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Alaska v. Babbitt

ELR Citation: 26 ELR 20369
Nos. Nos. 94-35480, -35481, 72 F.3d 698/(9th Cir., 12/19/1995) replacing withdrawn opinion

The court holds that those navigable waters in Alaska in which the United States has an interest by virtue of the reserved water rights doctrine fall within the Alaska National Interest Lands Conservation Act's (ANILCA's) definition of "public lands." ANILCA requires that subsistence fishing and hunting be given a priority over other uses of fish and wildlife on "public land." The issue for the court is whether public lands include all, some, or no navigable waters in Alaska. The court first rejects the claim that the federal government's navigational servitude renders all navigable waters public lands within the meaning of ANILCA. The navigational servitude is not "public land" under ANILCA, because the United States does not hold title to it. The court next rejects the argument that Congress intended to exercise its Commerce Clause powers to regulate subsistence fishing in all Alaskan navigable waters. Neither the Act nor its legislative history supports such a claim. The court holds that those navigable waters in which the United States has an interest by virtue of the reserved water rights doctrine fall within ANILCA's statutory definition of public lands. In reserving vast parcels of land in Alaska for federal purposes, the United States has also implicitly reserved appurtenant waters, including appurtenant navigable waters. Therefore, ANILCA's subsistence priority applies to navigable waters in Alaska in which the federal government has reserved water rights. The court also holds that federal agencies that administer the subsistence priority are responsible for identifying those waters.

Counsel for Plaintiff
Joanne M. Grace, Ass't Attorney General
Attorney General's Office
1031 W. 4th St., Ste. 200, Anchorage AK 99501
(907) 269-5100

Counsel for Defendants
Elizabeth A. Peterson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Wright, Hall and Wiggins, JJ.