Opposition Brief — Stratman v. Salazar (No. 08-863)

No. 08-863 | MAR 2 - 2093 |

Supreme Court of the GAnited States

OMAR STRATMAN,

Petitioner,

v.

KEN L. SALAZAR,

SECRETARY OF THE INTERIOR;

LEISNOI, INC.;

KONIAG, INC.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF KONIAG, INC. IN OPPOSITION

R. Collin Middleton, Esq. Brennan P. Cain, Esq.

Counsel of Record TIMME & CAIN, P.C.

R. COLLIN MIDDLETON, P.C. 421 West Ist Ave., #250

P. O. Box 113128 Anchorage, AK 99501

Anchorage, AK 99511 Phone: (907) 276-3390

Phone: (907) 222-0506 Fax: (907) 276-8238

Fax: (907) 279-7029

Counsel for Respondent Koniag, Inc.

—- i onieaneenneenel

LANTAGNE LEGAL PRINTING

8O! East Main Street Suite 100 Richmond, Virginta 23219 (800) 847-0477

i

QUESTION PRESENTED

Where Section 1427 of the Alaska National

Interest Lands Conservation Act (“ANILCA”)

specifically states that Leisnoi is a “deficiency village

corporation” entitled to land benefits under the

Alaska Native Claims Settlement Act (““ANCSA”),

were the unanimous court of appeals, the district

court, and the Secretary of Interior correct in

determining that ANILCA was plain_= and

unambiguous on its face and ratified that Leisnoi

was indeed an ANCSA village corporation entitled to

ANCSA benefits.

il

STATEMENT PURSUANT TO SUPREME

COURT RULE 29.6

Koniag, Inc. is a regional corporation validly

formed pursuant to the Alaska Native Claims

Settlement Act. It has no parent company, and no

publicly held company owns 10% or more of the

corporation’s stock.

