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2009-02-12 Work SessionKodiak Island Borough Assembly Work Session Thursday, February 12, 2009, 7:30 p.m., Borough Conference Room Work Sessions are informal meetings of the Assembly where Assembly members review the upcoming regular meeting agenda packet and seek or receive information from staff. Although additional items not listed on the work session agenda are discussed when introduced by the Mayor, Assembly, or staff, no formal action is taken at work sessions and items that require formal Assembly action are placed on regular Assembly meeting agenda. Citizen's comments at work sessions are NOT considered part of the official record. Citizen's comments intended for the "official record" should be made at a regular Assembly meeting. CITIZENS' COMMENTS (Limited to Three Minutes per Speaker) AGENDA ITEMS: 1. Code Review Schedule 2. Update on Exxon Payment Distributions 3. Direction Regarding Mr. Omar Stratman's Request for an Amicus Brief 4. Process of Solid Waste /Collection Draft RFP PACKET REVIEW PUBLIC HEARING State of Alaska Alcoholic Beverage Control Board Request for New Ownership of Southern - Odom Wine and Spirits of Alaska LLC, Wholesale License #4860. Ordinance No. FY2009 -14 Amending Kodiak Island Borough Code of Ordinances, Title 3 Revenue and Finance Chapter 3.10 Public Finance — Management and Accounting by Repealing Section 3.10.130 Education Fund. UNFINISHED BUSINESS Ordinance No. FY2009 -03 Rezoning Four (4) Parcels of Land in the Russian Creek Subdivision, Totaling Approximately 20 Acres, From B- Business To RR1 — Rural Residential One District. (P &Z Case 08 -023) NEW BUSINESS CONTRACTS RESOLUTIONS Resolution No. FY2009 -19 Establishing Citizens Board of Equalization Dates for the Year 2009. Resolution No. FY2009 -20 Authorizing the Borough to Issue General Obligation Refunding Bonds in the Principal Amount Not to Exceed $7,150,000 to Refund Certain Outstanding General Obligation Bonds of the Borough, Fixing Certain Details of Such Bonds, Authorizing Their Sale, and Providing for Related Matters. ORDINANCES FOR INTRODUCTION *Ordinance No. FY2009 -15 Rezoning Lots 20, 21, and 22 Of U.S. Survey 3098 From B- Business To PL- Public Use Lands. *Ordinance No. FY2009 -16 Amending Kodiak Island Borough Code of Ordinances by Renaming Title 12 Streets and Sidewalks to Title 12 Naming Buildings, Public Facilities, Streets and Sidewalks and Creating Chapter 12.15 Buildings, Other Fixed Facilities and Public Places. Ordinance No. FY2009 -17 Amending the Kodiak Island Borough Code of Ordinances Title 2 Administration and Personnel by Adding Chapter 2.150 Fisheries and Oceanic Research Board and Amending Chapter 2.100 Boards, Committees, and Commissions Section 2.100.010 Board, Committee, and Commission Members Subject to This Chapter. Ordinance No. FY2009 -18 Rezoning Tract A, U.S. Survey 4964 From C- Conservation To RR2- Rural Residential Two. OTHER ITEMS APPEAL TO THE ASSEMBLY An Appeal to the Planning And Zoning Commission's Decision on Case No. S09 -010 DENYING Preliminary Approval, According to KIBC 16.40, of the Re- Subdivision of Lots 18 and 19, Block 2, Trinity Islands Subdivision; and the Re- Subdivision of Lot 3B -1, Lot 3B -2, and Lot 2, Block 1, Kadiak Alaska 1st Addition; and Lot 2, Block 2, Kadiak Alaska 1 Addition; Including a Vacation of the 60 -Foot Wide Perenosa Drive Right -of -Way, According to KIBC 16.60, to Create Lots 18A and 19A, Block 2, Trinity Islands Subdivision and Lots 3B -1A and 2A, Block 1, Kadiak Alaska 1 Addition; Lot 2A, Block 2, Kadiak Alaska 1 Addition; and Tracts B (Utility Corridor) and C (Park), Within Kadiak Alaska 1 Addition. Applicants: Michael Anderson and Daniel A. Rohrer (Kodiak Christian School). Confirmation of Mayoral Appointment to the Kodiak Arts Council Advisory Board. Confirmation of Assembly Appointments to the Personnel Advisory Board. Confirmation of Mayoral Appointment to the Planning and Zoning Commission. Confirmation of Assembly Appointment to the Board of Equalization. MANAGER'S COMMENTS CLERK'S COMMENTS MAYOR'S COMMENTS ASSEMBLY MEMBERS COMMENTS 4t 3 E aekuP �o y-4/.e gowoci 4 NCt r _ KODIAK ISLAND BOROUGH CLERKS OFFICE H . 0 COPT D TO: Y` Q r _ ASSEMBLYVL MAYOR I' � l/ MANAGER_ �/ OTHER Cf ss Q 2 7 z / 7 e P 1 / cr 7 4 - 9 OYs q • j f 7011 G /'/ 1 4 jet, icy (374. �f1 e �o �QU� M a w14 9 e — ki.c � CO ) O O /e�P do�u mj Or 41 5 0 c6p7 cc/ ` A "/) KODIAK ISLAND BOROUGH CLERKS OFFICE COP TO: ASSEMBLY MAYOR MANAGER _��:_- OTHER '4aNcl 1 3 \„( r - at 4/ G^ Q141/01 I 9/4'16:s g u6001- / x l / 7)4 ,em e Cour t.»;1 / 3 0 140 / 4Q T f/t ¢�? / 4 / 4 Y'�' 0 /1C zv 0; 42_i 5 -Y76/ it4J rl 1 OW © h der IV 8r 'l "Q- 6 ec6W ) AA. cV"-y6f I I /10 7 /les o.) -1 i QUESTION PRESENTED Petitioner brought action against the Secretary of Interior for review of his determination that Respondent Leisnoi, Inc. was qualified to receive land and benefits under the Alaska Native Claims Settlement Act (ANCSA) as an eligible "Native village." On remand, the Interior Board of Land Appeals (IBLA) determined that Leisnoi was not, in fact, qualified for eligibility as a Native village. On appeal, the Ninth Circuit held that the Petitioner's action had been mooted by Congress' enactment of Section 1427 of the Alaska National Interest Lands Conservation Act (ANILCA). Section 1427 amended ANCSA's provisions as to certain Native villages, and listed Leisnoi as one of the affected "village corporations." The Ninth Circuit held that the listing of Leisnoi as a "village corporation" constituted a congressional determination of its eligibility, and exempted Leisnoi from having to satisfy ANCSA's village eligibility requirements. The court based its interpretation on the "plain language" of this provision, and refused to consider Section 1427's legislative history, which showed that Congress had listed Leisnoi as a "village corporation" in the mistaken belief that the Secretary's determination of its eligibility had already become final, and that Leisnoi had already been determined to have satisfied ANCSA's eligibility requirements. ii The question presented is: Whether the Ninth Circuit impermissibly invalidated a prior congressional enactment by failing to apply the canons of statutory construction relating to repeals by implication, and by construing the "plain language" of ANILCA Section 1427 as exempting Leisnoi from ANCSA's village eligibility provisions, and mooting the Petitioner's action, without regard to Section 1427's legislative history, and contrary to Congress' actual intent. TABLE OF CONTENTS QUESTION PRESENTED i TABLE OF CONTENTS iii TABLE OF AUTHORITIES vi OPINIONS BELOW 1 JURISDICTION 1 STATUTORY PROVISIONS INVOLVED 1 STATEMENT 2 A. Background 5 B. The remanded agency proceedings 15 C. The district court proceedings 19 D. The Ninth Circuit's decision 20 REASONS FOR GRANTING THE PETITION 22 I. The Ninth Circuit's Decision Invalidated An Act Of Congress 22 II. The Ninth Circuit's Decision Is Erroneous And Conflicts With This Court's Precedents 23 iv III. The Ninth Circuit's Decision Abrogated Important Policies Established By Congress In The Exercise Of Its Plenary And Exclusive Authority To Regulate Indian Affairs And Dispose Of Public Lands 30 IV. Review Of The Ninth Circuit's Decision Will Prevent The Commission Of A Fraud On The United States 31 CONCLUSION 34 Opinion of the U.S. Court of Appeals for the Ninth Circuit, dated October 6, 2008 APPENDIX A Opinion of the U.S. District Court for the District of Alaska, dated September 26, 2007 APPENDIX B Decision of the Secretary of the Interior, dated December 20, 2006 APPENDIX C Decision of the Interior Board of Land Appeals, dated October 29, 2002 APPENDIX D ALJ's Recommended Decision, U.S. Department of the Interior Office of Hearings and Appeals, dated October 13, 1999 APPENDIX E Secretarial Order No. 2965, dated June 10, 1974 APPENDIX F Statement of Edward Weinberg before the House Comm. on Interior and Insular Affairs, 96 Cong., dated February 6 -8, 1979 APPENDIX G -1 Section by Section analysis of ANILCA Section 1427 APPENDIX G -13 Statutory provisions APPENDIX H Cases vi TABLE OF AUTHORITIES Amell v. United States, 384 U.S. 158 (1966) .. 