FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WAPATO HERITAGE, L.L.C.,
Plaintiff-Appellant,
No. 09-36150
v.
D.C. No.
UNITED STATES OF AMERICA; UNITED 2:08-cv-00177-
STATES DEPARTMENT OF THE RHW
INTERIOR; UNITED STATES
OPINION
BUREAU OF INDIAN AFFAIRS,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, Senior District Judge, Presiding
Argued and Submitted
January 13, 2011—Seattle, Washington
Filed March 22, 2011
Before: Susan P. Graber and Milan D. Smith, Jr.,
Circuit Judges, and Charles R. Breyer,* District Judge.
Opinion by Judge Milan D. Smith, Jr.
*The Honorable Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.
3905
3908 WAPATO HERITAGE v. UNITED STATES
COUNSEL
R. Bruce Johnston, Law Office of R. Bruce Johnston, PS,
Bainbridge Island, Washington, for the plaintiff-appellant.
Andrew S. Biviano, Assistant United States Attorney, Spo-
kane, Washington, for the defendants-appellees.
OPINION
M. SMITH, Circuit Judge:
Plaintiff-Appellant Wapato Heritage, L.L.C. (Wapato),
appeals the district court’s order denying its motion for sum-
mary judgment and motion for reconsideration, and granting
Defendants-Appellees’ motion for summary judgment and
motion to dismiss. We address whether Wapato’s
predecessor-in-interest, William Wapato Evans, Jr. (Evans),
effectively exercised his option to renew a lease agreement
(Lease) between Evans and certain Native American land-
owners (Landowners) covering real property known as Moses
Allotment No. 8 (MA-8). The district court ruled that Evans
did not comply with the Lease’s requirements that he notify
all the Landowners that he intended to renew the Lease.
Wapato, the current holder of all the Lessee’s rights under the
Lease, timely appealed. We have jurisdiction under 28 U.S.C.
§ 1291.
Wapato argues on appeal that the terms of the Lease are
ambiguous as to whether the Bureau of Indian Affairs (BIA)
was a Lessor under the Lease, therefore precluding summary
judgment. We hold that the Lease is not ambiguous and that
the BIA was not a Lessor under the Lease. We also hold that
Evans (and later Wapato) failed to provide the required notice
to the Landowners and thus did not effectively exercise the
option to renew the Lease. Wapato’s other claims of error are
WAPATO HERITAGE v. UNITED STATES 3909
addressed in a memorandum disposition filed contemporane-
ously with this opinion. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1907, the United States granted MA-8 to Wapato John
as part of an agreement between the Moses Band and the Sec-
retary of the Interior (Secretary). The United States holds
MA-8 in trust for Wapato John and his heirs, one of whom
was Evans. Evans’s grandsons are currently the sole owners
of Wapato Heritage, L.L.C. The Department of the Interior
(Department), which has delegated its authority to the BIA,
administers MA-8. The Colville Agency (Agency) is a local
BIA agency, located in Nespelem, Washington.
In 1982, Evans owned an approximate 5.4% beneficial
interest in MA-8, and sought to negotiate a 25-year ground
lease of all the landowner rights in MA-8. Sixty-four percent
of the Landowners (including Evans) eventually consented to
the Lease. A majority of the Landowners signed a “Statement
of Awareness,” which outlined the material provisions of the
Lease and authorized the Superintendent of the Agency to
execute the Lease on their behalf pursuant to 25 C.F.R.
§ 162.2[(a)](5). In due course, the Secretary authorized
George Davis, the Superintendent, to sign the Lease. Pursuant
to that authority, Davis approved the Lease (Lease No. 82-21)
on February 2, 1984, on behalf of the consenting Landowners,
the remaining 36% of the trust beneficiaries, and the Secre-
tary. The Lease was executed in conformity with 25 U.S.C.
§ 415 and Part 162 of the implementing regulations.
The Lease contains an option to renew, which reads as fol-
lows:
3. TERM — OPTION TO RENEW:
The term of this lease shall be twenty-five (25)
years, beginning on the date that the lease is
approved by the Secretary.
