On Appeal from the United States District Courtfor the District of AlaskaH. Russel Holland, District Judge, presidingArgued and SubmittedJuly 14, 1998--Anchorage, AlaskaFiled September 8, 1998Before: Jerome Farris, Diarmuid F. O'Scannlain, andMichael Daly Hawkins, Circuit Judges.Opinion by Judge O'Scannlain
_____________________________COUNSEL Robert L. Breckberg (argued), Edgar Paul Boyko & Asso-ciates, Anchorage, Alaska, for the plaintiff-appellant.Michael J. Schneider (argued), Law Offices of Michael J.Schneider, Anchorage, Alaska, for the defendant-appellee.Robert H. Hume, Jr., Copeland, Landye, Bennett and Wolf,Anchorage, Alaska, for Ouzinkie Native Corporation, Nativesof Kodiak, Inc., and Yak-Tat Kwaan, Inc., amici curiae.
_____________________________OPINION O'SCANNLAIN, Circuit Judge:We must determine whether a "Village Corporation " mayprevent a "Regional Corporation" from authorizing sand-and-gravel mining near Kodiak under the Alaska Native ClaimsSettlement Act.IIn 1971, Congress enacted the Alaska Native Claims Settle-ment Act ("ANCSA"), see Act of December 18, 1971, Pub.L. No. 92-203, 85 Stat. 688 (codified at 43 U.S.C.S 1601-1629a), a "legislative compromise" designed to resolve landdisputes between the federal government, the state of Alaska,Alaskan Natives, and non-native settlers. City of Ketchikan v.Cape Fox Corp., 85 F.3d 1381, 1383 (9th Cir. 1996). Underthis compromise, Alaskan Natives received, in exchange forthe extinction of all claims of aboriginal title, approximatelyforty-four million acres of land and nearly $1 billion in fed-eral funds. See 43 U.S.C. SS 1605, 1607, 1613. Much of thisland was distributed in fee simple to "Regional Corporations"1and to "Village Corporations."2 ANCSA divided the state ofAlaska into twelve geographic regions, each with a Native-owned Regional Corporation. See 43 U.S.C.S 1606(a).Within these twelve regions are many villages represented byVillage Corporations, over 200 in total. See 43 U.S.C. S 1607.Unfortunately, through the years, the Regional and VillageCorporations have often found themselves in court as adver-saries. See, e.g., Koniag, Inc. v. Koncor Forest Resource, 39F.3d 991 (9th Cir. 1994); Tyonek Native Corp. v. Cook InletRegion, Inc., 853 F.2d 727 (9th Cir. 1988). The litigation hashad much to do with the fact that twenty-two million acres ofANCSA land are "dually owned": The surface estate belongsto the Village Corporations, and the subsurface estate to theRegional Corporations. See 43 U.S.C. SS 1611, 1613. Becauseof ambiguities in these abutting land rights, controversieshave arisen.This case is yet another chapter in the ongoing saga thatpits surface-estate owner against subsurface-estate owner. In1974, the Department of the Interior certified Leisnoi, Inc., asa Village Corporation for the Native village of Woody Island.Leisnoi thus became eligible to select over 115,000 acres ofland, which it would hold and manage on behalf of the Nativevillage of Woody Island. See 43 U.S.C. SS 1611, 1613. In itsapplication for land benefits, Leisnoi indicated that the Nativevillage was located within two townships on the historic,western side of Woody Island. Generally, a Village Corpora-tion like Leisnoi is allowed to select "all of the township ortownships in which any part of the village is located, plus anarea that will make the total selection equal to " its allottedacreage. 43 U.S.C. S 1611(a)(1) (emphasis added). Leisnoiselected some land on Woody Island, as well as some land onKodiak Island and Long Island.3 As explained above, Leis-noi's interest in this land is only in the surface estate.The Regional Corporation of Koniag received the subsur-face estate in the land that Leisnoi selected on Kodiak Island.This land is located near Kalsin Bay, some twelve miles anda channel of water away from the physical structures thatidentify the Village of Woody Island. Pursuant to a quitclaimdeed, Koniag transferred sand-and-gravel rights in a portionof this land to Omar Stratman, who has thus stepped intoKoniag's shoes for purposes of this appeal. Leisnoi and Strat-man are avowed enemies who have found themselves in courton many occasions over the past twenty years. See Leisnoi,Inc. v. Stratman, 835 P.2d 1202, 1214 (Alaska 1992) (summa-rizing litigation between the two). The dispute in this casearises from Stratman's mining activity on this "dually owned"land on Kodiak Island. Since July 1996, Stratman has beenextracting gravel from his subsurface estate. As one mightimagine, such operation can damage the surface estate, seeChugach Natives, Inc. v. Doyon, Ltd., 588 F.2d 723, 732 (9thCir. 