Katie John v. Alaska Fish and Wildlife Fed

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
*
FOR THE NINTH CIRCUIT
KATIE JOHN ; CHARLES ERHART ; No. 09-36122
ALASKA INTER-TRIBAL
COUNCIL; NATIVE VILLAGE OF D.C. Nos.
TANANA ; STATE OF ALASKA , 3:05-cv-00006-HRH
Plaintiffs, 3:05-cv-00158-HRH
and
ALASKA FISH AND WILDLIFE
CONSERVATION FUND ; ALASKA
FISH AND WILDLIFE FEDERATION
AND OUTDOOR COUNCIL; JOHN
CONRAD ; MICHAEL TINKER,
Plaintiffs-Intervenors-
Appellants,
v.
UNITED STATES OF AMERICA ;
MIKE JOHANNS; SALLY JEWELL,*
Secretary of the Interior,
Defendants-Appellees,
ALASKA FEDERATION OF
NATIVES,
Defendant-Intervenor-Appellee.
*
Sally Jewell is substituted for her predecessor, Kenneth Lee Salazar,
as Secretary of the Interior. Fed. R. App. P. 43(c)(2).
2 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
KATIE JOHN ; CHARLES ERHART ; No. 09-36125
ALASKA INTER-TRIBAL
COUNCIL; NATIVE VILLAGE OF D.C. Nos.
TANANA , 3:05-cv-00006-HRH
Plaintiffs, 3:05-cv-00158-HRH
ALASKA FISH AND WILDLIFE
CONSERVATION FUND ; ALASKA
FISH AND WILDLIFE FEDERATION
AND OUTDOOR COUNCIL; JOHN
CONRAD ; MICHAEL TINKER,
Plaintiffs-Intervenors,
and
STATE OF ALASKA ,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA ;
MIKE JOHANNS; SALLY JEWELL,
Secretary of the Interior,
Defendants-Appellees,
ALASKA FEDERATION OF
NATIVES,
Defendant-Intervenor-Appellee.
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 3
KATIE JOHN ; CHARLES ERHART ; No. 09-36127
ALASKA INTER-TRIBAL
COUNCIL; NATIVE VILLAGE OF D.C. Nos.
TANANA , 3:05-cv-00006-HRH
Plaintiffs-Appellants, 3:05-cv-00158-HRH
and
OPINION
STATE OF ALASKA ,
Plaintiff,
ALASKA FISH AND WILDLIFE
CONSERVATION FUND ; ALASKA
FISH AND WILDLIFE FEDERATION
AND OUTDOOR COUNCIL; JOHN
CONRAD ; MICHAEL TINKER,
Plaintiffs-Intervenors,
v.
UNITED STATES OF AMERICA ;
MIKE JOHANNS; SALLY JEWELL,
Secretary of the Interior,
Defendants-Appellees,
ALASKA FEDERATION OF
NATIVES,
Defendant-Intervenor-
Appellee.
4 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
Appeal from the United States District Court
for the District of Alaska
H. Russel Holland, Senior District Judge, Presiding
Argued and Submitted
July 25, 2011—Anchorage, Alaska
Filed July 5, 2013
Before: William C. Canby, Jr., Andrew J. Kleinfeld,
and Consuelo M. Callahan, Circuit Judges.**
Opinion by Judge Kleinfeld
SUMMARY***
Alaska National Interest Lands Conservation Act
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.
**
Judge Betty B. Fletcher was a member of the panel but passed away
after oral argument. Judge Canby was drawn to replace her. He has read
the briefs, reviewed the record, and listened to the tape of oral argument
held on July 25, 2011.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 5
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, the Act applied to some of
Alaska’s navigable waters. The 1999 Rules identified which
navigable waters within Alaska constituted “public lands”
under Title VIII of the Act, which provides a priority to rural
Alaska residents for subsistence hunting and fishing on such
lands.
As threshold issues, the panel held that the Secretaries
appropriately used notice-and-comment rulemaking, rather
than adjudication, to identify whose waters are “public lands”
for the purpose of determining the scope of the Act’s rural
subsistence policy; and that in construing the term “public
lands,” the Secretaries were entitled to “some deference.”
The panel concluded that, in the 1999 Rules, the Secretaries
applied Katie John I and the federal reserved water rights
doctrine in a principled manner. The panel held that it was
reasonable for the Secretaries to decide that: the “public
lands” subject to the Act’s rural subsistence priority included
the waters within and adjacent to federal reservations; and
reserved water rights for Alaska Native Settlement allotments
were best determined on a case-by-case basis.
6 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
COUNSEL
Michael G. Mitchell (argued), Michael W. Sewright,
Assistant Attorneys General, Anchorage, Alaska; William P.
Horn and James H. Lister, Birch, Horton, Bittner, and Cherot,
Washington, D.C., for Appellant State of Alaska.
Will Sherman for Appellants Alaska Fish and Wildlife
Federation and Outdoor Council, Alaska Fish & Wildlife
Conservation Fund, Michael Tinker, and John Conrad.
Heather Kendall-Miller (argued), Native American Rights
Fund, Anchorage, Alaska, for Appellants Katie John, Charles
Erhart, Alaska Inter-Tribal Council, and Native Village of
Tanana.
Elizabeth Ann Peterson (argued), United States Department
of Justice, Environmental & Natural Resources Division,
Washington, D.C., for Appellees United States of America,
Mike Johanns and Sally Jewell.
Robert T. Anderson (argued), University of Washington
School of Law, Seattle, Washington, for Appellee Alaska
Federation of Natives.
Peter J. Ampe, First Assistant Attorney General, Federal and
Interstate Water Unit, Denver, Colorado, for Amicus Curiae
State of Colorado; Stephen R. Farris, Assistant Attorney
General, Director, Water, Environment, and Utilities
Division, Santa Fe, New Mexico, for Amicus Curiae State of
New Mexico; Peter K. Michael, Senior Assistant Attorney
General, Cheyenne, Wyoming, for Amicus Curiae State of
Wyoming.
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 7
OPINION
KLEINFELD, Senior Circuit Judge:
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”).1 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. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
BACKGROUND
A. Legal and factual background
1. ANILCA and the rural subsistence priority
Congress enacted ANILCA to preserve and protect
“nationally significant natural, scenic, historic, archeological,
geological, scientific, wilderness, cultural, recreational, and
1
16 U.S.C. §§ 3101-3233, Pub. L. 96-487, 94 Stat. 2371 (1980).
8 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
wildlife values” and landscapes by creating “conservation
system units,” such as national parks, preserves, and other
federal reservations.2 Congress also sought to protect the
“subsistence way of life for rural residents” and the resources
upon which they depend, as well as to obviate the need for
future legislation regarding environmental conservation and
subsistence uses.3
To protect the “subsistence way of life for rural
residents,” Title VIII of ANILCA provides that, “[e]xcept as
otherwise provided in this Act and other Federal laws, the
taking on public lands of fish and wildlife for nonwasteful
subsistence uses shall be accorded priority over the taking on
such lands of fish and wildlife for other purposes.”4
“Subsistence uses” are defined as “customary and traditional
uses by rural Alaska residents of wild, renewable resources
. . . .”5 This federal subsistence priority for rural Alaska
residents therefore applies to all “public lands,” which
ANILCA defines as “land situated in Alaska which, after
December 2, 1980, are Federal lands,” except, as pertinent
here, “land selections of the State of Alaska which have been
tentatively approved or validly selected under the Alaska
Statehood Act and lands which have been confirmed to,
validly selected by, or granted to the Territory of Alaska or
the State under any other provision of Federal law,” and “land
selections of a Native Corporation made under the Alaska
2
16 U.S.C. § 3101(a)–(b); see also id. § 3102(4) (defining “conservation
system units”).
3
Id. § 3101(c)–(d).
4
Id. § 3114.
5
Id. § 3113 (emphasis added).
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 9
Native Claims Settlement Act which have not been conveyed
to a Native Corporation, unless any such selection is
determined to be invalid or is relinquished.”6 Federal lands
are “lands the title to which is in the United States after
December 2, 1980,” and “land” is “lands, waters, and
interests therein.”7 ANILCA gives rural subsistence uses
“priority over the taking on such lands of fish and wildlife for
other purposes.”8 When it is “necessary to restrict the taking
of populations of fish and wildlife on such lands for
subsistence uses in order to protect the continued viability of
such populations, or to continue such uses,” implementation
of such restrictions is subject to a set of criteria.9
ANILCA charges the Secretaries with implementing its
rural subsistence priority in Alaska.10 However, ANILCA
states that the Secretaries should not take action to implement
Title VIII if Alaska “enacts and implements laws of general
applicability which are consistent with” ANILCA’s rural
subsistence priority requirements.11 In other words, ANILCA
expresses a preference for state management of the rural
6
Id. § 3102(3).
7
Id. § 3102(1)–(2).
8
Id. § 3114.
9
Id.
10
Id. § 3115.
11
Id. § 3115(d).
10 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
subsistence priority on “public lands,” but provides that the
United States may step in where the State fails to act.12
Persons aggrieved by an alleged failure to enforce the
rural subsistence priority are authorized to “file a civil action
in the United States District Court for the District of Alaska
to require such actions to be taken as are necessary to provide
for the priority.”13
2. The State’s efforts to protect subsistence uses
Alaska had addressed subsistence uses before ANILCA’s
passage, and had taken steps to assume the management
responsibility that ANILCA contemplated. A 1978 state law,
passed in anticipation of ANILCA becoming law, established
“that subsistence hunting and fishing had priority over other
uses of fish and game stocks.”14 The statute identified two
tiers of subsistence users based on customary and direct
dependence, local residency, and availability of alternative
resources.15 The state Joint Boards of Fish and Game issued
regulations linking subsistence fishing to particular
geographic communities,16 and eventually introducing a rural
12
See id. § 3202(a).
13
Id. § 3117.
14
McDowell v. State, 785 P.2d 1, 1–2 (Alaska 1989) (citing Ch. 151 § 4
SLA 1978).
15
Id. at 2.
16
5 Alaska Admin. Code § 01.597 (repealed 1985), reprinted in
Madison v. Alaska Dep’t of Fish & Game, 696 P.2d 168, 172 n.8 (Alaska
1985); see also Bobby v. Alaska, 718 F. Supp. 764, 767 (D. Alaska 1989).
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 11
element to the subsistence preference.17 The regulations
initially treated towns with fewer than 7,000 people as
“rural.”18 In 1982, the Secretary of the Interior certified
Alaska to manage subsistence hunting and fishing on public
lands, as ANILCA and the Alaska legislature had intended.
However, in 1985, the Alaska Supreme Court held in
Madison19 that the regulations linking subsistence fishing to
particular geographic communities were inconsistent with
Alaska’s subsistence statute. The court reasoned that the
statutory preference was for subsistence users, whether or not
they were rural.20 Many Alaskans depend heavily on wild
fish and game for their protein, whether they live in isolation
or in villages, small towns, or cities. The Secretary of the
Interior notified the Governor of Alaska that Madison’s
holding “raised questions as to the continuing eligibility of
the State to manage subsistence on public lands in Alaska,”
and that Alaska had until June 1, 1986 to “revise its
17
5 Alaska Admin. Code § 99.010 (1982), reprinted in Bobby,
718 F. Supp. at 794–95.
18
See 5 Alaska Admin. Code § 99.020 (1982) (“In this chapter, ‘rural’
means outside the road connected area of a borough, municipality, or other
community with a population of 7,000 or more, as determined by the
Alaska Department of Community and regional Affairs.”), reprinted in
Bobby, 718 F. Supp. at 795; see also Kenaitze Indian Tribe v. Alaska,
860 F.2d 312, 314 (9th Cir. 1988), cert. denied, 491 U.S. 905 (1989).
19
Madison v. Alaska Dep’t of Fish & Game, 696 P.2d 168 (Alaska
1985).
