Akiachak Native Community v. DOI , 827 F.3d 100 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 4, 2016 Decided July 1, 2016
No. 13-5360
AKIACHAK NATIVE COMMUNITY, ET AL.,
APPELLEES
v.
UNITED STATES DEPARTMENT OF THE INTERIOR AND SALLY
JEWELL, SECRETARY OF THE INTERIOR,
APPELLEES
STATE OF ALASKA,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-00969)
J. Anne Nelson, Assistant Attorney General, Office of the
Attorney General for the State of Alaska, argued the cause
and filed the briefs for appellant.
Elizabeth Ann Peterson, Attorney, U.S. Department of
Justice, argued the cause for federal appellees. With her on
the brief were John C. Cruden, Assistant Attorney General,
and William B. Lazarus, Attorney.
2
Heather R. Kendall-Miller argued the cause for tribal
appellees. With her on the brief were Matthew N. Newman,
Richard Guest, Lloyd Benton Miller, Hollis L. Handler, and
Goriune Dudukgian.
Before: TATEL, BROWN, and MILLETT, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
Dissenting opinion filed by Circuit Judge BROWN.
TATEL, Circuit Judge: In 1971, after decades of conflict,
the United States finally settled land claims staked by
descendants of Alaskan aboriginal tribes. The U.S.
Department of Interior had long interpreted this settlement to
bar it from taking land into trust for Indian tribes in Alaska. In
this case, several Alaska Native tribes sued the Department,
challenging the regulation implementing that prohibition.
After the district court held that Interior’s interpretation was
contrary to law, the Department, following notice and
comment, revised its regulations and dismissed its appeal. The
State of Alaska disagrees with both the district court and
Interior, and now seeks to prevent any new efforts by the
United States to take tribal land in trust within the State’s
borders. Unfortunately for Alaska, which intervened in the
district court as a defendant and brought no independent claim
for relief, the controversy between the tribes and the
Department is now moot. We therefore dismiss Alaska’s
appeal for lack of jurisdiction.
I.
Like many Alaska Native tribes, the three tribes that
initiated this litigation—Akiachak Native Community,
Chalkyitsik Village, and Tuluksak Native Community—live
in small villages reachable only by air and water. Compl.
3
¶¶ 24, 30, 41. These tribes, together with the Chilkoot Indian
Association (collectively “Akiachak”), sought to persuade the
Department of Interior to take certain land into trust—a form
of restricted land ownership under which the United States
possesses legal title to land for the benefit of Indian tribes. Id.
¶¶ 29, 36, 40, 42. They believed that trust status would
“ensure [the] protection” of these lands “for future
generations of tribal members,” id. ¶ 40, as well as allow
them to “assert undisputed jurisdiction over [these] lands” and
obtain federal enforcement of ordinances banning alcohol
sales, id. ¶ 35.
Akiachak, however, faced a significant barrier to this
course of action: the Department of Interior had long
maintained that it was legally barred from procuring trust land
in Alaska. See 25 C.F.R. § 151.1 (1980) (establishing that the
Department of Interior’s land-into-trust regulations “do not
cover the acquisition of land in trust status in the State of
Alaska, except acquisitions for” one tribe lacking aboriginal
claims). By filing this lawsuit, Akiachak set out to change
that.
Some background is necessary to understand the basis for
Akiachak’s claim to relief. Acquisition of Indian trust lands
by the U.S. government has a long history. The Indian
Reorganization Act of 1934 (IRA) authorizes the Secretary of
the Interior to acquire trust lands, 25 U.S.C. § 465, and
designate new Indian reservations, id. § 467. The IRA
considers Alaska Natives to be Indians for purposes of the
Act, id. § 479, but originally excluded Alaska, then a territory,
from the trust acquisition provision, Indian Reorganization
Act of 1934, Pub. L. No. 73-383, § 13, 48 Stat. 984, 986. In
1936, Congress extended the IRA’s trust authority to Alaska
and authorized the Secretary to designate as reservations land
that had been allocated for Indian use under prior statutes and
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executive orders, Act of May 1, 1936, Pub. L. No. 74-538,
§§ 1, 2, 49 Stat. 1250, resulting in the designation of seven
reservations and the acquisition of several other properties in
trust, Akiachak Native Community v. Salazar (Akiachak I),
935 F. Supp. 2d 195, 198 (D.D.C. 2013). Six decades later, in
1994, Congress added an antidiscrimination provision that
prohibited the Department of Interior from “classif[ying],
enhanc[ing], or diminish[ing] the privileges and immunities
available to a federally recognized Indian tribe relative to the
privileges and immunities available to other federally
recognized tribes.” Act of May 31, 1994, Pub. L. No. 103-
263, 108 Stat. 707, 709 (codified at 25 U.S.C. § 476(g)).
But these ownership schemes left unresolved many
outstanding land claims by Alaska Natives based on
aboriginal rights, that is, “possessory rights of Indian tribes to
their aboriginal lands . . . extinguishable only by the United
States.” Oneida Indian Nation of New York v. Oneida County,
414 U.S. 661, 667 (1974). After Alaska became a state in
1959, this potential for outstanding aboriginal claims limited
the U.S. government’s ability to transfer land to the new state
under the Alaska Statehood Act. Conflict over the State’s land
selections prompted Congress to pass the Alaska Native
Claims Settlement Act (ANCSA) in 1971. “[D]esigned to
settle all land claims by Alaska Natives,” ANCSA
extinguished aboriginal claims and revoked all designated
reservations, except for one: the Annette Island Reserve
inhabited by the Metlakatla Indians, who, as immigrants from
Canada, had no aboriginal claims to Alaska lands. Alaska v.
Native Village of Venetie Tribal Government, 522 U.S. 520,
523–24 (1998); Federal Appellees’ Br. 8. In exchange, Alaska
Natives received approximately 44 million acres of land and
$962.5 million, to be distributed through corporations owned
by Alaska Native shareholders. Venetie, 522 U.S. at 524
5
(citing 43 U.S.C. §§ 1605, 1607, 1613). Congress declared
that the settlement
should be accomplished rapidly, with certainty, in
conformity with the real economic and social needs
of Natives, without litigation, with maximum
participation by Natives in decisions affecting their
rights and property, without establishing any
permanent racially defined institutions, rights,
privileges, or obligations, without creating a
reservation system or lengthy wardship or
trusteeship, and without adding to the categories of
property and institutions enjoying special tax
privileges or to the legislation establishing special
relationships between the United States Government
and the State of Alaska[.]
43 U.S.C. § 1601(b). Following ANCSA’s passage, Congress
repealed other statutes governing procurement of land for use
by Alaska Natives, including the 1936 amendment
authorizing the Secretary to designate reservations in Alaska.
Federal Land Policy and Management Act of 1976, Pub. L.
No. 94-579, § 704(a), 90 Stat. 2743, 2792. Importantly,
however, Congress never repealed the IRA’s Alaska trust
provision.
In 1978, a tribe’s request to take certain land into trust
spurred the Department of Interior to determine ANCSA’s
effect on its authority to acquire trust lands in Alaska.
Concluding that “Congress intended permanently to remove
from trust status all Native land in Alaska except allotments
and the Annette Island Reserve,” Memorandum from Thomas
W. Fredericks, Associate Solicitor, Indian Affairs, to
Assistant Secretary, Indian Affairs 3 (Sept. 15, 1978)
(“Fredericks Opinion”), Interior published regulations
6
governing acquisition of Indian trust land that excluded “the
acquisition of land in trust status in the State of Alaska,” a
provision known as the “Alaska exception.” 25 C.F.R. § 151.1(1980). It was this Alaska exception that stood in Akiachak’s
way.
Akiachak filed the complaint in this case against the
Secretary and the Department of Interior, seeking declaratory
relief in the form of an order ruling that the Alaska exception
violated the IRA’s antidiscrimination provision, the
Constitution, and the Administrative Procedure Act. Compl.
¶¶ 54, 56, 58; id. Prayer for Relief ¶¶ I–III. Akiachak also
sought an injunction directing Interior “to implement the
acquisition of land into trust procedures without regard to the
bar against Alaska tribes” and “to accept and consider
Plaintiffs’ requests to have lands in Alaska taken into trust.”
Id. Prayer for Relief ¶¶ IV–V.
The State of Alaska, seeking to defend the Alaska
exception’s validity, intervened in the district court as a
defendant. The State filed an answer in which it presented
several affirmative defenses, including that Akiachak’s claims
were “barred by the Alaska Native Claims Settlement Act.”
