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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ahtna, Inc. v. State, Dept. of Transportation & Public Facilities (1/18/2013) sp-6745

Ahtna, Inc. v. State, Dept. of Transportation & Public Facilities (1/18/2013) sp-6745

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

        corrections@appellate.courts.state.ak.us. 



                THE SUPREME COURT OF THE STATE OF ALASKA 



AHTNA, INC.,                                   ) 

                                               )       Supreme Court No. S-14075 

                Appellant,                     ) 

                                               )       Superior Court No. 4FA-08-01602 CI 

        v.                                     ) 

                                               )      O P I N I O N 

STATE OF ALASKA,                               ) 

DEPARTMENT OF                                  )      No. 6745 - January 18, 2013 

TRANSPORTATION & PUBLIC                        ) 

FACILITIES,                                    ) 

                                               ) 

                Appellee.                      ) 

                                               ) 



                Appeal   from    the  Superior    Court   of  the  State  of   Alaska, 

                Fourth Judicial District, Fairbanks, Michael A. MacDonald, 

                Judge. 



                Appearances:         Howard      S.   Trickey    and    Gregory     F. 

                Dorrington, Jermain, Dunnagan & Owens, P.C., Anchorage, 

                for Appellant.   M. Leone Hatch, Assistant Attorney General, 

                Fairbanks, and John J. Burns, Attorney General, Juneau, for 

                Appellee. 



                Before:    Carpeneti,     Chief   Justice,  Winfree    and  Stowers, 

                Justices. [Fabe, Justice, not participating.] 



                STOWERS, Justice. 


----------------------- Page 2-----------------------

I.      INTRODUCTION 



                In September 1961, the U.S. Bureau of Land Management (BLM) issued 



a right-of-way grant to the Alaska Department of Public Works (now the Department of 



Transportation and Public Facilities) conveying a "road building material site" along the 



Denali Highway with no expiration date and no rental fee.  The right-of-way grant was 



issued pursuant to federal statutes and subject to relevant federal highway regulations. 



                After the Alaska Native Claims Settlement Act (ANCSA) was enacted in 



       1 

1971,  the United States conveyed the surface and subsurface estates encompassing the 



State's material site to Ahtna, Inc. (Ahtna), an Alaska Regional Native Corporation 



created pursuant to ANCSA.  The conveyance was "subject to" the "[r]ights-of-way for 



Federal Aid material sites." 

                Section     14(g)   of  ANCSA2      allowed    the  federal   government      to  waive 



administration of the rights-of-way, which BLM did in 1984.                 The BLM waiver stated 



that the State was the grantee of the right-of-way at issue, and instead of providing an 



expiration     date  the  waiver    described    the  term   of  duration    of  the  right-of-way    as 



"[p]erpetual."  The waiver entitled Ahtna to "any and all interests previously held by the 



United States as grantor," but the waiver explicitly stated there were no rental or other 



revenues associated with the right-of-way.             The State removed material from the site 



until 1988, but the State did not use material from the site for the next 20 years. The State 



began using the site again in 2008. 



        1       Pub.     L .   No.    92-203,     85    Stat.    688    (1971)     (codified     at   43 



U.S.C.  1601-1629h (2006)). 



        2       Id .,  14(g), 85 Stat. at 704 (codified at 43 U.S.C.  1613(g)). 



                                                  -2-                                               6745 


----------------------- Page 3-----------------------

                Ahtna demanded compensation for the removal of gravel from the material 



site and directed the State to cease and desist further entry onto Ahtna lands.  The State 



responded that its right to remove the gravel pre-existed Ahtna's title interest. 



                The State filed suit against Ahtna, and the parties filed cross-motions for 



summary       judgment.     The    superior   court   granted   summary      judgment   to   the   State, 



concluding that the State had a valid interest in the material site right-of-way under the 



Federal-Aid Highway Act, and that Ahtna could not cancel the right-of-way for nonuse 



or   abandonment   so   long   as   the   State   operated   and   maintained   the   Denali   Highway. 



Ahtna appeals. 



                We affirm the superior court's grant of summary judgment to the State. 



