Appendix — Koniag, Inc. v. Stratman

Supreme Court brief1995

Ask Donna

What actually matters in this document.

Text

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 79-4480

OMAR STRATMAN, et al.,

Plaintiffs-Appellants,

Vv.

JAMES G. WATT, Secretary of the Interior, et al.,

Defendants-Appellees.

OPINION

Argued and Submitted September 11, 1980.

Decided September 8, 1981.

Rehearing Denied November 27, 1981.

Roger E. Henderson, Anchorage, Alaska;

Frederick L. Miller, Duncan, Weinberg & Miller,

Washington, D.C., argued, for plaintiffs-appellants;

Roger E. Henderson, Houston & Henderson,

Anchorage, Alaska, on brief.

Peter Steenland, Washington, D.C., argued, for

defendants-appellees; Dan A. Hensley, Anchorage,

Alaska, on brief.

Het eee, Be

ete Cae

Appeal from the United States District court for

the District of Alaska.

Before WALLACE, HUG and SCHROEDER,

Circuit Judges.

SCHROEDER, Circuit Judge:

This is an action by various individuals to enjoin

the granting of land patents to a Native corporation

pursuant to the Alaska Native Claims Settlement Act,

43 U.S.C. §§ 1601 et seg. Plaintiffs seek to demonstrate

that the village corporation, Leisnoi, Inc. (Leisnoi),

comprising the village of Woody Island, was not

qualified as a Native village under the requirements of

43 U.S.C. § 1610(b)(3).1 Defendants include the

Secretary of the Interior and Leisnoi. A series of

district court rulings resulted in the dismissal of all the

plaintiffs’ claims, and we partially remand.

At the time suit was filed, these plaintiffs could

have been grouped into two categories. The first group

of plaintiffs were individuals who occasionally used the

land subject to patent for recreational purposes. The

other plaintiffs, Stratman and Burton, held long-term

federal grazing leases on land within the area subject

to patent, and were also recreational users. We affirm

the district court's dismissal of the claims of the first

category of plaintiffs, and reverse and remand the

dismissal of the remaining recreational claims of

Stratman and Burton.

1 The action originally challenged two other Native

villages, but those claims were separately litigated in another action, see

Koniag, Inc. v. pe, 405 F. Supp. 1360 (D.D.C. 1975), aff'd in part and

rev'd in part, 580 F.2d 601 (D.C. Cir.), cert. denied, 439 U.S. 1052, 99 S.Ct.

733, 58 L.Ed.2d 712 (1978); those villages have subsequently been found

by the Secretary to be ineligible.

Native Corp., 569 F.2d 491, 493 (9th Cir.), cert. denied,

439 U.S. 954, 99 S.Ct. 352, 58 L.Ed.2d 345 (1978).

ANCSA provides for accomplishment of that settlement

through distribution of 40 million acres of land and

regional corporations established pursuant to the Act's

provisions. The Act lists many Native villages which

are eligible for benefits, provided the Secretary

determines they meet specified qualifications.

43 U.S.C. § 1610(bX1) & (2). ANCSA also provides that

villages other than villages specifically enumerated in

the Act can qualify as recipient Native villages under

certain conditions. 43 U.S.C. § 1610(b)(3).2

Regulations promulgated by the Secretary of Interior

provide for particular kinds of notice and a hearing to

determine the validity of each unlisted village's

application. 43 C.F.R. § 265 1.2(a)(8)-(10).

Z 43 U.S.C. § 1610(bX3) provides:

Native villages . . . shall be eligible for land and benefits

under this Act . . . if the Secretary . . . determines that—

(A) twenty-five or more Natives were residents of an

established village on the 1970 census enumeration

date as shown by the census of other evidence

satisfactory to the secretary, who shall make findings

of fact in each instance; and

(B) the village is not of a modern and urban character,

and a majority of the residents are Natives.

Woody Island is not listed in the Act as an

eligible Native village. Application was made,

however, for Woody Island to be declared an eligible

village. After an investigation in 1973, Woody Island

was found eligible to form a village corporation and

determination of that eligibility was published in the

Federal Register and several Alaska newspapers in

accordance with Department of Interior regulations.

None of the plaintiffs received actual notice of the

Woody Island village application, however, and none

filed objections or participated in any hearings held on

the application, which was approved by the Secretary

of Interior on March 18, 1975.

After learning of Woody Island's certification and

the subsequent incorporation of Leisnoi to select lands

for patent, plaintiffs filed this action pursuant to

28 U.S.C. § 1331 in July 1976, claiming that the

government's investigation of the application, as

required by 43 U.S.C. § 1610(b)(3) and 43 C.F.R.

§§ 2651.2(aX(8) & 2651.2(b), had been insufficient and

that the village did not qualify as a Native village. In a

published opinion, the district court initially dismissed

the claims of the recreational users, other than

Stratman and Burton, for their failure to exhaust

administrative remedies. However it permitted

Stratman and Burton, because they had property

interests in the land, to amend their complaint and to

proceed, notwithstanding their failure to participate in

any administrative proceedings. The court determined

Stratman's and Burton's record interests entitled them

to actual, rather than constructive notice of the

certification application when administrative

proceedings were pending. Kodiak-Aleutian Chapter of

Alaska conservation Soc'y v. Kleppe, 423 F. Supp. 544

(D.Alaska 1976).

- |

(1) At that point, faced with a full-scale trial

of the Stratman-Burton claims, Leisnoi quitclaimed

any interest in all land subject to Stratman's and

Burton's leaseholds, thus mooting any claims based

upon economic injury. Upon application of the

defendants, the district court withdrew its prior ruling

in favor of Stratman and Burton and dismissed their

claims on the ground that there no longer existed any

"case or controversy” within the meaning of article III

of the United States Constitution. The district court,

significantly in our view, did not expressly consider the

claims of Stratman and Burton as recreational users,

apparently agreeing with the defendants that the

quitclaim deed eliminated Stratman's and Burton's

standing to challenge the certification.

Plaintiffs in this appeal ask us to review both the

dismissal of the Stratman-Burton claims for lack of a

case or controversy and the dismissal of the

recreational users’ claims for failure to exhaust

administrative remedies.

With respect to Stratman and Burton, the issue

of whether their claims were properly dismissed

following the relinquishment by Leisnoi of any claim to

the land in which they had economic interests. Its

ruling was based upon the defendants’ argument that

2 Stratman and Burton argue that their economic claims

are not moot because other land selections by Leisnoi may threaten harm

to their future economic interests in the area. We agree with the district

court's ruling that any injury to these generalized economic interests is

S.Ct. 2197, 2205, 45 L.Ed.Zd 343 (1975). See also Simon v.

Kentucky Welfare Rights Organization, 426 U.S. 26, 42-44, 96 S.Ct. 1917

1926-27, 48 L.Ed. 2d 450 (1976).

the plaintiffs lacked standing to pursue any claim of

damage other than damage to economic interests, and

thus could not pursue any remaining claim based on

recreational interests.

[2] A threshold question for all the plaintiffs

is therefore one of standing. In determining standing,

we must consider both constitutional and prudential

concerns. To satisfy the constitutional requirement

that a "case or controversy” had been made out, the

plaintiff must allege that he has suffered injury

resulting from the defendant's allegedly illegal action.

Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197,

2204-05, 45 L.Ed.2d 343 (1975). We have concluded

that to satisfy this requirement "the plaintiffs must

have alleged (a) a particularized injury (b) concretely

and demonstrably resulting from defendant's action (c)

which injury will be redressed by the remedy sought.”

Bowker v. Morton, 541 F.2d 1347, 1349 (9th Cir. 1976)

(footnote omitted). See also Sierra Club v. Andrus, 610

F.2d 581, 592 (9th Cir. 1979).

[3] In dealing with standing to assert

recreational interests, the Supreme Court in Sierra

Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1366,

31 L.Ed.2d 636 (1972) rejected the argument that only

economic interests could provide standing, pointing out

that "[aJesthetic and environmental well-being, like

economic well-being, are important ingredients of the

quality of life in our society ...." The plaintiffs allege

they use the land subject to patent for a multitude of

recreational purposes, including hunting, camping,

picnicking and photography. This injury is sufficiently

particularized; it is clear that the injury results from

the defendants’ action in removing the land from the

public domain; the injury will be redressed by the

enjoining of the defendants’ removal of the land from

the public domain. Thus, we conclude that the

plaintiffs have satisfied the constitutional

requirements of standing.

Plaintiffs have also satisfied our prudential

standing concerns. Plaintiffs’ claims are not merely

claims of generalized import, but seek to vindicate

individual rights. In Addition, plaintiffs are raising

their own legal interests, rather than the interests of

third parties. Gladstone, Realtors v. Village of

Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 1607-08, 60

L.Ed.2d 66 (1979).

Finally, we are satisfied that plaintiffs’ claim is

within the zone of interests to be protected by the

statute pursuant to which the claim arises. Id. at 100

n.6, 99 S.Ct. 1607-08 n.6, citing Association of Data

Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153, 90

S.Ct. 827, 830, 25 L.Ed.2d 184 (1969). In considering

whether that claim is within this zone of interests, we

look to both the statute and the regulations

promulgated under it. See B. Mezines, J. Stein & J.