iil

TABLE OF CONTENTS

Page

QUESTION PIR eeett BUOOe os cssvcccssccvccsssssccsvnceneves i

RULE 20.6 STAT RGIS 2 vccsessrcsescvessevscvgceesvesanes il

SARs OE AUT EIEs BRE sess doseeshsccccacvecsossvenses Vv

STATEMENT OF THE CASE............... cee eeeeeee 1

LIE aT IE Ue TE Sion ere ccisbussdsutachesecencniretewees 2

I. REASONS FOR DENYING

THE PETITION FOR CERTIORARI......... 9

II. MISSTATEMENTS OF FACT AND LAW

EDS HME EE WE a ribesisntaxesasexsetierssenensvies 12

Petitioner’s Assertion That

Leisnoi’s Lands May Be Returned

To The Public Domain Is

Demonstrably False.....................c00c008 12

Petitioner’s Allegations Of

Fraud Are Unconvincing ..................... 13

The Ninth Circuit’s Recent

Decision Has Little, If Any,

Impact On Kodiak’s Residents............ 16

1V

TABLE OF CONTENTS — Continued

Page

D. There Is Evidence That

The Status Of Petitioner’s Lawsuit

Was Disclosed To Congress

During Its Deliberations On

Section 1427 Of ANILCA...................... 16

II. THE CIRCUIT COURT’S UNANIMOUS

DECISION IS CORRECT......................08. 21

ie NOI 5 ck. cis vata ch docdvavecnentiacnessinhaphenrceleenes 25

Vv

TABLE OF AUTHORITIES

CASES Page

Amoco Production Co. v. Village of Gambell,

BOO TY BD. BOE CEG) onan cvicncccescseccens 6, 9, 22

Barnhart v. Sigmon Coal Co.,

ee Se, Oe ae aces snne cachiciveradvaoveneues 21

Chevron U.S.A. v. Natural Resources

Defense Council, Inc.,

SGT UB. GAT CERF) «..00. 2-2 i ccneeseecenas 6, 7,11

Connecticut National Bank v. Germain,

Be rs Se FD ccnndsstetce desedscacancnecaeos 24

Exxon Shipping Co. v. Baker,

BO Be MR. BO CII oncncsssncsiccscerdensaves 14

Graver Mfg. Co. v. Linde Co.,

og a 9 8G |) ee 21

Kodiak-Aleutian Chapter of the Alaska

Conservation Soc’y v. Kleppe,

423 F. Supp. 544 (D. Alaska 1976) ........ 14

Koniag, Inc., Village of Uyak v. Andrus,

580 F.2d 601 (D.C. Cir. 1978), cert.

denied, 439 U.S. 1052 (1978) ................... 4

vil

TABLE OF AUTHORITIES — Continued

Page

Lamie v. United States Trustee,

GAO TB. GE IOS) oncccccsccccscossees. 9, 22, 23

Leisnoi, Inc. v. Stratman,

835 P.2d 1202 (Alaska 1992)................. 15

Leisnot, Inc. v. Stratman,

154 F.3d 1062 (9th Cir. 1998)................ 15

Leisnoti, Inc. v. United States,

267 F.3d 1019

0 12,13, 15, 1S

Leisnol, Inc. v. United States,

313 F.3d 1181

(le |) ee . 12, 13, 15, 16

Robinson v. Shell Oil Co.,

519 U.S. 33/7, 117 S.Ct. 843,

kOe & § 26, yo 21

Teherpin v. Knight,

Ob Se 6

United States v. Alceska,

Bee Cae. BD CEE oe ci vnvecicevscccciicnns 8, 9. 22, 23

Vil

TABLE OF AUTHORITIES — Continued

Page

Washington State Department of Social

and Health Services v. Kefler, 537

NN ee ccppevinnesaanacs 5

STATUTES AND REGULATIONS

ee Fe OD iv vccoscdevsoncenwenaiecicasccsoves 10

Alaska National Interest Lands

Conservation Act (““ANILCA”),

Pub. L. No. 96-487

NS snc rednun ds inert cevarsadarsonta passim

a os wus ueke anon vanes 4

Alaska Native Claims Settlement Act

(“ANCSA”)

43 U.S.C. Section 1604(D).................0.e0s0 1

Se See Ia op adel ces guxdscatnsandonuactanucipteas 13

Vill

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

Amendments To The Alaska Native Claims

Settlement Act: Hearings Before The

Senate Comm. On Interior And

PN Se iiis svacscavenncdnvcosecdecksniatdavens 19, 20

Letter From Edward Weinberg To The

Honorable Morris Udall Of

Petruary ZS, TOTO o.oo cccccecscinsd lis 17-19

STATEMENT OF THE CASE

For over thirty years Petitioner,! who is a

cattle rancher on the Kodiak Island Archipelago?

(“Kodiak Island”) has sought to reverse the

determination that some three hundred of his fellow

Kodiak Island citizens because of their Alaska

Native ancestry were entitled to benefits under the

Alaska Native Claims Settlement Act (““ANCSA”). In

1974 those three hundred persons formed and were

certified as an ANCSA village corporation, Leisnoi,

Inc., by the then Secretary of the Interior. Despite

the protracted litigation ever since, Leisnoi remains

so certified today.*

1 Other Plaintiffs originally joined Petitioner, Omar

Stratman. Over the many years they have dropped out (see

Pet. App. A-10 and A-13) leaving only Mr. Stratman today

following his quest.

2 Among other islands contained in the archipelago

is Woody Jsland.

3 Koniag is the regional corporation for Kodiak

Island and is entitled under ANCSA to the subsurface estate

of those surface lands conveyed to Leisnoi. Pet. App. C-7.

The shareholders of Leisnoi are also shareholders of Koniag.

See 43 U.S.C. § 1604(b). The Leisnoi shareholders constitute

under 10% of Koniag’s shareholders, and the subsurface

estate of the Leisnoi lands holds a corresponding relationship.

Neither Petitioner nor anyone else has questioned Koniag’s

certification.

2

The factual and legal history of this matter is

extraordinarily detailed and exquisitely complex.

For instance, the unanimous decision of the circuit

court uses 10 of its 22 pages to describe the two

relevant statutes and the procedural history of

Petitioner’s claim. Pet. App. A-3 to A-13. The

Petitioner uses 21 pages of his 34 page petition to

discuss his Statement and Background. Pet. 2-22.

Similarly, the Interior Board of Land Appeals

(“IBLA”) devoted the first 21 pages of its decision to

facts and litigation history (Pet. App. D-4 to D-24),

while the Secretary of the Interior in overruling the

IBLA devoted seven. Pet. App. C-6 to C-13.

Further, far from all of the legal and factual

issues have been decided. As is discussed below, the

Secretary of the Interior concluded that the Alaska

National Interest Lands Conservation Act

(““ANILCA”) ratified Leisnoi’s ANCSA village

corporation status, thus mooting Mr. Stratman’s

claim. Pet. App. C-6. Consequeritly, the Secretary

noted, it was unnecessary “to review the factual

findings of the Administrative Law Judge that were

made 25 years after the original determination.” Jd.

And the district court, after affirming the Secretary’s

decision, dismissed as moot 12 other pending

motions and a counterclaim. Pet. App. B-18.

