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City of Ketchikan v. Cape Fox Corp.

filed: September 6, 1995.

CITY OF KETCHIKAN, A MUNICIPAL CORPORATION, D/B/A KETCHIKAN PUBLIC UTILITIES, PLAINTIFF-APPELLANT,
v.
CAPE FOX CORPORATION, AN ALASKA CORPORATION, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Alaska. D.C. No. CV-92-00005-HRH. H. Russel Holland, District Judge, Presiding.

Before: Eugene A. Wright, Cecil F. Poole, and Charles Wiggins, Circuit Judges. Opinion by Judge Wiggins.

Author: Wiggins

WIGGINS, Circuit Judge:

OVERVIEW

The City of Ketchikan ("the City" or "Appellant") appeals a District Court order granting Cape Fox Corporation's ("Cape Fox") motion for summary judgment. The City sought conveyance from Cape Fox of fee title to 38 acres upon which the City's Beaver Falls hydroelectric powerhouse is located. The district court ruled that the City was not entitled to the land under the Alaska Native Claims Settlement Act ("ANCSA" or "the Act") because the land did not qualify as a "primary place of business," 43 U.S.C. § 1613(c)(1), and the City's utility did not qualify as a "nonprofit organization," 43 U.S.C. § 1613(c)(2). The City appeals the grant of summary judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the grant of summary judgment, Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994), and we affirm.

BACKGROUND

Ketchikan Public Utilities ("KPU"), a non-profit organization of the City of Ketchikan, operates electric, water, and telecommunications utilities. As part of its electric utility, it operates the Beaver Falls hydroelectric powerhouse approximately six miles outside of Ketchikan. The City constructed the facility in 1945 and has operated it since then under a 50-year licence from the Federal Power Commission.

In 1971 Congress enacted ANCSA. The Act was a legislative compromise written in response to conflicts between the federal government, the state of Alaska, Alaska Natives, and non-Native settlers over the ownership of Alaskan lands.*fn1 In 1984 Cape Fox, a Native Village Corporation, acquired title to 428 acres of federal land pursuant to ANCSA. The Beaver Falls powerhouse is situated upon approximately 38 acres of that land. The City seeks reconveyance of the powerhouse site pursuant to two sections of ANCSA. It argues that the Beaver Falls site is a primary place of KPU's electricity utility business pursuant to 43 U.S.C. § 1613(c)(1), and that KPU is entitled to the land as a nonprofit organization under subsection (c)(2). The district court granted Cape Fox's motion for summary judgment on October 13, 1993, finding neither reconveyance provision applicable. It then reaffirmed its judgment on January 18, 1994, based on slightly different reasoning. The City appeals from that order.

Discussion

I. The Site Is Not a "Primary Place of Business" Under 43 U.S.C. § 1613(c)(1).

The City first argues that it is entitled to a reconveyance of the disputed site under 43 U.S.C. § 1613(c)(1), which provides:

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 business . . . .

We disagree. We do not believe that the Beaver Falls powersite falls within 1613(c)(1) as a primary place of business.

Appellant admits that the Beaver Falls powerhouse is not its principal place of business under a traditional principal-place-of-business standard. In determining where a company's principal place of business is for federal diversity purposes under 28 U.S.C. § 1332(c)(1), there is no single determinative factor. Instead, "to the extent that there is a general rule . . . it is 'that the bulk of corporate activity, as evidenced by the location of daily operating and management activities, governs the choice of a principal place of business.'" Danjaq, S.A. v. Pathe Communications Corp., 979 F.2d 772, 776 (9th Cir. 1992) (quoting Charles A. Wright et al., Federal Practice and Procedure ยง 3635, at 625 (2d ed. 1984 & Supp. 1992)). In the instant case, Beaver Falls was one of four electricity-generation facilities owned by KPU that were operating in 1971. The management of KPU, including the management of its electric utility business, was conducted at an office on Front Street in downtown Ketchikan. All customer interactions and general administrative functions were conducted at that office, as well. Of thirty employees who worked solely for the electric business in 1971, only three of them worked at ...


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