3910 WAPATO HERITAGE v. UNITED STATES
This lease may be renewed at the option of the
Lessee for a further term of not to exceed
twenty[-]five (25) years, commencing at the expira-
tion of the original term, upon the same conditions
and terms as are in effect at the expiration of the
original term, provided that notice of the exercise of
such option shall be given by the Lessee to the Les-
sor and the Secretary in writing at leas[t] twe[l]ve
(12) months prior to said expiration of original term.
The Lease defines Evans as “Lessee” and the individual land-
owners, and/or the guardians of those individuals, whose
names and addresses are listed in Exhibit A to the Lease, as
“Lessor.”
Section 29 of the Lease provides:
PAYMENTS AND NOTICES:
All notices, payments and demands shall be sent
to either party at the address herein recited or to such
place as the parties may hereafter designate in writ-
ing. Notices and demands shall be served b[y] certi-
fied mail, return receipt requested. The service of
any such notice shall be deemed complete within ten
(10) days after mailing in any post office within the
United States. Copies of all notices and demands
shall be sent to the Secretary in care of the office of
the Bureau of Indian Affairs, P.O. Box 111, Nes-
pelem, Washington 99155. All notices to Lessor
shall be sent to the landowners. The Secretary shall
furnish Lessee with the current names and addresses
of Lessor upon the request of Lessee.
On January 30, 1985, Evans sent a letter to the BIA, stat-
ing, among other things:
In accordance with paragraph three (3) of the sub-
ject lease dated February 2, 1984, you are notified by
WAPATO HERITAGE v. UNITED STATES 3911
receipt of this letter that Mar-Lu, Ltd. hereby exer-
cises its option to renew the subject lease for a fur-
ther term of twenty five (25) years to be effective at
the expiration of the original twenty five (25) year
term. This notice extends the total term of subject
lease to February 1, 2034.
The letter was signed by Evans as “General Partner[,] Mar-
Lu, Ltd.” As Wapato concedes, Evans’s letter was not sent to
the BIA by certified mail, nor was it sent at all to the Land-
owners referred to in Exhibit A to the Lease.
In 2007, after Wapato began efforts to develop a major res-
idential development on MA-8, the Colville Confederated
Tribe (Tribe) questioned whether Evans had effectively exer-
cised his option to renew the Lease. The Tribe sent a letter to
the BIA requesting a meeting to “discuss the current legal sta-
tus of the 25-year extension.” In response, the BIA reviewed
the Lease terms and relevant correspondence. The BIA then
sent a letter to the Tribe and Wapato on November 30, 2007,
stating that, in its opinion, the option to renew had not been
exercised effectively by Evans’s 1985 letter. The BIA’s opin-
ion rested, in part, on Evans’s failure to send notice to the
individual Landowners.
As of November 30, 2007, Wapato still had two months left
in which to exercise its option to renew the Lease. Whatever
the deficiencies of Evans’s previous efforts, Wapato could
have obviated the issues before us had it taken the steps nec-
essary to do so.
Instead of taking those steps during the remaining exercise
period, Wapato’s counsel sent a letter to the BIA on Decem-
ber 18, 2007, contending that the term of the Lease had
already been properly extended and claiming that the BIA had
already acknowledged the extension. Wapato’s letter also was
sent to seven Landowners who, Wapato claims, were the only
ones for which it had addresses. Wapato did not request that
3912 WAPATO HERITAGE v. UNITED STATES
the BIA provide it with the “current names and addresses of
Lessor,” as permitted in Section 29 of the Lease. Wapato’s
letter was not sent via certified mail to either the BIA or those
Landowners for whom it had addresses. When Wapato did not
receive a response, it sent another letter to the BIA on January
7, 2008, requesting a response.
On August 7, 2008—by then more than six months after
the deadline to exercise the option to renew the term of the
Lease—the BIA sent a letter confirming that Evans had not
properly exercised his option to renew the Lease. Wapato
appealed the BIA’s decision, but the Northwest Regional
Director of the BIA upheld the agency’s decision on October
31, 2008.
On November 21, 2008, after considering the parties’
respective arguments, the district court issued an order grant-
ing the United States’ partial cross-motion for summary judg-
ment in part and denying Wapato’s motion for partial
summary judgment. The district court subsequently denied
Wapato’s motion for reconsideration and disposed of the
remaining issues in the case.1 This timely appeal followed.