DECISIONS BELOW

The Secretary of the Interior, Dirk

Kempthorne, concluded that Section 1427 of

3

ANILCA ratified Leisnoi’s status as a Native village

corporation which was eligible to receive benefits

under ANCSA.4 Secretary Kempthorne observed

that. Congress enacted Section 1427 to address two

problems that had arisen in the implementation of

ANCSA in the Koniag region. Pet. App. C-17 to C-

18. First, there was a deficiency of land on Kodiak

Island to satisfy the land entitlements of Leisnoi and

the other village corporations in the region. Id.

Second, the former Secretary had determined in

1974 that seven of the villages in the Koniag region

were ineligible to receive benefits under ANCSA.) A

court had overturned the former Secretary’s

determination and had remanded the determination

to the Department of Interior for further

proceedings. Pet. App. C-18.

Secretary Kempthorne then reviewed the

language of Section 1427, finding that Leisnoi, along

with three other villages, was specifically named as

a “Koniag deficiency village corporation because

there was not enough land in its immediate vicinity

to satisfy its entitlement.” Pet. App. C-20. As a

“Koniag deficiency village corporation,” Leisnoi was

entitled to select deficiency acreage from other areas

that had been set aside. Jd. The Secretary also

————__-- -——————— ee

4 The Secretary also overruled the sole holding of the

IBLA that the IBLA lacked jurisdiction to hear Mr.

Stratman’s case. Pet. App. D-24; Pet. App. C-11.

phe

Leisnoi was not one of these seven villages.

4

found that Section 1427 designated Leisnoi as a

“Koniag 12(b) Village Corporation” entitled to

additional land under Section 12(b) of ANCSA. 7d.

Thus, Section 1427 specifically referred to Leisnoi

twice and both times stated it was entitled to land

benefits as an ANCSA village corporation.

The Secretary also noted that the time frames

for implementing Section 1427 were short. There

were only sixty days for Koniag to recognize Leisnoi

as a Koniag 12(b) village corporation. And, the lands

on Afognak Island that were to make up the

deficiency lands were to be conveyed “as soon as

practicable” to the named villages as part of a joint

venture that included Leisnoi. Jd. at 22.

The Secretary further observed that Section

1427 resolved the eligibility of the seven villages® by

deeming them “eligible as a matter of law for

ANCSA benefits in return for a release by them of all

of their claims under ANCSA and the conveyance to

them of a significantly smaller amount of acreage

than they would have been entitled to select under

ANCSA.’ Pet. App. C-18 to C-19.

6 All other village eligibility determinations in

question from the court of appeals decision in Koniag, Inc.,

Village of Uyak v. Andrus, 580 F.2d 601 (D.C. Cir. 1978),

cert. denied, 439 U.S. 1052 (1978) were also settled in

ANILCA §§ 1432(a) and (b) or had been previously settled.

Pet. App. A-7.

5

The Secretary concluded that “when read as a

whole, it is clear that Section 1427 was intended to

settle with finality and ‘as soon as practicable’ the

land entitlements of Koniag Regional Corporation

and its villages.” Jd. at C-26. Certainty about

Leisnoi’s status “was a necessary predicate to

achieving that finality.” Jd. The conveyances could

not occur if Leisnoi’s entitlement was subject to

further delay such as litigation. Jd. Consequently,

the Secretary denied Stratman’s preferred reading of

ANILCA, that it merely gave Leisnoi benefits if it

were later found to be eligible and that ANILCA

must be an impermissible repeal of ANCSA, stating:

Reading Section 1427 as a whole, and in

the absence of any clear evidence to the

contrary, I conclude that the language

in subsections (b)(1) and (a)(2) [set forth

above] is best read as ratifying the

Secretary’s eligibility determination

with respect to Leisnoi.

Pet. App. C-27.7

7 The Secretary also used the “cardinal canon of

statutory construction [that] a statute is to be read as a

whole,” quoting Washington State Department of Social and

Health Services v. Kefler, 537 U.S. 371 (2003) (Pet. App. C-

26) and recognized the canon that “remedial legislation

should be construed broadly to effectuate its purposes,”

quoting 7cherpin v. Knight, 389 U.S. 332 (1967) (id. at C-

27).

of Appeals.

Petitioner appealed to the United

District Court, and that court held:

The Court concludes’ that the

Secretary’s interpretation was not only

permissible, but persuasive’ [under

Chevron U.S.A. v. Natural Resources

Defense Council, Inc., 467 U.S. 837

(1984)j. Although the Court finds that

the Secretary’s interpretation must be

upheld under Chevron deference, the

Court notes that it would have come to

the same conclusion had it been

interpreting the statute in the first

instance, or under the _ persuasive

deference standard found in Skidmore.

Pet. App. B-16 to B-17.