1979), and destroy artifacts buried in the ground. Wishingto prevent these deleterious effects, Leisnoi asserted thatStratman must obtain its consent before proceeding. Not sur-prisingly, Stratman disagreed.Seeking injunctive and declaratory relief, Leisnoi filed suitin federal district court. Stratman responded by moving to dis-miss the case under Rule 12(b)(6) or, in the alternative, forsummary judgment. The district court granted the motion todismiss.4 According to the court, under ANCSA, asubsurface-estate owner (such as Stratman) needs to obtainthe consent of a Village Corporation (such as Leisnoi) onlywhen he wishes to mine lands "within the boundaries of a[ ]Native village." Leisnoi, Inc. v. Stratman, No. A96-0361-CV,at 16 (D. Alaska filed Jul. 3, 1997) (quoting 43 U.S.C.S 1613(f) (internal quotation marks omitted)). As the districtcourt saw it, Kodiak Island was simply not within the"boundaries" of the Native village of Woody Island.Leisnoi timely appealed.5IILeisnoi contends that the district court misconstrued thesection of ANCSA that vests in Village Corporations thepower to withhold consent from, and thereby to preclude,mining operations. Section 14(f) of ANCSA provides that theright "to explore, develop, or remove minerals from the sub-surface estate in the lands within the boundaries of any Nativevillage shall be subject to the consent of the VillageCorporation." 43 U.S.C. S 1613(f) (emphasis added). Accord-ing to Leisnoi, the "lands within the boundaries of a[ ] Nativevillage" include all lands patented to the Village Corporation,or at least all such lands that the Native village has histori-cally used. Under either interpretation, the lands within theboundaries of the Village of Woody Island would encompassthat portion of Kodiak Island on which Stratman has per-formed his gravel operation, and Leisnoi would be entitled toan injunction.6 Stratman counters that the boundaries of aNative village should instead be defined by physical struc-tures that indicate occupancy. If his view prevails, then Leis-noi's consent is not required, as the Village of Woody Islandhas structures only on Woody Island, not on Kodiak Island.A[1] When construing statutory language, this court assumes"that the legislative purpose is expressed by the ordinarymeaning of the words used." Seldovia Native Ass'n, Inc. v.Lujan, 904 F.2d 1335, 1341 (1990) (quoting Richards v.United States,
369 U.S. 1, 9
(1962) (internal quotation marksomitted)). Of course, because words can have alternativemeanings depending on context, we interpret statutes, not byviewing individual words in isolation, but rather by "readingthe relevant statutory provisions as a whole." City of Ketchi-kan, 85 F.3d at 1385 (internal quotation and citation omitted).We thus interpret the phrase, "lands within the boundaries ofany Native village," by looking, first, to the surroundingwords in S 14(f) (the subsection containing the consent pro-viso), and then, to other provisions in ANCSA.7Section 14(f) reads, in relevant part: When the Secretary issues a patent to a Village Cor- poration for the surface estate in lands . . . , he shall issue to the Regional Corporation for the region in which the lands are located a patent to the subsurface estate in such lands . . . : Provided, That the right to explore, develop, or remove minerals from the sub- surface estate in the lands within the boundaries of any Native village shall be subject to the consent of the Village Corporation.43 U.S.C. S 1613(f) (emphasis added). Quite significantly, thestatute expressly contemplates two distinct concepts: first,lands "patent[ed] to a Village Corporation, " and second, lands"within the boundaries of a[ ] Native village." Id. Whereas aVillage Corporation receives title to all "patent[ed]" lands, ithas the power to prevent mining, by withholding consent,only on those lands "within the boundaries of a[ ] Nativevillage."[2] Congress's use of two distinct phrases leads us to con-clude that two different meanings were intended. See 2ASutherland, Statutory Construction S 46.06 (5th ed. 1992 &Supp. 1997) ("[W]hen the legislature uses certain language inone part of the statute and different language in another, thecourt assumes different meanings were intended."). As thedistrict court noted, "[h]ad Congress intended the consentterm of subsection (f) to have general application, it wouldhave chosen language requiring consent as to all patentedlands, not the restrictive `within the boundaries' language." Inother words, if Congress wanted the consent requirement toapply to all patented lands instead of a mere subset of thoselands, Congress would have simply written the proviso as fol-lows: "Provided, That the right to explore, develop, or removeminerals from the subsurface