[00:00:00] Speaker 00: Case number 13S5360, Akiechek Native Community at El, versus United States Department of the Interior, Ms. [00:00:09] Speaker 00: Sally Jewell, Secretary of the Interior, State of Alaska Appellant, Ms. [00:00:13] Speaker 00: Nelson for the Appellant, Ms. [00:00:15] Speaker 00: Peterson for APOLI-USDOI at El, and Ms. [00:00:18] Speaker 00: Kendall Miller for APOLI's Akiechek Native Community at El. [00:01:27] Speaker 01: May it please the court, I'm Anne Nelson and I represent the state of Alaska in this appeal. [00:01:33] Speaker 01: The district court's judgment in this case authorizes the secretary to administratively recreate the trust land system of Alaska Native land ownership that Congress specifically considered and ultimately and repeatedly rejected in unequivocal and comprehensive terms. [00:01:49] Speaker 01: The Alaska Native Claims Settlement Act, ANCSA, [00:01:52] Speaker 01: was groundbreaking legislation that replaced trust land and tribal regulatory. [00:01:57] Speaker 02: Miss Nelson, that's the merits, right? [00:01:59] Speaker 02: Yes. [00:02:00] Speaker 02: Court directed you to address the question of mootness in your brief. [00:02:05] Speaker 01: Yes. [00:02:05] Speaker 01: Did you? [00:02:07] Speaker 01: Address the issue of mootness in the brief? [00:02:09] Speaker 01: Yes, Your Honor, we did. [00:02:10] Speaker 02: In your blue brief, in your opening brief? [00:02:13] Speaker 01: The mootness motion to dismiss on the mootness grounds by the United States was not filed before the state filed its opening brief. [00:02:25] Speaker 01: The US filed the motion to dismiss for mootness after the state filed its opening brief and after they had adopted a final regulation that they assert trumps the district court's judgment on this issue. [00:02:40] Speaker 02: Well, why don't you start with mootness? [00:02:42] Speaker 01: As I stated, the United States asserts that the state's appeals moot because the challenged regulation no longer exists. [00:02:51] Speaker 01: As you know, a matter is moot when the court can provide no effective remedy because a party has already obtained the relief that it has sought. [00:02:58] Speaker 01: The state seeks appellate review of the district court judgment, which resolved the questions in this case as a matter of law, not as a matter of secretarial discretion. [00:03:07] Speaker 01: The state did plead for declaratory relief in the form of a judgment that ANCSA prohibits the creation of new trust land in Alaska. [00:03:14] Speaker 03: What is an intervening defendant plead for its own independent claim for relief? [00:03:19] Speaker 03: Wouldn't you have to file a counterclaim to do that? [00:03:23] Speaker 03: You didn't file a counterclaim. [00:03:25] Speaker 01: Well, Your Honor, the... Am I right? [00:03:27] Speaker 03: You didn't file any counterclaim? [00:03:29] Speaker 01: There was no counterclaim filed. [00:03:30] Speaker 03: All you had were defenses. [00:03:32] Speaker 03: Pardon? [00:03:32] Speaker 03: All you had were defenses because you were intervening as a defendant in litigation. [00:03:36] Speaker 01: That's true. [00:03:36] Speaker 03: So that's not an affirmative claim for relief that would keep a case alive. [00:03:41] Speaker 03: The legal question... There's nothing to defend against anymore. [00:03:45] Speaker 01: There is no counterclaim filed in this case. [00:03:48] Speaker 01: The legal question is still very much a live controversy between the parties, and the court does have the jurisdiction to settle those. [00:03:55] Speaker 02: But what is the law between which parties? [00:03:58] Speaker 02: Interior chose not to appeal and instead chose to change their regulation, right? [00:04:06] Speaker 02: Yes. [00:04:07] Speaker 02: So your dispute is with Interior, not the plaintiff in this case. [00:04:15] Speaker 01: The state was granted intervention as a matter of right, and that decision by the district court was not appealed. [00:04:22] Speaker 01: The district court found that the state had article three standing with the question I asked you. [00:04:28] Speaker 02: No words. [00:04:28] Speaker 02: What? [00:04:28] Speaker 02: What? [00:04:29] Speaker 02: Well, I just don't understand what relief we could grant in this case, given Judge Malik's question to you about the case is the case is measured. [00:04:38] Speaker 02: The issue before us is measured by the complaint, right? [00:04:43] Speaker 02: And the complaint challenged the Alaska exception. [00:04:46] Speaker 01: The complaint challenged the Alaska exception. [00:04:48] Speaker 02: And that's all the case is about. [00:04:50] Speaker 02: You defended the Alaska exception. [00:04:53] Speaker 02: District court invalidated. [00:04:55] Speaker 02: Interior chose not to appeal and changed the regulation. [00:04:58] Speaker 02: So isn't your dispute now with the Interior Department and its regulation? [00:05:03] Speaker 02: This case is over. [00:05:04] Speaker 01: No, Your Honor. [00:05:05] Speaker 01: The dispute here is with the district court's judgment that found that ANCSA did not prohibit the creation of new trust land in Alaska. [00:05:12] Speaker 03: But that judgment was adjudicating the legality of a regulation that no longer exists, a provision of regulation that no longer exists. [00:05:20] Speaker 01: The