States

Petitioner appealed to the Ninth Circuit Court

ANILCA’s primary purpose was to

complete the allocation of federal lands

in the State of Alaska, a process begun

with the Statehood Act in 1958 and

continued in 1971 in ANCSA.

{ANILCA] . . . also provided means to

That court unanimously affirmed. It

relied on the clear purpose of ANILCA found by this

Court in Amoco Production Co. v. Village of Gambell,

480 U.S. 531, 549-50 (1987):

7

facilitate and expedite the conveyance

of federal lands within the State to...

Alaska Natives under ANCSA.

Pet. App. A-21 to A-22. The unanimous court found

that since “Congress viewed § 1427 as a cleanup

measure in which it exercised its authority in order

to effectuate the purposes [of] ANCSA, irrespective

of determinations made by the Secretary,” (Pet. App.

A-23), there was neither need to rely upon a Chevron

deference analysis (id. at 23 n.4) nor analyze tix

legislative history (id. at 22). Rather, the words of

Section 1427(b) stated a clear Congressional

intention when Congress stated that “[iJn full

satisfaction of ... the right of each Koniag Deficiency

Village Corporation to conveyance under [ANCSA]}..

. the Secretary of Interior shall ... convey .. . the

public lands on Afognak Island.” Pet. App. A-16.

The court held:

Under the plain language of the

statute, then, Leisnoi is entitled, §

1427(aX(2), and has the wright, §

1427(b)(1), to public land under §14(a)

of ANCSA.

Pet. App. A-16. The language clearly, “inexorably”

leads to the conclusion that Leisnoi was treated by

8

Congress as an eligible village corporation under

ANCSA. Id. at 17.8

Finally, in denying Mr. _ Stratman’s

contentions that such a reading of ANILCA was an

implied repeal of ANCSA, the unanimous court

relied upon this Court’s ruling in United States v.

Alaska, 521 U.S. 1 (1997).

There the State of Alaska reasoned that the

Statehood Act should convey submerged lands to the

State because the President in 1923 was incorrect in

reserving them for the United States because the

Pickett Act did not allow him to do so. However, this

Court held that Congress in the Statehood Act

“ratified the terms of the 1923 Executive Order in

§11(b) of the Statehood Act.” Pet. App. A-25, citing

United States v. Alaska, 521 U.S. at 45. Because

Congress had the power to dispose of federal lands,

the circuit court applied the reasoning to Mr.

Stratman’s arguments. Congress in ANILCA was

8 The circuit court also rejected Mr. Stratman’s

argument that Section 1427(f) of ANILCA made the

conveyance conditional on Leisnoi’s eligibility. Jd. at 18.

Section 1427(f) provides that “[aJll conveyances made by

reason of this section shall be subject to the terms and

conditions of [ANCSA] as if such conveyances (including

patents) had been made or issued pursuant to that Act.” Jd.

The court concluded that Mr. Stratman’s argument ignored

the explicit language of Section 1427(f) which, by its own

terms was limited to “conveyances,” not eligibility

determinations. /d.

9

clearly aware of the Secretary’s_ eligibility

determination for Leisnoi since it named Leisnoi in

Section 1427.

As in Alaska, the subsequent action of

Congress makes the propriety of the

underlying decision irrelevant, even if

the underlying decision might have

transgressed the intent of Congress.

Pet. App. A-26.9 The circuit court concluded:

“InJearly thirty years have now passed since the

enactment of ANILCA and it is time to bring this

litigation to an end.” Jd. at 28.

I. REASONS FOR DENYING THE

PETITION FOR CERTIORARI

Supreme Coui. “ule 10 sets forth the general

criteria for granting a petition for a writ of certiorari.

Clearly, Petitioner does not and cannot argue either

Supreme Court Rule 10(b) or (c) applies. Nor, does

or can Petitioner claim anything in the decisions

below create a split among the circuits in need of

resolution by this Court. Rather, Petitioner lists

9 As argued in Section ITI below, Petitioner neither

discusses nor cites either United States v. Alaska or Amoco

Production Co. v. Village of Gambell, nor does he cite Lamie

v. United States Trustee, 540 U.S. 526 (2004) which also was

central to the circuit court’s analysis.

10

four reasons (Pet. 22)!© which he urges come within

Supreme Court Rule 10(a) that the circuit court “has

so far departed from the usual course of judicial

proceedings . .. as to call for an exercise of this

Court’s supervisory power.”

However, the circuit court did not so depart.

And, review should be denied because as shown

above, the decision of the Ninth Circuit was

unanimous,!! and it upheld and agreed with the

United States District Court which in turn agreed

with and upheld the Secretary of the Interior.}?

