Amicus Curiae Brief — John Sturgeon, Petitioner v. Bert Frost, in His Official Capacity as Alaska Regional Director of the National Park Service, et al.
Supreme Court briefAug 9, 2018
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No. 17-949
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In The
Supreme Court of the United States
-----------------------------------------------------------------JOHN STURGEON,
Petitioner,
v.
BERT FROST, IN HIS OFFICIAL CAPACITY
AS ALASKA REGIONAL DIRECTOR OF THE
NATIONAL PARK SERVICE, ET AL.,
Respondents.
-----------------------------------------------------------------On Writ Of Certiorari To The
United States Court Of Appeals
For The Ninth Circuit
-----------------------------------------------------------------BRIEF OF AMICI CURIAE STATES OF ARIZONA,
ARKANSAS, IDAHO, INDIANA, NEBRASKA,
NEVADA, SOUTH CAROLINA, WISCONSIN,
AND WYOMING IN SUPPORT OF PETITIONER
-----------------------------------------------------------------LAWRENCE G. WASDEN
Attorney General of Idaho
DARRELL G. EARLY
Chief, Natural Resources Division
STEVEN W. STRACK
Counsel of Record
SHANTEL M. CHAPPLE KNOWLTON
Deputy Attorneys General
Natural Resources Division
P.O. Box 83720
Boise, ID 83720-0010
Telephone: (208) 334-4124
Facsimile: (208) 854-8072
Email: steve.strack@ag.idaho.gov
Counsel for Amici Curiae States
[Additional Appearances On Inside Cover]
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
MARK BRNOVICH
Attorney General
STATE OF ARIZONA
LESLIE RUTLEDGE
Attorney General
STATE OF ARKANSAS
CURTIS T. HILL, JR.
Attorney General
STATE OF INDIANA
ADAM PAUL LAXALT
Attorney General
STATE OF NEVADA
DOUG PETERSON
Attorney General
STATE OF NEBRASKA
ALAN WILSON
Attorney General
STATE OF SOUTH CAROLINA
BRAD D. SCHIMEL
Attorney General
STATE OF WISCONSIN
PETER K. MICHAEL
Attorney General
STATE OF WYOMING
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................
ii
INTERESTS OF AMICI CURIAE .......................
1
SUMMARY OF THE ARGUMENT .....................
3
ARGUMENT ........................................................
4
A.
The Ninth Circuit Failed to Properly Apply
the Clear Statement Doctrine .....................
4
B.
The Ninth Circuit Failed to Conduct the
“Careful Examination” Necessary to Determine Whether and to What Extent the
United States Held an Implied FederallyReserved Water Right in the Nation River .... 10
C.
An Implied Federally-Reserved Water
Right Does Not Give Any Right to a Particular Waterway Beyond a Priority to Use a
Designated Quantity of Water .................... 16
D.
Even if the United States Holds an Implied
Federally-Reserved Water Right, Such a
Right Does Not Give the United States “Title” in the Nation River............................... 19
CONCLUSION..................................................... 28
ii
TABLE OF AUTHORITIES
Page
CASES
Alaska v. Babbitt (Katie John I), 72 F.3d 698 (9th
Cir. 1995) ................................................. 4, 11, 12, 21
Baldwin v. Fish and Game Comm’n of Mont.,
436 U.S. 371 (1978) ...................................................8
Benson Mining & Smelting Co. v. Alta Mining &
Smelting Co., 145 U.S. 428 (1892)...........................23
Brady v. Carteret Realty Co., 90 A. 257 (N.J.
1914) ........................................................................22
California v. United States, 438 U.S. 645
(1978) ............................................................... 8, 9, 19
Cappaert v. United States, 426 U.S. 128 (1976) .... passim
Casitas Mun. Water Dist. v. United States, 708
F.3d 1340 (Fed. Cir. 2013) ................................. 18, 24
City of New Brunswick v. United States, 276 U.S.
547 (1928) ................................................................22
Douglas v. Seacoast Prods., Inc., 431 U.S. 265
(1977) .........................................................................8
Eddy v. Simpson, 3 Cal. 249 (Cal. 1853) ....................18
Fed. Power Comm’n v. Niagara Mohawk Power
Corp., 347 U.S. 239 (1954) ............................. 7, 18, 23
Hanson v. Eustace’s Lessee, 43 U.S. 653 (1844)..........23
John v. United States (Katie John II), 247 F.3d
1032 (9th Cir. 2001) .................................................12
John v. United States (Katie John III), 720 F.3d
1214 (9th Cir. 2013) ........................... 4, 12, 13, 14, 15
iii
TABLE OF AUTHORITIES – Continued
Page
Kobobel v. State, Dep’t of Natural Res., 249 P.3d
1127 (Colo. 2011) ............................................... 18, 25
Kohl Indus. Park Co. v. Rockland Cty., 710 F.2d
895 (2d Cir. 1983) ....................................................22
Montana Trout Unlimited v. Beaverhead Water
Co., 255 P.3d 179 (Mont. 2011) ......................... 24, 25
Murphy v. Kerr, 296 F. 536 (D.N.M. 1923) .................24
Navajo Dev. Co., Inc. v. Sanderson, 655 P.2d 1374
(Colo. 1982) ............................................ 17, 18, 24, 26
Olson v. Idaho Dep’t of Water Res., 666 P.2d 188
(Idaho 1983) ............................................................24
PPL Montana, LLC v. Montana, 565 U.S. 576
(2012) ..................................................................... 6, 7
R.T. Vanderbilt Co. v. Babbitt, 113 F.3d 1061 (9th
Cir. 1997) .................................................................23
Rice v. Santa Fe Elevator Corp., 331 U.S. 218
(1947) .........................................................................5
Roberts v. Wentworth, 59 Mass. 192 (Mass. 1849) .......22
Ronzio v. Denver & R.G.W.R. Co., 116 F.2d 604
(10th Cir. 1940)........................................................24
Shingleton v. State, 133 S.E.2d 183 (N. C. 1963) .......22
Solid Waste Agency of N. Cook Cty. v. U.S. Army
Corps. of Eng’rs (SWANCC), 531 U.S. 159
(2001) ................................................................. 1, 5, 9
Sturgeon v. Frost, ___ U.S. ___, 136 S. Ct. 1061
(2016) ................................................................... 2, 21
iv
TABLE OF AUTHORITIES – Continued
Page
Sturgeon v. Frost, 872 F.3d 927 (9th Cir. 2017)..... passim
Totemoff v. State, 905 P.2d 954 (Alaska 1995) ...........22
United States v. Alaska, 521 U.S. 1 (1997) ............... 6, 9
United States v. Bass, 404 U.S. 336 (1971)............... 1, 5
United States v. City of New Brunswick, 11 F.2d
476 (3d Cir. 1926) ....................................................22
United States v. Estate of Hage, 810 F.3d 712
(9th Cir. 2016)..........................................................24
United States v. Hunter, 21 F. 615 (C.C.E.D. Mo.
