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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bodkin v. Cook Inlet Region, Inc. (04/04/2008) sp-6246

Bodkin v. Cook Inlet Region, Inc. (04/04/2008) sp-6246, 182 P3d 1072

     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,


MARIA D. L. COLEMAN, ) Supreme Court No. S- 11870
Appellants, ) Superior Court No. 3AN-03-07389 CI
v. ) O P I N I O N
COOK INLET REGION, INC., ) No. 6246 April 4, 2008
Appellee. )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Dan A. Hensley, Judge.

          Appearances:  Fred W. Triem, Petersburg,  for
          Appellants.   Bruce E. Gagnon and  Jerome  H.
          Juday,  Atkinson, Conway & Gagnon, Anchorage,
          for Appellee.

          Before:   Fabe, Chief Justice,  Eastaugh  and
          Carpeneti,  Justices.  [Matthews and  Bryner,
          Justices, not participating.]

          FABE, Chief Justice.

          Eleanor Bodkin and Maria Coleman, shareholders of  Cook
Inlet  Region, Inc. (CIRI), appeal the superior courts  dismissal
of  their  challenge  to (1) the legality of  CIRIs  payments  to
original shareholders over the age of sixty-five under the Alaska
Native  Claims Settlement Act (ANCSA) and Alaska state  law,  and
(2) the constitutionality of ANCSA to the extent that it preempts
state  law in order to permit these payments.  Because the  plain
language  of  ANCSA  authorizes  CIRIs  distributions  to   elder
shareholders,  and  because  Bodkin and  Colemans  constitutional
claims  lack  a sound legal basis, we uphold the superior  courts
          In  1971  Congress  passed  the  Alaska  Native  Claims
Settlement  Act, 43 U.S.C.  1601 et seq., to achieve a  fair  and
just  settlement of all aboriginal land [in Alaska] .  .  .  with
maximum  participation  by Natives in decisions  affecting  their
rights  and  property.1   Toward that end,  the  Act  established
twelve  in-state Native regional corporations to  hold  land  and
capital  on  behalf  of Alaska Native shareholders.2   Except  as
otherwise  expressly provided, the Act gives  these  shareholders
all  rights of a shareholder in a business corporation  organized
under the laws of the State.3  In 1987 Congress amended ANCSA  to
give   each  regional  corporation  the  authority  to  establish
settlement  trusts to promote the health, education, and  welfare
of  its  beneficiaries and preserve the heritage and  culture  of
Natives.4   A  1998 amendment expressly authorized and  confirmed
the  regional corporations authority to pursue those objectives.5
It  further  stipulated that such benefits need not be  based  on
share  ownership in the Native Corporation and such benefits  may
be  provided  on  a  basis other than pro  rata  based  on  share
          CIRI is an Alaska Native regional corporation organized
under  ANCSA. In February 2000 the CIRI board of directors passed
a  resolution creating the Elders Benefit Program.   The  program
established a revocable trust that provided quarterly payments of
$450  to  any  shareholder aged sixty-five or older who  received
shares  in  CIRI  as an original enrollee.  The Board  determined
that  the  program did not require a shareholder  vote.   Shortly
after  the  Board  established the program, Emil  Notti,  a  CIRI
shareholder who did not qualify for benefits, filed  suit.   CIRI
removed  the  case  from  superior court  to  the  United  States
District Court for the District of Alaska.
          The  district court granted summary judgment  in  CIRIs
favor.   It  upheld  the validity of the Elders  Benefit  Program
because  [s]tate law authorizes ANCSA corporations  to  take  any
action authorized by ANCSA and ANCSA [ 7(r)] permits preferential
distributions.   The  Ninth Circuit Court  of  Appeals  affirmed,
reasoning that [t]he plain language of 7(r) allows CIRI  to  make
the  distributions made in this case.7  The United States Supreme
Court denied certiorari.8
          In the meantime, federal tax reforms led CIRIs board of
directors to favor replacing the Elders Benefit Program  with  an
irrevocable  trust, titled The Elders Settlement  Benefit  Trust.
Pursuant  to  ANCSA, 43 U.S.C.  1629b(a)(3) & (b)(1),  the  Board
passed  a  resolution to establish the trust and then sought  the
approval  of a majority of its shareholders.  In April  2003  the
corporation  distributed a Voters Guide  and  Supplemental  Proxy
Statement   detailing  the  proposed  trust.    These   materials