There is, thus, no judicial determination supportive

of Petitioner’s position. Both the district court and

the unanimous circuit court found the facts and

issues similarly. Simply put, and in keeping with

direct precedent by this Court, the actions of

Congress in ANILCA ratified the status of Leisnoi

and did not impliedly repeal ANCSA.

10 Mr. Stratman argues that the circuit court

invalidated an act of Congress and that the circuit court was

wrong. Pet. 22-23. Additionally, Mr. Stratman, a non-

Native, argues the circuit court decision is inconsistent with

Congressional dictates regarding Indian affairs and the

decision allows a “fraud on the United States.” Jd. at 30-31.

11 Petitioner elected to neither request

reconsideration nor en banc consideration.

12 Indeed Petitioner can point only to an IBLA

argument to the contrary. However, the holding of the IBLA

was that it lacked jurisdiction, Pet. app. D-23. In any case,

the Secretary of Interior’s decision is the final and only

decision of the Department of Interior. 43 C.F.R § 2651.2(a).

11

Of equal significance, a reversal of the

unanimous court of appeals decision will not end the

litigation. The court of appeals itself noted that its

decision made it unnecessary to review legislative

history!’ or the Chevron deference accorded the

Secretary’s decision by the district court. A reversal

of the circuit court decision would require analysis of

both issues, either by this Court or the circuit court.

A reversal! would also require that the district court

consider the twelve motions and the counterclaim it

dismissed as moot in light of its decision on

ratification and Chevron deference. And, the

Secretary of Interior would at last need to review the

multiple objections to the findings of the

administrative law judge “made 25 years after the

original decision.” Pet. App. C-6.

Finally, thirty-three years have _ indeed

passed. Section 1427 was passed in 1980; Leisnoi,

Koniag and the remaining village corporations in the

Koniag area received their interest in Afognak

Island. Indeed, the 12(b) and 12(c) lands were

conveyed long ago on the assumption that Leisnoi

13 Petitioner requests that this Court accept as true

that the legislative history clearly shows that Congress was

blissfully unaware of any problems with the Leisnoi

certification. Pet. 15. But that is at best a premature

assertion in light of the circuit court’s refusal to review the

“unhelpful legislative history.” Pet. App. A-28. And, as

argued below it is simply wrong.

12

was entitled to its benefits. All occurred more than

six years ago, and all are beyond recall by the United

States (Leisnot, Inc. v. United States, 267 F.3d 1019,

1022 n.2 (9th Cir. 2001) (“Leisnot IZ”)) and for

Leisnoi its title has been quieted. Leisnot, Inc. uv.

United States, 313 F.3d 1181, 1182 (9th Cir. 2002)

(“Leisnoi III”).

The only parties to be effected by this lawsuit,

and, indeed, effected to a relatively insubstantial

degree, are Mr. Stratman, the cattle rancher from

Kodiak who is the sole remaining complainant, and

his 300 neighbors who are the’ shareholders of

Leisnoi, Inc. And, of course, Koniag, which is

entitled to the subsurface estate of the land selected

by Leisnoi. There simply is no one else concerned,

and accordingly the petition fo~ certiorari should be

denied.

II. MISSTATEMENTS OF FACT AND LAW

IN THE PETITION

A. Petitioner’s Assertion That Leisnoi’s

Lands May Be Returned To The

Public Domain Is Demonstrably

False

Petitioner claims that review by this Court

will “restore to the public domain the lands that

Leisnoi wrongfully obtained.” Pet. at 33. But it

simply is not true that title to Leisnoi’s land may be

13

returned to the United States. The United States

has consistently acknowledged that its conveyances

of land to Leisnoi have been “incontestable since

1992, when the six-year statute of limitations period

elapsed on any possible suit to recover the land.” See

Leisroi IT, 267 F.3d at 1022 n.2; see also Leisnoi IIT,

313 F.3d at 1183 n.3. Indeed, the United States

formally disclaimed any interest in Leisnoi's lands,

and the district court then quieted title in Leisnoi in

2002. See Leisnoi III, 313 F.3d at 1182.

In affirming the district court’s decision which

quieted title in Leisnoi’s favor, the Ninth Circuit has

similarly determined that Leisnoi’s lands “could not

revert to the United States regardless of the outcome

of the decertification proceeding.” Leisnoi II, 267

F.3d at 1022 n.2.14 The time for seeking review of

that determination has long since passed. Thus,

Petitioner’s assertion that the land may be returned

to the public domain is demonstrably false.

