United States of America v. State of Alaska

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-2251

D.C. No.

Plaintiff - Appellee,

1:22-cv-00054-

SLG

KUSKOKWIM RIVER INTER-

TRIBAL FISH COMMISSION;

ASSOCIATION OF VILLAGE

COUNCIL PRESIDENTS; BETTY OPINION

MAGNUSON; IVAN M. IVAN;

AHTNA TENE NENE; AHTNA,

INC.; ALASKA FEDERATION OF

NATIVES,

Intervenor-Plaintiffs -

Appellees,

v.

STATE OF ALASKA; ALASKA

DEPARTMENT OF FISH AND

GAME; DOUG VINCENT-LANG,

in his official capacity as

Commissioner of the Alaska

Department of Fish & Game,

Defendants - Appellants.

2 USA V. STATE OF ALASKA

Appeal from the United States District Court

for the District of Alaska

Sharon L. Gleason, Chief District Judge, Presiding

Argued and Submitted June 23, 2025

Seattle, Washington

Filed August 20, 2025

Before: Consuelo M. Callahan, Roopali H. Desai, and Ana

de Alba, Circuit Judges.

Opinion by Judge Callahan

SUMMARY *

Alaska National Interest Lands Conservation Act

The panel affirmed the district court’s summary

judgment in favor of the United States and Intervenors

(“Plaintiffs”), and permanent injunction, in Plaintiffs’ action

seeking to preclude the State of Alaska from taking actions

that interfere with federal efforts to implement a rural

subsistence priority established by the Alaska National

Interest Lands Conservation Act (“ANILCA”).

Title VIII of ANILCA established the rural subsistence

priority, which generally provides that rural Alaska residents

who fish and hunt for subsistence purposes are given priority

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

USA V. STATE OF ALASKA 3

over others in fishing and hunting on “public lands”

whenever it is necessary to restrict fishing and hunting to

protect the rural subsistence users’ ability to continue their

subsistence uses. The Ninth Circuit resolved the meaning of

“public lands” as used in Title VIII, and the geographic

scope of the rural subsistence priority, in a series of decisions

dubbed the Katie John Trilogy. Subsequently, the Supreme

Court considered the meaning of “public lands” as used in

Title I of ANILCA, and declined to interpret the term to

include navigable waters in which the United States holds

reserved water rights, in Sturgeon v. Frost (Sturgeon II), 587

U.S. 28, 42-45 (2019). Pursuant to 1999 Rules upheld in

Katie John III, the United States implemented ANILCA’s

rural subsistence priority on the stretch of the Kuskokwim

River within the Yukon Delta National Wildlife Refuge. In

the wake of Sturgeon II, Alaska, apparently deciding it was

no longer bound by the Katie John Trilogy, asserted

authority over the entire River.

The panel rejected Alaska’s argument that the Katie John

Trilogy was wrongly decided and was overruled by Sturgeon

II. The panel held that the decisions can be reasonably

harmonized on the ground that the distinct context and

statutory objective of Title VIII calls for an interpretation of

“public lands” that includes navigable waters, where

subsistence fishing has traditionally taken place. In

addition, immediately after Katie John I, Congress passed

appropriations acts that signaled its approval of Katie John

I’s interpretation of “public lands” for purposes of Title

VIII. Finally, the panel rejected Alaska’s argument that the

Katie John Trilogy was clearly irreconcilable with Sackett v.

Environmental Protection Agency, 598 U.S. 651, 679

(2023), because Sackett did not constitute “intervening”

authority sufficient to revisit the Katie John Trilogy.

4 USA V. STATE OF ALASKA

COUNSEL

Daniel Halainen (argued), Paul A. Turcke, and Kevin W.

McArdle, Attorneys, Environment & Natural Resources

Division; Todd Kim, Assistant Attorney General; United

States Department of Justice, Washington, D.C.; for

Plaintiff-Appellee.

Nathaniel Amdur-Clark (argued), Whitney A. Leonard, and

Lloyd B. Miller, Sonosky Chambers Sachse Miller

Monkman LLP, Anchorage, Alaska; Jahna M. Lindemuth

(argued) and Scott M. Kendall, Cashion Gilmore &

Lindemuth, Anchorage, Alaska; Wesley J. Furlong, Megan

R. Condon, Sydney A. Tarzwell, Kirsten D. Gerbatsch, Erin

C. Dougherty Lynch, and Heather R. Kendall Miller, Native

American Rights Fund, Anchorage, Alaska; Ambriel

Sandone and Nicholas P. Ostrovsky, Ahtna Inc., Anchorage,

Alaska; Andrew B. Erickson, John M. Sky Starkey, Anna C.

Crary, and River E.M. Sterne, Landye Bennett Blumstein

LLP, Anchorage, Alaska; for Intervenor-Plaintiffs-

Appellees.

J. Michael Connolly (argued), Steven C. Begakis, and

Zachary P. Grouev, Consovoy McCarthy Park PLLC,

Arlington, Virginia; Margaret Paton-Walsh and Aaron C.

Peterson, Assistant Attorneys General; Treg Taylor, Alaska

Attorney General, Office of the Alaska Attorney General,

Anchorage, Alaska; for Defendants-Appellants.

Lane Kisonak, Association of Fish & Wildlife Agencies,

Washington, D.C., for Amicus Curiae Association of Fish &

Wildlife Agencies.

Regina Lennox and Jeremy E. Clare, Safari Club

International, Washington, D.C., for Amicus Curiae Safari

Club International.

USA V. STATE OF ALASKA 5

Thomas A. Berry and Alexander R. Khoury, Cato Institute,

Washington, D.C., for Amicus Curiae Cato Institute.

OPINION

CALLAHAN, Circuit Judge:

The Alaska National Interest Lands Conservation Act

(“ANILCA”), Pub. L. No. 96-487, 94 Stat. 2371 (1980), has

multiple purposes, including to “provide the opportunity for

rural [Alaska] residents engaged in a subsistence way of life

to continue to do so.” 16 U.S.C. § 3101(c). To fulfill this

purpose, Title VIII of ANILCA (codified at 16 U.S.C.

§§ 3111-26) establishes the “rural subsistence priority,”

which generally provides that rural Alaska residents who

fish and hunt for subsistence purposes are given priority over

others in fishing and hunting on “public lands” whenever it

is necessary to restrict fishing and hunting to protect the rural

subsistence users’ ability to continue their subsistence uses.

See id. §§ 3111-15.

We resolved the meaning of the term “public lands” as

used in Title VIII—and, therefore, the geographic scope of

the rural subsistence priority—more than a decade ago in a

series of decisions dubbed the Katie John Trilogy. In Katie

John I, we held that “public lands” includes navigable waters

in which the United States holds reserved water rights.

Alaska v. Babbitt (Katie John I), 72 F.3d 698, 704 (9th Cir.

1995), cert. denied, 517 U.S. 1187 (1996), and cert. denied

sub nom., Alaska Fed’n of Natives v. United States, 517 U.S.

1187 (1996). Then, sitting en banc in Katie John II, we

maintained the holding of Katie John I. John v. United

States (Katie John II), 247 F.3d 1032 (9th Cir. 2001) (en

6 USA V. STATE OF ALASKA

banc) (per curiam). Finally, in Katie John III, we upheld

regulations identifying the navigable waters that constitute

“public lands” because the United States holds reserved

water rights in them. John v. United States (Katie John III),

720 F.3d 1214, 1245 (9th Cir. 2013), cert. denied sub nom.,

Alaska v. Jewell, 572 U.S. 1042 (2014).

Recently, the Supreme Court considered the meaning of

“public lands” as used in another part of ANILCA—Section

103(c) in Title I (codified at 16 U.S.C. § 3103(c))—and

declined to interpret the term to include navigable waters in

which the United States holds reserved water rights.

Sturgeon v. Frost (Sturgeon II), 587 U.S. 28, 42-45 (2019).