State of Alaska’s Answer, Affirmative Defenses ¶ 3. The
State’s answer also included a prayer for relief in which it
requested “entry of a judgment . . . declaring [the Alaska
exception] compliant with [the IRA’s antidiscrimination
provision],” “denying plaintiffs’ requested injunctive relief,”
and “declaring [the Alaska exception] consistent with and
compelled by the Alaska Native Claims Settlement Act.” Id.Prayer for Relief ¶¶ 1, 4, 6. Alaska’s answer included no
purported crossclaim against Interior or counterclaim against
Akiachak, nor did the State file any separate crossclaim or
counterclaim.
7
In response to cross motions for summary judgment, the
district court agreed with Akiachak that the Alaska exception
violated the IRA and granted summary judgment in its favor.
Akiachak I, 935 F. Supp. 2d at 210–11. The court observed
that the 1936 amendments to the IRA had expressly granted
the Secretary authority to take land into trust in Alaska. Id. at
203. Akiachak argued—and Interior agreed—that such
authority had survived ANCSA, while Alaska argued that
ANCSA had “implicitly repealed the Secretary’s statutory
authority to take Alaska land into trust outside of Metlakatla.”
Id. at 203–04. Following thorough consideration of Alaska’s
arguments, the district court concluded that “[f]rom the
weight of the textual and structural evidence, and the strength
of the presumption against implicit repeals, . . . ANCSA left
intact the Secretary’s authority to take land into trust
throughout Alaska.” Id. at 208. The court then ruled that
because the Alaska exception prevented the Secretary from
considering trust petitions from non-Metlakatlan Alaska
Natives, it violated the IRA’s antidiscrimination provision. Id.
at 210–11.
The district court then ordered the parties to brief the
question of the appropriate remedy. Abandoning its claim to
injunctive relief, Akiachak urged the court to remand to the
Secretary for “curative rulemaking.” Akiachak Native
Community v. Jewell (Akiachak II), 995 F. Supp. 2d 1, 6
(D.D.C. 2013). Instead, the district court severed and vacated
the portion of 25 C.F.R. § 151.1 that constituted the Alaska
exception. Id. Vacatur was appropriate, the court concluded,
because “the deficiencies of the Alaska exception [were] fatal;
the Secretary could not promulgate it again on remand.” Id.Subsequently, the district court granted Alaska’s motion to
enjoin Interior from taking any land into trust pending appeal.
Akiachak Native Community v. Jewell (Akiachak III), 995 F.
Supp. 2d 7, 18–19 (D.D.C. 2014).
8
Although Interior initially appealed the district court’s
judgment, it eventually decided to revise its regulations and
drop its appeal. Specifically, it issued a proposed rule
eliminating the Alaska exception, and sought comment on
that course of action. 79 Fed. Reg. 24,648, 24,649 (May 1,
2014). Alaska filed comments in opposition and also filed a
motion in the district court to enjoin the rulemaking. The
district court denied the motion, noting that Alaska had never
“argue[d] that the Proposed Rule or the rulemaking process
itself [would] cause it irreparable harm,” and explaining that
such processes could cause no such harm “[b]ecause the
rulemaking process marks such a preliminary step, and one
with limited consequences,” given that the court “ha[d]
already severed the Alaska exception to the land into trust
regulations.” Akiachak III, 995 F. Supp. 2d at 15. Following
the comment period, Interior then finalized the rule and
removed the Alaska exception from its land-into-trust
regulations. 79 Fed. Reg. 76,888 (Dec. 23, 2014). Noting that
“[a] number of recent developments . . . caused the
Department to look carefully at this issue again,” “including a
pending lawsuit” and “urgent policy recommendations” from
two blue-ribbon commissions, Interior “carefully reexamined
the legal basis for the Secretary’s discretionary authority to
take land into trust in Alaska” and concluded that “ANCSA
left . . . the Secretary’s . . . land-into-trust authority in Alaska
intact.” Id. at 76,889–90. According to Interior, “[t]he district
court’s judgment in [Akiachak I] is consistent with the
conclusion we reach but is not the basis for the Department’s
decision to eliminate the Alaska Exception.” Id. at 76,891.
Alaska has not challenged the new regulation.
After Interior issued the proposed rule suggesting the
elimination of the Alaska exception, the Department
voluntarily dismissed its appeal. It then filed a motion to
dismiss Alaska’s appeal for lack of standing. Mot. to Dismiss
9
Intervenor State of Alaska’s Appeal 2 (July 18, 2014). After
the new rule became final, Interior filed a separate motion
seeking to dismiss Alaska’s appeal as moot, arguing that
“[t]he district court’s judgment has now been overtaken by
Interior’s administrative action to delete the regulatory
language challenged in the complaint.” Federal Appellees’
Mot. to Dismiss Appeal as Moot 2 (Oct. 8, 2015). Akiachak
joined both motions. We thus have before us Alaska’s
opposition to these motions and its argument on the merits,
i.e., that ANCSA “precludes the creation of new trust land in
Alaska.” Appellant’s Br. 32.
II.
“To qualify as a case fit for federal-court adjudication
[under Article III, section 2], ‘an actual controversy must be
extant at all stages of review, not merely at the time the
complaint is filed.’” Arizonans for Official English v. Arizona,
520 U.S. 43, 67 (1997) (quoting Preiser v. Newkirk, 422 U.S.
395, 401 (1975)). A case is moot “‘when the issues presented
are no longer “live” or the parties lack a legally cognizable
interest in the outcome.’” U.S. Parole Commission v.
Geraghty, 445 U.S. 388, 396 (1980) (quoting Powell v.
McCormack, 395 U.S. 486, 496 (1969)). These requirements
ensure that federal courts exercise jurisdiction only over
“questions presented in an adversary context and in a form
historically viewed as capable of resolution through the
judicial process.” Flast v. Cohen, 392 U.S. 83, 95 (1968).
In order to remain “live,” and thus justiciable, a case or
controversy must retain at least one “claim for relief [that]
remains viable, whether that claim was the primary or
secondary relief originally sought.” Ramer v. Saxbe, 522 F.2d
695, 704 (D.C. Cir. 1975); see also Powell, 395 U.S. at 499(“reject[ing] respondents’ theory that the mootness of a
‘primary’ claim requires a conclusion that all ‘secondary’
10
claims are moot”). The causes of action identified in the
complaint perform the Article III function of restricting the
court’s review to “a real and substantial controversy admitting
of specific relief through a decree of a conclusive character,
as distinguished from an opinion advising what the law would
be upon a hypothetical state of facts.” Aetna Life Insurance
Co. of Hartford v. Haworth, 300 U.S. 227, 241, 244 (1937).
As described above, Akiachak requested two forms of
relief in the district court: a declaratory judgment that the
Alaska exception violated the Constitution, the IRA, and the
APA; and an injunction directing Interior to apply its land-
into-trust regulations to Alaska. Each cause of action
challenged the validity of the Alaska exception. See Compl.
¶¶ 53–58. Because that regulation no longer exists, we can do
nothing to affect Akiachak’s rights relative to it, thus making
this case classically moot for lack of a live controversy. See,
e.g., Burke v. Barnes, 479 U.S. 361, 363 (1987) (“[A]ny
issues concerning whether [a bill] became a law were mooted
when that bill expired by its own terms.”); Diffenderfer v.
Central Baptist Church of Miami, Florida, Inc., 404 U.S. 412,
414–15 (1972) (per curiam) (“The only relief sought in the
complaint was a declaratory judgment that the now repealed
[statute] is unconstitutional as applied to a church parking lot
used for commercial purposes and an injunction against its
application to said lot. This relief is, of course, inappropriate
now that the statute has been repealed.”). A similar situation
arose in Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C. Cir. 2008),
where we explained that “because the [agency has] already
eliminated the [challenged] [p]olicy and plaintiffs never
allege that the [agency] will reinstitute it, any injunction or
order declaring it illegal would accomplish nothing—
amounting to exactly the type of advisory opinion Article III
prohibits.” Although the voluntary repeal of a regulation does
not moot a case if there is reason to believe the agency will
11
reinstitute it, “the mere power to reenact a challenged [rule] is
not a sufficient basis on which a court can conclude that a
reasonable expectation of recurrence exists” absent “evidence
indicating that the challenged [rule] likely will be reenacted.”
National Black Police Ass’n v. District of Columbia, 108 F.3d
346, 349 (D.C. Cir. 1997). No such evidence exists here.
Alaska argues that this case remains live because we
could, it says, provide it with two forms of effective relief: a
declaration that ANCSA prohibits Interior from acquiring
trust land in Alaska and an injunction prohibiting the agency
from doing so. According to Alaska, it “pleaded for
affirmative relief” in the district court when it sought a ruling
that the Alaska exception was valid. Appellant’s Reply Br. 3;
see State of Alaska’s Answer, Prayer for Relief ¶¶ 1–3, 6
(requesting an “entry of judgment . . . declaring 25 C.F.R.
