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Swiss v. Chignik River, Ltd. (1/2/98), 951 P 2d 433
<![CDATA[
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
JOHN S. SWISS, individually )
and d/b/a SWISS'S ALASKA ) Supreme Court No. S-7726
TROPHY HUNTS, )
)
Appellant, )
) Superior Court No.
v. ) 3AN-94-2970 CI
)
CHIGNIK RIVER LIMITED, an ) O P I N I O N
Alaska corporation, )
)
Appellee. ) [No. 4926 - January 2, 1998]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Dana A. Fabe, Judge, and
Stephanie E. Joannides, Judge pro tem.
Appearances: Thomas E. Meacham, Anchorage,
for Appellant. Amy L. Vaudreuil, Hedland, Brennan, Heideman &
Cooke, Anchorage, for Appellee.
Before: Compton, Chief Justice, Matthews and
Bryner, Justices. [Eastaugh and Fabe, Justices, not participating.]
MATTHEWS, Justice.
I. INTRODUCTION
The Alaska Native Claims Settlement Act (ANCSA) requires
village corporations to convey land used as a subsistence campsite
to the occupant. The question presented is whether an occupant may
be entitled to more than one campsite for a given subsistence use.
We answer "yes"because the act contains no limitations pertaining
to subsistence campsites and multiple campsites are frequently
needed for the subsistence lifestyle which Congress meant to
protect.
II. FACTS AND PROCEEDINGS
John Swiss is a big game guide and subsistence hunter and
fisherman. In 1949 he and his family began setnet fishing at Polly
Creek; in 1951 he opened a commercial big game guiding business.
Swiss set up permanent hunting camps in several places around the
state. One of these was at Black Lake, the site at issue in this
case. In 1967 Swiss built a cabin at the site. This camp has been
used as a place out of which hunters were guided and for obtaining
meat for personal use from moose, caribou and ptarmigan.
Pursuant to section 14(a) of ANCSA, 43 U.S.C.  1613(a),
Chignik River Limited (Chignik) selected and received title to
large blocks of federal land including the land on which the Black
Lake camp stands. Section 14(c)(1) of ANCSA, 43 U.S.C. 
1613(c)(1), requires village corporations to convey to "any Native
or non-Native occupant"title to the surface estate of tracts of
land obtained under section 14(a) used, as of December 18, 1971,
"as a primary place of residence, or as a primary place of
business, or as a subsistence campsite, or as headquarters for
reindeer husbandry." Id.
Swiss has received a conveyance of a primary place of
business site. This was his guiding campsite at Cathedral Creek.
He has also had a tract near Fan Creek conveyed to him as a
subsistence campsite. In this case, Swiss ultimately came to claim
that he was entitled to conveyance of the Black Lake camp as
another subsistence campsite. [Fn. 1]
When Chignik failed to take action on Swiss's application
for a conveyance he filed suit. On cross motions for summary
judgment, the superior court ruled that Swiss was not entitled to
the Black Lake parcel as a subsistence campsite because he had
already received a conveyance of the Fan Creek subsistence campsite
and he claimed both sites for the same subsistence use -- gathering
meat. The court also awarded Chignik Civil Rule 82 attorney's fees
of $6,891.60 and costs of $1,383.80.
Swiss appeals, claiming that an occupant is not limited
to a conveyance of a single subsistence campsite for a particular
subsistence use under section 14(c)(1). Chignik argues that the
superior court was correct in its reasoning regarding the number of
subsistence campsites to which an occupant is entitled and, in the
alternative, that Swiss did not use the Black Lake camp as a
subsistence campsite but as a commercial camp and that the
conveyance should be denied on that ground.
III. DISCUSSION
A. Conveyance Under Section 14(c)(1).
ANCSA section 14(c)(1), 43 U.S.C.  1613(c)(1), provides:
Each patent issued [to a village
corporation under section 14(a) and (b) of the act] shall be
subject to the requirements of this subsection. Upon receipt of a
patent or patents:
(1) the Village Corporation shall
first convey to any Native or non-Native occupant, without
consideration, title to the surface estate in the tract occupied as
of December 18, 1971 . . . as a primary place of residence, or as
a primary place of business, or as a subsistence campsite, or as
headquarters for reindeer husbandry[.]