STANDARD OF REVIEW
A district court’s grant of summary judgment is reviewed
de novo. Travelers Prop. Cas. Co. of Am. v. ConocoPhillips
Co., 546 F.3d 1142, 1145 (9th Cir. 2008). “We must deter-
mine whether, viewing the evidence in the light most favor-
able to the nonmoving party, any genuine issues of material
fact exist, and whether the district court correctly applied the
relevant substantive law.” Northrop Grumman Corp. v. Fac-
tory Mut. Ins. Co., 563 F.3d 777, 783 (9th Cir. 2009) (internal
quotation marks omitted).
1
On November 6, 2009, the district court granted the government’s
motion to dismiss and, in the alternative, motion for summary judgment
on the claims related to the 99-year Replacement Lease dispute, discussed
in our memorandum disposition.
WAPATO HERITAGE v. UNITED STATES 3913
DISCUSSION
Wapato argues that there is a genuine issue of material fact
as to whether the Landowners are really the Lessor under the
Lease, because the Lease is ambiguous. It argues primarily
that the BIA did not present at summary judgment a copy of
“Exhibit A”to the Lease, which allegedly contained the names
and current locations of the Landowners. We disagree with
Wapato’s arguments.
The BIA is entrusted with managing and protecting Native
American interests. See, e.g., 25 U.S.C. § 2 (“The Commis-
sioner of Indian Affairs shall, under the direction of the Secre-
tary of the Interior . . . have the management of all Indian
affairs and of all matters arising out of Indian relations.”);
McDonald v. Means, 309 F.3d 530, 538 (9th Cir. 2002) (“It
is well established that the BIA holds a fiduciary relationship
to Indian tribes, and its management of tribal [interests] is
subject to the same fiduciary duties.” (citing United States v.
Mitchell, 463 U.S. 206, 224-26 (1983))).
Various statutes and regulations govern the form and
approval of leases involving Native American lands. Among
others, 25 U.S.C. 415(a) requires:
Any restricted Indian lands, whether tribally, or
individually owned, may be leased by the Indian
owners, with the approval of the Secretary of the
Interior, for public, religious, educational, recre-
ational, residential, or business purposes, including
the development or utilization of natural resources in
connection with operations under such leases, for
grazing purposes, and for those farming purposes
which require the making of a substantial investment
in the improvement of the land for the production of
specialized crops as determined by said Secretary.
All leases so granted shall be for a term of not to
exceed twenty-five years . . . .
3914 WAPATO HERITAGE v. UNITED STATES
In some limited circumstances, the BIA is authorized to enter
into a lease on behalf of Native American owners. See, e.g.,
25 C.F.R. § 162.2 (1984).2 Specifically, the Secretary may
enter into leases on individually owned land on behalf of:
(1) Persons who are non compos mentis; (2)
Orphaned minors; (3) The undetermined heirs of a
decedent’s estate; (4) The heirs or devisees to indi-
vidually owned land who have not been able to agree
upon a lease during the three-month period immedi-
ately following the date on which a lease may be
entered into; provided, that the land is not in use by
any of the heirs or devisees; and (5) Indians who
have given the Secretary written authority to execute
leases on their behalf.
Id. The BIA also has responsibility to administer and enforce
certain leases. 25 C.F.R. § 162.108.
[1] However, the BIA’s obligation to act in furtherance of
Native American interests does not mean that the BIA per se
assumes their contractual obligations when it acts on their
behalf. The Supreme Court addressed this issue in United
States v. Algoma Lumber Co., 305 U.S. 415 (1939). There, the
Superintendent of the Klamath Indian School, for and on
behalf of the Klamath Indians, entered into a timber sale con-
tract with the Algoma Lumber Company, and the Depart-
ment’s Assistant Secretary approved the contract. Id. at 419.
The Algoma Lumber Company eventually brought suit
against the Department for overpayments it claimed to have
made to the Superintendent, arguing that the Secretary and
Superintendent were the contracting parties. Id. at 422. The
Supreme Court rejected that argument, stating:
Neither the United States nor any officer purporting
to act on its behalf is named a party to the contract.
2
This regulation is currently found at 25 C.F.R. § 162.601 (2008).