B. Petitioner’s Allegations Of Fraud Are

Unconvincing

Petitioner’s argument at page 33 that review

by this Court “will prevent the commission of a fraud

14 Indeed, the IBLA, in the very decision cited

extensively in the Petition explained that 43 U.S.C. § 1166

"protects Leisnoi's title" from challenge by either the United

States or Mr. Stratman. Pet. App. D-23 to D-24.

14

on the United States” is unavailing for at least three

reasons. First, as noted recently by this Court,

“litigation is a winnowing process, and _ the

procedures for preserving or waiving issues are part

of the machinery by which courts narrow what

remains to be decided.” Exxon Shipping Co. v.

Baker, 128 S. Ct. 2605, 2618 n.6 (2008) (internal

quotations omitted). Here, in response to the district

court’s determination in 1976 that “the

circumstances constituting fraud have not been

particularly alleged,” (Kodiak-Aleutian Chapter of

the Alaska Conservation Soc’y v. Kleppe, 423 F.

Supp. 544, 546 (D. Alaska 1976)), Petitioner chose to

abandon his allegations of fraud when he filed his

amended complaint in 1977, over thirty years ago.

ER 194-97.15 Petitioner cites no authority (and we

are aware of none) for the proposition that this Court

should grant certiorari based on allegations which

the petitioner intentionally abandoned below, and

which neither the district court nor the court of

appeals addressed.

Second, Petitioner’s 1974 lawsuit put the

United States on notice of the alleged “fraud.”

Indeed, Petitioner’s argument at page 5 that

Koniag’s “scheme” to submit “fraudulent

applications” on behalf of eight “alleged villages”

“became a national scandal when it was investigated

15 ER refers to the Excerpts of Record filed with the

circuit court in this matter.

15

and reported in a series of articles by national

syndicated columnist Jack Anderson” provides

further proof of the United States’ notice of the

alleged but nonexistent fraud. But despite having

notice of the alleged fraud, the United States

government conveyed the lands in issue to Leisnoi

(and the subsurface to Koniag) in 1985. As

addressed by both the circuit court and the IBLA,

the six-year statute of limitations on_ these

conveyances expired by 1992, and, since that date,

the conveyances have been “incontestable,” even if

they were procured by fraud. See Leisnoi II, 267

F.3d at 1022 n.2; see also Leisnoi III, 313 F.3d at

1183 n.3.

Third, Petitioner has_ received financial

benefit as a direct consequence of the purported

“fraud” on the United States. Specifically, Petitioner

entered into a settlement agreement with Koniag in

1982, in which he agreed to _ dismiss_ the

decertification action against Leisnoi in return for

land from Koniag. Leisnoi, Inc. v. Stratman, 835

P.2d 1202, 1205-06 (Alaska 1992). In 1990,

pursuant to a second settlement agreement with

Koniag, Petitioner for no charge received all of the

sand and gravel to approximatel: 18,000 acres of

subsurface estate, which underlay the surface estate

conveyed to Leisnoi. To date Petitioner has not

returned this estate to the United States to whom he

insists it belongs. Instead, he has mined those lands

for gravel, as noted by the Ninth Circuit in Leisnoi,

Inc. v. Stratman, 154 F.3d 1062, 1065 (9th Cir.

16

1998). Certainly, if a “fraud” has been committed

against the United States, Petitioner has both been a

part of it and has reaped a benefit from it. Both are

inconsistent with his request that this Court reopen

this complex case in Petitioner’s hope to receive even

more.

C. The Ninth Circuit’s Recent Decision

Has Little, If Any, Impact On

Kodiak’s Residents

Petitioner argues that the Ninth Circuit’s

decision wil!) have a “significant impact” on the

residents of Kodiak because Leisnoi has apparently

reinstituted a policy which restricts access to its

lands. Pet. 32-33. A landowner’s decision to limit

the use of its lands, to which title is quicted, is not

the type ef controversy that merits the granting of a

petition for certiorari. In any event the circuit court

confirmed Leisnoi’s ownership of its lands in Leisnoi

II and Leisnoi Il]. This Court’s intervention was not

sought from either of those two decisions.

D. There Is Evidence That The Status

Of Petitioner’s Lawsuit Was

Disclosed To Congress During Its

Deliberations On Section 1427 Of

ANILCA

The Petitioner asserts that the “fact” that the

Secretary’s determination of Leisnoi’s eligibility was

being challenged in court during the deliberations on

17

ANILCA “was never disclosed [to Congress] by Mr.

Weinberg....”. Pet. 15. That assertion is simply

untrue.

As Petitioner well knows from the proceedings

before the district court, Mr. Weinberg, in a letter

dated February 23, 1979, to Representative Morris

K. Udall, Chairman of the House Committee on

Interior and Insular Affairs, discussed in great detail

the lawsuit challenging Leisnoi’s eligibility:

Almost two years” after Leisnoi’s

certification . . . some individuals in

Kodiak . . . filed a lawsuit against the

Secretary of the Interior in the Federal

District Court in Anchorage attacking

Leisnoi’s eligibility.

