Gorlin–Goltz Syndrome: A Rare Case Report of a 11-Year-Old ...
Case: 09-36122 08/20/2010 Page: 1 of 82 ID: 7447177 ...Washington, D.C. 20240 ANDREW C. MERGEN...
Transcript of Case: 09-36122 08/20/2010 Page: 1 of 82 ID: 7447177 ...Washington, D.C. 20240 ANDREW C. MERGEN...
Nos. 09-36122, 09-37125, 09-36127
UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
______________
KATIE JOHN, CHARLES ERHART, ALASKA INTER-TRIBAL COUNCIL, and VILLAGE OF TANANA,
Plaintiffs-Appellantsv.
UNITED STATES OF AMERICA, TOM VILSACK and KENNETH SALAZARDefendants-Appellees
and
STATE OF ALASKAIntervenor Defendant-Appellee
_____________________
STATE OF ALASKA, Plaintiff-Appellant
andALASKA FISH AND WILDLIFE CONSERVATION FUND,
ALASKA FISH and WILDLIFE FEDERATION and OUTDOOR COUNCIL, JOHN CONRAD and MICHAEL TURNER
Intervenor-Plaintiffs-Appellantsv.
UNITED STATES OF AMERICA, TOM VILSACK and KENNETH SALAZARDefendants-Appellees
andKATIE JOHN, CHARLES ERHART,
ALASKA INTER-TRIBAL COUNCIL, and VILLAGE OF TANANA,Intervenor-Defendants-Appellees
andALASKA FEDERATION OF NATIVES
Intervenor-Defendant-Appellee________________________
ANSWERING BRIEF FOR THE FEDERAL APPELLEES______________________
Of counsel: IGNACIA S. MORENOJASON R. HARTZ Assistant Attorney GeneralOffice of the SolicitorU.S. Dept of the Interior DEAN K. DUNSMOREWashington, D.C. 20240 ANDREW C. MERGEN
ELIZABETH ANN PETERSONKEITH A. GOLTZ Attorneys Office of the Regional Solicitor Environment & Natural Res. Div.U.s. Dep’t of the Interior U.S. Dept. of JusticeAnchorage, AK 99508 P.O. Box 23795, L’Enfant Station
Washington, D.C. 20026JAMES J.USTASIEWSKI (202) 514-3888Office of the General CounselU.S. Dep’t of AgricultureJuneau, AK 99802
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TABLE OF CONTENTSPage
JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. The statutory framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. The Alaska v. Babbitt litigation . . . . . . . . . . . . . . . . . . . . . . . 8
C. The litigation below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1. Katie John’s Challenge . . . . . . . . . . . . . . . . . . . . . . . . 13
2. The State’s Challenge . . . . . . . . . . . . . . . . . . . . . . . . . 14
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
I. The District Court Correctly Concluded That the 1999Regulations Are Entitled to Substantial Deference . . . . . . 21
II. The 1999 Regulations Do Not Displace Any “Traditional”Method of Identifying Waters in Which the United StatesHolds Reserved Water Rights . . . . . . . . . . . . . . . . . . . . . . . 26
A. No “Established Adjudication Process” Exists forDetermining Which of the Navigable Waters in Alaska
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Are “Public Lands” by Virtue of the Existence ofFederal Reserved Water Rights . . . . . . . . . . . . . . . . . 29
B. The Regulations Do Not Affect State RegulatoryAuthority over Water Resources . . . . . . . . . . . . . . . . . 35
III. The Secretaries Reasonably Concluded That the WatersUpstream and Downstream from Federal Reserves Are Not“Public Lands” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
IV. The Secretaries Reasonably Concluded That the Existence ofWater Rights Appurtenant to Alaska Native Allotmentsmust Be Determined on a Case-by-case Basis . . . . . . . . . . 41
V. The District Court Correctly Rejected the State’s ClaimsRegarding “Extraterritorial Application” of the SubsistencePriority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
A. The Secretaries Reasonably Treated as “Public Lands”the Water Bodies in Which the United States OwnsFRWRs where those waters are Within or Adjacent toFederal Reservations . . . . . . . . . . . . . . . . . . . . . . . . . . 49
B. The Record Supports the Determination That SixmileLake Should Be Managed as “Public Lands” . . . . . . . 51
C. The Secretaries Properly Determined That Seven Juneau Area Streams Are Public Lands . . . . . . . . . . 53
D. The District Court Correctly Affirmed the SecretariesAdoption of the “Headland-to-headland Methodologyfor Determining the Boundary Between Rivers and theSea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
E. The Secretaries’ Determination That All WatersWithin CSUs and National Forests Are Public LandsWas Reasonable and Supported on the Record . . . . . 60
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F. The Secretaries Correctly Identified Waters OnSelected But Not Yet Conveyed Lands as Public LandsSubject To The Title VIII Priority . . . . . . . . . . . . . . . 64
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . 69
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
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TABLE OF AUTHORITIESCases: Page
Arizona v. California, 376 U.S. 340 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Akootchook v. U.S., 271 F.3d 1160 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . 24,44
Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995) . 3,4,7,9,10,22,23,25,29,36,37,39,42,43,59
Alaska. See United States v. Atlantic Richfield Co., 435 F. Supp. 1009 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Cappaert v. United States, 426 U.S. 128 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33,41
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,26
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Dugan v. Rank, 372 U.S. 609 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Skeem v. United States, 273 F. 93 (9th Cir. 1921) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Harris v. Elliott, 10 Pet. 25 (1836) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Humphries v. McKissock,
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140 U.S. 304 (1891) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Jackson v. Hathaway, 15 Johns. 447 (1818) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Ka Makani ‘O Kohala Ghana Inc. v. Water Supply, 295 F.3d 955 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Katie John v. United States (“Katie John II”), 247 F.3d 1032 (9th Cir. 2001) (en banc) . . . . . . . . . . . . . . . . . . . . . 4
Kenaitze Indian Tribe v. State of Alaska, 860 F.2d 312 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,22
Kleppe v. New Mexico, 426 U.S. 529 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Linthicum v. Ray, 9 Wall. 241 (1891) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Miles v. Apex Marine Corp., 498 U.S. 19 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
National Cable & Telecommunications Ass'n v. Brand X InternetServices, 545 U.S. 967 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
National R.R. Passenger Corp. v. Boston Marine Corp., 503 U.S. 407 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
NationsBank of N. C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Ninilchik Traditional Council v. United States, 227 F.3d 1186 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . 20,23
Pacific Coast Fed'n of Fishermen's Ass'ns v. National Marine FisheriesService, 265 F.3d 1028 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . 21
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Pacific Gas and Electric Co. v. FERC, 746 F.2d 1383 (9th Cir.1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Pence v. Kleppe, 529 F.2d 135 (9th Cir. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Shields v. United States, 504 F. Supp. 1216 (D. Alaska 1981) aff'd, 698 F.2d 987 (9th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . 45
Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Sierra Club v. Watt, 659 F.2d 203 (D.C. Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Smiley v. Citibank, 517 U.S. 735 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
State of Alaska v. Lyng, 797 F.2d 1479 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Tulkisarmute Native Community Council v. Heinze, 898 P.2d 935 (Alaska 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
United States v. Adair, 723 F.2d 1394 (9th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
United States ex rel. Ray v. Hibner, 27 F.2d 909 (D. Idaho 1928) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
United States v. Ahtanum Irrigation Dist., 236 F.2d 321 (9th Cir. 1956) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
United States v. Hoflin, 880 F.2d 1033 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
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United States v. Mead Corp., 533 U.S. 218 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
United States v. New Mexico, 438 U.S. 696 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,31,56
United States v. Oregon, 44 F.3d 758 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
United States v. Powers, 305 U.S. 527 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
United States v. Preston, 352 F.2d 352 (9th Cir. 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690 (1899) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Williams v. Babbitt, 115 F.3d 657 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Winters v. United States, 207 U.S. 564 (1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,31,33,50
STATUTES:
Act of February 8,1887, ch. 119, 24 Stat. 388 . . . . . . . . . . . . . . . . . . . . 44
Act of May 17, 1906 ch. 2469, 34 Stat. 197 . . . . . . . . . . . . . . . . . . . . . . 44
Act of August 2, 1956, Pub. L. No. 931, 70 Stat. 954 . . . . . . . . . . . . . . 44
Act of April 26, 1996, Pub. L. No. 104-134, 1996 U.S. Code Cong. & Admin. News (110 Stat.) 1321 . . . . . . . 10
Act of September 30, 1996, Pub. L. No. 104-208,
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1996 U.S. Code Cong.& Admin. News (110 Stat.) 3009 . . . . . . . . 10
Act of November 14, 1997, Pub. L. No. 105-83, 1998 U.S. Code Cong. & Admin. News 111 Stat. 1543 . . . . . . . . . . 10,11
Administrative Procedure Act5 U.S.C. 706(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Alaska National Interest Lands Conservation Act (“ANILCA”)
16 U.S.C. § 410hh(7)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5516 U.S.C. § 410hh(7)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5316 U.S.C. § 3102(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 716 U.S.C. § 3102(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1116 U.S.C. § 3103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60,6116 U.S.C. § 3103(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54,5816 U.S.C. § 3103(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6216 U.S.C. § 3111(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 616 U.S.C. § 3111(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 616 U.S.C. § 3113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 616 U.S.C. § 3114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,3,616 U.S.C. § 3115(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 716 U.S.C. § 3124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3916 U.S.C. § 3207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3743 U.S.C. § 1634(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4643 U.S.C. § 1635 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6643 U.S.C. § 1635(f)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6843 U.S.C. § 1635(o) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6643 U.S.C. § 1635(o)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Alaska Native Claims Settlement Act (“ANCSA”)
43 U.S.C. § 1618(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Alaska Native Allotment Act43 U.S.C. § 270-1 thru 270-3 (1970) . . . . . . . . . . . . . . . . . . . . . . . 44,45,4743 U.S.C. § 270-2 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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43 U.S.C. § 270-3 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Forest Service Organic Act, Act of June 4, 1897, Ch. 2, 30 Stat. 11,34-36, codified as amended 16 U.S.C. § 473 et seq., . . . . . . . . . . . . . . . 56
General Allotment Act25 U.S.C. § 381 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
McCarran Amendment, 43 U.S.C. § 666 . . . . . . . . . . . . . . . . . . . . . . . . 36
Omnibus Consolidated Appropriations Act of October 21, 1998, Pub. L.No. 105-277, 1999 U.S. Code Cong. & Admin. News 112 Stat. 2681 . . 10
28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RULES and REGULATIONS:
36 C.F.R. § 242.3(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
43 C.F.R. § 2561.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
50 C.F.R. 100.3(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,9,59
50 C.F.R. § 100.3(b) (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,40,41
50 C.F.R. § 100.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
55 Fed. Reg. 27,114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
57 Fed. Reg. 22,940 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
57 Fed. Reg. at 45220 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
48 Fed. Reg. 7890, 7994 (February 24, 1983) . . . . . . . . . . . . . . . . . . . . 61
62 Fed. Reg. 66,216, 66,222-223 (December 17, 1997) . . . . . . . . . . . . . 11
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64 Fed. Reg. 1276, 1279 (January 8, 1999) . . . . . . . . . 11,12,40,43,44,64
70 Fed. Reg. 76400, 76401 (December 27, 2005) . . . . . . . . . . . . . . . 58,63
70 Fed. Reg. 76400, 76403 (December 27, 2005) . . . . . . . . . . . . . . . 56,63
70 Fed. Reg. 76400-08 (December 27, 2005) . . . . . . . . . . . . . . . . . . . . . 13
70 Fed. Reg. 76401, 76403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
70 Fed. Reg. 76407 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
70 Fed. Reg. 76402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59,60
OTHER AUTHORITIES
Clesson S. Kinney, Law of Irrigation and Water Rights, § 1011 . . . . . 31
Waters and Water Rights( Robert E. Beck, 1991 ed.) § 15.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
§ 37.01-.02(f)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Shalowitz, Aaron L., Shore and Sea Boundaries, vol. 1, U.S. Dept. OfCommerce (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Reed, Michael, Shore and Sea Boundaries, vol. 3, U.S. Dept. OfCommerce (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
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1/ The Court’s order also addressed claims in Lincoln Peratrovich v. UnitedStates and State of Alaska, No. 3:92-cv-0734, but it did not enter finaljudgment in that case.
