Gwitchyaa Zhee Corporation et al v. Alexander et al

Filing 22

ORDER denying 11 Motion to Remand; granting 16 Motion for Judicial Notice. Signed by Judge H. Russel Holland on 7/3/18. (JLH, COURT STAFF)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

GWITCHYAA ZHEE CORPORATION and
GWICHYAA ZHEE GWICH’IN TRIBAL
GOVERNMENT,

)
)
)
)
Plaintiffs, )
)
vs.
)
)
CLARENCE ALEXANDER and DACHO
)
ALEXANDER,
)
)
Defendants.
)
_______________________________________)

No. 4:18-cv-0016-HRH

ORDER
Motion to Remand
Plaintiffs move to remand this case to state court.1 This motion is opposed.2 Oral
argument was not requested and is not deemed necessary.
Background
Plaintiffs are Gwitchyaa Zhee Corporation and Gwichyaa Zhee Gwich’in Tribal
Government. Defendants are Clarence Alexander and Dacho Alexander.

1

Docket No. 11.

2

Docket No. 14.
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“Plaintiff GZ Corporation is an” Alaska Native Claims Settlement Act (ANCSA)
“village corporation for the area of Fort Yukon, Alaska.”3 “Plaintiff Gwichyaa Zhee
Gwich’in Tribal Government . . . is a federally recognized tribe. . . .”4
Plaintiffs allege that “[p]ursuant to ANCSA, GZ Corporation received title to land
formerly held by the federal government.”5 Plaintiffs further allege that “[i]n 1994, Plaintiff
GZ Corporation and Plaintiff Tribe executed a Land Transfer Agreement that purports to
transfer GZ Corporation’s title in the land at issue in the lawsuit to the Tribe. However, the
Land Transfer Agreement exempts from that transfer any land GZ Corporation is required
to transfer as a § 14(c)(1) Claim.”6
Pursuant to § 14(c)(1) of [ANCSA], village corporations that
receive title to the surface estate of land formerly held by the
federal government are required to convey title to property
occupied by anyone that used the land as, among other things,
a primary residence, a primary place of business, or as a
subsistence campsite. . . .[7]
Plaintiffs allege that in 2008, in order to comply with its obligations under § 14(c)(1)
of ANCSA, “GZ Corporation submitted a ‘Map of Boundaries’ to the federal Bureau of Land

3

Complaint at 3, ¶ 7, Exhibit A, Notice of Removal of Civil Action, Docket No. 1.

4

Id. at 2, ¶ 2.

5

Id. at 3, ¶ 7.

6

Id. at 3, ¶ 8.

7

Id. at 2, ¶ 6.
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Management . . . that identified” 14(c)(1) claims in the Fort Yukon area.8 Plaintiffs allege
that “[t]he Fort Yukon Map of Boundaries created Tract 19 and 19A.”9
The Fort Yukon Map of Boundaries states that
[t]his Map of Boundaries depicts all tracts of land to be conveyed under section 14(c) of the Alaska Native Claims Settlement Act (85 stat 688) and represents the complete fulfillment
of the Gwitchyaa Zhee Corporation obligations under section
14(c) of ANCSA, for the Village of Fort Yukon.[10]
The President of GZ Corporation certified “that to the best of our knowledge, all conflicts
concerning property lines shown on this Map of Boundaries have been resolved[.]”11 The
Deputy Mayor of Fort Yukon approved the boundaries shown on the map and the BLM

8

Id. at 3, ¶ 9; the Fort Yukon Map of Boundaries is attached as Exhibit A to plaintiffs’
complaint.
9

Id. at 3, ¶ 10.