In Sturgeon II, Alaska changed its prior course and defended

the Katie John Trilogy, arguing that “public lands” has a

different meaning in 16 U.S.C. § 3103(c) than in Title VIII,

that the Katie John Trilogy’s reserved water rights

interpretation is proper in the latter context, and that the

Katie John Trilogy should be preserved because rural

Alaskans rely on it. Br. of Amicus Curiae State of Alaska in

Support of Pet’r at 29-35, Sturgeon II, 587 U.S. 28 (No. 17-

949), 2018 WL 4063284, at *29-35. In response, the

Supreme Court, citing Alaska’s amicus brief, included a

footnote in Sturgeon II stating that “[Title VIII’s

subsistence-fishing] provisions are not at issue in this case,

and we therefore do not disturb the Ninth Circuit’s holdings

[in the Katie John Trilogy] that the Park Service may

regulate subsistence fishing on navigable waters.” 587 U.S.

at 45 n.2.

Alaska now claims that the Katie John Trilogy was

wrongly decided and has been overruled by Sturgeon II.

More specifically, because three-judge panels of this court

are bound by circuit precedent unless it is “clearly

irreconcilable” with intervening higher authority, see Miller

USA V. STATE OF ALASKA 7

v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc),

Alaska argues that the Katie John Trilogy is clearly

irreconcilable with Sturgeon II.

We hold that it is not. As explained below, the decisions

can be reasonably harmonized on the ground that the distinct

context and statutory objective of Title VIII call for an

interpretation of “public lands” that includes navigable

waters, where subsistence fishing “has traditionally taken

place.” Katie John I, 72 F.3d at 702. Additionally,

immediately after Katie John I, Congress passed

appropriations acts that signaled its approval of Katie John

I’s interpretation of “public lands” for purposes of Title VIII.

Although Katie John, the Ahtna woman who advocated for

subsistence fishing rights on behalf of Alaska Natives, has

since passed away, the precedent that bears her name lives

on.

I.

To put it mildly, we do not write on a clean slate.

Therefore, we begin with the relevant legal background.

A.

In 1980, Congress passed ANILCA, which “set aside

104 million acres of federally owned land in Alaska for

preservation purposes.” Sturgeon II, 587 U.S. at 36 (citation

omitted). In doing so, Congress created or expanded a

number of “conservation system units”—ANILCA’s term

for national parks, refuges, preserves, and the like. Id. at 37

(citations omitted); see 16 U.S.C. § 3102(4).

Title I of ANILCA includes three sections: one setting

forth ANILCA’s purposes, 16 U.S.C. § 3101; another

providing its definitions, id. § 3102; and a third concerning

the boundaries of its conservation system units and the

8 USA V. STATE OF ALASKA

application of regulations within them, id. § 3103. As

previously noted, one of Act’s purposes is “to provide the

opportunity for rural residents engaged in a subsistence way

of life to continue to do so,” “consistent with management

of fish and wildlife in accordance with recognized scientific

principles and the purposes for which each conservation

system unit is established, designated, or expanded by or

pursuant to this Act.” Id. § 3101(c).

This is the purpose of Title VIII, in particular, id.

§ 3112(1), which includes its own declaration of supporting

Congressional findings, id. § 3111. Title VIII establishes the

“rural subsistence priority,” Katie John III, 720 F.3d at 1219,

which provides that with respect to “the taking on public

lands of fish and wildlife,” “nonwasteful subsistence uses”

by rural Alaska residents “shall be accorded priority over . . .

other purposes” whenever “it is necessary to restrict the

taking of populations of fish and wildlife on such lands for

subsistence uses in order to protect the continued viability of

such populations, or to continue such uses.” 1 16 U.S.C.

§ 3114; see id. §§ 3113-15. Such restrictions are to be

implemented based on “(1) customary and direct

dependence upon the populations as the mainstay of

livelihood; (2) local residency; and (3) the availability of

alternative resources.” Id. § 3114.

Title VIII charges the Secretary of the Interior and the

Secretary of Agriculture (collectively, “Secretaries”) with

1

“[S]ubsistence uses” are “the customary and traditional uses by rural

Alaska residents of wild, renewable resources for direct personal or

family consumption as food, shelter, fuel, clothing, tools, or

transportation; for the making and selling of handicraft articles out of

nonedible byproducts of fish and wildlife resources taken for personal or

family consumption; for barter, or sharing for personal or family

consumption; and for customary trade.” 16 U.S.C. § 3113.

USA V. STATE OF ALASKA 9

implementing the rural subsistence priority. Id. § 3115; see

id. § 3102(12). However, Title VIII also provides that if

Alaska “enacts and implements laws of general applicability

which are consistent with” ANILCA’s rural subsistence

priority, then the Secretaries “shall not” implement it. Id.

§ 3115(d). “In other words, ANILCA expresses a preference

for state management of the rural subsistence priority . . . but

provides that [the Secretaries] may step in where the State

fails to act.” Katie John III, 720 F.3d at 1219 (citing 16

U.S.C. § 3202(a)).

B.

In 1978, in anticipation of the enactment of ANILCA,

the Alaska Legislature enacted a statutory subsistence

priority. Id. State agencies subsequently adopted

regulations to establish a preference for rural residents, and

the Secretary of the Interior certified Alaska’s law as

consistent with ANILCA’s rural subsistence priority. Id.

But in 1985, the Alaska Supreme Court struck down the state

regulations on the ground that their rural preference was

inconsistent with the state statute. Madison v. Alaska Dep’t

of Fish & Game, 696 P.2d 168, 178 (Alaska 1985).

In response, the Alaska Legislature amended the state

statute to limit its subsistence priority to rural residents. See

McDowell v. State, 785 P.2d 1, 3 (Alaska 1989). But in

1989, the Alaska Supreme Court struck down the amended

statute on the ground that the rural preference violated state

constitutional provisions that protect equal access to fish and

game. Id. at 5-9.

Although the Alaska Supreme Court temporarily stayed

its decision to give the Alaska Legislature “an opportunity to

amend the constitution or otherwise bring its program into

compliance with ANILCA,” the Alaska Legislature failed to

10 USA V. STATE OF ALASKA

do so. Katie John I, 72 F.3d at 701. “Implementation of

ANILCA’s rural subsistence priority accordingly fell back

to the federal government in July 1990.” Katie John III, 720

F.3d at 1221.

C.

In connection with the federal government assuming

management of ANILCA’s rural subsistence priority, the

Secretaries promulgated temporary regulations in 1990 and

then permanent regulations in 1992 (“1992 Rules”). See

Temporary Subsistence Management Regulations for Public

Lands in Alaska, 55 Fed. Reg. 27114 (June 29, 1990);

Subsistence Management Regulations for Public Lands in

Alaska, 57 Fed. Reg. 22940 (May 29, 1992). Among other

things, the rules addressed the geographic scope of the rural

subsistence priority by interpreting the term “public lands”

as used in Title VIII. 57 Fed. Reg. at 22942, 22951; see also

55 Fed. Reg. at 27115, 27118.

ANILCA’s definitions section defines “public lands” as

follows:

(1) The term “land” means lands, waters, and

interests therein.

(2) The term “Federal land” means lands the

title to which is in the United States after

December 2, 1980.

(3) The term “public lands” means land

situated in Alaska which, after December 2,

1980, are Federal lands, except--

(A) land selections of the State of Alaska

which have been tentatively approved or

validly selected under the Alaska

USA V. STATE OF ALASKA 11

Statehood Act and lands which have been

confirmed to, validly selected by, or

granted to the Territory of Alaska or the

State under any other provision of

Federal law;

(B) land selections of a Native

Corporation made under the Alaska

Native Claims Settlement Act which have

not been conveyed to a Native

Corporation, unless any such selection is

determined to be invalid or is

relinquished; and

(C) lands referred to in section 19(b) of

the Alaska Native Claims Settlement Act.

16 U.S.C. § 3102. Thus, “public lands” generally includes

“lands, waters, and interests therein” “situated in Alaska”

“the title to which is in the United States.” Id. § 3102(1)-(3).

The 1992 Rules interpreted “public lands” to generally

exclude navigable waters because “the United States does

not generally own title to the submerged lands beneath

navigable waters in Alaska.” 57 Fed. Reg. at 22942. For

context, Alaska generally holds title to the submerged lands

because the Alaska Statehood Act, Pub. L. No. 85-508,

§ 6(m), 72 Stat. 339, 343 (1958), incorporated the

Submerged Lands Act, which granted states “title to and

ownership of the lands beneath navigable waters within

[their] boundaries,” Pub. L. No. 83-31, § 3(a), 67 Stat. 29,

30 (1953) (codified at 43 U.S.C. § 1311(a)). Also, such title

generally “brings with it regulatory authority over

‘navigation, fishing, and other public uses.’” Sturgeon II,

12 USA V. STATE OF ALASKA

587 U.S. at 35 (quoting United States v. Alaska, 521 U.S. 1,

5 (1997)).