estate in all lands patented toany Village Corporation shall be subject to the consent of theVillage Corporation." Thus, we agree with the district courtthat, because Congress envisioned two different concepts, theboundaries of the Native village do not include all lands pat-ented to the Village Corporation.Other sections of ANCSA support this construction; theysimilarly contemplate a distinction between all lands patentedand those lands within the boundaries of the Native village.Take, for example, the provision that makes certain federalland available for ANCSA patents by withdrawing it from thepool of land otherwise subject to appropriation under thepublic-land laws. See 43 U.S.C. S 1610. Significantly, thissection withdraws more than those lands that lie within theboundaries of the Native villages. All told, it withdraws: (A) The lands in each township that encloses all or part of any Native village . . . ; (B) The lands in each township that is contiguous to or corners on the township that encloses all or part of such Native village; and (C) The lands in each township that is contiguous to or corners on a township containing lands with- drawn by paragraph (B) of this subsection.43 U.S.C. S 1610(a)(1). The Native villages are located solelyin the townships mentioned in Paragraph (A); no Native vil-lage lies within the townships described in Paragraphs (B) or(C). These additional townships are nevertheless available forpatents to Village Corporations. Thus, S 1610 confirms thatall lands "patent[ed]" is a broader concept than those lands"within the boundaries of [the] Native village."Another example of how ANCSA contemplates a distinc-tion between these two concepts is the statutory provision thatauthorizes Village Corporations to select the land they wantpatented to them. See 43 U.S.C. S 1611. This section reads inrelevant part: [T]he Village Corporation for each Native village . . . shall select . . . all of the township or townships in which any part of the village is located, plus an area that will make the total selection equal to the acreage to which the village is entitled . . . .43 U.S.C. S 1611(a)(1) (emphasis added). Of course, the word"plus" implies that a Village Corporation is entitled to morearea than those "townships in which any part of the village islocated." Because a Village Corporation ends up with moreland than that which underlies the Native village, the landspatented to a Village Corporation must be more expansivethan the boundaries of the Native village.Finally, ANCSA provides that, after a Village Corporationselects its land, the Secretary of the Interior shall issue to thecorporation a patent to the surface estate in land, a portion ofwhich lies outside the Native village: The lands patented shall be the lands within the township or townships that enclose the Native vil- lage, and any additional lands selected by the Vil- lage Corporation from the surrounding townships withdrawn for the Native village . . . .43 U.S.C. S 1613(b). To be sure, this patent includes morethan the lands within the boundaries of the Native village. Notonly does the total include all land within the townshipsenclosing the Native village, but also "any additional lands"from surrounding townships.[3] Thus, the text of ANCSA draws a clear distinctionbetween the lands patented to the Village Corporation and theboundaries of the Native village. The land within the Nativevillage is a subset of the total patented lands. Hence, whenCongress wrote in S 14(f), "[t]hat the right to explore,develop, or remove minerals from the subsurface estate in thelands within the boundaries of any Native village shall be sub-ject to the consent of the Village Corporation," Congress wasnot requiring consent for mining in "all patented lands." Theplain language of the statute is unambiguous. The districtcourt was correct to reject Leisnoi's contrary construction.BThis conclusion, however, does not end our inquiry. Wemust still determine exactly where the boundaries lie.Although the preceding analysis indicates that the boundariesfall somewhere within the outer limits of the total patentedlands, it does not help us decide their precise location. Are theboundaries marked by the Native village's historical use, asLeisnoi contends, or occupancy of the land, as Stratman con-tends?[4] Turning to this question, we learn that a federal agencyhas already interpreted the consent provision in ANCSAS 14(f). See 43 C.F.R. S 2651.2(b)(2). Pursuant to ANCSAS 25, which authorizes regulations necessary for carrying outthe Act, see 43 U.S.C. S 1624, the Secretary of the Interiorhas established requirements that a village must meet beforeit can receive ANCSA land benefits. One of the requirementsis that the village must have "an identifiable physical locationevidenced by occupancy consistent with the Natives' own cul-tural patterns and life style." 