II.     FACTS AND PROCEEDINGS 



        A.      The State's Material Site Right-Of-Way 



                On June 6, 1960, the Department of Public Works submitted an application 



to   BLM   for   a   material   site   easement   at   milepost   118.5   of   the   Denali   Highway   near 



Cantwell.     The   State   intended   to   use   the   14-acre   site   to   obtain   gravel   for   highway 



construction.    On September 26, 1961, BLM approved the application and granted the 



State a right-of-way.   The grant, F-026069, listed the permitted use for the right-of-way 



as "[r]oad building material site," listed the expiration date as "[n]one," and listed the 



rental amount as "[n]one."        The grant's map was labeled "material site easement." The 



BLM decision granting the right-of-way indicated it was issued pursuant to "Section 17 



                                                  -3-                                             6745
 


----------------------- Page 4-----------------------

                                                                                                   3 

 of the Federal Highway Act of November 9, 1921 (42 Stat. 216; 23 U.S.C. 18)"  and 



subject to specified federal regulations. 



        B.      BLM Waives Administration Of The Material Site. 

                ANCSA was enacted on   December 18, 1971.4                   Ahtna is one of the 13 



Alaska Native Regional Corporations organized under the terms of ANCSA.  Pursuant 



to ANCSA, on October 23, 1981, the United States conveyed the surface and subsurface 



estates encompassing certain of the State's material site rights-of-way to Ahtna through 



Interim Conveyance 443 (I.C. 443).  This conveyance stated that it was "subject to" the 



"[r]ights-of-way for Federal Aid material sites" and specifically listed F-026069 as one 



of   these   rights-of-way.    There   are   at   least   61   state   material   sites   on   Ahtna's   land 



including F- 026069. 



        3       42 Stat. 212 (1921) provides that the Act may be cited as the "Federal 



Highway Act."       We have previously referred to the Act as the "Federal-Aid Highway 

Act"   in  Tetlin   Native   Corporation   v.   State,   759   P.2d   528   (Alaska   1988),   where   we 

addressed a similar material site easement granted under the Act, but under a different 

federal regulation   than   that which   is at issue in   this case, as we discuss later in this 

opinion.     We explained in Tetlin that "[s]hortly after statehood the State of Alaska . . . 

proceeded to obtain interests to material site easements or rights-of-way across land held 

by the United States government.   The material site easements are a source of sand and 

gravel for highway construction and maintenance." Id . at 530.  We also noted that "[t]he 

Federal-Aid Highway Act of 1921 was repealed by the Highway Act of August 27, 1958, 

Pub. L. No. 85-767, 72 Stat. 919.          However  17 of the 1921 Act was replaced with a 

near verbatim provision in the 1958 Act, 23 U.S.C.  317 (1982)."  Id . at 530 n. 2.  The 

parties and the superior court in this case also used the term "Federal-Aid Highway Act," 

and for purposes of consistency, we use that term in this opinion as well. 



        4       Pub.     L.  No.    92-203,    85   Stat.  688    (1971)    (codified    at  43   U.S.C. 



 1601-1629h (2006)). 



                                                   -4-                                             6745
 


----------------------- Page 5-----------------------

                 Section 14(g) of ANCSA addresses the preservation of existing rights on 



lands   conveyed to an Alaska Native Corporation and waiver of federal government 



administration.     It states in part: 



                 All   conveyances       made    pursuant    to  this  chapter    shall  be 

                 subject to valid existing rights. Where, prior to patent of any 

                 land or minerals under this chapter, a[n] easement . . . has 

                 been issued for the surface or minerals covered under such 

                 patent, the patent shall contain provisions making it subject 

                 to the . . . easement, and the right of the . . . grantee to the 

                 complete   enjoyment   of   all   rights,   privileges,   and   benefits 

                 thereby   granted   to   him.   Upon   issuance   of   the   patent,   the 

                 patentee   shall   succeed   and   become   entitled   to   any   and   all 

                 interests of the State or the United States as . . . grantor, in 

                 any such . . . easements covering the estate patented . . . .  The 

                 administration of such . . . easement shall continue to be by 

                 the State or the United States, unless the agency responsible 

                 for administration waives administration.[5] 



When implementing Section 14(g) of ANCSA, the United States Department of the 



Interior promulgated a regulation making waiver of administration mandatory when the 



material site was entirely within the conveyance: 



                 Leases,     contracts,    permits,    rights-of-way,      or   easements 

                 granted prior to the issuance of any conveyance under this 

                 authority shall continue to be administered by the State of 

                 Alaska or by the United States after the conveyance has been 

                 issued, unless the responsible agency waives administration. 