The 1992 Rules led to the Katie John I litigation. “At

one extreme,” Alaska defended the rules’ position that

“public lands” generally excludes navigable waters because

the United States “does not hold title to them.” Katie John

I, 72 F.3d at 702. “At the other extreme,” Alaska Natives

took the position that “public lands” includes all navigable

waters in Alaska because the United States holds an

“interest” in those waters—its navigational servitude. Id.

“[I]n the middle,” the United States adopted a new position:

that “public lands” includes some navigable waters—those

in which the United States holds an “interest” pursuant to the

reserved water rights doctrine. Id. at 701-02. That doctrine

generally provides that “[w]hen the Federal Government

withdraws its land from the public domain and reserves it for

a federal purpose, the Government, by implication, reserves

appurtenant water then unappropriated to the extent needed

to accomplish the purpose of the reservation.” Sturgeon II,

587 U.S. at 43 (quoting Cappaert v. United States, 426 U.S.

128, 138 (1976)).

In Katie John I, we rejected Alaska’s interpretation. In

doing so, we explained that we had “no doubt that Congress

intended that public lands include at least some navigable

waters,” because “ANILCA’s language and legislative

history” “clearly indicate that subsistence uses include

subsistence fishing,” and “subsistence fishing has

traditionally taken place in navigable waters.” Katie John I,

72 F.3d at 702 (citing 16 U.S.C. § 3113). Thus, Alaska’s

interpretation would “undermine congressional intent to

protect and provide the opportunity for subsistence fishing.”

Id. at 704. We also rejected the Alaska Natives’ preferred

interpretation, including on the ground that the navigational

USA V. STATE OF ALASKA 13

servitude is “‘a concept of power, not of property’” and not

an “interest” to which the United States holds “title” in the

relevant sense. Id. at 702-03 (quoting United States v.

Certain Parcels of Land, 666 F.2d 1236, 1238 (9th Cir.

1982)); see also City of Angoon v. Hodel, 803 F.2d 1016,

1027 n.6 (9th Cir. 1986). We further concluded that

ANILCA did “not support” a “complete assertion of federal

control” over all navigable waters in Alaska. Katie John I,

72 F.3d at 704.

Finally, applying Chevron, we adopted the United

States’ reserved water rights interpretation. Id. at 703-04.

We reasoned that the United States holds “interests in some

navigable waters” because when the United States “reserved

vast parcels of land in Alaska for federal purposes through a

myriad of statutes” (including ANILCA), it “also implicitly

reserved appurtenant waters, including appurtenant

navigable waters, to the extent needed to accomplish the

purposes of the reservations.” Id. at 703. Given that the

1992 Rules included a different interpretation of “public

lands,” we expressed “hope” that the Secretaries would

“determine promptly” the navigable waters in which the

United States holds reserved water rights such that the

waters are “public lands subject to federal subsistence

management.” Id. at 704.

D.

In April 1996, just months after the Katie John I decision

was published, the Secretaries issued an advance notice of

proposed rulemaking to identify the navigable waters in

which the United States holds reserved water rights.

Subsistence Management Regulations for Public Lands in

Alaska, 61 Fed. Reg. 15014, 15015, 15018 (proposed April

4, 1996). Meanwhile, Congress passed an appropriations act

14 USA V. STATE OF ALASKA

(“1996 Appropriations Act”) that included a provision

preventing the Secretaries from using appropriated funds to

implement the rural subsistence priority on navigable waters

where Alaska held title to the submerged lands. Omnibus

Consolidated Rescissions and Appropriations Act of 1996,

Pub. L. No. 104-134, § 336, 110 Stat. 1321, 1321-210

(1996). Later that year, Congress passed another

appropriations act (“1997 Appropriations Act”) with a

similar provision. Omnibus Consolidated Appropriations

Act, 1997, Pub. L. No. 104-208, § 317, 110 Stat. 3009, 3009-

222 (1996). Thus, in effect, Congress temporarily delayed

federal implementation of Katie John I’s holding that

“public lands” includes navigable waters in which the United

States holds reserved water rights, even where Alaska holds

title to the submerged lands.

A year later, in November 1997, Congress passed

another appropriations act (“1998 Appropriations Act”) that

did two things. Department of the Interior and Related

Agencies Appropriations Act, 1998, Pub. L. No. 105-83, 111

Stat. 1543 (1997). First, like the previous acts, it prevented

the Secretaries from using appropriated funds prior to

December 1, 1998, to implement the rural subsistence

priority on navigable waters where Alaska held title to the

submerged lands. Id. § 316(a). Second, it made

amendments to Title VIII, which would be repealed if

Alaska failed to amend state law to bring it into compliance

with the rural subsistence priority by December 1, 1998. Id.

§ 316(d).

USA V. STATE OF ALASKA 15

Specifically, the 1998 Appropriations Act amended Title

VIII’s declaration of Congressional findings to read as

follows:

(b) The Congress finds and declares further

that . . .

(4) in accordance with title VIII of this

Act, the Secretary of the Interior is

required to manage fish and wildlife for

subsistence uses on all public lands in

Alaska because of the failure of State law

to provide a rural preference;

(5) the Ninth Circuit Court of Appeals

determined in 1995 in State of Alaska v.

Babbitt (73 F.3d 698) that the subsistence

priority required on public lands under

section 804 of this Act applies to

navigable waters in which the United

States has reserved water rights as

identified by the Secretary of the Interior;

(6) management of fish and wildlife

resources by State governments has

proven successful in all 50 States,

including Alaska, and the State of Alaska

should have the opportunity to continue

to manage such resources on all lands,

including public lands, in Alaska in

accordance with this Act, as amended;

and

(7) it is necessary to amend portions of

this Act to restore the original intent of

Congress to protect and provide for the

16 USA V. STATE OF ALASKA

continued opportunity for subsistence

uses on public lands for Alaska Native

and non-Alaska Native rural residents

through the management of the State of

Alaska.

Id. § 316(b)(3). Additionally, the act amended part of the

definition of “public lands” by adding a second sentence to

the definition of “Federal lands”: “The term ‘Federal land’

means lands the title to which is in the United States after

December 2, 1980. ‘Federal land’ does not include lands the

title to which is in the State, an Alaska Native corporation,

or other private ownership.” Id. § 316(b)(2). Around the

same time, the Secretaries issued a notice of proposed

rulemaking consistent with the advance notice of proposed

rulemaking they had previously published. Subsistence

Management Regulations for Public Lands in Alaska, 62

Fed. Reg. 66216 (proposed Dec. 17, 1997).

The following year, in October 1998, Congress passed

another appropriations act (“1999 Appropriations Act”) that

again delayed federal implementation of Katie John I and

gave Alaska yet another chance to bring state law into

compliance with ANICLA’s rural subsistence priority.

Omnibus Consolidated and Emergency Supplemental

Appropriations Act, Pub. L. No. 105-277, Div. A, sec.

101(e), § 339, 112 Stat. 2681, 2681-251-52, 2681-271,

2681-295-96 (1998). The act appropriated a total of

$11,000,000 for implementation of the rural subsistence

priority and provided that the funds would go to Alaska if

the Alaska Legislature passed a proposal to amend the state

constitution by October 1, 1999. Id. But if the Alaska

Legislature failed to do so, the funds would go to the

USA V. STATE OF ALASKA 17

Secretaries, and the restriction on their ability to use the

funds would be lifted. Id.

The Secretaries then published their final rule (“1999

Rules”), which interpreted “public lands” to include “all

navigable and non-navigable water” within and appurtenant

to more than 30 federal land units. Subsistence Management

Regulations for Public Lands in Alaska, 64 Fed. Reg. 1276,

1287 (Jan. 8, 1999). Consistent with the 1999

Appropriations Act, the 1999 Rules provided that they

would take effect on October 1, 1999, if the Alaska

Legislature failed to pass the requisite constitutional

proposal by then. Id. at 1276.

The Alaska Legislature failed to pass the proposal. 2 As

a result, the 1999 Rules took effect, and the Secretaries were

free to use the appropriated funds to implement Katie John

I.

