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LEISNOI, INC.,
No. 97-35775
Plaintiff-Appellant,
D.C. No.
v.
CV-96-00361-HRH
OMAR STRATMAN,
OPINION
Defendant-Appellee.

On Appeal from the United States District Court
for the District of Alaska
H. Russel Holland, District Judge, presiding

Argued and Submitted
July 14, 1998--Anchorage, Alaska

Filed September 8, 1998

Before: Jerome Farris, Diarmuid F. O'Scannlain, and
Michael Daly Hawkins, Circuit Judges.

Opinion by Judge O'Scannlain

_________________________________________________________________

COUNSEL

Robert L. Breckberg (argued), Edgar Paul Boyko & Asso-
ciates, Anchorage, Alaska, for the plaintiff-appellant.

Michael J. Schneider (argued), Law Offices of Michael J.
Schneider, Anchorage, Alaska, for the defendant-appellee.

Robert H. Hume, Jr., Copeland, Landye, Bennett and Wolf,
Anchorage, Alaska, for Ouzinkie Native Corporation, Natives
of Kodiak, Inc., and Yak-Tat Kwaan, Inc., amici curiae.

_________________________________________________________________
OPINION

O'SCANNLAIN, Circuit Judge:

We must determine whether a "Village Corporation " may
prevent a "Regional Corporation" from authorizing sand-and-
gravel mining near Kodiak under the Alaska Native Claims
Settlement Act.

I

In 1971, Congress enacted the Alaska Native Claims Settle-
ment Act ("ANCSA"), see Act of December 18, 1971, Pub.
L. No. 92-203, 85 Stat. 688 (codified at 43 U.S.C.S 1601-
1629a), a "legislative compromise" designed to resolve land
disputes between the federal government, the state of Alaska,
Alaskan Natives, and non-native settlers. City of Ketchikan v.
Cape Fox Corp., 85 F.3d 1381, 1383 (9th Cir. 1996). Under
this compromise, Alaskan Natives received, in exchange for
the extinction of all claims of aboriginal title, approximately
forty-four million acres of land and nearly $1 billion in fed-
eral funds. See 43 U.S.C. SS 1605, 1607, 1613. Much of this
land was distributed in fee simple to "Regional Corporations"1
and to "Village Corporations."2 ANCSA divided the state of
Alaska into twelve geographic regions, each with a Native-
owned Regional Corporation. See 43 U.S.C.S 1606(a).
Within these twelve regions are many villages represented by
Village Corporations, over 200 in total. See 43 U.S.C. S 1607.
Unfortunately, through the years, the Regional and Village
Corporations have often found themselves in court as adver-
saries. See, e.g., Koniag, Inc. v. Koncor Forest Resource, 39
F.3d 991 (9th Cir. 1994); Tyonek Native Corp. v. Cook Inlet
Region, Inc., 853 F.2d 727 (9th Cir. 1988). The litigation has
had much to do with the fact that twenty-two million acres of
ANCSA land are "dually owned": The surface estate belongs
to the Village Corporations, and the subsurface estate to the
Regional Corporations. See 43 U.S.C. SS 1611, 1613. Because
of ambiguities in these abutting land rights, controversies
have arisen.

This case is yet another chapter in the ongoing saga that
pits surface-estate owner against subsurface-estate owner. In
1974, the Department of the Interior certified Leisnoi, Inc., as
a Village Corporation for the Native village of Woody Island.
Leisnoi thus became eligible to select over 115,000 acres of
land, which it would hold and manage on behalf of the Native
village of Woody Island. See 43 U.S.C. SS 1611, 1613. In its
application for land benefits, Leisnoi indicated that the Native
village was located within two townships on the historic,
western side of Woody Island. Generally, a Village Corpora-
tion like Leisnoi is allowed to select "all of the township or
townships in which any part of the village is located, plus an
area that will make the total selection equal to " its allotted
acreage. 43 U.S.C. S 1611(a)(1) (emphasis added). Leisnoi
selected some land on Woody Island, as well as some land on
Kodiak Island and Long Island.3 As explained above, Leis-
noi's interest in this land is only in the surface estate.