Part 151 compliant with [the IRA’s antidiscrimination
provision],” “constitutional,” and “consistent with and
compelled by the Alaska Native Claims Settlement Act”).
Alaska’s argument ignores the restrictions that Article
III’s case or controversy requirement places on the
jurisdiction of the federal courts. As our decision in National
Football League Players Ass’n v. Pro Football, Inc., 56 F.3d
1525 (D.C. Cir. 1995), vacated in part on other grounds, 79
F.3d 1215 (D.C. Cir. 1996), makes clear, the scope of a
federal court’s jurisdiction to resolve a case or controversy is
defined by the affirmative claims to relief sought in the
complaint or, as may be the case, in any counterclaims or
crossclaims. There, to determine whether the case had become
moot, we looked only to the “relief requested by” the National
Football League Players Association in a dispute over
payment of union dues. Id. at 1529. Concluding that “the only
relief for which the appellants prayed and which the District
Court could have granted—suspension of [certain football]
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players for the remainder of the 1993–94 season—became
impossible to grant” when the season ended, we held that the
case had become moot because “the matter in dispute before
the arbitrator, failure to pay fees for the 1993–94 season,
could not be affected by the District Court by virtue of the
limited relief sought by appellant.” Id. Although the
Association argued that “the declaratory relief granted by the
District Court” would “have continuing effect on the
relationship between the Players Association and the [team]
and its players (and any similarly situated teams),” and thus
that we could grant effective relief “by rescinding the
declaratory order,” we explained that the narrow scope of
relief requested in the district court meant that, as a legal
matter, that court’s declaratory order affected only the 1993–
94 season, which had already ended. Id.; see also Alton &
Southern Railway Co. v. International Ass’n of Machinists &
Aerospace Workers, 463 F.2d 872, 879–80 (D.C. Cir. 1972)
(To prevent mootness, “there must be at least a capacity for a
declaration of a legal right concerning a future projection of
the actual dispute that precipitated the litigation.”).
The Supreme Court made the same point in Powell v.
McCormack, noting that “the constitutional requirement of a
case or controversy” is “suppl[ied]” by “the . . . issues
presented” to the court, and that a case will remain justiciable
only so long as at least one of those issues remains live. 395
U.S. at 497. And in Diffenderfer v. Central Baptist Church of
Miami, Florida, Inc., the Court concluded that a constitutional
challenge to a repealed statute providing a tax exemption for
church property was moot because no court could grant “[t]he
only relief sought in the complaint,” namely, a declaratory
judgment that the statute was unconstitutional and an
injunction barring its application to the property in question.
404 U.S. at 414–15; see also Love v. Griffith, 266 U.S. 32, 34
(1924) (holding that a constitutional challenge to a rule
13
prohibiting African Americans from voting in a past primary
election was moot because “[t]he bill was for an injunction
that could not be granted at that time,” and “[t]here was no
constitutional obligation to extend the remedy beyond what
was prayed”); Mills v. Green, 159 U.S. 651, 658 (1895)
(finding a case moot where the plaintiff sought to participate
in a constitutional convention that had already occurred,
which made it “obvious . . . that[] even if the bill could
properly be held to present a case within the jurisdiction of
the circuit court, no relief within the scope of the bill could
now be granted”).
As noted above, Alaska intervened in the district court as
a defendant and filed an answer that contained affirmative
defenses and a prayer for relief, but nothing identified as a
counterclaim or crossclaim. Alaska nonetheless insists that it
“pleaded for affirmative relief” when it “assert[ed] . . . an
affirmative defense that some or all of the Tribes’ claims are
barred by ANCSA and request[ed] declaratory relief.”
Appellant’s Reply Br. 3 & n.5. Under Federal Rule of Civil
Procedure 8(c), however, affirmative defenses made “[i]n
respon[se] to a pleading” are not themselves claims for relief.
True, Rule 8(c)(2) provides a potential mechanism for
extending jurisdiction to an improperly pled claim: “[i]f a
party mistakenly designates a defense as a counterclaim, or a
counterclaim as a defense, the court must, if justice requires,
treat the pleading as though it were correctly designated.” But
several of our sister circuits have held that a request for relief
that amounts to no more than denial of the plaintiff’s demand
is properly considered an answer, not a separate claim for
affirmative relief that expands the court’s jurisdiction. See
Riverside Memorial Mausoleum, Inc. v. UMET Trust, 581
F.2d 62, 68 (3d Cir. 1978) (“A counterclaim may entitle the
defendant in the original action to some amount of affirmative
relief; a defense merely precludes or diminishes the plaintiff’s
14
recovery.”); Kleid v. Ruthbell Coal Co., 131 F.2d 372, 373
(2d Cir. 1942) (holding that a bankruptcy trustee’s objection
to a creditor’s claim was an affirmative defense rather than a
counterclaim because it was “a purely defensive pleading
interposed against allowance of the claim” that allowed for no
damages judgment in favor of the trustee and could not
survive once the creditor’s claim was withdrawn); cf.
National Surety Corp. v. Charles Carter & Co., Inc., 539 F.2d
450, 457 (5th Cir. 1976) (noting that, even if a contractor had
not styled its claim for damages as a counterclaim, “the court
could have considered the claim of offset in the original
answer as a counterclaim” because the contractor “was
entitled to judgment” of damages). These decisions suggest
that Alaska presented only a defense, as in order to resolve
Akiachak’s claim that the exception ran afoul of the IRA, the
district court necessarily had to grapple with Alaska’s
contrary argument that “the Alaska Native Claims Settlement
Act . . . implicitly repealed the Secretary’s authority to take
most Alaska land into trust” and thus compelled the
regulation. Akiachak II, 995 F. Supp. 2d at 3. But even were
we to construe Alaska’s pleading as asserting some
independent claim, the only relief Alaska requested was a
ruling that the Alaska exception was valid and compelled by
the statute. State of Alaska’s Answer, Prayer for Relief ¶¶ 1–
3, 6. As with Akiachak’s complaint, the subject of that
purported claim—the Alaska exception—no longer exists,
and so cannot continue to generate a live controversy.
Although Alaska never identifies the precise basis for its
alleged independent claim to relief, the dissent takes matters
into its own hands and contends that “Alaska affirmatively
sought relief of its own by requesting ‘entry of a judgment . . .
declaring [the Alaska exception] consistent with and
compelled by the Alaska Native Claims Settlement Act.’”
Dissenting Op. at 2 (alterations in original) (quoting State of
15
Alaska’s Answer, Prayer for Relief ¶ 6). “[F]rom the outset,”
the dissent writes, “Alaska made clear its interests were
unique and the Department could not be expected to
adequately defend them.” Id. The dissent asserts that the
phrase “compelled by” must have constituted an independent
claim for relief because Interior’s argument that the Alaska
exception was within its discretion “would have been
sufficient to win the suit,” and thus Alaska must have been
seeking “relief . . . that was separate and distinct from merely
winning the suit.” Id. at 2–3. “Alaska still has something to
litigate even when the exception is no longer in force,” the
dissent believes, “because Alaska seeks a declaration that the
exception must be the law.” Id. at 8.
The dissent’s position suffers from several flaws. First, it
conflates Rule 24(a)’s standard for intervention as of right,
which requires merely that “the applicant show[] that
representation of his interest may be inadequate,” a “minimal”
“burden,” Trbovich v. United Mine Workers of America, 404
U.S. 528, 538 n.10 (1972) (internal quotation marks omitted),
with the presentation of an affirmative claim for relief. True,
Alaska and Interior presented alternative defenses to
Akiachak’s claims, but that demonstrates only that Alaska
satisfied Rule 24(a), not that it asserted a claim against
Interior. See Fund for Animals, Inc. v. Norton, 322 F.3d 728,
736 (D.C. Cir. 2003) (noting that “interests need not be
wholly adverse before there is a basis for concluding [under
Rule 24(a)] that existing representation of a different interest
may be inadequate” (internal quotation marks omitted)).
Interior and Alaska each offered statutory interpretations that,
if correct, would have resulted in nothing more than denial of
the relief Akiachak sought, albeit for different reasons. Thus,
both responses were defenses. The dissent insists that Alaska
did something distinct from satisfying Rule 24(a) when it
“asserted a different affirmative position than what the
16
Department advanced.” Dissenting Op. at 6. But this court has
squarely held that Rule 24(a) is designed to allow intervention
on the ground that the intervening party seeks to make a legal
argument not pursued by a named party—just what happened
here. Dimond v. District of Columbia, 792 F.2d 179, 193
(D.C. Cir. 1986) (holding that an insurance company could
intervene as a defendant under Rule 24(a) in part because the
government could not be expected “to make the same legal
arguments that [the company] would make”); see also
Building & Construction Trades Department, AFL-CIO v.
Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994) (holding that an
employer’s motion to intervene as a defendant was properly
denied under Rule 24(a) when the employer “offered no
argument not also pressed by” the government).
Second, the dissent would have us read some unspecified
claim to relief into the phrase “compelled by” in Alaska’s
answer. See Dissenting Op. at 2. But these words cannot bear
the weight the dissent places upon them. For one thing, it is
difficult to discern what Alaska’s cause of action would have
been at the time it filed the answer which, according to the
dissent, pled an affirmative claim to relief against Interior. It
could not have been the APA, as in its opposition to
Akiachak’s motion for summary judgment, Alaska argued
that no “action by the Secretary associated with the land into
trust rule has been arbitrary, capricious, or an abuse of
discretion,” State of Alaska’s Opp’n to Pl.’s Cross-Mot. for
Summ. J. Re ANCSA and Reply in Supp. of Alaska’s Mot.
for Summ. J. (“Alaska Summ. J. Opp’n”), Dkt. No. 85, at 39–
40 (Jan. 8, 2009), and urged the district court to conclude that
“the record demonstrates that the Secretary has acted
appropriately in maintaining the regulatory prohibition against
taking land into trust in Alaska,” id. at 2.
17
Nor had Interior taken any final action that was contrary
to Alaska’s interpretation of ANCSA. Indeed, as far as Alaska
knew when it filed its answer, Interior still believed that
ANCSA prohibited the Secretary from taking any Alaska land
into trust. Interior’s answer—the only document the
Department had filed at that time—contained no assertion that
the Alaska exception was discretionary. See Answer of the
United States to Pls.’ Compl., Dkt. No. 17 (Nov. 27, 2007).
The dissent believes that because Interior “had publicly
rescinded the Fredericks Opinion,” “Alaska knew the
Department no longer defended the Alaska exception as being
compelled by ANCSA.” Dissenting Op. at 7. But throughout
the proceedings in the district court, Alaska argued that
“[s]ince the enactment of ANCSA in 1971, the Secretary’s
formal position consistently and admittedly has been that
ANCSA precludes him from taking land into trust in Alaska.”
State of Alaska’s Resp. to Defs.’ Supplemental Br. Pursuant
to Court’s Order (“Alaska Supplemental Br.”), Dkt. No. 103,
at 6–7 (Aug. 15, 2012). Alaska expressly acknowledged the
withdrawal of the Fredericks Opinion, but accorded it little
weight. See Alaska Summ. J. Opp’n 42–45 (arguing that
although Interior had withdrawn the Fredericks Opinion, the
withdrawal memorandum and another prior Solicitor opinion
“indicat[ed] that the Solicitor himself understood that the
Secretary’s discretion to take land into trust in Alaska may be
curbed by law”). As Alaska recognized in its district court
briefs—and as the dissent itself acknowledges, see Dissenting
Op. at 14—the State’s disagreement with Interior regarding
the legal effect of ANCSA developed during the litigation of
Akiachak’s claim. See Alaska Supplemental Br. 4 (“The
Secretary first adopted the position that ANCSA permitted
him to take land into trust in Alaska during this litigation.”). It
is therefore difficult to comprehend how, at the time Alaska
filed its answer, it could have intended that disagreement to
18
serve as the basis for an affirmative claim for relief against
Interior.
The dissent’s theory requires such speculation in part
because Alaska never asked the district court to construe
anything in its answer as an affirmative claim under Rule
8(c)(2), nor did it do anything to suggest that it intended to
bring any such claim. In fact, quite the opposite. As noted
above, Alaska’s answer was solely responsive: the State
neither presented a crossclaim nor pled facts even suggesting
that Interior had acted impermissibly or bore some statutory
duty to promulgate regulations enforcing Alaska’s reading of
ANCSA. See Rundgren v. Washington Mutual Bank, FA, 760
F.3d 1056, 1061 (9th Cir. 2014) (“A ‘claim’ is a cause of
action or the aggregate of facts that gives rise to a right to
payment or an equitable remedy.” (citing Black’s Law
Dictionary 281–82 (9th ed. 2009))). And in its motion to
intervene, Alaska argued only that “certain affirmative
defenses apply to the state that cannot be advanced by the
federal defendants.” Alaska’s Mem. of Points and Authorities
in Supp. of Its Mot. to Intervene, Dkt. No. 18, at 3 (Nov. 27,
2007). Far from asserting its own claim, Alaska expressly
recognized that “[a]t the heart of plaintiffs’ case lies the
question of whether [ANCSA] continues to justify the
regulatory bar prohibiting the Department of Interior . . . from
applying the land into trust regulations in Alaska.” Alaska’s
Reply Mem. in Supp. of Its Mot. to Intervene, Dkt. No. 24, at
1 (Dec. 17, 2007) (emphasis added). Critically, at the very end
of the proceedings in the district court, Alaska described the
case this way in its motion for reconsideration:
In this case, Plaintiffs have challenged only the
regulatory bar that prohibits Alaska tribes from
petitioning the Secretary under 25 C.F.R. Part 151 to
have land taken into trust. The parties have briefed
19
the legal issues pertaining to that prohibition, and the
Court has found it invalid. No other provision of the
regulation has been challenged, and no issues other
than its legality have been briefed for the Court’s
consideration.
Mem. in Supp. of State of Alaska’s Mot. for Recons., Dkt.
No. 112, at 11–12 (Apr. 17, 2013) (footnote omitted). In its
briefing here, moreover, Alaska neither cites Rule 8(c)(2) nor
refers to anything it did in the district court as raising a
“claim.” The State argues only that it “assert[ed] . . . an
affirmative defense” and “requested” and “pleaded for
affirmative relief.” Appellant’s Reply Br. 3 & n.5. If Alaska
knew all along it was asserting a claim, one would have
thought it would have used that term in its briefs.
Equally telling, no one in the district court—not even the
court itself—seemed to think otherwise. Interior filed neither
a pleading in response to the claim the dissent finds apparent
on the face of Alaska’s answer, nor any response to Alaska’s
summary judgment motion. Alaska filed no motion for default
on any claim, which would have been the proper course of
action once Interior failed to respond. Meanwhile, Akiachak
filed and briefed a motion for summary judgment against
Alaska regarding ANCSA’s meaning. See Dkt. Nos. 83, 88.
And contrary to the dissent’s belief that it was “apparent to
the district court” that Alaska had brought an affirmative
claim to relief, Dissenting Op. at 3, the district court never
even hinted that it was rendering judgment, or needed to
render judgment, on any affirmative claim raised by Alaska.
For instance, in its order requesting supplemental briefing, the
district court referred to the “plaintiffs[’] . . . challenge [to]
the regulations governing the acquisition of land by the
United States in trust status for individual Indians and tribes,”
20
but mentioned no other claim. Dkt. No. 99, at 1 (Apr. 30,
2012).
We engage in this lengthy response to the dissent to
demonstrate the difficulty of drawing any conclusion other
than that, until filing its reply brief in this court, Alaska seems
to have thought it was merely defending against Akiachak’s
claims. The dissent provides no reason not to take Alaska at
its word. See National Union Fire Insurance Co. of
Pittsburgh, Pa. v. City Savings, F.S.B., 28 F.3d 376, 393 (3d
Cir. 1994) (“[I]t is clear that a defense or affirmative defense
is not properly called an ‘action’ or a ‘claim’ but is rather a
response to an action or a claim. When a lawyer files a
responsive pleading to an action or claim, she does not say
that she is bringing an action or filing a claim; instead, she
says that she is answering, responding to, or defending against
an action.”). Moreover, even under the dissent’s theory, we
could take Alaska’s failure to raise before the district court
any suggestion that the court had misconstrued its pleading as
the final nail in the coffin of any claim Alaska now purports
to have pled. See 389 Orange Street Partners v. Arnold, 179
F.3d 656, 664 (9th Cir. 1999) (declining to construe a labeled
crossclaim as an affirmative defense under Rule 8(c)(2)
because appellant never presented the argument “until oral
argument on this appeal,” and “if [his] attorneys did not
discover this argument until now, the district court should not
be expected to have done so for them”).
The dissent also relies on the fact that once the case
reached this court our Clerk’s Office designated Alaska as
“appellant” and Interior and Akiachak as “appellees.” See
Dissenting Op. at 4. But a careful look at the procedural
history of this case belies any support for the dissent’s
insistence that “Alaska all along has raised a claim against
which the Department has thought necessary to defend.” Id. at
21
5. Alaska and Interior each filed separate notices of appeal, on
November 29, 2013, and December 3, 2013, respectively.
This court consolidated the cases on December 20, 2013.
