Public Land Designation in Alaska Survives Suit

     (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.”
     The panel found that the secretaries rightly chose to issue rulemaking to identify which waters qualified for subsistence priority rather than adjudication.
     Alaska argued that the federal reserved water rights doctrine requires the secretaries to adjudicate – to review evidence and hear arguments from both parties to determine the rights of each party – because the 1999 Rules intended to establish water rights.
     The panel credited this reasoning, but found that Alaska failed to grasp the difference between determining the amount of federal water rights and determining which water bodies qualified for ANILCA’s rural subsistence priority.
     “Thus, the 1999 Rules identify the bodies of waters in which the secretaries believe the United States has a federal reserved water rights interest,” Kleinfeld wrote.
     “In other words, the rules do not purport to assert rights over a particular amount of water, nor do they do anything to displace future water rights litigation,” he added. “The agencies are not, therefore, ‘determining their own water rights,’ nor does their rulemaking burden the state’s right to use water.”
     Using rulemaking rather than adjudication was the logical choice in this case because most of Alaska is coastline, and using a “particularized approach” like adjudication would have slowed down the federal agencies’ determination of which navigable waters qualify as public land, the court found.
     The secretaries were also reasonable in deciding which water bodies qualified as public lands under ANILCA, according to the ruling.
     Alaska failed to show that the secretaries improperly included waters that were next to, but not on, federally reserved land, claiming that the federal government’s water rights “existed only within the borders of the federal reservations, not beyond them.”
     Appurtenancy does not refer to a water body’s location, but how the water will be used by federally reserved land, the court concluded.
     “The secretaries reasonably concluded that adjacent waters are appurtenant to, and may be necessary to fulfill the primary purposes of, the federal reservations identified in the 1999 Rule, and are sources from which the United States could at some point claim a reservation of water,” he wrote. “Accordingly, the secretaries reasonably concluded that the United States has an ‘interest’ in these adjacent waters by virtue of the federal reserved water rights doctrine sufficient to qualify as ‘public lands,” Kleinfeld wrote.
     This doctrine furthermore does not identify the government’s implied federal water rights by geographic location until the government chooses to enforce those implied rights, according to the ruling. Since the scope of the government’s implied water rights is geographically vast, the secretaries determined that the federal reservations would not need all the water available from adjacent bodies and excluded “upstream and downstream” waters from the subsistence priority mandate, Kleinfeld wrote.
     The panel also rejected the arguments that waters upstream and downstream from reservations should be included under the subsistence priority mandate, pointing out that doing so would “subject most of the rivers and streams in Alaska to the federal priority, since the federal reservations listed in the 1999 Rules cover about one-half of Alaska.”
     Since the reservations created by ANILCA have plenty of water, the need to use adjacent waters to preserve the landscape “is too remote to require the secretaries to identify upstream and downstream waters as subject to a reserved right,” the court found.
     Most of the ANILCA reservations were designed to protect lands from human interference, not set them apart for subsistence use, Kleinfeld noted. Thus, ANILCA’s authority need not extend to upstream and downstream waters near a federal reservation, but only to those bodies necessary to accomplish the reservation’s purpose.
     Since the plaintiffs had sought a declaration that the 1999 Rules must apply to upstream and downstream waters, instead of an enforcement action concerning a particular reservation’s purposes, the court said it could not grant the sought-after relief.
     “We cannot conclude that the secretaries acted arbitrarily, capriciously or contrary to law in declining to include upstream and downstream waters as currently within a reserved right for purposes of a rural subsistence priority, when subsistence uses in many cases were not specified as primary purposes of the reservations,” Kleinfeld wrote. “The Katie John plaintiffs’ demand would require us to ignore the central role those purposes play in applying the federal reserved water rights doctrine, and to make up out of nothing a notion that all federal reservations in Alaska require all upstream and downstream waters for purposes we or the plaintiffs, not Congress, claim. Such a holding would be inconsistent with … ANILCA, which simply ‘does not support such a complete assertion of federal control.”
     The panel also affirmed the secretaries’ decision to determine on a case-by-case basis which, if any, of the Alaska Native allotments are subject to federal water rights claims. The judges also upheld the secretaries’ decision to include selected-but-not-yet-conveyed lands under subsistence priority management because such lands belong to the federal government until it allots them to the state or a Native group.
     Katie John and Alaska were joined by the following other plaintiffs and intervenors: Charles Erhart; Alaska Inter-Tribal Council; Native Village of Tanana; Alaska Fish and Wildlife Conservation Fund; Alaska Fish and Wildlife Federation and Outdoor Council; John Conrad; and Michael Tinker.
     Alaska’s assistant attorney general Michael Mitchell argued for the plaintiffs. Will Sherman represented Tinker, Conrad and the wildlife groups. Heather Kendall-Miller with the Native American Fights Fund represented John, Earhart, and the Native American plaintiff groups.
     The United States of America had been named as a defendant alongside former secretary of agriculture Mike Johanns and Secretary of the Interior Sally Jewell, who substituted for her predecessor, Ken Salazar. The Alaska Federation of Natives intervened as a defendant.
     Justice Department attorney Elizabeth Ann represented the government. Robert Anderson with the University of Washington School of Law in Seattle represented the Alaska Federation of Natives.

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