1884) ........................................................................22
United States v. New Mexico, 438 U.S. 696
(1978) ............................................................... passim
United States v. Oregon, 295 U.S. 1 (1935) ..................7
Will v. Mich. Dep’t of State Police, 491 U.S. 58
(1989) .........................................................................5
CONSTITUTIONAL PROVISIONS
Alaska Const. art. VIII, § 13 .......................................17
Colo. Const. art. XVI, § 6 ............................................17
Wyo. Const. art. XIII, § 3 ............................................17
STATUTES
16 U.S.C. § 45f(b)(1) ......................................................2
16 U.S.C. § 90 ................................................................2
16 U.S.C. § 121 ..............................................................2
v
TABLE OF AUTHORITIES – Continued
Page
16 U.S.C. § 1609 ............................................................2
16 U.S.C. § 228b(a) ........................................................2
16 U.S.C. § 3102(1) ......................................................20
16 U.S.C. § 3102(2) ......................................................20
16 U.S.C. § 3102(3) ......................................................20
16 U.S.C. § 3103(c) ......................................................20
16 U.S.C. § 410ff-1(a) ....................................................2
16 U.S.C. § 410mm-2(b) ................................................2
16 U.S.C. § 460aa-7 .......................................................2
16 U.S.C. § 460bb-3(a) ...................................................2
16 U.S.C. § 460kk(c)(1)..................................................2
16 U.S.C. § 460q-2 .........................................................2
43 U.S.C. §§ 1301-1356b ........................................... 6, 8
43 U.S.C. § 1311(a) ........................................................6
43 U.S.C. § 1311(e) ........................................................9
Alaska Statehood Act, Pub. L. No. 85-508, 72
Stat. 343 (1958) .........................................................6
Ariz. Rev. Stat. § 45-151(A).........................................17
Cal. Civ. Code § 1414 ..................................................17
Idaho Code § 42-106 ...................................................17
Mont. Code § 85-2-401 ................................................17
N.D. Cent. Code § 61-04-06.3......................................17
N.M. Stat. § 72-1-2 ......................................................17
vi
TABLE OF AUTHORITIES – Continued
Page
Nev. Rev. Stat. § 533.030.............................................17
Or. Rev. Stat. § 537.120 ...............................................17
S.D. Codified Laws § 46-5-5 ........................................17
Utah Code § 73-3-1 .....................................................17
Wash. Rev. Code § 90.03.010 ......................................17
RULES
Sup. Ct. R. 34.4 .............................................................1
OTHER AUTHORITIES
Black’s Law Dictionary (8th ed. 2004) ................. 21, 23
Carol Hardy Vincent et al., Cong. Research
Serv., R42346, Federal Land Ownership: Overview and Data (2017) ................................................2
Idaho Dep’t of Water Res., Water Conversion
Factors, www.idwr.idaho.gov, https://www.idwr.
idaho.gov/files/water-measurement/WaterConversion-Factors.pdf (last visited July 5,
2018) ........................................................................27
Sandra B. Zellmer & Jessica Harder, Unbundling Property in Water, 59 Ala. L. Rev. 679
(2008) .......................................................................25
U.S. Dep’t of Justice, Federal Reserved Water
Rights and State Law Claims, www.justice.
gov, https://www.justice.gov/enrd/federal-reservedwater-rights-and-state-law-claims (last visited
July 5, 2018) ............................................................27
vii
TABLE OF AUTHORITIES – Continued
Page
U.S. Geologicial Survey, National Water System:
Web Interface, https://waterdata.usgs.gov, https://
waterdata.usgs.gov/ak/nwis/uv?cb_00060=on
&format=gif_stats&site_no=15356000&period=
&begin_date=2018-06-01&end_date=2018-06-30
(last visited July 5, 2018) ........................................28
Webster’s II New College Dictionary (3d ed.
2005) .................................................................. 21, 23
1
INTERESTS OF AMICI CURIAE
The States of Arizona, Arkansas, Idaho, Indiana,
Nebraska, Nevada, South Carolina, Wisconsin, and
Wyoming (collectively “amici States”) appear in support of reversing the Ninth Circuit’s decision holding
that the Nation River is “public land” under the Alaska
National Interest Lands Conservation Act (ANILCA)
by virtue of the United States holding an implied federally-reserved water right. The amici States file this
brief pursuant to Supreme Court Rule 34.4, providing
that “[n]o motion for leave to file an amicus curiae brief
is necessary if the brief is presented . . . on behalf of a
State . . . when submitted by its Attorney General.”
This case implicates the preemption of a state’s
authority over its navigable waters. Amici States are
concerned with the Ninth Circuit’s failure to apply the
clear statement doctrine, which requires courts to presume that Congress did not intend to supersede state
authority in areas traditionally regulated by states unless such intent is clearly manifested. Solid Waste
Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs
(SWANCC), 531 U.S. 159, 172-74 (2001); United States
v. Bass, 404 U.S. 336, 349 (1971). Ignoring the directions of the clear statement doctrine, the Ninth Circuit
divested a state of its traditional authority over its
navigable waters based on an unprecedented expansion of the implied-reservation-of-water doctrine.
The amici States, many of which include large
swaths of federal land, have an interest in the
correct application of the implied-reservation-of-water
2
doctrine.1 In these States, reserved water rights have
had, and will continue to have, a large impact on both
the States and private water users. See United States
v. New Mexico, 438 U.S. 696, 699 (1978). Of upmost concern to the amici States is the Ninth Circuit’s novel
expansion of the implied-reservation-of-water doctrine
as a basis to justify increasing the National Park Service’s authority over state-owned navigable waters.