                 Where the responsible agency is an agency of the Department 

                 of   the  Interior,   administration     shall   be  waived    when     the 

                 conveyance   covers   all   the   land   embraced   within   a   lease, 

                 contract, permit, right-of-way, or easement, unless there is a 

                 finding by the Secretary that the interest of the United States 



        5        Pub.   L.   No.   92-203,      14(g),   85   Stat.   at   704   (codified   at   43   U.S.C.    



1613(g)). 



                                                    -5-                                               6745 


----------------------- Page 6-----------------------

                 requires   continuation   of   the   administration   by   the   United 

                 States.[6] 



                 BLM waived its administration   of all of the rights-of-way contained in 



I.C. 443, including material site F-026069, on September 6, 1984.  The waiver reiterated 



that I.C. 443 was "subject to" rights-of-way that had been granted to the State of Alaska. 



The waiver did not provide an expiration date, instead describing the rights-of-way as 



"[p]erpetual."     The waiver also stated: 



                 Pursuant to law, the grantee is entitled to all rights, privileges, 

                 and benefits granted by the terms of the grants during the 

                 term of the grants until they expire, are relinquished, or are 

                 modified by mutual consent of Ahtna, Incorporated and the 

                 State   of   Alaska,   Department   of   Transportation   and   Public 

                 Facilities. 



                 Ahtna,     Incorporated      is  entitled  to   any   and   all  interests 

                 previously held by the United States as grantor in any such 

                 grants within the conveyance boundaries. 



                 There are no rental, or other revenues associated with these 

                 rights-of-ways. 



                 The State appealed BLM's waiver decision to the Interior Board of Land 



Appeals (IBLA), arguing that BLM's waiver of its administration of these rights-of-way 



did not transfer administration of the rights-of-way to the Native Corporation. However, 



in State of Alaska I , the IBLA panel majority held that even though the words "transfer" 



or "assign" do not appear in Section 14(g) of ANCSA or the implementing regulations, 



the "effect of such a waiver is to accomplish a transfer of [administration of outstanding 

rights-of-way] to the Native corporation to which the land has been conveyed."7                        The 



IBLA   stated,   "If   [the   United   States]   elects   to   waive   its   right   of   administration,   that 



        6        43 C.F.R.  2650.4-3 (1973). 



        7        State of Alaska, 86 IBLA 268, 271 (May 10, 1985) (State of Alaska I). 



                                                    -6-                                                 6745 


----------------------- Page 7-----------------------

function must naturally flow to, and be reposed in the owner of the land.  There can be 

no other logical consequence."8          The IBLA further explained: 



                 [S]uch   waiver   and   resultant   transfer   have   not   in   any   case 

                 impaired or diminished the State's "complete enjoyment" of 

                 its legal rights under the lease or right-of-way held by it. It 

                 still enjoys the same right to use the same land in the same 

                 manner under the same terms and conditions as before.[9] 



                 Administrative Law Judge Franklin D. Arness issued a vigorous dissent to 



this opinion.     Judge Arness argued there was "no authority" for the majority's holding 



that   the  waiver    of   administration     by   BLM     "automatically      results   in  a  transfer   of 



administration of an affected lease or right-of-way to the Native corporation which has 

been granted the servient estate."10       Judge Arness asserted that because the rights-of-way 



at issue were created pursuant to the Federal-Aid Highway Act, that statute's framework 

for    administering     the   rights-of-way      applied.11    Under      the  Act,   the   Secretary    of 



Transportation determined what lands may be appropriated as rights-of-way and material 



sites, and filed a map identifying those lands with "the Secretary of the Department 



supervising   the   administration   of   such   lands   or   interests   in   lands"   (in   this   case   the 

Department of the Interior).12        The administering Secretary in turn had to affirmatively 



        8        Id. at 272.
 



        9        Id. 
 



        10
      Id. at 275 (Arness, ALJ, dissenting). 



        11       Id. at 276 (discussing 23 U.S.C.  317 (1982)). 



        12       23 U.S.C.  317 (1982). 