explained that the trust would cause CIRIs assets [to] decline by
.  .  .  $16  million, or about 2.1% of the book value of  [2002]
assets  and  outlined  several risk factors  that  could  lead  a
          shareholder to vote against the proposal.  At the corporations
June  7,  2003 annual meeting, CIRI obtained majority shareholder
approval  to  implement the trust.  On September  2,  2003,  CIRI
registered the trust with the superior court.
          On  May  8,  2003, Eleanor Bodkin filed  this  suit  in
superior  court against CIRI.  Her complaint purported  to  state
five  major  claims,  the most urgent of which  challenged  CIRIs
proxy  materials  as not provid[ing] adequate disclosure  to  the
rank-and-file  shareholders.   Appellant  Maria  Coleman   joined
Bodkin in an amended class action complaint filed on January  26,
2004,  after  the  CIRI  shareholders approved  the  trust.   The
amended  complaint repeated allegations that the CIRI April  2003
proxy  did  not provide adequate disclosure and that  the  Elders
Benefit  Program  and  the  trust illegally  discriminated  among
shareholders.   On  March  8, 2004, CIRI  moved  to  dismiss  for
failure to state a claim upon which relief could be granted.  The
corporation  argued  that  ANCSA expressly  permits  the  benefit
programs  and  that  its  proxy statement contained  no  material
misstatements  or  omissions.   CIRI  also  filed  a  motion  for
sanctions  under  Alaska Civil Rules 11  and  95,  alleging  that
Bodkin and Colemans counsel, who had also represented Emil  Notti
in  his  lawsuit  regarding the same issues,  had  no  reasonable
excuse  for  his conduct in signing and submitting a  [c]omplaint
that is not well-grounded in law or fact.
          Bodkin  and Coleman requested an extension of  time  to
respond  to  CIRIs  motion to dismiss,  and  the  superior  court
granted that request.  Bodkin and Coleman used this time to amass
an  opposition memorandum of 150 pages, which included  a  cross-
motion  for partial summary judgment.  The superior court refused
to  consider  the summary judgment motion until after  the  court
resolved  CIRIs  motion  to dismiss.  Similarly,  it  stated  its
intention  to  postpone  hearing  arguments  on  the  other  ripe
motions,   including  Bodkin  and  Colemans  motion   for   class
certification.   Nevertheless, Bodkin and  Coleman  persisted  in
filing  a  reply to follow up on their cross-motion  for  partial
summary  judgment.   CIRI filed a motion challenging  Bodkin  and
Colemans reply as premature since it had yet to file its response
to Bodkin and Colemans motion for summary judgment, and would not
need  to  do  so until after the court considered the Civil  Rule
12(b)(6) motion.
          The  superior court eventually heard oral  argument  on
CIRIs  motion  to dismiss on July 28, 2004, and on September  24,
2004,  the lower court issued its decision dismissing Bodkin  and
Colemans  suit.  The superior courts opinion notes  that  several
courts   have  rejected  [Plaintiffs]  same  or  similar  claims.
Specifically,  the  opinion  cites  our  decision  in  Sierra  v.
Goldbelt,  Inc.9  and  the Ninth Circuits decision  in  Broad  v.
Sealaska   Corp.10   for  the  proposition  that   ANCSA   allows
distributions  to subsets of shareholders.  In  addition  to  the
case  law,  the superior court relied on  7(r)s express language,
which  stipulates  that  benefits need  not  be  based  on  share
          The superior court further buttressed its decision with
evidence  from  ANCSAs  legislative history.   The  congressional
          record directly addresses the benefits permitted under  7(r):
          Examples  of the type of programs  authorized
          include:  scholarships, cultural  activities,
          shareholder   employment  opportunities   and
          related    financial   assistance,    funeral
          benefits,  meals  for the elderly  and  other
          elders[]  benefits including  cash  payments,
          and medical programs.[12]
The superior court therefore concluded that Congress intended  to
provide  for  cash  distributions and that ANCSA  authorizes  the
Elders Benefit Program and Elders Settlement Trust.
          The  superior  court  refused to exercise  jurisdiction
over Bodkin and Colemans constitutional taking challenge to CIRIs
benefit programs, reasoning that [i]f the plaintiffs have a claim
for  taking  their property, they must assert that claim  against