That concern is compounded by the Ninth Circuit’s
failure to apply this Court’s established precedent and
limit the United States’ claimed reserved water right
to “the amount of water necessary to fulfill the purposes of the reservation, no more.” Id. at 700.
Although the discrete issue before the Court is the
interpretation of “public lands” under ANILCA,
whether a state-owned navigable river qualifies as
“public land,” touches “on vital issues of state sovereignty.” Sturgeon v. Frost, ___ U.S. ___, 136 S. Ct. 1061,
1072 (2016). Moreover, the Ninth Circuit’s interpretation of “public lands” under ANILCA could potentially
be far reaching, as similar provisions are found
throughout Title 16 of the United States Code.2 The
amici States are concerned that the Ninth Circuit’s decision, if upheld, may be treated as a springboard for
1
In the amici States, the following percent of land is federally owned: Arizona (38.7%), Arkansas (12.6%), Idaho (61.6%), Indiana (1.7%), Nebraska (1.1%), Nevada (79.6%), South Carolina
(4.7%), Wisconsin (5.1%), and Wyoming (48.4%). Carol Hardy Vincent et al., Cong. Research Serv., R42346, Federal Land Ownership: Overview and Data 7-9 (2017).
2
See, e.g., 16 U.S.C. §§ 45f(b)(1), 90, 121, 228b(a), 410ff-1(a),
410mm-2(b), 460q-2, 460aa-7, 460bb-3(a), 460kk(c)(1), 1609.
3
the expansion of federal control over state-owned navigable waters throughout the country.
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SUMMARY OF THE ARGUMENT
This case implicates the careful balance between
federal and state authority over navigable waters.
Amici States file this brief in support of reversing the
Ninth Circuit’s decision to divest the State of Alaska of
its traditional regulatory authority over the Nation
River, a navigable waterway, based solely on the
United States’ ownership of an implied federallyreserved water right. In order to reach this result, the
Ninth Circuit went beyond analyzing the clear and
manifest intent of Congress in enacting ANILCA, instead mutating a reserved water right into a vehicle to
impart “title” over a state-owned navigable waterway.
Moreover, the Ninth Circuit never conducted the careful examination required by this Court to determine
whether the United States in fact owns a reserved water right on the Nation River. Rather, the Ninth Circuit
allowed federal administrative agencies to designate
which navigable waters the United States may seek
to enforce an implied federally-reserved water right
sometime in the future. The court then treated that
designation as conclusive of the issue. The Ninth Circuit’s decision is simply out of line with this Court’s
precedent and misconstrued the nature of reserved water rights. For those reasons, the decision should be reversed.
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4
ARGUMENT
A. The Ninth Circuit Failed to Properly Apply
the Clear Statement Doctrine.
The Ninth Circuit concluded that in enacting
ANILCA Congress did not intend to preempt state authority over navigable waters under its navigable servitude or Commerce Clause authority. Sturgeon v.
Frost, 872 F.3d 927, 933 (9th Cir. 2017). However, it
went on to conclude that the Park Service regulations
nevertheless preempt state law in waters in which the
United States owns an implied federally-reserved water right. Id. at 934-36. In reaching this conclusion, the
Ninth Circuit relied heavily on its decisions in Katie
John I and Katie John III, where the court gave complete deference to administrative agencies’ interpretation of “public lands” to include navigable waters in
which those agencies decided the United States owned
a reserved water right. Id. at 933-34; Alaska v. Babbitt
(Katie John I), 72 F.3d 698, 703-04 (9th Cir. 1995) (“we
hold to be reasonable the federal agencies’ conclusion
that the definition of public lands includes those navigable waters in which the United States had an interest by virtue of the reserved water rights doctrine”);
John v. United States (Katie John III), 720 F.3d 1214,
1245 (9th Cir. 2013) (“it was reasonable for the Secretaries to decide that: the ‘public lands’ subject to
ANILCA’s rural subsistence priority include the waters within and adjacent to federal reservations”). The
amici States disagree with the approach applied by the
Ninth Circuit and believe that the court erred in
5
deferring to the administrative agencies’ interpretation of “public lands.”
“Congress should make its intention ‘clear and
manifest’ if it intends to pre-empt the historic powers
of the States.” Will v. Mich. Dep’t of State Police, 491
U.S. 58, 65 (1989) (quoting Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230 (1947)). “In traditionally sensitive areas, such as legislation affecting the federal
balance, the requirement of clear statement assures
that the legislature has in fact faced, and intended to
bring into issue, the critical matters involved in the judicial decision.” Id. (quoting Bass, 404 U.S. at 349). This
Court has instructed that a statute should not be read
to preempt the historic powers of the States absent a
clear and manifest intent, even in the face of a contrary
administrative interpretation.
“Where an administrative interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear indication that Congress intended that
result.” SWANCC, 531 U.S. at 172. “This requirement
stems from our prudential desire not to needlessly
reach constitutional issues and our assumption that
Congress does not casually authorize administrative
agencies to interpret a statute to push the limit of congressional authority.” Id. at 172-73. “This concern is
heightened where the administrative interpretation
alters the federal-state framework by permitting federal encroachment upon a traditional state power.” Id.
at 173.
6
The Park Service appears to argue that the clear
statement doctrine should not apply because States
only own the submerged lands, not the water, in navigable waterways. Br. for the Resp’ts in Opp’n at 12-14.
The Ninth Circuit also appears to have taken this approach, concluding that while the States have an interest in submerged lands under navigable waterways,
“lands submerged beneath inland waterways are distinct from the waterways themselves.” Sturgeon, 872
F.3d at 933. The Ninth Circuit, however, does not explain why this distinction matters, and it is directly
contrary to this Court’s holding that “[o]wnership of
submerged lands . . . carries with it the power to control navigation, fishing, and other public uses of water.”
United States v. Alaska, 521 U.S. 1, 5 (1997). The traditional authority of the States to regulate activity occurring on navigable waters arises from the States’
ownership of submerged lands—not from ownership of
the water itself.
As the Ninth Circuit recognized, under the Submerged Lands Act, 43 U.S.C. §§ 1301-1356b, and the
Alaska Statehood Act, Pub. L. No. 85-508, 72 Stat. 343
(1958), Alaska secured all right and title to lands beneath navigable waters within its boundaries “and the
natural resources within such lands and waters.” Sturgeon, 872 F.3d at 932 (quoting 43 U.S.C. § 1311(a)).