10

Exhibit C, Affidavit of Defendant Demetrie (Dacho) Alexander, appended to
Defendants’ Opposition to Plaintiffs’ Motion to Remand, Docket No. 14. This is an enlarged
version of a portion of the Map of Boundaries that is attached to plaintiffs’ complaint.
Defendants request that the court take judicial notice of text of the Fort Yukon Map of
Boundaries as well as the identities of the signatories and the dates of the signatures on the
Map. Plaintiffs do not dispute the authenticity of either the copy of the Fort Yukon Map of
Boundaries attached to their complaint or the copy attached to Dacho Alexander’s affidavit.
Pursuant to Federal Rule of Evidence 201, the court will take judicial notice of the text of the
Fort Yukon Map of Boundaries as well as the identifies of the signatories and the dates of
the signatures on the Map.
11

Exhibit C, Dacho Alexander Affidavit, appended to Defendants’ Opposition to
Plaintiffs’ Motion to Remand, Docket No. 14.
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accepted the Map for filing.12 Plaintiffs allege that at the time the Map of Boundaries was
submitted to the BLM, defendant Clarence Alexander was the Chairman of the Board of GZ
Corporation.13
Plaintiffs allege that Tract 19 consists of 5.77 acres and that Tract 19A consists of
2.83 acres.14 Plaintiffs further allege that Tract 19A “has historically been a public easement
used by community members to turn around, park and stage vehicles for using the Yukon
River.”15
Plaintiffs allege that “[i]n 2011, a surveyor was hired to conduct a precise survey of
the § 14(c)(1) Claims identified in the Fort Yukon Map Boundaries.”16 Plaintiffs allege that
defendants “convinced the surveyor to include more acreage in their § 14(c)(1) Claim than
identified on the Fort Yukon Map of Boundaries.”17 Plaintiffs allege that “[a]s a result, the
initial survey drawings incorrectly provided the Alexanders more acreage for what is now

12

Exhibits C and D, Dacho Alexander Affidavit, appended to Defendants’ Opposition
to Plaintiffs’ Motion to Remand, Docket No. 14.
13

Complaint at 3, ¶ 11, Exhibit A, Notice of Removal of Civil Action, Docket No. 1.

14

Id. at 4, ¶ 13.

15

Id.

16

Id. at 3, ¶ 12.

17

Id. at 4, ¶ 12.
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identified as Tract 19 than was originally allotted in the Fort Yukon Map of Boundaries[.]”18
Plaintiffs allege that the survey drawings were corrected in 2014.19
“In January 2016, Plaintiff GZ Corporation executed a quitclaim deed that recognized
its transfer of any and all of its interest in Tract 19 to Defendant Clarence Alexander.”20 This
transfer was based on a § 14(c)(1) claim Clarence Anderson had made in 1984.21 Plaintiffs
allege however that they “have not executed a deed or other conveyance document
transferring ownership of Tract 19A to anyone.”22
Plaintiffs allege that defendants have “moved their belongings not only onto Tract 19,
but also Tract 19A.”23 Plaintiffs allege that “[o]n June 16, 2017, [they] wrote a letter to the
Alexanders asking them to remove all personal equipment and debris from Tract 19A by June
30, 2017.”24 Plaintiffs allege that in response rather than removing their equipment and
debris from Tract 19A, defendants “posted no trespassing signs on the property.”25 Plaintiffs

18

Id.

19

Id. at 4, ¶ 13.

20

Id. at 4, ¶ 15; the quit claim deed is attached as Exhibit C to the complaint.

21

Affidavit of Defendant Clarence L. Alexander at 2, ¶ 12, appended to Defendants’
Opposition to Plaintiffs’ Motion to Remand, Docket No. 14.
22

Complaint at 4, ¶ 13, Exhibit A, Notice of Removal of Civil Action, Docket No. 1.

23

Id. at 4, ¶ 16.

24

Id.

25

Id. at 4-5, ¶ 16.
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allege that on September 28, 2017, they sent a letter to defendants demanding that they
remove the signs and their other property and “exit the property by October 9, 2017.”26
Defendants did not do so and on February 26, 2018, plaintiffs commenced this case
in state court. In their complaint, plaintiffs assert an ejectment claim. In order to prove their
ejectment claim, plaintiffs are “required to show that they ha[ve] a ‘legal estate’ in the
property and ‘a present right to possession of the property.’” Fink v. Municipality of
Anchorage, 379 P.3d 183, 190 (Alaska 2016)
On April 17, 2018, defendants removed the case to this court on the basis of federal
question jurisdiction.
Pursuant to 28 U.S.C. § 1447(c), plaintiffs now move to remand this case to state
court.
Discussion
Section 1447(c) provides, in relevant part, that “[i]f at any time before final judgment
it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”
“Under 28 U.S.C. § 1331, ‘[t]he district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.’” Rainero v.
Archon Corp., 844 F.3d 832, 836–37 (9th Cir. 2016) (quoting 28 U.S. § 1331)). “‘The
presence or absence of federal question jurisdiction is governed by the “well-pleaded
complaint rule,” which provides that federal jurisdiction exists only when a federal question