Under the Clerk’s Office’s routine docketing procedures, any
party involved in the original litigation other than the party
filing the notice of appeal is automatically designated as an
appellee in that appeal without any analysis of the parties’
legal adversity, even if one of those parties has filed a
separate notice of appeal. When Interior voluntarily dismissed
its appeal, it left only Alaska’s originally filed appeal and the
docket entries accompanying that appeal, which had
automatically identified Interior as an appellee. These
docketing procedures are therefore irrelevant. To the extent
the dissent relies on Alaska’s intent to establish Interior as an
adverse party, Alaska informed the court in its certificate as to
the parties, rulings, and related cases, filed after consolidation,
that “Appellants are the State of Alaska (case 13-5360) and
the . . . Department of Interior[] and . . . [the] Secretary of the
Interior (case 13-5361).” Certificate as to the Parties, Rulings
and Related Cases by the State of Alaska 1 (Jan. 21, 2014).
Alaska listed only Akiachak and the other tribal litigants as
“Appellees.” Id.; see also Statement of Issues by Appellant
State of Alaska 1 (Jan. 21, 2014) (captioning Alaska and
Interior both as appellants). As noted above, it was not until
after Alaska filed its answer in the district court that the State
and Interior made different arguments regarding ANCSA’s
effect. Even so, it is unsurprising that, even once those
differing positions became clear, Alaska made no suggestion
that it had become legally adverse to Interior; after all, at that
time, both parties continued to defend the regulation’s
legality, a circumstance that changed only midway through
this appeal. In any event, that Alaska and Interior eventually
became adverse to one another says nothing about whether
Alaska presented a crossclaim against Interior in its original
answer.
22
This brings us, then, to Alaska’s argument that its appeal
remains live because Interior’s rulemaking cannot alter the
meaning of ANCSA and thus “the new regulation cannot
displace the central legal question in this appeal: whether
ANCSA prohibits the creation of new trust land in Alaska,”
an issue over which “[t]here is still a present, live
controversy.” Appellant’s Reply Br. 4 (internal quotation
marks omitted). Essentially, Alaska argues that by ruling on
the meaning of the statute and vacating the Department’s rule,
the district court effectively eliminated the Department’s
power to take any action that could moot the case. Alaska
relies on our decision in Williams v. Washington Metropolitan
Area Transit Commission, 415 F.2d 922, 940 (D.C. Cir. 1968)
(en banc), in which we invalidated a rate order but declined to
remand to the agency to allow for promulgation of a new
order because the Commission “possesse[d] no authority to
fix” rates retroactively. But Alaska cannot expand our
jurisdiction by relying on Williams. That decision never
addressed mootness, and Alaska points to no case law
distinguishing between remand and vacatur of agency rules
for mootness purposes. Indeed, in an analogous situation, the
Tenth Circuit in Wyoming v. USDA, 414 F.3d 1207, 1212
(10th Cir. 2005), found that rescission of a permanently
enjoined regulation mooted a lawsuit challenging the
regulation because “[t]he portions of the [regulation] that
were substantively challenged by [the plaintiff] no longer
exist.” As explained above, the same is true here.
Although acknowledging that Wyoming “would be
analogous to the present circumstances if . . . the only claim to
be appealed was what Akiachak stated in the original
complaint,” the dissent nonetheless believes that because the
district court vacated the Alaska exception, Interior’s
“subsequent curative rulemaking was an absurdity” that
“created no legal effect.” Dissenting Op. at 9. Thus, the
23
dissent asserts, “what the court really means is that the district
court mooted this case when it vacated the Alaska exception,”
a decision it characterizes as “nonsensical.” Id. at 10. But
Interior did far more than merely acquiesce in the district
court’s judgment. Instead, it engaged in a new rulemaking, in
which it considered the history of trust ownership in Alaska,
its prior legal interpretations of the governing statutes, policy
issues such as public safety in Alaska Native communities,
comments from Native communities and corporations, and the
recommendations of blue-ribbon commissions formed to
“investigate criminal justice systems in Indian Country” and
“evaluate the existing management and administration of the
trust administration system.” 79 Fed. Reg. at 76,889–92.
Interior then exercised its discretion to promulgate a new rule
that removed the Alaska exception, explaining that the new
rule could “foster economic development, enhance the ability
of Alaska Native tribes to provide services to their members,
and give additional tools to Alaska Native communities to
address serious issues, such as child welfare, public health
and safety, poverty, and shortages of adequate housing, on a
local level.” Id. at 76,892. Significantly, Interior made clear
that “[t]he district court’s judgment . . . is not the basis for the
Department’s decision to eliminate the Alaska Exception” and
that it had “independently concluded that there is no legal
impediment to taking land into trust in Alaska, and there are
sound policy reasons for giving Alaska tribes the opportunity
to petition to take land into trust.” Id. at 76,891. As in
Wyoming, it was this action by Interior, not the district court’s
decision to vacate the regulation—a decision that was, of
course, on appeal—that mooted this case.
In sum, once the Department of Interior rescinded the
Alaska exception, this case became moot. Even assuming, as
Alaska argues, that the district court’s interpretation of
ANCSA injured the State, such injury cannot extend our
24
jurisdiction by creating a new controversy on appeal. In
essence, Alaska urges us to “entertain the appeal so as to
advise the parties of what their rights would be in what is
essentially a new legal controversy”—whether Interior’s 2014
rule correctly interprets ANCSA. Alton & Southern Railway
Co., 463 F.2d at 879. We are without jurisdiction to provide
such an advisory opinion. Assuming Alaska’s claim is ripe,
we see no barrier to the State raising it directly under the
APA, see, e.g., Harris v. FAA, 353 F.3d 1006, 1009 (D.C. Cir.
2004) (noting the six-year statute of limitations on APA
claims), or if and when Interior attempts to take any land into
trust in Alaska, see, e.g., NLRB Union v. Federal Labor
Relations Authority, 834 F.2d 191, 195 (D.C. Cir. 1987)
(noting that a party against whom a regulation is applied
could challenge that regulation as a “defense in an
enforcement proceeding” or other “further agency action
applying it” (internal quotation marks and alteration
omitted)).
What the dissent thinks is a “catastrophic result” flows
from our application of a perfectly uncontroversial and well-
settled principle of law, namely, when an agency has
rescinded and replaced a challenged regulation, litigation over
the legality of the original regulation becomes moot. See, e.g.,
Initiative & Referendum Institute v. U.S. Postal Service, 685
F.3d 1066, 1074 (D.C. Cir. 2012) (finding a challenge to a
Postal Service regulation moot where the agency had “beat
[the appellants] to the punch by amending the regulation to
exempt” the challenged activity); Coalition of Airline Pilots
Ass’ns v. FAA, 370 F.3d 1184, 1190 (D.C. Cir. 2004) (finding
a due process challenge to a regulation moot where the
agency had abandoned the regulation and “committ[ed] . . . to
provide . . . greater procedural rights”); National Mining
Ass’n v. U.S. Department of Interior, 251 F.3d 1007, 1010–11
(D.C. Cir. 2001) (declaring a challenge to a revised rule moot,
25
noting that “[t]he old set of rules, which are the subject of this
lawsuit, cannot be evaluated as if nothing has changed”
because “[a] new system is now in place” and “[a]ny opinion
regarding the former rules would be merely advisory”);
Arizona Public Service Co. v. EPA, 211 F.3d 1280, 1295–96
(D.C. Cir. 2000) (holding moot a challenge to an EPA rule
after the agency issued a “clarification” altering the
regulation); Freeport-McMoRan Oil & Gas Co. v. FERC, 962
F.2d 45, 46 (D.C. Cir. 1992) (finding a case “plainly moot”
where the challenged agency order had been “superseded by a
subsequent order,” and noting that such an occurrence was so
routine that “[o]rdinarily, we would handle such a matter in
an unpublished order”). In all such cases, moreover, if the
agency promulgates a new regulation contrary to one party’s
legal position, that party may “cure[] its mootness problem by
simply starting over again,” Dissenting Op. at 11—by
challenging the regulation currently in force. See, e.g.,
Freeport-McMoRan Oil & Gas Co., 962 F.2d at 46 (noting
that a petitioner’s opposition to a superseded order was
“appropriately resolved either upon review of [the new] order
. . . or in [a] complaint proceeding”); Gulf Oil Corp. v. Simon,
502 F.2d 1154, 1156 (Temp. Em. Ct. App. 1974) (“This suit
sought equitable relief from particular regulations and
proceeded to judgment on that controversy. If new
considerations provide a basis for challenging the validity of
significantly different superseding regulations that now are in
effect, that can appropriately be done in a new suit.
Otherwise, an unending series of post-judgment controversies
about new subject matter could be litigated under the
umbrella of a suit already fully considered and decided.”).