The Regional Corporation of Koniag received the subsur-
face estate in the land that Leisnoi selected on Kodiak Island.
This land is located near Kalsin Bay, some twelve miles and
a channel of water away from the physical structures that
identify the Village of Woody Island. Pursuant to a quitclaim
deed, Koniag transferred sand-and-gravel rights in a portion
of this land to Omar Stratman, who has thus stepped into
Koniag's shoes for purposes of this appeal. Leisnoi and Strat-
man are avowed enemies who have found themselves in court
on many occasions over the past twenty years. See Leisnoi,
Inc. v. Stratman, 835 P.2d 1202, 1214 (Alaska 1992) (summa-
rizing litigation between the two). The dispute in this case
arises from Stratman's mining activity on this "dually owned"
land on Kodiak Island. Since July 1996, Stratman has been
extracting gravel from his subsurface estate. As one might
imagine, such operation can damage the surface estate, see
Chugach Natives, Inc. v. Doyon, Ltd., 588 F.2d 723, 732 (9th
Cir. 1979), and destroy artifacts buried in the ground. Wishing
to prevent these deleterious effects, Leisnoi asserted that
Stratman must obtain its consent before proceeding. Not sur-
prisingly, Stratman disagreed.

Seeking injunctive and declaratory relief, Leisnoi filed suit
in federal district court. Stratman responded by moving to dis-
miss the case under Rule 12(b)(6) or, in the alternative, for
summary judgment. The district court granted the motion to
dismiss.4 According to the court, under ANCSA, a
subsurface-estate owner (such as Stratman) needs to obtain
the consent of a Village Corporation (such as Leisnoi) only
when he wishes to mine lands "within the boundaries of a[ ]
Native village." Leisnoi, Inc. v. Stratman, No. A96-0361-CV,
at 16 (D. Alaska filed Jul. 3, 1997) (quoting 43 U.S.C.
S 1613(f) (internal quotation marks omitted)). As the district
court saw it, Kodiak Island was simply not within the
"boundaries" of the Native village of Woody Island.
Leisnoi timely appealed.5

II

Leisnoi contends that the district court misconstrued the
section of ANCSA that vests in Village Corporations the
power to withhold consent from, and thereby to preclude,
mining operations. Section 14(f) of ANCSA provides that the
right "to explore, develop, or remove minerals from the sub-
surface estate in the lands within the boundaries of any Native
village shall be subject to the consent of the Village
Corporation." 43 U.S.C. S 1613(f) (emphasis added). Accord-
ing to Leisnoi, the "lands within the boundaries of a[ ] Native
village" include all lands patented to the Village Corporation,
or at least all such lands that the Native village has histori-
cally used. Under either interpretation, the lands within the
boundaries of the Village of Woody Island would encompass
that portion of Kodiak Island on which Stratman has per-
formed his gravel operation, and Leisnoi would be entitled to
an injunction.6 Stratman counters that the boundaries of a
Native village should instead be defined by physical struc-
tures that indicate occupancy. If his view prevails, then Leis-
noi's consent is not required, as the Village of Woody Island
has structures only on Woody Island, not on Kodiak Island.
A

[1] When construing statutory language, this court assumes
"that the legislative purpose is expressed by the ordinary
meaning of the words used." Seldovia Native Ass'n, Inc. v.
Lujan, 904 F.2d 1335, 1341 (1990) (quoting Richards v.
United States, 
369 U.S. 1, 9
  (1962) (internal quotation marks
omitted)). Of course, because words can have alternative
meanings depending on context, we interpret statutes, not by
viewing individual words in isolation, but rather by "reading
the relevant statutory provisions as a whole." City of Ketchi-
kan, 85 F.3d at 1385 (internal quotation and citation omitted).
We thus interpret the phrase, "lands within the boundaries of
any Native village," by looking, first, to the surrounding
words in S 14(f) (the subsection containing the consent pro-
viso), and then, to other provisions in ANCSA.7