OK

As to Stratman and Burton, the Court

permitted the lawsuit to proceed

because of a claimed lack of personal

knowledge on their part that the

Department of the Interior had

scheduled an opportunity for protest

and hearing on Leisnoi’s application.

This assertion of lack of knowledge is

simply an unproven claim. We dispute

it and consider it incredulous in view of

the wide publicity given such matters in

18

Kodiak, where both resided, in 1973

and 1974... .16

EK

The lawsuit based on the amended

complaint was dismissed by the Federal

District Court in Anchorage on October

16, 1978, as moot (copy of opinion

attached)....

See Koniag’s Memorandum in Support of Motion to

Dismiss, filed on April 14, 2007, at Docket No. 145,

Exhibit 3, at 4-7. Courtesy copies of the letter, along

with copies of the district court’s decision, were

provided to the following Congressmen: John

Seiberling, Don Young, Henry Jackson, Ted Stevens,

Mike Gravel, and John Breaux. See id. at 21.

These were the legislators centrally concerned with

the passage of ANILCA, of which Section 1427 was a

part.

In that same letter, Mr. Weinberg specifically

“disclosed” that Mr. Stratman and Ms. Burton were

appealing the district court’s dismissal of the

lawsuit:

16 The IBLA similarly commented that it was

“certainly conceivable” that Petitioner had “actual

knowledge” of the eligibility proceedings “and failed to bring

any timely administrative challenge thereof.” Pet. App. D-

41 to D-42 n.15.

19

Stratman and Burton have filed a

notice of appeal with the Ninth Circuit

Court of Appeals ....

See id. at 8. Thus, Petitioner’s assertion that Mr.

Weinberg never disclosed the lawsuit to Congress is

demonstrably false.

Other record evidence indicates that Congress

was aware of the questions surrounding Leisnoi’s

eligibility during its deliberations on Section 1427.

For example, the Sierra Club testified at the first

hearings on what would become Section 1427, as

follows:

The Koniag amendment is ... premature

because of the uncertainty surrounding

the amount of subsurface estate Koniag

is entitled to. Its entitlemen: is based

in part on the certification by interior of

{[Leisnoi] ... as fan] eligible village[!

despite clear Congressional intent to

the contrary. [Leisnoi] is a former FAA

installation.... Accordingly, we

recommend the Committee defer

consideration of the Koniag

Amendment pending a Committee

investigation of the certification of

{[Leisnoi] and a final determination of

subsurface entitlement.

20

ER 430. Similarly, a letter submitted to Congress

from the President of the Kodiak-Aleutian Chapter

of the Alaska Conservation Society, stated the

Interior Department “should not have certified

Leisnoi” and requested that the “Interior Committee

direct a full and open investigation of the

circumstances of the improper certification” of

Leisnoi. ER 435.

Not surprisingly, the IBLA “presumeld]” that

Congress was aware that Mr. Stratman’s lawsuit

had been dismissed by the district court but was on

appeal when Section 1427 was enacted (Pet. App. D-

30), a presumption accepted by the Secretary of

Interior. (Pet. App. C-30), although the conclusion

reached by the IBLA was not.

In sum, the Congressional hearings, the

letters to Congress, Mr. Weinberg’s letter, and the

decisions by the IBLA and the Secretary of Interior

strongly suggest that Congress was aware of the

controversy surrounding Leisnoi’s eligibility, and the

pending lawsuit challenging Leisnoi’s eligibility,

during its deliberations on Section 1427.17

17 Of course, as discussed in Section III below, it is

ultimately irrelevant whether Congress was aware of Mr.

Stratman’s lawsuit. Even if Congress had a mistaken belief

about the status of Leisnoi’s eligibility, it is not this Court’s

province to correct Congress’ mistake.

21

This Court should not reconsider the issues,

which were decided similarly by both the district

court and the unanimous court of appeals. See

Graver Mfg. Co. v. Linde Co., 336 U.S. 271, 275

(1949) (the Court does not grant certiorari “for

correction of errors in fact finding,” especially where

there are “concurrent findings of fact by two courts

below”).

Hl, THE CIRCUIT COURT’S UNANIMOUS

DECISION IS CORRECT

This Court has ruled that the first step in

interpreting a statute “is to determine whether the

language at issue has a plain and unambiguous

meaning with regard to the particular dispute in the

case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340

(1997). The “inquiry ceases if the statutory language

is unambiguous and the _ statutory scheme is

coherent and consistent.” Barnhart v. Sigmon Coal

Co., Inc., 543 U.S. 438, 450 (2002) Ginternal citation

omitted).