Gruff, 5 Administrative Law § 50.03 at 50-29 & 30

(1981) (look to statute to determine purpose and class

to be protected); B. Schwartz, Administrative Law

§ 153 at 455 (1976). The regulations do not restrict the

nature of protests which may be filed but rather

provide that "any interested Party" may protest the

village certification. 43 C.F.R. § 2651.2(aX9). The Act

itself indicates that Congress was well aware of the

recreational interests of users of public land, and

specifically provided for retention of public access

easements in the lands selected by Native villages in

order to preserve and protect recreational interests in

the remaining federal lands. 43 U.S.C. § 1616(b). We

are thus persuaded that recreational interests are

within the zone protected by the statute and we reject

the defendants’ argument that the recreational claims

should have been dismissed for lack of standing.

[4] We now turn to the district court's original

determination that those plaintiffs (other than

Stratman and Burton) whose interests were never

more than recreational should have exhausted

administrative remedies. The plaintiffs argue against

imposition of such a requirement on the ground that

they did not have actual notice of the village's

application and thus could not have utilized

administrative remedies. There are, however, a vast

number of occasional users of this land and actual

notice to all would have been impossible. Notice was

provided by publication in the Federal Register and

several Alaska newspapers. The district court correctly

held that neither the government nor the village was

required to give actual notice to all potential

recreational users, and that the publication and other

notice requirements set forth in the regulations, 43

C.F.R. § 2651.2(a)(8), did not deny due process to those

whose only connection with the land was, at the time of

published notice, simply that of recreational users. See

Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306, 317, 70 S.Ct. 652, 658, 94 L.Ed. 865 (1950);

North Am. Pharmacal, Inc. v. HEW, 491 F.2d 546, 551-

52 (8th Cir. 1973); 44 U.S.C. § 1508. Thus, while those

with recreational interests have standing to challenge

the agency action in question, they may not be relieved

of the prerequisite of exhaustion of administrative

remedies by virtue of lack of actual notice.

[5] Stratman and Burton, however, were not

merely recreational users at the time of Woody Island's

application. They had record interests in land which

was subject to allotment and thus were potentially

affected by the village certification at the time of the

application. Given the ease with which such record

interests could have been ascertained, we agree with

the district court's original determination, 423 F. Supp.

at 547, that Stratman and Burton were entitled to

actual notice of the proposed certification. Schroeder v.

City of New York, 371 U.S. 208, 212-13, 83 S.Ct. 279,

282, 9 L.Ed.2d 255 (1962); Walker v. City of Hutchison,

352 U.S. 112, 116, 77 S.Ct. 200, 202, 1 L.Ed.2d 178

(1956); Mullane v. Central Hanover Bank & Trust Co.,

supra, 339 U.S. at 314, 70 S.Ct. at 657. Since they did

not receive such notice, they should not be barred by

exhaustion requirements.4 Wills v. United States, 384

F.2d 943 (9th Cir. 1967), cert. denied, 392 U.S. 908, 88

S.Ct. 2052, 20 L.Ed.2d 1366 (1968).

The difficult remaining question is the effect to

be given Leisnoi's subsequent disclaimer of any interest

in the property encompassed by Stratman's and

Burton's leases. Had such a disclaimer occurred prior

to the application for certification, their interests

probably would not have differed form those of any

recreational user. However, the disclaimer did not

occur until after the administrative proceedings had

concluded and hence after the opportunity to

participate in the original determination had been lost.

Since the administrative proceedings were not limited

to the consideration of economic interests, a strong

argument can be made that parties like Stratman and

Burton, who were originally entitled to notice of the

application and an opportunity to participate in the

administrative hearings, and who were not given such

notice, should be permitted to air all of their

grievances, not merely economic grievances, in a

judicial forum.

the allotment of land to the Native village shall be subject to any valid

10a

(6, 7] Application of the doctrine of exhaustion

of administrative remedies to the Stratman-Burton

claims requires a balancing of factors, however.

Judicially developed exhaustion requirements, which

are necessarily susceptible to judicial refinement and

modification, must be tailored to fit the peculiarities of

an administrative system and the particular facts of

each case. Montgomery v. Rumsfeld, 572 F.2d 250, 253

(9th Cir. 1978). A balancing analysis considers "both

the interests of the agency in applying its expertise,

correcting its own errors, making a proper record,

enjoying appropriate independence of decision and

maintaining an administrative process free from

deliberate flouting, and the interests of private parties

in finding adequate redress for their grievances.” Id.

See also McKart v. United States, 395 U.S. 185, 194-95,

89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969); SEC v.

G. C. George Sec., Inc., 637 F.2d 685, 688 n.4 (9th Cir.

1981). In this case, Stratman and Burton, who were

originally entitled to notice and an opportunity to

participate in the administrative proceedings, did not

deliberately flout or seek a premature interruption of

the administrative process. Contrast McGee v. United

States, 402 U.S. 479, 488, 91 S.Ct. 1565, 1571, 29

L.Ed.2d 47 (1971) (deliberately side-stepped

administrative proceedings); Pattillo v. Schlesinger,

625 F.2d 262, 266 (9th Cir. 1980) (Complete relief

available through existing administrative procedures).

The agency, on the other hand, undoubtedly had an

interest and expertise in this basically factual dispute.

The district court, in finally disposing of this

case on jurisdictional grounds, did not consider

Stratman's and Burton's remaining recreational

interests and therefore did not weigh the various

alternatives which might be open to it in this regard.

The judicial requirement of exhaustion of

Bed

\ Senn EmeEn ne

lla

administrative remedies is not mechanically applied

and we believe the question should be considered

initially by the district court; we remand for such

consideration. Sec. v. G.C. George Sec., Inc., supra, 637

F.2d at 688 n.3; Montgomery v. Rumsfeld, supra, 572

F.2d at 254.

A remand is particularly appropriate here

because the government, after the judgment was

entered, represented to this Court that it intended to

conduct further administrative inquiries into the

qualifications of Woody Island. If such proceedings

have occurred, plaintiffs may well have been given

some opportunity to present administratively the

matters which they sought to litigate in a judicial

forum.5 Any pending or intervening administrative

action should be taken into account by the district court

in determining what, if any, further judicial

proceedings in connection with Stratman's and

Burton's claims are warranted.

Affirmed in part; reversed and remanded in part.

5 Although plaintiffs’ brief contains extensive discussion of

claimed irregularities in the application, neither this Court nor the

district court has considered the merits of their challenges. Defendants’

motion to strike that portion of plaintiffs’ brief is denied as moot.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 93-36006

FILED

December 5, 1994

Omar Stratman,

Plaintiff,

Bruce Babbitt, Secretary of the

Interior, Leisnoi Inc., Koniag, Inc.,

Defendants-Appellees.

MEMORANDUM*

Appeal from the United States District Court

for the District of Alaska

James A. von der Heydt, District Judge, Presiding

Argued and Submitted October 31, 1994

Seattle, Washington

This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit except as provided by

Ninth Circuit Rule 36-3.

13a

Before: WRIGHT, BEEZER and FERNANDEZ,

Circuit Judges

Omar Stratman appeals the district court's

denial of his motion to vacate a judgment of dismissal

that had been entered upon Stratman's motion,

brought in accordance with the terms of a settlement

agreement signed by Stratman and Koniag, Inc. The

dismissal was as to all defendants. Stratman also

appeals the court's decliration to alter that ruling after

granting his motion for reconsideration. We reverse.

We will not reverse a district court's refusal of

relief under Federal Rule of Civil Procedure 60(bX6) in

the absence of an abuse of discretion. United States v,

RG&B Contractors, Inc., 21 F.3d 952, 954 (9th Cir.

1994). Moreover, as we have said, "[rJelief under Rule

60(b)(6) is extraordinary, especially where the

judgment was rendered by consent." Washington v.

Penwell, 700 F.2d 570, 574 (9th Cir. 1983); see also Jeff

D. v. Andrus, 899 F.2d 753, 759 (9th Cir. 1989)

(resolution of litigation through settlement is favored).

Even so, when an agreement fails of its purpose in its

entirety, that does raise an extraordinary

circumstance. Cf, Keeling v. Sheet Metal Workers Int

Ass'n, Local Union 162, 937 F.2d 408, 410 (9th Cir.

1991) (where party repudiated a settlement, the

situation was extraordinary and setting aside dismissal

was proper). This is just such a case.

Here, there was, as it turned out, a basic defect

in the very inception and at the very core of the

settlement agreement upon which the dismissal of this

case was based. Unless Stratman made a deliberate

choice to accept the risk of that defect, his agreement

should not bind him and the dismissal of this action

‘.

l4a

should be set aside. When the district court failed to

set aside the dismissal it did, in this extraordinary

circumstance, abuse its discretion. Thus, we will first

refer to the effect that the defect had upon the

settlement agreement itself and will then discuss the

deliberate choice issue.

A. The Agreement

The interpretation of the settlement agreement

is subject to Alaska state law. Jeff D,, 899 F.2d at 759.

In Alaska, settlement agreements are interpreted

according to the general principles of contract law. See

» 718 P.2d 929, 937 (Alaska 1986).

Even a contract for a quitclaim deed can be rescinded if

the parties who negotiated for the deed were operating

under a material mutual mistake of fact.