Section 14(f) reads, in relevant part:

       When the Secretary issues a patent to a Village Cor-
       poration for the surface estate in lands . . . , he shall
       issue to the Regional Corporation for the region in
       which the lands are located a patent to the subsurface
       estate in such lands . . . : Provided, That the right to
       explore, develop, or remove minerals from the sub-
       surface estate in the lands within the boundaries of
       any Native village shall be subject to the consent of
       the Village Corporation.

43 U.S.C. S 1613(f) (emphasis added). Quite significantly, the
statute expressly contemplates two distinct concepts: first,
lands "patent[ed] to a Village Corporation, " and second, lands
"within the boundaries of a[ ] Native village." Id. Whereas a
Village Corporation receives title to all "patent[ed]" lands, it
has the power to prevent mining, by withholding consent,
only on those lands "within the boundaries of a[ ] Native
village."

[2] Congress's use of two distinct phrases leads us to con-
clude that two different meanings were intended. See 2A
Sutherland, Statutory Construction S 46.06 (5th ed. 1992 &
Supp. 1997) ("[W]hen the legislature uses certain language in
one part of the statute and different language in another, the
court assumes different meanings were intended."). As the
district court noted, "[h]ad Congress intended the consent
term of subsection (f) to have general application, it would
have chosen language requiring consent as to all patented
lands, not the restrictive `within the boundaries' language." In
other words, if Congress wanted the consent requirement to
apply to all patented lands instead of a mere subset of those
lands, Congress would have simply written the proviso as fol-
lows: "Provided, That the right to explore, develop, or remove
minerals from the subsurface estate in all lands patented to
any Village Corporation shall be subject to the consent of the
Village Corporation." Thus, we agree with the district court
that, because Congress envisioned two different concepts, the
boundaries of the Native village do not include all lands pat-
ented to the Village Corporation.

Other sections of ANCSA support this construction; they
similarly contemplate a distinction between all lands patented
and those lands within the boundaries of the Native village.
Take, for example, the provision that makes certain federal
land available for ANCSA patents by withdrawing it from the
pool of land otherwise subject to appropriation under the
public-land laws. See 43 U.S.C. S 1610. Significantly, this
section withdraws more than those lands that lie within the
boundaries of the Native villages. All told, it withdraws:

       (A) The lands in each township that encloses all or
       part of any Native village . . . ;

       (B) The lands in each township that is contiguous
       to or corners on the township that encloses all or part
       of such Native village; and

       (C) The lands in each township that is contiguous
       to or corners on a township containing lands with-
       drawn by paragraph (B) of this subsection.

43 U.S.C. S 1610(a)(1). The Native villages are located solely
in the townships mentioned in Paragraph (A); no Native vil-
lage lies within the townships described in Paragraphs (B) or
(C). These additional townships are nevertheless available for
patents to Village Corporations. Thus, S 1610 confirms that
all lands "patent[ed]" is a broader concept than those lands
"within the boundaries of [the] Native village."

Another example of how ANCSA contemplates a distinc-
tion between these two concepts is the statutory provision that
authorizes Village Corporations to select the land they want
patented to them. See 43 U.S.C. S 1611. This section reads in
relevant part:

       [T]he Village Corporation for each Native village
       . . . shall select . . . all of the township or townships
       in which any part of the village is located, plus an
       area that will make the total selection equal to the
       acreage to which the village is entitled . . . .

43 U.S.C. S 1611(a)(1) (emphasis added). Of course, the word
"plus" implies that a Village Corporation is entitled to more
area than those "townships in which any part of the village is
located." Because a Village Corporation ends up with more
land than that which underlies the Native village, the lands
patented to a Village Corporation must be more expansive
than the boundaries of the Native village.