Those rights were also conferred under the equalfooting doctrine, whereby “[u]pon statehood, the State
gains title within its borders to the beds of waters then
navigable.” PPL Montana, LLC v. Montana, 565 U.S.
576, 591 (2012). States are entitled to “allocate and
7
govern those lands according to state law subject only
to ‘the paramount power of the United States to control
such waters for purposes of navigation in interstate
and foreign commerce.’ ” Id. (quoting United States v.
Oregon, 295 U.S. 1, 14 (1935)). “Dominion over navigable waters and property in the soil under them are so
identified with the sovereign power of government that
a presumption against their separation from sovereignty must be indulged.” Oregon, 295 U.S. at 14.
The Park Service relies on this Court’s decision in
Fed. Power Comm’n v. Niagara Mohawk Power Corp.,
347 U.S. 239, 247 n.10 (1954), where this Court stated
that “[n]either sovereign nor subject can acquire anything more than a mere usufructuary right” in water
because water can never become “the subject of fixed
appropriation or exclusive dominion.” Br. for the
Resp’ts in Opp’n at 14. According to the Park Service,
the States do not have traditional authority over navigable waterways because the States cannot “own” the
water. Id. Additionally, the Park Service appears to argue that the States do not have traditional regulatory
authority over navigable waters because that authority is subject to the federal government’s authority under the navigable servitude. Id. at 12. These arguments
largely parallel arguments this Court has considered
and rejected when addressing the States’ traditional
authority over wildlife.
This Court has stated that “it is pure fantasy to
talk of ‘owning’ wild fish, birds, or animals. Neither
the States nor the Federal Government, any more
than a hopeful fisherman or hunter, has title to these
8
creatures until they are reduced to possession by skillful capture.” Douglas v. Seacoast Prods., Inc., 431 U.S.
265, 284 (1977). Although this Court concluded that
States do not “own” wildlife in an exclusive or absolute
sense, it still recognized “the importance to its people
that a State have power to preserve and regulate the
exploitation of an important resource.” Id. Moreover,
the Court continued to recognize the States’ police
power over wildlife even though wildlife was subject to
federal regulation in some circumstances. “The fact
that the State’s control over wildlife is not exclusive
and absolute in the face of federal regulation and certain federally protected interests does not compel the
conclusion that it is meaningless in their absence.”
Baldwin v. Fish and Game Comm’n of Mont., 436 U.S.
371, 386 (1978).
Likewise, water is a critical resource, and this
Court has long recognized the States’ authority to regulate the use of water within their borders. “The
history of the relationship between the Federal Government and the States in the reclamation of the arid
lands of the Western States is both long and involved,
but through it runs the consistent thread of purposeful
and continued deference to state water law by Congress.” California v. United States, 438 U.S. 645, 653
(1978). This deference is cemented in the Submerged
Lands Act, stating that the Act shall not be construed
as in “any way interfer[ing] with or modify[ing] the
laws of the States . . . relating to the ownership and
control of ground and surface waters; and the control,
appropriation, use, and distribution of such waters
9
shall continue to be in accordance with the laws of such
States.” 43 U.S.C. § 1311(e). This Court even recently
applied the clear statement doctrine and declined to
adopt an administrative interpretation of the Clean
Water Act where it “would result in a significant impingement of the States’ traditional and primary
power over land and water use.” SWANCC, 531 U.S.C.
at 174 (emphasis added).
The Ninth Circuit erred in concluding that States
do not have traditional regulatory authority over navigable waters because they do not “own” the water. The
States have traditional authority to regulate activity
on navigable waters based on their ownership of the
submerged lands thereunder. Alaska, 521 U.S. at 5. Additionally, the Ninth Circuit’s decision is out of line
with this Court’s recognition of the States’ primary authority over water management and use. SWANCC,
531 U.S.C. at 174; California, 438 U.S. 645.
Interpreting “public lands” to include navigable
waters in which the United States owns an implied
federally-reserved water right would result in a significant impingement of the States’ traditional authority
over navigable waters within their borders. Such a result should not be reached unless Congress clearly
manifested an intent to exercise its authority under
the navigable servitude and the Commerce Clause to
preempt state law. As the Ninth Circuit concluded, in
enacting ANILCA, Congress did not intend to exercise
this authority. Sturgeon, 872 F.3d at 933. Under the
clear statement doctrine, the Ninth Circuit’s analysis
should have ended there.
10
B. The Ninth Circuit Failed to Conduct the
“Careful Examination” Necessary to Determine Whether and to What Extent the United
States Held an Implied Federally-Reserved
Water Right in the Nation River.
The conclusion that the United States holds an
implied federally-reserved water right in the Nation
River is the crux of the Ninth Circuit’s decision. However, the Ninth Circuit gave that determination little
attention, resolving this bedrock factual issue based on
generalizations and assumptions, rather than conducting the careful examination required under this
Court’s precedents.
“In determining whether there is a federallyreserved water right implicit in a federal reservation
of public land, the issue is whether the Government
intended to reserve unappropriated and thus available
water.” Cappaert v. United States, 426 U.S. 128, 139
(1976). “Intent is inferred if the previously unappropriated waters are necessary to accomplish the purposes
for which the reservation was created.” Id. However,
the Court has repeatedly emphasized that the impliedreservation-of-water doctrine only reserves “the
amount of water necessary to fulfill the purpose of the
reservation, no more.” New Mexico, 438 U.S. at 700
(quoting Cappaert, 426 U.S. at 141).
“Each time this Court has applied the ‘impliedreservation-of-water doctrine’ it has carefully examined both the asserted water right and the specific
purposes for which the land was reserved, and
11
concluded that without the water the purposes of the
reservation would be entirely defeated.” Id. “This careful examination is required both because the reservation is implied, rather than expressed, and because of
the history of congressional intent in the field of
federal-state jurisdiction with respect to allocation of
water.” Id. at 701-02 (emphasis added).
The Ninth Circuit failed to apply the aboverequired examination, instead broadly concluding that
the United States held an implied federally-reserved
water right in all navigable and non-navigable waters
within the Yukon-Charley Rivers National Preserve
(“Yukon-Charley”) for the purpose of “provid[ing] sufficient protection for the national interest in the scenic,
natural, cultural and environmental values on the
public lands in Alaska.” Sturgeon, 872 F.3d at 934-35.