                                                    -7-                                               6745
 


----------------------- Page 8-----------------------

reject the map, or else the Secretary of Transportation could transfer that land to the State 

highway department.13        Further, 23 U.S.C.  317(c) states: 



                If at any time the need for any such lands or materials for 

                such purposes shall no longer exist, notice of the fact shall be 

                given by the State highway department to the Secretary [of 

                Transportation] and such lands or materials shall immediately 

                revert to the control of the Secretary of the Department from 

                which they had been appropriated [here, the Department of 

                the Interior]. 



Thus, Judge Arness concluded that the Secretary of Transportation has "primary control" 



over the rights-of-way until the State notifies the Secretary that it intends to terminate the 



        13      23 U.S.C.  317(a) and (b) (1982) stated: 



                (a) If the Secretary [of Transportation] determines that any 

                part of the lands or interests in lands owned by the United 

                States is reasonably necessary for the   right-of-way of any 

                highway, or as a source of materials for the construction or 

                maintenance of any such highway adjacent to such lands or 

                interests in lands, the Secretary shall file with the Secretary 

                of   the   Department   supervising   the   administration   of   such 

                lands or interests in lands a map showing the portion of such 

                lands or interests in lands which it is desired to appropriate. 



                (b) If within a period of four months after such filing, the 

                Secretary of such Department shall not have certified to the 

                Secretary   that   the   proposed   appropriation   of   such   land   or 

                material is contrary to the public interest or inconsistent with 

                the   purposes   for   which   such   land   or   materials   have   been 

                reserved,     or  shall  have    agreed   to  the   appropriation     and 

                transfer under conditions which he deems necessary for the 

                adequate protection and utilization of the reserve, then such 

                land and materials may be appropriated and transferred to the 

                State highway department, or its nominee, for such purposes 

                and subject to the conditions so specified. 



                                                   -8-                                             6745
 


----------------------- Page 9-----------------------

grant.14  Only then, Judge Arness reasoned, would the Secretary of the Interior have the 



authority to exercise his discretion concerning the continued existence of the grant.15 



The State did not appeal the IBLA decision. 



                In 1987 the IBLA issued another opinion, State of Alaska II, holding that 



waiver of administration of the rights-of-ways "shift[s] the forum for resolution of the 



propriety of action taken in the administration of the right-of-way from Federal to State 



court    and   bypass[es]    the   intermediate     step  of  administrative     adjudication     by   the 

Department [of Interior]."16       The IBLA also determined that the Native Corporation's 



role as grantor of the rights-of-way "includ[es] the right to cancel" the grant.17 The State 



did not appeal this IBLA decision, either. 



        C.      Ahnta Attempts To Cancel The State's Material Site Grant. 



                In   2007    Ahtna   and   the   State   began   to   dispute   their   respective   rights 



regarding the material sites on Ahtna's land.   On March 30, 2007, Ahtna proposed that 



the State relinquish any claim to the material sites to clear title for Ahtna.              Ahtna also 



asserted that it expected to receive compensation for past removal of material from the 



material sites and directed the State to cease and desist entering Ahtna's lands without 



the corporation's written consent. Ahtna wrote another cease-and-desist letter but stated 



that it would sell material to the State at market rate.  The State responded that the public 



should not be required to pay for a right it already held and which existed before Ahtna's 



title interest was created. 



        14      State of Alaska I, 86 IBLA at 276 (Arness, ALJ, dissenting). 



        15      Id. 



        16      State of Alaska, 97 IBLA 229, 232 (May 11, 1987) (State of Alaska II). 



        17      Id. 



                                                   -9-                                             6745
 


----------------------- Page 10-----------------------

                 The State hired a third-party contractor to crush gravel from material site 



F-026069 in early 2008, but Ahtna sought to prevent this work.                     On April 25, 2008, 



Ahtna sent an "official notice of cancellation" to the State stating that all material right- 



of-way grants including F-026069 were "null and void" having "expired and/or been 



abandoned."  The State responded that Ahtna did not have the authority to terminate the 



State's rights and the State did not recognize the termination.  Both parties agree that the 



State had not used F-026069 for gravel extraction for 20 years, from 1988 to 2008. 