the U.S. government which authorized the statute.  The court went
on  to  reject  the  rest  of Bodkin and Colemans  constitutional
claims   including  their assertion that CIRIs  benefit  programs
deny  them  equal protection under the law.  The  court  reasoned
that the constitution protects individuals from state action  but
not  from deprivations by private actors.  Because CIRI is not  a
governmental agency, the superior court concluded that Bodkin and
Coleman could not succeed on these claims.
          Finally,  the  superior court disposed  of  Bodkin  and
Colemans allegations regarding the adequacy and accuracy of CIRIs
proxy  materials.   The  court found that CIRIs  proxy  materials
provided  accurate and complete information regarding the  impact
of  the  settlement trust on the corporation and  the  individual
shareholder.  Addressing Bodkin and Colemans argument  that  CIRI
should  have  included  estimates  of  the  programs  impact   on
individual  share  prices, the superior court  pointed  out  that
their objection failed to recognize the complexity of stock price
valuation, especially where shares may not be bought or  sold  on
the  open  market.  Similarly, the  court  dismissed  Bodkin  and
Colemans claim that CIRIs proxy materials are misleading  or  not
useful  because  the  font  size is  too  small,  reasoning  that
[n]othing  about  the  font  size would  lead  a  shareholder  to
disregard the proxy materials.
          Following   the  courts  ruling,  Bodkin  and   Coleman
submitted a motion for reconsideration, which was denied.  Bodkin
and Coleman appeal.
          We  review  de  novo a superior courts dismissal  of  a
complaint  pursuant to Alaska Civil Rule 12(b)(6).13   This  same
review  applies to constitutional issues and any other  questions
of  law.14   We review a lower courts discovery rulings  and  its
decision  to  expressly  exclude material  beyond  Rule  12(b)(6)
pleadings for abuse of discretion.15
          Bodkin  and  Coleman present three issues  for  review.
First, Bodkin and Coleman argue that the superior court erred  in
excluding  extrinsic  evidence that they sought  to  submit  with
their  opposition to CIRIs motion to dismiss.  Second, they claim
          that ANCSA does not authorize CIRIs benefit program and trust.
Finally, they argue that even if ANCSA does authorize the benefit
program and trust, the distributions qualify as government action
giving rise to constitutional claims.
     A.   The  Superior  Court Did Not Abuse  Its  Discretion  in
          Declining To Consider Additional Evidence Presented  by
          Bodkin  and  Coleman Prior to Granting  Appellees  Rule
          12(b)(6) Motion.
          Bodkin and Coleman argue that the superior court  erred
in  declining to convert CIRIs motion to dismiss to a motion  for
summary  judgment.   They  contend that the  evidence  that  they
sought  to submit with their opposition to the motion to  dismiss
would  have  entitled them to relief if the  superior  court  had
considered the motion as one for summary judgment.  This evidence
includes  CIRIs admissions about its elders benefit programs,  as
well  as  proffered expert testimony on the CIRI proxy materials.
We  must decide whether the lower court abused its discretion  in
excluding  this material beyond the pleadings . .  .  offered  in
conjunction with a Rule 12(b)(6) motion.16
          We  hold  that  it did not.  Bodkin and Colemans  brief
sheds  no  further  light on the importance  of  their  proffered
expert  testimony and devotes scant attention to the adequacy  of
CIRIs proxy materials in general.  We have held before that where
a point is given only a cursory statement in the argument portion
of  a  brief,  the point will not be considered on appeal.17   In
their  sixty-nine-page  brief with its various  tables  and  over
fifty  footnotes, Bodkin and Coleman limit their analysis of  the
proxy materials to passing remarks contained within two sentences
and a footnote on a single page.  Bodkin and Colemans reply brief
ignores the proxy materials issue altogether.  Thus, without some
elaboration  on  how their expert testimony bears  on  the  proxy
issue in their complaint, Bodkin and Coleman fail to convince  us
that  the superior court abused its discretion in excluding  that
          Bodkin  and Coleman similarly fail to persuade us  that
the  superior court abused its discretion in rejecting such other