1
JURISDICTIONAL STATEMENT
The district court had jurisdiction pursuant to 28 U.S.C. 1331. It
entered final judgment as to the appellants’ claims1/ on October 22, 2009.
Timely appeals were filed on December 18, 2009, and December 21, 2009.
This Court has jurisdiction over these consolidated appeals pursuant to 28
U.S.C. 1291.
ISSUES PRESENTED
Title VIII of the Alaska National Interest Lands Conservation Act
(“ANILCA”), 16 U.S.C. 3114, accords a priority for the taking of fish and
wildlife on public lands by rural Alaska residents for nonwasteful
subsistence purposes. The Secretaries of the Interior and Agriculture
(“Secretaries”) are charged with implementing this priority through
regulations. This Court previously affirmed the Secretaries’ interpretation
of “public lands” as defined by Title VIII, which includes navigable waters
in which the United States has an interest by virtue of the reserved water
rights doctrine. These appeals concern the Secretaries’ amendment of
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2
their regulations implementing Title VIII to incorporate that
interpretation of “public lands” and to identify those waters. The issues
are:
1. Whether the 1999 regulations containing the Secretaries’
interpretations of ANILCA and other statutes that reserved federal lands
in Alaska, with respect to whether water rights appurtenant to the federal
lands reserved by those statutes constitute “public lands” subject to Title
VIII of ANILCA, are entitled to Chevron deference.
2. Whether the Secretaries acted within the broad grant of
regulatory authority in ANILCA Title VIII in promulgating regulations
identifying the navigable waters that are “public lands” subject to the
subsistence use priority by virtue of the United States’ interest in reserved
water rights.
3. Whether the district court correctly concluded that the Secretaries
were not required to identify as “public lands” subject to the ANILCA Title
VIII priority waters upstream and downstream from areas in which the
United States holds reserved rights in waters adjacent to federal lands.
4. Whether the district court correctly concluded that the Secretaries
were not required to identify waters appurtenant to allotments granted
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3
under the Alaska Native Allotment Act as “public lands” subject to the
ANILCA Title VIII priority .
5. Whether the Secretaries’ determinations that the United States
owns reserved water rights in various specific bodies of water in Alaska
were consistent with ANILCA and were otherwise lawful, reasonable, and
supported by substantial evidence in the administrative record.
STATEMENT OF THE CASE
In 1995, this Court rejected challenges by the State of Alaska, Katie
John, and others to the Secretaries’ interpretation of ANILCA sections 102
and 804, which established the scope of a statutory priority for the benefit
of rural Alaska residents. Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995).
ANILCA provides that rural Alaska residents shall be accorded a priority
for the taking of subsistence resources on “public lands.” 16 U.S.C. 3114.
In Alaska v. Babbitt, this Court affirmed the Secretaries’ conclusion that
the statutory definition of “public lands” in ANILCA Title VIII includes
waters in which the United States holds reserved rights pursuant to the
federal reserved water rights doctrine. 72 F.3d at 704. This Court further
held that the federal agencies charged with administering the priority are
responsible for identifying the waters in which the federal priority is to be
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2/ Appellants Katie John, Charles Erhart, the Alaska Inter-Tribal Council,and the Village of Tanana are referred to collectively as “Katie John” inthis brief. The plaintiffs in the eariler Katie John II litigation were KatieJohn, Doris Charles and the Mentasta Village Council.
4
accorded to rural Alaska residents, and remanded the matter to the
agencies. Ibid.
Following the remand, the Secretaries of the Interior and Agriculture
amended their regulations to extend the priority to navigable waters in
which the United States holds a reserved water right. After the revised
regulations became effective, the district court issued a final judgment
dismissing the cases underlying the earlier appeals. Alaska appealed that
judgment on the ground that the definition of “public lands” adopted in the
regulations was an unauthorized intrusion into state sovereignty, and this
Court, sitting en banc, affirmed the earlier panel’s ruling that the agencies’
interpretation was reasonable and entitled to Chevron deference. Katie
John v. United States, 247 F.3d 1032 (9th Cir. 2001) (en banc) (Katie John
II).
In these consolidated appeals, both the State and Katie John2/
challenge the regulations identifying the waters that are “public lands” for
purposes of the ANILCA subsistence priority. Both contend that the
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5
district court improperly accorded deference to the agencies’ regulations.
The State asserts that the federal reserved water rights doctrine dictates
a particular judicial process for determining the existence of federal
reserved rights. It contends that the agencies therefore were precluded
from identifying the waters in which such rights are held through the
promulgation of regulations. The State further contends that the
regulations identify as “public lands” certain waters that are beyond the
reach of the federal reserved water rights doctrine. Katie John, on the
other hand, challenges the regulations on the ground that they failed to
identify as “public lands” certain categories of waters in which Katie John
asserts the United States holds interests pursuant to the federal reserved
water rights doctrine. The district court held that the regulations
reasonably identified the navigable waters that are within the statutory
definition of “public lands,” and were otherwise lawful, reasonable and
consistent with this Court’s rulings in Alaska v. Babbitt and Katie John II.
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3/ “Subsistence use” is defined in 16 U.S.C. 3113 to mean “customary andtraditional uses by rural Alaska residents of wild, renewable resources fordirect personal or family consumption as food, shelter, fuel, clothing, tools,or transportation; for the making and selling of handicraft articles out ofnonedible byproducts of fish and wildlife resources taken for personal orfamily consumption; for barter, or sharing for personal or familyconsumption; and for customary trade.”
6
STATEMENT OF FACTS
A. The statutory framework. – When Congress enacted ANILCA, it
found that “the national interest in the proper regulation, protection and
conservation of fish and wildlife on the public lands in Alaska and the
continuation of the opportunity for a subsistence way of life by residents
of rural Alaska require that an administrative structure be established for
the purpose of enabling rural residents * * * to have a meaningful role in
the management of fish and wildlife and of subsistence uses on the public
lands in Alaska.” 16 U.S.C. 3111(5). It therefore invoked “its
constitutional authority over Native affairs and its constitutional authority
under the property clause and the commerce clause” to establish such a
structure. 16 U.S.C. 3111(4). The cornerstone of the subsistence title is
the provision in section 804, 16 U.S.C. 3114, of a priority for subsistence
uses3/ by rural Alaska residents over other uses of wild, renewable
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7
resources on federal “public lands.” Section 804 also provides criteria for
implementing the priority when it is necessary to restrict the taking of
populations of fish and wildlife on the public lands for subsistence uses.
The Title VIII priority applies on “public lands,” a term that is
defined in section 102(3) of the statute to mean “land situated in Alaska
which * * * are Federal lands.” 16 U.S.C. 3102(3). Section 102(2) defines
“Federal land” to mean lands the title to which is in the United States, and
states that “‘land’ means lands, waters, and interests therein, the title to
which is in the United States.” ANILCA established a cooperative
federalism scheme, providing that the federal management program would
be withheld if the State enacted conforming legislation. 16 U.S.C. 3115(d).
Alaska’s efforts to do so are described in detail in this Court’s opinion in
Kenaitze Indian Tribe v. State of Alaska,, 860 F.2d 312, 314 (9th Cir. 1988),
and Alaska v. Babbitt, 72 F.3d at 700-01.
ANILCA expressly reserves the priority for “rural” Alaska residents,
and – because the State constitution prohibits legislation that makes such
distinctions based on residency – the State has not succeeded in enacting
conforming legislation. The Secretaries therefore issued temporary
regulations implementing Title VIII in 1990 (55 Fed. Reg. 27,114), which
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8
were replaced by final regulations on May 29, 1992 (57 Fed. Reg. 22,940).
The regulations provided that the rural priority would be accorded on “all
public lands including all non-navigable waters located on these lands.”
50 C.F.R. 100.3(b).
B. The Alaska v. Babbitt litigation. – On December 5, 1990, a group
of Alaska Natives (“Katie John”) sued to challenge the federal subsistence
regulations on the ground that “public lands” should include all navigable
waterways in Alaska and to enjoin enforcement of State subsistence laws
on certain waterways. The State also sued, arguing that ANILCA did not
authorize federal management of the subsistence priority. The State also
intervened in Katie John’s suit to assert that the interpretation of “public
lands,” in the regulations was too broad. The cases were consolidated.
While the case was pending in district court, the United States
announced a revised interpretation of “public lands” in response to a
petition for rulemaking filed on behalf of Katie John and other Alaska
Natives. The agencies’ revised interpretation of “public lands” broadened
the existing regulatory definition to include navigable waters in which the
United States holds a reserved water right. The district court rejected
both the original regulatory interpretation and the agencies’ revised
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9
interpretation, and ruled that “public lands” included all navigable waters
in Alaska. It certified its ruling for interlocutory review, and this Court
granted permission for appeals by both the Secretaries and the State of
Alaska. The agencies withheld administrative action to implement the
priority pending this Court’s review.
This Court concluded that the definition published in the 1992
regulations was inconsistent with the statute’s purposes, but that the
revised interpretation, which included certain waters in which the United
States holds reserved rights, was reasonable. Alaska v. Babbitt, supra, 72
F.3d at 704. It held that there is “no doubt” (id. at 702) that the priority
was intended to be applied on some navigable waters, but that ANILCA
does not support the “complete assertion of federal control” that would
result if “public lands” were interpreted as encompassing all navigable
waters. It remanded the case. Id. at 704. In its ruling, however, this Court
expressed the view that action by either the Alaska legislature or the
United States Congress was needed for a fully satisfactory resolution to
the problems the agencies had encountered in attempting to implement
the statute.
Following this Court’s 1995 ruling, Congress prohibited further
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4/ Act of April 26, 1996, Pub. L. No. 104-134, 1996 U.S. Code Cong. &Admin. News (110 Stat.) 1321, 1321-210; Act of September 30, 1996, Pub.L. No. 104-208, 1996 U.S. Code Cong. & Admin. News (110 Stat.) 3009,3009-222; Act of November 14, 1997, Pub. L. No. 105-83, 1998 U.S. CodeCong. & Admin. News (111 Stat.) 1543, 1592; Omnibus ConsolidatedAppropriations Act of October 21, 1998, Pub. L. No. 105-277, 1999 U.S.Code Cong. & Admin. News 112 Stat. 2681.
