground discussed with Corp. reps, we resolved the ambiguity in favor of the claimant and brought the claim all the way over to the road.
There is no ambiguity with regard to the barge landing. The Map of Boundaries as well as the detailed drawings in the binder all show Mr. Alexander's claim curving around but not including the barge landing.[61]

         On March 13, 2013, the BLM sent a “completed ANCSA 14(c) Survey for Fort Yukon” and an “ANCSA 14(c) plat” to GZ Corporation for its review and approval.[62]

         On April 8, 2013, Carroll advised the BLM that GZ Corporation had found that “the surveyed selections indeed did not correctly execute our submitted Map of Boundaries.”[63]“First, . . . on our Map of Boundaries, 002R does not match your BLM Tract 19. The Map of Boundaries goes up to the pond, your surveyed area is up to the road.”[64]

         On April 19, 2013, John Pex of the BLM sent a letter to Stahlke concerning “Tract 19.”[65] In the letter, Pex stated that “[t]his is a change to Tract 19 of the Fort Yukon 14(c), platting it as 2 Tracts, Tract 19 and Tract 19A. This will not require any field work.”[66]“Tract 19 will be platted as shown on the attached example, all pertinent sheets of the Fort Yukon 14(c) will be edited.”[67] The attached example showed Tract 19 as excluding the pond area and the area at the tip of the triangle.[68]

         On May 8, 2013, the BLM again sent the § 14(c) completed surveys and plats to GZ Corporation for review and approval.[69] The BLM noted that “[a]t the suggestion of the Corporation, the [BLM] modified Tract 19 to more fully comply with the submitted Map of Boundaries. This change should bring the project in full agreement with the submitted Map of Boundaries.”[70]

         On July 22, 2013, Carroll wrote to Breitzman about the modification to Tract 19.[71]Carroll wrote that GZ Corporation had “simply requested the survey [match] the map of boundaries which [was] submitted by our village corporation, yet now we find you created a 19A tract. There is no 19A tract. We need your agency to make this correction.”[72]

         On July 25, 2013, Breitzman responded:

At the suggestion of the Corporation, the Bureau of Land Management (BLM) modified Tract 19 to more fully comply with the submitted Map of Boundaries. This change should bring the project in full agreement with the submitted Map of Boundaries. Tract 19A was created to identify the parcel removed from Tract 19 and does not imply a valid claimant for Tract 19A. Tract 19A was created as an administrative lot because we had to give that part removed from what would have been the proposed Tract 19 some sort of identifier. Tract 19A will be retained by the Corporation.[73]

         On September 26, 2013, Frannie Hughes (formerly Fannie Carroll) advised Breitzman that GZ Corporation was “still . . . not pleased with the divided tract 19, we feel you should not include nor name tract 19A.”[74] Hughes noted that “MOB Tract 002R does not go to the road on the east, BLM surveyed Tract 19 to the road? MOB Tract 9 does not appear to match the []BLM surveyed Tract 9[.] Ours gave the river front and navigable area [to the City?], so the City could work on a boat dock.”[75]

         On October 18, 2013, Breitzman responded that “the identification of Lot 19A does not imply a valid claimant for this parcel.”[76] Breitzman explained:

BLM does have the obligation to survey the valid claims identified on the Map of Boundaries. We also have survey obligations within the context of good survey practice. One such obligation is to give a unique identifier to any parcel we create. If we exclude the pond area from Lot 19 we have the authority (and some would argue the responsibility[)] to give it an identifier. This does not mean that the creation of Lot 19A implies a valid claimant for the parcel.
An identifier such as Lot 19A will benefit the Corporation as they have a legal description of the parcel so [they] can move forward with any subsequent use or transfer without additional survey work (OR COST).[77]

         It then appears that GZ Corporation involved Congressman Young's office in the survey issue. On January 30, 2014, Breitzman emailed a representative from Young's office (Erik Elam) that “BLM would be willing to make this one last modification to the ANCSA 14(c) plat for the Fort Yukon area (as shown in the series of 3 diagrams) if the Corporation would agree to then sign the plat as modified.”[78] All three diagrams showed Tract 19 as 5.83 acres, Tract 19A as 2.77 acres, and the tip of the triangle as not part of any tract.[79] Diagrams 2 and 3 show that a small amount of land was taken from Tract 9 and added to Tract 19A.[80]

         On March 11, 2014, Hughes emailed Elam and stated that GZ Corporation believed it was in its “best interest to select the First Option which was described in your February 18, 2014 email. This we agree will be the most [expedient] where the size difference of Tract 19 will be close enough in relation to the time and energy saved in scheduling a survey crew to the Yukon Flats once again.”[81]

         On March 11, 2014, Hughes also sent plan of survey mylar maps to Breitzman showing "where we want Tract 19 to be adjusted[.] Then our village corporation will sign the maps as to finalize our 14cl process."[82]

         On May 22, 2014, Hughes advised Breitzman that GZ Corporation's Board of Directors had approved the "14C plats[.]"[83]

         On June 2, 2014, the BLM issued its "Section 14(c) plat" for GZ Corporation, which showed Clarence's § 14(c) claim as Tract 19:[84]

         (Image Omitted)

         Tract 19 as shown on the plat appears to nave me same snape and boundaries as claim 002R has on the FYMOB.

         On Plat Sheet 1, which shows Tract 19, Tract 9, and Tract 19A, Stahlke certified

that I have executed the ANCSA 14(c) Survey depicted on this plat, sheets 1-30, in conformity with the Special Instructions approved June 6, 2011, Contract No. L11AV20002, awarded July 15, 2011, the principles of survey described in the Manual of Surveying Instructions (2009), and in the specific manner described on this plat.[85]

         On Plat Sheet 1, the president of GZ Corporation certified

that the parcels created by this plat of survey, sheets 1-30 are on land conveyed to Gwitchyaa Zhee Corporation, . . . said parcels also fulfill all entitlements under the provisions of ANCSA 14(c) as requested by Gwitchyaa Zhee Corporation ANCSA 14(c) Map of Boundaries accepted April 11, 2008.[86]

         And, on June 2, 2014, the BLM Chief Cadestral Surveyor of Alaska signed Sheet 1 of the plat, indicating that the BLM had “accepted” the survey and noting that the survey had been

executed by Eric Stahlke, Registered Alaska Land Surveyor No. LS-6945, for Tanana Chiefs Conference, July 19 through September 10, 2011, in accordance with the specifications set forth in the Manual of Surveying Instructions (2009), Special Instructions dated April 27, 2011, approved June 6, 2011, Assignment Instructions dated July 15, 2011, and Notice to Proceed dated July 18, 2011.[87]

         Plat 2014-78 was recorded with the State of Alaska, Department of Natural Resources Recorder's Office, Fairbanks Recording District, on June 10, 2014.

         On January 29, 2016, GZ Corporation issued a quitclaim deed to Clarence for “Tract 19 located in Section 12, T20N, R11E, Fairbanks Meridian, as described at pages 1 and 2 of Plat No. 2014-78 recorded June 10, 2014, in the Fairbanks Recording District.”[88] The quitclaim deed was “recorded with the Alaska Department of Natural Resources Recorder's Office, Fairbanks Recording District on February 2, 2016[.]”[89]

         Plaintiffs contend that the Alexanders “have moved their belongings not only onto Tract 19, but also Tracts 9, 19A, and the triangle-shaped parcel of land at the end of Barge Landing Road.”[90] Plaintiffs contend that they have repeatedly requested that the Alexanders remove their belongings from ...


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