City of Angoon v. Hodel

No. A83-234 CIV (D. Alaska October 17, 1985)

The court holds that the time limits in § 22(k) of the Alaska Native Claims Settlement Act (ANCSA) during which timber export and management practice restrictions apply to private land within the boundaries of a national forest started running from the date of ANCSA's enactment in 1971. Section 22(k)(1) subjects the sale of timber from patented lands in Alaskan national forests to certain restrictions for a period of five years; § 22(k)(2) requires that such lands be managed under management principles similar to those used on adjacent national forest lands for a period of 12 years. The court rejects plaintiffs' argument that the two time periods run from the date a particular tract is actually conveyed to a native corporation under ANCSA. Although § 22(k) itself is silent on the issue, it is inappropriate in this case to rely on the fact that Congress explicitly specified in other provisions of ANCSA that the time period should begin to run as of the date of enactment. At least two other sections are also ambiguous, indicating Congress was not always so clear. Further, Congress also knew how to explicitly specify that a requirement be measured as of the date of conveyance.

Turning to the regulations promulgated by the Secretary of the Interior, the court holds that the Secretary's interpretation of the statute's is entitled to substantial deference. First, the principle that the degree of deference is reduced where the agency has not held consistently to a single view of the statute is not applicable where, as in the case at bar, the alleged inconsistency occurred in proposed, not final, versions of the regulations. Moreover, § 22(k) and the statute itself represent the competing policies of protecting the domestic timber industry, the environment, and the inexperienced native corporations; the Department of the Interior has more expertise in these issues than does the court. Third, Congress delegated broad authority to the Secretary in ANCSA, and the courts are more deferential to administrative statutory interpretations in such circumstances. Congress could have overturned the Secretary's interpretation of § 22(k) when it enacted the Alaska Native Interest Lands Conservation Act in 1980, yet it chose not to do so. The court then holds that the Secretary's interpretation that the time periods in § 22(k) run from ANCSA's date of enactment is reasonable. The interpretation is consistent with ANCSA's goals of protecting environmental quality, cushioning local timber industry from immediate detrimental impact as a result of the statute, and preventing native corporations from selling their assets for short-term profit. The interpretation is also consistent with the meaning established by the Ninth Circuit for a similar time limit in § 22(c) and with the principle that ambiguous language in laws designed to benefit natives should be resolved in their favor.

Counsel are listed at 16 ELR 20775.

[16 ELR 20779]

von der Heydt, J.:

Memorandum and Order on Section 22(k)

THIS CAUSE comes before the court on the motions and briefing of the parties directed to the interpretation of § 22(k) of the Alaska Native Claims Settlement Act, Pub. L. No. 92-203, 85 Stat. 688 (1971). By this order the court denies plaintiffs' motion for partial summary judgment regarding § 22(k) (docket No. 108) and grants those parts of federal defendants' consolidated motion for summary judgment (Docket No. 97) and Shee Atika's motion to dismiss (Docket No. 101) that attack plaintiffs' claims growing out of § 22(k). A separate order issued on this date describes the facts of this case and addresses subsistence and trust responsibility issues. A subsequent memorandum and order will complete the disposition of the pending motions in this action.

I. The Statute

Section 22(k), now codified in 43 U.S.C. § 1621(k), provides:

Any patents to lands under this chapter which are located within the boundaries of a national forest shall contain such conditions as the Secretary deems necessary to assure that:

(1) the sale of any timber from such lands shall, for a period of five years, be subject to the same restrictions relating to the export of timber from the United States as are applicable to national forest lands in Alaska under rules and regulations of the Secretary of Agriculture; and

(2) such lands are managed under the principle of sustained yield and under management practices for protection and enhancement of environmental quality no less stringent than such management practices on adjacent national forest lands for a period of twelve years.

(emphasis added). The documents conveying the Cube Cove lands to Shee Atika contained the following reservations, patterned after 43 C.F.R. § 2650.4-5:

[u]ntil December 18, 1983 the portion of the above-described lands located within the boundaries of a national forest shall be managed under the principles of sustained yield and under management practices for protection and enhancement of environmental quality no less stringent than such management practices on adjacent national forest lands.