In Hakala v. Atxam Corporation, 753 P.2d 1144 (Alaska
1988), we interpreted the "primary place of business"provision of
section 14(c)(1) to mean that "for each business in which a person
engages, there can be only one primary place of business." Id. at
1148. Thus, an occupant is entitled to conveyance of only one
parcel of land as a primary place of business for a given business.
In this case, the superior court reasoned that the
statutory limitation placed on the conveyance of a "primary place
of business"should also be read into the clause providing for
conveyance of a subsistence campsite. The court wrote:
The language of Sec. 14(c)(1) limits
conveyances of businesses and residences to the primary business
and residence site and conveyances of reindeer husbandry sites to
the headquarters for such activities. That indicates that even
though long time users of the land had secondary business sites,
residences, and reindeer husbandry sites, they are not entitled to
a Sec. 14(c)(1) conveyance for those sites. By the same token, the
conveyance of one subsistence campsite for a particular subsistence
purpose should act to bar the conveyance of additional subsistence
sites used for the same purpose.
Thus, under the reasoning employed by the superior court, one could
obtain conveyances of a game subsistence campsite and a berry
picking subsistence campsite but not two game subsistence
campsites. As Swiss had claimed his Fan Creek and Black Lake camps
as game subsistence sites, and had obtained a conveyance of the
former, the superior court concluded he was not entitled to the
latter.
B. Does Section 14(c)(1) Limit Conveyance of Subsistence
Campsites to One Campsite Per Subsistence Use?
Swiss argues that our Hakala decision provides the key to
the outcome of this case. He notes that "in contrast to the
'primary' place of business requirement and the 'primary' place of
residence requirement in Section 14(c)(1), the 'subsistence
campsite' category is not so qualified." He concludes,
given this Court's holding in Hakala that a
"primary"place of business can only be a single site, the fact
that Congress did not similarly qualify subsistence campsite claims
should have led the court below to the opposite conclusion: that
Congress, by not imposing the "primary"qualifier on subsistence
campsites (as it had done for places of business and places of
residence), explicitly did not intend to limit a claimant to only
one subsistence campsite.
Chignik argues in opposition that Swiss's interpretation of the act
would cause too much ANCSA land to be conveyed out of the hands of
village corporations.
In our view, Swiss has the better of the argument.
Section 14(c)(1) does not impose an express limitation on the
number of subsistence campsites as it does for residences and
businesses. This omission implies that no limitation was intended.
See Croft v. Pan Alaska Trucking, Inc., 820 P.2d 1064, 1066 (Alaska
1991) (designating certain things in a statute indicates that
omissions should be understood as exclusions); Burrell v. Burrell,
696 P.2d 157, 165 (Alaska 1984) ("It is an accepted rule of
statutory construction that to include specific terms presumptively
excludes those which are not enumerated.").
Furthermore, practical considerations also indicate that
a rule of one game campsite per occupant was not intended. Many
Alaskan Natives leading a traditional subsistence lifestyle rely on
more than one species for meat. Each species may be harvested in
a different location, thus requiring several subsistence campsites.
Further, some species are migratory and pursuing them requires more
than one campsite. Imposing a single-campsite limit for taking
game would ignore these realities.
The influential report of the Federal Field Committee for
Development Planning in Alaska, Alaska Natives & the Land (1968),
submitted to Congress as background for ANCSA, recognized these
facts and the consequent need for multiple campsites:
Alaska is often pictured as a hunter's
paradise. No vision could be more misleading. True, there are
areas where wildlife abounds. There are other areas, some as large
as most states, where few or no game animals exist. A case in
point is the northern caribou that wander over the Arctic tundra,
inhabiting one area for a few months then migrating to another.