materials  as CIRIs admissions about its elders benefit programs,
which they sought to submit with their opposition to CIRIs motion
to dismiss.18  For the most part, the factual disputes that Bodkin
and Coleman cite seem neither factual nor disputed.  For example,
references  in  CIRIs corporate statements to the elders  benefit
payments  as distributions or dividends do not alter our analysis
of whether CIRIs quarterly cash payments to original stockholders
over  the  age of sixty-five violated ANCSA.  Bodkin and  Coleman
cite  other  purportedly disputed issues of fact,  including  the
number  of  elders  receiving benefits, or how much  the  program
costs  on  a per share basis, but again they fail to explain  how
these issues relate to their claims.
     B.   The  Superior Court Correctly Held that ANCSA Expressly
          Authorizes  CIRIs  Elders Benefit  Program  and  Elders
          Settlement  Benefit  Trust, Thereby  Preempting  Alaska
          When  Congress  amended  ANCSA in  1998,  it  expressly
          authorized each regional corporation to distribute benefits in
order  to  promote  the  health, education,  or  welfare  of  its
beneficiaries.19   This  amendment,  contained  in  ANCSA   7(r),
further stipulates that such benefits need not be based on  share
ownership  in  the Native Corporation and such  benefits  may  be
provided on a basis other than pro rata based on share ownership.20
          Bodkin  and Coleman argue that  7(r)s authorization  of
benefits does not extend to the cash distributions that CIRI  has
paid  out in its elders benefit program and trust.  They  contend
that  [i]n  modern parlance, benefits refers to  governmental  or
institutional  grants of charitable aid, assistance,  or  welfare
[and  the  term]  is not used to mean corporate distributions  or
dividends.   When pressed by the superior court to  elaborate  on
the  terms meaning, Bodkin and Coleman indicated that the statute
[is]  limited to providing benefits by need only . . . . It means
some  demonstrable need.  Thats what the language [used] in  7(r)
          But  the  legislative history behind  7(r) casts  doubt
upon  this characterization.  On the floor of the Senate, Senator
Frank  Murkowski urged passage of the ANCSA amendment.   He  also
noted  that  [e]xamples  of the type of programs  authorized  [by
7(r)]  include:  scholarships, cultural  activities,  shareholder
employment   opportunities  and  related  financial   assistance,
funeral  benefits,  meals  for the  elderly  and  other  elders[]
benefits including cash payments, and medical programs.21  Bodkin
and  Coleman  dismiss  that  legislative  history,  however,   as
containing  little more than Senator Murkowskis statement,  which
they urge us to ignore.  Bodkin and Coleman assert that the plain
meaning  of  benefits cannot include what CIRIs  own  promotional
literature  characterizes as dividends.  According to Bodkin  and
Coleman, these terms are mutually exclusive.  We disagree.
          As  the  superior court pointed out, we have previously
considered an argument closely akin to the one Bodkin and Coleman
advance  in  this  appeal.   In  Sierra  v.  Goldbelt,  Inc.,  we
considered  whether  Goldbelt,  Inc.,  another  Native   regional
corporation, could issue shares to original shareholders over the
age  of sixty-five.22  In upholding Goldbelts share issuance,  we
looked to Congresss intent and concluded that Native corporations
must have broad discretion to fashion elder benefit programs that
meet the needs of elders.23  We made note of certain restrictions
that do apply to Native regional corporation distributions.   For
example, a Native regional corporation may not define classes  of
beneficiaries  . . . by reference to place of residence,  family,
or  position  as an officer, director, or employee  of  a  Native
Corporation.24  We clarified, however, that ANCSA permits limiting
beneficiaries to elders who owned original shares of stock.25
          Here,  Bodkin  and Coleman advance no principled  basis
for  distinguishing  Goldbelt.  They  emphasize  the  qualitative
difference  between the issuance of corporate stock  .  .  .  and
discriminatory cash payments.  According to Bodkin  and  Coleman,
the issuance of stock institutionalizes the ownership interest of
original  shareholders in the corporation, but cash  payments  do
not.   Yet  the Goldbelt board agreed to redeem the  shares  they