E.

The Katie John I district court, “which had retained

jurisdiction over the consolidated challenges to the 1992

Rules on remand from Katie John I, concluded that the

action should not serve as the vehicle for challenges to the

1999 Rules.” Katie John III, 720 F.3d at 1222. After the

district court entered a final judgment, Alaska appealed, and

we granted initial hearing en banc. Id. at 1223. In a decision

known as Katie John II, we issued a short opinion holding

that Katie John I “should not be disturbed or altered by the

2

Days before the deadline, the Alaska House of Representatives passed

a proposal to amend the constitution. See H.R.J. Res. 202, 21st Leg., 2d

Spec. Sess. (Alaska 1999); Alaska H.R.J., 21st Leg., 2d Spec. Sess., at

1854-55 (1999). But it fell just shy of the requisite two-thirds vote

needed to pass the Senate. See Alaska S.J., 21st Leg., 2d Spec. Sess., at

1881-82 (1999).

18 USA V. STATE OF ALASKA

en banc court.” Katie John II, 247 F.3d at 1033. This time,

Alaska declined to file a petition for certiorari, with Alaska’s

Governor announcing that he had decided to “stop a losing

legal strategy that threatens to make a permanent divide

among Alaskans.” Alaska Governor Won’t Fight

Subsistence Fishing Ruling, L.A TIMES (Aug. 28, 2001),

https://perma.cc/YT9H-68BX.

But the litigation continued, with Alaska and Alaska

Natives both challenging the 1999 Rules. Katie John III, 720

F.3d at 1223-24. Alaska argued that the rural subsistence

priority should have narrower application, and the Alaska

Natives argued that it should have broader application. Id.

In Katie John III, we rejected both sides’ challenges,

concluding that “in the 1999 Rules, the Secretaries have

applied Katie John I and the federal reserved water rights

doctrine in a principled manner.” Id. at 1245.

F.

Several years later, the Supreme Court was presented

with a case concerning the meaning of “public lands” as the

term is used in 16 U.S.C. § 3103(c), within Title I of

ANILCA. As noted above, that section concerns the

boundaries of ANILCA’s conservation system units and the

application of regulations within them. By way of

background, when Congress “sketch[ed]” the “boundary

lines” of ANILCA’s conservation system units, it “made an

uncommon choice—to follow ‘topographic or natural

features,’ rather than enclose only federally owned lands.”

Sturgeon II, 587 U.S. at 37 (quoting 16 U.S.C. § 3103(b)).

This is in part because Congress’s “prior cessions of

property to the State and Alaska Natives had created a

‘confusing patchwork of ownership’” that was “all but

impossible to draw one’s way around.” Id. (citation

USA V. STATE OF ALASKA 19

omitted). As a result, “more than 18 million acres of state,

Native, and private land”—known as “inholdings”—

“wound up inside” the conservation system units. Id. at 38

(citation omitted). To limit the geographic scope of

regulations “applicable solely to public lands within such

units,” 16 U.S.C. § 3103(c) provides that “[o]nly those lands

within the boundaries” of a 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” and that State, Native, or

private lands shall not be subject to such regulations.

John Sturgeon was a hunter who wished to use his

hovercraft on a portion of the Nation River within a

conservation system unit to reach remote areas to hunt

moose. Sturgeon II, 587 U.S. at 31-32. But a National Park

Service (“NPS”) regulation banned hovercrafts on waters

“located within the boundaries of the National Park System,

including navigable waters . . . without regard to the

ownership of submerged lands. . . .’” 36 C.F.R. § 1.2(a).

Relying on 16 U.S.C. § 3103(c), Sturgeon argued that NPS

could not apply its regulatory hovercraft ban on the Nation

River on the ground that the Nation River does not fall

within the meaning of “public lands” as the term is used in

that section.

The Supreme Court agreed with Sturgeon and rejected

the United States’ argument that, under the reserved water

rights doctrine, it holds “title to” an “interest” in the relevant

stretch of the Nation River. Sturgeon II, 587 U.S. at 42-45.

First, the Court observed that reserved water rights “are

‘usufructuary’ in nature, meaning that they are rights for the

[United States] to use—whether by withdrawing or

maintaining—certain waters it does not own.” Id. at 43

(citation omitted). Although the United States “ha[d] found

a couple of old cases suggesting that a person can hold ‘title’

20 USA V. STATE OF ALASKA

to such usufructuary interests,” the Court explained that “the

more common understanding . . . is that ‘reserved water

rights are not the type of property interests to which title can

be held’; rather, ‘the term “title” applies’ to ‘fee ownership

of property’ and (sometimes) to ‘possessory interests’ in

property like those granted by a lease.” Id. at 43-44

(citations omitted). The Court “[saw] no evidence that the

Congress enacting ANILCA meant to use the term in any

less customary and more capacious sense.” Id. at 44.

Second, “even assuming” it was possible for the United

States to hold “title to” a reserved water right, the Court

declined to adopt the United States’ reserved water rights

interpretation. Id. As the Court explained, the term “public

lands” only includes the United States’ “specific ‘interest’”

in the relevant body of water. Id. (citations omitted). And a

reserved water right “by its nature” “merely enables the

Government to take or maintain the specific ‘amount of

water’—and ‘no more’—required to ‘fulfill the purpose of

[its land] reservation.’” Id. (quoting Cappaert, 426 U.S. at

141). Because the regulatory hovercraft ban was not

intended to prevent “depletion or diversion” of the water or

to otherwise “safeguard[] the water,” it exceeded the United

States’ interest and therefore the river did not constitute

“public lands” for purposes of 16 U.S.C. § 3103(c). Id. at

45.

Although Alaska had previously fought the Katie John

Trilogy’s reserved water rights interpretation of “public

lands” for purposes of Title VIII, Alaska adopted a new

position in Sturgeon II. In an amicus brief in support of

Sturgeon, Alaska argued that while the Supreme Court

should adopt Sturgeon’s interpretation of “public lands” for

purposes of 16 U.S.C. § 3103(c), the Court “need not and

should not disturb the Katie John circuit precedents”

USA V. STATE OF ALASKA 21

interpreting “public lands” for purposes of Title VIII. Br. of

Amicus Curiae State of Alaska at 29, 2018 WL 4063284, at

*29 (citation modified). Alaska contended that “public

lands” has a different meaning in Title VIII, id. at 34; that

the Katie John Trilogy’s interpretation of “public lands” is

“proper[]” in that context, id.; and that the Court “should

preserve the Katie John precedents” for “prudential and

policy reasons,” including because “in the nearly twenty

years since the federal government assumed management

of subsistence activities on federal lands in Alaska, rural

Alaskans have depended on this subsistence priority to

effectuate [the important values embodied by subsistence]

and [to] preserve their way of life,” id. at 31-32.

Citing Alaska’s amicus brief, the Supreme Court

included the following footnote 2 in its opinion:

As noted earlier, the Ninth Circuit has held in

three cases—the so-called Katie John

trilogy—that the term “public lands,” when

used in ANILCA’s subsistence-fishing

provisions, encompasses navigable waters

like the Nation River. See Alaska v. Babbitt,

72 F.3d 698 (1995); John v. United States,

247 F.3d 1032 (2001) (en banc); John v.

United States, 720 F.3d 1214 (2013); supra,

at 1078. Those provisions are not at issue in

this case, and we therefore do not disturb the

Ninth Circuit’s holdings that the Park Service

may regulate subsistence fishing on

navigable waters. See generally Brief for

State of Alaska as Amicus Curiae 29-35

(arguing that this case does not implicate

22 USA V. STATE OF ALASKA

those decisions); Brief for Ahtna, Inc.,

as Amicus Curiae 30-36 (same).

Sturgeon II, 587 U.S. at 45 n.2.

II.

That brings us to the present case. Before flowing into

the Bering Sea, the Kuskokwim River (“River”) runs for

approximately 180 miles through the Yukon Delta National

Wildlife Refuge (“Refuge”). Within the Refuge, the River

is navigable, and Alaska holds title to the submerged lands.

Pursuant to the 1999 Rules upheld in Katie John III, the

Secretaries have implemented ANILCA’s rural subsistence

priority on the stretch of the River within the Refuge. See

Katie John III, 720 F.3d at 1232-33 & n.107; see 36 C.F.R.