43 C.F.R. S 2651.2(b)(2)(emphasis added). The mere existence of an "identifiablephysical location" requirement is unremarkable; the statuteitself anticipates each Native village will have a recognizablegeographic location. See, e.g., 43 U.S.C.S 1610(a)(1)(A)(withdrawing from public appropriation those "lands in eachtownship that encloses all or part of any Native village"); 43U.S.C. S 1611(a)(1) (permitting Village Corporation to selectland from "the township or townships in which any part of thevillage is located"). What is relevant to this appeal, we think,is how the Secretary determines this location. The Secretaryidentifies a Native village by looking for "evidence[ ] [of]occupancy consistent with the Natives' own cultural patternsand life style." 43 C.F.R. S 2651.2(b)(2) (emphasis added).Thus, in the Secretary's view, the "boundaries of a[ ] Nativevillage" are defined by reference to this physical evidence ofoccupancy.[5] Because the Secretary of the Interior bears "[t]he princi-pal responsibility for administering [ANCSA], " his interpreta-tions are entitled to "great weight" upon judicial review.Doyon, Ltd. v. Briston Bay Native Corp., 569 F.2d 491, 496(9th Cir. 1978); see also Seldovia Native Ass'n, 904 F.2d at1342 ("[A]n administrative agency's interpretation of a statuteit is charged with administering is accorded substantialdeference."). We may not "simply impose [our] own con-struction on the statute" without regard to the Secretary's reg-ulations. Chevron, U.S.A., Inc. v. Natural Resources DefenseCouncil,
467 U.S. 837, 843
(1984). Rather, we must defer tothe Secretary unless his interpretation is inconsistent with the"unambiguously expressed intent of Congress" or is otherwiseunreasonable. Id. at 842-43.1Leisnoi contends that identifying the boundaries of a Nativevillage by means of occupancy, as the Secretary has done, isindeed inconsistent with express congressional intent.According to Leisnoi, Congress provided a definition of"Native village" that unambiguously requires boundaries tobe determined by the Tribe's historical use -- not its occu-pancy -- of the land: "Native village" means any tribe, band, clan, group, village, community, or association in Alaska listed in sections 1610 and 1615 of this title, or which meets the requirements of this chapter, and which the Sec- retary determines was . . . composed of twenty-five or more Natives.43 U.S.C. S 1602(c) (emphasis added). Leisnoi argues that,because Congress used words such as "tribe, band, clan,group, village, community, [and] association, " Congress musthave intended an expansive definition of "Native village," onewhich extends to the Natives' "entire community. " From thispremise, Leisnoi jumps to the conclusion that courts shoulddefine the "boundaries of a[ ] Native village" by referencingthe areas in which the Natives historically hunted, fished,hiked, and camped.[6] We do not dispute Leisnoi's premise. At the risk ofbelaboring the obvious, the simple fact that Congress included"community" in its list of words defining a "Native village"indicates that the boundaries of the village extend over the"entire community." Nonetheless, there is a fatal flaw in Leis-noi's reasoning: the conclusion simply does not follow fromthe premise. There is no reason to believe that "community"must be defined by hiking and fishing instead of by occu-pancy. Indeed, the ordinary understanding of the word"community" might suggest that the opposite is true. Com-monly defined, a "community" is a "people with commoninterests living in a particular area." Webster's Ninth NewCollegiate Dictionary 267 (1986) (emphasis added). Hence,contrary to Leisnoi's contention, ANCSA's definition of"Native village" is not evidence of congressional intent todetermine boundaries by means of historical use; indeed, thedefinition may actually support the Secretary's understanding.2We thus inquire whether the Secretary's interpretation isotherwise "reasonable." See Chevron,
467 U.S. at 843