        D.       Procedural Background 



                 On April 24, 2008, the State filed a complaint in the superior court against 



Ahtna to   quiet title and for interference with contract.             The State requested that the 



superior   court   quiet   title   to   F-026069   in   favor   of   the   State   and   enter   an   injunction 



directing Ahtna to refrain from interfering with the State's use of the material site. Ahtna 



filed a counterclaim seeking a judgment declaring the material site right-of-way null and 



void and quieting title to the subsurface estate in favor of Ahtna. 



                 The parties filed cross-motions for summary judgment; both parties agreed 



there   were   no   genuine   issues   of   material   fact   in   the   case. Superior   Court   Judge 



Michael A. MacDonald granted summary judgment to the State concluding:                           (1) "the 



State continues to hold a valid interest in Material Source Right-of-Way Grant F-026069 



.   .   .   under   the   Federal-Aid   Highway   Act;"   (2)   "Ahtna   does   not   have   administrative 



authority over the grant;" (3) if the State intends to relinquish its interest in F-026069, 



"the State must affirmatively abandon [its] interest in the grant and therefore Ahtna 



cannot unilaterally revoke the State's interest;" and (4) "the grant cannot be deemed 



abandoned so long as the State operates and maintains the Denali Highway." In reaching 



its   conclusion   that   Ahtna   does   not   have   administrative   authority   over   the   grant,   the 



superior court agreed with Administrative Law Judge Arness's dissent in the IBLA case 



State    of  Alaska    I that   "[t]he   BLM     waiver    amounts      to  only   a  giving   up   of  the 



                                                   -10-                                              6745
 


----------------------- Page 11-----------------------

administrative authority" but "does not constitute a transfer of that authority to Ahtna." 



Ahtna appeals the superior court's summary judgment rulings. 



III.    STANDARD OF REVIEW 

               We review grants of summary judgment de novo.18            We consider "whether 



any genuine issue of material fact exists and whether on the established facts, the moving 

party is entitled to judgment as a matter of law."19 



               Because we agree with the parties that the material facts in this case are not 



in dispute, the issues presented are pure questions of law.           We interpret statutes and 



regulations "according to reason, practicality, and common sense, taking into account the 

plain meaning and purpose of the law as well as the intent of the drafters."20  The law in 



force at the time the grant was made controls.21 



IV.     DISCUSSION 



               Assuming BLM's Waiver Transferred Administrative Authority To 

               Ahtna,   That   Authority   Did   Not   Include   The   Right   To   Cancel   The 

               State's Interest In The Material Site For Nonuse Or Abandonment 

               Without Consent From The State. 



               The superior court concluded that "[t]he BLM waiver amounts to only a 



giving   up   of   the   administrative   authority.  It   does   not   constitute   a   transfer   of   that 



        18     Dias v. State, Dep't of Transp. & Pub. Facilities , 240 P.3d 272, 274 (Alaska 



2010). 



        19     Id. (quoting Nielson v. Benton , 903 P.2d 1079, 1051-52 (Alaska 1995)). 



        20     See Monzulla v. Voorhees Concrete Cutting, 254 P.3d 341, 345 (Alaska 



2011) (quoting Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003)). 



        21     Myers v. United States , 378 F.2d 696, 702 (Ct. Cl. 1967) ("In construing 



the effect of a public grant, it is the established rule that the law in force at the ti[m]e the 

grant is made governs."). 



                                               -11-                                           6745
 


----------------------- Page 12-----------------------

authority to Ahtna."      The superior court explained, "Ahtna did not inherit the power or 



authority to administer the right-of-way as a quasi-governmental entity." 



                 Ahtna   argues   that   under   the   doctrine   of   collateral   estoppel,   the   IBLA 



decision in State of Alaska I precludes the superior court from concluding that BLM's 



waiver did not transfer administrative authority over the State's material site to Ahtna. 