24 Chevron U.S.A. v. Natural Resource Defense Council, 467 U.S. 837 (1984) 4, 20 Friends of the Earth v. Weinberger, 562 F.Supp. 265 (D.D.C. 1983) 25 Koniag, Inc. v. Andrus, 580 F.2d 601 (D.C.Cir. 1978), cert denied, 439 U.S. 1052 (1978) .. 12, 29 Koniag, Inc. v. Kleppe, 405 F.Supp. 1360 (D.D.C.1975), affd in part and rev'd in part, 580 F.2d 601 (D.C.Cir. 1978), cert denied, 439 U.S. 1052 (1978) 12 -13 Morton v. Mancari, 417 U.S. 535 (1974) 24 Radzanower v. Touche Ross & Co., 426 U.S. 148 (1976) 24 - 26 Robertson v. Seattle Audubon Soc., 503 U.S. 429 (1992) 25 Rodriquez v. U.S., 480 U.S. 522 (1987) .... 25, 29 Stratman v. Leisnoi, 157 I.B.L.A. 302 (2002) 17 vii Cases Stratman v. Watt, 656 F.2d 1321 (9 Cir. 1981), cert. dismissed, 456 U.S. 901 (1982) 10 -11, 13, 28 U.S. v. Lara, 541 U.S. 193 (2004) 30 U.S. v. San Francisco, 310 U.S. 16 (1940) 30 U.S. v. United Continental Tuna Corp., 425 U.S. 164 (1976) 26 Statutes and regulations 43 CFR 2651.2(a)(10) 9 43 CFR 2651.2(a)(4) 9 43 CFR 2651.2(a)(6) 8 9 43 CFR 2651.2(a)(8) 8 43 CFR 2651.2(a)(9) 8 43 U.S.C. 1602(c) 8 43 U.S.C. 1610(b)(1) 8 43 U.S.C. § 1603 7 viii 43 U.S.C. § 1606(a) 3 43 U.S.C. § 1610(b) 8 43 U.S.C. § 1610(b)(2) 9 43 U.S.C. § 1610(b)(3) 8, 9 43 U.S.C. § 1613(a) 31 43 U.S.C. § 1632 10 Section 1(c) of the Act of Jan. 2, 1976, P.L. 92 -204, 89 Stat. 1145 33 Legislative material Senate Comm. On Energy And Natural Resources, Alaska National Interest Lands Conservation Act, S. Rep. No. 96 -413, 96 Cong., 2d Sess. 323 -326 (1980), reprinted in 1980 U.S.C.C.A.N. 5267 -5270 14 Statement of Edward Weinberg, Counsel for Koniag, Inc. before the House Comm. on Interior and Insular Affairs, 96 Cong. (Feb. 6, 1979) 13 -14 Miscellaneous ix Alaska Native Claims, Hearings Before the Subcomm. On Fisheries and Wildlife Conservation and the Environment of the Comm. On Merchant Marine and Fisheries, 93d Cong., 2d Sess. (1975) 6 Eric Wander, Leisnoi Enforcing Land Policies, THE KODIAK DAILY MIRROR, Sept. 4, 2008 33 Jack Anderson, Land - Grab Scheme Bared in Alaska, WASHINGTON POST, Feb. 21, 1979.. 6 Jack Anderson, Those `Phantom" Villages in Alaska, WASHINGTON POST, Feb. 22, 1979.. 6 Jack Anderson, Phantom Villages Grab for Woodland, WASHINGTON POST, Feb. 23, 1979 6 Jack Anderson, Alaska Land Grab Charged, SEATTLE POST INTELLIGENCER, Feb. 23, 1979 6 Jack Anderson, Man Behind Alaska Land Grab, TACOMA NEWS TRIBUNE, Feb. 23, 1979 6 Jack Anderson, Bill Abets Alaska Land Swindle, TACOMA NEWS TRIBUNE, Feb. 23, 1979 6 Jack Anderson, U.S. Drops Land Case Prosecution, WASHINGTON POST, Mar. 1, 1979 6 Jack Anderson, Fraud is in the Eye of the Beholder, ANCHORAGE DAILY NEWS, Mar. 1, 1979 6 Jack Anderson, Alaska Land Charge Reiterated, WASHINGTON POST, April 21, 1979 6 Secretarial Order No. 2965 9 1 OPINIONS BELOW The opinion of the court of appeals is reported at 545 F.3d 1161, and is reprinted in the Appendix as Pet. App. A. The opinion of the district court is unreported, and is attached as Pet. App. B. The opinion of the Secretary of Interior is unreported, and is attached as Pet. App. C. The opinion of the Interior Board of Land Appeals is reported at 157 IBLA 302, and is attached as Pet. App. D. The opinion of the Administrative Law Judge is unreported, and is attached as Pet. App. E. JURISDICTION The judgment of the court of appeals was entered on October 6, 2008. This Court has jurisdiction under 28 U.S.C. § 1254(1). STATUTORY PROVISIONS INVOLVED This case involves provisions of the Alaska Native Claims Settlement Act, 43 U.S.C. § 1601 et seq., and regulations adopted by the Secretary, 43 CFR § 2651.2. It also involves provisions of the Alaska National Interest Lands Conservation Act, Pub. L. No. 96 -487, 94 Stat. 2371. The pertinent provisions are reproduced in Pet. App. H. 2 STATEMENT This case involves an action against the Secretary of Interior for review of his determination, made under the Alaska Native Claims Settlement Act (ANCSA), that Respondent Leisnoi, Inc. was eligible to participate in ANCSA, and to receive public lands and other ANCSA settlement benefits, as a "Native village." The district court had initially dismissed the action, based on the Petitioner's failure to exhaust his administrative remedies. On appeal, the Ninth Circuit reversed the district court and vacated the judgment of dismissal, holding that the Petitioner was excused for his failure to exhaust because he had been entitled to, but did not receive, actual notice of the DOI's proceedings. The case was remanded to the district court, which then remanded the case to the Interior Board of Land Appeals (IBLA) for a re- determination of Leisnoi's eligibility, after conducting a new evidentiary hearing. While the case was pending on appeal to the Ninth Circuit, and during the period of its dismissal by the district court, Congress enacted Section 1427 of the Alaska National Interest Lands Conservation Act (ANILCA). Section 1427 amended ANCSA's land selection and entitlement provisions with respect to the Native village corporations located in 3 the region of Kodiak, Alaska.' Section 1427(a)(4) listed the Native village corporations that were subject to the amended provisions, which included Leisnoi. The Respondents argued, in the district court, that by listing Leisnoi as a "village corporation," Section 1427 "ratified" Leisnoi's status as an eligible Native village, and mooted the Petitioner's action. The legislative history of Section 1427 shows that when Congress enacted Section 1427, it had not been aware of the existence of the Petitioner's action, and mistakenly believed that Leisnoi had already been determined to have satisfied ANCSA's village eligibility requirements in a final and unchallenged determination made by the Secretary. The district court deferred ruling on the ANILCA Section 1427 issue, and instead remanded it to the IBLA for its initial determination, along with its re- determination of Leisnoi's eligibility. On remand, the IBLA determined that Leisnoi was not, in fact, qualified for eligibility under ANCSA as a Native village. The IBLA also determined that ANILCA Section 1427 had not ratified Leisnoi's status as an eligible Native village, or mooted the Petitioner's action. After invoking personal authority to reconsider the IBLA's decision, the 1 ANCSA divided the state of Alaska into twelve "regions." 