20
Madison, 696 P.2d at 177–78.
12 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
subsistence program to bring it back into compliance” with
ANILCA’s rural subsistence priority requirement.21
In response, the Alaska legislature amended the state
subsistence statute to expressly limit the definition of
subsistence activities to those “‘domiciled in a rural area of
the state.’”22 The amended statute defined a “rural area” as
“‘a community or area of the state in which the
noncommercial, customary, and traditional use of fish or
game for personal or family consumption is a principal
characteristic of the economy of the community or area.’”23
Under the amended statute, the State did not treat the
Kenai peninsula as rural because it had Sears and Safeway
stores and shopping malls. That is, Alaskans tended to use
the word “rural” to refer to areas off the road system, rather
than sparsely populated agricultural areas, there being few
roads and little agriculture in Alaska.24 Accordingly, Alaska
law had provided a subsistence priority to people who largely
depended on hunting and fishing for their living. However,
21
Letter from Bill Horn, Assistant Secretary, Fish and W ildlife and
Parks, Office of the Secretary, U nited States Department of the Interior,
to Bill Sheffield, Governor of Alaska (Sept. 23, 1985), reprinted in Bobby,
718 F. Supp. at 813–15.
22
McDowell, 785 P.2d at 1 (quoting Ch. 52 SLA 1986); see also
Kenaitze, 860 F.2d at 314.
23
McDowell, 785 P.2d at 2 (quoting Alaska Stat. § 16.05.940(25)).
24
See 5 Alaska Admin. Code § 99.020 (1982) (“In this chapter, ‘rural’
means outside the road connected area of a borough, municipality, or
other community with a population of 7,000 or more, as determined by the
Alaska Department of Community and regional Affairs.”) (emphasis
added).
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 13
in Kenaitze Indian Tribe,25 the Ninth Circuit reasoned that the
Kenai peninsula had “a long way to go before it approaches
anything resembling an urban community.”26 Kenaitze held
that the state’s definition of “rural”—economies dominated
by subsistence fishing and hunting—“would exclude
practically all areas of the United States that we think of as
rural, including virtually the entirety of such farming and
ranching states as Iowa and Wyoming,” and was therefore
invalid.27 “Rural,” Kenaitze held, meant something like
communities smaller than 2,500 people, or towns or cities
outside urban areas with populations not exceeding certain
limits.28 Thus, under Kenaitze, ANILCA’s priority applied to
people in small communities regardless of whether they
depended on hunting and fishing.
In 1989, several months after Kenaitze came down, the
Alaska Supreme Court concluded in McDowell29 that Chapter
52 SLA 1986, the rural subsistence priority chapter put into
the Alaska Code to conform to ANILCA, was in tension with
provisions of the Alaska Constitution providing for common
use of fish and game and equality of access among those
similarly situated.30 Though a subsistence preference based
on individual characteristics would satisfy the Alaska
25
Kenaitze Indian Tribe v. Alaska, 860 F.2d 312 (9th Cir. 1988).
26
Id. at 314 n.2.
27
Id. at 316 (emphasis added).
28
Id. at 317.
29
McDowell v. State, 785 P.2d 1 (Alaska 1989).
30
Id. at 9.
14 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
constitution, the rural-urban distinction was an “extremely
crude” means to establish such a preference.31 That is, many
of Alaska’s subsistence users lived in what, for Alaska, were
“urban” areas, and many people living in what were, under
Kenaitze, “rural” areas did not extensively rely on subsistence
resources.32 Accordingly, the Alaska Supreme Court held
that the rural subsistence priority chapter provided too poor
a fit with Alaska subsistence lifestyles to satisfy state
constitutional requirements.33
3. Federal efforts to implement ANILCA’s rural
subsistence priority, Katie John I, and Katie John
II
Following McDowell, the federal government denied the
re-certification Alaska needed under ANILCA to manage its
own fish and game. Implementation of ANILCA’s rural
subsistence priority accordingly fell back to the federal
government in July 1990. In initial regulations promulgated
in 1992 (“1992 Rules”), the Secretaries took the position that
“public lands” under Title VIII of ANILCA, or those lands
subject to the rural subsistence priority, excluded all
navigable waters in Alaska.34 This position generated several
lawsuits, which were consolidated into a single action.
During the course of that litigation, the Secretaries changed
31
Id. at 10.
32
Id. at 10–11.
33
Id. at 9.
34
See Subsistence Management Regulations for Public Lands in Alaska,
Subparts A, B, and C, 57 Fed. Reg. 22,940, 22,942 (May 29, 1992)
(codified at 36 C.F.R. pt. 242 and 50 C.F.R. pt. 100).
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 15
their position, arguing instead that some navigable waters
were “public lands” by virtue of the federal reserved water
rights doctrine, and therefore subject to the rural subsistence
priority.35
The consolidated lawsuits against the 1992 Rules came
before us in Alaska v. Babbitt (“Katie John I”).36 We
concluded that, because Congress included subsistence
fishing in Title VIII, ANILCA applies to some of Alaska’s
navigable waters.37 We observed that Title VIII was unclear
as to which navigable waters constitute “public lands,” but
rejected the Katie John plaintiffs’ argument, with which the
district court had agreed, that “public lands” includes “all
navigable waters” in Alaska.38 We explained that the federal
navigational servitude is a “concept of power, not property.”39
Because it did not give the United States any property
interest, the navigational servitude did not establish “public
lands,” the sine qua non for application of ANILCA’s rural
subsistence priority.40 Our task, therefore, was to “decide
whether the federal agencies’ conclusion that public lands
include some navigable waters under the reserved water
35
Alaska v. Babbitt, 72 F.3d 698, 701 (9th Cir. 1995), cert. denied,
517 U.S. 1187 (1996).
36
Babbitt, 72 F.3d 698.
37
Id. at 702.
38
Id. at 703–04 (emphasis added).
39
Id. at 702 (quotation marks omitted).
40
Id. at 702–03.
16 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
rights doctrine” was “based on a permissible construction of
the statute.”41
We concluded that it was. We explained that the United
States, in “reserv[ing] vast parcels of land in Alaska for
federal purposes through a myriad of statutes,”42
has also implicitly reserved appurtenant
waters, including appurtenant navigable
waters, to the extent needed to accomplish the
purposes of the reservations. By virtue of its
reserved water rights, the United States has
interests in some navigable waters.
Consequently, public lands subject to
subsistence management under ANILCA
include certain navigable waters.43
We held that the “federal agencies that administer the
subsistence priority are responsible for identifying those
waters.”44 We recognized that this directive placed an
“extraordinary administrative burden” on the Secretaries, that
ANILCA contemplated a robust role for the State in
managing ANILCA’s rural subsistence priority, and that
“[o]nly legislative action by Alaska or Congress will truly
41
Id. at 702.
42
Id. at 703.
43
Id.44
Id. at 700, 704; see also id. at 704 (expressing “hope that the federal
agencies will determine promptly which navigable waters are public lands
subject to federal subsistence management”).
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 17
resolve the problem” of how best to manage ANILCA’s rural
subsistence priority vis-à-vis Alaskan waters.45
Following Katie John I, the Secretaries issued the 1999
Rules, which “amend[ed] the scope and applicability of the
Federal Subsistence Management Program in Alaska to
include subsistence activities occurring on inland navigable
waters in which the United States has a reserved water right
and to identify specific Federal land units where reserved
water rights exist.”46 Rather than listing specific bodies of
water that are “public lands” by virtue of the federal reserved
water rights doctrine, the 1999 Rules identify “Federal land
units in which reserved water rights exist.”47 The 1999 Rules
provide that the Rules apply to “all public lands including all
non-navigable waters located on these [land units], on all
navigable and non-navigable water within the exterior
boundaries of the [land units], and on inland waters adjacent
to the exterior boundaries of the [land units].”48 The 1999
Rules list thirty-four separate “Federal land units” subject to
this general rule of applicability.49 The 1999 Rules also,
45
Id. at 704.
46
Subsistence Management Regulations for Public Lands in Alaska,
Subparts A, B, C, and D, Redefinition to Include W aters Subject to
Subsistence Priority, 64 Fed. Reg. 1,276, 1,276 (Jan. 8, 1999) (codified at
36 C.F.R. pt. 242 and 50 C.F.R. pt. 100).
47
Id.48
Id. at 1,286–87.
49
Id. at 1,287. These land units are a mix of ANILCA conservation
system units and other federal reservations.
18 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
pursuant to § 906(o)(2) of ANILCA,50 extend rural
subsistence priority management “to all Federal lands
selected under the Alaska Native Claims Settlement Act and
the Alaska Statehood Act and situated within the boundaries
of a Conservation System Unit, National Recreation Area,
National Conservation Area, or any new national forest or
forest addition, until conveyed to the State of Alaska or an
Alaska Native Corporation.”51
In 2000, the district court, which had retained jurisdiction
over the consolidated challenges to the 1992 Rules on remand
from Katie John I, concluded that the action should not serve
as the vehicle for challenges to the 1999 Rules. The court
issued an order “readopting all of its rulings on the merits,”
deeming those rulings final “for all purposes and to all
parties,” and dismissing the case.
The State of Alaska appealed this final judgment, arguing
that the “clear statement doctrine”52 precluded the
determination that any navigable waters in Alaska could
constitute “public lands.” We granted initial en banc
rehearing.53 In a per curiam opinion, we wrote that “[a]
50
43 U.S.C. § 1635(o)(2); see infra 62–65 (discussing § 906(o)(2)).
51
64 Fed. Reg. at 1,276.
52
See, e.g., United States v. Bass, 404 U.S. 336, 349 (1971) (“In
traditionally sensitive areas, such as legislation affecting the federal
balance, the requirement of clear statement assures that the legislature has
in fact faced, and intended to bring into issue, the critical matters involved
in the judicial decision.”).
53
See John v. United States, 247 F.3d 1032 (9th Cir. 2001) (en banc)
(“Katie John II”).
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 19
majority of the en banc court has determined that the
judgment rendered by the [Katie John I] panel, and adopted
by the district court, should not be disturbed or altered by the
en banc court.”54 In an opinion concurring in the judgment,
three judges took the position that the federal reserved water
rights doctrine does not limit the scope of ANILCA’s rural
subsistence priority; rather, because Congress was exercising
its authority under the Commerce Clause when it enacted
ANILCA, the priority applied to all navigable waters in
Alaska.55 In a dissenting opinion, three judges took the
position that ANILCA did not provide the necessary “clear
statement”—that Congress sought to take away “important
incidents of a state’s sovereignty”—to make navigable waters
within Alaska subject to federal control.56 They also argued
that the United States does not have “title” to Alaskan waters
or the lands underlying them.57 For these reasons, they
concluded that no navigable waters are “public lands” under
ANILCA.58 Since neither of these opinions garnered a
majority of votes, Katie John I remains controlling.
