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John v. Alaska Fish & Wildlife Conservation Fund

ELR Citation: 43 ELR 20151
Nos. 09-36122 et al, (9th Cir., 07/05/2013)

The Ninth Circuit upheld rules DOI and USDA issued in 1999 that implement part of the Alaska National Interest Lands Conservation Act (ANILCA) concerning subsistence fishing and hunting rights. In Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995) (Katie John I), the court held that because Congress included subsistence fishing in Title VIII of ANILCA, the Act applied to some of Alaska's navigable waters. The 1999 rules therefore identified which navigable waters within Alaska constituted "public lands" under Title VIII, which provides a priority to rural Alaska residents for subsistence hunting and fishing on such lands. One group of plaintiffs challenging the rule argued that the 1999 rules sweep too narrowly, in that they fail to designate certain navigable waterways as "public lands" subject to the federal rural subsistence priority. The state of Alaska, which also challenged the rules, argued that the 1999 rules sweep too broadly, in that they include as "public lands" subject to the priority waters in which no federal interest exists. As a threshold matter, the court held that DOI and USDA appropriately used notice-and-comment rulemaking, rather than adjudication, to identify whose waters are "public lands" for the purpose of determining the scope of ANILCA's rural subsistence policy. It also held that the agencies were entitled to some deference in construing the term "public lands." As for the merits, the court ruled that in promulgating the 1999 rules, the DOI and USDA applied Katie John I and the federal reserved water rights doctrine in a principled manner. It was reasonable for the agencies to decide that the "public lands" subject to the ANILCA's rural subsistence priority included the waters within and adjacent to federal reservations. It was also reasonable for them to decide that reserved water rights for Alaska Native Settlement allotments were best determined on a case-by-case basis.