-44;Seldovia Native Ass'n, 904 F.2d at 1342. "The court need notconclude that the agency construction was the only one it per-missibly could have adopted to uphold the construction, oreven the reading the court would have reached if the questioninitially had arisen in a judicial proceeding." Chevron, 467U.S. at 843 n.11. Instead, we simply ask whether we are"compell[ed]" to reject the Secretary's construction. SeeAlaska Wildlife Alliance v. Jensen, 108 F.3d 1065, 1070 (9thCir. 1997) (internal quotations and citation omitted).[7] In this case, we are certainly not so compelled. ANCSAexpressly contemplates that a Native village has a geographic"locat[ion]." See 43 U.S.C.S 1611(a)(1) (authorizing selec-tion of land in "all of the township or townships in which anypart of the village is located"); cf. 43 U.S.C. S 1613(b) ("Thelands patented shall be the lands within the township or town-ships that enclose the Native village, and any additional landsselected by the Village Corporation from the surroundingtownships . . . ."). In everyday usage, the "location" of a town,city, or village is "a position or site occupied or available foroccupancy or marked by some distinguishing feature."Webster's Ninth New Collegiate Dictionary 701 (1986)(emphasis added); see also Webster's Third New Interna-tional Dictionary 1327 (1986) (defining "location" as "a posi-tion or site occupied or available for occupancy (as by abuilding) or marked by some distinguishing feature") (empha-sis added). Recognizing this ordinary understanding of theword "location," which is substantially identical to the Secre-tary's understanding, we would be hard pressed to say that theSecretary was unreasonable. Indeed, "[i]n the absence of anindication to the contrary, words in a statute are assumed tobear their `ordinary, contemporary, common meaning.' "Walters v. Metropolitan Educ. Enters., Inc., 117 S. Ct. 660,664 (1997) (quoting Pioneer Inv. Servs. Co. v. BrunswickAssocs. Ltd. Partnership,
507 U.S. 380, 388
(1993)). Withouta contrary statutory definition to unsettle this assumption, theSecretary did not make an unreasonable choice by followingthe ordinary understanding of the word "location. " Cf.Louisiana-Pacific Corp. v. Asarco Inc., 24 F.3d 1565, 1574(9th Cir. 1994) ("The reasonableness of this interpretation isdemonstrated by our analysis of what we have concluded tobe the plain meaning of the statute.").[8] Admittedly, in ANCSA, Congress may not have"directly addressed the precise question " of whether bounda-ries should be defined by occupancy or historical use; Con-gress's use of the word "locat[ion]" may be too casual toconstitute an "unambiguous[ ] express[ion]" of intent, asrequired to disregard an agency interpretation. Chevron, 467U.S. at 843 (emphasis added). However, the commonlyunderstood meaning of the word is indeed enough to renderthe Secretary's regulation "a permissible construction of thestatute." Id.aLeisnoi nevertheless challenges this interpretation as unrea-sonable for three reasons. First, Leisnoi argues, demarcatingboundaries by means of occupancy would render nugatory theconsent provision insofar as the Native village of WoodyIsland is concerned. In other words, according to Leisnoi, ifwe adopt the Secretary's interpretation, the Native village ofWoody Island would have no power to withhold consent andto preclude mining on any land. Leisnoi does not own the sur-face estate of the land on which the village's structures anddwellings are located; Leisnoi could not receive patents tosuch land because it lies within two miles of a "home rule"city, the City of Kodiak. 43 C.F.R. S 2650.6(a) ("Notwith-standing any other provisions of the act, no village or regionalcorporation may select lands which are within 2 miles fromthe boundary of any home rule or first-class city . . . .").Therefore, its argument goes, if Village Corporations maywithhold consent only when they own the underlying surfaceestate, Leisnoi would have no power to withhold consent overany land.We need not decide whether Leisnoi's presumption -- thatthe consent power is limited to land which the Village Corpo-ration owns (as well as occupies) -- is correct. Assuming itto be true, we hold that the Secretary's construction, which isconsistent with if not recommended by the plain meaning ofANCSA, is nevertheless reasonable. Our conclusion mightlead to perceived unfairness in a few rare situations, such asthis one, but perfection is not to be expected from a statutoryscheme such as ANCSA, which attempts to settle land claimsin over 200 villages across the largest state in our Union.Moreover, under Chevron, an agency's interpretation of astatute need not be flawless to be reasonable. See San Bernar-dino Mountains Community Hosp. Dist. v. Secretary of Healthand Human Servs., 63 F.3d 882, 889 (9th Cir. 1995); see alsoAppalachian Regional Healthcare, Inc. v. Shalala, 131 F.3d1050, 1054 (D.C. Cir. 1997) (Sentelle, J., dissenting) ("Weare all in agreement that to survive the two-step analysisdrawn from [Chevron], the Board's ruling . . . need not beperfect, or even the best, but only reasonable."). We thereforereject Leisnoi's first argument.bLeisnoi's second argument