54
Id. at 1033.
55
Id. at 1034 (Tallman, J., concurring in the judgment).
56
Id. at 1045–46 (Kozinski, J., dissenting).
57
Id. at 1046–47 (Kozinski, J., dissenting) (citing 16 U.S.C.
§ 3102(1)–(3)).
58
Id. at 1048–49 (Kozinski, J., dissenting).
20 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
B. The current litigation
The current litigation includes two consolidated
challenges to the 1999 Rules.59 In the first challenge,
Plaintiffs-Appellants Katie John, et al., argue that the 1999
Rules violate ANILCA because they fail to provide the rural
subsistence priority for (1) the navigable waters upstream and
downstream from the conservation system units created under
ANILCA, and (2) waters appurtenant to lands allotted to
Alaska Natives under the Alaska Native Allotment Act of
1906. The State of Alaska intervened as a defendant. In the
second challenge, the State of Alaska, along with several
intervenors, argue, in essence, that the regulations violate
ANILCA by designating as “public lands” (1) waterways
outside the boundaries of federal lands, conservation system
units, or national forests; (2) water that constitutes “marine
water”; and (3) land selected for but not yet conveyed to
Alaska or a Native corporation. The Katie John plaintiffs, as
well as the Alaska Federation of Natives, intervened as
defendants.
Thus, both challenges assert that the Secretaries
improperly interpreted and applied the federal reserved water
rights doctrine. For the Katie John plaintiffs, the Secretaries
were too restrained in applying the doctrine; for the State, the
Secretaries were not restrained enough. Both challenges also
assert that the 1999 Rules are not entitled to deference under
59
In 2005, the Secretaries published amendments to the 1999 Rules to
“revise[ ] and clarif[y] the jurisdiction of the Federal Subsistence
Management Program for certain coastal areas in Alaska.” Subsistence
Management Regulations for Public Lands in Alaska, Subpart A, 70 Fed.
Reg. 76,400, 76,400 (Dec. 27, 2005) (codified at 36 C.F.R. pt. 242 and
50 C.F.R. pt. 100). These amendments are not at issue in these appeals,
except where noted below.
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 21
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). Finally, the State of Alaska argues
that the Secretaries should have used adjudication, not
rulemaking, to implement Katie John I.
The district court issued two decisions—which we and the
parties refer to as “what process” and “which waters”
decisions—in which it rejected all the challenges to the 1999
Rules. In its “what process” decision, the district court
concluded that “the Secretaries’ use of the rulemaking
process to identify reserved water rights for purposes of
federal subsistence management was lawful.” In the “which
waters” decision, the court discussed the “test case”
waterways submitted by the litigants and concluded that the
Secretaries’ designation of which waters constitute “public
lands” was “lawful and reasonable.” The parties timely
appealed.
ANALYSIS
A. Threshold issues
1. The federal reserved water rights doctrine
In Katie John I, we approved the Secretaries’ use of the
federal reserved water rights doctrine to identify which waters
are “public lands” for purposes of ANILCA’s rural
subsistence priority. Because that doctrine underlies the 1999
Rules, the parties’ arguments in this case, and our
conclusions, some background on the doctrine and its place
in Alaska’s history is necessary.
Congress had unfettered power to regulate the Territory
of Alaska from 1867, when the United States purchased the
22 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
land from Russia, until 1959, when the Territory attained
statehood.60 Under the “equal footing” doctrine, when Alaska
was “admitted into the Union, it gain[ed] ‘the same rights,
sovereignty and jurisdiction in that behalf as the original
States possess within their respective borders.’”61 More
specifically, the equal footing doctrine gave Alaska
“presumptive title to its submerged lands when it join[ed] the
Union.”62 “The shores of navigable waters, and the soils
under them, were not granted by the Constitution to the
United States, but were reserved to the states
respectively. . . . The new states have the same rights,
sovereignty, and jurisdiction over this subject as the original
states.”63 Thus the State of Alaska has the same rights over
lands under navigable waters within it as, say, the State of
New York and the State of California do over such waters
within their borders. This authority is constrained by two
separate federal rights: the navigational servitude and the
federal reserved water rights doctrine.
“It is settled law in this country that lands underlying
navigable waters within a state belong to the state in its
sovereign capacity and may be used and disposed of as [the
state] may elect, subject to the paramount power of Congress
60
The U.S. Constitution gives Congress “the power to dispose of and
make all needful Rules and Regulations respecting the Territory . . .
belonging to the United States.” U.S. Const. art. IV, § 3.
61
United States v. 32.24 Acres of Land, 683 F.3d 1030, 1035 (9th Cir.
2012) (quoting Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 474
(1988)).
62
Id. at 1034.
63
Pollard v. Hagan, 44 U.S. 212, 230 (1845).
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 23
to control such waters for the purposes of navigation in
commerce among the states and with foreign nations . . . .”64
Thus, where rivers and streams are navigable in interstate
commerce, the United States has authority to protect a
navigational servitude, but the states own the river beds and
other submerged lands.
Since 1908, the courts have also recognized that a federal
reservation of land carries with it the right to use water
necessary to serve the purposes of federal reservations.
Under the federal reserved water rights doctrine, water rights
for federal reservations are distinct from the federal servitude
for navigable waters. So, for example, in Winters v. United
States,65 a non-navigable stream was protected upstream
despite the admission of Montana to statehood and despite its
non-navigability, because diverting the upstream water could
turn the downstream Indian reservation into a “barren waste,”
which would be inconsistent with reservation of the land for
the use of the tribe.66
Winters involved an Indian reservation, but the federal
reserved water rights doctrine applies to all federal
reservations.67 The word “reservation” does not mean only an
Indian reservation—there is only one Indian reservation in
Alaska, the Metlakatla Indian Community of Tsimshian
Indians at the Annette Islands Reserve south of
64
United States v. Holt State Bank, 270 U.S. 49, 54 (1926).
65
Winters v. United States, 207 U.S. 564 (1908).
66
Id. at 577.
67
Akiak Native Cmty. v. EPA, 625 F.3d 1162, 1173 n.5 (9th Cir. 2010).
24 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
Ketchikan—but rather “any body of land, large or small,
which Congress has reserved from sale for any purpose.”68
Reservations in Alaska serve a variety of purposes, such as
military bases and parks. Cappaert v. United States,69 a
modern case, shows how the federal reserved water rights
doctrine works outside the context of an Indian reservation.
In Cappaert, the federal reservation of a national monument
featuring a notable pool of water required enough water to fill
the pool to protect an endangered species living there. As a
result, the state could not grant a permit to a ranch two and
one-half miles away to pump so much groundwater that the
pool (and the species) would be further endangered. The
Supreme Court held that a federal reservation acquires for the
federal government a right to “appurtenant water then
unappropriated to the extent needed to accomplish the
purpose of the reservation,” regardless of whether the waters
are navigable or nonnavigable.70 The federal right, though,
“reserves only that amount of water necessary to fulfill the
purpose of the reservation, no more.”71 In United States v.
New Mexico,72 the Court reiterated that the federal reserved
water rights doctrine is limited to the quantity of water
necessary to fulfill the primary purposes of the reservation.73
68
United States v. Celestine, 215 U.S. 278, 285 (1909); see also Coeur
D’Alene Tribe of Idaho v. Hammond, 384 F.3d 674, 693 (9th Cir. 2004).
69
Cappaert v. United States, 426 U.S. 128 (1976).
70
Id. at 138.
71
Id. at 141.
72
United States v. New Mexico, 438 U.S. 696 (1978).
73
Id. at 716–18.
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 25
Notably, in these cases the United States sought water
itself, for the need of the reservation itself. In Winters, the
water was needed on an Indian reservation for the Indians’
farms and ranches, and in Cappaert for the deep pool of water
for which the federal land was reserved. In New Mexico the
Supreme Court held that federally reserved waters are limited
to the primary purposes for which the land was reserved,
without which “the purposes of the reservation would be
entirely defeated.”74 Applying this narrow rule, the Court
rejected a federal claim to water rights for “aesthetic,
environmental, recreational, or wildlife-preservation
purposes,” because those were not the primary purposes for
which the national forest lands at issue had originally been
reserved.75
What makes this case difficult is that, until now, the
federal reserved water rights doctrine has operated in the
context of the United States enforcing its right to that amount
of water necessary to fulfill the purpose of a particular
reservation.76 That is, previous applications of the federal
reserved water rights doctrine have focused on the amount of
water needed for a specific federal reservation, rather than the
locations of water sources that might generally be needed for
74
Id. at 700.
75
Id. at 708, 713–15; see also id. at 700 (“Each time this Court has
applied the ‘implied-reservation-of-water doctrine,’ it has carefully
examined both the asserted water right and the specific purposes for which
the land was reserved, and concluded that without the water the purposes
of the reservation would be entirely defeated.”).
76
See, e.g., Colville Confederated Tribes v. Walton, 647 F.2d 42, 46–47
(9th Cir. 1981) (first considering the existence of water rights and then
considering the amount of water reserved).
26 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
subsistence living from many such reservations. We, and
perhaps the Secretaries, failed to recognize the difficulties in
applying the federal reserved water rights doctrine in this
novel way, and in retrospect the doctrine may provide a
particularly poor mechanism for identifying the geographic
scope of ANILCA’s rural subsistence priority management
when it comes to water.
Of course, we had the opportunity to revisit Katie John I
in Katie John II, and while a majority of the en banc court
agreed for diverging reasons that Katie John I was incorrectly
decided, we could not come to a controlling agreement about
why that was true.77 We accordingly concluded that the
decision “should not be disturbed or altered.”78 Katie John I
therefore remains controlling law, and we must attempt to
apply it in this case.
2. Rulemaking versus adjudication
The State argues that the Secretaries were required to
adjudicate, rather than prescribe by rule, which waters the
United States has an interest in by virtue of the federal
reserved water rights doctrine. The State argues that an
adjudicative process “is necessary because a right is being
established and one entity’s water right burdens and
diminishes the right and interests of another.”
77
Katie John I was issued as a two-judge majority, with one dissenting
opinion. See 72 F.3d at 704–08 (Hall, J., dissenting). In Katie John II,
three judges concurring in the judgment thought that Katie John I erred in
failing to uphold a rural subsistence priority over all navigable waters and
three dissenting judges were of the view that it erred in applying the
priority over any navigable waters. See 247 F.3d at 1034–50.
78
Katie John II, 247 F.3d at 1033.