WAPATO HERITAGE v. UNITED STATES 3915
. . . The form of the contract and the procedure pre-
scribed for its execution and approval conform to the
long-established relationship between the govern-
ment and the Indians, under which the government
has plenary power to take appropriate measures to
safeguard the disposal of property of which the Indi-
ans are the substantial owners. Exercise of that
power does not necessarily involve the assumption
of contractual obligations by the government. Their
assumption is not to be presumed in the absence of
any action taken by the government or on its behalf
indicating such a purpose.
Id. at 421.
The Court then concluded that all that was done by
[the Secretary and Superintendent] in supervising the
execution of the contracts and their performance was
consistent with the exercise of its function as protec-
tor of the Indians without the assumption by the
United States of any obligation to the purchasers of
the timber, and no implied obligation on its part
arises from the performance of that function.
Id. at 422.
[2] More recently, the Court of Federal Claims arrived at
a similar conclusion regarding leases for Native American
lands, holding that the BIA’s managerial control over allotted
lands does not per se make the BIA a party to contracts
involving those lands. In McNabb v. United States, 54 Fed.
Cl. 759, 760 (2002), the plaintiffs had entered into approxi-
mately twenty-two leases with members of the Shoshone-
Bannock tribes in Idaho. The leases were signed by the plain-
tiffs and the Superintendent of the Fort Hall Agency. Id. After
a dispute arose over the leases, the court rejected the plain-
tiffs’ argument that the government was a contracting party,
notwithstanding statutory and regulatory provisions requiring
3916 WAPATO HERITAGE v. UNITED STATES
government approval of the leases. Id. at 772-73. The court
concluded that “BIA regulations provide authority for the BIA
to act as an approval official rather than as a lessor of Tribal
lands.” Id. at 772; see also Sangre de Cristo Dev. Co. v.
United States, 932 F.2d 891, 895 (10th Cir. 1991) (“[T]he
United States is not liable to third parties when it contracts
with them on behalf of Indian tribes.”); Saguaro Chevrolet,
Inc. v. United States, 77 Fed. Cl. 572, 581 (2007) (rejecting
the plaintiff’s argument that regulations and a lease agreement
imposed landlord obligations on the United States).
[3] In support of its argument that the BIA was the Lessor
of the Lease, Wapato argues that the BIA was authorized to
sign, and did sign, the Lease for all of the Landowners.
Wapato is mistaken concerning the BIA’s role in the transac-
tion.
[4] By its terms, the Lease was executed in conformity
with 25 U.S.C. § 415 and Part 162 of the implementing regu-
lations. Those statutory and regulatory provisions authorize an
approval role for the BIA concerning Leases signed with
Native Americans, but do not authorize the BIA to enter into
a contract with Wapato or its predecessors-in-interest on
behalf of the government. See 25 U.S.C. § 415(a) (“Any
restricted Indian lands, whether tribally, or individually
owned, may be leased by the Indian owners, with the
approval of the Secretary of the Interior . . . .” (emphasis
added))); 25 C.F.R. § 162.2 (specifying narrow circumstances
in which the BIA can grant lease on behalf of Native Ameri-
can landowners).
[5] Here, the BIA approved the Lease and executed it on
behalf of all the Landowners, consistent with its delegated
authority. Approximately 64% of the Landowners personally
consented to the Lease, having signed “Statement of Aware-
ness” forms. The BIA therefore signed for those Landowners
pursuant to their express authorization under 25 C.F.R.
§ 162.2(a)(5). The BIA also executed the Lease on behalf of
WAPATO HERITAGE v. UNITED STATES 3917
a minority of the allottees (i.e., the 36% who did not sign) by
the limited authority of § 162.2(a)(4). However, in exercising
its authority pursuant to § 162.2(a)(4), the BIA was not trans-
mogrified into a Lessor. Neither did the BIA become a party
to the Lease by acting in its approval capacity or in its limited
role as proxy for the 64% of the Landlords who had given
their express authority to sign on their behalf, or with respect
to the remaining 36% of the Landowners, for whom it signed
as authorized by § 162.2(a)(4).
Wapato also contends that the Lease is ambiguous. We
consider this contention by first observing that the parties
agree that federal contract law applies to the Lease, and that
the district court applied federal law, citing United States v.