Although the dissent seems to disapprove of agencies’ ability
to moot challenges to regulations, see Dissenting Op. at 12,
such authority is in fact so fundamental to judicial economy
that it serves as the animating principle underlying the
administrative exhaustion doctrine: “The basic purpose of the
26
exhaustion doctrine is to allow an administrative agency to
perform functions within its special competence—to make a
factual record, to apply its expertise, and to correct its own
errors so as to moot judicial controversies.” Parisi v.
Davidson, 405 U.S. 34, 37 (1972). Indeed, this court has
criticized an agency for failing to formally remove certain
superseded orders from its books because doing so would
“sav[e] time, energy, and money, allow[] the parties to focus
their attention on review of the [new] order, and allow[] the
court to focus on live cases and controversies instead of this
moot one.” Freeport-McMoRan Oil & Gas Co., 962 F.2d at
47. We went so far as to note that we issued an opinion on the
issue specifically “to express our displeasure with [agency]
counsel’s failure to take easy and obvious steps to avoid
needless litigation.” Id.The dissent makes several other points that require little
response. First, it contends that “in attacking the rulemaking
directly, Alaska will be forced to confront a standard of
review highly deferential to the Department,”—that is,
Chevron deference—allowing Interior to “run the table.”
Dissenting Op. at 10. This argument is difficult to fathom, as,
according to the dissent, Alaska would find itself in precisely
the same position in a new suit as it was here: bringing an
affirmative claim to relief that Interior was “compelled” to
promulgate regulations enshrining one particular
interpretation of ANCSA. More important, the dissent never
explains why Chevron would apply to one case but not the
other. See Federal Appellees’ Br. 24 (arguing that Chevron
applies to Interior’s interpretation of ANCSA). Next, the
dissent asserts that once this appeal ends, “the Department
will be free to take Alaskan lands into trust.” Dissenting Op.
at 12. It is true that when the district court lifts its stay, the
Department could move to take land into trust in Alaska, but
it is hardly “free” to do so. Quite to the contrary, Interior will
27
have to comply with its land-into-trust regulations, which
establish a multi-step process requiring the Department to
consider, among other things, jurisdictional conflicts and the
effect of any acquisition on state and local governments, 25
C.F.R. § 151.11(a); engage in notice and comment on any
proposed acquisition, id. § 151.11(d); and issue a written
decision, id. § 151.12—a decision subject to judicial review,
see Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians
v. Patchak, 132 S. Ct. 2199, 2204–10 (2012) (holding that
sovereign immunity did not bar review of a trust decision and
noting that challenges to such actions on the ground that “the
Secretary’s decision to take land into trust violates a federal
statute” are reviewable under the APA). Finally, according to
the dissent, “[t]he issues presented” in this case “are of great
significance” to the parties. Dissenting Op. at 13.
Undoubtedly so. But no matter how important an issue, courts
may not decide cases over which they have no Article III
jurisdiction.
III.
This brings us, finally, to the question of whether we
should vacate the district court’s decision. All parties urge us
to do so, and we agree. The Supreme Court has instructed
courts to “dispose[] of moot cases in the manner ‘most
consonant to justice . . . in view of the nature and character of
the conditions which have caused the case to become moot.’”
U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513
U.S. 18, 24 (1994) (alteration in original) (quoting United
States v. Hamburg-Amerikanische Packetfahrt-Actien
Gesellschaft, 239 U.S. 466, 477–78 (1916)). Because Alaska
is “the party seeking relief from the judgment below,” id., and
has been prevented from appealing the district court’s
decision for reasons outside its control, vacatur is appropriate
to “clear[] the path for future relitigation of the issues . . . and
eliminate[] a judgment, review of which was prevented
28
through happenstance.” United States v. Munsingwear, Inc.,
340 U.S. 36, 40 (1950).
So ordered.
BROWN, Circuit Judge, dissenting: The question this court
ought to address is whether the Alaska Native Claims
Settlement Act (ANCSA) prohibits the Secretary of the
Interior from placing land into trust in Alaska. The plaintiffs,
several Native American tribes, argued it did not; the State of
Alaska, as intervenor, argued it did. The district court agreed
with the plaintiffs. But instead of resolving this critical
question, the court dismisses this case as moot on the view
that the Secretary’s repeal of a regulation the district court had
already vacated earns a do-over under a deferential standard
of review. While I acknowledge the power of this court to
declare when a case is dead, the court today euthanizes a live
dispute. Respectfully, I dissent.
When Akiachak initiated this suit in the district court, the
tribe sought relief in the form of a declaration that the Alaska
exception was invalid. Compl. Prayer for Relief ¶¶ I-III.
Akiachak proffered three legal rationales for invalidity: that
the Alaska exception violated 25 U.S.C. §476(f) and (g), or
the Due Process and Equal Protection Clauses of the U.S.
Constitution, or the Administrative Procedure Act, 5 U.S.C.
§706(2)(a). Id. Akiachak further requested an injunction
requiring the Department to implement land into trust
procedures “without regard to the bar against Alaska tribes”
that was then contained in the Alaska exception. All of
Akiachak’s arguments thus centered on one thing: the
invalidity of the Alaska exception. Akiachak could obtain the
relief it sought in this suit so long as the district court adopted
at least one of its arguments for the Alaska exception’s
invalidity.
In response, the Department defended the Alaska
exception, arguing that the exception did not violate 25
U.S.C. §476(f) and (g), the Constitution, or the APA. The
Department took the position that although the Secretary of
Interior possessed “both the authority and the discretion to
2
take lands within the State of Alaska into trust, the Secretary
is not legally obligated to do so.” Dkt. 55-1 (Cross-motion
for Sum. J.) at 25. Rather, in the Department’s view, the
Alaska exception was a duly promulgated regulation
consistent with the demands of federal law. The Secretary
could change the regulation, but need not. This argument
represented a complete defense against Akiachak’s claims; if
the Department prevailed, the Alaska exception would remain
in place unless and until the Department lifted it pursuant to
the APA.
The State of Alaska intervened in the district court to join
the Department in opposing Akiachak’s suit. But from the
outset, Alaska made clear its interests were unique and the
Department could not be expected to adequately defend them.
In its motion to intervene, Alaska explained that it sought to
make an argument the Department had been unwilling to
make: that the Alaska exception was not discretionary at all,
but compelled by ANCSA. Dkt. 18-2 (Motion to Intervene) at
15. The Department had formerly taken this view in a 1978
Associate Solicitor opinion known as the Fredericks Opinion.
The Department withdrew the Fredericks Opinion in 2001,
however, and was no longer willing to defend it. Id. at 15.
In seeking to intervene on the basis of its ANCSA theory,
Alaska did something more than merely defend against the
claim Akiachak had made: Alaska affirmatively sought relief
of its own by requesting “entry of a judgment … declaring
[the Alaska exception] consistent with and compelled by the
Alaska Native Claims Settlement Act.” State of Alaska’s
Answer, Prayer for Relief ¶ 6 [JA 57-58] (emphasis added).
This prayer for relief went a step beyond simply affirmatively
defending against the claim Akiachak had made. It instead
sought relief for Alaska that was separate and distinct from
merely winning the suit. After all, the Department’s
3
arguments would have been sufficient to win the suit had they
been successful: so long as the Alaska exception was
permissible, as the Department argued, Akiachak’s claim
would fail. Alaska, however, was not satisfied with merely
permitting the Alaska exception. Alaska instead claimed that
a statute otherwise not at issue in this case—ANCSA—
requires the Alaska exception. That argument was a new
claim in this suit.
The district court rejected Alaska’s claim and its motion
for summary judgment because it concluded that ANCSA did
not compel the Alaska exception. Dkt. 109 (Opinion) at 19-
20. That is the decision Alaska appeals today, and as to that
distinct question, this case is not moot.
Rather, Alaska’s interest in its ANCSA claim is every bit
as live today as it was the day Alaska intervened in the case.
Here, the State asked the district court to hold that ANCSA
compelled the Alaska exception. The district court disagreed
and vacated that regulation, which Alaska believes the law
compels. Alaska still wants—and can still obtain—the relief
it has sought all along, a declaration that ANCSA compels the
Alaska exception. Alaska thus has a “legally cognizable
interest in the outcome” of this litigation. U.S. Parole
Comm’n v. Geraghty, 445 U.S. 388, 396 (1980).
That this outcome left Alaska with a live dispute and an
appeal as of right was apparent to the district court, which
entertained and granted in part Alaska’s motion to stay the
decision pending appeal. Specifically, the district court
enjoined the Department from taking any Alaska lands into
trust while this appeal was pending because such an action
would cause “irreparable harm to state sovereignty and state
management of land” in Alaska.” Dkt. 145 (Opinion
Granting Stay) at 12. In doing so, the district court
4
contemplated that the Department would act as it in fact did
and repeal the Alaska exception. The district court noted “it
is entirely possible that the [Bureau of Indian Affairs]
publishes a final rule before the D.C. Circuit issues an opinion
in this case, and that the Secretary will then begin the process
of taking land into trust before a decision is issued on appeal.”
