Koniag, Inc. v. Koncor Forest Resource

In Tyonek Native Corp. v. Cook Inlet Region, Inc., 853 F.2d 727 (9th Cir.1988), we held that rock, sand, and gravel are part of the subsurface estate in dually owned lands conveyed to native regional corporations under the Alaska Native Claims Settlement Act, and that village corporations that own the surface have no right to these materials for the purpose of commercial extraction and sale. We left open, however, the question whether a village corporation has any right to use rock, sand, and gravel on site, incidental to the enjoyment of its surface estate. That question is now before us. We conclude that when there is no other practical source for these materials, the subsurface owner on these dually owned lands may not unreasonably deny the surface owner access to rock, sand, and gravel necessary for surface development.

I

Congress enacted the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C. § 1601 et seq., to settle, through grants of a combination of land and money, all “claims by Natives of Alaska.” H.R.Rep. No. 92-523, 92d Cong., 1st Sess. 3, reprinted in 1971 U.S.C.C.A.N. 2193 (hereinafter H.R.Rep. 92-523). To administer this land and money, the state was divided…