Cape Fox Corp. v. United States

4 Cl. Ct. 223, 1983 U.S. Claims LEXIS 1526
CourtUnited States Court of Claims
DecidedDecember 27, 1983
DocketNo. 664-80L
StatusPublished
Cited by16 cases

This text of 4 Cl. Ct. 223 (Cape Fox Corp. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cape Fox Corp. v. United States, 4 Cl. Ct. 223, 1983 U.S. Claims LEXIS 1526 (cc 1983).

Opinion

OPINION

HARKINS, Judge:

Plaintiff, Cape Fox Corporation (Cape Fox), is a village corporation incorporated under the laws of the State of Alaska pursuant to section 8(a) of the Alaska Native Claims Settlement Act (ANCSA).1 Plaintiff’s petition was filed in the United States Court of Claims on December 10,1980, pursuant to an order and judgment on August 4,1978, by the United States District Court for the District of Alaska, and an amended petition was filed on February 19, 1981. The case was transferred to the United States Claims Court pursuant to section 403(d) of the Federal Courts Improvement Act of 1982.2

[227]*227The amended petition (now complaint) asserts the United States is liable in damages in excess of $8,648,156, plus interest, as a result of the extension of a Forest Service timber sale contract on December 23, 1974, on lands that plaintiff had selected under ANCSA on December 12,1974. The case is before the court on plaintiff’s motion for partial summary judgment on liability issues and defendant’s cross-motion for summary judgment.

Plaintiff asserts a taking claim under the fifth amendment, or, alternatively, liability for alleged violations of standards established by statute and regulation applicable to extension of timber sale contracts or, for failure to perform fiduciary duties to manage plaintiff’s timber resources. Defendant denies that the extension of the timber sale contract amounts to a fifth amendment taking, and asserts that the court is without jurisdiction to entertain plaintiff’s claims relative to breach of fiduciary duties or violation of statutory standards. Eklutna, Inc., a native village corporation, by counsel, has submitted a statement of interest as amicus curiae on behalf of plaintiff on the scope of the authority of the United States to manage selected lands prior to conveyance of the land to a selecting corporation.

On plaintiff’s motion for partial summary judgment and defendant’s cross-motion, without oral argument, for the reasons that follow, defendant is entitled to prevail.

FACTS

The essential facts have been stipulated or are not in dispute.

On October 17, 1969, the United States entered into the Devil’s Club No. 2 Timber Sale Contract, (contract), with the contract retroactive to June 26, 1969. The contract provided for Annette Timber Corporation, later known as Alaska Timber Corporation (ATC), to harvest an estimated 43.6 million board feet of timber from the Tongass National Forest by December 31, 1974, under standard Forest Service procedures. During calendar years 1969 through 1973, no action was taken toward harvesting timber covered by the contract and there was no logging or road development during those years.

The Devil’s Club sale area covers 1,530 acres on Revillagigedo Island, immediately adjacent to Coon Cove on the east side of George Inlet, about 10 air miles northeast of Ketchikan, Alaska, and entirely within a secondary township which is contiguous to the primary township at Saxman. This township is within the area from which Cape Fox was permitted to make land selections under ANCSA.

The contract was awarded to ATC prior to construction of ATC’s sawmill in Klawock, Alaska. Beginning in 1971, ATC had financial difficulty in completing construction of the mill and the mill did not begin operations until the spring of 1973. Ketchikan Pulp Company (KPC) requested a third party agreement on the contract on March 8, 1973. The proposed third party agreement was never approved by the Forest Service. By contract dated April 27, 1973, KPC assumed performance of the contract as ATC’s purchaser’s representative. ATC remained fully responsible to the Forest Service for performance.

On January 18, 1973, the regional corporation, Sealaska, held a meeting in Saxman at which it was agreed to form a Saxman land selection committee, composed of members elected from the village of Sax-man. On April 19, 1973, Forest Service officials and Sealaska representatives discussed the Devil’s Club timber sale contract. Cape Fox filed for incorporation on November 13, 1973. Cape Fox was required to select 23,040 acres of land for conveyance under ANCSA by December 18, 1974. The requirements of ANCSA and its implementing regulations forced Cape Fox to make almost all of its land selections from town[228]*228ships other than the two primary townships in which Saxman is located.