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 27
The State is correct that, until this point, the federal
reserved water rights doctrine has been applied to adjudicate
competing claims to water, a task that requires an adjudicator
to allocate use of water among the claimants. The State,
however, fails to appreciate the distinction between the
adjudication of the amount of federal reserved water rights
and the identification of the geographic scope of those rights
for purposes of administering ANILCA’s rural subsistence
priority. The Secretaries were charged with the latter task,
i.e., identifying those bodies of water to which the rural
subsistence priority might apply by virtue of the federal
reserved water rights doctrine. Thus, the 1999 Rules identify
the bodies of waters in which the Secretaries believe the
United States has a federal reserved water rights interest (for
purposes of administering ANILCA), but they do not actually
allocate or reserve any water in these bodies. In other words,
the rules do not purport to assert rights over a particular
amount of water, nor do they do anything to displace future
water rights litigation. The agencies are not, therefore,
“determining their own water rights,” nor does their
rulemaking burden the State’s right to use water.79
Two implications flow from this observation. First, as
long as water remains abundant in the identified bodies,
79
Because the 1999 Rules do not actually burden the State’s right to use
water, they do not infringe upon ANILCA’s water rights savings clause.
See 16 U.S.C. § 3207 (“Nothing in [ANILCA] shall be construed as
limiting or restricting the power and authority of the United States
or . . . as affecting in any way any law governing appropriation or use of,
or Federal right to, water on lands within the State of Alaska[, or] as
expanding or diminishing Federal or State jurisdiction, responsibility,
interests, or rights in water resources development or control.”).
28 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
allocation of their waters may never become necessary.80
Second, any future attempt by the United States to enforce its
right to reserved water in a particular body could burden the
State’s use of water. At that point, the State could challenge
the quantitative scope of the United States’ reservation.
Indeed, in the context of a particular enforcement action, the
State could take the position that no amount of water from a
particular identified source is necessary to fulfill the primary
purposes of the reservation. But, to reiterate, the 1999 Rules
do not displace or otherwise affect future water rights
litigation; they were promulgated merely for the purposes of
administering Title VIII of ANILCA and complying with
Katie John I.
For these reasons, we hold that the Secretaries
appropriately used notice-and-comment rulemaking, rather
than adjudication, to identify those waters that are “public
lands” for the purpose of determining the scope of ANILCA’s
rural subsistence priority. The use of rulemaking is
consistent with ANILCA, which requires the federal
government to “prescribe such regulations as are
necessary,”81 and with our decision in Katie John I, where we
expressed our “hope that the federal agencies will determine
promptly which navigable waters are public lands subject to
federal subsistence management.”82 A more particularized
approach could not have fulfilled the requirement that the
federal agencies make their determination “promptly,” since
80
See New Mexico, 438 U.S. at 699 (recognizing that, where water is
abundant, there is no need to determine the relative rights of various
claimants of water from a particular source).
81
16 U.S.C. § 3124.
82
Katie John I, 72 F.3d at 704.
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 29
Alaska constitutes about one-sixth of the entire United States,
and most of its coastline. In directing the Secretaries to make
this determination, we could not have intended to require the
agencies to initiate individual water rights adjudication
proceedings for each identified body of water, particularly
when the purpose of the directive was not to allocate water,
but to identify which bodies of water constituted “public
lands” for purposes of ANILCA’s rural subsistence priority.
Logically, we intended the agencies to act through
rulemaking, where doing so was feasible.
3. The standards of review and Chevron deference
This case presents questions of law, which we review de
novo.83 “De novo review of a district court judgment
concerning the decision of an administrative agency means
we view the case from the same position as the district
court.”84 Under the Administrative Procedure Act,85 we ask
whether an agency decision is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law” or “in
excess of statutory . . . authority.”86
83
Sauer v. U.S. Dep’t of Educ., 668 F.3d 644, 650 (9th Cir. 2012).
84
Ka Makani ‘O Kohala Ohana Inc. v. Water Supply, 295 F.3d 955, 959
(9th Cir. 2002) (internal quotation marks and citation omitted).
85
5 U.S.C. §§ 701–706.
86
Id. § 706(2). The State incorrectly argues that we must review the
Katie John plaintiffs’ arguments under § 706(1), for agency action
“unlawfully withheld or unreasonably delayed.” The Katie John plaintiffs
challenge the validity of an agency action (the 1999 Rules), not an
agency’s alleged failure to act. See Norton v. S. Utah Wilderness Alliance,
542 U.S. 55, 62–63 (2004).
30 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
The district court determined that, because the Secretaries
are charged with administering ANILCA, deference was
warranted for questions of statutory interpretation under
Chevron.87 Applying Chevron deference involves a two-step
inquiry: if Congress has “directly spoken to the precise
question at issue,” then the court must “give effect to the
unambiguously expressed intent of Congress.”88 If instead
the “statute is silent or ambiguous with respect to the specific
issue,” the court defers to the administering agency’s
interpretation as long as it reflects “a permissible construction
of the statute.”89
We generally agree with the district court that Chevron
deference applies to questions of ANILCA’s interpretation in
this case, where ANILCA is ambiguous as to the answer. In
promulgating the 1999 Rules, the Secretaries were identifying
those bodies of water in which the United States may claim
an interest by virtue of the federal reserved water rights
doctrine, and which thereby qualify as “public lands” for
purposes of administering ANILCA’s rural subsistence
priority. The Secretaries are expressly charged with
administering that priority when the state does not enact law
87
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984).
88
Id. at 842–43.
89
Id. at 843.
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 31
that implements it.90 In construing the term “public lands,”
therefore, the Secretaries are entitled to some deference.91
We say “some deference” because this is not a typical
administrative law case, where an agency is simply applying
its expertise in implementing a substantive statute. Instead,
the Secretaries are applying, in a novel way, a judicially
created doctrine to implement ANILCA. The courts have a
strong role in defining the contours of such doctrines.92
B. The merits
As an initial matter, the State argues that the 1999 Rules
are invalid because they do not expressly address the
“elements” of the federal reserved water rights doctrine with
respect to each of the identified 34 reservation units. That is,
the Secretaries failed to state the purpose of the land
90
See 16 U.S.C. § 3115(a)(1) (providing for subsistence program
implementation by the Secretaries, in consultation with the State); id.§ 3115(d) (“The Secretary shall not implement subsections (a), (b), and (c)
of this section if the State enacts and implements laws of general
applicability which are consistent with, and which provide for the
definition, preference, and participation specified in . . . this title . . . .”).
91
See Katie John I, 72 F.3d at 702; Ninilchik Traditional Council v.
United States, 227 F.3d 1186, 1191–92 (9th Cir. 2000) (holding that the
agency’s interpretation of ANILCA is entitled to deference).
92
See, e.g., Morris v. Commodity Futures Trading Comm’n, 980 F.2d
1289, 1293 (9th Cir. 1992) (“W here the question to be decided involves
matters of particular expertise of the agency, the deferential standard
should be applied. But judicial deference is not necessarily warranted
where courts have experience in the area and are fully competent to decide
the issue.”) (citation omitted).
32 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
reservation and the amount of water necessary for each
reserved unit.
However, these steps were not necessary for the
Secretaries to identify which bodies of water constitute
“public lands” under ANILCA. The administrative record
reveals the bases for asserting federal reserved water rights
with regard to each unit, and nothing in the identification
process pertains to the amount of water reserved in each body
of water, which is still open to future determination by the
appropriate adjudicator. It falls to us to determine whether
the Secretaries’ decisions are arbitrary or capricious.
1. Adjacent waters
The State argues that, in the 1999 Rules, the Secretaries
improperly included within the definition of “public lands”
waters “adjacent to,” but not physically on, federally reserved
land. In the State’s view, federal reserved water rights arising
by implication exist only within the borders of the federal
reservations, not beyond them. Even if such rights may be
invoked to enjoin the use of waters outside the boundaries of
a federal reservation, the State argues that the rights
themselves exist only in the waters that are within the
boundaries of the reservation.
We disagree. The federal reserved water rights doctrine
allows the United States to reserve waters “appurtenant” to
federally reserved lands in order to fulfill the purposes of that
reservation.93 While the cases do not define “appurtenancy,”
93
See New Mexico, 438 U.S. at 698 (recognizing Congressional
authority “to reserve unappropriated water in the future for use on
appurtenant lands”) (emphasis added); Katie John I, 72 F.3d at 703
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 33
there is an apparent consensus that it does not mean physical
attachment:
The reserved water rights doctrine holds that
the government impliedly withdrew its
consent to creation of private rights each time
it earmarked public lands for a specific federal
purpose to the extent necessary to fulfill that
purpose. Thus, the fact that a reservation was
detached from water sources does not prove
an absence of intent to reserve waters some
distance away. Judicial references to such
rights being “appurtenant” to reserved lands
apparently refer not to some physical
attachment of water to land, but to the legal
doctrine that attaches water rights to land to
the extent necessary to fulfill reservation
purposes.94
As the district court recognized, “[a]ppurtenancy has to do
with the relationship between reserved federal land and the
use of the water, not the location of the water.”
(“Under the reserved water rights doctrine, when the United States
withdraws its lands from the public domain and reserves them for a federal
purpose, the United States implicitly reserves appurtenant waters then
unappropriated to the extent needed to accomplish the purpose of the
reservation.”); Walton, 647 F.2d at 46 (“W here water is needed to
accomplish [the purposes of federal land withdrawn from the public
domain], a reservation of appurtenant water is implied.”).
94
David H. Getches, Water Law 349–50 (4th ed. 2009); see also
4 Waters and Water Rights § 37.01(b)(3) (Robert E. Beck ed., 1991 ed.,
repl. vol. 2004) (“[R]eserved rights may be drawn from water sources that
do not traverse or border on reservations.”).
34 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
No court has ever held that the waters on which the
United States may exercise its reserved water rights are
limited to the water within the borders of a given federal
reservation. Instead, the Supreme Court has recognized that
federal water rights may reach sources of water that are
separated from, but “physically interrelated as integral parts
of the hydraulic cycle” with, the bodies of water physically
located on the reserved land.95 In Cappaert, the Court held
that the United States could enjoin the use of groundwater
two and one-half miles from Devil’s Hole because the federal
reserved water rights doctrine is “based on the necessity of
water for the purpose of federal reservation,” rather than the
location of the water.96 The relevant question, then, is not
where these waters are located, but rather whether these
waters are “appurtenant” to the reserved land. And if the
waters are “appurtenant” to the reserved land, they may be
subject to future enforcement of federal reserved water rights
if the other requirements for asserting a federal reserved
water right are met.
Each federal reservation listed in the 1999 Rules was
created for an express set of statutory purposes.97 These
95
Cappaert, 426 U.S. at 133, 142 (internal citation and quotation marks
omitted).
96
Id. at 143; see also United States v. Orr Water Ditch Co., 600 F.3d
1152, 1158 (9th Cir. 2010) (recognizing that a tribe’s water rights to
surface water protected it against diminution resulting from allocation of
groundwater, because of the “reciprocal hydraulic connection between
groundwater and surface water”).
97
The 1999 Rules provide that the regulations will apply to “inland
waters adjacent to the exterior boundaries of” 34 different “areas.”
Several of the identified “areas” actually include multiple reservations or
units. Sixteen of the “areas” are national wildlife refuges established,
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 35
purposes may require water not only from the water sources
on the lands themselves, but also from surrounding areas. For
example, the majority of the federal reservations identified in
the 1999 Rules are to be managed “to protect habitat for, and
populations of” fish and wildlife98 or “to conserve fish and
wildlife populations and habitats.”99 The State does not
dispute that the wildlife in these reservations readily use the
waters adjacent to the reservations.100 Due to the proximity
and connectivity of these adjacent waters to the reserved land,
and given the fact that the federal reserved water rights
doctrine allows the United States to exert rights over water
expanded or redesignated by ANILCA. Twelve of the “areas” include one
or more units of the National Park System established, expanded or
redesignated by ANILCA. The remaining six “areas” include two national
forests (the Chugach and the Tongass), one National Conservation Area,
one National Recreation Area, the National Petroleum Reserve in Alaska,
and all components of the W ild and Scenic River System located outside
the boundaries of National Park, National Preserves or National W ildlife
Refuges. Only the National Petroleum reserve was not established,
expanded or redesignated by ANILCA.