The validity of plaintiffs' § 22(k) claims turns on the interpretation of the two time limits contained in the statute. Plaintiffs contend that the five- and twelve-year periods run from the date a particular [16 ELR 20780] tract is actually conveyed to a Native corporation. Under this interpretation Shee Atika's 1981 conveyance documents ought to have contained reservations limiting export of timber until 1986 and regulating management practices until 1993. Defendants argue, however, that the periods in question run from December 18, 1971, the date ANCSA was enacted. On this view export and management restrictions written into all conveyances pursuant to § 22(k) should expire in 1976 and 1983, respectively.

Section 22(k) has been interpreted by the Department of the Interior, which administers land conveyances under ANCSA. The resolution of this dispute therefore involves two steps. The court must first analyze the plain meaning of the provision in its statutory context. If the statutory language is ambiguous, the court may look to extraneous sources to aid in interpretation, and in so doing it is obliged to accord some deference — the degree of deference is disputed by the parties — to the agency's interpretation. See Chevron U.S.A. v. N.R.D.C., 81 L. Ed. 2d 694, 702-03 [14 ELR 20507] (1984); Brock v. Writers Guild of America, West, Inc., 762 F.2d 1349, 1353 (9th Cir. 1985).

Turning to the first step in this analysis, the court finds that § 22(k) itself is silent as to the date from which the five- and twelve-year periods are to run. Nor does an examination of the remainder of the statute make Congress's intent clear. Plaintiffs point out that a number of other provisions in ANCSA specify time periods that expressly begin on the date of enactment,¹ and ask this court to invoke the principle of expressio unius est exclusio alterius to infer that by failing to tie the § 22(k) periods to the date of enactment Congress expressed an intention that the periods run from the only other plausible date, the date of conveyance. See 2A Sutherland, Statutory Construction § 47.23 (rev. 4th ed. 1984). This maxim is a relatively weak guide for statutory construction, however. Herman & MacLean v. Huddleston, 459 U.S. 375, 387 n.23 (1983); Illinois Dep't of Public Aid v. Schweiker, 707 F.2d 273, 277 (7th Cir. 1983). For several reasons, it would be inappropriate to apply it here.

First, § 22(k) is not the only provision in the Act to contain such a facially ambiguous time limitation. The phrase "for a period of five years" appears in precisely the same ambiguous context in sections 8(b) and 22(c) (43 U.S.C. §§ 1607(b), 1621(c)). The meaning of § 8(b) has never been elucidated, although a number of Native corporations appear to have assumed that its five-year period ran from the date of enactment. Affidavit of Stitt P4. The meaning of § 22(c), however, has been established. In Alaska Miners v. Andrus, 662 F.2d 577 (1981), the Ninth Circuit Court of Appeals read the time limitation in that section to run from the date of enactment.² To be sure, the subject matter and legislative origins of Sections 22(c) and 22(k) are sufficiently distinct that this court does not believe that their parallel ambiguities must necessarily be resolved alike. But it would be inappropriate to apply the expressio unius maxim to § 22(k) when the meaning of another subsection of § 22 shows that the maxim is not reliable in the context of ANCSA.

Plaintiffs' maxim attributes to legislation a degree of logic and consistency that cannot be presumed in the context of ANCSA. ANCSA was complex and controversial legislation, the product of no fewer than 18 bills and countless amendments. It has many authors and was the subject of intensive negotiation over the course of five sessions of Congress. The substance of § 22(k) was added to the legislation at the eleventh hour. It first appeared as § 23(v) of S. 35 less than two months before final passage of ANCSA, and achieved its present form during a hurried Senate floor debate on the day the Senate passed its version of the bill. 117 Cong. Rec. at 38464-65 (Nov. 1, 1971). It is likely that the omission of language fixing the § 22(k) time limits to a particular starting point owes more to chance than to design.

Finally, plaintiffs observe that "when Congress wanted statutory requirements to be measured as of the date of enactment of ANCSA, it knew how to say so." But Congress also knew how to specify explicitly that a requirement be measured as of the date of conveyance. In its 1980 amendments to the Act (passed before the § 22(k) ambiguity had become a subject of controversy), Congress altered the twenty-year tax exemption provision in § 21(d) of ANCSA so that it would run "from the vesting of title . . . or the date of issuance of an interim conveyance or patent, whichever is earlier." Alaska National Interest Lands Conservation Act (ANILCA) § 904, Pub.L. No. 96-487, 94 Stat. 2434, 43 U.S.C. § 1620(d)(1).