During March 1974, KPC began to build logging roads in the contract area. On April 24, 1974, the Forest Service informed ATC that the contract expired on December 31, 1974, and that it might not qualify for an extension. Subsequent to the notification, KPC, on behalf of ATC, began vigorous efforts to cut timber in order to qualify for an extension and made substantial progress toward harvesting and road building. Logging did not begin until April 1974 and the first logs were removed on August 15, 1974.

On August 13, 1974, in a meeting between representatives of KPC and the Forest Service, the Forest Service informed KPC that the Devil’s Club sale area was within the Cape Fox selection area and that' an extension of the contract depended in part on acceptance of a modification that would meet Forest Service environmental standards. KPC was told to limit its operations so that meaningful environmental review would be possible.

On August 23, 1974, the Forest Service wrote ATC and advised it that the contract area was within the Cape Fox selection area, that environmental considerations would change the size of the clear cut units and reduce the total volume upon final extension, that it should confine its harvest to particular areas, and that a failure to do so would result in a denial of the extension. On November 25, 1974, ATC requested a 2-year extension, indicating that as of October 31,1974, 25 million board feet had been cut.

After July 1974 the Forest Service attempted to contact orally the president of Cape Fox several times, but got no reply. A meeting in December 1974 was held between the president of Cape Fox and the Ketchikan Area Timber Management Officer, to discuss the extension and modification of the timber sale contract. Cape Fox’s president was informed that the Devil’s Club sale area was within the Cape Fox selection area.

On December 2,1974, a letter was sent by the Forest Supervisor to Cape Fox, that informed plaintiff that the contract probably would be extended.

On December 12, 1974, Cape Fox submitted its selection application pursuant to ANCSA, which included the 1,530 acre area authorized for cutting by the original Devil’s Club contract.

On December 23, 1974, ATC was sent a form to extend conditionally the contract for a short period to allow the environmental report and modification to be completed. No timber was to be cut until the contract was finally extended.

On December 26, 1974, Sealaska Corporation, for itself and Cape Fox, sent a letter to the Regional Forester advising that the contract purchaser had not pursued the contract diligently, that Cape Fox had selected the area, that ANCSA requires the maximum participation of natives in decisions affecting their rights and property, and that Cape Fox opposed the contract extension. The letter stated that Cape Fox opposed the extension until such time as a meeting could be held between Cape Fox and Sealaska personnel and the Forest Service to determine the merits and possible additional conditions of a contract extension.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Shinnecock Indian Nation v. United States
112 Fed. Cl. 369 (Federal Claims, 2013)
Evans v. United States
107 Fed. Cl. 442 (Federal Claims, 2012)
Kennedy Heights Apartments, Ltd. I v. United States
48 Fed. Cl. 574 (Federal Claims, 2001)
Navajo Nation v. United States
46 Fed. Cl. 217 (Federal Claims, 2000)
Chenega Corp. v. Exxon Corp.
991 P.2d 769 (Alaska Supreme Court, 1999)
Seldovia Native Association, Inc. v. United States
144 F.3d 769 (Federal Circuit, 1998)
Seldovia Native Ass'n v. United States
35 Fed. Cl. 761 (Federal Claims, 1996)
Louisiana Pacific Corp. v. United States
35 Cont. Cas. Fed. 75,547 (Court of Claims, 1988)
Tyonek Native Corp. v. Secretary of the Interior
836 F.2d 1237 (Ninth Circuit, 1988)
Walker v. United States
11 Cl. Ct. 77 (Court of Claims, 1986)
Sierra Pacific Industries v. Block
643 F. Supp. 1256 (N.D. California, 1986)
Lee v. United States
629 F. Supp. 721 (D. Alaska, 1985)
N.A. Corp. v. United States
5 Cl. Ct. 52 (Court of Claims, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
4 Cl. Ct. 223, 1983 U.S. Claims LEXIS 1526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cape-fox-corp-v-united-states-cc-1983.