§ 242.3(b); 43 C.F.R. § 51.3(b). But in the wake of Sturgeon

II, Alaska’s Department of Fish & Game (“ADF&G”)—

apparently deciding that it was no longer bound by the Katie

John Trilogy—asserted authority over the entire River,

notwithstanding efforts by the Refuge Manager to

implement the rural subsistence priority. 3

The River is home to five types of salmon—Chinook,

chum, sockeye, coho, and pink—all of which follow the

same life cycle. The salmon hatch from fertilized eggs in

freshwater, then migrate to the ocean to feed for several

years, and later return to the freshwater to spawn. Upon their

return, the females deposit eggs, the males fertilize them, and

the cycle begins anew.

3

The Refuge Manager exercises authority delegated by the Federal

Subsistence Board (“FSB”), which administers the rural subsistence

priority. 36 C.F.R. § 242.10; 43 C.F.R. § 51.10.

USA V. STATE OF ALASKA 23

As the Refuge Manager has explained, the residents of

the local villages within the Refuge along the River and its

tributaries “are almost entirely federally qualified

subsistence users, both native and nonnative, who are highly

dependent on salmon as a source of food.” Also, for these

communities, subsistence fishing is more than a source of

food; it is deeply engrained in their culture and identity.

In recent years, the populations of Chinook and chum

have declined, causing concern among the federal and state

authorities, as well as the Kuskokwim River Inter-Tribal

Fish Commission. In response, the Refuge Manager issued

emergency special actions for the 2021 and 2022 fishing

seasons to ensure that Chinook escapement targets 4 would

be met, while also “allowing at least some opportunity for

federally qualified local residents to address their

subsistence needs.”

In 2021, the Refuge Manager closed parts of the River to

gillnet fishing starting on June 1 but provided exceptions for

federally qualified rural subsistence users to use gillnets on

specified days. ADF&G issued conflicting orders, including

orders that purported to authorize gillnet fishing by all

subsistence users (i.e., including non-rural subsistence users)

on a different set of days. (Recall that Alaska’s subsistence

law, unlike ANILCA, does not provide preference for rural

subsistence users. See generally State v. Kenaitze Indian

Tribe, 894 P.2d 632 (Alaska 1995); McDowell, 785 P.2d at

1, 5-9.)

4

Per the Refuge Manager, “escapement” refers to “the number of fish

that are allowed to reach the spawning grounds with the goal of ensuring

the continuation of healthy populations into the future.”

24 USA V. STATE OF ALASKA

In 2022, the Refuge Manager once more closed parts of

the River to gillnet fishing starting on June 1 but provided

exceptions for federally qualified rural subsistence users to

use gillnets on specified days. Again, ADF&G issued

conflicting orders that purported to authorize fishing by all

subsistence users.

III.

On May 17, 2022, the United States sued the State of

Alaska, ADF&G, and the Commissioner of ADF&G

(collectively, “Alaska”), seeking declaratory and injunctive

relief to preclude Alaska from taking actions that interfere

with federal efforts to implement ANILCA’s rural

subsistence priority. The district court granted motions to

intervene in support of the United States by the Kuskokwim

River Inter-Tribal Fish Commission; the Association of

Village Council Presidents; Betty Magnuson and Ivan Ivan;

Ahtna Tene Nené and Ahtna, Inc.; and the Alaska Federation

of Natives.

After initially granting a preliminary injunction in the

summer of 2022, United States v. Alaska, 608 F. Supp. 3d

802 (D. Alaska 2022), the district court granted summary

judgment to the United States and the Intervenors

(collectively, “Plaintiffs”) and entered a permanent

injunction in the spring of 2024, United States v. Alaska, No.

1:22-cv-00054-SLG, 2024 WL 1348632 (D. Alaska Mar. 24,

2024). As is relevant here, the district court concluded that

the Katie John Trilogy was not clearly irreconcilable with

Sturgeon II and therefore remained binding law. Alaska,

2024 WL 1348632, at *8.

USA V. STATE OF ALASKA 25

Alaska timely appealed. 5

IV.

“[W]here the reasoning or theory of our prior circuit

authority is clearly irreconcilable with the reasoning or

theory of intervening higher authority, a three-judge panel

should consider itself bound by the later and controlling

authority, and should reject the prior circuit opinion as

having been effectively overruled.” Miller, 335 F.3d at 893.

However, “we are bound by our prior precedent if it can be

reasonably harmonized with the intervening authority.” Lair

v. Bullock, 697 F.3d 1200, 1206 (9th Cir. 2012) (citation

omitted). Clear irreconcilability is a “high standard.” Id. at

1207 (citation omitted). “It is not enough for there to be

‘some tension’ between the intervening higher authority and

prior circuit precedent, or for the intervening higher

authority to ‘cast doubt’ on the prior circuit precedent.” Id.

(citations omitted).

We review the district court’s order de novo. Zellmer v.

Meta Platforms, Inc., 104 F.4th 1117, 1121 (9th Cir. 2024).

V.

Alaska’s primary argument is that the Katie John Trilogy

is clearly irreconcilable with Sturgeon II. Assuming that

Sturgeon II’s footnote 2 does not resolve this argument 6 and

5

In the proceedings below, Alaska also challenged the constitutionality

of the FSB under the Appointments Clause. The district court rejected

those arguments. Alaska, 2024 WL 1348632, at *8-12. Alaska initially

raised them again on appeal, but it has since withdrawn them.

6

Plaintiffs read Sturgeon II’s footnote broadly, arguing that because the

Supreme Court apparently adopted the “do not disturb” language from

the cited amicus briefs (including Alaska’s), the Supreme Court agreed

with the amici’s argument that “public lands” has a different meaning in

26 USA V. STATE OF ALASKA

that this argument is not barred by judicial estoppel or issue

preclusion, we conclude that the cases are not clearly

irreconcilable.

A.

1.

To begin, the definition of “public lands” applies to both

16 U.S.C. § 3103(c) and to Title VIII. See 16 U.S.C. § 3102.

Thus, the Katie John Trilogy and Sturgeon II may only be

reconciled on the basis that the term as defined may be given

different meanings in the two different parts of ANILCA.

And, as Alaska stresses, according to the presumption of

consistent usage, a word “is presumed to bear the same

meaning throughout a text.” Meza-Carmona v. Garland,

113 F.4th 1163, 1167 (9th Cir. 2024) (citations omitted).

However, this presumption “‘readily yields’ to context,

and a statutory term—even one defined in the statute—‘may

take on distinct characters from association with distinct

statutory objects calling for different implementation

strategies.’” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 320

(2014) (quoting Env’t Def. v. Duke Energy Corp., 549 U.S.

Title VIII than it does in 16 U.S.C. § 3103(c). See Br. of Amicus Curiae

State of Alaska at 29, 2018 WL 4063284, at *29 (arguing that “[The

Supreme] Court Need Not and Should Not Disturb the Katie John Circuit

Precedents”); Amicus Curiae Br. for Ahtna, Inc. in Support of Neither

Party at 30, Sturgeon II, 587 U.S. 28 (No. 17-949), 2018 WL 3952032,

at *30 (arguing that “The Katie John Doctrine Effectuates the ANILCA

Balance and Should Not Be Disturbed”). At a minimum, Plaintiffs

contend, the footnote means that the Katie John Trilogy and Sturgeon II

are not clearly irreconcilable. Alaska reads footnote 2 narrowly—as the

Supreme Court merely clarifying that it was not expressing any view on

whether the Katie John Trilogy’s interpretation of “public lands” is

correct for purposes of Title VIII. We assume without deciding that

Alaska reads the footnote correctly.

USA V. STATE OF ALASKA 27

561, 574 (2007)). For example, the Supreme Court has

given a defined term different meanings in different sections

of a statute when “the term standing alone is necessarily

ambiguous and each section must be analyzed to determine

whether the context gives the term a further meaning that

would resolve the issue.” Robinson v. Shell Oil Co., 519

U.S. 337, 343-44 (1997). The Court has also “declined to

apply a statutory definition that ostensibly governed where

doing so would have been ‘incompatible with . . . Congress’

regulatory scheme,’ or would have ‘destroy[ed] one of the

[statute’s] major purposes.’” Digital Realty Tr., Inc. v.