445 P.2d 235,

237-38 (Alaska 1968). A material mutual mistake of

fact occurs when "there was a mistake of both parties

at the time of contracting as to a basic assumption on

which the contract was made; the mistake had a

material effect on the agreed exchange of performances,

and the party seeking relief did not bear the risk of the

mistake," j i 869 P.2d

1181, 1183 (Alaska 1994) (citation omitted).

It cannot be gainsaid that the first two

requirements are met. It is clear that the settlement

agreement negotiated by Koniag and Stratman

contemplated that the surface rights to the subject land

would be included, and that this was the contracting

parties’ intention. Koniag and Stratman believed at

the time they entered into the settlement agreement

that Leisnoi did not exist and that Koniag held all of

the former Leisnoi's interests. If, in practical effect,

Leisnoi did exist, both parties were operating under a

material mistake of fact that went to the heart of the

15a

contract they signed. Both parties believed that

Koniag had the authority to represent Leisnoi's

interest because Leisnoi was Koniag's predecessor.

Leisnoi's interests in the disputed lands were the

primary subject matter of the agreement; had the

parties known that at that time it was impossible for

them to negotiate a deal concerning those interests,

they almost certainly never would have entered into

the agreement.

The only remaining requirement is that

Stratman did not bear the risk of the mistake. For the

reasons discussed below, he did not. Accordingly, the

settlement agreement was not enforceable. It is in just

such extraordinary circumstances that Rule 60(b)(6)

relief is warranted. See In re Pacific Far FE. Lines Inc,

889 F.2d 242, 248, 250 (9th Cir. 1989); see also Keeling,

937 F.2d at 410.

The result we reach is not foreclosed by issue

preclusion because the Alaska Supreme Court did not

consider whether the settlement agreement was

invalid. It merely held that on account of the doctrine

of lis pendens, the agreement was not binding on

Leisnoi. See Leisnoi, Inc, v. Stratman, 835 P.2d 1202,

1208-10 (Alaska 1992). The Alaska Supreme Court

had no occasion to consider whether frustration of the

settlement agreement warranted reopening Stratman's

district court case.

B. Deliberate Choice

Rule 60(bX6) relief is not available to remedy

harm suffered as a result of a truly deliberate choice or

strategy on the part of the moving party. Ackermann

v. United States, 340 U.S. 193, 198, 71 S. Ct. 209, 211-

12, 95 L. Ed. 207 (1950); Plotkin v. Pacific Tel. & Tel.

Co. 688 F.2d 1291, 1293 (9th Cir. 1982).

PNR N GEE AZ EMRE NIE ER EERE OCT TR ORR

16a

In its 1982 settlement agreement with Stratman,

Koniag warranted that “it will pursue its best efforts to

achieve conveyance and patent of the lands, and that it

will take no action to prevent conveyance.” Stratman

could not have anticipated that Koniag would enter

into a settlement agreement in the demerger litigation

that would declare the merger “void ab initio." That

agreement jeopardized the surface-estate conveyance.

Despite the agreement it had negotiated with

Stratman, Koniag acquiesced in the use of the "void ab

initio" language at the request of the shareholder in the

demerger litigation. Thus, Koniag helped create the

very circumstance that frustrated the 1982 settlement

agreement.

It is not significant for the purposes of

“deliberate choice" analysis that Stratman agreed to

accept a quitclaim deed. The agreement clearly

contemplated that the surface estate was part of the

deal. Koniag's attorney insisted on the use of a

quitclaim deed because "he did not want Koniag to be

obligated to convey a greater interest in the land than

it received from the U.S. government.” The record does

not indicate that the attorney's concern stemmed from

any worry that Koniag might have only subsurface

rights to convey as a result of a demerger, but rather

from a concern that Leisnoi might not have taken all of

the necessary procedural steps to allow the United

States to perfect the conveyance, or that some other

procedural problems might arise. If the attorney did

have the former concern, nothing suggests that he

made it known to Stratman.

On balance, the district court abused its

discretion in finding that Stratman made a deliberate

choice to ignore the risk that Leisnoi one day might not

be bound to make the conveyance. Although the record

ee a

17a

shows that Stratman knew of the pending demerger

litigation, he could not have known that Koniag would

agree to declare the merger "void ab initio" and that

that would enable Leisnoi to claim the benefits but

eschew the burdens of the settlement agreement. As it

is, Leisnoi's position depends upon a much later

opinion of the Alaska Supreme Court. That, in turn,

elicited a vigorous dissent which asserted that the

court had greatly changed the law itself. See Leisnoi,

835 P.2d at 1211 (Moore, J. , dissenting). Thus, no

deliberate choice was made.

C. Indispensable Party

Assuming arguendo that Koniag is an

indispensable party to this action, its settlement

agreement with Stratman, which would apparently

require Koniag's dismissal as a defendant were this

case to proceed, does not affect the reopening of the

action under Federal Rule of Civil Procedure 19. Rule

19 dictates only that indispensable parties be joined in

an action. Koniag has been a defendant in this suit

since January 1977. Nothing prevents an

indispensable-party defendant, once joined, from

settling with the plaintiff.

By its very terms, Rule 19(b)'s considerations of

"equity and good conscience” as to whether an action

should go forward absent an indispensable party come

into play only "whenever joinder [is] not feasible.”

Here, joinder is not only feasible, it was accomplished

seventeen years ago.

D. Timeli f the Rule 60(bX6) Moti

A Rule 60(b\(6) motion must be brought "within

a reasonable time.” "What constitutes a reasonable

time ‘depends on the facts of each case.” Pacific Far

18a

East, 889 F.2d at 249 (citation omitted). The primary

considerations in determining whether a motion to

vacate a dismissal was brought within a reasonable

time are whether the moving party had good reason for

not acting sooner and whether the adverse party was

prejudiced by the delay. Jd. The district court, without

i sion, found that the motion to vacate the

i was timely made. We agree.

anew for breach of the agreement and may not, as here,

reopen the underlying litigation after dismissal."

Keeling, 937 F.2d at 410.

litigation that might later prove unnecessary -- or even,

depending on its outcome, incompatible with the relief

he sought in the specific performance action.2

Leisnoi and the Secretary claim that there will

be prejudice to Leisnoi’s shareholders if the dismissal is

. At oral argument appellees conceded that the seven and

a half months between the decision in Leianai and the bringing of the

Rule 60(bX6) motion was not an unreasonable delay.

19a

Conclusion

After Stratman brought this action against

appellees, the attorney defending it believed that

Stratman had an excellent (90%) chance of success.

Stratman, however, did what we encourage parties to

do: he settled the action with the only entity that could

then negotiate a settlement with him -- Koniag. Now

Leisnoi seeks to secure a Panglossian result for itself.

In its best of all possible worlds everything will be for

the best as far as it is concerned. Stratman will be held

to his agreement with Koniag, but Leisnoi will have no

obligations. We understand the desire, but the law

does not allow for its gratification.

A material mutual mistake of fact existed at the

time Stratman and Koniag negotiated the 1982

settlement agreement. Rule 60(b)(6) relief is

warranted when there has been compiete frustration of

a settlement agreement, and the district court abused

its discretion in declining to reopen Stratman's action

under these extraordinary circumstances. We

therefore reverse the district court's order denying

Stratman's motion for Rule 60(b)\(6) relief and remand

to the district court with instructions that it vacate the

judgment of dismissal and reopen Stratman's

decertification litigation.§

REVERSED AND REMANDED.

6 We deny the Secretary's motion to strike the reply brief

or parts thereof.

20a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

Civil No. A76-132

FILED

December 7, 1976

The KODIAK-ALEUTIAN CHAPTER OF

the ALASKA CONSERVATION

SOCIETY et al., Plaintiffs

Thomas S. KLEPPE, Secretary of the

Interior, Defendant.

[423 F.Supp. 544]

MEMORANDUM AND ORDER

VON DER HEYDT, Chief Judge.

THIS CAUSE comes before the court on

defendant's motion to dismiss. the case involves land

allotments pursuant to the Alaska Native Claims

Settlement Act, 43 U.S.C. § 1601 et seq. Certain

allotments were tentatively made to various village

corporations and a Regional Corporation. Plaintiffs

who hold varying interests in these lands seek to set

aside these allotments.

The motion is based on three grounds. The first

basis is that plaintiffs have failed to join an

indispensable party. Due to the nature of the relief

sought the court finds that Koniag, Inc. and the various

village corporations which have claims to this land are

21a

necessary parties. Fed.R.Civ.Pro. 19(a). Rather than

to dismiss the case, however, the court orders the

plaintiffs to file an amended complaint naming these

parties as defendants or pleading reasons why they are

not joined. Fed.R.Civ.Proc. 19(a), (c); English v.

ae Coast Line Rry, Co., 465 F.2d 43, 47-48 (5th

ir. 1972).

The second ground for dismissal is that the

complaint has failed particularly to allege the

circumstances constituting fraud. Fed.R.Civ.Proc. 9(b).

This contention is well taken to the extent that the

circumstances constituting fraud have not been

particularly alleged. Plaintiffs assert, however, that

the fraud alleged in the original complaint is mere

surplusage. In view of this fact, rather than dismissal,

the court will give the plaintiffs two options. If the

fraud allegation is mere surplusage the plaintiffs may

eliminate it from their amended complaint.