26

Id. at 5, ¶ 17.
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is presented on the face of the plaintiff’s properly pleaded complaint.’” Id. at 837 (quoting
Calif. ex rel. Sacramento Metro. Air Quality Mgmt. Dist. v. United States, 215 F.3d 1005,
1014 (9th Cir. 2000)). “[T]he federal question on which jurisdiction is premised cannot be
supplied via a defense; rather, the federal question must ‘be disclosed upon the face of the
complaint, unaided by the answer.’” Provincial Gov’t of Marinduque v. Placer Dome, Inc.,
582 F.3d 1083, 1086 (9th Cir. 2009) (quoting Phillips Petroleum Co. v. Texaco, Inc., 415
U.S. 125, 127–28 (1974)). “For a case to ‘arise under’ federal law, a plaintiff’s well-pleaded
complaint must establish either (1) that federal law creates the cause of action or (2) that the
plaintiff’s asserted right to relief depends on the resolution of a substantial question of
federal law.” Peabody Coal Co. v. Navajo Nation, 373 F.3d 945, 949 (9th Cir. 2004).
Defendants bear the burden of proving that removal was proper. Corral v. Select
Portfolio Servicing, Inc., 878 F.3d 770, 773 (9th Cir. 2017). The court “‘strictly construe[s]
the removal statute,’ and reject[s] federal jurisdiction ‘if there is any doubt as to the right of
removal in the first instance.’” Grancare, LLC v. Thrower by and through Mills, 889 F.3d
543, 550 (9th Cir. 2018) (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)).
Defendants first argue that federal law creates plaintiffs’ cause of action. However,
the sole claim in plaintiffs’ complaint is a state-law claim created by state statute, not a cause
of action created by federal law. Plaintiffs’ claim is brought pursuant to AS 09.45.630,
which provides that “[a] person who has a legal estate in real property and has a present right
to the possession of the property may bring an action to recover the possession of the

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property with damages for withholding it[.]” Plaintiffs allege that they have title to Tract
19A and they are asking the court to order defendants to vacate the property.
To the extent that defendants are arguing that federal law creates plaintiffs’ cause of
action because plaintiffs make reference to two federal statutes, 43 U.S.C. § 1613(c) and 43
§ 1632(b), in their complaint, that argument fails. “The mere fact that a federal statute is
mentioned in a complaint does not mean that a plaintiff’s cause of action ‘arises under’
federal law.” In re Calif. Retail Natural Gas and Electricity Antitrust Litig., 170 F. Supp. 2d
1052, 1058 (D. Nev. 2001).
Defendants next argue that there is federal question jurisdiction here because
plaintiffs’ right to relief under state law requires resolution of a substantial question of
federal law. “[F]ederal jurisdiction may . . . lie if ‘it appears that some substantial, disputed
question of federal law is a necessary element of one of the well-pleaded state claims [.]’”
Rains v. Criterion Systems, Inc., 80 F.3d 339, 345 (9th Cir. 1996) (quoting Franchise Tax Bd.
of State of Cal. v. Construction Laborers Vacation Trust for S. Calif., 463 U.S. 1, 13 (1983)).
In order to prevail on their ejectment claim, plaintiffs must prove that GZ Corporation has
legal title to Tract 19A, as they have alleged. Defendants argue that GZ Corporation’s claim
to legal title to Tract 19A involves such issues as whether plaintiffs provided adequate notice
to Clarence Anderson, which is a question of federal law. See Ogle v. Salamatof Native
Ass’n, Inc., 906 F. Supp. 1321, 1330 (D. Alaska 1995) (because Congress granted property
rights to § 14(c)(1) claimants in ANCSA, village corporation “must make reasonable efforts