                 Collateral estoppel "bars the relitigation of issues actually determined in 

[earlier] proceedings."22      Collateral estoppel is applicable where: 



                 (1) the party against whom the preclusion is employed was a 

                party to or in privity with a party to the first action; (2) the 

                 issue   precluded   from   relitigation     is   identical   to   the   issue 

                 decided in the first action; (3) the issue was resolved in the 

                 first action by a final judgment on the merits; and (4) the 

                 determination       of   the   issue   was    essential    to  the   final 

                judgment. [23] 



We have recognized: 



                 Principles   of   finality   may   be   applied   to   the   decisions   of 

                 administrative agencies if, after case-specific review, a court 

                 finds    that   the  administrative      decision    resulted    from    a 

                procedure      that   seems    an  adequate     substitute   for  judicial 

                procedure and that it would be fair to accord preclusive effect 

                 to the administrative decision.[24] 



                 For purposes of this opinion, we assume that the superior court was bound 



by the IBLA's determination in State of Alaska I under the doctrine of collateral estoppel 



and that the BLM waiver constituted a transfer of administration and should have been 



        22      Jeffries v. Glacier State Tel. Co. , 604 P.2d 4, 8 n.11 (Alaska 1979). 



        23      Matanuska Elec. Ass'n v. Chugach Elec. Ass'n, 152 P.3d 460, 468 (Alaska 



2007). 



        24      Id. (quoting State, Child Support Enforcement Div. v. Bromley, 987 P.2d 



183, 192 (Alaska 1999)). 



                                                   -12-                                              6745
 


----------------------- Page 13-----------------------

given preclusive effect by the superior court.          However, even assuming BLM's waiver 



transferred administrative authority to Ahtna, we hold that authority did not include the 



power for Ahtna to cancel the right-of-way grant for nonuse or abandonment without the 

State's consent.25 



        A.	     The      plain    language      of   the   right-of-way       grant     and waiver of 

                administration        does   not   authorize     Ahtna    to   cancel   the   grant   for 

                nonuse or abandonment without the State's consent. 



                The plain language of the grant and waiver of administration shows that 



Ahtna has no authority to cancel the grant for nonuse or abandonment without the State's 



consent.     The   grant   provided   that   the   expiration   date   was   "[n]one."   The   waiver's 



language reinforced this when it described the right-of-way's term as "[p]erpetual" and 



stated, "[T]here are no rental, or other revenues associated with these rights-of-way." 



Most significantly, the waiver stated: 



                Pursuant to law, the grantee is entitled to all rights, privileges, 

                and benefits granted by the terms of the grants during the 

                term of the grants until they expire, are relinquished, or are 

                modified by mutual consent of Ahtna, Incorporated and the 

                State   of   Alaska,   Department   of   Transportation   and   Public 

                Facilities. 



 (Emphasis added.)  Because the right-of-way does not expire, has not been relinquished 



by the State, and has not been modified by mutual consent of Ahtna and the State, the 



grant does not cease to exist by nonuse or abandonment. 



        25      Ahtna's   briefing   argues   that   Ahtna   can   "unilaterally   cancel"   the   grant, 



suggesting Ahtna thought it could cancel the grant without cause. Ahtna clarified in oral 

argument that it only   asserts it has the authority to cancel the grant for nonuse and 

abandonment without the State's consent. 



                                                  -13-	                                              6745 


----------------------- Page 14-----------------------

        B.	      The grant's controlling statutes and regulations do not allow Ahtna to 

                 cancel the grant without the State's consent. 



                 Ahtna     also   argues    the  grant    is  subject   to  regulations     allowing     for 



cancellation without the State's consent.            The grant states that it is subject to federal 



regulation   "43   CFR,   Part   244,   Subparts   A   and   G"   as   well   as   "[a]ll   regulations"   in 



"[c]ircular numbers 1915, 2001, 2004, [and] 2012."               Ahtna asserts that two regulations 



under   43   C.F.R.   Part   244   (1955)   (recodified   as   43   C.F.R.   Group   2800   (1971)),   the 



regulations applicable at the time of the grant, allow cancellation without consent.  First, 



Ahtna argues that 43 C.F.R.  244.7(a), which would characterize the right-of-way as a 



revocable permit subject to the discretion of an authorized officer, applies.                    Second, 



Ahtna argues that 43 C.F.R.  244.15(b), which allowed a cancellation of rights-of-way 



by the authorized officer for abandonment or nonuse, applies. 



