John v. Alaska Fish & Wildlife Conservation Fund

Jul 5: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-36122 & 09-36127. Appealed from the United States District Court for the District of Alaska. The panel affirmed the district court's decisions upholding the 1999 Final Rules promulgated by the Secretary of the Interior and the Secretary of Agriculture to implement part of the Alaska National Interest Lands Conservation Act concerning subsistence fishing and hunting rights.

 

    The Appeals Court explained that these consolidated appeals concern the 1999 Final Rules (1999 Rules) promulgated by the Secretary of the Interior and the Secretary of Agriculture (Secretaries) to implement part of the Alaska National Interest Lands Conservation Act (ANILCA). The 1999 Rules identify which navigable waters within Alaska constitute "public lands" under Title VIII of ANILCA, which provides a priority to rural Alaska residents for subsistence hunting and fishing on such lands. Plaintiffs-Appellants Katie John, et al., argue 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. Plaintiff-Appellant the State of Alaska argues 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. The district court upheld the 1999 Rules against both sets of challenges. The Appeals Court affirmed.

 

    The Appeals Court concludes, "In reaching our decision, we recognize that we and the Secretaries have been working with imperfect tools. Katie John I was a problematic solution to a complex problem, in that it sanctioned the use of a doctrine ill-fitted to determining which Alaskan waters are 'public lands' to be managed for rural subsistence priority under ANILCA. But Katie John I remains the law of this circuit, and we, like the Secretaries, must apply it as best we can.

 

    "We conclude that, in the 1999 Rules, the Secretaries have applied Katie John I and the federal reserved water rights doctrine in a principled manner. It was reasonable for the

Secretaries to decide that: the 'public lands' subject to ANILCA's rural subsistence priority include the waters within and adjacent to federal reservations; and reserved water rights for Alaska Native Settlement allotments are best determined on a case-by-case basis."

 

    Access the complete opinion (click here). [#Water, #Land, #CA9]