The Ninth Circuit did not analyze whether this purpose would be entirely defeated if the United States
did not have a right to use water from all water sources
within the Yukon-Charley, including the Nation River.
Nor did the court ascertain the minimum amount of
water necessary to fulfill that purpose. Rather, the
court concluded that it was “bound under its Katie
John precedent.” Id. at 934.
In Katie John, the Ninth Circuit addressed
whether some navigable waters were subject to subsistence fishing and hunting management under
ANILCA. Katie John I, 72 F.3d at 700, 703. As in this
case, the United States argued that the subsistence
priority requirement applied to navigable waters in
12
which the United States owned an implied federallyreserved water right because such waters were “public
lands,” as defined in ANILCA. Id. at 701. The Ninth
Circuit agreed with the United States, concluding that
when land was reserved under ANILCA, the United
States “implicitly reserved appurtenant water, including appurtenant navigable waters, to the extent
needed to accomplish the purposes of the reservations.” Id. at 703. However, the court did not quantify
the United States’ water rights. Instead the Ninth Circuit concluded that the United States has interests in
“some navigable waters,” and that “the federal agencies that administer the subsistence priority are responsible for identifying those waters.”3 Id. at 703-04.
Thereafter, the Secretaries of the Departments of
Agriculture and the Interior initiated an administrative rulemaking proceeding “amend[ing] the scope and
applicability of the Federal Subsistence Management
Program in Alaska to include subsistence activities occurring on inland navigable waters in which the
United States has a reserved water right and to identify specific Federal land units where reserved water
rights exist.” Katie John III, 720 F.3d at 1222. The rules
did not identify specific waterbodies or set forth the elements of the water rights the United States claimed
to hold. Instead the rules stated generally that the subsistence priority in ANILCA extended to all nonnavigable waters within certain land units, all
3
In John v. United States (Katie John II), 247 F.3d 1032 (9th
Cir. 2001) (en banc) (per curiam), a much divided court reaffirmed
its holding in Katie John I.
13
navigable and non-navigable waters within other land
units, and inland waters adjacent to certain land units.
Id. The Ninth Circuit concluded that the rulemaking
at issue was lawful, although the court recognized that
an implied federally-reserved water right would normally be decreed by a court. Id. at 1227. The court reasoned that because the Secretaries were only
“identifying the geographic scope of those rights for the
purposes of administering ANILCA’s rural substance
priority” and not “actually allocat[ing] or reserv[ing]
any water in these bodies . . . [t]he agencies are not . . .
‘determining their own water rights.’ ” Id. at 1226-27.
Then, focusing on the specific language in Title
VIII of ANILCA and the unique circumstances surrounding the subsistence-priority regulations, the
Ninth Circuit went on to uphold the agencies’ inclusion
of all sources listed in the rules as having implied federally-reserved water rights for the purpose of protecting the subsistence way of life for rural residents. Id.
at 1235-39, 1241. The court did so in spite of the recognition that the United States had never even claimed
that “the water itself must be reserved to fulfill the
purpose of the ANILCA reservation.” Id. at 1238. Rather than requiring the United States to prove in fact
ownership of an implied federally-reserved water
right, the Ninth Circuit concluded that it “must include within its potential scope all the bodies of water
on which the United States’ reserved rights could at
some point be enforced—i.e., those waters that are or
may become necessary to fulfill the primary purposes
of the federal reservation at issue.” Id. at 1231.
14
In the present case, the Ninth Circuit expanded its
holding in Katie John III, concluding that the same geographic locations designated in Katie John III as public lands should apply because “[i]t would be
anomalous if we treated the regulation at issue in
Katie John III . . . as employing a different construction of ‘public lands’ than applicable elsewhere in
ANILCA.”4 Sturgeon, 872 F.3d at 934. The court’s decision was not based on a finding that an amount of water from any of the designated sources was necessary
to fulfill the primary purposes of the federal reservation. Rather, the court simply reiterated its conclusion
from Katie John III that it should include “all the bodies of water on which the United States’ reserved
rights could at some point be enforced—i.e., those waters that are or may become necessary to fulfill the primary purposes of the federal reservation at issue.”5 Id.
4
The amici States take no position on the subsistence regulations that effectuate Title VIII’s subsistence priority, an issue
unique to the State of Alaska. Rather, the amici States’ concerns
in this case are focused on the misapplication and expansion of
the implied-reservation-of-water doctrine and the impact this
may have on the States going forward.
5
Although the Ninth’s Circuit’s decision was specifically focused on the “geographic scope” of the United States’ implied federally-reserved water right, the Ninth Circuit stated that because
“one of the reservation’s primary purposes is to protect fish[,] [t]he
diminution of water in any of the navigable waters within YukonCharley’s boundaries would necessarily impact this purpose, giving rise to a reserved water right.” Sturgeon, 872 F.3d at 936. The
amici States find this statement to be particularly alarming as it
appears to imply that the United States’ reserved water right extends to all water on all navigable waters within the reservation.
This is inapposite to this Court’s analysis in Cappaert, where it
was held that a reservation to protect a particular race of desert
15
at 936 (quoting Katie John III, 720 F.3d at 1231) (emphasis in original).
The Ninth Circuit failed to apply the wellestablished standard set forth by this Court in Cappaert and New Mexico, instead concluding that it should
consider the “geographic scope” of the United States
water rights to be any water on which the United
States may hypothetically claim a right at some point
in the future. Although in Katie John III the Ninth Circuit adamantly stated that it was not allowing the federal agencies to determine their own water rights, in
practical effect that is what occurred. The Ninth Circuit has treated that administrative designation as
conclusive as to whether the United States in fact owns
an implied federally-reserved water right in the navigable waters at issue. This is in spite of the Ninth Circuit’s own recognition that the United States has never
even claimed—let alone proved—that it needed any
water from any of the sources designated to meet the
primary purposes of the federal reservation. See Sturgeon, 872 F.3d at 934-36; Katie John III, 720 F.3d at
1238.
fish did not reserve all of the water in the source at issue. 426 U.S.
at 141. Rather, this Court held that “the level of the pool may be
permitted to drop to the extent that the drop does not impair the
scientific value of the pool as the natural habitat of the species
sought to be preserved.” Id. There has been no evidence presented
in this proceeding as to the minimum stream flow needed to protect different fish species on the waterways at issue. Nor has there
been any suggestion that it is necessary for the United States to
maintain the current flow of all waterways to fulfill the primary
purposes of the federal reservation.