Finally, ANCSA provides that, after a Village Corporation
selects its land, the Secretary of the Interior shall issue to the
corporation a patent to the surface estate in land, a portion of
which lies outside the Native village:

       The lands patented shall be the lands within the
       township or townships that enclose the Native vil-
       lage, and any additional lands selected by the Vil-
       lage Corporation from the surrounding townships
       withdrawn for the Native village . . . .

43 U.S.C. S 1613(b). To be sure, this patent includes more
than the lands within the boundaries of the Native village. Not
only does the total include all land within the townships
enclosing the Native village, but also "any additional lands"
from surrounding townships.

[3] Thus, the text of ANCSA draws a clear distinction
between the lands patented to the Village Corporation and the
boundaries of the Native village. The land within the Native
village is a subset of the total patented lands. Hence, when
Congress wrote in S 14(f), "[t]hat the right to explore,
develop, or remove minerals from the subsurface estate in the
lands within the boundaries of any Native village shall be sub-
ject to the consent of the Village Corporation," Congress was
not requiring consent for mining in "all patented lands." The
plain language of the statute is unambiguous. The district
court was correct to reject Leisnoi's contrary construction.

B

This conclusion, however, does not end our inquiry. We
must still determine exactly where the boundaries lie.
Although the preceding analysis indicates that the boundaries
fall somewhere within the outer limits of the total patented
lands, it does not help us decide their precise location. Are the
boundaries marked by the Native village's historical use, as
Leisnoi contends, or occupancy of the land, as Stratman con-
tends?

[4] Turning to this question, we learn that a federal agency
has already interpreted the consent provision in ANCSA
S 14(f). See 43 C.F.R. S 2651.2(b)(2). Pursuant to ANCSA
S 25, which authorizes regulations necessary for carrying out
the Act, see 43 U.S.C. S 1624, the Secretary of the Interior
has established requirements that a village must meet before
it can receive ANCSA land benefits. One of the requirements
is that the village must have "an identifiable physical location
evidenced by occupancy consistent with the Natives' own cul-
tural patterns and life style." 43 C.F.R. S 2651.2(b)(2)
(emphasis added). The mere existence of an "identifiable
physical location" requirement is unremarkable; the statute
itself anticipates each Native village will have a recognizable
geographic location. See, e.g., 43 U.S.C.S 1610(a)(1)(A)
(withdrawing from public appropriation those "lands in each
township that encloses all or part of any Native village"); 43
U.S.C. S 1611(a)(1) (permitting Village Corporation to select
land from "the township or townships in which any part of the
village is located"). What is relevant to this appeal, we think,
is how the Secretary determines this location. The Secretary
identifies a Native village by looking for "evidence[ ] [of]
occupancy consistent with the Natives' own cultural patterns
and life style." 43 C.F.R. S 2651.2(b)(2) (emphasis added).
Thus, in the Secretary's view, the "boundaries of a[ ] Native
village" are defined by reference to this physical evidence of
occupancy.

[5] Because the Secretary of the Interior bears "[t]he princi-
pal responsibility for administering [ANCSA], " his interpreta-
tions are entitled to "great weight" upon judicial review.
Doyon, Ltd. v. Briston Bay Native Corp., 569 F.2d 491, 496
(9th Cir. 1978); see also Seldovia Native Ass'n, 904 F.2d at
1342 ("[A]n administrative agency's interpretation of a statute
it is charged with administering is accorded substantial
deference."). We may not "simply impose [our] own con-
struction on the statute" without regard to the Secretary's reg-
ulations. Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, 
467 U.S. 837, 843
  (1984). Rather, we must defer to
the Secretary unless his interpretation is inconsistent with the
"unambiguously expressed intent of Congress" or is otherwise
unreasonable. Id. at 842-43.