43 U.S.C. § 1606(a). The region for Kodiak is known as the "Koniag region," and the name of the regional corporation is "Koniag, Inc." 4 Secretary of Interior rejected the IBLA's interpretation, and determined that Section 1427 was "best interpreted" as having "ratified" Leisnoi's eligibility and as mooting the Petitioner's challenge. The district court upheld the Secretary's interpretation of Section 1427 as reasonable, under the doctrine of Chevron U.S.A. v. Natural Resource Defense Council, 467 U.S. 837 (1984), and dismissed the Petitioner's action as moot. On appeal, the Ninth Circuit applied a de novo standard of review, but independently interpreted Section 1427 as having mooted the Petitioner's action. The Court based its interpretation on the "plain meaning" of Section 1427, and concluded that the listing of Leisnoi as a "village corporation" constituted "a Congressional determination that Leisnoi is a village corporation [that] exempts Leisnoi from having to satisfy ANCSA's eligibility requirements." Pet. App. A -20. The Court denied that its interpretation involved the partial repeal of ANCSA's village eligibility requirements, or that its interpretation was governed by the rules of statutory construction relating to repeals by implication. Pet. App. A -28. The Court also "declined" to examine the legislative history of Section 1427, finding it unnecessary "to further clarify a matter of interpretation resolved on the face of the statute." Pet. App. A -28 n. 5. A. Background 5 This is the last remaining case in a scandal that dates back 35 years, and relates to the submission of fraudulent applications on behalf of eight alleged "villages" located in the region of Kodiak, Alaska, seeking a determination of their eligibility to receive public lands and other settlement benefits under ANCSA as "Native villages." These applications were submitted in a scheme to inflate the amount of land and ANCSA benefits that Natives residing in and around the city of Kodiak stood to receive, by creating a number of phantom "villages" in and around the island of Kodiak that would each be entitled to separate grants ofANCSA lands and benefits. Various sites were selected as being the site of each "village." These included a fish processing plant, a Forest Service recreational site, and in the case of Respondent Leisnoi, Inc., a federally -owned housing complex for FAA employees and a children's summer camp. Natives residing in the city of Kodiak, and elsewhere, were solicited (and misled) into enrolling to these "villages" as the place of their permanent residence, and were then listed as being the villages' "residents." The applications were also supported by false affidavits from individuals attesting to their use of the "village" as a place where they actually lived. This scheme became a national scandal when it was investigated and reported in a series of articles by national syndicated columnist 6 Jack Anderson.' It was also the subject of congressional hearings conducted by the House Subcommittee on Merchant Marine and Fisheries, chaired by Representative John Dingell. Alaska Native Claims, Hearings Before the Subcomm. On Fisheries and Wildlife Conservation and the Environment of the Comm. On Merchant Marine and Fisheries, 93d Cong., 2d Sess. (1975). All eight of these alleged villages had been initially investigated and determined by the BIA to be qualified for eligibility under ANCSA as "Native villages." In accordance with the Secretary's regulations, the BIA's initial determinations of eligibility for seven of the eight villages were 2 These included the following articles: 1) Jack Anderson, Land -Grab Scheme Bared in Alaska, WASHINGTON POST, Feb. 21, 1979; 2) Jack Anderson, Those `Phantom" Villages in Alaska, WASHINGTON POST, Feb. 22, 1979; 3) Jack Anderson, Phantom Villages Grab for Woodland, WASHINGTON POST, Feb. 23, 1979; 4) Jack Anderson, Alaska Land Grab Charged, SEATTLE POST INTELLIGENCER, Feb. 23, 1979; 5) Jack Anderson, Man Behind Alaska Land Grab, TACOMA NEWS TRIBUNE, Feb. 23, 1979; 6) Jack Anderson, Bill Abets Alaska Land Swindle, TACOMA NEWS TRIBUNE, Feb. 23, 1979; 7) Jack Anderson, U.S. Drops Land Case Prosecution, WASHINGTON POST, Mar. 1, 1979; 8) Jack Anderson, Fraud is in the Eye of the Beholder, ANCHORAGE DAILY NEWS, Mar. 1, 1979; 9) Jack Anderson, Alaska Land Charge Reiterated, WASHINGTON POST, April 21, 1979. 7 subsequently protested and appealed by "interested parties," and following separate hearings, all seven were ultimately determined to be not qualified for eligibility as a "Native village." The eighth remaining, and unchallenged, village was Leisnoi. Unlike the other seven alleged villages, the BIA's initial determination of Leisnoi's eligibility had not been similarly protested in the administrative proceedings, and was allowed to become final when it was adopted and approved by the Secretary. Following the approval of its eligibility, Leisnoi became entitled under ANCSA to the conveyance of 115,200 acres of public lands, based on the number of persons who had enrolled to it as the place of their permanent residence. 1. AIVCSA's village eligibility provisions. Congress enacted ANCSA in 1971 to settle the aboriginal land claims of the Alaskan Natives. 43 U.S.C. § 1603. In exchange for the extinction of all claims of aboriginal title, Alaskan Natives were to receive approximately forty -four million acres of land and nearly $1 billion in federal funds. Among other things, ANCSA provided for the direct distribution of lands and benefits to qualified "Native villages," which were to be incorporated as Native "village corporations." ANCSA specified the 3 "Leisnoi, Inc." is the name of the village corporation that was formed for the "Village of Woody Island," which was the name of the alleged "Native village." 8 criteria for determining whether an entity qualified for eligibility as a "Native village," and required the Secretary to make individual findings, for each Native village, that it satisfied the criteria for eligibility. 43 U.S.C. 1602(c), 1610(b). Section 11(b)(1) of ANCSA listed a number of villages that were presumptively eligible as Native villages ( "listed villages "), subject to the subsequent determination of their eligibility by the Secretary. 43 U.S.C. 1610(b)(1). Villages that were not listed in Section 11(b)(1) ( "unlisted villages ") could apply to the Secretary for certification of their eligibility pursuant to subsection 11(b)(3), provided they satisfied the criteria for eligibility. 43 U.S.C. § 1610(b)(3). The Secretary adopted regulations to establish the procedure for determining the eligibility of unlisted villages. 43 CFR 2651.2(a)(6). The regulations provided for the filing of an application on behalf of an unlisted village with the Director of the Juneau Area Office of the Bureau of Indian Affairs (the "BIA Area Director "). 43 CFR 2651.2(a)(6). The BIA Area Director was to investigate the application and make an initial determination of the village's eligibility. 43 CFR 2651.2(a)(8). His decision was to be published in the Federal Register and one or more newspapers of general circulations. "Interested parties" could protest his decision within 30 days from the date of publication. 43 CFR 2651.2(a)(9). If no protest was received, his determination was to become final, and his decision and the record certified to the 9 Secretary. 43 CFR 2651.2(a)(6). If a protest was received, the BIA Area Director was to review the protest and supporting evidence, and make a new determination of the village's eligibility. 43 CFR 2651.2(a)(4) & (a)(10). His decision was to be published, and become final unless appealed to the IBLA within 30 days of the date of publication. Id. ANCSA directed the Secretary to make all village eligibility determinations "within two and one -half years" from the date of ANCSA's enactment (December 18, 1971). 