98
See ANILCA §§ 201, 202 (codified at 16 U.S.C. 410hh, 410hh-1).
Sixteen of the 17 National Park System units listed in the 1999 Rules have
the identified purpose “to protect habitat for, and populations of” fish and
wildlife. The remaining National Park System unit, the Glacier Bay
National Preserve, has the purpose to “protect a segment of the Alsek
River, fish and wildlife habitats and migration routes.”
99
See ANILCA §§ 302, 303. All 16 of the National W ildlife Refuges
named in the 1999 Rules have a primary purpose “to conserve fish and
wildlife populations and habitats in their natural diversity.”
100
Cf. United States v. Alaska, 423 F.2d 764, 767 (9th Cir. 1970)
(rejecting the argument that the Kenai N ational Moose Range did not
reserve water rights in navigable water because this would leave “only
mountains, hills, ridges, valleys and barren areas . . . for the moose to feed
and breed”).
36 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
that is “physically interrelated” with the reserved land, the
Secretaries reasonably concluded that adjacent waters are
appurtenant to, and may be necessary to fulfill the primary
purposes of, the federal reservations identified in the 1999
Rule, and are sources from which the United States could at
some point claim a reservation of water. Accordingly, the
Secretaries reasonably concluded that the United States has
an “interest” in these adjacent waters by virtue of the federal
reserved water rights doctrine sufficient to qualify as “public
lands” for purposes of Title VIII.101
There is a broader point to be made here. As discussed
above, the federal reserved water rights doctrine does not
typically assign a geographic location to implied federal
water rights. The rights are created when the United States
reserves land from the public domain for a particular purpose,
and they exist to the extent that the waters are necessary to
fulfill the primary purposes of the reservation.102 The United
States may enforce this implied right in a particular,
appurtenant body of water, and it is at this point that the right
takes on a geographical dimension. The existence of the
right, therefore, has no physical location separate and distinct
from the waters on which the right can be enforced. For
purposes of this case, then, we must include within its
potential scope all the bodies of water on which the United
States’ reserved rights could at some point be enforced— i.e.,
those waters that are or may become necessary to fulfill the
primary purposes of the federal reservation at issue. Because
this potential scope in hypothetical scenarios is immensely
101
See Katie John I, 72 F.3d at 703 (“By virtue of its reserved water
rights, the United States has interests in some navigable waters.”).
102
Cappaert, 426 U.S. at 139.
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 37
broad, it runs up against the conclusion in Katie John I that
not all navigable waters are included in the rural subsistence
priority. That judgment reflects the practical view that the
federal reservations are unlikely to need all the water even in
some of the greatest rivers in the world. It was reasonable for
the Secretaries to conclude that a federal reserved water right
existed in adjacent waters to serve all of the purposes of the
reservations. The Secretaries also concluded, however, that
the needs of subsistence uses did not justify expansion to vast
reaches of waters upstream and downstream. For reasons we
will explain when we address that issue below, we conclude
that this decision of the Secretaries was also reasonable.
2. Specific water bodies
The State challenges the designation of specific bodies of
water as “public lands for purposes for ANILCA.” We
consider each challenge in turn.
a. Sixmile Lake
The State argues that Sixmile Lake should not be
considered a “public land” subject to federal subsistence
management because the Lake’s shoreline is non-federal,
non-public land owned primarily by the Native Village
Corporation for Nondalton.103 Therefore, the State argues,
Sixmile Lake is not within any federal reservation and does
not touch federally reserved land.
103
See ANILCA § 201(7)(b), 16 U.S.C. § 410hh(7)(b) (providing that
“[n]o lands conveyed to the Nondalton Village Corporation shall be
considered to be within the boundaries of the park or preserve”).
38 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
However, the agency map of the Lake Clark National
Park and Preserve104 places the Park’s boundary at the
shoreline of Sixmile Lake. ANILCA provides that, “[i]n the
event of discrepancies between the acreages specified in this
Act and those depicted on such maps, the maps shall be
controlling.”105 The Secretaries therefore properly concluded
that Sixmile Lake was in fact adjacent to the Lake Clark
National Park and Preserve. Moreover, under the federal
reserved water rights doctrine, the Secretaries must show only
that the waters are positioned such that the United States may
need to exercise its rights upon them. For that reason, the
formal ownership of the land immediately along the shoreline
of Sixmile Lake is not dispositive, so long as the lake
contains water that is or might be necessary to fulfill the
primary purposes of the Lake Clark National Park and
Preserve. The State does not dispute that, due to its location,
the United States has such an interest in Sixmile Lake. We
therefore affirm the Secretaries’ determination that Sixmile
Lake is a “public land” subject to ANILCA’s rural
subsistence priority.
b. Seven Juneau-area streams
The State argues that the Secretaries improperly declared
seven streams in the Juneau area “public lands” under
ANILCA. The upper reaches of these streams are in the
Tongass National Forest, but, according to the State, they also
flow through many lands in the Juneau area that are not
federally owned. The State contends that the determination
104
See National Park System Units in Alaska; Description of
Boundaries, 57 Fed. Reg. 45,166, 45,220 (Sept. 30, 1992).
105
16 U.S.C. § 3103.
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 39
that the United States has an interest in these waters is
erroneous because they are “exterior waters downstream of
the reservation.”
The parties disagree about whether the streams in
question fall completely within the boundaries of the Tongass
National Forest, or whether a portion of the streams lies
outside of these boundaries. None of the maps offered by the
parties is entirely conclusive. The map upon which the
Secretaries relied, however, does indicate that the entire
streams fall within the exterior boundaries of the Tongass
National Forest. It was not unreasonable for the Secretaries
to rely on it instead of the map or other evidence offered by
the State.106 We therefore uphold the Secretaries’ inclusion
of these streams within the definition of “public lands.”
c. Water on inholdings
The Secretaries included within the definition of “public
lands” all navigable and non-navigable water within the outer
boundaries of the 34 listed land units.107 Within these units,
however, also lie State and privately owned lands, referred to
as “inholdings.” ANILCA expressly provides that lands that
have been conveyed to Alaska, a Native corporation, or a
private individual, even if such lands are within the
boundaries of a conservation system unit, are not subject to
106
See Union Oil Co. of Cal. v. FPC, 542 F.2d 1036, 1040 (9th Cir.
1976) (stating that rulemaking is not the kind of adjudicative procedure for
which the Administrative Procedure Act specifies a “substantial evidence”
standard of review).
107
See 64 Fed. Reg. at 1,286–87 (codified at 36 C.F.R. § 242.3(b), 50
C.F.R. § 100.3(b))
40 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
regulation under Title VIII of ANILCA.108 The State argues
that designating waters that lie on such “inholdings” as
“public lands” runs contrary to the principle that only waters
appurtenant to reserved federal lands can contain a federally
reserved water right.
However, water rights that the United States impliedly
acquires are not forfeited or conveyed to third parties when
the government conveys to another party land within a federal
reservation.109 Furthermore, federal reserved water rights can
reach waters that lie on inholdings as long as those waters,
based on their location and proximity to federal lands, are or
may become necessary for the primary purposes of the
federally reserved land. Because these water bodies are
actually situated within the boundaries of federal
reservations, it is reasonable to conclude that the United
States has an interest in such waters for the primary purposes
of the reservations. We therefore uphold the Secretaries’
inclusion of these waters within “public lands.”
d. Coastal waters and the “headland-to-
headland” method
Section 103(a) of ANILCA provides that federal
reservation boundaries “shall, in coastal areas, not extend
seaward beyond the mean high tide line to include lands
owned by the State of Alaska unless the State shall have
108
16 U.S.C. § 3103(c).
109
See Winters, 207 U.S. at 577 (holding that the United States’
reservation of water in the Milk river for the Fort Belknap Indian
Reservation was not repealed when Montana was admitted to the union);
Arizona, 373 U.S. at 596–99; Walton, 647 F.2d at 48–49.
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 41
concurred in such boundary extension.”110 In the 1999 Rules,
the Secretaries defined “inland waters” as “those waters
located landward of the mean high tide line or the waters
located upstream of the straight line drawn from headland to
headland across the mouths of rivers or other waters as they
flow into the sea.”111 This boundary represents the
Secretaries’ determination of “where the river ends and the
sea begins,” that is, the line that separates inland waters from
marine waters.112 Creation of such a boundary was necessary
because, as the Secretaries recognize, federal reserved water
rights have never been held to exist in marine waters.113
The State contends that the Secretaries’ use of the
“headland-to-headland” method improperly places marine
and tidal waters under federal management because, in
§ 103(a), Congress placed the boundary of federal control at
the high tide line. The Secretaries respond that, because they
can assert federal reserved water rights in “tidally influenced
waters,” their use of the headland-to-headland method was a
reasonable way of designating the boundary of federal rural
subsistence priority management.
110
16 U.S.C. § 3103(a).
111
64 Fed. Reg. at 1,287 (codified at 36 C.F.R. § 242.4 and 50 C.F.R.
§ 100.4).
112
70 Fed. Reg. at 76,402.
113
In the 2005 amendments, the Secretaries clarified that the 1999 Rules
do not identify any marine waters as “public lands” by virtue of the federal
reserved water rights doctrine. 70 Fed. Reg. at 76,401 (“[N]either the
1999 regulations nor this final rule claims that the United States holds a
reserved water right in marine waters as defined in the existing
regulations.”).
42 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
We agree with the Secretaries. The boundary Congress
set forth in § 103(a) establishes only the physical boundary
for the federal reservations themselves; it does not set the
limit for the water over which the United States may exert
any interest. As discussed above, a federal interest by virtue
of the federal reserved water rights doctrine may exist in
waters adjacent to, but outside the boundary of, a federal
reservation, as long as these waters are appurtenant to the
reservation. Because the headland-to-headland method
includes tidally influenced waters that are physically
connected to, and indeed practically inseparable from, waters
inland of the high tide line (or waters on the federal
reservations themselves), drawing of the boundary line in this
manner is consistent with the federal reserved water rights
doctrine. Finally, as the Secretaries explain in the 2005
amendments, “the regulations use the methodology found in
the Convention on the Territorial Sea and Contiguous Zone
from the United Nations Law of the Sea for closing the
mouths of rivers.”114 For these reasons, using the headland-
to-headland approach for purposes of determining the
boundaries of rural subsistence priority management is a
reasonable way to administer ANILCA.
3. Upstream and downstream waters
The 1999 Rules apply the federal rural subsistence
priority to waters within and adjacent to the federal
reservations listed in the Rules. We have explained why the
State of Alaska’s argument—that the federal priority should
not extend to adjacent waters—does not have merit.
114
Id. at 76,402.