1

Leisnoi contends that identifying the boundaries of a Native
village by means of occupancy, as the Secretary has done, is
indeed inconsistent with express congressional intent.
According to Leisnoi, Congress provided a definition of
"Native village" that unambiguously requires boundaries to
be determined by the Tribe's historical use -- not its occu-
pancy -- of the land:

       "Native village" means any tribe, band, clan, group,
       village, community, or association in Alaska listed in
       sections 1610 and 1615 of this title, or which meets
       the requirements of this chapter, and which the Sec-
       retary determines was . . . composed of twenty-five
       or more Natives.

43 U.S.C. S 1602(c) (emphasis added). Leisnoi argues that,
because Congress used words such as "tribe, band, clan,
group, village, community, [and] association, " Congress must
have intended an expansive definition of "Native village," one
which extends to the Natives' "entire community. " From this
premise, Leisnoi jumps to the conclusion that courts should
define the "boundaries of a[ ] Native village" by referencing
the areas in which the Natives historically hunted, fished,
hiked, and camped.

[6] We do not dispute Leisnoi's premise. At the risk of
belaboring the obvious, the simple fact that Congress included
"community" in its list of words defining a "Native village"
indicates that the boundaries of the village extend over the
"entire community." Nonetheless, there is a fatal flaw in Leis-
noi's reasoning: the conclusion simply does not follow from
the premise. There is no reason to believe that "community"
must be defined by hiking and fishing instead of by occu-
pancy. Indeed, the ordinary understanding of the word
"community" might suggest that the opposite is true. Com-
monly defined, a "community" is a "people with common
interests living in a particular area." Webster's Ninth New
Collegiate Dictionary 267 (1986) (emphasis added). Hence,
contrary to Leisnoi's contention, ANCSA's definition of
"Native village" is not evidence of congressional intent to
determine boundaries by means of historical use; indeed, the
definition may actually support the Secretary's understanding.

2

We thus inquire whether the Secretary's interpretation is
otherwise "reasonable." See Chevron, 
467 U.S. at 843
-44;
Seldovia Native Ass'n, 904 F.2d at 1342. "The court need not
conclude that the agency construction was the only one it per-
missibly could have adopted to uphold the construction, or
even the reading the court would have reached if the question
initially had arisen in a judicial proceeding." Chevron, 467
U.S. at 843 n.11. Instead, we simply ask whether we are
"compell[ed]" to reject the Secretary's construction. See
Alaska Wildlife Alliance v. Jensen, 108 F.3d 1065, 1070 (9th
Cir. 1997) (internal quotations and citation omitted).

[7] In this case, we are certainly not so compelled. ANCSA
expressly contemplates that a Native village has a geographic
"locat[ion]." See 43 U.S.C.S 1611(a)(1) (authorizing selec-
tion of land in "all of the township or townships in which any
part of the village is located"); cf. 43 U.S.C. S 1613(b) ("The
lands patented shall be the lands within the township or town-
ships that enclose the Native village, and any additional lands
selected by the Village Corporation from the surrounding
townships . . . ."). In everyday usage, the "location" of a town,
city, or village is "a position or site occupied or available for
occupancy or marked by some distinguishing feature."
Webster's Ninth New Collegiate Dictionary 701 (1986)
(emphasis added); see also Webster's Third New Interna-
tional Dictionary 1327 (1986) (defining "location" as "a posi-
tion or site occupied or available for occupancy (as by a
building) or marked by some distinguishing feature") (empha-
sis added). Recognizing this ordinary understanding of the
word "location," which is substantially identical to the Secre-
tary's understanding, we would be hard pressed to say that the
Secretary was unreasonable. Indeed, "[i]n the absence of an
indication to the contrary, words in a statute are assumed to
bear their `ordinary, contemporary, common meaning.' "
Walters v. Metropolitan Educ. Enters., Inc., 117 S. Ct. 660,
664 (1997) (quoting Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. Partnership, 
507 U.S. 380, 388
  (1993)). Without
a contrary statutory definition to unsettle this assumption, the
Secretary did not make an unreasonable choice by following
the ordinary understanding of the word "location. " Cf.
Louisiana-Pacific Corp. v. Asarco Inc., 24 F.3d 1565, 1574
(9th Cir. 1994) ("The reasonableness of this interpretation is
demonstrated by our analysis of what we have concluded to
be the plain meaning of the statute.").