Id. To avoid the irreparable harm that would result from that
outcome, the district court granted Alaska a stay pending
appeal by enjoining the Department from taking Alaska lands
into trust until this court issued its opinion. That injunction is
the only thing that has prevented the Department from taking
Alaskan lands into trust during the pendency of this suit.
Similarly, it seems this state of affairs was apparent to the
parties throughout this appeal. This case has been captioned
with the Department listed as “appellees” and Alaska listed as
“appellants” despite the fact that both the Department and
Alaska were defendants below. While the origins of those
labels arose in this Court according to the routine docketing
procedures of our Clerk’s Office, any party could have moved
for realignment if the party designations were incorrect. See
Weaver v. United Mine Workers of America, 492 F.2d 580,
586-87 (D.C. Cir. 1973) (granting a party’s motion to
withdraw an appeal, remand to district court, and realign the
parties). That Alaska and the Department accepted their
adverse alignment suggests they understood themselves to
have adverse claims in this case. After all, if Alaska had no
claim of its own at stake in this suit, there would be no reason
for the Department to show up in this court and defend
against Alaska’s appeal; Alaska would have only been an
adverse party to the Native Alaskan appellees, and the
Department’s acquiescence in the judgment would not have
changed that reality. But Alaska does have a separate
disagreement with the Department, which drew the
Department into this court to defend itself. Although the
5
Department primarily asserts a procedural argument aimed at
kicking this suit on mootness grounds, the Department
nonetheless defends against Alaska’s claim on the merits
because, indeed, Alaska all along has raised a claim against
which the Department has thought necessary to defend. It
does not matter, as the Court suggests, that Alaska described
both itself and the Department as appellants in its January 21,
2014 certification; at that time, the Department’s appeal was
still pending and both parties were appealing. Nonetheless,
after the Department dismissed its appeal in June of 2014,
both it and Alaska were content to maintain the Department’s
status as an appellee. I do not mean to place too much stock
in case captioning decisions, nor need I, because the
Department itself told this court that “Alaska intervened to
assert that the Secretary lacked authority to acquire lands in
trust status in Alaska,” and the district court “denied relief on
its claim.” Federal Appellees’ Statement of Issues Filed (Jan.
27, 2014).
Today, the court says Alaska sought no affirmative relief
in the district court, but I cannot agree. Alaska did seek
affirmative relief by requesting a declaration that ANCSA
compelled the Alaska exception. That relief is not merely the
flip side of Akiachak’s claim. In fact, it was entirely possible
that both Akiachak and Alaska could lose on their claims,
leaving the Department’s defense as the prevailing legal
theory. Under that outcome, the district court would have
held that the IRA did not prohibit the Alaska exception, but
neither did ANCSA compel it; the Department would have
had the discretion to retain or repeal the Alaska exception.
But by entering the case and raising the claim that ANCSA
compelled the Alaska exception, Alaska raised a new
affirmative argument and a new claim for injunctive relief.
The district court determined that issue solely because Alaska
raised it. Absent Alaska’s participation in the case, the
6
district court would have had no reason to consider whether
an injunction enforcing the Alaska exception would have been
warranted.
Contrary to the court’s view, this position does not
“conflate[ ] Rule 24(a)’s standard for intervention as of right
… with the presentation of an affirmative claim for relief.”
Maj. Op. at 15. The point is not that the Department “may”
not have adequately defended Alaska’s interests, which is
what this court’s interpretation of Rule 24(a) required for
Alaska to intervene as of right in the case. Trbovich v. United
Mine Workers of America, 404 U.S. 528, 538 n. 10, 92 S. Ct.
630, 636 (1972) (citations omitted). The point is that Alaska
went further than that and asserted a different affirmative
position than what the Department advanced. As Alaska
stated in its motion to intervene, “[h]ere, the positions of
Alaska and the federal defendants are not the same.” Dkt. 18-
2 at 15. While the “Department of Interior withdrew the 1978
Fredericks Opinion stating that ANCSA prohibits the
Secretary from taking land into trust in Alaska … Alaska
supports the reasoning of the Fredericks Opinion and
maintains that … Indian country [susceptible to trust status]
does not exist in Alaska.” Id. Thus, “[w]ithout intervention,
the full ventilation of these issues cannot take place.” Id.Alaska made clear not only that it possessed certain interests
that the Department “may” not adequately defend (“the
State’s interest … in ensuring the consistent and uniform
application of state law” and “protecting its territorial
jurisdiction throughout the state”), but also that it intended to
assert an entire argument the Department had abandoned.
The court doubts that Alaska’s new argument rose to the
level of a “claim to relief” because it says the words
“compelled by” are insufficient to establish a claim. Maj. Op.
at 16. But the court misconstrues Alaska’s claim. Alaska
7
established an affirmative claim to relief by seeking “entry of
a judgment … declaring [the Alaska exception] consistent
with and compelled by the Alaska Native Claims Settlement
Act.” State of Alaska’s Answer, Prayer for Relief ¶ 6 [JA 57-
58] (emphasis added). Alaska’s claim sought a declaratory
judgment holding that the Alaska exception was not merely
“consistent with” ANCSA (as the Department argued) but
compelled by ANCSA. If ANCSA clearly compels the
Alaska exception—as Alaska believes it does—the district
court could have declared that fact in its judgment, thus
affording Alaska the affirmative relief it sought. The court
suggests that only the Administrative Procedure Act could
have supplied a basis for any affirmative claim Alaska might
have pled, but even if that is true, the Department was free to
challenge Alaska’s claim for relief on the merits. In fact, the
Department did exactly that, arguing that ANCSA left to the
Secretary’s discretion whether to take land into trust for
Alaskan tribes.
Nor does it matter that the Department’s view of the case
had not been fully fleshed out in court filings at the time
Alaska filed its answer. See Maj. Op. at 16. Alaska knew the
Department no longer defended the Alaska exception as being
compelled by ANCSA because the Department had publicly
rescinded the Fredericks Opinion (which espoused that view),
stating that “there is substantial doubt about the validity of the
conclusion reached in” that opinion. Appellant’s App. 265.
In any event, the Department’s answer to Akiachak’s
complaint raised no claim that the Alaska exception was
compelled by ANCSA, so Alaska was free to raise that
affirmative claim itself.
To reach its conclusion, the court relies on a series of
purportedly analagous cases that are actually inapposite. The
court looks to Akiachak’s claim—seeking the invalidation of
8
the Alaska exception—and declares the case moot because the
challenged regulation no longer exists. Maj. Op. at 10. But
the relevant claim here is not Akiachak’s but Alaska’s.
Alaska’s claim is still live because Alaska’s claim has always
been that the Alaska exception must remain law. Alaska still
has something to litigate even when the exception is no longer
in force because Alaska seeks a declaration that the exception
must be the law. For this reason, the court’s reliance on
Diffenderfer, Larsen, and National Black Police Ass’n is
misplaced. Maj. Op. at 10-11. In those cases, a party sought
to invalidate a law, policy, or regulation that no longer existed
and that was unlikely to be reenacted. Alaska’s relief is still
possible where the relief sought in Diffenderfer, Larsen, and
National Black Police Ass’n was not.
The court relies on National Football League because of
the same misunderstanding. Maj. Op. at 11. There, an
intervening event (the conclusion of the 1993-94 professional
football season) made all of the relief sought in the complaint
unobtainable, and therefore, the case was moot. The same
would be true here if the relief sought in Akiachak’s
complaint were the only relief sought in this case. But
Alaska’s counterclaim raised a new issue, which no
intervening event has rendered moot. Mootness has been
prevented here because there is “at least a capacity for a
declaration of a legal right concerning a future projection of
the actual dispute that precipitated the litigation.” Maj. Op. at
12, (quoting Alton & S. Ry. Co. v. Int’l Ass’n of Machinists &
Aerospace Workers, 463 F.2d 872, 879-80 (D.C. Cir. 1972)).
That holds true because the “dispute that precipitated the
litigation” in the present context is the dispute Alaska alleged
when it intervened below.