10
action by the agencies to implement the subsistence program in navigable
waters through a series of restrictions on their appropriations.4/ Finally,
in 1997, Congress adopted amendments to Title VIII of ANILCA, “only for
the purposes of determining whether the State’s laws provide for [the]
definition, preference and participation” required by ANILCA sections 803,
804 and 805. Act of November 14, 1997, Pub.L. 105-83. The legislation
provided that “[i]f the Secretary could not “certify before December 1, 1998
[that] such laws have been adopted in the State of Alaska [the
amendments] shall be repealed on such date.” Pub. L. 105-83, 111 Stat.
1543, 1593-94. The amendments accordingly lapsed on December 1, 1998,
because the State had failed to enact legislation.
Meanwhile, the agencies had published proposed regulations (62 Fed.
Reg. 66,216, 66,222-223 (Dec. 17, 1997)); and on January 8, 1999, the
Secretaries published final regulations amending the definition of “public
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5/ Conservation system units (“CSUs”) are defined in 16 U.S.C. 3102(4) toinclude any unit in Alaska of the National Park System, National WildlifeRefuge System, National Wild and Scenic Rivers Systems, National TrailsSystem, National Wilderness Preservation System, or a National ForestMonument.
11
lands,” and identifying the navigable waters that are “public lands” as that
term was interpreted in Alaska v. Babbitt. 64 Fed. Reg. 1276. These
regulations also specified that the Secretaries retain authority to eliminate
activities occurring off the public lands when those activities interfere with
subsistence uses on public lands, and to extend the priority to lands within
the boundaries of conservation system units5/ that have been selected by,
but not yet conveyed to, the State of Alaska or an Alaska Native
Corporation. Ibid.
Following publication of the regulations, Alaska renewed its general
challenge to the interpretation of “public lands,” that had previously been
affirmed by this Court, arguing that ANILCA lacked a “clear statement”
of intent to diminish Alaska’s sovereign authority over waters and fishing
and therefore did not authorize federal subsistence management. The
State urged this Court to reinstate the interpretation in the agencies’
original regulations. See Katie John II, supra. This Court, sitting en banc,
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6/ The Secretaries have since published amendments to the January 1999final rule, following notice and comment, (70 Fed. Reg. 76400-08(December 27, 2005)) to “revise[] and clarif[y] the jurisdiction of theFederal Subsistence Management Program for certain coastal areas inAlaska. The 2005 rule clarified that the United States did not claimreserve”d water rights in marine waters. Id. at 76401, 76403, and thatmarine waters are “public lands” only if they are above submerged landsthat were reserved to the United States at the time of Alaska statehood.Id. at 76402, 76403.
The preamble to the 2005 rule also sets forth an extensive list ofmarine waters within certain wildlife refuges that are excluded from thejurisdiction of the Federal Subsistence Management Program. Id. at
(continued...)
12
rejected the State’s arguments and reaffirmed the Secretaries’ revised
interpretation in a per curiam decision. Id.
C. The litigation below – In the 1999 regulations, the Secretaries
amended the regulatory definition of “public lands” to include navigable
waters “where the Federal Government holds a reserved water right or
holds title to the waters or submerged lands.” 64 Fed. Reg. 1276, 1279
(January 8, 1999). The regulations listed the affected conservation system
units and national forests in Alaska and provided that amended
regulations would apply on all public lands, including the inland waters
within and adjacent to the listed areas. Id. at 1286-87, codified at 36
C.F.R. § 242.3(b), 50 C.F.R. § 100.3(b) (2005).6/
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6/(...continued)76404-05. The 2005 final rule acknowledged that the determination ofwaters to be managed as “public lands” remains subject to change. Id. at76408, section ___.3(e).
7/ This brief responds to the opening briefs of Katie John (KJ Br.) and the(continued...)
13
1. Katie John’s Challenge – On January 7, 2005, Katie John filed a
complaint alleging that the regulations failed to include as “public lands”
certain navigable waters appurtenant to lands in which the United States
holds “interests” that include reserved water rights. Katie John alleged
that waters located upstream and downstream of the listed CSUs and
forest reserves were necessary to the purposes for which the lands were
reserved, and therefore were “public lands.” (KJ ER 269-288). Katie John
further contended that rights in waters appurtenant to allotments selected
pursuant to the Alaska Native Allotment Act of 1906 were intended to be
included in all such allotments, and that the United States holds
substantial “interests” in such allotments. The federal “interests” in the
allotments, combined with the reservation of rights for each such
allotment, according to the Katie John plaintiffs, compelled the agencies
to designate waters appurtenant to Native allotments categorically as
“public lands.” (See KJ ER 284-85).7/
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7/(...continued)State of Alaska (AK Br.). We refer to the excerpts of record filed withthose brief as “KJ ER [page number]” and “AK ER [page number],”respectively.
14
2. The State’s Challenge – On January 6, 2005, the State filed suit
in the District of Columbia challenging the regulations (See Complaint,
U.S. Supplemental Excerpt of Record 39 (“SER 39”). It alleged that the
Secretaries’ exceeded their authority in promulgating regulations to
identify the waters that were “public lands.” In July 2005, the State’s
lawsuit was transferred to federal district court in Alaska and consolidated
with that of the Katie John plaintiffs. (KJ ER 292). The State additionally
intervened in the Katie John case to challenge the regulations identifying
navigable waters as “public lands” on the ground that they exceeded
federal authority and constituted an invalid intrusion into state
sovereignty (CR 195, 197; see KJ ER 317-18).
In the district court, the parties first addressed the State’s challenge
to the use of rulemaking as the mechanism for identifying the navigable
waters included as “public lands” in the ANILCA definition. Following the
district court’s ruling on the rulemaking question (KJ ER 119), the parties
cross-moved for summary judgment on their claims regarding the
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15
substance of the regulations. In that regard, the district court requested
(CR 130 see KJ ER 310) that arguments be presented in the context of
“test case waterways.”
On the merits, the parties raised essentially the same issues that
were addressed by this Court in Alaska v. Babbitt and Katie John II, now
in the context of the amended regulations. The State again sought to
invalidate the regulations on the grounds that they were unauthorized and
intruded into State sovereign interests, while Katie John argued that the
regulations should have interpreted “public lands” to encompass
essentially all inland navigable waterways in Alaska. The district court
rejected the challenges, holding that the regulations were authorized,
lawful, reasonable, and consistent with Alaska v. Babbitt. These appeals
followed.
SUMMARY OF ARGUMENT
The district court correctly rejected the appellants’ challenges. As an
interpretation of a federal statute by the agencies charged with its
administration, the regulations are entitled to substantial deference. This
Court previously considered broad-based challenges to the regulatory
definition now contained in the regulations and twice affirmed that
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16
interpretation as reasonable and consistent with the statute. In those
decisions this Court concluded that ANILCA contains a clear statement of
intent to displace state regulatory authority to the extent of assuring the
priority for taking of subsistence resources on “public lands” as defined in
the regulations. The regulations challenged here do nothing to expand the
definition that was affirmed in those decisions.
Contrary to the State’s contentions, the regulations challenged in
these consolidated appeals were issued pursuant to a broad statutory
grant of regulatory authority and properly fill a gap in the statutory
language. The regulations set out the interpretation of “public lands”
previously affirmed by this Court and identify the navigable waters that
are included within the statutory definition of that term by virtue of the
United States’ reserved rights in those waters. They do not constitute a
“binding” determination of the United States’ reserved water rights or
convert water right claims into something more conclusive.
The regulations give notice to the public of the navigable waters that
are “public lands” for purposes of the ANILCA subsistence priority. No
established process exists for the identification of waters in which the
United States holds reserved rights; and the regulations challenged here
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17
do not purport to displace any judicial process that may be available for
determining the relative rights of claimants to the use of water in Alaska.
Moreover, the existence of federal reserved water rights in the waters
identified in the regulations is fully consistent with the Alaska statute
governing water regulation, which is unaffected by any provision of the
regulations.
With respect to waters upstream and downstream from federal land
reservations, the Secretaries were not required to assert reserved water
rights. Although reserved rights exist in the waters within or adjacent to
federal land reservations, existing precedent does not conclusively hold
that such rights exist in waters less directly associated with those land
reservations. Additionally, there is clear legal authority for the proposition
that the United States may act beyond the boundaries of its property to
protect its interests in that property. The Secretaries therefore reasonably
concluded that waters adjacent to areas beyond the exterior boundaries of
federal land reservations are not “public lands” for purposes of Title VIII.
The status of Alaska Native allotments presents a unique set of legal
issues, many of which remain unresolved, and the Secretaries therefore
reasonably reserved the authority in the regulations to identify reserved
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18
water rights appurtenant to such allotments on a case-by-case basis. This
approach to Alaska Native allotments is clearly within the Secretaries’
discretion under ANILCA and is not foreclosed by the district court’s
ruling here.
With respect to the State’s claims that water rights were asserted in
areas where the law does not support the existence of such rights, the
district court properly deferred to the Secretaries. For valid and
appropriate administrative reasons, the regulations determined that
waters that are public lands within and adjacent to the exterior
boundaries of federal land reservations are subject to the federal priority
both across their entire width and in areas where they abut inholdings.
No practicable means exists for segregating the waters for purposes of
joint management of subsistence resources. The Secretaries’ decision to
include these waters as “public lands” is reasonable and within their
authority.
The Secretaries adopted a standard, internationally accepted
methodology for determining the boundary between inland waters and
marine waters, and identified no marine waters as “public lands” by virtue
of reserved water rights. The use of this methodology is both reasonable
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19
and consistent with ANILCA and its purposes. The record supports the
selection of this method, and the State’s concern regarding the expansion
of federal jurisdiction beyond the boundaries of the public lands into
marine waters is misplaced.
The application of the subsistence priority on lands selected by the
State or a Native corporation but not yet conveyed out of federal ownership
was based on a reasonable interpretation of ANILCA. Two competing
provisions of the statute address these lands, and the Secretaries
reasonably concluded that the best reading of the statute dictated the
management of such lands consistent with Title VIII, although they do not
fall within the statutory definition of “public lands.” The district court
correctly affirmed the Secretaries’ reasonable interpretation of ANILCA.
STANDARD OF REVIEW
This case presents questions of law, which are reviewed de novo.
“’De novo review of a district court judgment concerning the decision of an
administrative agency means [this Court] view[s] the case from the same
position as the district court.”’ Ka Makani ‘O Kohala Ghana Inc. v. Water
Supply, 295 F.3d 955, 959 (9th Cir. 2002) (quoting Sierra Club v. Babbitt,
65 F.3d 1502, 1507 (9th Cir. 1995)). The Secretaries’ interpretation of
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20
ANILCA Title VIII in the challenged regulations is properly reviewed
under the deferential standard governing judicial review of agency action
set forth in the Administrative Procedure Act (“APA”). See Ninilchik
Traditional Council v. United States, 227 F.3d 1186, 1193-94 (9th Cir.
2000) (“a reviewing court must apply the deferential APA standard in the
absence of a stated exception when reviewing federal agency decisions”).