Fed.R.Civ.Proc. 12(f). If the allegation is essential

plaintiffs will comply with Rule 9(b) in their amended

complaint.

The final basis for the motion is failure of the

plaintiffs to exhaust their administrative remedies.

Plaintiffs initially objected that this ground was not

properly raised in a motion to dismiss. Although the

court disagrees with this assertion, see Van Horn v.

State Farm Mut. Auto Ins. Co., 283 F. Sup. 260 (E.D.

Mich. 1966), affd 6 Cir., 391 F.2d 910; 5 Wright &

Miller, Federal Practice and Procedure, § 1360, p. 101

(1975 pocket part), it is not necessary to pass upon the

issue. The motion to dismiss on this basis relied on

material outside of the pleadings and the court issued

an order stating that this was considered a motion for

summary judgment. Fed.R.Civ.Proc. 12(b). In

accordance with Rule 12(b) the parties were allowed

Ms.

. .

22a

additional time to present material pertinent to the

motion.

Oral argument was heard on the motion prior to

the court's order allowing additional briefing and

plaintiffs have requested additional arguments on the

exhaustion issue. This request is denied in order to

expedite the business of the court. Local Rule 5(CX(1).

In the supplemental memoranda the parties

concur in the assertion that no need existed to exhaust

administrative remedies with respect to two of the

three villages. This is because of the fact that these

parties’ interests were protected by others in the

administrative process and that plaintiffs informally

presented evidence at the administrative hearings.

The motion, therefore, if not withdrawn by the

defendant, is denied.

With respect to the third village (Woody Island),

plaintiffs do not maintain that they have exhausted

their administrative remedies. They admit that they

did not present evidence to the administrative bodies

passing upon the land claims as they were entitled to

do. See 43 CFR § 2651.2(9). If this were the sole point

of contention on this issue the motion would be well

taken as it is established that one cannot exhaust his

administrative remedies by default. Olinger v.

Partridge, 196 F.2d 986, 987 (9th Cir. 1952); Kuhn v.

Nat. Assoc. of Letter Carriers, 528 F.2d 767, 771 (8th

Cir. 1976).

In regard to the determination of eligibility of

the third village the plaintiffs mount various attacks.

Their central contention, however, is that their failure

to exhaust administrative remedies was due to

insufficient notice of the administrative hearing. The

notice requirements are set out in 43 CFR § 2651.2.

23a

sk 5. a Tt aS pg alate

The notice of the proposed action given to "interested

parties" other than the villages, the Regional

Corporations and the State of Alaska, is publication in

the Federal Register and one or more newspapers of

general circulation in Alaska. 43 CFR § 2651.2(8).

Protests are allowed by any interested party if received

within 30 days of publication in the Federal Register.

43 CFR § 2651.2(9).

The due process clause of the Fourteenth

Amendment requires "notice reasonably calculated

under the circumstances to apprise interested parties

of the pendency of the action and afford them an

opportunity to present their objections.” Schroeder v.

City of New York, 371 U.S. 208, 211, 83 S.Ct. 279, 282,

9 L.Ed.2d 255 (1962). In Schroeder, much like the

present case, notice of land condemnation that was

published in two county newspapers was held to be

constitutionally insufficient. An essential element of

the holding was that the name and address of the

person affected by the action was known or easily

ascertainable. In the present case two of the plaintiffs,

Stratman and Burton, were holders of federal grazing

leases on the land selected by the villages. As to these

two plaintiffs who held valuable property rights and

whose names and addresses were known or could easily

have been ascertained the notice provisions of the

regulations were legally insufficient under the due

process clause. Schroeder v. City of N.Y., supra; See

also 44 U.S.C. § 1508. It was, therefore, unnecessary

for them to exhaust their administrative remedies.

ee v. U.S., 407 F.2d 866, 869, 186 Ct.Cl. 752

1969).

The other plaintiffs, however, fall within a

different category. The Alaska Conservation Society

: through its members and the other individual plaintiffs

2 appear to be interested in the property only as

low

24a

occasional users. See Sierra Club v. Morton, 405 U.S.

727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). As to these

plaintiffs the publication in the Federal Register was

sufficient to comport with the due process as their

names and addresses were not known or readily

ascertainable. 44 U.S.C. § 1508; Bank of Commerce v.

Bd. of Governors of Fed. Res. System,, 513 F.2d 164,

166-67 (10th Cir. 1975). These plaintiffs have

defaulted on their obligation to exhaust administrative

remedies and are not precluded from bringing an action

relating to this third village. Olinger v. Partridge,

supra; Kuhn v. Nat. Assoc. of Letter Carriers, supra.

The additional challenge made to the regulation

which places the burden. of proof on the protesting

party, 43 CFR § 2651.2(9), has not been considered as

no party has yet suffered from its operation. The court

finds it doubtful that this regulation violates due

process but that issue is reserved for later

consideration.

Accordingly IT IS ORDERED:

1. THAT defendant's motion to dismiss is

partially granted and partially denied in conformity

with this opinion.

2. THAT plaintiffs file an amended

complaint in conformity with this opinion within 30

days of the date of this order.

25a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

No. A76-132 Civil

FILED

October 16, 1978

Omar Stratman, et al,

Plaintiffs,

CECIL D. ANDRUS, et al,

Defendants.

MEMORANDUM AND ORDER

THIS CAUSE comes before the court on non-

government defendants’ motion to dismiss. The motion

is based on the contention that subsequent actions by

the defendants have eliminated any controversy that

involves the rights of the plaintiffs.

The amended complaint filed on J anuary 5,

1977, challenged the eligibility of three native villages

to receive land under the Alaska Native Claims

Settlement Act, 43 U.S.C.A. § 1610(bX3)(Supp. 1978).

The complaint is based on grazing leases issued by the

United States on lands tentatively selected by the

village corporations. It is the contention of the

26a

plaintiffs that if patents are issued to these villages,

ae rights to the leases created under state law would be

) terminated (Paragraph VI). The plaintiffs also alleged

) that an interest in a slaughter-house facility selected

by defendant Leisnoi, Inc. (Woody Island) would be

terminated if the land were patented to the village

corporation (Paragraph VII).

This court previously held that plaintiffs

Stratman and Burton were not required to exhaust

administrative remedies because they had not received

adequate notice of the hearings held on the eligibility of

the village corporations at issue in this case. Kodiak-

Aleutian Chapter, Alaska Wildlife Federation v. Kleppe,

423 F. Supp. 544 (D. Alaska 1976). This court's

dismissed [sic] the other plaintiffs for failing to exhaust

administrative remedies after notice which was held

adequate considering the interest in the land which

those "occasional users” alleged.

Two of the villages, Anton Larson Bay and Bells

Flats, have not been certified by the Secretary as

eligible for land distributions. See Koniag, Inc. v.

Kleppe, 405 F. Supp. 1360 (D.D.C. 1975), affirmed in

part and reversed in part, Koniag, Inc. , the Village of

Uyak v. Andrus, No. 76-1325 (D.C. Cir., April 28, 1978).

Since any litigation over the eligibility of these villages

would be premature before a final determination by the

Secretary, the only controversy that could possibly

remain in existence in this case is between the village

corporation for Woody Island, Leisnoi, Inc., and

plaintiffs Stratman and Burton.

The exercise of judicial power under Article III of

the Constitution is not created by issues of public

interest but depends on the existence of a

constitutional “case or controversy.” A federal court

has neither the power to render advisory opinions nor

Fas]

Fe, wed

pee]

. .

27a

litigants in the case before them.” North Carolina v.

v. Newkirk, 422 U.S. 395 (1975); A.L. Mechling Barge

Lines v. United States, 368 U.S. 324 (1961).

The affidavit of Karl Armstrong, President and

Chairman of the Board of Leisnoi, Inc. indicates that

Leisnoi, Inc. has relinquished all claims to the land

to Kodiak Livestock Cooperative, Inc., by the Kodiak

i As the defendants have correctly pointed out these

leases are issued to Kodiak Cattle Company and Northland Ranches, Inc.

Exhibits B and C. Accordingly, the complaint to be in violation of

the real party in interest rules contained in Fed. R. Civ. P. 17(a).

2 As noted above the fact that the slaughter-house is

actually owned by Kodiak Livestock Cooperative, Inc. appears to place the

complaint in violation of Rule 17.

28a

their rights in existing state grazing leases and

otherwise threaten their future economic interests in

the area.

First, any injury to the generalized economic

interests alleged by Stratman and Burton in their

affidavits is much too speculative to create a case or

controversy under Article III. As the Court noted in

United States v. SCRAP, 412 U.S. 669, 688-89 (1973),

"pleading must be something more than an ingenious

academic exercise in the conceivable. A plaintiff must

allege that he has been or will in fact be preceptibly

harmed by the challenged agency action."

Second, neither this generalized economic harm

nor the injury to the state leases was alleged in the

complaint. The court disapproves of the effort to revive

a dead controversy by pointing to a new one that enters

the litigation for the first time at this late date.