At the risk of excessive repetition, the same error plagues
the court’s reliance on Wyoming v. USDA, 414 F.3d 12079
(10th Cir. 2005). Maj. Op. at 22-23. There again, the case
became moot because “[t]he portions of the [regulation] that
were substantively challenged by [the plaintiff] no longer
existed.” Id. at 1212. That situation would be analogous to
the present circumstances if Akiachak were the party seeking
to appeal or if the only claim to be appealed was what
Akiachak stated in the original complaint. But Alaska raised
a separate claim here, and that claim is the subject matter of
this appeal. Moreover, Alaska’s claim survives the
Department’s regulatory repeal because Alaska seeks a
declaration that the regulation is required by law. That relief
is still possible despite the repeal, unlike the relief sought in
Wyoming.
From here, the errors compound because the court rests
its opinion on the premise that the Department mooted
Alaska’s claim when it repealed the Alaska exception. But
that action did not— indeed, could not—have caused such a
catastrophic result. There are two problems with the court’s
approach. First, it treats the Department’s repeal of a vacated
regulation as a meaningful event. In fact, the repeal was
meaningless because the district court had already severed
and vacated the Alaska exception. Dkt. 130, (Remedy
Opinion) at 3-9. The district court took that approach because
it was clear to it that “the deficiencies of the Alaska exception
[we]re fatal” such that “the Secretary could not promulgate it
again on remand.” Akiachak Native Comm. v. Jewell, 995 F.
Supp. 2d 1, at 6 (D.D.C. 2013). Accordingly, the district
court rejected the possibility of remanding for a curative
rulemaking and instead “sever[ed] and vacate[d]” the Alaska
exception from the rest of 25 C.F.R. § 151.1. See id. at 7. The
Department’s subsequent curative rulemaking was an
absurdity at best; it created no legal effect because the Alaska
exception was already vacated and therefore unenforceable.
At worst, the Department’s curative rulemaking effected a
10
strategic bait-and-switch on Alaska, allowing the Department
(with this court’s authorization) to force Alaska back to
district court to start its claim again, but with a deferential
standard of review applied to the new rulemaking under
Chevron. Either way, when the court relies today on the
absence of the Alaska exception to demonstrate the mootness
of this case, what the court really means is that the district
court mooted this case when it vacated the Alaska exception.
That is nonsensical, of course, because the decision of the
district court to vacate the Alaska exception is the very
decision Alaska is challenging here and from which Alaska is
entitled to an appeal as of right.
Second, it is odd to think (as the court must) that the
Department could moot Alaska’s claim by doing precisely
what Alaska has sought to prevent from the moment it
intervened in this suit. Alaska has tried all along to prevent
the repeal of the Alaska exception; it hardly moots Alaska’s
case to have the Department formalistically (if meaninglessly)
do exactly what Alaska feared.
In treating the Department’s repeal of the Alaska
exception as a meaningful decision that has mooted this case,
the court falls prey to the Administration’s thimblerig. Of
course, it was in the Department’s best interest to retract the
vacated Alaska exception in a rulemaking and thus force, if it
could, Alaska to attack that rulemaking rather than merely to
appeal a decision of a district court. Why? Because in
attacking the rulemaking directly, Alaska will be forced to
confront a standard of review highly deferential to the
Department. The Department will run the table.
That the mootness problem the Department urges is
illusory becomes even clearer when the court suggests Alaska
could bring this case and avoid a mootness problem by simply
11
returning to the district court and raising the same claim
against the same party in a new case. Maj. Op. at 25. On its
face, that recommendation is confirmation that the case is not
moot but has only hit a procedural roadblock thrown up the
Department and endorsed by this court. In no other case on
which the court relies could the supposedly aggrieved party
have cured its mootness problem by simply starting over
again. When an intervening event truly moots a case, no
promised “do-over” can save it.
Following this case, Alaska will have two options: either
challenge the new rule afresh in district court or wait for the
Department to take lands into trust and then challenge that
administrative decision directly. Both of these approaches
disadvantage Alaska compared to the present litigation. If
Alaska awaits the administrative decision, it will not only face
a deferential standard of review favoring the Department but
also the general reluctance of courts to disturb administrative
actions retroactively. But see U.S. v. Mead Corp., 533 U.S.
218, 226−27 (2001) (Chevron deference only applies where
Congress has delegated authority to an agency); cf. Final
Appellant’s Br. 47. This is especially true if the Department
chooses to take land into trust, which will introduce the
reliance interest of tribal parties into any balancing that a
future court may undertake. It is enough to say that Alaska
will never be in the same posture it is today.
In any event, the result the court suggests is contrary to
judicial economy and basic fairness. Alaska did the right
thing by intervening here, in a case in which the subject
matter being contested related substantially to the State’s
interests. Alaska sought to promote judicial economy by
locating itself with other interested parties in the same court
and as part of the same proceedings, adding its related claim
to the others already being litigated. Today this court undoes
12
that sensible effort, only to recommend that the gathered
parties disband and start the same dispute over again in
district court. It is as if the groom is at the altar, the bride is in
the vestibule, and friends and family gathered in the pews, but
the court has decided to reschedule the wedding for a few
days from now in a different church down the road. The
litigants, a state and a federal agency, are taxpayer-supported
entities. The result is waste—pure and simple.
To make matters worse, the court’s suggestion that the
parties begin afresh in district court carries real consequences
for Alaska, consequences that threaten the State with
“irreparable harm” according to the district court. Dkt. 145
(Opinion Granting Stay) at 12. Currently, the Department is
operating under a stay that prevents taking Alaskan land into
trust. That stay protects Alaska while this appeal is pending,
but upon issuance of the court’s decision today, that stay will
be lifted and the Department will be free to take Alaskan
lands into trust. Alaska can hope, of course, that another
district court will see fit to enjoin the Department from doing
so while Alaska starts over. But having obtained a stay once
does not guarantee extraordinary relief will be granted again.
See, e.g., Winter v. Natural Resources Defense Council, Inc.,
555 U.S. 7, 24 (2008) (“A preliminary injunction is an
extraordinary remedy never awarded as of right.”). By
making the Department’s rulemaking the pivotal fact in its
mootness determination, the court has arguably decided the
merits sub silentio. And that decision necessarily affects
another court’s calculus in deciding whether injunctive relief
is appropriate.
The court says Alaska’s argument amounts to saying “the
district court effectively eliminated the agency’s power to
take any action that could moot the case.” Maj. Op. at 21.
Embedded in that statement is the assumption the government
13
can always choose to end a case when it wishes, for all
parties. But in intervening, Alaska established that it had
interests at stake in this case that were different from those of
the Department. Nothing says the Department, in addition to
being able to effectively “settle” with Akiachak by
acquiescing to the tribe’s claims, should also be able to
acquiesce on behalf of Alaska, dissipating Alaska’s distinct
interests in the case. Indeed, Alaska’s concern is not about
the agency’s power to moot the case; it is about the agency’s
power, period. The purpose of the case or controversy
requirement is to reserve our adversarial judicial process for
disputes between real adversaries. Today the court endorses
the opposite approach, suggesting the government always
retains the power to moot a case, even when its actions
exacerbate rather than alleviate the grievance of another party.
We have adversaries before us today seeking to have a live
controversy resolved. This case is not moot, and I would hear
it.
We should not deceive ourselves about the disservice we
do the parties in not resolving this case on the merits. The
issues presented are of great significance. The district court’s
decision and the Department’s actions may very well affect
Alaska’s sovereignty—infringing its jurisdictional hegemony
and its territorial integrity. At the very least, the potential
establishment of Indian Country in Alaska arguably runs
counter to the bargain the State struck with the federal
government (and paid for handsomely) when ANCSA was
enacted. See Donald Craig Mitchell, Alaska v. Native Village
of Venetie: Statutory Construction or Judicial Usurpation?
Why History Counts, 14 Alaska L. Rev. 353 (1997). After
all, the Department’s present view of ANCSA is a recent
invention; at the origination of this very suit the Department
held a view contrary to what it espouses now. The issues of
statutory interpretation at play here can hardly be of obvious
14
advantage to the Department given that it took the
administration well over thirty years to see things this way,
and it is not clear Congress delegated any interpretive
authority to the Secretary. See 43 U.S.C. §§ 1601, 1603,
1618(a). ANCSA has been recognized as a significant
legislative accomplishment, bringing disparate interest groups
together—the State of Alaska, Native peoples, the federal
government—to create a new system for land recognition that
explicitly repudiated and replaced the paternalistic reservation
model implemented in the lower continental states. See
Alaska v. Native Village of Venetie Tribal Gov’t, 522 U.S.
520, 523−24 (1998). The Department’s new view of ANCSA
runs counter to that historical narrative, and the express
intentions of Congress. See Address by Hon. Ted Stevens,
United States Senator, before a Joint Session of the First
Session of the Twentieth Alaska State Legislature (Apr. 2,
1997) in Senate & House J. Supp. No. 9 (1997). Whether the
Department’s view is accurate is a question deserving serious
consideration. I, for one, would have considered that question
today.