is that the Secretary's interpre-tation is inconsistent with legislative history. We disagree.The passage Leisnoi cites, an excerpt of a House Report, isinconclusive: Section 14(f) of the Settlement Act provides that the right to explore, develop, or remove minerals from the subsurface estate in the lands within the bounda- ries of any Native village are to be subject to the consent of the Village Corporation. This provision provides protection to villages from a precipitate decision by Regional Corporations to develop the subsurface estate. This provision seeks to avoid potential conflicts between villages which are hold- ers of the surface estate and which may be made concerned with preserving the use of the land in accordance with traditional local life-styles and sub- sistence economy and Regional Corporations which are holders of the subsurface estate and which may have as their focus the generation of revenues from the land.H. Rep. No. 94-729, at 26 (1975), reprinted in 1975U.S.C.C.A.N. 2376, 2393 (emphasis added). As this court hasemphasized, the use of legislative history as a tool for statu-tory interpretation suffers from a host of infirmities: not onlyis legislative history "not passed by both houses of Congressand signed into law by the President," but it also "need not bewritten with the same care, or scrutinized by those skepticalof the statute with the same care, as statutory language." SeePuerta v. United States 121 F.3d 1338, 1344 (9th Cir. 1997);see also Conroy v. Aniskoff,
507 U.S. 511, 519
(1993) (Scalia,J., concurring in judgment) (analogizing use of legislative his-tory to "entering a crowded cocktail party and looking overthe heads of the guests for one's friends"). Reliance on suchhistory is particularly suspect when it is inconsistent with theordinary understanding of the words in the statute and an oth-erwise reasonable agency interpretation.In any event, the language to which Leisnoi points isambiguous and arguably consistent with the Secretary's inter-pretation of the statute. The House Report simply expressesa desire to allow Village Corporations to "preserv[e] the useof the land in accordance with traditional local life-styles andsubsistence economy." The Report does not identify this land,aside from the fact that it is "within the boundaries of a[ ]Native village." In other words, the Report does not indicatewhether the land referenced is all land historically used (forfishing, hiking, etc.) or only land on which occupancy struc-tures have been built. Because the legislative history isunclear, it cannot displace the Secretary's understanding ofthe text of the statute.cFinally, Leisnoi contends that the Secretary's interpretationis in tension with a "Congressional policy of fostering eco-nomic growth." In the preamble of the statute, Congress pro-claimed that the ANCSA land settlement "should beaccomplished . . . in conformity with the real economic . . .needs of Natives." 43 U.S.C. S 1601(b). Leisnoi asserts in itsbrief that defining boundaries by occupancy stifles this policy:Surface estates would "effectively be rendered unmarketableand off-limits to any construction of homes or improvements,since subsurface owners could at any time dig out beneath thefoundations of any improvements to exercise what the districtcourt granted as an unfettered right to extract sand and gravelwithout notice and consent." We are unpersuaded for two rea-sons. First, we do not reach the question of whether Alaskaproperty law precludes mining activity that unreasonablyinterferes with the rights of surface-estate owners. Second,surface and subsurface-estate owners can, of course, resolvepotential future disputes by way of contract. Cf. Alaska v.Native Village of Venetie Tribal Gov't, 118 S. Ct. 948, 951(1998) (noting that ANCSA does not restrict land transfers byVillage or Regional Corporations). Theoretically, at least,given a world of no transaction costs, economic optimalitydoes not depend on the allocation of a property right (such asthe power to authorize mining) to one party or another; thetwo parties can simply bargain to the optimal solution. SeeR.H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1, 2-15 (1960). Assuredly, theory might not survive practice; how-ever, the determinations of whether theory prevails and, if not,whether economic growth is maximized by granting the prop-erty right to the surface-estate owner, instead of thesubsurface-estate owner, should not be made by the judiciary.We are ill-equipped to hypothesize on the consequences ofimperfect information or other impediments to bargaining.8"Such policy arguments are more properly addressed to legis-lators or administrators . . ." Chevron,