Third, even if these state leases were relevant to

the present action, the Alaska Native Claims

Settlement Act, 43 U.S.C.A. § 1613(g) (Supp. 1978),

protects all valid existing rights and makes the lands

patented to the Natives subject to these sights. The

Act provides:

"Where prior to patent of any land or

minerals under this Act, a lease, contract,

permit, right-of-way, or easement (including a

lease issued under 6(g) of the Alaska Statehood

Act) has been issued .. . the patent shall

contain provisions making it subject to the

lease contract...

In Order No. 3016 (dated Dec. 14, 1977),

Secretary of Interior Andrus has adopted a

construction of this section which includes state leases.

29a

It is not necessary for the court to decide at this time

whether such a construction is correct, but until the

Secretary changes his policy, or a native corporation or

village challenges this policy, and does not respect such

state leases as valid existing rights, the plaintiffs will

not be injured by the transfer of these selections to

Leisnoi. Until such time as such injury can be alleged,

there is no case or controversy under Article III

between the plaintiffs Stratman and Burton and

Leisnoi that would allow this court to determine its

eligibility as a village or the validity of its land

selections. a,

The other contentions of the plaintiffs have no

merit and have been dealt with in this court's previous

memoranda.

Accordingly, IT IS ORDERED:

i, THAT non-governmental defendants’

motion to dismiss is granted, and the cause is

dismissed.

2. THAT the Clerk may prepare an

appropriate judgment form.

DATED at Anchorage, Alaska, this 16th day of

October, 1978.

/s/ James A. von der Heydt

James A. von der Heydt

United States District Judge

30a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

No. A76-132 Civil

FILED

March 15, 1979

Omar Stratman, Toni Burton

John Murray, Michael Devers,

James Schauff, and Brian Shafford,

Plaintiffs,

Vv.

CECIL D. ANDRUS, Secretary of the

Interior, ANTON LARSON, INC., BELLS

FLATS NATIVES, INC., LEISNOI, INC.,

and KONIAG, INC., REGIONAL

NATIVE CORPORATION,

Defendants.

ORDER

The motion of the federal defendant for an order

indicating if this Court will grant the federal

defendant's motion for relief from judgment having

come before this Court, and it appearing after

considering the issues that this Court will enter an

order granting federal defendant's motion for relief

from judgment if a remand of this action is ordered by

the Court of Appeals,

3la

IT IS ORDERED that federal defendant's motion

for an order indicating if this Court will grant federal

a motion for relief from judgment is hereby

granted,

and this Court hereby indicates that it will grant

federal defendant's motion for relief from judgment.

DATED this 15th day of March, 1979, at

Anchorage, Alaska.

Palle BRM atl AM wt eB eS Ae

/s/ James A. von der Heydt

Judge James A. von der Heydt

UNITED STATES DISTRICT JUDGE

re ee ER a a Se a EE a came” ae AR See Rs NE A SE ARTO at

32a

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

No. A76-132 Civil

FILED _

July 3, 1979

Omar Stratman, Toni Burton

John Murray, Michael Devers,

James Schauff, and Brian Shafford,

Plaintiffs,

Vv.

CECIL D. ANDRUS, Secretary of the

Interior, ANTON LARSON, INC., BELLS

FLATS NATIVES, INC., LEISNOI, INC.,

and KONIAG, INC., REGIONAL

NATIVE CORPORATION,

Defendants.

MEMORANDUM AND ORDER

THIS CAUSE comes before the court on remand

from the Ninth Circuit Court of Appeals for the purpose

of considering defendant's motion for relief from

judgment under Rule 60(b), Fed.R.Civ. P. In this cause

the plaintiffs, Burton and Stratman, challenge the

eligibility of the Native village of Woody Island to make

certain selections under the Alaska Native Claims

Settlement Act, (ANCSA), 43 U.S.C. § 1601-28 (1976).

In a previous memorandum and order of this

court it was held that plaintiffs Stratman and Burton,

who are holders of federal grazing leases on the land

selected by the village corporation, Leisnoi, Inc., were

not required to exhaust their remedies in previous

administrative proceedings to determine the eligibility

of the village of Woody Island. Kodiak-Aleutian

Chapter of the Alaska Conservation Society v. Kleppe,

423 F. Supp. 544 (D. Alaska 1976). That decision was

based on the rationale that the grazing leases held by

Stratman and Burton were "valuable property rights"

and therefore they had received inadequate notice of

the administrative proceeding that determined the

eligibility of the village of Woody Island and its

corporation, Leisnoi, Inc. 423 F. Supp. at 547.

In an unpublished memorandum and order of

October 16, 1978, this court held that the claims of

Stratman and Burton were moot because Leisnoi, Inc.

had relinquished all claims to the land involving the

federal grazing leases and a slaughter-house facility in

which the plaintiffs hold an interest. The court

accordingly granted the non-government defendants’

motion to dismiss and entered final judgment

dismissing the entire case as moot.

The government defendants in their motion for

relief from judgment request this court to vacate that

portion of the court's previous opinion that would allow

parties in the position of Stratman and Burton to

collaterally attack an administrative determination of

Native village eligibility. The government correctly

contends that the plaintiffs could allege no injury to

their property interest because the Alaska Native

Claims Settlement Act, 43 U.S.C. § 1613(g) protects all

valid existing rights and makes the land patented to

the Natives subject to those rights. The Act provides:

Where prior to patent of any land or minerals

under this Act, a lease, contract, permit, right-of-

way, or easement (including a lease issued under

6(g) of the Alaska Statehood Act) has been

issued ... the patent shall contain provisions

making it subject to the lease, contract...”

43 U.S.C. § 1613(g). This provision means that

whatever property interests were held by Stratman

and Burton, including the federal grazing leases, could

not be injured by Woody Island's eligibility and the

selection of land by its village corporation. Any patents

issued to the village corporation would have to protect

the property interests upon which the court had

previously based its decision on exhaustion of

administrative remedies.

Federal courts have neither the power to render

advisory opinions nor "to decide questions that cannot

affect the rights of litigants in the case before them."

North Carolina v. Rice, 404 U.S. 244, 246 (1971). In

view of the fact that Stratman and Burton could not

have been injured by the village selections and the

serious implications of allowing a collateral attack on

Native village eligibility under ANCSA, this court must

vacate that portion of the memorandum and order of

December 7, 1976, that allowed the plaintiffs to litigate

Woody Island's eligibility.

Accordingly IT IS ORDERED:

1. THAT defendant's motion for relief from

judgment is granted.

2. THAT portion of the court's memorandum

and order of December 7, 1976, denying defendants’

35a

motion to dismiss as to plaintiffs Stratman and Burton

is vacated.

3. The claims of Stratman and Burton are

dismissed.

4. The final judgment entered by this court

on October 16, 1978, is reinstated in conformity with

this memorandum.

DATED at Anchorage, Alaska, this second day of

July, 1979.

/s/ James A. von der Heydt

James A. von der Heydt

UNITED STATES DISTRICT JUDGE

36a

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

No. A76-132 Civil

FILED

August 18, 1993

mar Stratman, et al.

Plaintiff,

Bruce Babbitt, et al.

Defendants-Appellees.

MEMORANDUM AND ORDER

I. INTRODUCTION.

This cause comes before the court on motion to

vacate dismissal and reopen case, filed March 5, 1993

(Docket No. 117), by plaintiff Omar Stratman.

Defendants Koniag, Inc., Leisnoi, Inc., and Bruce

Babbitt, Secretary of the Interior, filed oppositions to

plaintiffs motion. The court heard oral argument on

August 12, 1993 at Anchorage. For the reasons

outlined below, plaintiff's motion is denied.

Il. BACKGROUND.

37a

Many years, pleadings, arguments and

agreements have transpired since the inception of this

case. The case chronology was fully laid out in

unabridged form by the Alaska Supreme Court in its

opinion in Leisnoi, Inc. v. Stratman, 835 P.2d 1202

(Alaska 1992). Other salient facets and subtle

interstices have been supplied by the parties in the

most recent pleadings. There appears to be little

disagreement among the parties regarding the

sequence of events leading up to the present motion. A

similar characteristic in each of the pleadings is the

differing interpretation of those events. Finding no

need to be repetitious, the court will rely on the

background information supplied by the parties as well

as the statement outlined in the Alaska Supreme

Court's decision.

III. DISCUSSION.

hb. ‘Mein tes Menai Siete 2

Reopening Case.

A court may, in the exercise of its discretion,

grant a motion for relief from judgment under Fed. R.

Civ. P. 60(b)(6). United States v, Sparks, 685 F.2d

1128, 1130 (9th Cir. 1982). Relief is granted under the

rule only i in extraordinary circumstances. Ackermann

v United States, USS. 193, y S. Ct. 209 (1950);

162, 937 F. 2d 408, 410 (Oth Cir. 1991). The rule does

not contemplate relief from alleged harm suffered as a

result of calculated, deliberate choices or strategies.

Ackermann, 340 U.S. at 198;

Plotkin vy. Pacific

Telephone and Telegraph Co,, 688 F.2d 1291, 1293 (9th

Cir. 1982).

B. Plaintiff's Moti

LPR IY EOE. ALT OE RIT Nay Sela PAF

MIRC SO 7

SA ORAS

1. Relief Under Fed. R. Civ. P.

60(bX6).