In short, it is not possible to arrive at the intended meaning of the § 22(k) time limitations by examining the statute on its face. Following the procedure laid down in Chevron U.S.A., supra, the court turns to the Secretary of the Interior's interpretation of the ambiguous language.

II. Degree of Deference Due the Secretary's Interpretation

Section 25 of ANCSA, 85 Stat. 715, empowers the Secretary of the Interior to issue "such regulations as may be necessary to carry out the purposes of this Act." On May 30, 1973, the Secretary published 43 C.F.R. § 2650.4-5, mandating that all conveyances under ANCSA that included national forest lands should contain the following reservations:

a) Until December 18, 1976, the sale of any timber from the land is subject to the same restrictions relating to the export from the United States as are applicable to national forest lands in Alaska under rules and regulations of the Secretary of Agriculture; and,

b) Until December 18, 1983, the land shall be managed under the principles of sustained yield and under management practices for protection and enhancement of environmental quality no less stringent than such management practices on adjacent national forest lands.

He thus interpreted the § 22(k) time periods to run from the date of enactment.

Every formal agency interpretation of a statute that does not run counter to its plain language is entitled to some deference. Center for Auto Safety v. Ruckelshaus, 747 F.2d 1, 6 [14 ELR 20863] (D.C. Cir. 1984); cf. C.P.S.C. v. GTE Sylvania, Inc., 447 U.S. 102, 120 (1980). The degree of deference to be accorded varies greatly, however, ranging from "great weight" to mere "thoughtful respect." Compare Doyon, Ltd. v. Bristol Bay Native Corp., 569 F.2d 491, 496 (9th Cir.), cert. denied, 439 U.S. 954 (1978), with Auto Safety, supra, 747 F.2d at 6. Moreover, even an interpretation entitled to great weight may be overturned if it is "manifestly unreasonable." Hamilton v. Butz, 520 F.2d 709, 713 (9th Cir. 1975). In this Part the court will review the indicia of reliability that determine the weight to be given to the Secretary's interpretation of § 22(k). Concluding that the administrative interpretation deserves substantial deference, the court will turn in Part III to an evaluation of the reasonableness of that interpretation.

Plaintiffs point out that deference to an administrative interpretation is reduced where the agency has not held consistently to a single view of the statute. E.g., Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); but cf. Espinosa v. Farah Mfg. Co., 414 U.S. 86, 94 (1973) (deference nonetheless "great"). They allege that the instant case falls into that category because two proposed versions of 43 C.F.R. § 2650.4-5 measured the § 22(k) periods from the date of conveyance. See 37 Fed. Reg. 19636 (Sept. 21, 1972); 38 Fed. Reg. 6505 (May. 9, 1973). But the inconsistency that courts have frowned upon is inconsistency in official interpretations. To hold that a final interpretation is weakened by the fact that draft regulations reveal that the agency considereda different policy would deprive the rulemaking process of its intended flexibility, transforming draft regulations into official pronouncements that agencies would be reluctant to reconsider. Cf. International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 632 [3 ELR 20133] (D.C. Cir. 1973).

In fact, 43 C.F.R. § 2650.4-5 is most accurately characterized as "a longstanding contemporaneous administrative construction upon which those subject to the jurisdiction opf the agency would have been likely to rely," a circumstance that bolsters its claim to [16 ELR 20781] deference. C.P.S.C., supra, 447 U.S. at 120; Auto Safety, supra, 747 F.2d at 5. Plaintiffs apparently concede that the export restrictions imposed by § 22(k)(1), if applied today, could impair the value of capital facilities constructed to service the "round log" export market using timber from lands finally conveyed after the passage of ANILCA. Native corporations that built such facilities presumably relied upon 43 C.F.R. § 2650.4-5 for assurance that their exports would be free of restriction.