regulation still exists, Your Honor. [00:05:22] Speaker 01: The new regulation is exactly the same as the old regulation, minus the Alaska exception. [00:05:27] Speaker 02: If that's the case, why are we here? [00:05:28] Speaker 02: They can't be the same. [00:05:30] Speaker 02: It's minus the Alaska exception, right? [00:05:33] Speaker 02: That's what the case is all about. [00:05:34] Speaker 01: All it does, all the new regulation does, is implement the district court judgment, which was unnecessary because the district court had already severed and vacated the Alaska exception. [00:05:45] Speaker 03: That's not totally unnecessary. [00:05:46] Speaker 03: They did a new final agency action with a new reasoning. [00:05:49] Speaker 03: They said, we're not doing this because of what the district court said. [00:05:52] Speaker 03: We're doing this for our own reasoning. [00:05:54] Speaker 03: And so I get that you don't like the 2014 final agency action. [00:06:00] Speaker 03: And you may very well be able to file [00:06:02] Speaker 03: We certainly attempt to file an APA lawsuit challenging that 2014 final agency action, but it seems to me that's where your beef, to the extent you have one, is in the 2014 action, not with [00:06:16] Speaker 03: a regulation that doesn't exist anymore. [00:06:18] Speaker 03: The old one. [00:06:19] Speaker 03: Am I right in that? [00:06:20] Speaker 01: Well, respectfully, Your Honor, that line of reasoning, A, presumes that the Secretary has the discretion to trump statutory language, which is not true. [00:06:34] Speaker 01: Agencies only have the authority that [00:06:36] Speaker 01: Congress gives them. [00:06:38] Speaker 03: When we normally want to adjudicate the lawfulness of the 2014 action, because that's the only one that could have any relevant effect going forward, to have that agency record before us in case we think language is ambiguous and need to defer to the Secretary's interpretation? [00:06:55] Speaker 01: Well, the question is a pure statutory construction question that does not turn on the agency's interpretation. [00:07:02] Speaker 03: Well, I'll bet you they think differently. [00:07:04] Speaker 03: I'm sure they do. [00:07:05] Speaker 03: The issue is whether it's a Chevron 1 or Chevron step 2, and that issue is only going to be relevant to the 2014 regulations, which is not before us. [00:07:14] Speaker 02: Also, this is an Article 3 question we're raising. [00:07:16] Speaker 02: It's jurisdictional. [00:07:18] Speaker 02: The question of mootness is jurisdictional. [00:07:21] Speaker 01: I'm sorry, Your Honor. [00:07:22] Speaker 02: I said the question of mootness is jurisdictional. [00:07:24] Speaker 01: Yes, it is, Your Honor. [00:07:25] Speaker 02: And it may be that it might make sense to litigate that issue here for some reason, although I haven't seen in your brief why that is. [00:07:33] Speaker 02: But the point is this is a jurisdictional question. [00:07:36] Speaker 02: And the question really is, is this case constitutionally moot? [00:07:41] Speaker 01: This case is not constitutionally moot, Your Honor. [00:07:45] Speaker 01: The declaratory relief would declare the legal rights and relations of the parties, and irrespective of any regulatory action on the secretary, settle this matter. [00:07:57] Speaker 03: What claim for, okay, if you look through the tribe's complaint, [00:08:03] Speaker 03: which is where we look for the authority to issue declaratory relief. [00:08:07] Speaker 03: What claim in their complaint seeking declaratory relief is still alive? [00:08:13] Speaker 01: The tribes did not even mention ANCSA or did not bring forth ANCSA as part of their case, which is why the state intervened. [00:08:24] Speaker 03: I understand your point being that there's a legal ruling out there that we think [00:08:32] Speaker 03: may apply to 2014 as much as it did to the prior regulation and that's the harm, I take it that's the harm you have is you disagree with this legal ruling of the district court and it's reading of ANSA and the ability to take land and to trust under either version of this regulation. [00:08:49] Speaker 03: pre-2014 and post-2014. [00:08:50] Speaker 01: Yeah, absolutely. [00:08:51] Speaker 01: The state is harmed by that judgment of the district court. [00:08:54] Speaker 03: Isn't the normal course of action if a case has been mooted while you're appealing for the person who considers themselves harmed by the existence of that pending district court judgment to file a motion for Monsignor vacatur? [00:09:07] Speaker 03: Isn't that how you get relief as an appellant? [00:09:11] Speaker 01: The state did not do that. [00:09:12] Speaker 01: The state did obtain injunctive relief, which further demonstrates the harm to the state and the interest the state has. [00:09:24] Speaker 03: The state pending an appeal, is that the injunctive? [00:09:26] Speaker 01: Yes. [00:09:27] Speaker 01: Yeah, it enjoins the secretary from placing any land into trust pending this appeal. [00:09:31] Speaker 03: Pending the appeal, but you didn't seek Munciemore's vacatur of the district court decision. [00:09:36] Speaker 01: And we do raise this issue in the brief. [00:09:39] Speaker 03: In the fly brief. [00:09:41] Speaker 01: In the reply brief, and the U.S. [00:09:43] Speaker 02: also agrees that should the