43 U.S.C. § 1610(b)(2) & (b)(3). However, on June 10, 1974, the Secretary issued Secretarial Order No. 2965, which concluded that this deadline was directory rather than mandatory, and directed the Department to continue its adjudication of all pending village eligibility appeals. Pet. App. F. The order recited that "it has been decided to provide an opportunity for a full hearing to all parties in all disputes now or hereafter pending before the Alaska Native Claims Appeals Board concerning Native Village eligibility," and that "[tjhis decision has been made in order to provide all parties due process of law and in order to develop a complete record so that the final secretarial determination of Native Village eligibility will be as correct, fair and just as possible." Id. The order stated that it superseded any inconsistent provisions in the Department's regulations. Id. On December 2, 1980, Congress amended ANCSA to establish a two -year statute of limitations for bringing actions for judicial review of 10 the decisions made by the Secretary under ANCSA. 43 U.S.C. § 1632. The statute required such actions to be brought "within two years after the day the Secretary's decision becomes final or December 2, 1980, whichever is later." Id. 2. Petitioner's action against the Secretary. The Secretary adopted and approved the BIA Area Director's initial determination of Leisnoi's eligibility, and certified Leisnoi as an eligible Native village, on September 9, 1974. After learning that an application for an alleged Native village on Woody Island had been submitted and approved by the Secretary, a group of concerned citizens in Kodiak formed an ad hoc "Citizens Action Group" to challenge the determination of Leisnoi's eligibility. On June 2, 1976, they filed action against the Secretary to set aside his determination of Leisnoi's eligibility, and to enjoin the conveyance of any public lands or other ANCSA benefits to Leisnoi. The district court dismissed the action for failure of the plaintiffs to exhaust their administrative remedies, and for lack of standing. On appeal, the Ninth Circuit upheld the dismissal as to all but two of the plaintiffs. The court excused the Petitioner and another plaintiff for their failure to exhaust because they were cattle ranchers who had held federal grazing leases on lands subject to selection and conveyance to Leisnoi, and had been entitled to actual notice of the Department's proceedings regarding Leisnoi's application for eligibility. Stratman v. Watt, 656 F.2d 1321, 1325- 1326 (9` Cir.1981), cert. dismissed, 456 U.S. 901 11 (1982). In 1982, following the issuance of the Ninth Circuit's decision in Watt, the parties entered into a settlement agreement under which the action was voluntarily dismissed. However, the action was subsequently re- opened in 1995, following Leisnoi's repudiation of the settlement agreement. On September 13, 1995, the district court entered an order remanding the case to the IBLA to conduct a new evidentiary hearing to re- determine Leisnoi's eligibility. The district court also remanded to the IBLA, for its initial determination, the issue of whether ANILCA Section 1427 had ratified Leisnoi's status as an eligible Native village and mooted the Petitioner's challenge. The court stated that "[t]his is a difficult question that should be decided in the first instance by the agency." 3. ANILCA Section 1427 The Alaska National Interest Lands Conservation Act ( ANILCA) was enacted by Congress on December 2, 1980. Pub.L.No. 96 -487, 94 Stat. 2371. Section 1427 is contained in Title XIV of ANILCA, entitled "Amendments to the Alaska Native Claims Settlement Act and Related Provisions." 94 Stat. 2518. The primary purpose of Section 1427 was to amend ANCSA's land selection and entitlement provisions, to provide for the exchange and substitution of "deficiency lands" that had been withdrawn on the Alaska Peninsula for selection by Native village corporations in the Koniag region under ANCSA's original land selection and entitlement provisions, for other specified lands on Afognak Island. Section 1427(a)(4) listed the 12 Native village corporations that were subject to the land exchange, which were defined as "Koniag deficiency village corporations," and which included Leisnoi. A second purpose of Section 1427 was to settle the village eligibility litigation that had been brought against the Secretary by the seven alleged "villages" in the Kodiak region that had been determined to be ineligible. Following the determinations of their ineligibility, the "villages" brought suit against the Secretary to overturn their eligibility determinations. See Koniag, Inc. v. Kleppe, 405 F.Supp. 1360 (D.D.C.1975), aff d in part and rev'd in part, 580 F.2d 601 (D.C.Cir. 1978), cert denied, 439 U.S. 1052 (1978). The Court of Appeals ultimately vacated the Secretary's determinations of their ineligibility, and remanded their cases back to the Secretary to re- determine their eligibility, due to perceived intervention in the original administrative proceedings by Congressman John Dingell, who chaired the Congressional subcommittee that had investigated the alleged villages' applications for eligibility. Koniag, Inc. v. 4 The district court noted that the Committee had been extremely critical of the DOI's investigation and procedures for determining the villages' eligibility, and that Chairman Dingell made a "strenuous effort . . . to encourage protest and appeals" of the BIA Director's initial determinations of their eligibility. Koniag, Inc. v. Kleppe, 405 F.Supp. at 1371 -72. 13 Andrus, 580 F.2d at 610 -11. Section 1427 settled this litigation by according the seven alleged villages limited eligibility status in return for their acceptance of a small fraction of the land to which they would have otherwise been entitled under ANCSA. Section 1427(e) provided that each of the seven uncertified villages "shall be deemed an eligible village under the Alaska Native Claims Settlement Act," and become entitled to a fractional share of the exchanged lands on Afognak Island, provided they filed a release with the Secretary "from all claim" to any lands or benefits under ANCSA. Id. The legislative history of Section 1427 reveals that it was drafted by counsel for Koniag, Inc., Ed Weinberg, following negotiations between Koniag and the DOI. Pet. App. G -1; G -5. Mr. Weinberg served as counsel for the seven uncertified villages in their litigation against the Secretary in Koniag, Inc. v. Kleppe. At the time, Mr. Weinberg was also serving as counsel for Leisnoi in the Petitioner's action against the Secretary for review of his determination of Leisnoi's eligibility. At that point, however, the Petitioner's action had been dismissed by the district court, and was on appeal to the Ninth Circuit, in the period prior to the issuance of the Ninth Circuit's decision vacating the district court's judgment of dismissal, in Stratman v. Watt, 656 F.2d 1321 (9 Cir. 1981). Mr. Weinberg prepared a Statement and a section -by- section analysis of Section 1427, denominated as "the Koniag Amendment," which he presented to 14 Congress in hearings before the House Committee on Interior and Insular Affairs. Pet. App. G. His section -by- section analysis was adopted verbatim, and appears in the official legislative history in the Senate Report issued on H.R. 39 (ANILCA) by the Senate Committee on Energy and Natural Resources.' Mr. Weinberg's prepared statement addressed the two primary purposes of the Koniag Amendment. First, it explained that the amendment would solve the problem of the lack of sufficient lands in the Kodiak area to satisfy the land entitlements for the Koniag villages and regional corporation. Pet. App. G -2 to G -3. Secondly, the statement explained that "[a] second element of Koniag's land problem is the village eligibility litigation ... ", and declared that " fsJeven Koniag villages are involved." Pet. App. G -3 (emphasis added). The statement concluded that the Amendment would "resolve, in a mutually satisfactory manner, a long standing dispute concerning the eligibility of seven Koniag villages for benefits under the Alaska Native Claims Settlement Act in a manner which imposes no substantial additional land burden upon the United States." Pet. App. G -9 (emphasis added). 