Under the APA, agency decisions must be upheld unless found to be
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. 706(2). Under this standard, the reviewing
court should not substitute its judgment for that of the agency; rather, the
reviewing court assesses “whether the agency considered the relevant
factors and articulated a rational connection between the facts found and
the choice made.” Pacific Coast Fed’n of Fishermen’s Ass’ns v. National
Marine Fisheries Service, 265 F.3d 1028, 1034 (9th Cir. 2001) (quotations
omitted). This inquiry must be thorough, but the standard of review is
narrow and highly deferential, and the agency decision is “entitled to a
presumption of regularity.” Citizens to Preserve Overton Park v. Volpe,
401 U.S. 402, 415 (1971). Under the APA, the agency’s findings of fact
must be sustained so long as they are supported by substantial evidence
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21
in the record as a whole. see, e.g., Pacific Gas and Electric Co. v. FERC,
746 F.2d 1383, 1387 (9th Cir.1984).
ARGUMENT
I. The District Court Correctly Concluded That the 1999 RegulationsAre Entitled to Substantial Deference
In Alaska v. Babbitt, supra, 72 F.3d at 702, this court held that in
ANILCA Title VIII Congress unambiguously stated its intent to partially
preempt state regulation of hunting and fishing on “public lands,” the
statutory definition of which includes “lands, waters and interests therein,
the title to which is in the United States.” See also Kenaitze Indian Tribe
v. State of Alaska, supra, 860 F.2d at 316, 318. This Court further stated
in Alaska v. Babbitt that “we have no doubt that Congress intended that
the public lands include at least some navigable waters,” 72 F.3d at 702,
and that “the federal agencies that administer the subsistence priority are
responsible for identifying those waters.” 72 F.3d at 704. The challenged
regulations implementing the federal program authorized by Title VIII
accordingly interpret “public lands,” and identify the navigable waters that
are included in the definition.
Both the State and Katie John contend that no deference should be
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22
given to the agencies’ determinations (State Br. at 3-5: KJ Br. 23-25) on
the ground that whether the United States holds a reserved water right
(hereinafter referred to as a “FRWR”) is a legal question subject to de novo
review. But, as this Court concluded in Alaska v. Babbitt, in enacting
ANILCA, Congress intended to provide a meaningful subsistence use
priority for rural Alaska residents, while recognizing the State’s exclusive
authority to regulate hunting and fishing on lands and waters in Alaska
that are not “public lands.” Alaska v. Babbitt, 72 F.3d at 703. To do so, the
agencies charged with implementing ANILCA needed to interpret the
statutes that reserved the federal lands on which Congress directed that
subsistence uses be accorded a priority to determine whether those
purposes may be achieved without the use of water.
Contrary to the appellants’ assertions (AK Br. 21; KJ Br. 22) the
Secretaries have precisely the expertise required to make these
determinations. This Court has consistently held that the land managing
agencies’ interpretations of the statutes reserving federal lands in Alaska
are entitled to deference. See, e.g., Ninilchik Traditional Council v. United
States, 227 F.3d. 1186, 1191 (9th Cir. 2000) (federal agencies’
interpretation of ANILCA entitled to deference); Williams v. Babbitt, 115
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23
F.3d 657, 663 n.5 (9th Cir. 1997) (Interior interpretations of ANCSA
entitled to Chevron deference; State of Alaska v. Lyng, 797 F.2d 1479 (9th
Cir. 1986) (Forest Service’s interpretation of Alaska Statehood Act entitled
to deference): Akootchook v. U.S., 271 F.3d 1160, 1167 (9th Cir. 2001)
(deference due Interior interpretation Alaska Native Allotment Act).
Katie John contends (Br. 22-23) that the courts are better situated
than the Secretaries to identify the waters in which the United States
holds federal reserved water rights, because the FRWR doctrine is
“anchored in federal common law.” But the existence of FRWRs is a
question of statutory interpretation (see, e.g. United States v. New Mexico,
438 U.S. 696 (1978)). Congress enacted ANILCA against the backdrop of
the FRWR doctrine, which dates from the early twentieth century (see
Winters v. United States, 207 U.S. 564 (1908)). See, e.g. Miles v. Apex
Marine Corp., 498 U.S. 19, 32, (1990) (“We assume that Congress is aware
of existing law when it passes legislation”). Because the Secretaries are
charged with administering ANILCA as well as the other statutes that
reserved federal lands in Alaska, Chevron deference should be accorded to
their reasonable interpretations of those statutes, including their
interpretations of the statutes’ purposes and the necessity of water – and
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24
inherent reservation of water rights – to achieve those purposes.
This Court held in Alaska v. Babbitt that ANILCA’s definition of
“public lands” may reasonably be interpreted to include certain waters by
virtue of the reserved rights doctrine, and that such a regulatory definition
should “identify[] those waters.” 72 F.3d at 704. Chevron holds that
ambiguities in statutes are to be filled by the agencies charged with their
administration in the first instance. See Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984). Where, as
here, the agency’s statutory interpretation “fills a gap or defines a term in
a way that is reasonable in light of the legislature’s revealed design, we
give [that] judgment ‘controlling weight.’” NationsBank of N. C., N.A. v.
Variable Annuity Life Ins. Co., 513 U.S. 251, 257 (1995) (quoting Chevron,
supra, at 844). Because the intent and effect of the regulations challenged
here was to fill a statutory gap in a manner that this Court has already
affirmed as “reasonable in light of the legislature’s revealed design,” the
district court correctly accorded deference to the agencies’ determinations.
Katie John’s assertion (KJ Br. 25) that the 1999 regulations are not
entitled to deference because they were “only enacted by virtue of this
Court’s directive” is unsupported. In affirming the agencies’ revised
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interpretation of “public lands” for purposes of ANILCA § 804, this Court
held that the Secretaries were responsible for identifying the navigable
waters that are “public lands.” The agencies then issued the 1999
amendments, conforming their regulations implementing ANILCA section
804 to the Secretaries’ revised interpretation and providing guidance for
identifying those waters. The fact that this Court has previously affirmed
the amendments in concept does nothing to diminish the deference due to
the amended regulations, which are fully consistent with the earlier order
of this Court and constitute the interpretation of a federal statute by the
agencies charged with its administration. Chevron, supra.
To the extent that they “interpret the federal reserved water rights
doctrine,” the regulations challenged in these consolidated appeals contain
the Secretaries’ identification of the navigable waters that are “public
lands” for purposes of ANILCA’s subsistence priority, by virtue of the
United States’ ownership of federal reserved water rights, consistent with
this Court’s ruling in Alaska v. Babbitt. As the district court correctly held
(KJ ER 115), it is entirely appropriate that the agencies charged with
implementing ANILCA Title VIII exercise their rule-making authority to
identify the navigable waters that are subject to the priority by virtue of
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8/ The district court interpreted the State’s challenge as a claim that theSecretaries had misapplied federal reserved water rights doctrine, and notthat promulgation of the regulations exceeded the agencies rule-makingauthority (AK ER 110:17). It noted that “if the State were pursuing aclaim that the Secretaries do not have jurisdiction or the authority topromulgate regulations implementing Title VIII of ANILCA, such a claimwould be precluded” by this Court’s prior decisions. Id.
26
the United States’ reserved water rights. Such legal interpretations, made
through notice-and-comment rulemaking, are entitled to substantial
judicial deference. See, e.g., United States v. Mead Corp., 533 U.S. 218,
229-31 (2001); Smiley v. Citibank, 517 U.S. 735, 741 (1996). Accordingly,
the regulations challenged here are comfortably within the statutory
delegation to the Secretaries to prescribe necessary and appropriate
regulations and are entitled to Chevron deference, as the district court
correctly concluded (KJ ER 29).
II. The 1999 Regulations Do Not Displace Any “Traditional” Method ofIdentifying Waters in Which the United States Holds ReservedWater Rights.
Alaska contends (AK Br. 22) that Congress did not authorize the
Secretaries to promulgate regulations to identify the navigable waters that
are “public lands” by reason of the United States’ interest in federal
reserved water rights.8/ Instead, the State asserts (Br. 23-28) that the
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27
priority may be applied only where the United States owns the bed of the
waterway or holds a judicially confirmed reserved water right. There is no
support for the State’s argument, as the district court correctly concluded
(KJ ER 115).
It is undisputed that one of Congress’s primary purposes in enacting
ANILCA was to preserve the subsistence way of life of rural Alaska
residents, and that the statute accomplishes that purpose, inter alia,
through the provision of a priority for the subsistence use of fish and
wildlife on “public lands” by residents of rural Alaska. Interpreting and
administering the statute thus requires the Secretaries to identify the
“public lands” – including waters in which the United States holds
reserved rights – on which the priority is to be accorded. This Court
previously reviewed challenges to the Secretaries’ interpretation of “public
lands” and concluded that an interpretation that includes navigable
waters in which the United States holds reserved water rights was
reasonable and that the Secretaries were responsible for identifying those
waters. Alaska now contends that the “extraordinary administrative
burden” that this Court recognized would accompany the task of
identifying such waters (72 F. 3d at 704) was only the beginning:
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28
According to Alaska, the Secretaries must also engage in a “judicial
process” for affirming the existence of reserved rights in those waters, and
must complete that judicial process before the federal subsistence program
may be extended to navigable waters. There is no legal foundation for this
argument, which cannot be reconciled with this Court’s prior rulings.
The State misconstrues both the intent and the effect of the
regulations at issue here, repeatedly referring (AK Br. 5,7,17,18,20,22,25,
26,30,34,35,37,39) to them as “establishing” or “unilaterally establishing”
FRWRs, and “seriously diminishing” the State’s authority over its waters.
The regulations do neither. As the district court correctly observed (KJ ER
113), the challenged regulations do not purport to adjudicate the United
States’ water rights, and instead merely identify those waters that are
“public lands,” which are subject to the priority for subsistence use
established in ANILCA Title VIII, by virtue of the federal reserved water
rights doctrine. On appeal, the State incorrectly asserts (AK Br. 22) that
the district court “transformed the Secretaries’ ‘claims’ into ‘conclusive
determinations’” of water rights by giving deference to the Secretaries’
interpretation of the statutes reserving “public lands” in Alaska. Alaska
further incorrectly contends that the regulations – which it erroneously
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9/ A thing is ‘appurtenant’ to something else when it stands in relation ofan incident to a principal and is necessarily connected with use andenjoyment of the latter. Humphries v. McKissock, 140 U.S. 304, 313-314(1891), citing Harris v. Elliott, 10 Pet. 25, 54 (1836); Jackson v. Hathaway,15 Johns. 447, 455 (1818); Linthicum v. Ray, 9 Wall. 241 (1891). Therelationship of an appurtenant water right to the land on which it is usedis such as to make the land usable for a purpose for which the water rightis necessary. See Clesson S. Kinney, Law of Irrigation and Water Rights,§§ 1011-1013.
29
asserts are now “binding determinations” – exceed the authority granted
by ANILCA and therefore should be set aside.
A. No “Established Adjudication Process” Exists for IdentifyingWaters in Alaska that Are “Public Lands” by Virtue of theExistence of Federal Reserved Water Rights
The State asserts that the challenged regulations “conclusively
determined” federal reserved water rights and “fundamentally and
radically” departed from the established procedure for doing so. But, as
the district court correctly concluded (AK ER 110:26) the regulations did
not “determine” water rights, and instead merely identified waters
appurtenant9/ to land reservations in Alaska for which a primary purpose
requires the use of water. Moreover, there is no “established procedure”
for identifying such waters, although federal law has held for over a
century that water rights are necessarily reserved where land is set apart
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10/ Alaska’s water code (AS 46.15.010-.270) prohibits unlicensedappropriations and generally prohibits appropriations that would degradefish habitat (see, e.g. Tulkisarmute Native Community Council v. Heinze,898 P.2d 935, 952 (Alaska 1995) (abuse of discretion to approve waterpermit that failed to ensure protection of salmon habitat). Accordingly, itis unlikely that the State would allow appropriations that conflict with theUnited States’ reserved rights for protection of fish and wildlife habitatand preservation of the subsistence way of life of rural Alaskans.