Plaintiff's final reply synthesizes his contentions

as to why, under Fed. R. Civ. P. 60(bX6), relief is

warranted. The three reasons advanced by plaintiff for

vacating the dismissal and reopening the case are (1)

because the settlement agreement was repudiated by

Leisnoi; (2) because the settlement agreement was

judicially determined to be invalid as to Leisnoi; and (3)

because Koniag had no authority to enter the

stipulated dismissal on Leisnoi's behalf. The court will

address these arguments in turn.

a. Leisnoi Repudiated the Settlement

Agreement.

At the time the settlement agreement was

signed, Leisnoi, Inc. had merged with Koniag, Inc.

Leisnoi, Inc. did not exist as a corporate entity. Leisnoi

on its own behalf. More importantly, while the

settlement negotiations were in progress, a Leisnoi

shareholder had filed a demerger action, seeking to set

aside the merger of Leisnoi with Koniag. Even more

significantly, plaintiff was aware that Leisnoi was

attempting to halt the settlement agreement. That

attempt was denied by the court and plaintiff

proceeded to sign the settlement agreement. By the

terms of the agreement, plaintiff was willing to accept

a quitclaim deed from Koniag, Inc. for whatever rights

to whatever property Koniag had to transfer to

plaintiff. Further, as part of the settlement agreement,

plaintiff agreed to dismiss the decertification action.

On balance, plaintiff's request for relief for the

above reason does weigh in favor of vacating the

39a

dismissal and reopening the case. Plaintiff argues that

Leisnoi was a party to the agreement because Leisnoi

would have been bound by the agreement but for the

subsequent demerger settlement agreement and the

Alaska Supreme Court's interpretation of the doctrine

of lis pendens. The Alaska Supreme Court held that

the merger of Koniag and Leisnoi was void gb initio.

Because the merger never occurred, Koniag could not

have signed on behalf of Lesinoi. Leisnoi was not a

signatory to plaintiffs settlement agreement with

Koniag. It is not possible to repudiate a document one

did not sign. Because Leisnoi did not sign the

settlement agreement, it is inaccurate to content that

Leisnoi repudiated the agreement.

b. Settlement Agreement Invalid.

Plaintiff also argues that the Alaska Supreme

Court determined that the settlement agreement was

unenforceable against Leisnoi. What the court did not

determine, continues plaintiff, was not that Leisnoi

was not a party to it, or that no agreement was in

existence. What the court did determine was that

Leisnoi could not be bound by the settlement

agreement because the merger was void gb initio.

Thus, plaintiff concludes, at the time the decertification

settlement agreement was signed, Leisnoi was clearly a

party to the agreement.

Plaintiff further argues that the issue before the

Alaska Supreme Court was whether the agreement

was specifically enforceable against Leisnoi. What the

court did not address was whether Leisnoi repudiated

— agreement within the meaning of Fed. R. Civ. P.

X6).

Assuming plaintiffs interpretation of the Alaska

Supreme Court decision correct, there was no need for

40a

the court to consider whether Leisnoi repudiated the

agreement. It would have made little sense for the

court, having determined the agreement was

unenforceable against Leisnoi, to decide whether

Leisnoi repudiated an agreement which could not be

enforced against it. Nor does it make further sense for

this court to decide whether Leisnoi repudiated an

agreement which has been judicially determined to be

unenforceable against it.

c. No Authority to Enter Stipulated

Dismissal.

Plaintiffs third argument for warranting Fed. R.

Civ.. P. 60(bX6) relief is that Koniag had no authority

to enter into a stipulated dismissal on Leisnoi's behalf.

Plaintiff submits that if Leisnoi was never bound by

the settlement agreement because Koniag had no

authority to enter it on Leisnoi's behalf, then Koniag,

likewise, would have no authority to stipulate to the

dismissal of Leisnoi.

appellant upon such terms as may be agreed upon by

the parties or fixed by the court." Plaintiff moved to

dismiss the case and agreed to terms of dismissal by

signing the settlement agreement. The rule relied

upon by plaintiff, Fed. R. Civ. P. 41(a)(1)(ii), is not

applicable.

2. Failure of Settlement Not a Deliberate

Choice.

Plaintiff submits that he did not make a

deliberate and conscious choice to enter a settlement

4la

agreement that was subject to invalidation. This

argument belies the fact that plaintiff was aware of the

attempt by the Leisnoi stockholders to prevent Koniag

and plaintiff from signing the agreement. In the state

court action, Judge Hunt found that plaintiff had

knowledge that if the demerger was granted, Leisnoi

would be reconstituted as a separate corporation and

its land selection rights would return to it. Nothing

was included in the settlement agreement to cover the

contingency of the demerger. It appears that plaintiff

appreciated the risks, was aware of the demerger

litigation, decided to use a quitclaim deed and proceed

to enter the settlement agreement.

3. Other Arguments.

There are several other counter arguments

which are raised by defendants in the oppositions filed

which plaintiff addresses in his reply. It is submitted

by defendants Leisnoi and Koniag that plaintiff's

motion is not timely. The court finds that under Fed.

R. Civ. P. 60(bX6) and the sequence of this litigation,

plaintiff brought the motion within a reasonable time.

Because the issue of intervening rights goes to the

issue of whether the motion was brought within a

reasonable period of time, the court does not reach the

issue of intervening rights.

Defendants argue that plaintiffs motion to

vacate dismissal and reopen case should not be granted

because plaintiff could not prevail on te merits of his

claim. Plaintiff counters that the standard posed by

defendants is only required on a motion to grant relief

from a default judgment, where default was

attributable to the movant's wrongful conduct.

Plaintiff contrasts this case, where he argues there was

a repudiation of the settlement agreement or the

unauthorized stipulation of dismissal which was

42a

attributable to defendant's wrongful conduct. The

court, however, decided above there was no repudiation

nor unauthorized stipulation of dismissal.

In light of the above discussion, the briefing

submitted by the parties and the arguments made

during oral argument, the court does not reach

plaintiffs contentions to defendants’ arguments why no

meritorious defense is made by plaintiff to reopen the

case. However, extraordinary circumstances do not

exist which would favor a reopening of this case.

IV. ORDER

Accordingly, IT IS ORDERED THAT plaintiff's

motion to vacate dismissal and reopen case is DENIED.

DATED at Anchorage, Alaska, this 17th day of

August, 1993.

/s/ James A. von der Heydt

United States District Judge

43a

APPENDIX H

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 93-36006

FILED

February 22, 1995

OMAR STRATMAN, et al.,

Plaintiffs-Appellants,

Vv.

BRUCE BABBITT, Secretary of the Interior, et al.,

Defendants-Appellees.

ORDER

Before: Wright, Beezer, and Fernandez, Circuit Judges

The panel has unanimously voted to deny the

petition of appellant, Leisnoi, Inc., for rehearing and

has unanimously voted to deny the petition of

appellant, Koniag, Inc., for reconsideration. The

suggestions for rehearing en banc, filed by Leisnoi, Inc.,

and Koniag, Inc., were circulated to the active judges of

the court, and no judge requested a vote for en banc

consideration.

44a

The petition for rehearing is DENIED, the

petition for reconsideration is DENIED, and the

suggestions for rehearing en banc are REJECTED.

45a

APPENDIX I

EPS ema

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 79-4480

FILED

November 27, 1981

OMAR STRATMAN, et al.,

Plaintiffs-Appellants,

Vv.

JAMES G. WATT, Secretary of the Interior, et al.,

Defendants-Appellees.

ORDER

Before: Wallace, Hug, and Schroeder, Circuit Judges

The Panel as constituted in the above case has

voted to deny the petition for rehearing.

46a

APPENDIX J

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

No. A76-132 Civil

OMAR STRATMAN, TONI BURTON, JOHN

MURRAY, MICHAEL DEVERS,

JAMES SCHAUFF, AND BRIAN SHAFFORD,

Plaintiffs,

Vv.

CECIL D. ANDRUS, SECRETARY OF THE

INTERIOR, ANTON LARSEN, IN C., BELLS FLATS

NATIVES, INC., LEISNOI, INC., AND KONIAG, INC.,

REGIONAL NATIVE CORPORATION :

Defendants.

MEMORANDUM IN SUPPORT OF FEDERAL

DEFENDANT'S

MOTION FOR RELIEF FROM JUDGMENT

Federal defendant, Cecil D. Andrus, Secretary of

the Interior, respectfully petitions the Court to clarify

the extent to which the Memorandum and Order

entered in the above-captioned case on October 16,

1978, modifies the earlier Memorandum and Order

filed on December 7, 1976, sub nom, Kodiak-Aleutian

Chapter of the Alaska Conservation Society v. Kleppe,

47a

423 F.Supp. 544 (D.Ak. 1976). Federal defendant seeks

relief from judgment in this case, pursuant to Civil

Rule 60(b), with respect to those determinations

presented in the Court's 1976 Memorandum and Order

which were superseded by the Court's subsequent

Memorandum and Order, filed in 1978.