court find it lacks jurisdiction, that vacant towards the appropriate... Okay, but setting aside whether you filed a motion, suppose we concluded it's moved, and then it's moved because of the doctrine of voluntary secession, and vacant on our own. [00:10:01] Speaker 02: Doesn't that give you everything you want? [00:10:04] Speaker 02: You now have, you don't have a district court decision. [00:10:06] Speaker 02: It isn't binding anyway. [00:10:08] Speaker 02: But you don't have a district court decision out there. [00:10:10] Speaker 02: And next time the secretary takes Indian land into trust in Alaska, the state's free to challenge it under the regulation. [00:10:20] Speaker 02: Just explain to me why that's a problem for the state of Alaska. [00:10:24] Speaker 01: This litigation's nine and a half years. [00:10:27] Speaker 01: I know that. [00:10:27] Speaker 01: I got that. [00:10:30] Speaker 01: You've been here a long time. [00:10:30] Speaker 01: You've been here a long time. [00:10:31] Speaker 02: In terms of actually state policy, [00:10:35] Speaker 02: The state feels strongly about the Alaska exception. [00:10:39] Speaker 02: But until the Secretary invokes it again under the new regulation, what's the problem? [00:10:46] Speaker 01: The problem is, there are a few problems. [00:10:49] Speaker 01: One is the issue of judicial economy. [00:10:51] Speaker 01: This is a pure statutory construction question. [00:10:54] Speaker 01: Well, wait a minute. [00:10:56] Speaker 01: And it's been briefed. [00:10:57] Speaker 02: Judicial economy goes both ways here. [00:10:59] Speaker 02: I mean, sure, you could say we've got a case, and it takes a lot more judicial effort on our part to write an opinion on the merits than it does to dismiss it for mootness. [00:11:10] Speaker 02: Understood, Your Honor. [00:11:13] Speaker 02: So what else? [00:11:14] Speaker 04: Is your problem with the district court's decision here that it vacated the elastic exclusion, or is your problem actually that you think it misinterpreted the statute? [00:11:30] Speaker 01: The latter, Your Honor. [00:11:31] Speaker 01: The state's appeal is based on the [00:11:35] Speaker 01: district court's finding that ANCSA does not preclude the creation of new trust land in Alaska. [00:11:41] Speaker 01: The state's position is that the secretary's rulemaking activities are irrelevant given that the district court decided this question as a matter of law, not as a matter of discretion. [00:11:54] Speaker 01: The district court accorded no deference to the secretary. [00:11:59] Speaker 01: It's a pure legal question that [00:12:03] Speaker 01: you know, frankly in the state's view is very much still alive. [00:12:07] Speaker 01: The state still has the same harm, the same standing that, um, that the district court found when we were granted intervention as of as of right. [00:12:18] Speaker 04: And I understood your motion for intervention to be not only that you were concerned about the sovereignty implications of restoring this idea of trust land, but that you were also defending your interest as part of this settlement that ANCSA implemented. [00:12:42] Speaker 01: That's correct, Your Honor. [00:12:43] Speaker 01: The state forfeited valuable land selection priorities to which we were entitled under the Alaska Statehood Act. [00:12:51] Speaker 01: And the native corporations, the newly formed native corporations, were given the first pick of the withdrawn land. [00:12:58] Speaker 01: The state also contributed cash in the form of mineral revenue from public land that the state was entitled to under the Statehood Act that instead went into the native fund that [00:13:11] Speaker 04: So if this court decided the case was not moot and we disagreed with the decision of the district court, would that resolve your problem? [00:13:26] Speaker 01: Yes, a holding by this court that ANCSA is a comprehensive land claim settlement, that Congress has spoken unequivocally on the issue of whether trust land should be part of the native land ownership model in Alaska, and that ANCSA doesn't allow future trust land in the state, and the Secretary doesn't have discretion outside of Metlakatla to [00:13:52] Speaker 01: to put Placeland into trust, yes, that would provide the state complete relief. [00:13:57] Speaker 02: But you would get the precise same relief by challenging Interior's next invocation of this, next time it seeks to bring Indian land into trust in Alaska, right? [00:14:10] Speaker 02: Same thing. [00:14:10] Speaker 02: Well, potentially it wouldn't be any different, would it? [00:14:13] Speaker 02: In fact, it would be in the context of a real case. [00:14:14] Speaker 01: It would be in the context of a real case, but as I stated earlier, the context is irrelevant to the legal question of whether the Secretary even has the authority to consider trust land applications outside of Metlakatla in Alaska. [00:14:27] Speaker 03: I'm confused about that answer because your argument is clean statutory language. [00:14:31] Speaker 03: Yes. [00:14:31] Speaker 03: So the most we could do is say whether you win or lose under Chevron step one. [00:14:36] Speaker 03: But we wouldn't be able to say whether you win or lose. [00:14:39] Speaker 03: If we thought it wasn't controlled by Chevron step one, that the text wasn't clear, we