[8] Admittedly, in ANCSA, Congress may not have
"directly addressed the precise question " of whether bounda-
ries should be defined by occupancy or historical use; Con-
gress's use of the word "locat[ion]" may be too casual to
constitute an "unambiguous[ ] express[ion]" of intent, as
required to disregard an agency interpretation. Chevron, 467
U.S. at 843 (emphasis added). However, the commonly
understood meaning of the word is indeed enough to render
the Secretary's regulation "a permissible construction of the
statute." Id.

a

Leisnoi nevertheless challenges this interpretation as unrea-
sonable for three reasons. First, Leisnoi argues, demarcating
boundaries by means of occupancy would render nugatory the
consent provision insofar as the Native village of Woody
Island is concerned. In other words, according to Leisnoi, if
we adopt the Secretary's interpretation, the Native village of
Woody Island would have no power to withhold consent and
to preclude mining on any land. Leisnoi does not own the sur-
face estate of the land on which the village's structures and
dwellings are located; Leisnoi could not receive patents to
such land because it lies within two miles of a "home rule"
city, the City of Kodiak. 43 C.F.R. S 2650.6(a) ("Notwith-
standing any other provisions of the act, no village or regional
corporation may select lands which are within 2 miles from
the boundary of any home rule or first-class city . . . .").
Therefore, its argument goes, if Village Corporations may
withhold consent only when they own the underlying surface
estate, Leisnoi would have no power to withhold consent over
any land.

We need not decide whether Leisnoi's presumption -- that
the consent power is limited to land which the Village Corpo-
ration owns (as well as occupies) -- is correct. Assuming it
to be true, we hold that the Secretary's construction, which is
consistent with if not recommended by the plain meaning of
ANCSA, is nevertheless reasonable. Our conclusion might
lead to perceived unfairness in a few rare situations, such as
this one, but perfection is not to be expected from a statutory
scheme such as ANCSA, which attempts to settle land claims
in over 200 villages across the largest state in our Union.

Moreover, under Chevron, an agency's interpretation of a
statute need not be flawless to be reasonable. See San Bernar-
dino Mountains Community Hosp. Dist. v. Secretary of Health
and Human Servs., 63 F.3d 882, 889 (9th Cir. 1995); see also
Appalachian Regional Healthcare, Inc. v. Shalala, 131 F.3d
1050, 1054 (D.C. Cir. 1997) (Sentelle, J., dissenting) ("We
are all in agreement that to survive the two-step analysis
drawn from [Chevron], the Board's ruling . . . need not be
perfect, or even the best, but only reasonable."). We therefore
reject Leisnoi's first argument.

b

Leisnoi's second argument is that the Secretary's interpre-
tation is inconsistent with legislative history. We disagree.
The passage Leisnoi cites, an excerpt of a House Report, is
inconclusive:

       Section 14(f) of the Settlement Act provides that the
       right to explore, develop, or remove minerals from
       the subsurface estate in the lands within the bounda-
       ries of any Native village are to be subject to the
       consent of the Village Corporation. This provision
       provides protection to villages from a precipitate
       decision by Regional Corporations to develop the
       subsurface estate. This provision seeks to avoid
       potential conflicts between villages which are hold-
       ers of the surface estate and which may be made
       concerned with preserving the use of the land in
       accordance with traditional local life-styles and sub-
       sistence economy and Regional Corporations which
       are holders of the subsurface estate and which may
       have as their focus the generation of revenues from
       the land.