The circuit court’s unanimous. decision

faithfully applied this Court’s precedent to Section

1427 and to ANILCA as a whole. Pet. App. A-15 to

A-23. And, like both the district court and the

Secretary of Interior, the circuit court correctly

determined that the plain language of Section 1427,

by specifically naming Leisnoi as an entity entitled

to land under ANCSA, mooted any controversy over

22

the Secretary’s 1974 decision finding Leisnoi eligible

for ANCSA benefits.

The circuit court also correctly determined

that the plain language of Section 1427 was

consistent with the primary purpose of ANILCA,

which, as noted by this Court, was to “complete” the

allocation of lands in Alaska:

ANILCA’s primary purpose was to

complete the allocation of federal lands

in the State of Alaska, a process begun

with the Statehood Act in 1958 and

continued in 1971 in ANCSA.

Amoco Production Co. v. Village of Gambell, 480 U.S.

531, 549-50 (1987); Pet. App. A-21 to A-22. The

circuit court concluded that the “desire to facilitate a

rapid land allocation supports the view that

Congress intended to include Leisnoi as an eligible

native village corporation, rather than leave its

status uncertain.” Pet. App. A-22. Mr. Stratman

does not discuss or even mention Amoco Production

Co. v. Village of Gambell in his Petition.

Perhaps even more astonishing is the absence

of any mention of this Court’s decisions in United

States v. Alaska, 521 U.S. 1 (1997), and Lamie uv.

United States Trustee, 540 U.S. 526 (2004).

Petitioner contends that the “primary error in the

Ninth Circuit’s analysis and interpretation of

Section 1427 was its failure to apply the canons of

23

statutory construction relating to repeals’ by

implications.” Pet. 23-24. United States v. Alaska

and Lamie v. United States Trustee are the two

decisions of this Court upon which the circuit court

relied in its analysis. Pet. App. A-28 n.5.

First, and perhaps’ most significantly,

applying this Court’s ruling in United States uv.

Alaska, 521 U.S. 1, 45 (1997), the Ninth Circuit

concluded that Congress, through Section 1427 of

ANILCA, “ratified” the Secretary of Interior’s

determination of Leisnoi’s eligibility in 1974. Pet.

App. A-24 to A-26.

Second, the circuit court concluded, citing

Lamie v. United States Trustee, 540 U.S. 526, 542

(2004), that even if Congress did not know about Mr.

Stratman’s lawsuit when it ratified the Secretary’s

decision, it was not the court’s province to correct

Congress’ mistake. Pet. App. A-27. It is remarkable

that the Petition fails to address either of these

decisions which were central to the circuit court’s

rejection of Mr. Stratman’s implied repeal argument.

See id. at A-28 n.5. It is especially remarkable in

light of Petitioner’s reliance for certiorari that the

circuit court “so far departed from the accepted and

usual course of judicial proceedings .. . as to call for

an exercise of our Court’s supervisory power.”

Supreme Court Rule 10(a).

Finally, Petitioner’s ideological application of

the canon of construction for implied repeals ignores

24

the pragmatic purposes of such canons. As this

Court has previously explained, “canons of

construction are no more than rules of thumb that

help courts determine the meaning of legislation.”

Connecticut National Bank v. Germain, 503 US.

249, 253 (1992). Moreover, in applying these rules of

thumb, this Court has instructed:

[A] court should always turn first to

one, cardinal canon before all others.

We have stated time and again that

courts must presume that a legislature

says in a statute what it means and

means in a statute what it says there.

When the words of a _ statute are

unambiguous, then, this first canon is

also the last: judicial inquiry is

complete.

Id. at 253-54 (internal citations and quotations

omitted). Applying this “cardinal” canon of

construction, the circuit court correctly determined

that the words of Section 1427 were “unambiguous”

and, therefore, “judicial inquiry is complete.”

25

CONCLUSION

For the reasons set forth above, the Petition

for a Writ of Certiorari should be denied.

Respectfully Submitted,

R. Collin Middleton, Esq.

Counsel of Record

R. Collin Middleton, P.C.

P.O. Box 113128

Anchorage, AK 99511

Phone: (907) 222-0506

Fax: (907) 279-7029

Counsel for Koniag, Inc.

March 2, 2009

Brennan P. Cain, Esq.

Timme & Cain, P.C.

421 West Ist Ave., #250

Anchorage, AK 99501

Phone: (907) 276-3390

Fax: (907) 276-8238

Co-Counsel for

Koniag, Inc.