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 43
However, the Secretaries did not make claim to waters
farther afield from the federal reservations, waters we refer to
as “upstream and downstream waters.” The Secretaries
justified their decision to exclude upstream and downstream
waters on the grounds that the United States had no such
general practice, no Indian treaty rights were involved, and
such reservation “would conflict with the parts of the Katie
John [I] decision holding that ANILCA did not extend
subsistence fishing to all navigable waters in Alaska.”
The Katie John plaintiffs argue that the federal priority
should apply to waters upstream and downstream from
federal reservations—a position that would subject most of
the rivers and streams in Alaska to the federal priority, since
the federal reservations listed in the 1999 Rules cover about
one-half of Alaska.115 We reject this argument, and hold that
the Secretaries did not act arbitrarily or contrary to law in
refusing to extend the federal rural subsistence priority to
waters upstream and downstream from federal reservations.
We base our conclusion on the limits of the federal reserved
water rights doctrine, the primary purposes of the federal
reservations at issue in the 1999 Rules, the history (and
115
The Katie John plaintiffs’ complaint asks for “a declaratory judgment
that reserved waters extend upstream and downstream of CSUs.” “CSU”
stands for “conservation system unit,” which is a defined term in
ANILCA. The 1999 Rules cover some, but not all, of the ANILCA
conservation system units. The 1999 Rules also cover some federal
reservations that are not “conservation system units,” such as the National
Petroleum Reserve in Alaska. It is unclear whether the Katie John
plaintiffs argue that upstream and downstream waters are necessary for all
of the reservations listed in the 1999 Rules, or only those that are
conservation system units. It is also unclear whether the Katie John
plaintiffs seek a declaratory judgment that applies to conservation system
units that are not listed in the 1999 Rules. Because we conclude that the
1999 Rules are reasonable, we need not resolve these ambiguities.
44 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
limits) of ANILCA’s rural subsistence priority, and Katie
John I and II. As we will explain, there is no shortage of
water on the ANILCA reservations, so any need for
additional water beyond adjacent waters for general purposes
of wilderness preservation is too remote to require the
Secretaries to identify upstream and downstream waters as
subject to a reserved right. The question then is whether
ANILCA’s priority for rural subsistence uses somehow
requires a more expansive identification of reserved rights.
For the reasons that follow, we conclude that it does not.
a. The history of ANILCA’s rural subsistence
priority
As our previous discussion makes clear, ANILCA makes
“subsistence uses” of fish and wildlife a priority “on public
lands.” Though stated in broad terms, the priority is not
without limits.
Some historical background provides context. Among the
major reasons why Alaskans sought statehood was that
federal regulation of territorial waters allowed non-Alaskan
commercial firms to take salmon in “fish traps,” which
starved local Alaskans of the catch and threatened the salmon
runs.116 In 1948, outside salmon packing companies owned
383 of the 429 fish traps licensed in Alaska.117 Alaskans
twice voted overwhelmingly to eliminate fish traps, but these
116
Gerald E. Bowkett, Reaching for a Star 12 (1989) (“If there were one
symbol of the economic discrimination Alaskan’s sought to end through
statehood it was the salmon trap, a highly efficient means of catching fish
controlled primarily by the big absentee canning interests.”).
117
Id. at 74.
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 45
pre-statehood votes meant nothing because Alaska and its
people then had no power to regulate fisheries.118 One of the
first acts of the Alaska Constitutional Convention in 1955
was to adopt an ordinance prohibiting fish traps, to be
submitted to voters for approval along with the state
constitution.119 Between 1936 and 1959, when federal
management of Alaska’s salmon finally ended, production
had fallen from 8.5 million cases annually to 1.8 million
cases.120
Ernest Gruening, former governor of and United States
senator from Alaska, opposed the establishment of a federal
Arctic Wildlife Range because of federal mismanagement of
fish and game:
I opposed the bill because it seemed to me
unthinkable that after the Interior
Department’s failure in the management and
conservation of Alaska’s fishery and wildlife
resources, the new state, which had set up its
own far-more-qualified fish and wildlife
organization and had offered to make this
118
Id.
119
Id. at 74–76; Alaska Const. Ord. 3, § 2 (“As a matter of immediate
public necessity, to relieve economic distress among individual fishermen
and those dependant upon them for a livelihood, to conserve the rapidly
dwindling supply of salmon in Alaska, to insure fair competition among
those engaged in commercial fishing, and to make manifest the will of the
people of Alaska, the use of fish traps for the taking of salmon for
commercial purposes is hereby prohibited in all the coastal waters of the
State.”) (emphasis added).
120
Bowkett, Reaching for a Star, at 12.
46 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
range a state-managed project, should be
asked to turn it back to that discredited federal
control.121
Modern efforts at federal regulation, including ANILCA’s
rural subsistence priority, remain intensely controversial
within Alaska.
As a result of this long-running federal-state controversy,
ANILCA imposes negotiated limits on how certain natural
resources are managed in Alaska. While ANILCA
emphasizes the importance of “subsistence uses” of fish and
wildlife and gives them a priority “on public lands,” it limits
the priority to rural subsistence uses, to certain (but not all)
public lands, and to federal lands. Moreover, lands owned by
the United States but subject to valid State and Native
corporation land selections are excluded from the definition
of public lands.122 The priority for “subsistence uses by rural
residents of Alaska, including both Natives and non-
Natives,”123 applies only on the specified subset of federal
lands.124 State, Native corporation, and private lands are
expressly excluded from the rural subsistence preference
regulations.125
121
Ernest Gruening, Many Battles 426 (1973).
122
16 U.S.C. § 3102(3).
123
Id. § 3111(1).
124
See id. §§ 3102(2)–(3), 3114.
125
Id. § 3103(c).
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 47
Furthermore, ANILCA establishes an elaborate scheme
for cooperation with state fish and game authorities in
managing the rural subsistence priority and limits federal
authority even for protecting that priority.126 Congress
prohibits any construction of the statute “granting any
property right in any fish or wildlife,” or “enlarging or
diminishing the Secretary’s authority to manipulate habitat”
on the public lands, or restricting the taking of fish or wildlife
on the federal lands for nonsubsistence uses “unless necessary
for the conservation of healthy populations of fish and
wildlife [or] to continue subsistence uses of such
populations.”127
b. The primary purposes of ANILCA and other
federal reservations in Alaska
“From the 1780s, when the Articles of Confederation
government enacted the Northwest Ordinance and its
predecessors, to 1986, when the Homestead Act repeal
became effective in Alaska, national policy on federally
owned lands was to sell them cheap or give them away, rather
than to hold on to them or charter them to great companies as
England and Spain had.”128
With so liberal a policy of giving away the
public domain, the government needed a
means to mark out some portions that would
126
Id. §§ 3113–3115, 3202(a).
127
Id. § 3125(1)–(3).
128
Coeur D’Alene Tribe of Idaho, 384 F.3d at 697 (Kleinfeld, J.,
dissenting).
48 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
not be turned into farms, mines, homesites,
trade sites, and all the other categories of
private ownership. Under the Northwest
Ordinance and its Jeffersonian predecessor,
land was to be reserved from sale (giving
away land for free was Lincoln’s subsequent
innovation under the Homestead Act) for such
purposes as schools and transfer to
Revolutionary War veterans. Likewise, under
the Morrill Land-Grant Act of 1862, lands
were reserved from entry for various public
purposes, such as schools. Beginning in 1872
with Yellowstone, reservations from entry
were made for parks.129
Homesteading ended on October 21, 1976, when Congress
enacted the Federal Land Policy and Management Act of
1976. “On that day, all homestead laws were repealed
nationwide, however, a 10-year extension was allowed in
Alaska since it was a new state with fewer settlers. The last
time anyone could file any type of [federal] homestead claim
in Alaska was on October 20, 1986. After that day, no more
new homesteading was allowed on federal land in Alaska.”130
Many of Alaska’s federal reservations are military
reservations, such as 607,800 acres near Fairbanks for a
129
Id. at 698 (footnotes omitted). Homesteaders usually were required
to pay $1.25 per acre, a price that was reduced substantially if the land
was not particularly desirable. See http://www.archives.gov/education/
lessons/homestead-act (last visited June 26, 2013).
130
Bureau of Land M anagement, Homesteading Frequently Asked
Questions, available at http://www.blm.gov/ak/st/en/prog/culture/
ak_history/homesteading/homesteading_Q_and_A.html#6 (last visited
June 26, 2013).
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 49
missile-testing range.131 In 1980, ANILCA designated
approximately 105 million acres in Alaska as permanently
protected federal lands, for various purposes generally
associated with wilderness preservation.132
Indeed, by and large the reservations ANILCA
established are not for use by any people who might need the
water itself in competition with other users. These lands
generally were reserved from people (other than subsistence
users) who might want to live there, not for them. For
example, ANILCA sets up seventeen new units within the
National Park System and expands three others, and lists the
“purposes” for each reservation.133 In seventeen of these
twenty reservations, none of the “purposes” include human
subsistence, and only in three is the protection of “the
viability of subsistence resources” mentioned as one among
several purposes.134 For example, the Aniakchak National
Monument is reserved to maintain volcanic features and study
the flora and fauna, and to protect habitat for wildlife.135 The
131
Ernest Gruening, Many Battles 418 (1973); see also United States v.
N. Am. Transp. & Trading Co., 253 U.S. 330 (1920) (reservation of land
near Nome for use as an Army post).
132
Se. Alaska Conservation Council, Inc. v. Watson, 697 F.2d 1305,
1307 (9th Cir. 1983).
133
See generally 16 U.S.C. §§ 410hh–410hh-1.
134
See id. § 410hh(2)–(3), (6). ANILCA states that “subsistence uses by
local residents shall be permitted” in several reservations, but that is far
different from saying that subsistence use is a reason why the reservations
were created. See id. §§ 410hh(1), (3), (4)(a), (6), (7)(b), (9), 410hh-
1(3)(a).
135
Id. § 410hh(1).
50 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
Cape Krusenstern National Monument is established for
archeological study and to preserve habitat for wildlife.136
The 6.5 million-acre Noatak National Preserve has as among
its purposes maintaining the river “unimpaired by adverse
human activity.”137 The purpose of the 567,000-acre Kenai
Fjords National Park is “[t]o maintain unimpaired the scenic
and environmental integrity of the Harding Icefield, its
outflowing glaciers, and coastal fjords and islands in their
natural state; and to protect seals, sea lions, other marine
mammals, and marine and other birds and to maintain their
hauling and breeding areas in their natural state, free of
human activity which is disruptive to their natural
processes.”138 The Secretaries’ 1999 Rule includes additional
reservations that also are not primarily designed for the
purpose of furthering subsistence hunting or fishing.
However, because quite a few people, Native and non-
Native, already did live on the vast newly reserved lands, or
hunted or fished there for their subsistence, ANILCA was
shaped to preserve their interest in subsistence living from the
new federal restrictions. Accordingly, Congress preserved
subsistence use in many of the reservations, even though none
of the reservations listed such use as their primary purpose
and most did not list subsistence use among their purposes at
all. The crucial point is that human use for subsistence on
most federal reservations in Alaska is a servitude imposed as
136
Id. § 410hh(3).
137
Id. § 410hh(8)(a).
138
Id. § 410hh(5) (emphasis added).