H. Rep. No. 94-729, at 26 (1975), reprinted in 1975
U.S.C.C.A.N. 2376, 2393 (emphasis added). As this court has
emphasized, the use of legislative history as a tool for statu-
tory interpretation suffers from a host of infirmities: not only
is legislative history "not passed by both houses of Congress
and signed into law by the President," but it also "need not be
written with the same care, or scrutinized by those skeptical
of the statute with the same care, as statutory language." See
Puerta v. United States 121 F.3d 1338, 1344 (9th Cir. 1997);
see also Conroy v. Aniskoff, 
507 U.S. 511, 519
  (1993) (Scalia,
J., concurring in judgment) (analogizing use of legislative his-
tory to "entering a crowded cocktail party and looking over
the heads of the guests for one's friends"). Reliance on such
history is particularly suspect when it is inconsistent with the
ordinary understanding of the words in the statute and an oth-
erwise reasonable agency interpretation.

In any event, the language to which Leisnoi points is
ambiguous and arguably consistent with the Secretary's inter-
pretation of the statute. The House Report simply expresses
a desire to allow Village Corporations to "preserv[e] the use
of the land in accordance with traditional local life-styles and
subsistence economy." The Report does not identify this land,
aside from the fact that it is "within the boundaries of a[ ]
Native village." In other words, the Report does not indicate
whether the land referenced is all land historically used (for
fishing, hiking, etc.) or only land on which occupancy struc-
tures have been built. Because the legislative history is
unclear, it cannot displace the Secretary's understanding of
the text of the statute.

c

Finally, Leisnoi contends that the Secretary's interpretation
is in tension with a "Congressional policy of fostering eco-
nomic growth." In the preamble of the statute, Congress pro-
claimed that the ANCSA land settlement "should be
accomplished . . . in conformity with the real economic . . .
needs of Natives." 43 U.S.C. S 1601(b). Leisnoi asserts in its
brief that defining boundaries by occupancy stifles this policy:
Surface estates would "effectively be rendered unmarketable
and off-limits to any construction of homes or improvements,
since subsurface owners could at any time dig out beneath the
foundations of any improvements to exercise what the district
court granted as an unfettered right to extract sand and gravel
without notice and consent." We are unpersuaded for two rea-
sons. First, we do not reach the question of whether Alaska
property law precludes mining activity that unreasonably
interferes with the rights of surface-estate owners. Second,
surface and subsurface-estate owners can, of course, resolve
potential future disputes by way of contract. Cf. Alaska v.
Native Village of Venetie Tribal Gov't, 118 S. Ct. 948, 951
(1998) (noting that ANCSA does not restrict land transfers by
Village or Regional Corporations). Theoretically, at least,
given a world of no transaction costs, economic optimality
does not depend on the allocation of a property right (such as
the power to authorize mining) to one party or another; the
two parties can simply bargain to the optimal solution. See
R.H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1, 2-
15 (1960). Assuredly, theory might not survive practice; how-
ever, the determinations of whether theory prevails and, if not,
whether economic growth is maximized by granting the prop-
erty right to the surface-estate owner, instead of the
subsurface-estate owner, should not be made by the judiciary.
We are ill-equipped to hypothesize on the consequences of
imperfect information or other impediments to bargaining.8
"Such policy arguments are more properly addressed to legis-
lators or administrators . . ." Chevron, 
467 U.S. at 864
.
Because "[t]he responsibilities for assessing the wisdom of
such policy choices and resolving the struggle between com-
peting views of the public interest" are best left to the elected
branches of government, id. at 866, we do not hold the Secre-
tary's interpretation unreasonable. The "boundaries of a[ ]
Native village" are defined by occupancy, not historical use.
III

[9] Implementing this test, we simply examine whether the
Native village of Woody Island has demonstrated evidence of
occupancy on Kodiak Island. It has not. When the Native vil-
lage applied for land benefits in 1973, pursuant to the Secre-
tary's regulations, it reported its "locat[ion]" -- defined by
occupancy structures -- as follows:

       The Native Village of Woody Island is located
       within Townships: T27S and T28S, Range 19W,
       Seward Meridian, Alaska, as shown on the enclosed
       map.