                 1.	     The State has a material site easement, not a revocable permit. 



                 Ahtna and the State disagree as to what kind of property interest the State 



possesses.  Ahtna asserts that it is a revocable permit while the State asserts it is a right- 



of-way easement.        43 C.F.R.  244.7(a) states: 



                 The interest granted shall consist of an easement, license, or 

                permit in accordance with the terms of the applicable statute; 

                 no   interest   shall   be   greater   than   a   permit   revocable   at   the 

                 discretion   of   the   authorized   officer  unless   the   applicable 

                statute provides otherwise . 



(Emphasis added.)         While Ahtna argues that the Federal-Aid Highway Act does not 



"provide[] otherwise" and therefore the grant is a revocable permit, we disagree.  The 



Act expressly authorized the State to determine when the right-of-way would terminate: 



                 If at any time the need for any such lands or materials for 

                 such purposes shall no longer exist, notice of the fact shall be 

                 given by the State highway department to the Secretary [of 

                 Transportation] and such lands or materials shall immediately 

                 revert to the control of the Secretary of the Department from 



                                                   -14-	                                             6745
 


----------------------- Page 15-----------------------

                which they had been appropriated [here, the Department of 

                the Interior].[26] 



This language indicates that the Act provided a specific mechanism for ending the right- 



of-way under the statute.   The statute requires an affirmative act by the State rather than 

leaving the fate of the right-of-way to the discretion of "the authorized officer."27 



                Further,    no  document     related   to  the  conveyance     of  the  material   site 



characterizes the interest as a revocable permit.   Rather, the plain language of the grant 



and the interim conveyance to Ahtna indicates that the State has a right-of-way easement. 



The phrase "right-of-way" is used in the title as well as in the text of the grant.  The map 



attached to the grant displaying the right-of-way along the Denali Highway characterizes 



the right-of-way as a "material site easement."           I.C. 443 Paragraph 16 also states that 



Ahtna's grant of lands is subject to "Rights-of-way for Federal Aid material sites." 



                Case law also supports the conclusion that the State's interest is a material 



site easement.  In Southern Idaho Conference Association of Seventh Day Adventists v. 



United States, the Ninth Circuit held that a material site "appropriated by the United 



States through the Department of Interior and transferred to the State of Idaho pursuant 

to the provisions of 23 U.S.C.  317" was a material site easement.28                 And in Tetlin 



Native Corporation v. State , we considered a material site granted to the State by the 



        26      23 U.S.C.  317(c) (1958); see also State of Alaska I, 86 IBLA 268, 275-76 



(May 10, 1985) (Arness, ALJ, dissenting) (citing and discussing 23 U.S.C.  317(c) 

(1982)). 



        27      43 C.F.R.  2557(a) (1955). 



        28      418 F.2d 411, 415 (9th Cir. 1969). 



                                                 -15-                                           6745
 


----------------------- Page 16-----------------------

Bureau of Indian   Affairs under the Federal-Aid Highway Act to be a "material site 

easement."29 Material site F-026069 is a right-of-way easement, not a revocable permit. 



                2.	     The State's right-of-way grant cannot be canceled for nonuse or 

                        abandonment. 



                Under the terms of the grant, the State's right-of-way is subject to 43 C.F.R. 



 244.15(b) (1955), which provided: 



                (b)  Nonconstruction,        abandonment,       or   nonuse.     Unless 

                otherwise      provided    by  law,   rights-of-way     are   subject   to 

                cancellation by the authorized officer for failure to construct 

                within the period allowed and for abandonment or nonuse.[30] 



                Ahtna   argues   that   it   is   the   authorized   officer,31  and   therefore   has   "the 



discretion   and   authority   to   cancel   the   State's   interest   in   the   material   site   for   either 



abandonment or nonuse." (Emphasis in original.)  The State asserts that Ahtna is not an 



authorized officer. Whether Ahtna is or is not the authorized officer is irrelevant because 

this   regulation    applies   "[u]nless   otherwise     provided    by   law."32   The    Federal-Aid 



Highway Act's provision, 23 U.S.C.  317(c) (1958), as discussed above, "otherwise . . . 