wouldn't even be able to address Chevron step two in this case. [00:14:50] Speaker 03: Because we don't have the 2014 final agency action before us. [00:14:54] Speaker 03: And so you'd still have to go back and litigate that, wouldn't you? [00:14:59] Speaker 03: That record isn't before us. [00:15:00] Speaker 03: That action hasn't been challenged. [00:15:03] Speaker 03: So we can't really even [00:15:05] Speaker 03: implicitly answer that, unless you only can present half the issue you'd normally litigate. [00:15:12] Speaker 01: Your Honor, the state's position is that the court doesn't get past Chevron step one here. [00:15:20] Speaker 01: Congress's intent is clear and unambiguous. [00:15:23] Speaker 02: Unless you're now Judge Malletta's asking, suppose you're wrong about that. [00:15:27] Speaker 03: Are you conceding the regulations or not? [00:15:30] Speaker 03: You have no challenge to the regulations? [00:15:32] Speaker 03: If you win, are you conceding you can't win on Chevron step two? [00:15:36] Speaker 01: No, the state is not conceding that. [00:15:39] Speaker 01: No, the state is not conceding that. [00:15:40] Speaker 01: The state believes it would win on Chevron step two as well, because this is a statutory construction question. [00:15:48] Speaker 01: It does not have to do with the secretary's discretion. [00:15:51] Speaker 01: It does not have to do with her independent determination in the absence of the district court judgment. [00:15:58] Speaker 04: I have a different question. [00:15:59] Speaker 04: Is Chevron even at issue here? [00:16:03] Speaker 04: Chevron is usually something that we look at when the secretary or some administrative agency is interpreting its own statute, right? [00:16:17] Speaker 04: Its authorizing statute or some statute which gives it the authority to do some specific thing. [00:16:25] Speaker 04: But AXA is a settlement that does not belong to the Department of Interior, right? [00:16:32] Speaker 01: That's absolutely right, Your Honor, and yes, that's absolutely right. [00:16:40] Speaker 01: Chevron, to the extent the other judges might want to put this case in the Chevron context and my statement that you don't get past Chevron step one, [00:16:51] Speaker 01: more recent Supreme Court jurisprudence on statutory construction dealing with agency authority has modified that step one to say that the words that are at issue need to be viewed in the context of the statutory scheme and that the reviewing court needs to look at subsequent legislation to determine [00:17:12] Speaker 02: No, but Judge Brown was asking a very different question, which is intriguing, which is, is Chevron invoked in this statute at all? [00:17:22] Speaker 02: That was her question. [00:17:24] Speaker 02: That issue was not briefed. [00:17:26] Speaker 02: Yes, I realize that. [00:17:27] Speaker 02: But it's an interesting question. [00:17:28] Speaker 01: The state loves that question. [00:17:30] Speaker 01: And clearly, as a practical matter, there's little difference between Judge Brown's question and the state's argument that [00:17:42] Speaker 01: Congress has clearly spoken and left the Secretary no discretion. [00:17:47] Speaker 01: So this is not an instance where the Congress has delegated a program to the Secretary to implement. [00:17:55] Speaker 01: This is where Congress has declared, this is what the law is regarding the need of land ownership in Alaska. [00:18:00] Speaker 03: Are there cases holding that there's no interpretive discretion under ANSA? [00:18:04] Speaker 01: I'm sorry, Your Honor. [00:18:05] Speaker 03: Are there any cases holding that the Interior has no administrative or interpretive authority under ANSA? [00:18:14] Speaker 01: I am not aware of cases that hold that. [00:18:17] Speaker 01: The Ninth Circuit in the US versus Atlantic Richfield case, which is cited in our brief, does talk about the Indian canon of construction when it comes to interpreting ANCSA and is held that the doctrine applies with less force because it's based on the idea that [00:18:38] Speaker 01: the Alaska Natives would have been in a disadvantaged position with respect to negotiating the legislation. [00:18:46] Speaker 01: And as the Ninth Circuit points out, they, as part of the settlement, had top-notch representation. [00:18:53] Speaker 01: It was a three-year process, at least, in the making to reach that settlement. [00:19:01] Speaker 03: And what happens to under Chevron when the argument in the case is that one statute has displaced, let's even assume they don't have or only have limited Chevron, limited or no Chevron authority under ANSA, but they certainly do under the Indian Organization Act. [00:19:17] Speaker 03: And so the statutory question is whether ANSA implicitly repealed or modified in your language. [00:19:25] Speaker 03: the IRA. [00:19:28] Speaker 03: How does Chevron come in there when you've got two statutes competing for them, certainly one of which they have interpretive authority in here? [00:19:35] Speaker 01: ANCSA relieves the secretary of having to make that determination. [00:19:39] Speaker 01: It has a savings clause that explicitly states that to the extent that ANCSA conflicts with any other generally applicable statute, ANCSA takes precedence. [00:19:51] Speaker 03: And if other circuits have ruled that there is Chevron