Oftentimes they are found hundreds of miles from where they were at
the same time in previous years. Sometimes they avoid using a part
of their range or migrating route for years. Other large areas
such as the Yukon-Kuskokwim deltas support only waterfowl and small
furbearers. Much the same may be said for the Aleutian Islands.
It is only when discussing southern and interior Alaska that we can
deal in terms of biological populations existing permanently in the
same location. And even these are subject to the cyclic
fluctuations common to most forms of wildlife.
To a human population depending upon
these resources for survival, this meant adoption of a way of life
that would enable them to obtain food, clothing and shelter at all
times of the year. Most imperative was continual contact with
their food supply. It also meant a human population density at a
level commensurate with the natural productivity of the land and
the waters. That the Native people were able to devise means of
covering long distances in search of food, for living in the open
for long periods of time, of traveling over moving sea ice, and
means of preserving their food during that part of the year when
the temperature was above freezing is proof of their
resourcefulness and energy.
Id. at 91.
Grants of fishing, hunting, and food-
gathering sites may be made to individuals now
using them or to Native groups for later transfer to the
individuals in possession. Since agencies do not have knowledge of
the locations of all such camps nor their users, the most practical
approach is to have government teams meet with villages in the
field to obtain applications from villagers for the sites they use.
Even residents of the largest villages continue to use historic
sites for hunting, fishing, and trapping -- sometimes for longer
periods than they reside in what may be called their home villages.
Congress might impose a maximum number of
subsistence-use sites and a maximum acreage that might be embraced
by all applications from each head of a household or other adult,
but in so doing it should be remembered that the number of
subsistence sites required for each family in their subsistence
quest varies throughout the state.
While the 160-acre limitation of the
Alaska Native Allotment Act might be adequate, the limitation to
only four parcels would not cover the number of sites now in use by
many families.
Id. at 539.
Based on the structure of section 14(c) and the nature of
the subsistence hunting practices which Congress sought to protect,
we conclude that the superior court erred in holding that an
occupant is entitled to conveyance of only one subsistence campsite
for subsistence game under section 14(c)(1).
C. Did Swiss Use the Black Lake Camp as a Subsistence
Campsite?
Chignik contends that the superior court's grant of
summary judgment should be upheld on the alternate ground that
Swiss used the Black Lake site primarily for business and only
incidentally as a subsistence campsite and that he is not entitled
to conveyance of the site under section 14(c)(1). We decline to
make such a determination on the record before us.
No standard has been set to determine whether a site
which is used for subsistence and for another purpose qualifies as
a subsistence campsite under ANCSA. Chignik suggests that the
decision should turn on the "predominant character"of the use of
the site. Swiss suggests that qualifying subsistence usage need
only be "not inconsequential"or, alternatively and more
restrictively, "substantial." Other standards are also conceiv-
able. The question as to what the applicable standard should be
was not litigated in the superior court, and has not been brought
into focus in the parties' briefs before this court. Therefore, we
do not believe that it would be appropriate to decide at this time
what the standard should be. On remand, the superior court should
invite additional briefing, decide on the appropriate standard,
find the facts, and apply them to the standard.
D. Attorney's Fees and Costs.
We reverse the superior court's award of attorney's fees
and costs to Chignik because the award is not now appropriate given
our reversal of the underlying decision.
IV. CONCLUSION
For the reasons stated, we REVERSE the judgment of the
superior court and REMAND for further proceedings in light of this
opinion.
FOOTNOTES
Footnote 1:
Swiss initially litigated the case as a claim for another
primary place of business site. It became clear that this claim
would not prevail because of this court's ruling in Hakala v. Atxam
Corp., 753 P.2d 1144 (Alaska 1988). There, we held that a person
could only have one primary place of business for a given business
for purposes of section 14(c)(1). Id. at 1148. Swiss had claimed
both the Cathedral Creek site and the Black Lake camp as primary
places of business for his guiding operations. However, in his
initial application to Chignik for conveyance, he had also claimed
that the Black Lake camp was a subsistence campsite used to gather
meat for his family. Swiss amended his complaint to claim the
Black Lake camp as a subsistence campsite.
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