In its 1976 Memorandum and Order, the Court

held, inter alia, that holders of federal grazing leases

on lands selected by an unlisted village under the

Alaska Native Claims Settlement Act (ANCSA), 43

U.S.C. §§ 1601 et seg., would be permitted to challenge

the administrative determination of the village's

eligibility without having exhausted their

administrative remedies. 423 F.Supp. at 527. Relying

on Schroeder v. City of New York, 371 U.S. 208, 211

(1962), the Court ruled that since the leaseholders

possessed "valuable property rights” with respect to the

selected land, and since the names and addresses of the

leaseholders were known or could have easily been

ascertained, notice by publication pursuant to 43 CFR

§ 2651.2 of an administrative contest procedure

relating to the government's determination of village

eligibility was constitutionally inadequate with respect

to the leaseholders. The Court distinguished the

process due the leaseholders from that due the other

plaintiffs, who, as members of a local conservation

organization, were only “occasional users” of the

selected land, and whose names and addresses were

not known or readily ascertainable. The latter

plaintiffs were held te have defaulted on their

obligation to pursue their administrative remedies, and

were dismissed. Id.

Thus, under the Court's 1976 Order, the eligibility of

unlisted villages throughout the State was subject to

collateral attack by third parties holding federal

grazing leases and, presumably, similar interests in

: |

nt ae a ONG ae. he A Fe OO ees & TE ee Le | OP ee eae ev ee a ae

Ne a tn Pe ere ee ee te

ee OE ES SM RES LIT PERI) AID NN iM OR EN) bebe CRRA

48a

lands subject to selection by the villages. This ruling

significantly affected the finality of administrative

eligibility determinations, the finality of which is

py te the effective and timely implementation of

The federal defendant respectfully submits that

the conclusions and rationale expressed by the Court in

its recent Order moots the Court's prior assumptions

and determinations regarding the nature of the

plaintiffs’ interests and their obligation to exhaust

available administrative remedies. Specifically, the

Court points out in its recent Memorandum and Order

that Section 14(g) of ANCSA, 43 U.S.C.. § 1613(g),

protects all valid existing rights in selected land,

making the lands patented to the Natives subject to

these rights. (Memorandum and Order, filed 10/16/78,

p.4). That section provides in pertinent part:

Where prior to patent of any land or

minerals under this Act, a lease, contract,

permit, right-of-way, or easement (including

a lease issued under 6(g) of the Alaska

Statehood Act) has been issued .. . the

patent shall contain provisions making it

subject to the lease contract ....

The Court referenced Section 14(g) in its Memorandum

and Order as a basis for its determination that

plaintiffs’ interests in state grazing leases would not be

injured by the transfer to the village corporation of

a Concern over the impact of the 1976 ruling is not

exclusive to federal defendant. Non-federal defendants filed a notice of

cross-appeal on the issue of notice addressed in that ruling on December

27, 1978. Because the government views the import of the Court's most

recent Order as having basically resolved the notice question, federal

defendant deemed it appropriate to move for relief from the Court's initial

Order in the interest of judicial economy.

49a

lands subject to such leases. Precisely the same

reasoning applies to the plaintiffs’ interests in federal

grazing leases. Those interests simply are not subject

to injury by the transfer of lands to the village

corporation because of the protective provisions of

ANCSA, notably Section 14(g).

Following its discussions of ANCSA's protection

of valid existing rights, the Court concluded:

Until such time as such an injury can be

alleged, there is no case or controversy under

Article ITI between the plaintiffs Stratman

and Burton and Leisnoi that would allow this

Court to determine its eligibility as a village

or the validity of its land selections.

(Memorandum and Order, filed 10/16/78, p. 4)

While the Court's holding implicity [sic] applies to

federal grazing leases as well as state grazing leases,

federal defendant seeks clarification of this point

because of the importance to it of preserving the

finality of village eligibility determinations, and the

need for protecting those determinations from

collateral attack by third parties whose interests are

not cognizably affected by said determinations.

Reading the Court's first Memorandum and

Order in light of its subsequent Order then, the

Government submits that plaintiffs are entirely

precluded from challenging the Leisnoi eligibility

determination because Section 14(g) of ANCSA resolves

any case or controversy with respect to plaintiffs’ rights

as leaseholders. To the extent plaintiffs possess what

would seen to be a sufficient property interest to

required Schroeder-type notice, that interest is

protected by Section 14(g) of ANCSA, which

extinguishes any case or controversy as to that interest

50a

or possible injury thereto. Interests of plaintiffs not

protected by Section 14(g) are necessarily mere

expectancies or perhaps hopes with respect to future

leasehold renewal. By their very nature the latter

interests are not legal contractual rights which are

binding upon the lessor, or they would be covered by

Section 14(g). Such interests are the same as, or akin

to, the generalized economic interests of plaintiffs,

which this Court has held are "much too speculative to

create a case or controversy under Article III."

(Memorandum and Order, filed 10/16/78, p.3)

Federal defendant submits that under the

Court's reasoning as set forth in its Memorandum and

Order of October 16, 1978, which takes into account the

statutory mechanism within ANCSA for resolving

conflicts between lessees of federal (or state) land and

native corporations which subsequently select the same

land, an Article III case or controversy has never

existed with respect to plaintiffs’ interests in the

selected land, and that therefore the Court's 1976

ruling with respect to notice is moot.

Moreover, under the rationale adopted by the

Court in its 1978 Order, the Schroeder case is no longer

relevant to this dispute. At the heart of the Court's

1978 Order, is its recognition of ANCSA's internal

mechanism for resolving conflicts between cognizable

interests in Alaskan land. The condemnation statute

which was the basis for the Schroeder action provides

no such internal mechanism for protecting cognizable

interests. The notice requirements of Schroeder may

be necessary to protect interests which might otherwise

be inadvertently extinguished because of the nature of

in rem actions, such as condemnation actions. That

policy is not applicable to the case at bar where

plaintiffs’ rights are automatically protected.

Accordingly, federal defendant moves this Court for

5la

relief from its 1976 ruling with respect to the notice

requirements applicable to plaintiffs.

The specific relief requested by federal defendant

is authorized by Civil Rule 60(b). It is not necessary to

determine precisely the clause under which relief if

proper as long as the Motion for relief under Rule 60(b)

is made within the appropriate time period. 7 Moore's

Federal Practice § 60.27[1], p. 346. In the instant case,

categorization of the relief sought would probably place

it within clause (6), the residual category. Relief

sought under that clause is subject only to a

"reasonable" time limitation. Although federal

defendant seeks relief from an order entered over two

years ago, the order did not become final until the

Court entered judgment October 16, 1978. Moreover,

the need for relief from the 1976 Order was not clear

until the Court issued its 1978 Memorandum and

Order. Federal defendant submits that its Motion is

timely under the circumstances, and that the foregoing

Memorandum sets forth adequate justification for the

relief sought. Clarification of the Court's 1976 opinion

in light of its 1978 Memorandum and Order will be of

great benefit to defendant Secretary of the Interior,

who is charged with the prompt administration of

| ANCSA. Accordingly, he respectfully requests that

such clarification issue.

| DATED this 30th day of January, 1979, at

Anchorage, Alaska.

Respectfully submitted,

ALEXANDER O. BRYNER

United States Attorney

/s/ CYNTHIA L. PICKERING

| Cynthia L. Pickering

Biel Bil elses tte INU MC te FRIES TAY, VOM Mowe ATE

ARGS 9A THT ROO AMPERES EAMES ERE AE fet

Resources Division

U.S. Department of Justice

53a

APPENDIX K

43 C.F.R. § 2650.7 (1994) Publication.

(d) For all land selections made under the Act,

in order to give actual notice of the decision of the

Bureau of Land Management proposing to convey

lands, the decision shall be served on all known parties

of record who claim to have a property interest or other

valid existing right in land affected by such decision,

the appropriate regional corporation, and any Federal

agency of record. In order to give constructive notice of

the decision to any unknown parties, or to known

parties who cannot be located after reasonable efforts

have been expended to locate, who claim a property

interest or other valid existing right in land affected by

the decision, notice of the decision shall be published

once in the FEDERAL REGISTER and, once a week,

for four (4) consecutive weeks, in one or more

newspapers of general circulation in the State of

Alaska nearest the locality where the land affected by

the decision is situated, if possible. Any decision or

notice actually served on parties or constructively

served on parties in accord with this subsection shall

state that any party claiming a property interest in

land affected by the decision may appeal the decision to

the Bureau of Land Appeals.

43 C.F.R. § 2651.2 (1994) Eligibility requirements.

(2) Findings of fact and notice of proposed

decision. After completion of the investigation and

examination of records and evidence with respect to the

eligibility of a village listed in sections 11(b)(1) and

16(a) of the Act for land benefits, the Director, Juneau

Area Office, Bureau of Indian Affairs, shall publish in

the FEDERAL REGISTER and in one or more

54a

newspapers of general circulation in Alaska his

proposed decision with respect to such eligibility and

shall mail a copy of the proposed decision to the

affected village, all villages located in the region in

which the affected village is located, all regional

corporations within the State of Alaska and the State

of Alaska. His proposed decision is subject to protest

by any interested party within 30 days of the

publication of the proposed decision in the FEDERAL

30-day period, such proposed decision shall become

final and shall be published in the FEDERAL

village, the Director, Juneau Area Office, Bureau of

Indian Affairs, shall issue a certificate as to the

eligibility of the village in question for land benefits

under the act, and certify the record and the decision to

the Secretary. Copies of the final decisions and

certificates of village eligibility shall be mailed to the

affected village, all villages located in the region in

which the affected village is located, all regional

———- within the State of Alaska, and the state

of Alaska.