5 Senate Comm. On Energy And Natural Resources, Alaska National Interest Lands Conservation Act, S. Rep. No. 96 -413, 96 Cong., 2d Sess. 323 -326 (1980), reprinted in 1980 U.S.C.C.A.N. 5267 -5270. 15 The statement and section -by- section analysis prepared by Mr. Weinberg never advised Congress that Leisnoi was also involved in "village eligibility litigation," and that the Secretary's determination of its eligibility had been challenged, and was the subject of a pending action for judicial review. This fact was never disclosed by Mr. Weinberg, ostensibly because he believed that the district court's judgment of dismissal of the Petitioner's action would be ultimately upheld on appeal by the Ninth Circuit. Instead, Leisnoi was simply listed as one of the villages subject to the Amendment's land exchange provisions, along with the other villages in the Koniag region whose eligibility had not been challenged, and that had already been determined to be eligible in final decisions made under ANCSA. B. The remanded agency proceedings 1. The IBLA's decision. On remand from the district court, the IBLA referred the matter to the Hearings Division, to conduct an evidentiary hearing to determine whether Leisnoi satisfied ANCSA's criteria for eligibility as an unlisted Native village. The case was assigned to Administrative Law Judge Harvey C. Sweitzer, who presided over a two -week hearing in the cities of Anchorage and Kodiak, Alaska in August 1998. On October 13, 1999, Judge Sweitzer issued a 100 -page Recommended Decision finding that Leisnoi did not satisfy ANCSA's criteria for eligibility as an unlisted Native village, and recommending that 16 Leisnoi be certified as not eligible for ANCSA benefits.' Pet. App. E. Among other things, the evidence adduced at the hearing showed that the same investigator who had investigated Leisnoi's application for eligibility had also investigated the other seven alleged villages in the Koniag region, and had similarly recommended that they be found to be eligible. The ALJ found that the BIA's investigation of Leisnoi's application had been "cursory," and that the BIA investigator's report was "misleading" and "of little probative value." Pet. App. E -69 to E -70. The ALJ found that the investigator had improperly attributed FAA buildings, facilities, and non - Native employees as being the facilities and residents of the alleged "village." Pet. App. E -66 to E -70. The ALJ also found that the affidavits that had been submitted in support of Leisnoi's application for eligibility were "misleading or false," that "nearly all of the Natives 6 The ALJ found that Leisnoi failed to satisfy the statutory and regulatory criteria for village eligibility, in that: 1) Leisnoi did not have 25 or more Native residents on April 1, 1970; 2) Leisnoi was not an established Native village on April 1, 1970 and did not have an identifiable physical location evidenced by occupancy consistent with the Natives' own cultural patterns and life - style; and 3) less than 13 of the Natives enrolled to Leisnoi used the alleged village during 1970 as a place where they actually lived for a period of time. Pet. App. E -232 to E -233. 17 enrolled to Woody Island were not residents in 1970." Pet. App. E -70. The ALJ concluded that, on April 1, 1970, "the island lacked a Native village." Id. On October 29, 2002, the IBLA issued a published decision, which adopted the ALJ's recommended decision.' 157 I.B.L.A. 302 (2002); Pet. App. D. The IBLA's decision also addressed the remanded issue of whether ANILCA Section 1427 had ratified Leisnoi's status as an eligible Native village and mooted the Petitioner's challenge. The IBLA determined that Section 1427 had not ratified Leisnoi's eligibility, or mooted the Petitioner's action. The IBLA concluded that the listing of Leisnoi as a "village corporation" in Section 1427(a)(4) and its entitlement to lands on Afognak Island "was not a ratification of its eligibility as a Native village." Pet. App. D -29. The IBLA noted that, at the time Congress enacted Section 1427, Leisnoi's status as an eligible Native village had already been established by a "final decision by the Secretary of the Interior that Woody Island, in fact, satisfied the ANCSA requirements 7 IBLA noted that the ALJ's decision constituted a comprehensive and exhaustive analysis of the evidence, which included "over 3,600 pages of transcript of the testimony of over 40 witnesses; depositions, affidavits, and interviews from over 50 witnesses; over 600 exhibits, totaling thousands of pages, and over a thousand pages of post- hearing briefing." Pet. App. D -42. 18 for status as a Native village," and concluded that the listing of Leisnoi in Section 1427(a)(4) "was merely reflective of that status." Id. The IBLA further noted that, at the time, the Petitioner's action had been dismissed by the district court, and that the Secretary's determination of Leisnoi's eligibility "was in effect, and not the subject of an immediate judicial challenge." Id. The IBLA stated that its conclusion that "it was not the intention of Congress to moot any lawsuit regarding Leisnoi's eligibility" by listing Leisnoi in Section 1427(a)(4) was "reinforced by the fact that in the same section Congress expressly provided for the resolution of disputes concerning the status of seven unlisted villages by declaring them each to be `deemed an eligible village under the Alaska Native Claims Settlement Act.' ... It could have done the same for Leisnoi, but it did not." Pet. App. D -30. 