Seckinger, 397 U.S. 203, 209-10 (1970). We also apply fed-
eral law because the BIA’s role and obligations under the con-
tract are in contention. See Smith v. Cent. Ariz. Water
Conservation Dist., 418 F.3d 1028, 1034 (9th Cir. 2005)
(“[W]e have recognized limited circumstances in which state
law may apply to the interpretation of a federal contract, such
as when the United States is not a party, or when the direct
interests and obligations of the government are not in ques-
tion.”).
Well-known principles of contract law guide us in the
proper construction of federal contracts. Saavedra v. Dono-
van, 700 F.2d 496, 498 (9th Cir. 1983) (citing Seckinger, 397
U.S. at 209-11). “A written contract must be read as a whole
and every part interpreted with reference to the whole, with
preference given to reasonable interpretations.” Klamath
Water Users Protective Ass’n v. Patterson, 204 F.3d 1206,
1210 (9th Cir. 1999). “Contract terms are to be given their
ordinary meaning, and when the terms of a contract are clear,
the intent of the parties must be ascertained from the contract
itself.” Id. The fact that parties to a contract dispute its mean-
ing does not, ipso facto, mean that the contract is ambiguous;
a contract is only ambiguous if reasonable people could find
its terms susceptible to more than one interpretation. Kenne-
3918 WAPATO HERITAGE v. UNITED STATES
wick Irrigation Dist. v. United States, 880 F.2d 1018, 1032
(9th Cir. 1989).
[6] Here, the Lease is not ambiguous. The terms of the
Lease do not admit of a construction whereby the BIA could
be the Lessor. The Lease explicitly defines the individual
Landowners as the “Lessor” and separately defines the Secre-
tary. Moreover, Section 29 of the Lease requires that: “Copies
of all notices and demands shall be sent to the Secretary in
care of the office of the Bureau of Indian Affairs . . . . All
notices to Lessor shall be sent to the landowners. The Secre-
tary shall furnish Lessee with the current names and addresses
of Lessor upon the request of Lessee.” Thus, it is clear that all
“notices and demands” must be sent both to the Secretary and
to the Landowners. Moreover, how could the Secretary pro-
vide Lessee with the “current names and addresses of Lessor”
if the Secretary were the Lessor? Finally, the Lease defini-
tions and subsequent provisions do not use “Secretary” and
“Lessor” interchangeably. If these were the same party, it
would make no sense for the Lease to distinguish between
them.
[7] In light of the above considerations, we hold that the
Lease is not ambiguous and that the BIA was not the Lessor.3
Because the BIA was not the Lessor, the Lease terms required
that Wapato notify the BIA and the Landowners directly via
certified mail, which it did not do. See Williston on Contracts
§ 46:12 (4th ed. 2010) (“[T]he party giving the option is pro-
tected only by the condition that the optionee can only exer-
3
In holding that the Lease is unambiguous, we also reject Wapato’s
arguments, raised for the first time in its motion for reconsideration, that
the Lease is also ambiguous concerning whether the BIA could unilater-
ally modify the Lease or accept notice on behalf of the Landowners. There
is no evidence in the record that, after the Lease was signed, the BIA had
authority from the Landowners to either modify the terms of the Lease, or
to accept notice. The district court did not abuse its discretion in denying
the motion for reconsideration. MacDonald v. Grace Church Seattle, 457
F.3d 1079, 1081 (9th Cir. 2006).
WAPATO HERITAGE v. UNITED STATES 3919
cise it strictly in accordance with its terms.”). Moreover, there
is no evidence in the record that the Lessee requested that the
BIA furnish it with the current names and addresses of the
Landowners, as it was permitted to do under Section 29 of the
Lease.4 Accordingly, we hold that Wapato’s option to renew
the Lease was not effectively exercised by Evans, or later by
Wapato, and that the Lease terminated upon the last day of its
25-year term.
CONCLUSION
For the foregoing reasons, we affirm the district court.
AFFIRMED.
4
In 2005, Wapato requested the names and addresses from the Agency
for the purpose of sending the 99-Year Replacement Lease, not for the
purpose of exercising its option to renew the Lease. The Acting Superin-
tendent of the Agency, Gene Nicholson, rejected this request and, instead,
indicated that he would forward the correspondence to the Landowners.