16
The United States does not hold a decreed implied
federally-reserved water right in the Nation River. Nor
has the Ninth Circuit—or any other court—conducted
the careful examination required under this Court’s
decisions in Cappaert and New Mexico to determine
whether it is necessary for the United States to use
water from the Nation River to meet the primary purposes of ANILCA. Under the Ninth Circuit’s decision,
the United States’ claim of ownership of a reserved water right divests a state of its sovereign authority over
navigable waters within the its borders. Sturgeon, 872
F.3d at 936. The amici States ask that before such an
extraordinary result can be reached, the Park Service
should be required to prove that the United States in
fact owns a reserved water right.
C. An Implied Federally-Reserved Water Right
Does Not Give Any Right to a Particular Waterway Beyond a Priority to Use a Designated Quantity of Water.
The Ninth Circuit’s misapplication of the impliedreservation-of-water doctrine appears to stem from the
assumption that the benefits conferred by a reserved
water right extend beyond a priority to use a designated amount of water from a specified source. See
Katie John III, 720 F.3d at 1226. This, however, is
17
inapposite to this Court’s analysis of the impliedreservation-of-water doctrine and the nature of water
rights generally.6
The United States’ entitlement to an implied federally-reserved water right is intrinsically tied to the
amount of water necessary to fulfill the purposes of the
federal reservation. The idea that the “geographic
scope” of an implied federally-reserved water right can
be separated and adjudicated separately from the
quantity of water needed is in direct contradiction to
this Court’s ruling that a reserved water right only extends to “the amount of water necessary to fulfill the
purpose of the reservation, no more.” New Mexico, 438
U.S. at 700 (quoting Cappaert, 426 U.S. at 141) (emphasis added). If the United States does not need any water from a particular waterway to fulfill the purposes
of the reservation, then it does not hold a reserved water right in that waterway.
The Ninth Circuit’s analysis also misconceives the
scope of a vested water right. A water right is a special
type of property right. See Navajo Dev. Co., Inc. v.
Sanderson, 655 P.2d 1374, 1377 (Colo. 1982). “The
6
The amici States’ brief focuses on the nature of water rights
under the prior appropriation doctrine, as that doctrine is applied
in some form in Alaska and the majority of western states with
large areas of federally-reserved land. See Alaska Const. art. VIII,
§ 13; Ariz. Rev. Stat. § 45-151(A); Cal. Civ. Code § 1414; Colo.
Const. art. XVI, § 6; Idaho Code § 42-106; Mont. Code § 85-2-401;
N.D. Cent. Code § 61-04-06.3; Nev. Rev. Stat. § 533.030; N.M. Stat.
§ 72-1-2; Or. Rev. Stat. § 537.120; S.D. Codified Laws § 46-5-5;
Utah Code § 73-3-1; Wash. Rev. Code § 90.03.010; Wyo. Const. art.
XIII, § 3.
18
value of the property right is that it allows a priority
to the use of a certain amount of water at a place somewhere in the hierarchy of users who also have rights to
water from a common source.” Id. A water right’s primary value “is in its relative priority and the right to
use the resource and not in the continuous tangible
possession of the resource.” Id.
By holding a water right, the owner obtains a legally vested priority date that can be asserted against
junior water users on the same source. A water right,
however, does not entitle an owner to any possessory
interest in the source itself or even to actual possession
of water from that source. That is because a water right
has “always been subject to the rights of senior water
rights holders and the amount of water available in the
tributary system.” Kobobel v. State, Dep’t of Natural
Res., 249 P.3d 1127, 1130 (Colo. 2011). “[T]he right of
property in water is usufructuary and consists not so
much of fluid itself as the advantage of its use.” Casitas
Mun. Water Dist. v. United States, 708 F.3d 1340, 1353
(Fed. Cir. 2013) (quoting Eddy v. Simpson, 3 Cal. 249,
252 (Cal. 1853)); see also Niagara Mohawk Power
Corp., 347 U.S. at 246.
The Ninth Circuit’s approach of determining the
“geographic scope” of a water right without determining the quantity and priority of that right ignores the
very nature of a water right. The sole benefit conferred
by a water right is the right to assert a priority to use
a designated quantity of water as against junior water
users on that source. If the United States is not asserting a priority right to use a specified quantity of water
19
from a waterway, it is simply not asserting ownership
of a water right, under the implied-reservation-ofwater doctrine or otherwise.
As stated by this Court, the implied-reservationof-water doctrine is the exception to Congress’ almost
invariable deference to state water law. New Mexico,
438 U.S. at 701-02; see also California, 438 U.S. at 653.
It is for that reason that implied federally-reserved water rights are to be construed narrowly. New Mexico,
438 U.S. at 700-02; Cappaert, 426 U.S. at 139-41. The
Ninth Circuit’s interpretation, however, is anything
but narrow. Under the Ninth Circuit’s decision, the
United States may use a reserved water right solely as
a means of expanding an administrative agency’s regulatory authority, whether or not water is needed to
meet the purposes of a federal reservation. This expands the implied-reservation-of-water doctrine beyond recognition. Allowing such an expansion
undermines decades of precedent from this Court and
has the potential to significantly increase the impact
of reserved water rights to the detriment of the States
and private citizens.
D. Even if the United States Holds an Implied
Federally-Reserved Water Right, Such a
Right Does Not Give the United States “Title”
in the Nation River.
Under ANILCA, “[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
20
be deemed to be included as a portion of such unit.” 16
U.S.C. § 3103(c). “No lands which, before, on, or after
December 2, 1980, are conveyed to the State, to any
Native Corporation, or to any private party shall be
subject to the regulations applicable solely to public
lands within such units.” Id.
Public lands are defined as “land situated in
Alaska which, after December 2, 1980, are Federal
lands,” excepting:
(A) land selections of the State of Alaska
which have been tentatively approved or validly selected under the Alaska Statehood Act
and lands which have been confirmed to, validly selected by, or granted to the Territory of
Alaska or the State under any other provision
of Federal law;
(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.
Id. § 3102(3). Federal lands are “lands the title to
which is in the United States after December 2, 1980.”