issued  to  elders  at  a fixed price, and  elders  received  the
          equivalent of $1,000.26  Thus, for many elders, the Goldbelt
program  differed  only  in  its form  and  duration  from  CIRIs
quarterly  cash  distributions.   Bodkin  and  Coleman  fail   to
assemble   any   support  from  the  relevant   statutory   text,
legislative  history, or case law to distinguish our  holding  in
Goldbelt from the case at hand.27
     C.   The  United States Constitution Does Not Afford  Bodkin
          and Coleman Any Relief from this Court.
            Bodkin and Coleman argue alternatively that if ANCSAs
provisions  could  be used as CIRI interprets  and  applies  them
these statutes would violate the Fifth Amendment.  In addition to
claiming an unconstitutional taking of their property, Bodkin and
Coleman  contend  that authorizing CIRIs elders benefit  programs
interferes  with  other  constitutional rights,  including  equal
protection  to  similarly situated but excluded shareholders  and
due  process, because the programs impos[e] retroactive liability
on  the excluded shareholders.  Bodkin and Coleman further assert
that CIRIs interpretation and application of ANCSA extinguish the
excluded   shareholders  vested  contractual   right   to   equal
          Bodkin  and  Coleman  must pursue their  takings  claim
against  the  federal government in the United  States  Court  of
Federal  Claims.  The federal Tucker Act28 vests that court  with
jurisdiction to render judgment upon any claim against the United
States  founded  either  upon the Constitution,  or  any  Act  of
Congress.29  Addressing a similar takings claim involving the same
benefit  programs  at issue here, the Ninth Circuit  declined  to
exercise  jurisdiction because appellants must raise  that  claim
under  the Tucker Act in the Federal Court of Claims.30   Federal
case  law  makes clear that Bodkin and Colemans takings claim  is
premature   until  they  have  first  presented   a   claim   for
compensation  pursuant to the Tucker Act.31  The  superior  court
thus  correctly  ruled  that it lacked  jurisdiction  over  those
          The  superior court concluded that Bodkin and  Colemans
other  constitutional claims fail for lack of state  action.   As
the  superior  court  noted, the Ninth Circuit  rejected  similar
constitutional claims on this basis in Broad v. Sealaska.32  CIRI
argues  persuasively that we should bypass any  consideration  of
Bodkin  and  Colemans constitutional claims  on  the  merits  and
affirm  the superior court on alternative jurisdictional  grounds
because  the ANCSA Amendments of 198733 provide that  the  United
States  District  Court for the District  of  Alaska  shall  have
exclusive original jurisdiction over constitutional challenges to
ANCSA.34  Bodkin and Coleman address this argument with a  single
sentence  in their reply.  Citing Louisville & Nash Railroad  Co.
v.  Mottley35 and Merrel Dow Pharmaceuticals, Inc. v. Thompson,36
they argue that [t]he federal court does not have jurisdiction of
this  case because the federal question is brought in by  way  of
defense,  not  as  part of plaintiffs case in  chief.   But  this
argument  is  not  responsive to CIRIs jurisdictional  challenge,
given  that  Bodkin  and Coleman rely on the Fifth  Amendment  to
challenge the legality of CIRIs elders benefit programs.
          In  any  event,  we need not decide this jurisdictional
question, which was not addressed by the superior court,  because
it  is unnecessary to rely on an alternative ground to affirm the
superior courts decision.  We see no error in the superior courts
ruling  on  the  merits  of  Bodkin and  Colemans  constitutional
claims.   As  the Ninth Circuit concluded in Broad,  the  federal
governments mere authorization of a Native corporation to  create
an elders benefit trust does not implicate the Fifth Amendment.37
Bodkin  and Coleman fail to advance any basis for differentiating
between CIRIs distributions and those of the Sealaska Corporation
that were at issue in Broad.38  Applying the same factors that led
the  Ninth  Circuit  to  conclude that Sealaskas  elders  benefit
programs were not state action, we agree that Bodkin and Colemans
constitutional claims must fail for lack of state action.
          For  the reasons detailed above, we AFFIRM the judgment
of the superior court.
     1     Broad  v. Sealaska Corp., 85 F.3d 422, 425  (9th  Cir.
1996), cert. denied, 519 U.S. 1092 (1997).