30
for purposes that cannot be achieved without them. See Winters v. United
States, 207 U.S. 564 (1908). As the Supreme Court observed in United
States v. New Mexico, 438 U.S. 696, 699 (1978), where water is abundant,
there is no need to determine the relative rights of the various users of the
water from a given source.10/ See United States v. Oregon, 44 F.3d 758,
763 (1994) (discussing historical development of general stream
adjudications); see also 2 Beck, Waters and Water Rights § 15.01 (1991
ed.).
Although the federal reserved water rights doctrine was developed
in the context of disputes over scarce water in the arid west, it is
undisputed that the doctrine extends to the reserved federal lands in
Alaska. And, as the district court correctly noted (KJ ER 113), the
regulations here merely identify the waters in which reserved rights exist
and do not purport to confirm or otherwise “establish” the reserved water
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31
rights themselves. Instead, the challenged regulations serve to identify
waters that are “public lands” by virtue of the United States’ ownership of
“interests” in the form of reserved water rights. The determinations
therefore are unrelated to the use or development of water resources and
are relevant only to federal subsistence program jurisdiction.
It is well established that federal reserved water rights exist where
the purposes of federal land reservations would be defeated without the
use of water. The regulations accordingly contain the Secretaries’
interpretation of the statutes and other legal authorities reserving “public
lands” in Alaska, as to whether their primary purposes would be defeated
without the use of water. They further demarcate the boundaries of the
waters appurtenant to the relevant land reservations. These boundaries
delimit the “public lands” on which the federal government is authorized
to administer the ANILCA priority, but do not adjudicate or otherwise
“determine” water rights. They instead reflect the interpretation of
ANILCA and various other federal land management statutes by the
agencies charged with their administration.
None of the authorities Alaska cites for the proposition (AK Br. 23-
28) that “third party adjudication” is necessary to determine the existence
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11/ Federal reserved water rights have a priority date as of the date ofestablishment of the reservation based on Winters v. United States, 207U.S. 564 (1908). See generally Michael C. Blumm, Waters and WaterRights § 37.01-.02(f)(2) (Robert E. Beck, 1991 ed.) (describing the roots ofthe reserved water rights doctrine). Non-Indian reserved water rights arefederally created and spring from the act of reserving lands for a particularpurposes. Id. at § 37.02(a)-(a)(1).
32
of federal reserved water rights stands for any such thing. Indeed, it is
well established that a federal reserved water right “vests on the date of
the reservation and is superior to the rights of future appropriators.”
Cappaert v. United States, 426 U.S. 128, 138 (1976).11/ Accordingly, while
adjudication may be necessary to determine the relative rights of the
United States and other appropriators, a federal reserved right does not
depend for its existence on any such proceeding. As a matter of law, it
exists upon Congressional or other action reserving a federal lands.
Arguing that the regulations actually “establish” certain “binding”
water rights, the State and its amici mistakenly contend (AK Br. 23-28,
Amicus Br. 23-24) that the regulations have displaced “traditional” means
of adjudicating water rights disputes and therefore should be set aside.
Missing from this argument, however, is any allusion to the water rights
“dispute” that purportedly is resolved by the regulations. The regulations
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33
clearly do not purport to establish water rights (see KJ ER 27,113), and
instead merely provide notice to the public of the waters that are “public
lands” for purposes of the ANILCA subsistence priority.
Indeed, the regulations do not even identify “water rights” and
instead identify the water bodies, or portions of water bodies, containing
water necessary and therefore appurtenant to federal lands that have been
reserved for purposes that depend on water. As a matter of law, federal
reserved water rights exist in such waters. However, the regulations do
not provide that the United States owns the waters identified as “public
lands” or otherwise “establish” a property interest in water rights.
Moreover, the existence of jurisdiction to accord rural residents a priority
for the taking of fish in these waters is “binding” only for the purpose of
ensuring the ANILCA priority.
Nor is there a legal basis for Alaska’s claim that the regulations
challenged here are contrary to law (AK Br. 28) because they “unilaterally”
identify the waters in which federal reserved rights exist. Even assuming
that determinations made through notice-and-comment rulemaking can
be considered “unilateral,” there is no law that prohibits the identification
of such waters. Indeed, to undertake an action in federal court for a
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12/ In the absence of competing claims to rights in the use of the wateramounting to a “case or controversy,” it is unclear that jurisdiction existsfor such a federal court adjudication.
13/ The McCarran amendment is a limited waiver of the United States’sovereign immunity to joinder in comprehensive adjudications. See, e.g.Dugan v. Rank 372 U.S. 609, 617-18 (1963)
34
declaration of federal reserved rights,12/ the United States would first need
to determine which of the potentially affected federal lands are reserved
for purposes that require water – just as it did in promulgating the
regulations (see, e.g., SER 6-7) – and then further determine the scope and
quantity of any reserved rights. We are aware of no authority for the
proposition that the assertion of jurisdiction to protect the rights identified
prior to the resolution of such an adjudication would be “contrary to law.”
Nor did this Court anticipate that identifying “public lands” would
involve an adjudication. Even if the State were to undertake general
stream adjudications in which the United States could be joined pursuant
to the McCarran Amendment, 43 U.S.C. § 66613/ – which it has not – the
United States would need to identify the waters in which it claimed
reserved rights, as well as the quantity of water reserved, in order to file
claims in such an adjudication. The administrative investigation of such
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35
rights is an integral element of such adjudications, and that investigation
alone can take years or even decades. See, e.g., U.S. v. Adair, 723 F.2d
1394, 1405 (9th Cir. 1983). Accordingly, the State’s assertion (AK Br. 5)
that this Court “contemplated” that the process of identifying the waters
that are public lands would include an adjudication of the rights is both
unsupported and irreconcilable with this Court’s “hope that the federal
agencies will determine promptly which navigable waters are public lands
subject to federal subsistence management.” Babbitt, 72 F.3d at 704.
Therefore, the district court was correct in concluding (KJ ER 115) that “in
directing the Secretaries to ‘identify’ reserved waters, [this Court] could
not have intended that the Secretaries initiate water rights adjudications
when there was no need for allocation of water resources.”
B. The Regulations Do Not Affect State Regulatory Authority overWater Resources
Contrary to Alaska’s contention (AK Br. 28-29), the identification of
the waters in which federal rights have been reserved does not alter State
water law, diminish State regulatory jurisdiction over water resources, or
otherwise run afoul of the savings clause in 16 U.S.C. 3207. This Court
has previously determined that there is “no doubt” that Congress intended
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36
to preempt contrary state law to the extent of providing the subsistence-
use priority in at least some navigable waters, 72 F.3d at 702, and that the
agencies reasonably interpreted the statutory priority to apply in waters
in which the United States holds interests by virtue of FRWRs. Id. at 703-
04. The regulations do nothing more than to spell out the boundaries of
the “public lands” on which the statutory subsistence priority for
subsistence taking of fish and wildlife is to be accorded. They do not
independently affect the State’s regulatory jurisdiction over its water
resources in any way.
Alaska asserts (AK Br. 29-30) that dicta in Sierra Club v. Watt, 659
F.2d 203, 206 (D.C. Cir. 1981) somehow supports the view that § 1319
“does not allow unilateral rulemaking to establish FRWRs.” In that case,
the court stated that a provision similar to the ANILCA savings clause
underscored the court’s conclusion that water rights were not reserved by
the Federal Lands Policy and Management Act (“FLPMA”). The decision
in Watt, however, turned on the fact that FLPMA did not reserve any
federal lands. In contrast, ANILCA reserved vast swaths of federal land
and waters and expressly defined “public lands” to include “lands, waters
and interests therein.” Unlike FLPMA, therefore, ANILCA created
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14/ Before the final regulations were issued, the Senate Energy and NaturalResources Committee held hearings on the 1999 subsistence managementregulations, S. Hrg. 106-386 (Oct. 26, 1999), specifically addressing therelationship of FRWRs to “public lands.” Id. at 15.
37
FRWRs. Moreover, the savings clause in ANILCA § 1319 has nothing to
do with rulemaking. Instead, as the Senate Report accompanying ANILCA
explained, it “clarifies that the Act does not affect the jurisdiction of State
of Alaska or the Federal Government as it relates to appropriation, control,
or development of water resources.” S. Rep. No. 96-413, 309 (96th Cong.
1st Sess. 1979). The regulations at issue here merely identify waters in
which the rights necessary to fulfill the purposes of federal land
withdrawals, including protection of the subsistence way of life, have been
reserved.14/ This Court determined in Alaska v. Babbitt, 72 F.3d at 702,
that there is “no doubt” that Congress intended to displace state
management of subsistence resources in some of its waters.
Alaska v. Babbitt held that the Secretaries reasonably determined
that waters in which the United States holds reserved rights are “public
lands” and that the Secretaries “are responsible for identifying those
waters.” 72 F.3d at 704. As the district court correctly observed (KJ ER
115), “the statutory method for the Secretaries to carry out their
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38
regulatory responsibilities under ANILCA is to “prescribe such regulations
as are necessary.” See 16 U.S.C. 3124. Accordingly, the district court
correctly affirmed the Secretaries’ use of the rulemaking process to
identify the waters that are public lands by virtue of the United States’
ownership of reserved water rights.
III. The Secretaries Reasonably Concluded That the Waters Upstreamand Downstream from Federal Reserves Are Not “Public Lands”
Katie John asserts (KJ Br. 33-35) that the Secretaries erroneously
asserted reserved rights only in navigable waters within and adjacent to
CSUs, although the entire run of a river may be necessary to fulfill the
purposes of such CSUs. Katie John contends that the FRWR doctrine
dictates that a reservation of water to preserve anadromous fish
necessarily includes rights in all waters that affect the life cycle of such
fish (KJ Br. 33), and that therefore “public lands” are found wherever
water is necessary for any portion of the life cycle of the salmon on which
rural residents depend for subsistence (KJ Br. 32-37), or wherever stream
flows are necessary for other purposes of the CSUs (KJ Br.37-43).
The regulations identified as “public lands” all inland waters that are
within or adjacent to the exterior boundaries of a CSU. 50 C.F.R. §
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39
100.3(b), (c); but “any waters falling outside of the designated units
identified [in the regulations] are not included” within the scope of the
Title VIII priority. See 64 Fed. Reg. at 1279. With respect to such adjacent
waters, the Secretaries concluded:
We have determined that a Federal reserved water right existsin those waters and that their inclusion is necessary for theeffective management of subsistence fisheries.
Ibid. Katie John seeks to expand “public lands” to include essentially all
inland navigable waters in Alaska. As the Secretaries and the district
court correctly explained, this interpretation of “public lands,” although
potentially justifiable based on the FRWR doctrine, is not reasonable in
light of this Court’s order in Alaska v. Babbitt and Congress’s “cooperative
federalism” purposes in adopting Title VIII of ANILCA.