Somers, 583 U.S. 149, 163-64 (2018) (first quoting Util. Air

Regul. Grp., 573 U.S. at 322; and then quoting Lawson v.

Suwannee Fruit & S.S. Co., 336 U.S. 198, 201 (1949)).

Here, Plaintiffs argue that the presumption against consistent

usage is rebutted because the distinct context and objective

of Title VIII call for an interpretation of “public lands” that

is broader than Sturgeon II’s interpretation of the term in 16

U.S.C. § 3103(c).

Again, “public lands” is generally defined as “lands,

waters, and interests therein” “situated in Alaska” “the title

to which is in the United States.” 16 U.S.C. § 3102(1)-(3).

As Sturgeon II recognized, the words “title to” at times have

been used broadly to apply to “usufructuary interests,”

which are rights to use property that one does not own, such

as reserved water rights. 587 U.S. at 43-44 (citing Fed.

Power Comm’n v. Niagara Mohawk Power Corp., 347 U.S.

239, 246 (1954); Crum v. Mt. Shasta Power Corp., 30 P.2d

30, 36 (Cal. 1934); Radcliff’s Ex’rs v. Mayor of Brooklyn, 4

N.Y. 195, 196 (1850)). But “title to” is more commonly

understood to apply only to fee interests and “possessory

interests.” Id. at 44 (citations omitted). Seeing “no evidence

that the Congress enacting ANILCA meant to use” these

28 USA V. STATE OF ALASKA

words in the less common, broader sense, id. at 44, Sturgeon

II did not find 16 U.S.C. § 3103(c) to be ambiguous, id. at

46 n.3.

But that is not the end of the matter. “[O]ftentimes the

‘meaning—or ambiguity—of certain words or phrases may

only become evident when placed in context.’” King v.

Burwell, 576 U.S. 473, 486 (2015) (quoting FDA v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 132 (2000));

accord Robinson, 519 U.S. at 341. Accordingly, “when

deciding whether the language is plain,” we “must read the

words ‘in their context and with a view to their place in the

overall statutory scheme.’” King, 576 U.S. at 486 (quoting

Brown & Williamson, 529 U.S. at 133). Under Sturgeon II’s

interpretation of “title to,” the term “public lands” generally

excludes navigable waters. That is because no one can own

“running waters,” Sturgeon II, 587 U.S. at 42 (citing

Niagara Mohawk Power, 347 U.S. at 247, n.10), or “acquire

anything more than a mere usufructuary right” in them,

Niagara Mohawk Power, 347 U.S. at 247, n.10 (citation

omitted). In Sturgeon II, that did not pose a problem,

because the context of 16 U.S.C. § 3103(c)—which

concerns the scope of “regulations applicable solely to

public lands within [conservation system units]”—did not

indicate that the term “public lands” as used in that section

includes navigable waters. But Sturgeon II did not consider

Title VIII. Id. at 45 n.2.

2.

Title VIII contains a number of contextual clues that

“public lands”—and, therefore, “title to”—carries a broader

meaning in Title VIII, and they are sufficient to rebut the

presumption of consistent usage.

USA V. STATE OF ALASKA 29

The Title begins with a declaration of Congressional

findings, including that “the continuation of the opportunity

for subsistence uses by rural residents of Alaska, including

both Natives and non-Natives, on the public lands . . . is

essential,” 16 U.S.C. § 3111(1), and “threatened,” including

by the “taking of fish and wildlife in a manner inconsistent

with recognized principles of fish and wildlife

management,” id. § 3111(3). Congress also found that, “in

most cases, no practical alternative means are available to

replace the food supplies and other items gathered from fish

and wildlife which supply rural residents dependent on

subsistence uses,” id. § 3111(2). “[I]nvok[ing] its

constitutional authority over Native affairs and its

constitutional authority under the property clause and the

commerce clause,” id. § 3111(4), Title VIII then establishes

the rural subsistence priority, id. §§ 3113-15, the purpose of

which “is to provide the opportunity for rural residents

engaged in a subsistence way of life to do so,” “in

accordance with . . . the purposes for each unit established,

designated, or expanded by or pursuant to titles II through

VII of this Act,” id. § 3112(1); accord id. § 3101(c)

(emphasis added).

In turn, these cross-referenced titles provide that many

of ANILCA’s conservation system units shall offer the

opportunity for rural residents to continue to engage in

subsistence uses. In particular, Title III, which established

and added to 16 national wildlife refuges, provides that each

“is established and shall be managed” “to conserve fish and

wildlife populations” and “to provide . . . the opportunity for

continued subsistence uses by local residents.” 7

7

ANILCA, §§ 302(1)(B)(i) & (iii) (Alaska Peninsula National Wildlife

Refuge), (2)(B) (i) & (iii) (Becharof National Wildlife Refuge), (3)(B)(i)

30 USA V. STATE OF ALASKA

Additionally, Title II, which established and added to 13

national parks, provides that most of them either “shall be

managed” “to protect the viability of subsistence resources” 8

or that “[s]ubsistence uses by local residents shall be

permitted” within them “where such uses are traditional in

accordance with the provisions of title VIII.” 9

Collectively, the foregoing provisions make clear that

Congress intended the rural subsistence priority to apply to

the waters and to the fish populations that rural subsistence

users have traditionally fished and depended upon within

conservation system units. In particular, the sections setting

forth Title VIII’s purpose and findings explain that the rural

subsistence priority was established “to assure the continued

viability of . . . fish population[s]” and “the continuation of

subsistence uses of such population[s],” id. § 3112(2)

(emphases added); accord id. §§ 3111(1), (3), (4), (5), and

& (iii) (Innoko National Wildlife Refuge), (4)(B)(i) & (iii) (Kanuti

National Wildlife Refuge), (5)(B)(i) & (iii) (Koyukuk National Wildlife

Refuge), (6)(B)(i) & (iii) (Nowitna National Wildlife Refuge), (7)(B)(i)

& (iii) (Selawik National Wildlife Refuge), (8)(B)(i) & (iii) (Tetlin

National Wildlife Refuge), (9)(B)(i) & (iii) (Yukon Flats National

Wildlife Refuge), 303(1)(B)(i) & (iii) (Alaska Maritime National

Wildlife Refuge), (2)(B)(i), (iii) (Arctic National Wildlife Refuge),

(3)(B)(i) & (iii) (Izembek National Wildlife Range), (4)(B)(i) & (iii)

(Kenai National Wildlife Refuge), (5)(B)(i) & (iii) (Kodiak National

Wildlife Refuge), (6)(B)(i) & (iii) (Togiak National Wildlife Refuge),

(7)(B)(i) & (iii) (Yukon Delta National Wildlife Refuge).

8

ANILCA, § 201(2) (Bering Land Bridge National Preserve), (3) (Cape

Krusenstern National Monument), (6) (Kobuk Valley National Park).

9

ANILCA, § 201(1) (Aniakchak National Monument), (3) (Cape

Krusenstern National Monument), (4)(a) (Gates of the Arctic National

Park), (6) (Kobuk Valley National Park), (7)(b) (Lake Clark National

Park), (9) (Wrangell-Saint Elias National Park), ANILCA, § 202(3)

(Mount McKinley National Park).

USA V. STATE OF ALASKA 31

that it shall be managed with the input from rural subsistence

users who have “personal knowledge of local conditions and

requirements,” id. § 3111(5); accord § 3115. And the

section that establishes the rural subsistence priority states

that it shall be applied to “populations of fish” based on rural

subsistence users’ “customary and direct dependence upon

the [fish] populations as the mainstay of livelihood.” Id.

§ 3114.

As Katie John I recognized, “subsistence fishing has

traditionally taken place in navigable waters.” 72 F.3d at

702; see also, e.g., Native Village of Quinnagak v. United

States, 35 F.3d 388, 393 (9th Cir. 1994) (“Most subsistence

fishing (and most of the best fishing) is in the large navigable

waterways rather than in the smaller non-navigable

tributaries upstream and lakes where [fishermen] have

access to less fish.”). Accordingly, it follows that Title

VIII’s provisions indicate that “public lands” includes

navigable waters within conservation system units, as Katie

John I held.