2. The Secretary's decision. Following the issuance of the IBLA's decision, Leisnoi sent a request to the Secretary to personally assume jurisdiction and reconsider and reverse the IBLA's decision. Although the matter had been remanded specifically to the IBLA, the district court stayed any further judicial proceedings until after the Secretary acted on Leisnoi's request. Four years later, on December 20, 2006, the Secretary issued a single- sentence decision that adopted the analysis and conclusions of a memorandum prepared by the Office of the Solicitor, authored by Deputy Solicitor Lawrence J. Jensen. Pet. App. C -2; C -4. In his memorandum, the Deputy Solicitor rejected the 19 IBLA's analysis, and concluded that ANILCA Section 1427 had ratified Leisnoi's eligibility and mooted the Petitioner's action. The Deputy Solicitor acknowledged that it was unclear whether Section 1427 had been intended to ratify Leisnoi's status and moot the Petitioner's action, and although it could - be read either way, he concluded that the "better reading" of Section 1427 was to interpret it as having ratified Leisnoi's status and as mooting the Petitioner's challenge. Pet. App. C- 26. The Deputy Solicitor reasoned that this construction of Section 1427 furthered its ostensible purpose, which was "to settle with finality and `as soon as practicable' the land entitlements of Koniag Regional Corporation and its villages ... ". Id. In view of this purpose, he stated that it is "reasonable to conclude that Congress intended to resolve all of the uncertainties and did not intend to leave the parties at risk of having their entitlements upset by a judicial resolution of Stratman's challenge to Leisnoi's eligibility." Pet. App. C -19 to C -20. The Deputy Solicitor concluded that 1/leading 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) is best read as ratifying the Secretary's eligibility determination with respect to Leisnoi." Pet. App. C -27. C. The district court proceedings On September 26, 2007, the district court issued a decision upholding the Secretary's interpretation 20 of Section 1427, and dismissing the Petitioner's action as moot. Pet. App. B. The court held that the Secretary's interpretation of Section 1427 was entitled to Chevron deference. Pet. App. B -11 to B- 17. The court found that Section 1427 was "ambiguous" as to whether Congress intended to ratify Leisnoi's eligibility, and that the Secretary's interpretation was "reasonable." Pet. App. B -14 to B -15. The court agreed with the Secretary's analysis and conclusion that ratification of Leisnoi's eligibility furthered Section 1427's purpose "of settling Koniag's land entitlement quickly and permanently." Pet. App. B -16. The court held that Section 1427 mooted the Petitioner's action, concluding that, by enacting Section 1427, "Congress effectively decided to overlook any doubts as to Leisnoi's eligibility or shortcomings in the Secretary's 1974 determination in order to settle the land selection process in the Koniag region with finality." Pet. App. B -17. D. The Ninth Circuit's decision On appeal, the Ninth Circuit applied a de novo standard of review, but independently interpreted Section 1427 as having "ratified" the Secretary's determination of Leisnoi's eligibility, and as mooting the Petitioner's action. Pet. App. A. The Court based its interpretation on the "plain language" of Section 1427, and applied the rule of statutory construction that a statute must be construed in accordance with its "plain and 21 unambiguous meaning." Pet. App. A -15 to A -16; A- 22 to A -23. The Court concluded that under its plain language, the listing of Leisnoi as a "village corporation" in Section 1427(a), and the declaration that Leisnoi was "entitled" to deficiency lands, demonstrated that Congress intended "to treat Leisnoi as an eligible village corporation under ANCSA." Pet. App. A -17. The Court concluded that the plain meaning of Section 1427 also " exempted" Leisnoi from ANCSA's village eligibility requirements, stating that "a Congressional determination that Leisnoi is a village corporation exempts Leisnoi from having to satisfy ANCSA's eligibility requirements." Pet. App. A -20. The Court stated that its construction of Section 1427 was also supported by the purpose of Section 1427, which, it stated, was "to facilitate and expedite the conveyance of federal lands within the State to ... Alaska Natives under ANCSA." Pet. App. A -21 to A -22. The Court reasoned that "[t]he 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. The Court rejected the Petitioner's contention that its interpretation of Section 1427 was governed by the canons of statutory construction regarding repeals by implication. In concluding that Section 1427 had "ratified" the Secretary's determination of Leisnoi's eligibility, the Court summarily concluded, in a footnote, that "[t]he foregoing analysis leads us to reject Stratman's contention that in order to 22 conclude that ANCSA's eligibility requirements do not apply to Leisnoi, we must find that § 1427 repealed the relevant eligibility and enforcement provisions of ANCSA." Pet. App. A -28 n. 5. The Court also "declined" to examine the legislative history of Section 1427, finding that its meaning was sufficiently "clear" from its plain language, stating that "[w]e decline to wade into § 1427's unhelpful legislative history to further clarify a matter of interpretation resolved on the face of the statute." Pet. App. A -22. REASONS FOR GRANTING THE PETITION I. The Ninth Circuit's Decision Invalidated An Act Of Congress In interpreting Section 1427 as having exempted Leisnoi from having to satisfy ANCSA's village eligibility requirements, the Ninth Circuit effectively invalidated ANCSA's village eligibility provisions as they applied to Leisnoi. Although the Ninth Circuit disagreed that its interpretation involved the repeal by implication of ANCSA's village eligibility provisions as to Leisnoi, its conclusion that Section 1427 "exempted" Leisnoi from having to satisfy ANCSA's village eligibility requirements, and mooted the Petitioner's action, was necessarily based on an implicit determination that these provisions had been repealed by implication. The fact that the Ninth Circuit's interpretation 23 invalidated ANCSA's village eligibility provisions without having analyzed and determined whether Congress had intended their repeal, raises a substantive issue of statutory construction. In enacting ANCSA's village eligibility provisions, Congress clearly manifested its intent and will that Leisnoi be required to satisfy ANCSA's statutory criteria for eligibility as a Native village, that the Secretary make specific findings to this effect, and that the Secretary's determination be subject to an action for judicial review to insure its correctness. To invalidate these provisions without finding that Congress had intended their repeal thwarts Congress' manifest will, and abrogates the policies it chose to establish in the invalidated provisions. In this respect, the Ninth Circuit's decision is the same as if it had invalidated these provisions on the ground they were unconstitutional. The fact that the invalidated provisions relate to a substantive enactment by Congress, involving the exercise of its plenary and exclusive authority to both regulate Indian affairs and dispose of the nation's public lands, provides even greater reason for review of its decision. II. The Ninth Circuit's Decision Is Erroneous And Conflicts With This Court's Precedents The primary error in the Ninth Circuit's analysis and interpretation of Section 1427 was its failure to apply the canons of statutory construction relating to repeals by implication. Under this Court's (1966). 10 Id. 24 precedents, a determination that a subsequent enactment has repealed the provisions of a prior existing statute by implication is subject to several well - established canons of statutory construction, including: 1) that repeals by implication are not favored, and the proponent of a determination of repeal by implication "bears a heavy burden of persuasion; " 2) when two statutes are capable of co- existence, it is the duty of the courts to regard each as effective, absent a clearly expressed congressional intention to the contrary; 3) a congressional intent to repeal must be "clear and manifest; " 4) in the absence of a clear and manifest intent to repeal, the provisions of both statutes must be given effect unless they are in "irreconcilable conflict," in the sense that there is a "positive repugnancy between them or that they cannot mutually coexist; " and 5) repeal is to be regarded as implied "only if necessary to make the later enacted law work, and even then only to the 8 Amell v. United States, 384 U.S. 158, 165 - 166, 9 Morton v. Mancari, 417 U.S. 535, 549 - 551 (1974). 