Katie John contends (KJ Br. 35-36) that the Secretaries must now
identify as “public lands” all waters possibly implicated by the purposes of
the CSUs. This is unnecessary for purposes of implementing ANILCA's
subsistence priority. It is well established that the United States may
protect its property by regulating activities off of public lands necessary to
protect its interests in the public lands. Kleppe v. New Mexico, 426 U.S.
529, 538 (1976). Inherent in the right to maintenance of stream flows
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40
within and adjacent to the CSUs and forest reserves is the authority to
curtail as necessary the use of water beyond the boundaries of the federal
reservations. See, e.g., Cappaert, 426 U.S. at 142-43 (United States may
compel reduction in use of remote ground water well to protect surface
water). Accordingly, the Secretaries reasonably identified as “public
lands” only inland waters within or adjacent to CSUs.
Katie John also contends that the United States’s treaty obligations
with respect to the Yukon River require that the entire length of the river
be deemed “public lands” (KJ Br. at 41-42). Nothing in ANILCA required
the Secretaries to identify as “public lands” all waters in which the United
States may claim reserved rights. The Secretaries are charged with
implementing the subsistence priority on the “public lands;” and as this
Court held in Alaska v. Babbitt, Congress intended to establish a
regulatory scheme that would both ensure the subsistence priority and
preserve meaningful regulatory authority to the State. 72 F.3d at 704.
Identification of the waters upstream and downstream from federal
reservations would greatly expand the scope of Federal jurisdiction and
substantially limit the scope of the State’s jurisdiction. The agencies noted
that this extension of jurisdiction would effectively exclude the State from
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41
any meaningful authority over inland navigable waters (SER 12, 3-4 AR
Tab 88 at 1706). For this additional reason, the Secretaries’ decision not
to include upstream and downstream waters as “public lands” was
reasonable and not arbitrary or capricious or contrary to law. Therefore,
the district court correctly rejected the Katie John plaintiffs’ contention
that waters upstream and downstream from CSUs are public lands subject
to the Title VIII priority.
IV. The Secretaries Reasonably Concluded That the Existence of WaterRights Appurtenant to Alaska Native Allotments must BeDetermined on a Case-by-Case Basis
Many allotments granted pursuant to the Alaska Native Allotment
Act are within the boundaries of the CSUs and forest reserves identified
in the regulations. See 64 Fed. Reg. at 1279. Waters flowing through or
adjacent to those allotments therefore are “public lands” for purposes of
federal subsistence jurisdiction. However, waters on Native allotments
falling outside of the listed lands and waters are not included. The
Secretaries reasonably determined that the question whether federal
reserved water rights are included in these Native allotments should be
answered on a case-by-case basis (id.).
The regulations delegate to the Federal Subsistence Board the
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15/ But see National R.R. Passenger Corp. v. Boston Marine Corp., 503 U.S.407, 420 (1992) (“an agency’s action cannot be upheld on grounds otherthan those relied on by the agency”).
16/ Act of May 17, 1906, ch. 2469, 34 Stat. 197. As amended by the Act ofAugust 2, 1956, Pub. L. No. 931, 70 Stat. 954, the Alaska Native AllotmentAct was last codified at 43 U.S.C. § 270-1 thru 270-3 (1970).
42
authority to make recommendations to the Secretaries for additions, if
necessary, to the waters that are “public lands” by virtue of FRWRs, which
potentially includes waters appurtenant to such Native allotments. 64
Fed. Reg. at 1276, 1279 (Jan. 9, 1999). The district court held (KJ ER 77-
78) that this delegation of authority to the Board was lawful and
reasonable, while rejecting Katie John’s argument that FRWRs exist in
waters appurtenant to allotments granted pursuant to the Alaska Native
Allotment Act of 1906 (KJ ER 78). The district court thus upheld the
regulation, but not for the reason given by the Secretaries.15/ Katie John
contends that the district court’s conclusions are erroneous and must be
reversed; and that Alaska Native allotments include reserved water rights
as a matter of law (KJ Br. 57).
The Alaska Native Allotment Act16/ (“1906 Act”), was enacted to
adapt the allotment policy of the time, as expressed in the General
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43
Allotment Act, to the special circumstances existing in Alaska. See Act of
Feb. 8, 1887, ch. 119, 24 Stat. 388 (codified as amended in scattered
sections of 25 U.S.C.); Akootchook v. United States, 271 F.3d 1160, 1162
(9th Cir. 2001); Shields v. United States, 504 F. Supp. 1216, 1217 (D.
Alaska 1981), aff’d, 698 F.2d 987 (9th Cir. 1983); see also, Pence v. Kleppe,
529 F.2d 135, 140 (9th Cir. 1976) (discussing origins of 1906 Act). The Act
authorized the Secretary of the Interior to provide allotments to Alaska
Natives, not to exceed one hundred and sixty acres, of land in the District
of Alaska, and specified that allotments withdrawn from the public domain
for Alaska Natives “shall be inalienable and nontaxable until otherwise
provided by Congress.” 34 Stat. 197; see also 43 U.S.C. § 270-1 (1970); 43
C.F.R. § 2561.3.
The 1906 Act was later amended to allow allotments to be alienated
with the approval of the Secretary; to permit certain allotments to be
granted within national forests, 43 U.S.C. 270-2 (1970); and to provide
that no allotment was to be made until the applicant submitted “proof
satisfactory to the Secretary * * * of substantially continuous use and
occupancy of the land for a period of five years.” 43 U.S.C. 270-3 (1970).
ANILCA subsequently approved all Alaska Native allotment applications
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17/ Although § 1634(a)(1(A) employs the term “trust,” it is unclear whetherCongress intended that the United States would hold trust title to AlaskaNative allotments. The term first appeared in S. 1787 (1977), an earlyversion of ANILCA introduced by Senator Stevens. Subsequently, butbefore ANILCA was enacted, the Interior Board of Land Appeals (IBLA)ruled that the 1906 Act process conveyed full legal title to Alaska Nativeallottees, and therefore that they were more in the nature of patents thantrust allotments. State of Alaska, 45 IBLA 318, 322-23 (Feb. 6, 1980);State of Alaska, 35 IBLA 140, 141-42 (May 22, 1978).
44
pending prior to the passage of ANCSA, with certain exceptions, and
provided that the Secretary “shall issue trust certificates therefor.” 43
U.S.C. 1634(a)(1)(A).17/ Accordingly, the United States has taken the
position that it has an interest in these allotments because of their
restricted fee status.
Courts generally have recognized that allotments owned by
individual Indians outside Alaska include FRWRs. In the typical case,
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 FRWRs pursuant to section 7 of the
General Allotment Act, 25 U.S.C. 381. See e.g., United States v. Powers,
305 U.S. 527, 532 (1939); Colville Confederated Tribes v. Walton, 647 F.2d
42, 48 (9th Cir. 1981). Courts have similarly concluded that individual
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45
Indian allotments within areas ceded by Indian tribes to the United States
also have FRWRs. See Skeem v. United States, 273 F. 93, 95 (9th Cir.
1921). See also United States ex rel. Ray v. Hibner, 27 F.2d 909, 911-12 (D.
Idaho 1928) (analyzing same treaty provisions, court follows Skeem and
holds that non-Indian successors acquire same right as held by the Indian
transferor).
The legal status of Alaska Native allotments, however, is unique.
The 1906 Act authorized allotment “of vacant, unappropriated, and
unreserved nonmineral land” 43 U.S.C. § 270-1 (1970). Alaska Natives
had little or no ability to take allotted lands from Indian reservations
because the United States essentially abandoned the reservation policy in
Alaska. See United States v. Atlantic Richfield Co., 435 F. Supp. 1009,
1015 (1977); and see M-36662, Allotment of Land to Alaska Natives, 71
Interior Dec. 340, 348 n.18 (Sept. 21, 1964). In 1971, Congress abolished
all prior reservations set aside for Alaska Natives except for the
Metlakatla (Annette Island) Reservation in section 19 of ANCSA. 43
U.S.C. § 1618(a). The complex legal issues surrounding the question led
the Secretaries to conclude that identifying waters appurtenant to Native
allotments outside Federal lands as “public lands” should be done on a
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46
case-by-case basis.
The district court here unnecessarily concluded “there are no federal
reserved water rights in navigable waters on or abutting conveyed Native
allotments which lie outside the boundaries of federal reservations and are
not immediately adjacent to the boundary of a federal reservation” (KJ ER
77), and did not suggest that its conclusion followed from unambiguous
statutory language. A court’s prior judicial construction of a statute
trumps an agency construction otherwise entitled to Chevron deference
only if the prior court decision holds that its construction follows from the
unambiguous terms of the statute and thus leaves no room for agency
discretion. National Cable & Telecommunications Ass’n v. Brand X
Internet Services, 545 U.S. 967, 982 (2005). Accordingly, as the agency
charged with administering both ANILCA and the Alaska Native
Allotment Act, the Department of the Interior is not foreclosed from
reaching a different interpretation through the process set out in the
regulations, which the district court affirmed, albeit not for the reasons
given by the Secretaries.
V. The District Court Correctly Rejected the State’s Claims Regarding“Extraterritorial Application” of the Subsistence Priority.
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47
The State contends (AK Br. 38) that the district court allowed the
expansion of the federal subsistence program into waters that are not
“public lands,” by affirming the Secretaries’ categorical determinations of
the waters that are to be managed as “public lands” on which the priority
is accorded, instead of requiring that the Secretaries establish specific
water rights. The State wrong.
The district court rejected the State’s assertion that FRWRs arising
by implication only exist within and ‘not beyond the borders’ of a federal
reservation,” noting that in Winters the United States Supreme Court
recognized a federal reserved water right in waters that bordered the
federal reservation (KJ ER 48). Alaska asserts (AK Br. 40) that the
regulations reach waters beyond the scope of ANILCA’s authorization to
the Secretaries because reserved rights in appurtenant waters “must have
a geographic location that is part of the [land] reservation.” But none of
the authorities on which the State relies addresses the question whether
the right is recognized because of its location within, rather than on, the
boundary of a federal reservation, and Winters itself relied in part on a
previous Supreme Court decision which recognized “the right of the United
States, as owners of the lands bordering on a stream, to the continued flow
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48
of its waters, so far, at least, as may be necessary for the beneficial uses
of the government property.” United States v. Rio Grande Dam &
Irrigation Co., 174 U.S. 690, 703 (1899)(emphasis added). See Winters, 207
U.S. at 577; United States v. Preston, 352 F.2d 352, 357 (9th Cir. 1965)
(recognizing implied reservation of rights to the use of the waters which
“arise, traverse or border upon” the reservation); United States v.
Ahtanum Irrigation Dist., 236 F.2d 321, 325-26 (9th Cir. 1956) (“it would
be a novel rule of water law to limit either the riparian proprietor or the
appropriator to waters which originated upon his lands or within the area
of appropriation.”).
The principles on which the State relies in identifying “critical
errors” (AK Br. 39) in the district court’s reasoning accordingly lack
support. Regardless whether a water right itself has a “geographic
location,” federal law firmly supports the district court’s conclusion that
reserved rights may exist in waters adjacent to, as opposed to within,
federal reservations. And, because reserved rights constitute federal
“interests” in the waters, under this Court’s decision in Alaska v. Babbitt,
those waters reasonably fall within the statutory definition of “public
lands” subject to the Title VIII priority.