deference available, the Ninth Circuit has said that they do get Chevron deference under ANSA. [00:20:00] Speaker 02: OK. [00:20:00] Speaker 02: Anything else? [00:20:02] Speaker 01: Did you have one more thing you wanted to say? [00:20:04] Speaker 01: I don't. [00:20:04] Speaker 01: I wanted to answer the judge's question, though, and I'm not sure I heard the end of it. [00:20:08] Speaker 01: Go ahead. [00:20:09] Speaker 03: My understanding is the Ninth Circuit has held that Interior does get Chevron deference under ANSA. [00:20:14] Speaker 01: I'll leave the tribes to answer to that question. [00:20:33] Speaker 06: May it please the court, I'm Elizabeth Ann Peterson from the Department of Justice representing the Department of the Interior this morning. [00:20:41] Speaker 06: This appeal is moot. [00:20:42] Speaker 06: The subject of this case was the validity of the Alaska exception and the district court's decision has been, no longer has any effect because the agency, through notice and comment rulemaking, has removed the Alaska exception. [00:20:58] Speaker 06: So any reversal by this court would have no effect. [00:21:04] Speaker 06: Even if this case were not moot, Alaska does not have a substantial stake in this litigation because the imminence of any harm to Alaska is far too attenuated under the secretary's authority to take landing to trust. [00:21:29] Speaker 06: Alaska's alleged harm is to sovereign interests that may or may not ever be affected. [00:21:35] Speaker 06: And at this time, the secretary has taken no land into trust in Alaska. [00:21:39] Speaker 03: So did that argument, your standing argument, does that mean they wouldn't even have standing to challenge your 2014 final agency action? [00:21:49] Speaker 06: Your Honor, I think there would be a very substantial question whether they would have standing to make a facial challenge to the withdrawal of the Alaska exception. [00:21:58] Speaker 06: They have not attempted to do so. [00:22:00] Speaker 03: They don't meet the substantial risk standard of standing? [00:22:02] Speaker 06: Your Honor, I believe the correct standard here would be that [00:22:13] Speaker 06: certainly impending harm standard. [00:22:16] Speaker 02: Are you saying that if Alaska, I'm sorry, if Interior next year decides under the new regulations to take Indian land into trust that Alaska would not have standing to challenge that and argue that the regulation is unlawful? [00:22:34] Speaker 06: No, Your Honor. [00:22:34] Speaker 06: They could certainly argue that the regulation is unlawful in the event that the Secretary were to implement the authority. [00:22:40] Speaker 06: Right. [00:22:41] Speaker 06: I'm just discussing the appropriateness of a facial challenge to the [00:22:47] Speaker 06: action to withdraw the Alaska exception, which occurred in 2014. [00:22:53] Speaker 03: They had a regulation that gave them immunity from trust applications. [00:23:00] Speaker 03: And that immunity has now been withdrawn. [00:23:04] Speaker 03: You both fight about right there wrongly, but that's now gone. [00:23:07] Speaker 03: So now they are at risk in a way that they weren't legally before. [00:23:13] Speaker 06: Why was that not an injury? [00:23:15] Speaker 06: Potentially, Your Honor, that case is not before this court. [00:23:17] Speaker 06: They haven't challenged our rule. [00:23:19] Speaker 06: You asked me whether they would have standing. [00:23:21] Speaker 06: My answer is I'm not sure. [00:23:24] Speaker 03: It just seems to me the argument you are making about standing, not movement, but about standing, as to why they wouldn't have standing until you actually take land into trust, would apply as equally to an argument or challenge to the 2014 agency action. [00:23:38] Speaker 03: So that's why I was confused as to... [00:23:40] Speaker 03: That's to why they would have to wait if they wanted to challenge the 2014 final agency action. [00:23:46] Speaker 06: Our belief is that under this court's standing jurisprudence [00:23:50] Speaker 06: The imminence of the harm to Alaska is probably insufficient unless and until the Secretary actually invokes this authority and takes land into trust. [00:24:03] Speaker 06: That's an involved process in which the state will have the opportunity to participate. [00:24:07] Speaker 06: It would occur on a case by case, parcel by parcel basis. [00:24:14] Speaker 06: The nature of each potential acceptance of a parcel of land and trust is going to vary from one to another. [00:24:23] Speaker 06: So the issue of what kinds of injury to the state might occur from the acceptance of land and trust in Alaska would be far more developed. [00:24:37] Speaker 06: that case-by-case basis in the context of an actual action. [00:24:42] Speaker 04: Can you tell me under what authority the secretary can consider and then decide to change the Alaska exception after the district court has already vacated it? [00:24:57] Speaker 06: Yes, Your Honor. [00:24:58] Speaker 06: The Alaska exception [00:25:02] Speaker 06: reflected a policy position that the department had developed in the aftermath of ANCSA. [00:25:09] Speaker 06: And it was the belief of the department at that time that the authority to take land into trust had not been revoked, but would probably be inappropriate as applied in Alaska. [00:25:21] Speaker 