11 Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 -155, (1976). 12 Id. 25 minimum extent necessary. "12 The Ninth Circuit denied that its interpretation of Section 1427 involved the repeal of ANCSA's village eligibility provisions as to Leisnoi. Pet. App. A -28 n. 5. However, its conclusion that Section 1427 mooted the Petitioner's action was necessarily based on an implicit determination that these provisions had been repealed by implication. Because these provisions provided the statutory grounds for the Petitioner's action for review of the Secretary's determination of Leisnoi's eligibility, their modification or repeal was necessary in order to "moot" his action. Robertson v. Seattle Audubon Soc., 503 U.S. 429, 438 -441 (1992); Friends of the Earth v. Weinberger, 562 F.Supp. 265, 271 -272 (D.D.C. 1983). This implicit determination is also reflected in the court's own analysis. The court concluded that Section 1427 ratified Leisnoi's eligibility and "exempt[ed] Leisnoi from having to satisfy ANCSA's village eligibility requirements." Pet. App. A -20. To "exempt" is to partly repeal. Because the Ninth Circuit's interpretation rested on an implicit determination that Section 1427 repealed ANCSA's village eligibility provisions as to Leisnoi, its interpretation was governed, under this Court's precedents, by the canons of statutory construction relating to repeals by implication. Rodriquez v. U.S., 480 U.S. 522, 523 -524 (1987); 26 U.S. v. United Continental Tuna Corp., 425 U.S. 164, 166 -169 (1976). The Ninth Circuit erred in determining that Section 1427 "exempted" Leisnoi from ANCSA's village eligibility requirements, based on its "plain language." The court found that the plain language of Section 1427, listing Leisnoi as a "village corporation," demonstrated a congressional intent "to treat Leisnoi as an eligible village corporation under ANCSA." Pet. App. A -16. From this, the court extrapolated a broader congressional intent to "exempt Leisnoi from having to satisfy ANCSA's village eligibility requirements." Pet. App. A -20. However, the court's finding that Section 1427 "treat[ed] Leisnoi as an eligible village corporation" should have been the beginning of the court's analysis, not the end. The plain language of Section 1427 demonstrated only that there was an apparent inconsistency between Section 1427 and ANCSA's prior village eligibility provisions. In order to find that Section 1427 repealed ANCSA's village eligibility provisions as to Leisnoi, the court was required to examine and determine whether there was either a "clear and manifest" Congressional intent to repeal, or whether the provisions of Section 1427 were in "irreconcilable conflict" with ANCSA's village eligibility provisions. Radzanower, 426 U.S. at 154 -155. In the absence of such a determination, the court had the duty to regard ANCSA's village eligibility provisions as fully effective as to Leisnoi. Id. 27 In this case, there was no "clear and manifest" intent to repeal ANCSA's village eligibility provisions as to Leisnoi. Although the language of Section 1427 may have "treat[ed] Leisnoi as an eligible village corporation," as was found by the Ninth Circuit, this does not itself demonstrate a "clear and manifest" intent to repeal ANCSA's village eligibility provisions as to Leisnoi. The issue, never examined by the Ninth Circuit, is whether Congress, by treating Leisnoi as an eligible village corporation in Section 1427, intended to "exempt" Leisnoi from ANCSA's village eligibility requirements (and thereby partly repeal them as to Leisnoi). The legislative history of Section 1427, which the Ninth Circuit refused to consider, shows that Congress had been unaware of the fact that the Secretary's determination of Leisnoi's eligibility had been challenged by the Petitioner, and was the subject of a pending action for judicial review. It shows that Congress enacted Section 1427's provisions under the mistaken belief that the Secretary's determination of Leisnoi's eligibility had already become final, and that ANCSA's village eligibility requirements had already been determined to have been satisfied by Leisnoi. If 13 At the time it enacted Section 1427, the Secretary's determination of Leisnoi's eligibility was final, as to everyone except the Petitioner, who was excused for his failure to challenge the Secretary's otherwise final determination of Leisnoi's eligibility in the original 28 Congress mistakenly believed that Leisnoi had already satisfied ANCSA's village eligibility requirements, including the making of a final determination of its eligibility by the Secretary, then it could not have intended to "exempt" Leisnoi or partly repeal these provisions when it enacted Section 1427 and "treat[ed] Leisnoi as an eligible village corporation." If anything, it demonstrates just the opposite— that Congress intended, and believed, that ANCSA's village eligibility provisions had already been applied to and satisfied by Leisnoi. Nor was there an "irreconcilable conflict" between Section 1427's provisions and ANCSA's village eligibility provisions. Section 1427 simply amended ANCSA's original land selection and entitlement provisions with respect to the Koniag region villages, to exchange the "deficiency" lands that...been withdrawn for their selection and conveyance on the Alaskan Peninsula, for other lands located on Afognak Island. These amended land selection and entitlement provisions are not in "irreconcilable conflict" with ANCSA's village eligibility provisions, just as ANCSA's original land selection and entitlement provisions were not in irreconcilable conflict with them. The Ninth Circuit acknowledged that effect could be given to both administrative proceedings, due to the DOI's failure to provide him with actual notice of the proceedings. Stratman v. Watt, 656 F.2d 1321, 1325 (9` Cir. 1981). 29 Section 1427 and ANCSA's village eligibility provisions, but denied that it was required to do so. Pet. App. A -17 to A -18. The Ninth Circuit also erred in inferring a congressional intent to "exempt" Leisnoi from ANCSA's village eligibility provisions, based on the perceived "purpose" of Section 1427. The court concluded that its construction of Section 1427 was supported by its purpose, which the court stated was to "facilitate a rapid land allocation" under ANCSA. Pet. App. A -22. However, the court failed to consider the competing purposes of ANCSA's village eligibility and judicial review provisions, which elevated the interests of ensuring the correctness of the Secretary's eligibility determinations, and enforcing ANCSA's eligibility requirements, over the interests of "rapidity" and "finality," in order to "assure that grants of public lands would be made only to eligible Native groups." Koniag, Inc. v. Andrus, 580 F.2d at 610- 11. As this Court has held, in determining whether one statute has repealed a prior statute by implication, it is not the province of the courts to choose between competing legislative choices, and it is "impermissible" for the court to determine that the purpose of the subsequent enactment will be best served by repealing the provisions of the prior statute. Rodriguez v. U.S., 480 U.S. 522, 523 -526 (1987). 