467 U.S. at 864
.Because "[t]he responsibilities for assessing the wisdom ofsuch policy choices and resolving the struggle between com-peting views of the public interest" are best left to the electedbranches of government, id. at 866, we do not hold the Secre-tary's interpretation unreasonable. The "boundaries of a[ ]Native village" are defined by occupancy, not historical use.III[9] Implementing this test, we simply examine whether theNative village of Woody Island has demonstrated evidence ofoccupancy on Kodiak Island. It has not. When the Native vil-lage applied for land benefits in 1973, pursuant to the Secre-tary's regulations, it reported its "locat[ion]" -- defined byoccupancy structures -- as follows: The Native Village of Woody Island is located within Townships: T27S and T28S, Range 19W, Seward Meridian, Alaska, as shown on the enclosed map.These townships, the map reveals, are on Woody Island, notKodiak Island. The Bureau of Indian Affairs confirmed thislocation later that year. Although it is conceivable that --through normal village expansion -- a Native village'sboundaries might today be different from what they were in1973, that is not the case here. Leisnoi has never suggestedthat the village has expanded to occupy Kodiak Island. Thus,Stratman, having already received a deed from Koniag, doesnot need Leisnoi's additional consent to proceed with his min-ing there. The district court did not err in granting the Rule12(b)(6) dismissal.AFFIRMED. the end
___________________________FOOTNOTES 1 A "Regional Corporation" is defined as "an Alaska Native RegionalCorporation established under the laws of the State of Alaska in accor-dance with the provisions of this chapter." 43 U.S.C. S 1602(g).2 A "Village Corporation" is "an Alaska Native Village Corporationorganized under the laws of the State of Alaska as a business for profit ornonprofit corporation to hold, invest, manage and/or distribute lands, prop-erty, funds, and other rights and assets for and on behalf of a Native vil-lage in accordance with the terms of this chapter. " 43 U.S.C. S 1602(j).3 Unfortunately, Leisnoi could not obtain the land on the western side ofWoody Island because of an exception to the general land-selection pro-cess. Under 43 C.F.R. 2650.6, Village Corporations may not "select landswhich are within 2 miles from the boundary of any home rule or first-classcity." Because the western side of Woody Island lay within two miles ofthe home rule city of Kodiak, the land was unavailable to Leisnoi.4 The court also dismissed Leisnoi's petition for a preliminary injunctionas moot.5 Leisnoi had also brought claims under the Archaeological ResourcesProtection Act, 16 U.S.C. S 470aa, and the National Environmental PolicyAct, 42 U.S.C. S 4332. The district court dismissed these claims as well.Because Leisnoi has not appealed on these issues, we do not considerthem here.6 In its complaint, Leisnoi asserted that, as evidenced by archeologicalfindings, the Village of Woody Island historically used this land onKodiak Island. Because we are reviewing a Rule 12(b)(6) dismissal, wemust accept this allegation as true. See Warshaw v. Xoma Corp. 74 F.3d955, 957 (9th Cir. 1996).7 Leisnoi urges the court to rely on another canon of statutory construc-tion. According to Leisnoi, because Congress designed ANCSA for thebenefit of Native Americans, the statute should be construed in their favor.To be sure, some ambiguous provisions should be interpreted to the bene-fit of Tribes. See, e.g., Alaska Pacific Fisheries v. United States, 248 U.S.78, 89 (1918) (noting "general rule that statutes passed for the benefit ofdependent Indian tribes or communities are to be liberally construed,doubtful expressions being resolved in favor of the Indians"). However,the canon can have no application to a case such as this one, in which therights of Tribes are in conflict with one another. Although Leisnoi is suingStratman, a non-Native, a judgment against Stratman would also curtailthe rights of Native-owned Regional Corporations, who have title to sub-surface estates elsewhere in Alaska. Moreover, we have previously heldthat this canon does not apply to ANCSA. See Seldovia Native Ass'n, 904F.2d at 1342; Haynes v. United States, 891 F.2d 235, 239 (9th Cir. 1989).But see Alaska ex rel. Yukon Flats Sch. Dist. v. Native Village of VenetieTribal Gov't, 101 F.3d 1286, 1294 (9th Cir. 1996) (applying the canon),rev'd, Alaska v. Native Village of Venetie Tribal Gov't, 118 S. Ct. 948(1998).8 For an analysis of obstacles to bargaining and their economic effects,see generally Robert C. Ellickson, The Case for Coase and Against"Coaseanism", 99 Yale L.J. 611 (1989).