The facts of this case help illustrate why that is so. The

rural subsistence communities here—like many others

throughout Alaska—have long lived and fished on a

navigable river. That is unsurprising because these

communities depend on salmon. 10 And, as explained above,

10

See Kuskokwim River Inter-Tribal Fish Comm’n, Kuskokwim River:

Salmon Situation Report 3 (2021), https://perma.cc/8SD3-23KC (by

weight, fish comprises up to 85% and salmon up to 53% of subsistence

harvests by village residents in the Kuskokwim region); see also Alaska

Dep’t of Fish and Game: Div. of Subsistence, Food Production and

Nutritional Values of Noncommercial Fish and Wildlife Harvests in

Alaska 3-4 (2019), https://perma.cc/G7GL-GF3F (by weight, fish

comprises 56.8 percent and salmon 32.3% of wild food harvests by

communities outside nonsubsistence areas).

32 USA V. STATE OF ALASKA

salmon run in navigable rivers in order to get from the ocean

to their spawning grounds. 11 See Katie John II, 247 F.3d at

1036 (Tallman, J., concurring) (“Fishing Alaska’s

navigable, salmonid-bearing waters has sustained Alaska’s

native populations since time immemorial.” (citations

omitted)); Metlakatla Indian Cmty. v. Egan, 369 U.S. 45, 46

(1962) (“Long before the white man came to Alaska, the

annual migrations of salmon from the sea into Alaska’s

rivers to spawn served as a food supply for the natives.”

(emphasis added)). Further, when fish populations are

threatened, these communities draw on their longstanding

knowledge of local conditions to advise the federal

authorities on implementation of the rural subsistence

priority, including through the Kuskokwim River Inter-

Tribal Fish Commission, an inter-tribal consortium that

represents the interests of 33 federally recognized tribes in

the Kuskokwim drainage area.

Alaska does not dispute that subsistence fishing has

traditionally occurred on navigable waters. Instead, it insists

that its interpretation of “public lands” would still include

some non-navigable bodies of water to which the United

States holds “title.” But it has not shown that subsistence

fishing traditionally occurred in those waters. 12 Therefore,

11

It is also unsurprising that these communities live on a navigable river

because they are unconnected to the road system, and the River therefore

serves as their road. See Sturgeon II, 587 U.S. at 57 (“[R]ivers function

as the roads of Alaska, to an extent unknown anyplace else in the

country. Over three-quarters of Alaska’s 300 communities live in

regions unconnected to the State’s road system.” (citation omitted)).

12

At most, Alaska’s citations merely indicate that the FSB currently

manages subsistence fishing on “lakes and ponds” affiliated with the

Kasilof River and the Kenai River. See Dep’t of Interior: Off. of

Subsistence Mgmt., Management Regulations for the Harvest of Fish

USA V. STATE OF ALASKA 33

it has failed to persuasively explain how its interpretation—

which excludes the waters and fish populations that rural

subsistence users have traditionally fished and depended

upon—can be harmonized with Title VIII’s provisions that

establish a rural subsistence priority to protect subsistence

fishing as traditionally practiced.

Accordingly, in light of Title VIII’s subsistence fishing

provisions, which Sturgeon II did not consider, Alaska has

not shown that the presumption of consistent usage does not

“yield to” the distinct context and objective of Title VIII,

Util. Air Regul. Grp., 573 U.S. at 320 (citation modified),

such that “public lands” may have a broader meaning within

that title that includes navigable waters.

B.

Alaska additionally argues that the Katie John Trilogy’s

reserved water rights interpretation is clearly irreconcilable

with the second part of Sturgeon II’s reasoning that “even

assuming” the United States may hold “title to” a reserved

water right, the term “public lands” only includes the United

States’ interest in the body of water, which is limited to

preserving the volume or quality of water needed to fulfill

the purposes of a land reservation. See Sturgeon II, 587 U.S.

at 44. In Alaska’s view, just as the river in Sturgeon II did

not constitute “public lands” in 16 U.S.C. § 3103(c) because

the regulation banning hovercrafts was “not related to” the

United States’ interest in “safeguarding the water,” id. at 45

(citation omitted), so too the navigable waters within and

appurtenant to conservation system units do not constitute

“public lands” in Title VIII because the rural subsistence

and Shellfish on Federal Public Lands and Waters in Alaska 60, 67

(2021), https://perma.cc/BK3Z-KFDU.

34 USA V. STATE OF ALASKA

priority is not related to the United States’ interest in

safeguarding the water. 13 Plaintiffs counter that the Katie

John Trilogy’s reserved water rights interpretation is

nevertheless reconcilable with Sturgeon II because Congress

ratified that interpretation through the 1998 and 1999

Appropriations Acts. See Katie John I, 72 F.3d at 703-04.

According to the ratification canon, “Congress is

presumed to be aware of an administrative or judicial

interpretation of a statute and to adopt that interpretation

when it re-enacts a statute without change.” Fla. Dep’t of

Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 47

(2008) (quoting Lorillard v. Pons, 434 U.S. 575, 580-81

(1978)). Thus, we begin with the observation that Congress

was aware of Katie John I’s reserved water rights

interpretation when it passed the 1998 and 1999

Appropriations Acts. 14 Indeed, when amending Title VIII’s

13

To be clear, Alaska does not dispute that Congress has the power to

regulate fishing on navigable waters where Alaska holds title to the

submerged lands. Alaksa argues only as a matter of statutory

interpretation that Congress did not do so in Title VIII of ANILCA.

14

Alaska claims that the 1998 and 1999 Appropriations Acts cannot shed

any light on the meaning of “public lands” because Katie John I’s

interpretation was not sufficiently “settled” at the time. As Alaska notes,

the ratification canon does not apply when the “supposed judicial

consensus” was not “so broad and unquestioned” that courts “must

presume Congress knew of and endorsed it.” Jama v. Immigr. &

Customs Enf’t, 543 U.S. 335, 349 (2005). But here Congress was aware

of Katie John I’s interpretation, and there is no evidence that Congress

deemed the interpretation “unsettled.” The 1998 and 1999

Appropriations Acts were passed after the Ninth Circuit—the only

circuit likely to interpret the provision, given its geographic scope

limited to Alaska—had issued a precedential opinion and after the

Supreme Court had denied certiorari. See Alaska, 517 U.S. 1187; Alaska

Fed’n of Natives, 517 U.S. 1187. In short, this is not an instance where

USA V. STATE OF ALASKA 35

declaration of Congressional findings in the 1998

Appropriations Acts, Congress expressly recognized that:

[T]he Ninth Circuit Court of Appeals

determined in 1995 in State of Alaska v.

Babbitt (73 F.3d 698) that the subsistence

priority required on public lands under

section 804 of this Act applies to navigable

waters in which the United States has

reserved water rights as identified by the

Secretary of the Interior . . . .

1998 Appropriations Act, § 316(b)(3). Additionally, the

temporary restrictions on the use of appropriated funds in the

1996, 1997, 1998, and 1999 Appropriations Acts were

undoubtedly responses to Katie John I, as those provisions

temporarily prevented the Secretaries from implementing

Katie John I’s holding. See 1996 Appropriations Act, § 336;

1997 Appropriations Act, § 317; 1998 Appropriations Act,

§ 316(a); 1999 Appropriations Act, § 339; see also H.R.

REP. NO. 104-537, at 428 (1996) (Conf. Rep.).

The 1998 and 1999 Appropriations Acts also provide

“convincing support for the conclusion that Congress

accepted and ratified” Katie John I’s reserved water rights

interpretation. Tex. Dep’t of Hous. & Cmty. Affairs v.

Inclusive Cmtys. Project, Inc., 576 U.S. 519, 536 (2015). In

the 1998 Appropriations Act, Congress recognized Katie

John I’s interpretation while amending Title VIII’s

subsistence fishing provisions and the definition of “public

lands,” but it left Katie John I’s interpretation in place. 1998

Congress may have declined to act while waiting to see if a judicial

interpretation would be overturned upon further judicial review.

36 USA V. STATE OF ALASKA

Appropriation Act, § 316(b). Subsequently, in the 1999

Appropriations Act, Congress appropriated $11 million to

implement the rural subsistence priority and set a deadline

by which the temporary restriction on using appropriated

funds to carry out Katie John I’s holding would be lifted.