30 III. The Ninth Circuit's Decision Abrogated Important Policies Established By Congress In The Exercise Of Its Plenary And Exclusive Authority To Regulate Indian Affairs And Dispose Of Public Lands In addition to substantive issues of statutory construction involving the invalidation of a prior congressional enactment, the enactment that was invalidated by the Ninth Circuit in this case also involves important policies that were adopted by Congress in the exercise of its plenary and exclusive authority to regulate Indian affairs and dispose of the nation's public lands. This Court has described Congress' constitutional power to legislate matters relating to Indian affairs as "plenary and exclusive." U.S. v. Lara, 541 U.S. 193, 200 (2004). This Court has also held that Congress' power to dispose of the public lands entrusted to it is `without limitations;" and that "it is not for the courts to say how that trust shall be administered. That is for Congress to determine." US. v. San Francisco, 310 U.S. 16, 29 -30 (1940). ANCSA involved the exercise of both of these powers. ANCSA's village eligibility requirements go to the heart of the policy adopted by Congress for managing Indian affairs in Alaska. Congress imposed ANCSA's village eligibility requirements, and mandated that the Secretary make a specific finding of their satisfaction, subject to an action for judicial review, as a strict condition precedent to 31 the recognition of an entity's status as an aboriginal village entitled to receive ANCSA settlement benefits. Satisfaction of these requirements was required in order to be recognized by Congress as an aboriginal village having an aboriginal claim for which settlement was being made. Satisfaction of these requirements was also made an express condition precedent to the conveyance of public lands to such entities. 43 U.S.C. § 1613(a). In view of the integral importance of these requirements to the policies adopted by Congress in its management of Indian affairs and public lands in the state of Alaska, their invalidation by the Ninth Circuit is a serious action that warrants review by this Court. N. Review Of The Ninth Circuit's Decision Will Prevent The Commission Of A Fraud On The United States The Ninth Circuit's decision effectively ends the last possible challenge to Leisnoi's certification as an eligible Native village, in spite of the fact that Leisnoi has now been determined by the IBLA to not have been qualified for eligibility under ANCSA, and that it obtained its certification as an eligible Native village on the basis of a fraudulent application for eligibility. The IBLA's findings remain undisturbed, by either the courts or the Secretary's decision on reconsideration of the IBLA's decision. However, because the district court never vacated the Secretary's original 32 determination of Leisnoi's eligibility when it remanded the case to the IBLA to re- determine Leisnoi's eligibility, the Secretary's original 1974 determination of Leisnoi's eligibility still remains in effect— and it will remain in effect forever unless it is vacated in this case. Consequently, the practical and legal effect of the Ninth Circuit's decision, if it is allowed to stand, is to forever insulate the Secretary's determination of Leisnoi's eligibility from challenge and invalidation, and to forever vest title and possession in Leisnoi to the public lands that the IBLA has now determined Leisnoi wrongfully obtained under ANCSA. The Ninth Circuit's decision will have a significant impact on the residents of Kodiak. Leisnoi has thus far received over 75 square miles of formerly public lands on and around the Island of Kodiak. Much of this land is located on the outskirts of the city of Kodiak, the seventh largest city, by population, in the state of Alaska. Because the site of the alleged village, on the island of Woody Island, lies only one mile off the coast from the city of Kodiak, Leisnoi was entitled to select, and ultimately received, formerly public lands located on the outskirts of the city of Kodiak, as well as lands located along Kodiak's sole coastal roadway, which leads from the city of Kodiak and runs south along the eastern side of the island to Cape Chiniak, where Leisnoi also holds lands. These formerly public lands had long been used by the residents of Kodiak for recreational purposes, and for subsistence hunting and fishing, as well as 33 for access to other lands located in the Island's interior. Since receiving these lands, Leisnoi has restricted their access, and no longer allows Kodiak's residents or visitors to access or use them without obtaining a special permit. These restrictions have caused a significant disruption to the use of these lands, and have become a source of conflict between Leisnoi and the residents of Kodiak, including both non - Native residents and Native residents who are not Leisnoi shareholders. See Eric Wander, Leisnoi Enforcing Land Policies, The Kodiak Daily Mirror, Sept. 4, 2008. Review by this Court will prevent the commission of a fraud on the United States, and will restore to the public domain the lands that Leisnoi wrongfully obtained. It will also effectuate the policies established Congress in accordance with its manifest intent. 14 www. kodiakdailymirror .com/ ?pid =19 &id =6625. 15 It should be noted that the invalidation of Leisnoi's certification as an eligible Native village would not result in the disenfranchisement of the Natives who were enrolled to it, or who are its current shareholders. Under the procedure adopted by Congress for this very contingency, they would simply be re- enrolled to, and become shareholders of, other existing village and/or regional Native corporations, according to their (or their ancestor's) actual place of residence on April 1, 1970. See Section 1(c) of the Act of Jan. 2, 1976, P.L. 92 -204, 89 Stat. 1145; Pet. App. H -26 to H -27. 34 CONCLUSION The petition for a writ of certiorari should be granted. January 2009 Respectfully submitted, MICHAEL J. SCHNEIDER Counsel of Record ERIC R. COSSMAN LAW OFFICES OF MICHAEL J. SCHNEIDER, P.C. 880 N Street, Suite 202 Anchorage, AK 99501 (907) 277 -9306 Counsel for Petitioner DIVERSION RATE (RECYCLING %) I LANDFILL LIFE YEARS No Recycling 0% 5.78 Present Rate 7.7% MSW, 5.5% Total Waste 6.12 10.0% MSW, 7.3% Total Waste 6.24 15.0% MSW,10.9% Total Waste 6.49 20.0% MSW, 14.6% Total Waste 6.77 25.0% MSW, 18.2% Total Waste 7.07 50.0% MSW, 36.5% Total Waste 9.10 The diversion rate is a percentage of the Muncipal Solid Waste (MSW) deposited in the landfill. The landfill also receives sludge from the sewage treatment plant and Construction and Demolition (C & D) debris. Threshold diverted 7.7% of the MSW in 2008. FSWMP: Landfill remaining life in 2007 was 105,000 tons. 14,730 tons added in 2008. 90,270 tons of remaing capacity. Threshold diverted 729 tons in 2007 and 856 tons in 2008. The 7.7% of the MSW in 2008 was 5.5% of the total amount deposited in the landfill. KODIAK LANDFILL LIFE JANUARY 1, 2009 Effects of Recycling l Set or £1L 4 III/ a ii D ii, c• 1 „A (/ h tie - Vc - - A )L / (_' I tOVAIU M JALLIO Ca II a■ e- On c�err m (9, / 'Y� 1 if Casa &vr,a, /Y/cg / tc g• /_,_,--,-- 6tn,.& ic_e_ /99-4/ 7oreo-b , 7G:---- f P/A k R L i 0 (t-6 - IP r ° a (, Z h,i„. L i Sk641(12- 4,007c--- R oiArt e ,,,,a ` may- I x..45 Mon► M& --L lust, vCK ,,v �`6� Jph z „ 57 of KODIAK ISLAND BOROUGH ASSEMBLY WORK SESSION Work Session of: Please PRINT your name Please PRINT your name