These townships, the map reveals, are on Woody Island, not
Kodiak Island. The Bureau of Indian Affairs confirmed this
location later that year. Although it is conceivable that --
through normal village expansion -- a Native village's
boundaries might today be different from what they were in
1973, that is not the case here. Leisnoi has never suggested
that the village has expanded to occupy Kodiak Island. Thus,
Stratman, having already received a deed from Koniag, does
not need Leisnoi's additional consent to proceed with his min-
ing there. The district court did not err in granting the Rule
12(b)(6) dismissal.

AFFIRMED. the end

_______________________________________________________________

FOOTNOTES

1 A "Regional Corporation" is defined as "an Alaska Native Regional
Corporation established under the laws of the State of Alaska in accor-
dance with the provisions of this chapter." 43 U.S.C. S 1602(g).
2 A "Village Corporation" is "an Alaska Native Village Corporation
organized under the laws of the State of Alaska as a business for profit or
nonprofit corporation to hold, invest, manage and/or distribute lands, prop-
erty, funds, and other rights and assets for and on behalf of a Native vil-
lage in accordance with the terms of this chapter. " 43 U.S.C. S 1602(j).
3 Unfortunately, Leisnoi could not obtain the land on the western side of
Woody Island because of an exception to the general land-selection pro-
cess. Under 43 C.F.R. 2650.6, Village Corporations may not "select lands
which are within 2 miles from the boundary of any home rule or first-class
city." Because the western side of Woody Island lay within two miles of
the home rule city of Kodiak, the land was unavailable to Leisnoi.
4 The court also dismissed Leisnoi's petition for a preliminary injunction
as moot.
5 Leisnoi had also brought claims under the Archaeological Resources
Protection Act, 16 U.S.C. S 470aa, and the National Environmental Policy
Act, 42 U.S.C. S 4332. The district court dismissed these claims as well.
Because Leisnoi has not appealed on these issues, we do not consider
them here.

6 In its complaint, Leisnoi asserted that, as evidenced by archeological
findings, the Village of Woody Island historically used this land on
Kodiak Island. Because we are reviewing a Rule 12(b)(6) dismissal, we
must accept this allegation as true. See Warshaw v. Xoma Corp. 74 F.3d
955, 957 (9th Cir. 1996).
7 Leisnoi urges the court to rely on another canon of statutory construc-
tion. According to Leisnoi, because Congress designed ANCSA for the
benefit of Native Americans, the statute should be construed in their favor.
To be sure, some ambiguous provisions should be interpreted to the bene-
fit of Tribes. See, e.g., Alaska Pacific Fisheries v. United States, 248 U.S.
78, 89 (1918) (noting "general rule that statutes passed for the benefit of
dependent Indian tribes or communities are to be liberally construed,
doubtful expressions being resolved in favor of the Indians"). However,
the canon can have no application to a case such as this one, in which the
rights of Tribes are in conflict with one another. Although Leisnoi is suing
Stratman, a non-Native, a judgment against Stratman would also curtail
the rights of Native-owned Regional Corporations, who have title to sub-
surface estates elsewhere in Alaska. Moreover, we have previously held
that this canon does not apply to ANCSA. See Seldovia Native Ass'n, 904
F.2d at 1342; Haynes v. United States, 891 F.2d 235, 239 (9th Cir. 1989).
But see Alaska ex rel. Yukon Flats Sch. Dist. v. Native Village of Venetie
Tribal Gov't, 101 F.3d 1286, 1294 (9th Cir. 1996) (applying the canon),
rev'd, Alaska v. Native Village of Venetie Tribal Gov't, 118 S. Ct. 948
(1998).
8 For an analysis of obstacles to bargaining and their economic effects,
see generally Robert C. Ellickson, The Case for Coase and Against
"Coaseanism", 99 Yale L.J. 611 (1989).