06: It never took a position either that it had been repealed or that it was illegal for the agent, for the secretary [00:25:28] Speaker 04: Well, but that's not my question. [00:25:31] Speaker 04: My question is the district court here made a decision, it made a particular decision, I think on a statutory basis, that the exclusion was inappropriate and it vacated it. [00:25:46] Speaker 04: So my understanding then is that that was gone. [00:25:51] Speaker 04: So on what basis does the Secretary take action on the Alaska exclusion when it had already been vacated? [00:26:00] Speaker 06: The secretary had two options at that time. [00:26:02] Speaker 06: The secretary could appeal the vacater of that portion of its regulation, which initially did. [00:26:08] Speaker 06: It then chose instead to change the regulation so that that district court decision, which it believed was incorrectly reasoned, would no longer be the basis for the [00:26:22] Speaker 06: absence of the Alaska exception from regulations. [00:26:24] Speaker 04: And so the effect of that was to allow this argument that, you know, the decision is now moot, right, because it's moved into the secretary's arena, basically. [00:26:37] Speaker 04: But I just, you know, my question is, what was there for her to act up on since the district court already vacated? [00:26:46] Speaker 06: Well, that is an interesting question. [00:26:48] Speaker 06: There was an appeal pending from the vacator, and there is no longer anything to vacate. [00:26:52] Speaker 06: So whether it was vacated by the court or vacated by the secretary, I guess, is open to some question. [00:26:59] Speaker 06: It is no longer in existence. [00:27:01] Speaker 04: Let me ask you a different question, then. [00:27:03] Speaker 04: Let's suppose that the district court here had made a different decision and had agreed with the state of Alaska. [00:27:12] Speaker 04: Could the Secretary then have gone into a rulemaking and nevertheless excise the exclusion? [00:27:24] Speaker 06: That raises Chevron questions that are not in this record. [00:27:28] Speaker 04: No, it seems to me it raises something more than Chevron questions. [00:27:33] Speaker 04: Are you saying that even if the court had decided against the position that the Secretary is taking now, the Secretary could simply reanimate trust status in the state of Alaska? [00:27:46] Speaker 06: Probably not, your honor, but under Brand X, if the district court were first to take a position interpreting a statute that is implemented by the secretary, the secretary has the responsibility to implement ANCSA, and if the district court's interpretation of that statute were not consistent with that of the secretary, and the secretary took a reasoned approach to changing her interpretation, [00:28:13] Speaker 06: It's conceivable that that premature interpretation by the district court would not trump the Secretary's recent change of policy. [00:28:23] Speaker 04: What provision in ANCSA says that the Secretary is responsible for implementing it? [00:28:31] Speaker 06: ANCSA was enacted as Indian legislation. [00:28:34] Speaker 06: The Secretary has broad authority to implement Indian legislation. [00:28:38] Speaker 06: Actually, ANCSA appears in 43 USC, which is the public lands [00:28:43] Speaker 06: um also subject to administration by the secretary um so yes the secretary is responsible for administering ANCSA and I see that what's your what's the government's view if we think you're right about mootness what's your view about whether we should vacate the district we believe the court should vacate the district court's decision [00:29:11] Speaker 06: Thank you. [00:29:14] Speaker 02: Do not forget the engineer. [00:29:21] Speaker 05: Good morning. [00:29:21] Speaker 05: May it please the court? [00:29:23] Speaker 05: I'm Heather Kendall Miller on behalf of Appellate Tribes and at council table is co-council Lloyd Miller. [00:29:30] Speaker 05: Let me respond briefly to a couple questions since we've got limited time here, and that was your question regarding the Secretary's involvement in ANCSA. [00:29:42] Speaker 05: The Secretary was very involved in ANCSA. [00:29:45] Speaker 05: It wrote massive amounts of regulations to help implement and carry out that statute. [00:29:54] Speaker 05: Chevron deference, certainly the secretaries would be entitled to deference at the step one level. [00:30:03] Speaker 05: We agree with the United States that this appeal is now moot. [00:30:09] Speaker 05: The United States relief is really one that they want to pursue against the United States. [00:30:16] Speaker 05: And my clients [00:30:18] Speaker 05: brought this cause of action only to address the regulatory ban within the regulatory process for lands into trust. [00:30:29] Speaker 05: And that ban no longer exists. [00:30:34] Speaker 05: Should this case nonetheless be decided on the merits, we believe that the district court's opinion should be affirmed. [00:30:42] Speaker 03: It should be affirmed... Do you oppose vacature of the district court decision under Monsignor principles? [00:30:48] Speaker 05: I don't oppose that, Your Honor. [00:30:50] Speaker 05: I recognize that that would probably be the likely outcome under precedent of this circuit. [00:30:55] Speaker 03: In case you have that question, the parcels