The Secretary's interpretation of § 22(k) is also entitled to heightened deference because it involved a reconciliation of conflicting policies that "depended upon more than ordinary knowledge respecting the matters subjected to agency regulations." Chevron U.S.A., supra, 81 L. Ed. 2d at 704, quoting United States v. Shimer, 367 U.S. 374 (1961); see also Auto Safety, supra, 747 F.2d at 1 ("high degree [of deference] . . . when the agency's expertise can help in assessing the effects of competing interpretations upon the policies of the statute"). As Part III will show, ANCSA and § 22(k) are the expression of a number of competing policies. Section 22(k)'s aims of protecting domestic industry and protecting the environment argue for restriction periods beginning on the date of conveyance. Its purpose of preventing Natives from squandering their resources to solve a short-term cash flow crisis that would exist prior to the ANCSA cash settlement does not strongly support either interpretation of the time limits, though notably the termination of the cash settlement coincides neatly with the end of the § 22(k)(2) restriction under the Secretary's view. The purpose of promoting uniform rather than disjointed management is likewise neutral. On the other hand, ANCSA's overall goal of creating economically viable Native corporations argues for an early termination date for the § 22(k) restrictions. The Department of the Interior's expertise in Native affairs and in environmental issues makes it particularly well qualified to balance these concerns. See Washington Dep't of Ecology v. E.P.A., 752 F.2d 1465, 1469 (9th Cir. 1985).

A third factor that supports heightened deference is the Secretary's "pivotal role" in setting the ANCSA and § 22(k) machinery in motion. Kunaknana v. Clark, 742 F.2d 1145, 1150 [14 ELR 20827] (9th Cir. 1984); see Hamilton v. Butz, supra, 520 F.2d at 714 & n.9. By its own terms, § 22(k) delegates to the Secretary the task of devising such restrictions as he "deems necessary" to carry out its directions. Courts have been especially deferential to agency interpretations of particular aspects of a statute where there has been such delegation of broad authority by Congress. See Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566 (1980).

Finally, when Congress considered the ANILCA amendments to ANCSA in 1980, it was aware of the Secretary's interpretation of § 22(k) but did not see fit to overturn it. The Senate report on ANILCA stated:

[T]he Committee discussed the issue of timber harvesting practices on Native Lands. . . . [W]e note that the Settlement Act restricts the management of lands conveyed from the national forests to native corporations for 12 years. This 12-year period runs from the date of the Settlement Act through December, 1983.

S. Rep. No. 96-413, 96th Cong., 1st Sess. 128 (1979). ANILCA did not amend § 22(k). Failure to amend a statute to exclude a prior administrative interpretation of its meaning has been held to strengthen the validity of the administrative interpretation. National Muffler Dealers Ass'n v. United States, 440 U.S. 472, 486 (1979); Udall v. Tallman, 380 U.S. 1, 17-18 (1965).

Accordingly, the court holds that the Secretary's interpretation of § 22(k) is entitled to great deference.

III. Reasonableness of the Secretary's Interpretation

Because of the great weight accorded to the Secretary's reading of § 22(k), his interpretation will not be disturbed so long as it is "reasonably related" to ANCSA's purposes. Hawaii Dep't of Education v. Bell, Nos. 82-7697/98, slip op. at 6 (9th Cir. Sept. 10, 1985); see also Sudomir v. McMahon, __ F.2d 1456, 1459 (9th Cir. 1985) (interpretation need only be "within the range of reasonable meanings"). Part I showed that the wording of § 22(k) and its statutory context permit the Secretary's reading. The reading is also reconcilable with the purposes of the statute as revealed by its legislative history.

There are at least five legislative purposes that bear on § 22(k). First, the language of § 22(k)(2) shows a concern for protecting and enhancing environmental quality. Second, there can be little doubt that § 22(k)(1) was designed to cushion the impact of ANCSA on local sawmills, which had grown to rely on the export restrictions applicable to timber taken from Forest Service lands. Third, Congress hoped that § 22(k) would prevent Natives from yielding to "extraordinary pressure" to raid their new "long-term asset" to provide cash while they awaited ANCSA's delayed money settlement. Remarks of Senator Stevens, 117 Cong. Rec. 46965 (December 14, 1971). The money settlement was to be distributed over eleven years, with the largest installments payable in the third, fourth and fifth years. ANCSA § 6(a). Fourth, Congress intended § 22(k) to prevent "haphazard and disjointed management" of forest lands until the Natives could develop their own management plans to govern the tracts they selected. S. Rep. No. 92-405, 92nd Cong., 1st Sess. 164 (1971).³ Finally, a furndamental purpose of ANCSA as a whole was to create viable, profit-making Native corporations. Ukpeagvik Inupiat Corp. v. Arctic Slope Regional Corp., 517 F. Supp. 1255, 1262 (D. Alaska 1981).

The Secretary's interpretation advanced the last goal by lifting export restrictions at an early date. It fulfilled the third goal and arguably fulfilled the fourth. It did not do violence to the first two goals. The interpretation therefore was "reasonably related" to the statutory purposes. Hawaii Dep't of Education, supra, slip op. at 6.