Id. § 3102(2). Lands include “lands, waters, and interests therein.” Id. § 3102(1). As found by this Court, the
foregoing provides that “only ‘lands, waters, and interests therein’ to which the United States has ‘title’ are
considered ‘public’ land ‘included as a portion’ of the
21
conservation system units in Alaska.” Sturgeon, 136
S. Ct. at 1067.
The Ninth Circuit determined that the United
States had a “title” interest in the Nation River by virtue of holding an implied federally-reserved water
right. Sturgeon, 872 F.3d at 935-36. Specifically, the
Ninth Circuit reasoned that “[t]he word ‘title’ has
many meanings,” including equitable title, “[t]hus ‘title’ to an ‘interest’ in water almost certainly means a
vested interest in the water, such as a reserved water
right.” Id. at 936. The court went on to state that “even
if we were uncertain, Katie John I already decided the
matter.” Id. However, the Ninth Circuit in Katie John I
never analyzed or defined “title” or expressly ruled on
whether ownership of an implied federally-reserved
water right granted the United States a “title” interest.
See generally Katie John I, 72 F.3d 698.
The amici States disagree with the overly-broad
interpretation of “title” employed by the Ninth Circuit.
As it is commonly understood, “title” is “[t]he union of
all elements (as ownership, possession, and custody)
constituting the legal right to control and dispose of
property.” Black’s Law Dictionary 1522 (8th ed. 2004).7
Additionally, while courts that have addressed the definition of “title” have reached varying results, even the
most liberal interpretations have required a possessory
7
This definition is mirrored in Webster’s II New College Dictionary 1185 (3d ed. 2005), defining title as “[t]he coincidence of
all the elements that constitute the fullest legal right to control
and dispose of property or a claim” or “[t]he aggregate evidence
that gives rise to a legal right of possession or control.”
22
interest in the property at issue. Compare Kohl Indus.
Park Co. v. Rockland Cty., 710 F.2d 895, 903 (2d Cir.
1983) (“in the absence of limiting language, ‘title’ is
commonly understood to mean a fee interest”), United
States v. City of New Brunswick, 11 F.2d 476, 477 (3d
Cir. 1926), rev’d on other grounds sub nom. City of New
Brunswick v. United States, 276 U.S. 547 (1928) (“the
ownership of title means ownership of property”), and
United States v. Hunter, 21 F. 615, 617 (C.C.E.D. Mo.
1884) (“when we speak of a man as having title to certain lands, the ordinary understanding is that he is the
owner of the fee and not that he is a mere lessee”), with
Totemoff v. State, 905 P.2d 954, 965 (Alaska 1995) (“ ‘title’ signifies at least some sort of possessory interest in
property”), Roberts v. Wentworth, 59 Mass. 192, 193
(Mass. 1849) (“If he has the actual or constructive possession of property or the right of possession, he has
title thereto.”), Shingleton v. State, 133 S.E.2d 183, 189
(N. C. 1963) (“If a person has the actual or constructive
possession of property, or the right of possession, he
has a title thereto, though another person may be the
owner.”), and Brady v. Carteret Realty Co., 90 A. 257,
258 (N.J. 1914) (“ ‘Title’ is generally applied to signify
the right to land and real effects. It is the right of possession or of property in lands as distinguished from
the actual possession.”).
The Ninth Circuit appears to believe that the common definition of “title” is very broad because it includes equitable title. Sturgeon, 872 F.3d at 936.
According to the Ninth Circuit, because courts have
used the terms “equitable title” and “vested interest”
23
interchangeably, “title” must also include a vested interest in a water right. Id. (citing R.T. Vanderbilt Co. v.
Babbitt, 113 F.3d 1061, 1067 n.6 (9th Cir. 1997)). The
amici States disagree: equitable title is held when all
the benefits of property ownership are vested in one
person, except for “the naked legal title.” Benson Mining & Smelting Co. v. Alta Mining & Smelting Co., 145
U.S. 428, 432 (1892). Equitable title is not just any beneficial interest in property, but is “[a] title that indicates a beneficial interest in property and that gives
the holder the right to acquire formal legal title.”
Black’s Law Dictionary at 1523 (emphasis added). A
person holding equitable title is vested with “the real
and substantial ownership of the property.” Hanson v.
Eustace’s Lessee, 43 U.S. 653, 672 (1844). Therefore, a
holder of equitable title holds the same rights as one
holding legal title, including the right to ownership
and possession of the property.
In contrast, a water right is a usufructurary interest, not a possessory or ownership interest. Niagara
Mohawk Power Corp., 347 U.S. at 246. A “usufruct” has
been defined as “a right to use and enjoy the fruits of
another’s property for a period without damaging or
diminishing it.”8 Black’s Law Dictionary at 1580. This
definition is in line with how both federal and state
courts have defined water rights. Niagara Mohawk
Power Corp., 347 U.S. at 246 (water rights are
8
Usufruct has also similarly been defined as “[t]he right to
utilize and enjoy the profits and advantages of something belonging to another so long as the property is not damaged or altered.”
Webster’s II New College Dictionary at 1244.
24
“usufructuary rights to use the water . . . as distinguished from claims to the legal ownership of the running water itself ”); United States v. Estate of Hage, 810
F.3d 712, 719 (9th Cir. 2016) (“the owner of water rights
owns neither the land nor the water; the right is usufructuary only”); Casitas Mun. Water Dist., 708 F.3d at
1354 (“a party having a right to use a given amount of
California surface water does not have a possessory
property interest in the corpus or molecules of the water itself ”); Ronzio v. Denver & R.G.W.R. Co., 116 F.2d
604, 605 (10th Cir. 1940) (quoting Murphy v. Kerr, 296
F. 536, 541 (D.N.M. 1923)) (“While the corpus of naturally running water belongs to the state in trust for the
public, the law recognizes a property right in its flow
and use, known as the usufructuary right or the water
right.”); Navajo Dev. Co., Inc., 655 P.2d at 1377 (“The
uncertain nature of the property right in water is evidence that its primary value is in its relative priority
and the right to use the resource and not in the continuous tangible possession of the resource.”); Mont. Trout
Unlimited v. Beaverhead Water Co., 255 P.3d 179, 185
(Mont. 2011) (“a water right is usufructuary, i.e., it is a
right to make use of waters owned by the state—a water right confers no ownership in those waters”) (quotation marks omitted).
The Park Service’s argument in this proceeding
draws from the classification of water rights as “rights
in real property.” See Br. for the Resp’ts in Opp’n at 15.
