(CN) - The U.S. government properly identified bodies of water that qualify as "public lands" with respect to subsistence fishing and hunting rights in Alaska, the 9th Circuit ruled.
To preserve Alaska's scenic, historic and culturally significant landscapes, as well as the traditional subsistence hunting and fishing lifestyle of rural citizens, Congress established "national parks, preserves and other federal reservations" with the Alaska National Interest Lands Conservation Act (ANILCA) in 1980.
The act applies to most federally owned public lands and waters, and gives rural residents priority to hunt and fish in these areas. Regulators have the authority, however, to restrict these activities if fish and wildlife populations start dwindling.
Almost two decades after the act passed, the secretaries of the U.S. Departments of the Interior and of Agriculture amended its scope in 1999 Final Rules. The changes determined which of Alaska's navigable waters qualified as "public lands" for subsistence hunting and fishing. These lands included waters within and next to reservations. The rules also determined that water rights allotments "were best determined on a case-by-case basis."
The rules had brought lawsuits from various interests since 1992. Katie John and her co-plaintiffs said the rules were too narrow because they failed to uphold the rural subsistence priority on certain navigable waterways and designate them as public lands, such as those upstream or downstream from areas allocated for conservation.
Alaska argued in a separate action that the rules were too broad because they included as public lands areas that were not federally owned as well as "land selected for but not yet conveyed to Alaska or a native corporation."
The consolidated against the 1992 rules first went before the 9th Circuit as Alaska v. Babbitt, which the court now refers to it as Katie John I. A three-judge panel found then that the federal agencies in charge of enforcing subsistence priority must identify the waters that qualify under ANILCA.
Alaska now claims that the secretaries should have used adjudication, not rulemaking, to implement Katie John I.
A federal judge in Anchorage nevertheless ruled that the secretaries acted lawfully by initiating rulemaking to identify waters for subsistence management. The court also found that the waters identified by the secretaries constituted public land, and their actions were therefore "lawful and reasonable."
The 9th Circuit affirmed Friday, finding that the secretaries acted reasonably in including certain water bodies and excluding others from the public lands determination.
In a 66-page ruling, the court noted that the case varies from other federal water rights cases in that it revolves around the water's location rather than the quantity.
"What makes this case difficult is that, until now, the federal reserved water rights doctrine has operated in the connect of the United States enforcing its right to that amount of water necessary to fulfill the purpose of a particular reservation ... rather than the locations of water sources that might generally be needed for subsistence living from many such reservations," Judge Andrew Kleinfeld wrote for a three-member panel. "We, and perhaps the secretaries, failed to recognize the difficulties in applying the federal reserved water rights doctrine in this novel way, and in retrospect the doctrine may provide poor mechanism for identifying the geographic scope of ANILCA's rural subsistence priority management when it comes to water."