The Secretary's reading of § 22(k) is bolstered by two other considerations. It accords with the meaning that has been assigned to the parallel language of § 22(c), as explained in Part I, and to the legislative history of that section.⁴ See supra note 2. It also accords with the old principle that ambiguous language in Native legislation should be resolved in favor of the Natives. Alaska Public Easement Defense Fund v. Andrus, 435 F. Supp. 664, 670-71 [8 ELR 20019] (D. Alaska 1977).

Plaintiffs argue that the Secretary's view does not accord with the legislative history because they believe that the Senate considered and rejected "an amendment that would have made section 22(k)'s time limitations run from enactment." In making this claim they rely on the following exchange at the conclusion of a discussion of another amendment to § 22(k):

Mr. Gravel. . . . I wonder if we could dot the "i," and provide the 5 years would run from enactment of this legislation. Would my colleague agree on that point?

Mr. Stevens. This would make it 5 years. That could be discussed in conference.

Mr. Gravel. I yield back the remainder of my time.

117 Cong. Rec. at 38466 (Nov. 1, 1971). This informal exchange does not constitute a Congressional "rejection" of an "amendment." It is susceptible to a number of interpretations; at worst, the failure of the conferees to "dot the 'i'" may reflect a disagreement as to the proper application of § 22(k) that they chose to leave unresolved. Chevron U.S.A. held that in such a situation the Secretary may resolve the ambiguity:

[P]erhaps Congress was unable to forge a coalition on either side of the question, and those on each side decided to take their chances with the scheme devised by the agency. For judicial purposes, it matters not. . . .

. . . [I]t is entirely appropriate for [executive agencies] to make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency. . . .

81 L. Ed. 2d at 717.

Under these circumstances, thecourt will not disturb the Secretary's interpretation of § 22(k).

Accordingly, IT IS ORDERED:

[16 ELR 20782]

(1) THAT plaintiffs' motion for partial summary judgment regarding ANCSA § 22(k) is denied;

(2) THAT the dispositive motions of Shee Atika and the Federal defendants are granted in part as follows:

(a) plaintiffs' claims pursuant to ANCSA § 22(k)(1) are dismissed for failure to state a claim upon which relief can be granted;

(b) plaintiffs' claim pursuant to ANCSA § 22(k)(2) growing out of violations alleged to have occurred on or after December 18, 1983, are dismissed for failure to state a claim upon which relief can be granted; and

(c) plaintiffs' claims pursuant to ANCSA § 22(k)(2) growing out of violations alleged to have occurred prior to December 18, 1983, are dismissed as moot.

1. E.g., §§ 2(c); 7(b), (e), (h), (j); 12(c)(3); 17(d)(2)(B); 22(h).

2. Because the court included only an abbreviated summary of the facts, it is not clear from the opinion in Alaska Miners whether this reading was necessary to the outcome or was dictim.

Section 22(c) reads, in pertinent part:

On any lands conveyed to Village and Regional Corporations, any person who prior to August 31, 1971, initiated a valid mining claim or location under the general mining laws and recorded notice of said location with the appropriate State or local office shall be protected in his possessory rights . . . for a period of five years and may . . . proceed to patent.

While on its face this language would permit a construction of the five-year period as running from the date of conveyance, the court in Alaska Miners appears to have given no thought to that alternative interpretation. The issue may not have seemed arguable because in the case of § 22(c) the Secretary's view that the period ran from the date of enactment was reinforced by relatively unequivocal language in the legislative history. See 117 Cong. Rec. 46965 (Dec. 14, 1971).

3. Taken in context, this passage may be read to favor either reading of § 22(k)1. A selection date tied to the date of conveyance would allowa Native corporation twelve years after each selection to develop a plan for that selection; the Secretary's construction, in contrast, would leave relatively little time for plans to be developed for late selections, such as the Shee Atika selection. On the other hand, plaintiffs' construction could lead to disjointed management where corporations selected several tracts in a single area, but made the selections at different times. See §§ 12(a)(1), (2); 16(b). The complexity of the resulting patchwork is shown by the Loescher Affidavit and exhibits.

4. This court has searched the legislative history of § 8(b), which also has language parallel to § 22(k), and has found no indication of the meaning of its time limitation clause.