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49
A. The Secretaries Reasonably Treated as “Public Lands” theWater Bodies Within or Adjacent to Federal Reservations inWhich the United States Owns FRWRs
The district court correctly rejected (KJ ER 57-58) Alaska’s assertion
that the FRWR doctrine does not support the Secretaries’ inclusion of the
full width of stream reaches adjacent to federal reservations as “public
lands.” First, the State is precluded from arguing that the “public lands”
area of a water body in which the United States owns FRWRs does not
encompass the full width of the water body. And in any event, the
Secretaries reasonably determined that the areas designated as “public
lands” included the full width of waters within or adjacent to federal land
reservations.
In its brief to this Court in Katie John II, the State argued that the
Secretaries’ interpretation of “public lands” exceeded their authority under
ANILCA, because “an implied right – no matter how small - [would]
convert all the water in the river or lake touched by the right – from bank
to bank – into public lands subject to federal subsistence management.”
(En Banc Brief for Appellants State of Alaska in 9th Cir. No.00-35121, at
34). This Court rejected Alaska’s argument and affirmed the Secretaries’
interpretation. Having lost that argument in Katie John II, Alaska cannot
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50
now argue that the Secretaries’ adoption of the State’s own theory of the
impact of FRWRs on subsistence jurisdiction is “erroneous.”
Moreover, as the district court observed (KJ ER 58), the practicalities
of joint management of these areas preclude a “longitudinal” division of
the waters. Segregating the waters within or bordering federal lands for
purposes of dividing jurisdiction between the State and the Secretaries
would introduce unacceptable management complexities into both regimes.
And in any event, water rights may well exist in the full width of an
adjacent water body, where those rights are, for example, to the flow of the
stream at a level sufficient to support fisheries. Accordingly, the district
court correctly rejected the State’s contention (see AK Br. 45) that the
Secretaries were not legally justified in according the federal priority in
the entire width of the Yukon river adjacent to the Nowitna and Innoko
National Wildlife Refuges as “public lands.”
B. The Record Supports the Determination That Sixmile LakeShould Be Managed as “Public Lands”
The State also faults the district court’s affirmance of the Secretaries’
determination that the United States holds FRWRs in Sixmile Lake, on
the ground that the lake “does [not] even touch federally reserved lands.”
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51
The State contends (AK Br. 45) that by operation of section 201(7)(b) of
ANILCA, 16 U.S.C. 410hh(7)(b), the Lake Clark National Park and
Preserve is not adjacent to Sixmile Lake because its shoreline is owned
primarily by the Nondalton Village Corporation. Section 201(7)(b)
provides in pertinent part:
No lands conveyed to the Nondalton Village Corporation shallbe considered to be within the boundaries of the [Lake ClarkNational] park or preserve; if the corporation desires to conveysuch lands, the Secretary may acquire such lands with theconsent of the owner, and any such lands so acquired shallbecome part of the park or preserve, as appropriate.
Although Section 201(7)(b) appears to place the lands surrounding
the lake, which were conveyed to Nondalton Village Corporation pursuant
to ANCSA, outside of the Lake Clark National Park and Preserve, the
State’s reliance on it to show that Sixmile Lake should have been excluded
from the “public lands” subject to the Title VIII priority is misplaced.
Federal lands need not touch a water source in order to have a right to
waters from that source. Arizona v. California, 376 U.S. 340, 344 (1964)
(confirming reserved water rights from the Colorado River for an Indian
reservation that does not abut the river). And, in any event, the map for
the Lake Clark National Park and Preserve published at 57 Fed. Reg. at
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18/ The report plainly states that “This amendment [to place the landsoutside the boundary] does not change the boundary of the preserve butprovides that the lands which the village received pursuant to ANCSAwhich are not part of the village proper shall not be treated as inholdings.”(Emphasis added).
52
45220 (see SER 33) clearly places the boundaries of the preserve along the
bank of Sixmile Lake, and ANILCA § 103(a), 16 U.S.C. 3103(a), states that
the boundaries and maps to be published in the Federal Register establish
the boundaries of the various units, including the Lake Clark National
Park and Preserve. Because section 103(a) further provides that in the
event of discrepancies, “the maps shall be controlling,” the Secretaries
properly relied on the map in concluding that Sixmile Lake is adjacent to
the reserve.
In addition, the legislative history shows that in enacting § 201(7)(b),
Congress did not intend to change the boundaries of the reserve, and
instead included that section to avoid the treatment of the lands conveyed
to the Village of Nondalton as national park inholdings. See S. Rep. 96-
413 at 154.18/ The Senate report thus explains the discrepancy between
the statutory language on which the State relies and the map showing the
reserve to be immediately adjacent to Sixmile Lake. Because the purposes
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53
for which Lake Clark park and preserve were created included “to protect
habitat for and populations of fish and wildlife” (see 16 U.S.C. 410hh(7)(a))
the Secretaries’ conclusion that the United States owns FRWRs in the lake
which therefore is subject to the ANILCA Title VIII priority, clearly was
reasonable and supported by substantial evidence.
C. The Secretaries Properly Determined That Seven Juneau AreaStreams Are Public Lands.
The State contends (Br. 46-47) that the Secretaries failed to
document adequately their findings that the United States holds FRWRs
in seven streams (Auke Creek, Cowee Creek, Lemon Creek, Mendenhall
River, Montana Creek, Peterson Creek, and Salmon Creek) that flow into
the Gastineau Channel near Juneau. There is no dispute that all of these
streams arise within the Tongass National Forest. There is also no
dispute that these waters are within the broad exterior boundaries of the
Tongass National Forest as created in 1909.
The State contends (AK Br. 46) that the determination that the
United States holds FRWRs in these waters was erroneous, on the ground
that they are “exterior waters downstream of a reservation.” The State is
incorrect. The Federal Register notices cited in the State’s brief (ibid)
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54
explain the agencies’ basis for concluding that FRWRs are held in
reservations created by ANILCA, 70 Fed. Reg. 76400, 76403 (Dec. 27,
2005). The seven streams are within portions of Tongass National Forest
that was not created by ANILCA. The administrative record shows,
however, that the agencies determined that the United States holds
FRWRs in the waters of the Tongass National Forest (SER 7,24); and that
the exterior boundaries of the Tongass National Forest were recognized as
including the seven streams at issue (id. at 27). Accordingly, the record
supporting the agencies’ decision regarding these streams contains
substantial evidence that the streams are within the boundaries of a
federal reservation.
As a matter of law, national forests include FRWRs pursuant to the
Forest Service Organic Act, Act of June 4, 1897, Ch. 2, 30 Stat. 11, 34-36,
codified as amended 16 U.S.C. 473 et seq., which authorized the creation
of the TNF. As the U.S. Supreme Court held in United States v. New
Mexico, 438 U.S. 696, 718 (1978):
Congress intended that water would be reserved only wherenecessary to preserve the timber or to secure favorable waterflows for private and public uses under state law. This intentis revealed in the purposes for which the national forest systemwas created and Congress’s principled deference to state water
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law in the Organic Administration Act of 1897 and otherlegislation.
Accordingly, the United States owns water rights in inland waters within
the exterior boundaries of the Tongass National Forest. Because the
record supports the Secretaries’ conclusion that these streams are within
the boundary, the United States hold FRWRs in them.
The regulations clearly provide that waters in which the United
States holds any FRWR in any amount are public lands. And, as discussed
above (p. 53), because of the Secretaries’ legitimate concern with the
difficulties inherent in a checkerboard jurisdictional system and the need
for unified areas of management and clear jurisdictional boundaries, the
determination that inland waters within the exterior boundaries of the
forest are “public lands” for purposes of the Title VIII priority is reasonable
and should be sustained.
D. The District Court Correctly Affirmed the Secretaries Adoptionof the “Headland-to-headland Methodology for Determining theBoundary Between Rivers and the Sea.
The State contends (AK Br. 47) that the regulations unlawfully
include marine and tidally influenced waters within the definition of public
lands. It interprets ANILCA section 103(a), 16 U.S.C. 3103(a), which
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56
states that federal reservation boundaries shall not extend seaward
beyond the mean high tide line, to exclude all tidally influenced waters
from the definition of public lands, and asserts (AK Br. 47) that the
Secretaries therefore have included as “public lands” waters “located
entirely outside reservation boundaries.”
First, the Secretaries explicitly stated that challenged regulations do
not identify any marine waters as public lands by virtue of reserved water
rights in the 2005 rulemaking. 70 Federal Register 76400, 76401 (Dec. 27,
2005) (“neither the 1999 regulations nor this final rule claims that the
United States holds a reserved water right in marine waters”). The
regulations define marine waters as
those waters located seaward of the mean high tide line or thewaters located seaward of the straight line drawn fromheadland to headland across the mouths of rivers or otherwaters as they flow into the sea.
50 C.F.R. § 100.4. No reserved water rights are claimed in marine waters,
which therefore are not “public lands” unless the United States reserved
the lands beneath the specific waters prior to Alaska statehood. 70 Fed.
Reg. 76401, 76403. The waters determined to be public lands by reason of
a pre-statehood reservation are set forth in 50 C.F.R. § 100.3(b). 70 Fed.
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Reg. at 76407. The State has not challenged those determinations.
The State objects, however, to the use of the standard and accepted
headland-to-headland methodology for determining the boundary between
marine and inland waters. The Secretaries explained that because
reserved water rights can be held in rivers and lakes but not in marine
waters, it is necessary “to determine where the river ends and the sea
begins.” 70 Fed. Reg. 76402. The Secretaries further explained:
Some rivers are tidally influenced for a significant distanceabove their mouths. Although submerged lands under portionsof rivers which are tidally influenced may be owned by theState or other entity, those stretches are still a part of the riverand remain subject to potential Federal reservation of waterrights. Rivers and streams have high water marks rather thanlines of mean high tide.
Id. Because many rural Alaskans have traditionally lived along or near
coastal and tidal waters, the exclusion of all tidally influenced waters from
the definition of public lands would have deprived many of these rural
Alaskans of a meaningful opportunity for the taking of fish for subsistence
uses, contrary to a central purpose of ANILCA. See Alaska v. Babbitt, 72
F.3d at 704. Accordingly, the question is whether the Secretaries’ adoption
of the headland-to-headland methodology was reasonable, consistent with
established law, and not arbitrary or capricious. As the Secretaries
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58
explained, the headland-to-headland methodology set forth in the
definitions of marine and inland waters is internationally used precisely
for this purpose:
[T]he regulations use the methodology found in the Conventionon the Territorial Sea and Contiguous Zone from the UnitedNations Law of the Sea for closing the mouths of rivers.”
70 Fed. Reg. 76402 (Dec. 27, 2005). See Shalowitz, Aaron L., Shore and
Sea Boundaries, vol. 1, U.S. Dept. Of Commerce (1962); see also generally
Ch. 3, Reed, Michael, Shore and Sea Boundaries, vol. 3, U.S. Dept. Of
Commerce (2000), describing the determination of boundaries of bays and
rivers. The decision to use such an established methodology is reasonable
and is not arbitrary or capricious.