     2    See 43 U.S.C.  1606 (2006).

     3    Id.  1606(h)(1).

     4    Id.  1629e(b)(1).

     5    Id.  1606(r).

     6    Id.

     7     Notti v. Cook Inlet Region, Inc., 31 F. Appx 586  (9th
Cir. 2002).

     8    Notti v. Cook Inlet Region, Inc., 537 U.S. 1104 (2003).
     9    25 P.3d 697, 702 (Alaska 2001).
     10    85 F.3d 422 (9th Cir. 1996).
     11    43 U.S.C.  1606(r).

     12    144 Cong. Rec. S26254 (1998) (emphasis added).

     13    Carlson v. Renkes, 113 P.3d 638, 640-41 (Alaska 2005).

     14     Evans  ex  rel. Kutch v. State, 56  P.3d  1046,  1049
(Alaska 2002).

     15     Marron v. Stromstad, 123 P.3d 992, 998 (Alaska 2005);
see also Martin v. Mears, 602 P.2d 421, 426-27 (Alaska 1979).

     16    Martin, 602 P.2d at 426 (quoting 5 C. Wright & Miller,
Federal Practice and Procedure  1366 (1969 & Supp. 1979)).

     17     Adamson  v. Univ. of Alaska, 819 P.2d  886,  889  n.3
(Alaska 1991).

     18     As  CIRI points out, the bulk of Bodkin and  Colemans
excerpt of record consists of this excluded material.  Because we
hold  that  the  superior court did not err  in  excluding  these
materials, we will not consider them in our review of  the  lower
courts decision to dismiss Bodkin and Colemans complaint.

     19    43 U.S.C.  1606(r).

     20    Id.

     21    144 Cong. Rec. S26254 (1998) (emphasis added).

     22    25 P.3d 697 (Alaska 2001).

     23    Id. at 702.

     24    Id. (citing 43 U.S.C.  1606(g)(2)(B)(iii)(IV) (1986  &
Supp. 2000)).

     25    Id.

     26     The Goldbelt resolution approved the issuance of  100
shares to each eligible elder and authorized prompt redemption of
those shares at $10 per share.  Id. at 700.

     27     In  contrast  to CIRIs program, the  Goldbelt  elders
program  issued  shares  to all original shareholders,  including
those  who  no longer held any stock in the corporation.   Bodkin
and  Coleman  do  not, however, attach any significance  to  that
difference, perhaps because there is none to be gleaned.

     28    28 U.S.C.  1491.

     29    Id.  1491(a)(1).

     30     Notti v. Cook Inlet Region Inc., 31 F. Appx 586,  587
(9th Cir. 2002).

     31    See Bay View, Inc. v. Ahtna, Inc., 105 F.3d 1281, 1285
(9th Cir. 1997).

     32    85 F.3d 422 (9th Cir. 1996).

     33    Pub. L. No. 100-241,  16(a)(1), 101 Stat. 1813 (1988),
reprinted in Historical and Statutory Notes, 1988 Amendments,  43
U.S.C.  1601.

     34    Id. at  16(b), 101 Stat. 1813-1814.

     35    211 U.S. 149 (1908).

     36    478 U.S. 804 (1986).

     37    85 F.3d at 431.

     38    Id.

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