of land that are at issue here, are all of them currently subject to taxation by Alaska? [00:31:07] Speaker 03: A couple of them seem to come from church entities. [00:31:11] Speaker 03: One of them came from a native respective trustee deed. [00:31:15] Speaker 03: I don't know if that's like an allotment or what the tax status of that is. [00:31:18] Speaker 03: But is some of that land at least currently being taxed or is it already in need of taxation for other reasons? [00:31:23] Speaker 05: Of the four plaintiff tribes, only one of the tribes is at risk for taxation. [00:31:30] Speaker 05: The state doesn't generally impose property tax. [00:31:34] Speaker 05: It's the local government's municipalities. [00:31:36] Speaker 05: And three of our villages don't have municipal governments. [00:31:40] Speaker 05: So their properties are not subject to local taxes. [00:31:44] Speaker 05: But Haynes, Chilkat tribe, does own property that is very close to the city of Haynes. [00:31:51] Speaker 05: And they are concerned. [00:31:53] Speaker 05: that their fee lands would be subject to taxation. [00:31:57] Speaker 03: Are they subject to taxation now? [00:32:00] Speaker 05: Yes. [00:32:01] Speaker 05: Yes they are. [00:32:04] Speaker 03: What is a Native Restricted Trustee Deed? [00:32:08] Speaker 03: What exactly is that? [00:32:09] Speaker 03: Is that a form of allotment or what is that? [00:32:12] Speaker 05: And there are two forms of restricted fee lands in Alaska. [00:32:17] Speaker 05: One are lands that were conveyed under the Alaska Native Townsite Act. [00:32:22] Speaker 05: And thousands of individual townsite lots were created there. [00:32:25] Speaker 05: And they are held in restricted fee status. [00:32:28] Speaker 03: I was wondering about Ms. [00:32:29] Speaker 03: Kavirla, who obtained her land under a native restricted trustee deed. [00:32:32] Speaker 05: Yes, that is a native townsite lot. [00:32:35] Speaker 05: Yes, and she unfortunately lost the restrictions due to fraud and she would like to get those restrictions put back in place. [00:32:47] Speaker 05: Again, I will want to address a bit of the merits simply in the event that the court goes there. [00:32:54] Speaker 05: And we believe that this case really should be viewed from the precedent of this court that holds that later statutes cannot implicitly repeal an earlier statute unless two conditions are met. [00:33:11] Speaker 05: The first, that [00:33:12] Speaker 05: The later statute expressly contradicts the earlier statute, is therefore an irreconcilable conflict. [00:33:19] Speaker 05: Or second, that it's absolutely necessary to give meaning to the later statute. [00:33:26] Speaker 05: And we don't believe that either of those conditions are met here. [00:33:30] Speaker 05: And so was this element of Aboriginal claims. [00:33:33] Speaker 05: And Congress did so by extinguishing those claims, but it also left in place prior enacted legal regimes, including the IRA. [00:33:44] Speaker 05: And nothing in ANCSA expressly addresses the IRA, much less silently repeals it. [00:33:50] Speaker 04: What do you think is the effect of the savings clause? [00:33:56] Speaker 04: I mean, it says, you know, if this conflicts with any other provision, then ANCSA controls. [00:34:07] Speaker 05: My point, Judge Brown, is that it doesn't conflict. [00:34:10] Speaker 05: ANCSA can coexist side by side with the Secretary's authority under 465. [00:34:16] Speaker 05: And does. [00:34:17] Speaker 05: As I said, INCSA does not expressly address the IRA, left it in place. [00:34:22] Speaker 05: It did not revoke any provision of the IRA until five years later when Congress came back through FLIPMA and surgically withdrew Section 2 while leaving Section 1 in place. [00:34:35] Speaker 05: And that's the best evidence to support the proposition that INCSA did not revoke any part of the IRA. [00:34:43] Speaker 05: It continues in place with this [00:34:45] Speaker 05: exception of Section 2. [00:34:49] Speaker 05: The state has argued that ANCSA is an irreconcilable conflict with the statutory regime. [00:34:59] Speaker 05: But again, if you look to what Congress left in place, it left in place these other legal regimes, including the Alaska Native Townside Act, [00:35:09] Speaker 05: And thousands of individual townsite lots that are held in restricted status, indistinguishable from trust lands, it left in place thousands of existing Alaska data allotments, again, held in restricted fee. [00:35:22] Speaker 05: It left in place parcels in southeast Alaska in trust status. [00:35:26] Speaker 05: These properties combined, including Metlakatla, account for approximately a million acres of land in trust-restricted status that currently coincide with Anxka [00:35:39] Speaker 05: Again, that's a complete answer to the state's argument that the two statutes are irreconcilable. [00:35:47] Speaker 04: Do you know if these lands that you're describing, were they in existence in that status before ANCSA was enacted or did this occur later? [00:36:02] Speaker 05: Many of them did take place [00:36:05] Speaker 05: prior, the Alaska Native Council Act and the 1906 Naval Allotment Act, the Congress itself in Angska. [00:36:13] Speaker 05: authorized continued conveyance of native allotments in restricted fee. [00:36:19] Speaker 05: Congress also