As the district court correctly concluded, the use of the headland-to-
headland methodology does not conflict with 16 U.S.C. 3103, because, as
discussed above, a reserved right may be held in waters adjacent to, but
outside the boundary of, the reserved lands to which it is appurtenant.
Because there is no certainty as to where tidally influenced waters cease
to serve the purposes of a federal reservation of land for purposes of
reserved water rights, the Secretaries reasonably employed the headland-
to-headland methodology to determine the boundary between inland and
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19/ Shown as Area 14 on KJ Exhibit 2 (KJ ER 136).
59
marine waters. The district court correctly affirmed this choice of a
reasonable and appropriate solution that is consistent with established
law.
The State baldly asserts (Br. 49) that the Secretaries have placed
“roughly six square miles of Togiak Bay and its marine and tidally
influenced waters and resources under federal control.” This assertion is
based on an incorrect understanding of the boundaries between the inland
and marine waters of Togiak Bay, as we demonstrated below. Togiak Bay
is within and adjacent to the Togiak NWR.19/ The State relied in the
district court on exhibits that incorrectly depicted the boundary and
excluded the bay from the refuge. (See Declaration of Tom Jennings ¶¶
4d- 4e, (SER 36)). The correct boundaries are shown on the map published
pursuant to 16 U.S.C. 3103 in 48 Federal Register 7890, 7994 (Feb. 24,
1983) (SER 36). As Mr. Jennings explained (SER 36), the waters depicted
on the State’s exhibit along the eastern shore line of the Togiak Bay are
not public lands for purposes of Title VIII. The only portion of Togiak Bay
that is deemed to be public lands is what might be described as the inner
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bay at the very northern end of the Togiak Bay itself. As shown by the
Federal Register map, this inner bay lies within the boundaries of the
Togiak NWR. Thus, contrary to the State’s assertion, the only waters of
Togiak Bay that have been determined to be public lands are within the
boundaries of the refuge.
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E. The Secretaries’ Determination That All Waters Within CSUsand National Forests Are Public Lands Was Reasonable andSupported on the Record
The district court correctly affirmed the Secretaries’ determination
that all inland waters, both navigable and non-navigable, within a CSU or
a National Forest are public lands subject to the Title VIII priority. The
State contends (AK Br. 50) that the regulations improperly include as
“public lands” waters on non-Federally owned lands within the respective
units. It bases its contention on the provision in section 103(c) of ANILCA,
16 U.S.C. 3103(c), that: “[o]nly those lands within the boundaries of any
conservation system unit which are public lands (as such term is defined
in this Act) shall be deemed to be included as a portion of such unit.”
Consistent with this provision, the Federal subsistence regulations do not
purport to regulate the taking of wildlife on private lands within a CSU or
national forest, because the lands themselves are not public lands.
However, under Alaska v. Babbitt, if FRWRs are held in waters on these
lands, those waters may be considered public lands as defined in ANILCA.
The 1999 regulations identified as public lands all waters within or
adjacent to the boundaries of the areas listed in those regulations. As the
Secretaries explained, FRWRs exist in all such waters, and it was
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impracticable to designate only portions of the waters within the CSUs as
public lands:
[I]n order to provide a meaningful subsistence use priority thatcould be readily implemented and managed, unified areas ofjurisdiction were required for both Federal land managers andthe subsistence users. The problems associated with the dualState and Federal management caused by the State’s inabilityto take actions needed to implement the required subsistenceuse priority are difficult enough without imposing on thatsituation elaborate and scattered areas of differentjurisdictions.
70 Fed. Reg. 76400, 76401 (Dec. 27, 2005). The purposes of the CSUs and
national forests were uniformly water-dependent, and therefore FRWRs
arose in the waters traversing or adjoining them. The Secretaries
reasonably determined that the inclusion of all waters within a CSU or
national forest with publicly established and published boundaries was
the most reasonable means to provide both the managers and the public
with notice of where the Federal regulations are and are not applicable.
See 64 Fed. Reg. at 1279.
The district court rejected Alaska’s contention that the Secretaries
had claimed federal reserved water rights in these waters based on
“administrative convenience” (see AK Br. 52), correctly explaining that a
federal reserved water right exists because water is necessary to fulfill the
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purpose of a federal reservation, and federal reserved water rights can
exist in waters on inholdings. As the district court correctly held, (KJ ER
53) appurtenancy “has to do with the relationship between reserved
federal land and the use of the water, not the location of the water.”
Accordingly, a navigable water body located only non-federal land may
nonetheless be appurtenant to federal land.
For the same reasons, the State is incorrect that waters on private
inholdings such as the Chignik Lake and River system, within the Alaska
Peninsula NWR, may not be considered “public lands.” Although most of
the lands adjacent to Chignik Lake, Black Lake and the Chignik River
from Chignik Lagoon to Black Lake are not in Federal ownership, the
refuge’s purpose of providing “the opportunity for continued subsistence
uses” of fishery resources would be substantially defeated if these waters
were not public lands. Therefore the Secretaries’ determination that the
United States holds FRWRs in these waters was correct, and they
reasonably fall within the Title VIII definition of “public lands.” Contrary
to Alaska’s contentions, the Secretaries did not arbitrarily make sweeping
categorical FRWR determinations in derogation of state sovereignty. As
the district court correctly concluded, “when, as here, the federal
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government has retained its reserved water rights and/or the ability to
create such rights in navigable waters, it retains an interest in the
navigable waters on or appurtenant to those reserved lands sufficient to
support ANILCA jurisdiction” (KJ ER 54).
F. The Secretaries Correctly Identified Waters On Selected ButNot Yet Conveyed Lands as Public Lands Subject To The TitleVIII Priority
The district court further correctly affirmed the Secretaries’
determination that they are required to regulate all lands within any unit
of the National Park System, National Wildlife Refuge System, National
Wildlife and Scenic Rivers Systems, National Forest Monument, National
Recreation Area, National Conservation Area, new national forest or forest
addition that have been selected by but not yet conveyed to the State or a
Native corporation as if they were public lands, because ANILCA § 906(o),
43 U.S.C. 1635(o), requires the Secretaries to do so.
Section 906 of ANILCA, 94 Stat. 2437-44, codified in part in 43
U.S.C. 1635, addresses lands selected by the State pursuant to the Alaska
Statehood Act and by Native corporations pursuant to the Alaska Native
Claims Settlement Act. Section 906(o)(2) provides that:
Until conveyed, all Federal lands within the boundaries
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of a conservation system unit, National Recreation Area,National Conservation Area, new national forest or forestaddition, shall be administered in accordance with the lawsapplicable to such unit.
The question whether these lands are subject to the subsistence
priority is complicated by the fact that ANILCA section 102(3), the
provision that defines the “public lands” to which section 804 extends the
subsistence priority, excludes selected but not yet conveyed lands.
The Secretaries resolved the conflict between these two provisions of
ANILCA in favor of section 906(o), because to do otherwise would
effectively write a new exception, making all laws applicable to the
surrounding lands except Title VIII of ANILCA applicable to selected but
not yet conveyed lands. The courts are not to write into statutes that
which Congress left out. United States v. Hoflin, 880 F.2d 1033, 1038 (9th
Cir. 1989). Section 804 applies to “public lands” as defined by § 102(3)
“[e]xcept as otherwise provided in this Act[.]” The district court found
that “Section 906(o)(2) is part of the ‘Act’; and as to selected-but-not-
yet-conveyed lands, it provides ‘otherwise.’” It therefore concluded “that
Congress unambiguously provided that Title VIII applies to
selected-but-not-yet conveyed lands ‘within the boundaries of a
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66
conservation system unit, National Recreation Area, National
Conservation Area, new national forest or forest addition.’ 43 U.S.C.
1635(o)(2)” (KJ ER 85), and that the 1999 regulation lawfully and
reasonably treated such lands as subject to the ANILCA priority.
The State contends (AK Br. 54), without explanation, that ANILCA
as a whole is more consistent with a reading that grafts a new exception
onto section 906(o) than with the Secretaries’ interpretation. It points (AK
Br. 56) to provisions of the statute that authorize limitation of the
subsistence priority on public lands as evidence that “except as otherwise
provided” in the statute cannot reasonably be read to extend the priority
to selected but not yet conveyed lands. But even assuming that the district
court is not correct in its conclusion that the statute unambiguously
applies the subsistence priority on selected but not yet conveyed lands, the
Secretaries’ interpretation is reasonable and entitled to deference.
Selected but not yet conveyed lands are merely a potential inholding.
Until they are actually conveyed, legal title remains in the United States.
A determination must still be made as to eligibility for the conveyance. If
the lands ultimately are not conveyed to either the State or a Native
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20/ For example, over-selection is permitted. 43 U.S.C. 1635(f)(1).Therefore, some lands now subject to section 906(o) may well never beconveyed.
67
Corporation, title remains in the United States.20/ It is therefore
reasonable for the Secretaries to administer these lands under all general
laws applicable to the units in which they may be located.
The Secretaries’ determination that they are required to provide for
the Title VIII subsistence use priority on selected but not yet conveyed
lands is fully supported by the explicit language of section 906(o).
Moreover, managing selected but not yet conveyed lands as if they were
subject to the Title VIII priority furthers ANILCA’s purpose of preserving
the subsistence way of life of rural Alaska residents. Accordingly, the
district court’s conclusion that the regulations properly apply the priority
on selected but not yet conveyed lands was correct and should be affirmed.
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CONCLUSION
For the foregoing reasons, the decision of the district court should be
affirmed.
Of counsel: Respectfully submitted,
JASON R. HARTZ IGNACIA S. MORENOOffice of the Solicitor Assistant Attorney GeneralU.S. Dep’t of the InteriorWashington, D.C. DEAN K. DUNSMORE
ANDREW C. MERGENKEITH A. GOLTZ ELIZABETH ANN PETERSONOffice of the Regional Solicitor Attorneys U.S. Dep’t of the Interior Environment & Natural Res. Div.Anchorage, AK U.S. Dept. of Justice
P.O. Box 23795, L’Enfant StationJAMES J. USTASIEWSKI Washington, D.C. 20026Office of the General Counsel (202) 514-3888U.S. Dep’t of Agriculture Juneau, Alaska 99802
AUGUST 201090-1-18-13146
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69
STATEMENT OF RELATED CASESPURSUANT TO NINTH CIRCUIT RULE 28-2.6
The United States is not aware of any related case pending in this
Court.
/s/ Elizabeth Ann Peterson Elizabeth Ann Peterson, AttorneyUnited States Department of JusticePost Office Box 23795Washington, D.C.(202) 514-3888
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70
CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(a)(7)(C)
and Circuit Rule 32-1
I certify that:
a. Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule
32-1, the attached opening brief is:
Proportionately spaced, has a typeface of 14 points or more and
contains 13,741 words.
8/20/2010 /s/ Elizabeth Ann Peterson Date Elizabeth Ann Peterson
Attorney, Department of JusticePost Office Box 23795Washington, DC 20026-3795Phone: (202) 514-3888
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CERTIFICATE OF SERVICE
I hereby certify that the foregoing Answering Brief for the Federal
Appellees has been served via this Court’s Electronic Case Filing (“ECF”)
system, this 20th day of August, 2010, and that all participants in this case
are registered ECF system users.
/s/ Elizabeth Ann Peterson Elizabeth Ann Peterson Attorney, Department of Justice
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