(4) Action on protest. Upon receipt of a protest,

the Director, Juneau Area Office, Bureau of Indian

Affairs, shall examine and evaluate the protest and

supporting evidence required herein, together with his

record of findings of fact and proposed decision, and

shall render a decision on the eligibility of the Native

village that is the subject of the protest. Such decision

shall be rendered within 30 days from the receipt of the

protest and supporting evidence by the Director,

Juneau Area Office, Bureau of Indian Affairs. The

decision of the Director, Juneau Area Office, Bure» a of

Indian Affairs, shall be published in the FEDERAL

circulation in the State of Alaska and a copy of the

55a

decision and findings of fact upon which the decision is

based shall be mailed to the affected village, all villages

located in the region in which the affected village is

located, all regional corporations within the State of

Alaska, the State of Alaska, and any other party of

record. Such decision shall become final unless

appealed to the Secretary by a notice filed within 30

days of its publication in the FEDERAL REGISTER in

accordance with the regulations governing appeals set

out in 43 CFR part 4, subpart E.

(5) Action on appeals. Appeals shall be made to

the Board of Land Appeals in accordance with subpart

E of part 4 of this title. Decisions of the Board on

village eligibility appeals are not final until personally

approved by the Secretary.

(8) Action on application for eligibility. Upon

receipt of an application which appears to meet the

criteria for eligibility, th Director, Juneau Area Office,

Bureau of Indian Affairs, shall have a notice of the

filing of the application published in the FEDERAL

circulation in Alaska and shall promptly review the

statements contained in the application. He shall

investigate and examine available records and evidence

that may have a bearing on the character of the village

and its eligibility pursuant to this subpart 2651, and

thereafter make findings of fact as to the character of

the village. No later than December 19, 1973, the

Director, Juneau Area Office, Bureau of Indian Affairs,

shall make a determination as to the eligibility of the

village as a Native village for land benefits under the

act and shall issue a decision. He shall publish his

decision in the FEDERAL REGISTER and in one or

more newspapers of general circulation in Alaska and

shall mail a copy of the decision to the representative

or representatives of the village, all villages in the

56a

region in which the village is located, all regional

corporations, and the State of Alaska.

(9) Protest to eligibility determination. Any

interested party may protest a decision of the Director,

Juneau Area Office, Bureau of Indian Affairs,

regarding the eligibility of a Native village for land

benefits under the provisions of sections 11(b)(3XA) and

(B) of the Act by filing a notice of protest with the

Director, Juneau Area Office, Bureau of Indian Affairs,

within 30 days from the date of publication of the

decision in the FEDERAL REGISTER. A copy of the

protest must be mailed to the representative or

representatives of the village, all villages in the region

in which the village is located, all regional corporations

within Alaska, the State of Alaska, and any other

parties of record. If no protest is received within the

30-day period, the decision shall become final and the

Director, Juneau Area Office, Bureau of Indian Affairs,

shall certify the record and the decision to the

Secretary. No protest shall be considered which is not

accompanied by supporting evidence. Anyone

protesting a decision concerning the eligibility or

ineligibility of an unlisted Native village shall have the

burden of proof in establishing that the decision is

incorrect. Anyone appealing a decision concerning the

eligibility or ineligibility of an unlisted Native village

shall have the burden of proof in establishing that the

decision is incorrect.

(10) Action on protest appeal. Upon receipt of a

protest, the Director, Juneau Area Office, Bureau of

Indian Affairs, shall follow the procedure outlined in

paragraph (a)(4) of this section. If an appeal is taken

from a decision on eligibility, the provisions of

paragraph (a)(5) of this section shall apply.

57a

APPENDIX L

PUBLIC LAW 92-203 -- DEC. 18, 1971

JOINT FEDERAL-STATE LAND USE PLANNING

COMMISSION FOR ALASKA

Sec. 17. (bX1) The Planning Commission shall

identify public easements across lands selected by

Village Corporations and the Regional Corporations

and at periodic points along the courses of major

waterways which are reasonably necessary to

guarantee international treaty obligations, a full right

of public use and access for recreation, hunting,

transportation, utilities, docks, and such other public

uses as the Planning Commission determines to be

important.

(2) In identifying public easements the Planning

Commission shall consult with appropriate State and

Federal agencies, shall review proposed transportation

plans, and shall receive and review statements and

recommendations from interested organizations and

individuals on the need for and proposed location of

public easements: Provided, That any valid existing

right recognized by this Act shall continue to have

whatever right of access as is now provided for under

existing law and this subsection shall not operate in

any way to diminish or limit such right of access.

(3) Prior to granting any patent under this Act

to the Village Corporation and Regional Corporations,

the Secretary shall consult with the State and the

Planning Commission and shall reserve such public

easements as he determines are necessary.

PUB. L. NO. 92-208, 85 STAT. 688 (1971), codified

43 U.S.C. § 1601, et seq.

§ 1601. Congressional findings and declaration of

policy

Congress finds and declares that ~

(a) there is an immediate need for a fair and just

settlement of all claims by Natives and Native groups

of Alaska, based on aboriginal land claims;

(b) the settlement should be accomplished

rapidly, with certainty, in conformity with the real

economic and social needs of Natives, without

litigation, with maximum participation by Natives in

decisions affecting their rights and property, without

establishing any permanent racially defined

institutions, rights, privileges, or obligations, without

creating a reservation system or lengthy wardship or

trusteeship, and without adding to the categories of

property and institutions enjoying special tax

privileges or to the legislation establishing special

relationships between the United States Government

and the State of Alaska;

§ 1610. Withdrawal of public lands

(b) List of Native villages subject to chapter;

review; eligibility for benefits; expiration of

withdrawals for villages; alternative eligibility;

eligibility of unlisted villages

59a

(2) Within two and one-half years from

December 18, 1971, the Secretary shall review all of

the villages listed in subsection (b)(1) hereof, and a

village shall not be eligible for land benefits under

section 1613(a) and (b) of this title, and any withdrawal

for such village shall expire, if the Secretary

determines that --

(A) less than twenty-five Natives

were residents of the village on the 1970 census

enumeration date as shown by the census or other

evidence satisiactory to the Secretary, who shall make

findings of fact in each instance; or

(B) the village is of a modern and

urban character, and the majority of the residents are

non-Native.

Any Native group made ineligible by this subsection

shall be considered under section 1613(h) of this title.

(3) Native villages not listed in subsection

(bX1) hereof shall be eligible for land and benefits

under this chapter and lands shall be withdrawn

pursuant to this section if the Secretary within two and

rate years from December 18, 1971, determines

(A) twenty-five or more Natives

were residents of an established village on the 1970

census enumeration date as shown by the census or

other evidence satisfactory to the Secretary, who shall

make findings of fact in each instance; and

(B) the village is not a modern and

urban character, and a majority of the residents are

Natives.

§1611. Native land selections

(a) Acreage limitation; proximity of selections and size

of sections and units; waiver

(1) During a period of three years from

December 18, 1971, the Village Corporation for each

Native village identified pursuant to section 1610 of

this title shall select, in accordance with rules

established by the Secretary, all of the township or

townships in which any part of the village is located,

plus an area that will make the total selection equal to

the acreage to which the village is entitled under

section 1613 of this title. The selection shall be made

from lands withdrawn by section 1610(a) of this title:

Provided, That no Village Corporation may select more

than 69,120 acres from lands withdrawn by section

1610(aX2) of this title, and not more than 69,120 acres

from the National Wildlife Refuge System, and not

more than 69,120 acres in a National Forest: Provided

further, That when a Village Corporation selects the

surface estate to lands within the National Wildlife

Refuge System or Naval Petroleum Reserve Numbered

4, the Regional Corporation, for that region may select

the subsurface estate in an equal acreage from other

lands withdrawn in section 1610(a) of this title within

the region, if possible.

(2) Selections made under this subsection (a) of

this section shall be contiguous and in reasonably

compact tracts, except as separated by bodies of water

or by lands which are unavailable for selection, and

shall be in whole sections and, wherever feasible, in

units of not less than 1,280 acres:

§ 1613. Conveyance of lands

6la

(g) Valid existing rights preserved; saving provisions

in patents; patentee rights; administration;

proportionate rights of patentee

All conveyances made pursuant to this chapter

shall be subject to valid existing rights. Where, prior to

patent of any land or minerals under this chapter, a

lease, contract, permit, right-of-way, or easement

(including a lease issued under section 6(g) of the

Alaska Statehood Act) has been issued for the surface

or minerals covered under such patent, the patent shall

contain provisions making it subject to the lease,

contract, permit, right-of-way, or easement, and the

right of the lessee, contractee, permittee, or grantee to

the complete enjoyment of all rights, privileges, and

benefits thereby granted to him.

pala Sommer idole daadineied Cea ad MENTE BRC OTTER AEE OPS SOMME AES RNY EMM RIO EY 1 RMI LNB NC RU NPE VME TATE EHTEL MPI PEON TOSI OG PIES FRY ENON EMRE SRY TIES CSPI ORS BENET BH A

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.