        29	     759 P.2d 528, 533 (Alaska 1988). 



        30	     43 C.F.R.  244.15(b) (1955) (emphasis added). 



        31      While the term "authorized officer" is not explicitly defined in the Federal- 



Aid Highway Act, a regulation on the delegation of authority under the Act states: 



                The Administrator is authorized to redelegate any power or 

                authority conferred upon him to the Commissioner or to any 

                other official or employee of the Bureau of Public Roads as 

                in his judgment will result in efficiency and economy in the 

                effectuation      of   the  purposes     of   Federal    law    and   the 

                regulations in this part. 



23 C.F.R.  1.37 (1965). 



        32      43 C.F.R.  244.15(b). 



                                                  -16-	                                            6745
 


----------------------- Page 17-----------------------

provide[s]" the exclusive procedure the State must follow to relinquish control of the 



material site.  The Act expressly authorizes the State to determine when to terminate the 



right-of-way; therefore 43 C.F.R.  244.15(b) is inapplicable here. 



                Ahtna     also   argues   that  this  court   has   previously    held   that  a  Native 



Corporation has the power to terminate the State's interest in material sites under federal 



regulations.    Ahtna points out that in Tetlin Native Corporation v. State, we stated that 



a Native Corporation "as successor-in-interest to the Federal Government has the power 



to terminate the material site easements if the State abandons or discontinues the use for 

which the sites were granted."33       But the context of the conveyance of the land containing 



the material site easements to Tetlin Native Corporation was significantly different than 



the circumstances of the conveyance in this case, and the regulatory authority creating 



the power to terminate material site easements in Tetlin is not the authority governing the 



material site easement in this case. 



                In  Tetlin Native Corporation, the material site easements at issue were 



located on the Tetlin Native Reserve, land owned by the United States but occupied by 

the Tetlin Native people.34       The land was subsequently conveyed to the Tetlin Native 



Corporation   under   terms   contained   in   ANCSA;   the   "Tetlin   Native   Corporation   .   .   . 



elected to receive fee simple title to its former reserve and forego participation in the 

monetary   settlement   authorized   by   ANCSA."35          In   this   context   we   said,   "Tetlin   as 



successor-in-interest to the Federal Government has the power to terminate the material 



site easements if the State abandons or discontinues the use for which the sites were 



        33      759 P.2d 528, 537 (Alaska 1988). 



        34      Id . at 530 and n.4. 



        35      Id . at 531. 



                                                  -17-                                               6745 


----------------------- Page 18-----------------------

granted.   25 C.F.R.  169.20." 36     Our citation to 25 C.F.R. 169.20 is significant. Title 



25 C.F.R.  169.20 by its own terms applies only to "[a]ll rights-of-way granted under 

the regulations in this part."37    Part 169 of Title 25 of the Code of Federal Regulations 



pertains to rights-of-way over Indian lands, like the Tetlin Native Reserve.  But Title 25 



C.F.R. Part 169 does not apply to the Federal-Aid Highway grant in this case;                 rather 



Title 43 C.F.R. Part 244 provides the applicable regulations, and as explained above, 



because   the   Federal-Aid   Highway   Act   provides   otherwise,   even   the   provisions   of 



43 C.F.R.  244.15(b) pertaining to cancellation by nonconstruction, abandonment, and 



nonuse do not apply.   To summarize, the State's right-of-way grant cannot be canceled 



for nonuse or abandonment because the Federal-Aid Highway Act's provisions preempt 



the applicability of 43 C.F.R.  244.15(b), and no other regulation permitting termination 



for nonuse or abandonment applies. 



VI.     CONCLUSION 



                We AFFIRM the superior court's grant of summary judgment to the State. 



        36     Id . at 537. 



        37      25 C.F.R.  169.20 (2012) (emphasis added). 



                                                -18-                                             6745 

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