came back and amended the Allotment Act to allow for the additional conveyance of 20,000 native allotments to veterans that were in Vietnam at the time and could not benefit [00:36:36] Speaker 05: by putting in applications at that time. [00:36:39] Speaker 04: So clearly, again, Congress does not... No, I'm just trying to understand were they... I mean, obviously, settlements often grandfather in some existing state affairs and retain the status quo. [00:36:54] Speaker 04: So I was just trying to understand if that's what was happening or if, in fact, this, you know, they're doing that now. [00:37:03] Speaker 05: Well, it's a combination of both, Your Honor, both existing allotments and town sites prior to ANCSA that were left in place, and then the authorizations of continued conveyances of NAVA allotments after ANCSA. [00:37:22] Speaker 05: We believe that [00:37:25] Speaker 05: The Judge Contreras's opinion approached this question correctly and did not find that the two statutes were irreconcilable. [00:37:36] Speaker 05: Likewise found that it was not absolutely necessary to revoke any part of the IRA to give meaning to angsta And we believe that decision was correctly decided and if this court chooses to address the merits We would hope that you would affirm that decision. [00:37:52] Speaker 02: Thank you Thank you [00:38:04] Speaker 01: Thank you, your honor. [00:38:05] Speaker 01: First of all, the US argued that this case would not be ripe and not be unmuted until the state suffered injury and that type of injury would depend on the specific parcel of land. [00:38:20] Speaker 01: And just to be clear, the state's position is that as a settling party to ANCSA, that no land should be taken into trust. [00:38:31] Speaker 01: So the fact-specific determination of [00:38:33] Speaker 01: what parcel and what interest affected that is a separate analysis from the state sovereign. [00:38:39] Speaker 03: What do you mean as a settling party? [00:38:42] Speaker 03: It's like a breach of the settlement agreement? [00:38:44] Speaker 03: If the secretary were to do this, is that your position? [00:38:47] Speaker 01: Yes, absolutely. [00:38:48] Speaker 01: The state was a settling party to ANCSA. [00:38:50] Speaker 01: The state forfeited valuable land selection priorities and also forfeited income to which it was otherwise entitled to from mineral revenue from public land. [00:39:00] Speaker 03: You couldn't bring that type of [00:39:02] Speaker 03: claim or injury in this court, you'd have to take that under the Tucker Act to Claims Court and Federal Circuit, right? [00:39:08] Speaker 03: A breach of settlement agreement or contract with the U.S. [00:39:11] Speaker 03: government can't be heard here, can it? [00:39:13] Speaker 01: That jurisdictional question is interesting, Your Honor, that it was not briefed in this case. [00:39:19] Speaker 01: The state raises it as a, I think, highly persuasive, equitable argument that... I don't know if it's a question of whether it's anything that can be adjudicated here. [00:39:30] Speaker 02: It's certainly evidence that the state has suffered injury, that the state has harm... That's a separate question from mootness, correct? [00:39:37] Speaker 02: You could have injury, but a case could still be moot. [00:39:45] Speaker 01: Yes, Your Honor. [00:39:48] Speaker 01: The Secretary did in 1980 take the position that ANCSA prohibited the acquisition of further trust land in Alaska, and that's in the preamble to the 1980 rule. [00:40:01] Speaker 01: With respect to the question regarding the Secretary lacking authority to implement ANCSA, the Secretarial's duties with implementing ANCSA were largely ministerial and administering the land selection process. [00:40:15] Speaker 01: The native corporations now own that land in fee and have the responsibility for administering that land. [00:40:22] Speaker 01: That was the crux of the ANCSA settlement. [00:40:24] Speaker 01: ANCSA is a land claim settlement. [00:40:27] Speaker 01: It only addresses [00:40:28] Speaker 01: the federal government's trust responsibility with respect to tribes, with respect to land. [00:40:35] Speaker 01: With respect to the tribes argument that ANCSA continues to preserve the authority for restricted fee and trust acquisitions for individuals, I would point out that ANCSA specifically authorized the processing of pending applications [00:40:58] Speaker 01: It gave those applicants the choice of either pursuing that process or taking their home site lot in fee under section 13 of ANCSA. [00:41:07] Speaker 01: And the other matter that the tribes referenced was the later statutory authority to extend the process for veterans. [00:41:18] Speaker 02: If you've gone way over, you can finish your sentence and we'll be done. [00:41:21] Speaker 01: Thank you, Your Honor. [00:41:22] Speaker 01: The state believes that this [00:41:26] Speaker 01: matter is not mute. [00:41:28] Speaker 01: There's very much a live controversy between the parties here. [00:41:31] Speaker 01: This has been evidenced by the exhaustive briefing and argument by the parties. [00:41:36] Speaker 01: We hope that the court finds that this is not moot and reverses the district court judgment. [00:41:43] Speaker 01: Thank you. [00:41:44] Speaker 01: Thank you all. [00:41:45] Speaker 02: The case is submitted.