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 51
a limitation on federal control, rather than a specified purpose
for which the federal reservation was established.139
Indeed, not only are the ANILCA and other federal
reservations not established for human use of the water in the
streams, but most of time, at least in the northern half of the
state, the water is not even “water” in the sense of being a
liquid. It is ice. No one can drink it without making a hole
139
Perhaps the best example of the tension between the purposes of
federal reservations in Alaska—more or less of excluding human
activities— and the preservation of rural subsistence rights as a kind of
servitude is the case of Alex Sando Tarnai. Tarnai was a trapper who had
fled Hungary after the unsuccessful 1956 uprising, and who built his cabin
on the Nowitna River in 1977. David Hullen, Trapper, government wage
strange battle, Anchorage Daily News, Nov. 19, 1989, at A1. In 1980,
ANILCA established the Nowitna National W ildlife Refuge to “conserve
wildlife populations and habitats in their natural diversity.” ANILCA
§ 302(6), 94 Stat. 2371. Tarnai was the sole human living in the vast
wilderness of the newly created 2.1-million acre refuge, two days’ dogsled
trip from Ruby, Alaska.
Tarnai was so isolated that he did not learn of ANILCA until two
years after it had become law. When federal officials learned that a
woman was planning to visit him for a few weeks at his cabin, they
threatened to treat his cabin as a “recreational” rather than a “subsistence”
cabin, so that he would be evicted from his home. Their theory was that
if a woman who was not an immediate family member stayed in his cabin,
his use of the cabin would become “recreational” rather than
“subsistence,” and the statute bars permits for “private recreational use”
cabins. See 16 U.S.C. § 3193(b)(2). Tarnai and his guest slept in a tent
outside his cabin in minus-twenty-degree weather to avoid a citation.
Tarnai later successfully litigated against the federal government,
establishing that his subsistence use for trapping was not defeated by this
incidental non-subsistence use, and that even a “subsistence” dweller was
entitled to engage in activities in his cabin yielding companionship or
pleasure, not just activities sustaining life. Tarnai v. Fisher, No. 87-0068
(D. Alaska dismissed Jan. 21, 1990).
52 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
in the ice, and it could not be used for irrigation, if there were
anything to irrigate, which by and large there is not. There
are no large farms or ranches, nor great reservoirs serving
cities, along the greatest of the waters, the roughly two
thousand-mile-long Yukon, nor along most of the other rivers
and streams at issue in this litigation.
This observation distinguishes the federal reservations at
issue in this case from much of the American West, where
water is scarce and where, as in Winters, aridity can defeat
the purpose of a reservation. In this case, in contrast, no one
is claiming that the water itself must be reserved to fulfill the
purposes of the ANILCA reservations. That is, there is no
suggestion that any federal reservation along any Alaskan
waters risks being turned into a “barren waste” as in Winters,
or a substantially diminished pool, as in Cappaert, or is in
any way short of water. In this way, Alaska’s federal
reservations differ dramatically from the reservations in arid
regions.
Of course, water must be preserved for the geese and
ducks, and if anyone were to drain the many lakes and ponds,
the reduction in water quantity would threaten migrating
birds. For example, the Nowitna National Wildlife Refuge,
where Alex Tarnai lived, has among its legislatively stated
purposes ensuring the necessary water quantity “within the
refuge” to conserve its fish and wildlife population, including
geese, ducks, moose, pike, salmon, and other wildlife.140 The
140
ANILCA § 302(6)(B), 94 Stat. 2371, 2387 (1980) (“The purposes for
which the Nowitna National Wildlife Refuge is established and shall be
managed include— (i) to conserve fish and wildlife populations and
habitats in their natural diversity including, but not limited to, trumpeter
swans, white-fronted geese, canvasbacks and other waterfowl and
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 53
Wrangell-Saint Elias National Park and Preserve seek to
protect habitat for “fish and wildlife” such as “trumpeter
swans and other waterfowl.”141 And the Lake Clark National
Park and Preserve were created “to protect the watershed
necessary for perpetuation of the red salmon fishery in Bristol
Bay.”142 As for the people living in or near these and other
ANILCA reservations, the utility of the water is generally as
transportation arteries for riverboats, snow machines, and
occasionally dog teams, and for fishing.
ANILCA’s text and history, as well as the history and
realities of rural living in Alaska, thus lead to a critical
observation: human use for subsistence on many federal
reservations in Alaska, including ANILCA conservation
system units, is a servitude imposed as a limitation on federal
control, rather than a specified purpose for which most such
reservations were established. For this reason, and because
modern federal efforts to regulate natural resources in Alaska
remain controversial, ANILCA limits the application of its
rural subsistence priority to a carefully delineated subset of
federal lands, and establishes an elaborate scheme for
migratory birds, moose, caribou, martens, wolverines and other furbearers,
salmon, sheefish, and northern pike; (ii) to fulfill the international treaty
obligations of the United States with respect to fish and wildlife and their
habitats; (iii) to provide in a manner consistent with the purposes set forth
in subparagraphs (i) and (ii), the opportunity for continued subsistence
uses by local residents; and (iv) to ensure, to the maximum extent
practicable and in a manner consistent with the purposes set forth in
paragraph (i), water quality and necessary water quantity within the
refuge.”).
141
16 U.S.C. § 410hh(9).
142
Id. § 410hh(7)(a).
54 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
cooperation between the Secretaries and State fish and game
authorities in managing the rural subsistence priority.
c. The constraints of the federal reserved water
rights doctrine
Recognizing these constraints in Katie John I, we limited
federal ANILCA authority over waters outside the boundaries
of reservations to federally reserved lands, including
“appurtenant waters then unappropriated to the extent
necessary to accomplish the purpose of the reservation.”143
That is, we held that the ANILCA rural subsistence priority
applied not to all Alaska waters subject to the federal
navigational servitude, but only to those “navigable waters in
which the United States has reserved water rights.”144 Waters
were reserved to the United States only if the United States
intended to reserve the water. That intent would be inferred
“if those waters are necessary to accomplish the purposes for
which the land was reserved.”145 We noted that the United
States had reserved vast lands in Alaska for many different
purposes, and left it to the federal agencies to identify the
“navigable waters in which the United States has an interest
by virtue of the reserved water rights doctrine.”146 These
prior holdings control on the critical questions in this
litigation.
143
Katie John I, 72 F.3d at 703.
144
Id. at 700.
145
Id. at 703.
146
Id. at 704.
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 55
The Katie John plaintiffs would have us extend the rural
subsistence priority to all waters upstream and downstream
from, and not only adjacent to, federal reservations, on the
theory that what happens elsewhere may affect what happens
within a reservation. That broad claim, to federal regulation
of a substantial majority of the rivers and streams in Alaska,
is unsupported by ANILCA’s text and conflicts with Katie
John I and Katie John II. Our circuit is committed to the
position that for the rural subsistence priority to apply to
navigable waters outside federal reservations, the waters have
to be “appurtenant to” the reservations and so “necessary to
accomplish the purposes for which the land was reserved”
that “without the water the purposes of the reservation would
be entirely defeated.”147
ANILCA put 105 million acres (162,500 square miles), of
Alaska under federal restrictions148 (beyond the 84.1 million
acres (131,406 square miles) already reserved or withdrawn
when Alaska attained statehood149) for purposes that involve
little or no water consumption and many of which have little
or nothing to do with human use. Congress did state at the
beginning its intent in ANILCA “to protect the resources
related to subsistence needs.”150 ANILCA provides for
“continuation of the opportunity for subsistence uses by rural
147
Id. at 703 (quoting New Mexico, 438 U.S. at 700).
148
Se. Alaska Conservation Council, 697 F.2d at 1307.
149
Teresa Hull & Linda Leask, Dividing Alaska, 1867–2000: Changing
Land Ownership and Management, Alaska Review of Social & Economic
Conditions, Volume XXXII, 6 tbl. 1 (2000).
150
16 U.S.C. § 3101(b).
56 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
residents of Alaska”151 to avoid disrupting and destroying the
human uses already being made, but the Supreme Court held
in Amoco Production Co. v. Village of Gambell152 that
ANILCA does not make subsistence uses more important
than other uses of federal lands. Rather, ANILCA simply
recognizes subsistence uses as “a public interest” within a
statutory “framework for reconciliation, where possible, of
competing public interests.”153 Similarly, the additional (non-
ANILCA) federal reservations listed in the 1999 Rules were
not primarily withdrawn for the stated purpose of furthering
subsistence fishing or hunting.154 As explained above, human
subsistence needs are imposed on all of these reservations as
a kind of servitude, so that ANILCA does not destroy the
preexisting way of life on those federal lands. But it is
untenable to reason that upstream and downstream waters are
necessarily included in the priority granted to subsistence
uses on those reservations, particularly when subsistence uses
are not among the primary purposes listed in the statutory
sections establishing most of the reserves.
Again, water rights may be essential to a purpose of the
reservation other than subsistence. Were non-federal
activities, such as a dam or diversion of a river where salmon
spawn, or drying up of lakes and ponds that migrating geese
use, to threaten the purposes of a federal reservation,
ANILCA’s rural subsistence priority might come into play as
151
16 U.S.C. § 3111(1).
152
Amoco Production Co. v. Village of Gambell, 480 U.S. 531 (1987).
153
Id. at 545–46.
154
The National Petroleum Reserve in Alaska was established for
exploration of petroleum reserves. See 42 U.S.C. § 6504.
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 57
a result of an enforcement action particularized to the
particular purposes of a particular reservation. But no such
activity is before us. This is not a particularized enforcement
action, and the Katie John plaintiffs do not ask us or the
Secretaries to consider the actual purposes of any of the
reservations. Instead, they seek a generalized declaratory
judgment “that reserved waters extend upstream and
downstream of” all the federal reservations listed in the 1999
Rules.155
Such relief we cannot grant. We cannot conclude that the
Secretaries acted arbitrarily, capriciously, or contrary to law
in declining to include upstream and downstream waters as
currently within a reserved right for purposes of a rural
subsistence priority, when subsistence uses in many cases
were not specified as primary purposes of the reservations.
The Katie John plaintiffs’ demand would require us to ignore
the central role those purposes play in applying the federal
reserved water rights doctrine, and to make up out of nothing
a notion that all federal reservations in Alaska require all
upstream and downstream waters for purposes we or the
plaintiffs, not Congress, claim. Such a holding would be
inconsistent with the Supreme Court’s decision in New
Mexico, under which reserved water rights exist to serve only
the primary purposes of a federal reservation,156 and with
ANILCA, which simply “does not support such a complete
assertion of federal control.”157
155
W e note, as do the Secretaries, that there is no shortage of waters to
serve the primary purposes of the reservations.
156
See 438 U.S. at 708, 713–15.
157
Katie John I, 72 F.3d at 704.
58 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
If any of the various reservations ever do run short of the
water necessary to maintain subsistence uses, the United
States may or may not be entitled to that water under the
federal reserved water rights doctrine, a fact the Secretaries
acknowledge. But “[w]here water is only valuable for a
secondary use of the reservation,” the United States must
acquire the water “in the same manner as any other public or
private appropriator.”158 No claims particularized to any
federal reservation and its need for water are made in the
complaint in this case.