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to alert the possessor of such rights to the risk of loss”). Defendants also contend that there
is an issue of whether plaintiffs complied with the survey regulations that pertain to §
14(c)(1) claims, 43 C.F.R. § 2650.5-4, which is also a question of federal law.
Plaintiffs, however, argue that there is nothing about their right to relief under the
state ejectment statute that requires resolution of federal law. While plaintiffs acknowledge
that their claim “necessarily requires the [c]ourt to determine who has legal title to the
property,”27 they argue that this will not involve questions of federal law. Plaintiffs cite to
Johnson v. Kikiktagruk Inupiat Corp., Case No. 3:05–cv–110 JWS, 2006 WL 2390481 (D.
Alaska Aug. 18, 2006), in support.
There, the court considered whether it had federal question jurisdiction over the
plaintiffs’ claim for promissory estoppel. Id. at *1. The plaintiffs sought “to enforce a
promise that defendant Kikiktagruk Inupiat Corporation (‘KIC’) allegedly made about the
boundaries of land it had determined it was required to convey to plaintiff Mabel Johnson
under 42 U.S.C. § 1613(c)(1).” Id. The court concluded that resolution of the promissory
estoppel claim would not depend on resolution of a substantial question of federal law
because there would be no need to apply or interpret ANCSA in order to resolve what was
essentially a boundary dispute. Id.
Plaintiffs argue that the same is true here, that resolution of their ejectment claim will
not require the court to apply or interpret ANCSA because this is basically a boundary

27

Plaintiffs’ Reply in Support of Motion to Remand at 5, Docket No. 20.
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dispute. Plaintiffs argue that defendants’ arguments about notice and compliance with 43
C.F.R. § 2650.5-4 (the village survey regulation) are defenses that defendants might raise and
thus are irrelevant to the question of whether federal question jurisdiction existed on the face
of plaintiffs’ well-pleaded complaint. In other words, plaintiffs contend that once they
establish that they have legal title to Tract 19A, then defendants can assert that the
boundaries of Tract 19A are incorrect, that their due process rights were violated because
they were not given sufficient notice that GZ Corporation was submitting the Fort Yukon
Map of Boundaries, and the other defenses they mention in their opposition to the instant
motion such as equitable tolling, estoppel, and waiver.
This case is distinguishable from Johnson, the case on which plaintiffs rely. There,
the primary issue as to the promissory estoppel claim was whether a promise had been made
about the boundaries of a § 14(c)(1) claim. Deciding whether a promise had in fact been
made would not implicate ANCSA or any of its implementing regulations. But here, the
primary issue is whether the boundaries of Tract 19A are correct. In their well-pleaded
complaint, plaintiffs put the correctness of the boundaries of Tract 19A at issue,28 and
resolution of that issue will depend on plaintiffs’ compliance with the requirements for §
14(c)(1) claims, which is a substantial question of federal law. Whether plaintiffs complied
with the notice requirements associated with § 14(c)(1) claims or the survey regulations are

28

Complaint at 3-4, ¶¶ 12-13, Exhibit A, Notice of Removal of Civil Action, Docket

No. 1.
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issues involved in the determination of the correct boundaries of Tract 19A. These are not
defenses that defendants might raise. These are issues that plaintiffs will have to prove in
order to establish a necessary element of their ejectment claim. Plaintiffs’ case arises under
federal law because plaintiffs’ well-pleaded complaint establishes that plaintiffs’ right to
relief on their state-law ejectment claim depends on the resolution of substantial questions
of federal law. Removal of plaintiffs’ complaint to this court was thus proper.
Conclusion
Plaintiffs’ motion to remand29 is denied. Defendants’ motion for judicial notice30 is
granted.
DATED at Anchorage, Alaska, this 3rd day of July, 2018.
/s/ H. Russel Holland
United States District Judge

29

Docket No. 11.

30

Docket No. 16.
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