1999 Appropriations Act, Div. A, sec. 101(e), § 339, 112

Stat. at 2681-251-52, 2681-271, 2681-295-96. 15

Alaska contends that the 1998 and 1999 Appropriations

Acts were intended to give Alaska time to amend state law,

not to endorse Katie John I. But that poses a false

dichotomy. Congress certainly hoped that Alaska would

conform state law to ANILCA’s rural subsistence priority in

a timely manner. To this end, in the 1998 Appropriations

Act, Congress extended the temporary restriction on the

Secretaries’ implementation of Katie John I through

December 1, 1998, determining that Alaska “should have the

opportunity” to resume management of the rural subsistence

priority. See 1998 Appropriations Act § 316(a), (b). And in

the 1999 Appropriations Act, Congress again extended the

15

In light of the 1998 Appropriations Act’s statutory amendments

regarding the meaning of “public lands” and the 1999 Appropriations

Act’s provision lifting the restriction on the use of appropriated funds to

implement Katie John I’s holding regarding the scope of “public lands,”

we are not persuaded by Alaska’s reliance on cases where Congress

passed legislation that did not include any provisions relevant to the

interpretive issue, e.g., AMG Cap. Mgmt., LLC v. FTC, 593 U.S. 67, 81-

82 (2021); Alexander v. Sandoval, 532 U.S. 275, 291-92 (2001). See

Tex. Dep’t of Hous. & Cmty. Affairs, 576 U.S. at 521 (holding that

amendments “that would have been superfluous” absent the prior judicial

interpretation “signal[ed] that Congress ratified” the interpretation);

Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 244, n.11 (2009) (“When

Congress amended [the Act] without altering the text of [the relevant

provision], it implicitly adopted [the judicial] construction of the

statute”).

USA V. STATE OF ALASKA 37

temporary restriction on the Secretaries’ implementation of

Katie John I to October 1, 1999. See 1999 Appropriations

Act, § 339. Congress also provided that if Alaska took the

necessary action to amend its law by that deadline, it would

not only get to manage ANILCA’s rural subsistence priority

but also receive $11,000,000 to do so. See id. at Div. A, sec.

101(e), 112 Stat. at 2681-251-52, 2681-271. But if Alaska

failed to take the necessary action, the funds would go to the

Secretaries, and they could implement Katie John I. See

Div. A, sec. 101(e), § 339, 112 Stat. at 2681-251-52, 2681-

271, 2681-295-96. In sum, after four years of delaying

implementation of Katie John I, Congress decided that

enough was enough and that in either scenario—whether it

be state management or federal management—the rural

subsistence priority would be implemented as interpreted by

Katie John I come October 1, 1999, including on navigable

waters in which the United States holds reserved water

rights.

Alaska also contends that the legislative history does not

support this conclusion. But the legislative history indicates

that the 1998 Appropriations Act was a compromise between

Alaska, which opposed federal implementation of

ANILCA’s rural subsistence priority with respect to fishing,

and President Clinton’s Administration, which opposed any

further delay in federal implementation. See 143 Cong. Rec.

23453 (1997) (statement of Sen. Slade Gorton); 143 Cong.

Rec. 23459 (1997) (statement of Sen. Frank Murkowski).

That compromise—which was extended in the 1999

Appropriations Act—gave Alaska additional time to amend

its law, but it also decidedly left Katie John I’s interpretation

regarding the scope of the rural subsistence priority in place.

Further, the legislative history of the 1998 Appropriations

Act specifically provides that its amendments of Title VIII

38 USA V. STATE OF ALASKA

did not “overturn[]” and shall not be “construed to overturn

the decision of the Ninth Court of Appeals in State of Alaska

v. Babbitt (73 F.3d 698) (commonly known as the Katie John

case).” H.R. REP. NO. 105-337, at 94-95 (1997) (Conf.

Rep.). 16

In sum, because we find Plaintiffs’ ratification argument

persuasive, we conclude that the Katie John Trilogy is not

clearly irreconcilable with the second part of Sturgeon II’s

reasoning regarding the scope of any reserved water rights

interpretation of “public lands” as used elsewhere in

ANILCA. See Sturgeon II, 587 U.S. at 44-45. 17

16

Alaska asserts that “the mere appropriation of funds cannot change

substantive law,” citing cases that concern whether appropriations acts

may overcome the presumption against implied repeals. See Tenn.

Valley Auth. v. Hill, 437 U.S. 153, 189-91 (1978); Firebaugh Canal Co.

v. United States, 203 F.3d 568, 574-75 (9th Cir. 2000). But this case

does not concern the presumption against implied repeals. Rather than

impliedly repealing any provision of ANILCA, the 1998 and 1999

Appropriations Acts signal Congressional approval of a judicial

interpretation of ANILCA. Moreover, the 1998 Appropriations Act

made substantive amendments to ANILCA, and we held that the same

appropriations acts supported a Congressional ratification argument in

Alaska Department of Fish & Game v. Federal Subsistence Board, 139

F.4th 773, 786-87 (9th Cir. 2025).

17

Alaska also contends that Loper Bright Enterprises v. Raimondo, 603

U.S. 369 (2024), supports the conclusion that the Katie John Trilogy “is

no longer good law.” In its reply brief, Alaska clarifies that it does not

argue that Katie John I is clearly irreconcilable with Loper Bright;

instead, it argues that the Katie John Trilogy cannot be reconciled with

Sturgeon II on the basis that Katie John I deferred to an agency

interpretation under Chevron, while Sturgeon II did not. We do not

reconcile the cases on this basis.

USA V. STATE OF ALASKA 39

VI.

Finally, Alaska claims that the Katie John Trilogy is

clearly irreconcilable with Sackett v. Environmental

Protection Agency, 598 U.S. 651, 679 (2023), which applied

the canon of statutory interpretation that Congress must

“enact exceedingly clear language if it wishes to

significantly alter the balance between federal and state

power.” Id. at 679 (citations omitted). But this canon pre-

dates Katie John I, and Alaska already unsuccessfully raised

an argument based on it in Katie John II. See Katie John II,

247 F.3d at 1042-44 (Tallman, J., concurring); id. at 1044-

50 (Kozinski, J., dissenting). Thus, Sackett does not

constitute “intervening” authority sufficient for us to revisit

the Katie John Trilogy. See Silva v. Garland, 993 F.3d 705,

717 (9th Cir. 2021) (“a three-judge panel must apply binding

precedent even when” that precedent was “clearly wrong” in

its application of the law at the time it was decided (citation

omitted)), abrogated on other grounds by Loper Bright, 603

U.S. 369, as recognized in Lopez v. Garland, 116 F.4th

1032, 1039 (9th Cir. 2024); accord Sierra Forest Legacy v.

Sherman, 646 F.3d 1161, 1189 (9th Cir. 2011) (per curiam)

(“[Miller’s] rule makes sense because we cannot continually

re-litigate issues that our court has already decided simply

because a party puts forth a new argument about why we

should rule differently.”).

VII.

We acknowledge that there is some tension between the

Katie John Trilogy and Sturgeon II. 18 But for purposes of

18

We also appreciate that judges of this court have expressed

reservations about Katie John’s interpretation of “public lands,”

including by referring to it as “shov[ing] a square peg into a hole we

acknowledge is round.” Sturgeon v Frost, 872 F.3d 927, 938 (9th Cir.

40 USA V. STATE OF ALASKA

Miller, “[n]othing short of ‘clear irreconcilability’ will do.”

Close v. Sotheby’s, Inc., 894 F.3d 1061, 1074 (9th Cir.

2018). Because Alaska has not met this high standard, our

precedent remains binding, and we affirm the judgment

below.

AFFIRMED.

2017) (Nguyen, J., concurring); see also Katie John I, 72 F.3d at 704; id.

at 706 (Hall, J., dissenting); Katie John II, 247 F.3d at 1034, 1038-40

(Tallman, J., concurring); id. at 1044-50 (Kozinski, J., dissenting); Katie

John III, 720 F.3d at 1245. But for purposes of Title VIII, Alaska’s

alternative interpretation has never been a round peg itself. See supra

Section V(A)(2); see also Katie John I, 72 F.3d at 704; Katie John II,

247 F.3d at 1034-44 (Tallman, J., concurring); see also Katie John I, 72

F.3d at 706 (Hall, J., dissenting); Sturgeon, 872 F.3d at 938 (Nguyen, J.,

concurring).