In short, we agree with the district court that the
Secretaries reasonably determined that, as a general matter,
federally reserved water rights may be enforced to implement
ANILCA’s rural subsistence priority as to waters within and
“immediately adjacent to” federal reservations, but not as to
waters upstream and downstream from those reservations.
We also agree with the district court that the federal reserved
water rights doctrine might apply upstream and downstream
from reservations in some circumstances, were there a
particularized enforcement action for that quantity of water
needed to preserve subsistence use in a given reservation,
where such use is a primary purpose for which the reservation
was established. But the abstract claim that all upstream and
downstream waters are necessary for all the federal
reservations in the 1999 Rules cannot withstand ANILCA’s
text or history, the joint decision of the two cabinet
secretaries to whom administration of the complex statute has
been delegated, our decisions in Katie John I and Katie John
II, or the facts established in this litigation.
158
New Mexico, 438 U.S. at 702.
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 59
4. Alaska Native Allotments
The Alaska Native Allotment Act of 1906159 authorized
the Secretary of the Interior to allot “to any Indian, Aleut, or
Eskimo” a 160-acre allotment of unsurveyed or otherwise
unappropriated land upon proof of “substantially continuous
use and occupancy” of the land for five years.160 The Alaska
Native Claims Settlement Act of 1971161 repealed the 1906
Act but did not extinguish existing allotments or allotments
under application at the time of the repeal.162 Alaska Natives
who have been granted allotments own the lands conveyed to
them in restricted fee. The allotments are non-taxable unless
authorized by Congress, and they cannot be conveyed without
approval from the Secretary of the Interior.163
The Secretaries did not include within “public lands” the
waters appurtenant to Alaska Native allotments falling
outside the land units listed in the 1999 Rules.164 Rather, the
159
Pub. L. 59-171, 34 Stat. 197 (1906, as amended) (codified at
43 U.S.C. §§ 270-1 through 270-3 (1970)). The original Act did not
include Aleuts, or require five years of substantially continuous use.
160
Id.161
Pub. L. 92-203, 85 Stat. 688 (1971, as amended) (codified at
43 U.S.C. §§ 1601–1629h).
162
43 U.S.C. § 1617(a).
163
43 C.F.R. § 2561.3 (2006).
164
Some allotments granted pursuant to the Alaska Native Allotment Act
are within the boundaries of the conservation system units and forest
reserves identified in the 1999 Rules. See 64 Fed. Reg. at 1,279. These
allotments are already subject to ANILCA’s rural subsistence priority. Id.
60 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
1999 Rules delegate to the Federal Subsistence Board the
authority to
[i]dentify, in appropriate specific instances,
whether there exists additional Federal
reservations, Federal reserved water rights or
other Federal interests in lands or waters,
including those in which the United States
holds less than a fee ownership, to which the
Federal subsistence priority attaches, and
make appropriate recommendation to the
Secretaries for inclusion of those interests
within the Federal Subsistence Management
Program.165
Thus, the Federal Subsistence Board has the authority to
make recommendations to the Secretaries for additions, if
necessary, to the waters that are “public lands” by virtue of
the federal reserved water rights doctrine, including waters
appurtenant to the Alaska Native allotments.
The Secretaries concede that the United States has
consistently asserted an interest in Native American
allotments by virtue of their restricted fee status. The
Secretaries also recognize that, typically, “allotments of
Indian reservations to individual Indians, as well as the
transfer of these allotments to non-Indians, have been found
to carry with them a share of the reservation’s [federal
reserved water rights] pursuant to section 7 of the General
165
Id. at 1,290 (codified at 36 C.F.R. § 242.10(d)(4)(xix) and 50 C.F.R.
§ 100.10(d)(4)(xix)).
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 61
Allotment Act, 25 U.S.C. § 381.”166 Although the Secretaries
do not take the position that federal reserved water rights do
not or cannot reach the waters appurtenant to Alaska Native
allotments, they argue that the allotments are “unique” and
that the “complex legal issues surrounding the question” led
them to conclude that identification of which waters
appurtenant to these allotments should be included within
“public lands” was best done on a case-by-case basis.
The State argues that the Alaska Native allotments do not
give rise to federal reserved water rights at all. The State
reasons that, “[u]nlike the allotments [created under the
General Allotment Act], Alaska Native allotments are not
derived from a previous Indian reservation and, therefore,
cannot succeed to any Winters water rights associated with an
Indian reservation.” In other words, federal reserved water
rights emerge only out of federal reservations; they do not
attach to Alaska Native allotments created from the public
domain.
For their part, the Katie John plaintiffs challenge the
Secretaries’ decision not to categorically designate as “public
lands” subject to ANILCA’s rural subsistence priority the
waters appurtenant to all Alaska Native allotments. The
Katie John plaintiffs argue that the United States has an
interest in the allotments by virtue of their restricted fee
status, and that water is necessary to carry out the subsistence
purposes for which these allotments were created.
166
See, e.g., United States v. Powers, 305 U.S. 527, 532 (1939); Walton,
647 F.2d at 50 (“It is settled that Indian allottees have a right to use
reserved water.”)
62 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
We need not decide whether Alaska Native allotments
can give rise to federal reserved water rights. The Secretaries
reasonably decided to resolve this difficult issue on a case-by-
case basis. We uphold the 1999 Rules, and affirm the district
court’s conclusion that it was “lawful and reasonable” for the
Secretaries to delegate authority to the Federal Subsistence
Board to decide which Native allotments falling outside of
federal reservations, if any, give rise to federal reserved water
rights which justify imposing ANILCA’s rural subsistence
priority on appurtenant waters.
Determining which waters within or appurtenant to each
allotment may be necessary to fulfill the allotment’s needs is
a complicated and fact-intensive endeavor that is best left in
the first instance to the Secretaries, not the courts. We are
mindful that Katie John I expresses the hope that the federal
agencies will “determine promptly which navigable waters
are public lands subject to federal subsistence
management,”167 and that the parties to this litigation have an
interest in a final determination of how the Secretaries will
manage ANILCA’s rural subsistence priority. Accordingly,
while we defer to the Secretaries’ determination in the 1999
Rules regarding how best to identify federal reserved water
rights for Alaska Native settlement allotments, we encourage
them to undertake that process in a reasonably efficient
manner.
5. Selected-but-not-yet-conveyed lands
The final disputed issue is not about water rights, but
rather about certain lands on which the Secretaries have
chosen to apply ANILCA’s rural subsistence priority. These
167
Katie John I, 72 F.3d at 704.
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 63
lands—known as “selected-but-not-yet-conveyed” lands—are
federal lands that have been selected by the State or an
Alaska Native corporation for conveyance, but have not yet
been formally conveyed from the United States to Alaska or
the corporation.
Section 102 of ANILCA expressly excludes selected-but-
not-yet-conveyed lands from the definition of “public
lands.”168 For this reason the State argues that the
Secretaries’ decision to administer them according to the
rural subsistence priority was unlawful. But it is not so
simple. Section 906(o)(2) of ANILCA, located in Title IX of
the statute, provides a competing directive: “Until conveyed,
all Federal lands within the boundaries of a conservation
system unit, National Recreation Area, National Conservation
Area, new national forest or forest addition, shall be
administered in accordance with the laws applicable to such
unit.”169 Because ANILCA does not define “Federal land” for
purposes of § 906(o)(2),170 we give that term its ordinary
168
16 U.S.C. § 3102(3)(A) (excluding from the definition of public lands
“land selections of the State of Alaska which have been tentatively
approved or validly selected under the Alaska Statehood Act and lands
which have been confirmed to, validly selected by, or granted to the
Territory of Alaska or the State under any other provision of Federal
law”); id. § 3102(3)(B) (excluding from the definition of public lands
“land selections of a Native Corporation made under the Alaska Native
Claims Settlement Act [43 U.S.C.A. § 1601 et seq.] which have not been
conveyed to a Native Corporation, unless any such selection is determined
to be invalid or is relinquished”).
169
43 U.S.C. § 1635(o)(2).
170
16 U.S.C. § 3102 states that “in titles IX and XIV the following terms
shall have the same meaning as they have in the Alaska Native Claims
Settlement Act, and the Alaska Statehood Act.” W e are not aware of any
64 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
meaning, i.e., “[l]and owned by the United States
government.”171 The record in this case shows that title to
selected-but-not-yet-conveyed lands remains with the United
States.
Accordingly, in administering ANILCA’s rural
subsistence priority, the Secretaries faced inconsistent
obligations. On one hand, selected-but-not-yet-conveyed
lands are not “public lands” subject to the rural subsistence
priority. On the other hand, these lands are “Federal lands,”
which, under § 906(o)(2), “shall be administered in
accordance with the laws applicable to” the federal
reservation that they are within. ANILCA therefore is
ambiguous regarding whether selected-but-not-yet-conveyed
lands “within the boundaries of a conservation system unit,
National Recreation Area, National Conservation Area, new
national forest or forest addition” are subject to rural
subsistence priority management, and we must decide
whether the Secretaries’ decision—that they are so
subject—is a permissible interpretation of the statute.172
definition of “Federal land” in the Alaska Native Claims Settlement Act,
see 43 U.S.C. § 1602, or the Alaska Statehood Act, see Pub. L. 85-508,
72 Stat. 339 (1958).
171
Black’s Law Dictionary 893 (8th ed. 2004).
172
Chevron, 467 U .S. at 842–43. The district court, in upholding the
Secretaries’ decision to apply ANILCA’s subsistence priority to selected-
but-not-yet-conveyed lands, reasoned that the provision in ANILCA
§ 804, 16 U.S.C. § 3114, that the subsistence priority applies “[e]xcept as
otherwise provided in this Act and other Federal laws” cures any conflict
between §§ 102 and 906, and supports the Secretaries’ decision to apply
the priority to selected-but-not-yet-conveyed lands. W e are not so
sanguine. Read in the context of § 804, “[e]xcept as otherwise provided”
is most naturally read to limit the application of the rural subsistence
J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND 65
The Secretaries argue that they resolved this inherent
conflict in favor of § 906(o)(2) because to do otherwise
would make all laws except Title VIII of ANILCA applicable
to the selected-but-not-yet-conveyed lands within the
boundaries of the conservation system units. Admittedly, by
resolving the conflict in this manner, the Secretaries are
extending rural subsistence priority beyond “public lands.”
But their position is reasonable. To hold that the selected-
but-not-yet-conveyed lands are subject to the same laws as
the surrounding areas except rural subsistence priority
management would require the Secretaries to carve out small
geographic sections from the larger federal land units and
then administer the rural subsistence priority on all lands but
these sections. Such a regime would be unmanageable and
contrary to the intent of § 906(o)(2). Furthermore, because
the title to the selected-but-not-yet-conveyed land remains
with the United States, there is no practical reason to exclude
these lands from federal rural subsistence priority
management before they are formally conveyed to the State
or a Native corporation. For these reasons, the Secretaries’
reconciliation of conflicting provisions in favor of
§ 906(o)(2) was a permissible construction of an ambiguous
statute.
CONCLUSION
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
priority, indicating that there may be instances in which even “public
lands” are not subject to subsistence management.
66 J OHN V . A LASKA F ISH & W ILDLIFE C ONSERVATION F UND
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.
AFFIRMED.