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
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ANCSA, public lands were withdrawn and then village and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 ...