Amici States agree that in many jurisdictions water
rights are considered “property rights.” See, e.g., Olson
v. Idaho Dep’t of Water Res., 666 P.2d 188, 191 (Idaho
25
1983); Mont. Trout Unlimited, 255 P.3d at 185. However, that does mean that the law extends the same
benefits to the owner of a water right as is conferred to
the owner of land. As stated by the Montana Supreme
Court, use of the phrase “property right” in that sense
may be misleading:
Terminology can affect how people think
about the subject. The words “property right”
draw to themselves and connote a bundle of
old, sacred, absolute, and inviolate ideas of
exclusivity, possession and permanence.
Although these concepts are not alien to water
law, they are not the language of water law . . .
because water law does not deal with these
things, but with uses, re-uses, sharing, and
priorities rather than exclusivity, possession
or even permanence.
Mont. Trout Unlimited, 255 P.3d at 185 (citation omitted).
Although a water right grants a priority use in a
specified quantity of water, it does not grant an unequivocal interest in the water source or in the water
itself. A water right has “always been subject to the
rights of senior water rights holders and the amount of
water available in the tributary system.” Kobobel, 249
P.3d at 1130. This is because there is always uncertainty as to the quantity of water that will be available
for use due to “drought, precipitation, and variable human uses [that] create ever-changing circumstances.”
Sandra B. Zellmer & Jessica Harder, Unbundling
Property in Water, 59 Ala. L. Rev. 679, 691-92 (2008).
26
For this reason, the primary benefit conferred by a water right is “its relative priority and the right to use the
resource.” Navajo Dev. Co., Inc., 655 P.2d at 1377. A water right does not grant “title” in a water source or even
an unequivocal right to actually possess an amount of
water. The benefit conferred is the right to assert the
relative priority of the right in order to exclude junior
water users until the senior right is satisfied. This type
of right simply is not a “title” interest as it is commonly
understood.
Amici States are concerned that the Ninth Circuit’s holding may have broad implications. First, the
Ninth Circuit’s decision regarding title indicates that
it is applicable to any vested water right, not just one
acquired pursuant to federal law. See Sturgeon, 872
F.3d at 936 (“ ‘title’ to and ‘interest’ in water almost certainly means a vested interest in the water”). On its
face, the Ninth Circuit’s decision appears to indicate
that the United States’ ownership of a water right,
whether obtained under state or federal law, would
grant the United States title and divest the State of its
traditional authority over navigable waters. If this decision is upheld, a State could potentially be considered
to have divested itself of authority over a particular
waterway by granting the United States a water right
license. This could have major impacts for States in
the arid West, where the United States has acquired
27
thousands of water rights under state law for various
purposes.9
Second, as discussed above, the Ninth Circuit’s decision fails to address the quantity of the claimed implied federally-reserved water rights at issue. The
court, therefore, appears to conclude that the United
States has “title” in a waterway by virtue of holding a
water right, no matter how small that right may be.
Under this reading, the United States could divest a
State of its authority over navigable waters by holding
a water right to use as little as a miner’s inch of water.10 To put this in context, in June 2018, the discharge
of the Yukon River near Eagle, Alaska, varied between
9
The United States Department of Justice states:
The federal government has also had many notable
successes in acquiring water rights under state law. For
instance, in the Snake River Adjudication, the United
States has been partially decreed approximately
10,000 stockwater rights under state law on BLM lands
and approximately 9,000 on national forest lands. The
United States has also received 900 partial decrees for
state water rights for domestic, irrigation and other
uses, such as wildlife, commercial, power, and recreation for Forest Service lands and 50 partial decrees for
water uses associated with irrigation on BLM lands.
U.S. Dep’t of Justice, Federal Reserved Water Rights and State
Law Claims, www.justice.gov, https://www.justice.gov/enrd/federalreserved-water-rights-and-state-law-claims (last visited July 5,
2018).
10
A miner’s inch converts to roughly .02 cubic feet per second
(cfs). See Idaho Dep’t of Water Res., Water Conversion Factors,
www.idwr.idaho.gov, https://www.idwr.idaho.gov/files/water-measurement/
Water-Conversion-Factors.pdf (last visited July 5, 2018).
28
134,000 and 177,000 cubic feet per second (cfs).11 Under the Ninth Circuit’s decision, the United States
could hold title and divest Alaska of its sovereign authority over the Yukon River by holding a priority right
to use less than .000015% of the water that flows
through the river. Such a conclusion expands the definition of “title” well beyond its common meaning, and
completely jettisons the careful balance between federal and state regulatory authority over navigable waters.
------------------------------------------------------------------
CONCLUSION
In enacting ANILCA, Congress did not clearly
manifest an intent to preempt Alaska’s traditional regulatory authority over state-owned navigable waters
in which the United States holds a reserved water
right. Owning a water right does not grant a “title” interest in the source of the water. Such an interest is
necessary under the plain terms of ANILCA for those
waters to be considered “public lands.” Moreover, even
if owning a water right did provide a title interest, the
Park Service has never proved that the United States
11
This information was obtained from stream flow measurement data collected by the United States Geological Survey
(USGS). USGS, National Water System: Web Interface, https://
waterdata.usgs.gov, https://waterdata.usgs.gov/ak/nwis/uv?cb_00060
=on&format=gif_stats&site_no=15356000&period=&begin_date=
2018-06-01&end_date=2018-06-30 (last visited July 5, 2018).
USGS does not appear to collect stream flow data for the Nation
River, so the amici States focused on data from the Yukon River
at the measurement point closest to the Yukon-Charley.
29
in fact owns an implied federally-reserved water right
on the Nation River. At most, an agency’s administrative determination that Congress intended to reserve
water for its use is a claim, not a right, to water. For
these reasons, the amici States respectfully request
this Court reverse the Ninth Circuit’s decision.
Respectfully submitted,
LAWRENCE G. WASDEN
Attorney General of Idaho
DARRELL G. EARLY
Chief, Natural Resources Division
STEVEN W. STRACK
Counsel of Record
SHANTEL M. CHAPPLE KNOWLTON
Deputy Attorneys General
Natural Resources Division
P.O. Box 83720
Boise, ID 83720-0010
Telephone: (208) 334-4124
Facsimile: (208) 854-8072
Email: steve.strack@ag.idaho.gov
Counsel for Amici Curiae States
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.