Amicus Curiae Brief — John Sturgeon, Petitioner v. Bert Frost, in His Official Capacity as Alaska Regional Director of the National Park Service, et al.

No. 17-949

================================================================

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

-----------------------------------------------------------------AMICUS CURIAE BRIEF

FOR AHTNA, INCORPORATED

IN SUPPORT OF NEITHER PARTY

-----------------------------------------------------------------NICHOLAS OSTROVSKY

AHTNA, INCORPORATED

110 W. 38th Avenue,

Suite 100

Anchorage, Alaska 99501

(907) 868-8265

nostrovsky@ahtna.net

JONATHAN W. KATCHEN

Counsel of Record

SARAH C. BORDELON

BRYSON C. SMITH

HOLLAND & HART LLP

1029 W. Third Avenue,

Suite 550

Anchorage, Alaska 99501

(907) 865-2600

jwkatchen@

hollandhart.com

Counsel for Ahtna, Inc.

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................

iii

INTEREST OF AMICUS CURIAE ........................

1

SUMMARY OF ARGUMENT ................................

4

BACKGROUND......................................................

7

Federal Oversight of Alaska: 1867 to 1958 ........

8

Native Alaskans’ Socio-Economic Struggle........

13

Statehood Act Preserves the Status Quo ...........

14

ANCSA Settles Land Claims & Extinguishes

Aboriginal Fishing Rights .................................. 16

ANILCA Restores and Codifies Subsistence

Rights .................................................................. 18

The Battle Over State and Federal Management of Subsistence Rights .............................. 21

Katie John and the Resolution of the Subsistence Wars............................................................. 23

ARGUMENT ...........................................................

27

A. ANILCA Struck a Balance Between Competing Interests ............................................ 27

B.

The Katie John Doctrine Effectuates the

ANILCA Balance and Should Not Be Disturbed ........................................................... 30

1. No Party Seeks to Overturn Katie John

and its Progeny ...................................... 30

2. The Katie John Doctrine is Restricted to

ANILCA’s Subsistence Preference ........ 31

ii

TABLE OF CONTENTS – Continued

Page

3. ANILCA’s Use of “Public Lands” Was

Employed in Different Parts of the Act

with Different Intent ............................. 32

CONCLUSION..................................................... 36

iii

TABLE OF AUTHORITIES

Page

CASES

Alaska Pacific Fisheries v. United States, 248

U.S. 78 (1918) ..........................................................12

Amoco Production Company v. Village of Gambell, Alaska, 480 U.S. 531 (1987) ...................... 20, 21

Chugach Natives, Inc. v. Doyon, Ltd., 588 F.2d

723 (9th Cir. 1978) ...................................................17

City of Angoon v. Marsh 749 F.2d 1413 (9th Cir.

1984) ...................................................... 18, 21, 28, 29

Environmental Defense v. Duke Energy Corporation, 549 U.S. 561 (2007) .........................................33

FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120 (2000) ........................................................34

John v. United States, 1994 WL 487830 (D.

Alaska March 30, 1994) ..........................................15

John v. United States, 247 F.3d 1032 (9th Cir.

2001) ................................................................ passim

John v. United States, 720 F.3d 1214 (9th Cir.

2013) ................................................................ passim

Katie John v. State of Alaska, No. A85–0698–CV

(D. Alaska) ...............................................................24

Kenaitze Indian Tribe v. State of Alaska, 860

F.2d 312 (9th Cir. 1988) ..................................... 22, 29

King v. Burwell, 135 S. Ct. 2480 (2015) ............. 6, 7, 34

Koniag, Inc. v. Koncor Forest Resource, 39 F.3d

991 (9th Cir. 1994) ...................................................17

iv

TABLE OF AUTHORITIES – Continued

Page

Madison v. Alaska Dep’t of Fish & Game, 696

P.2d 168 (Alaska 1985)............................................21

McDowell v. State, 785 P.2d 1 (Alaska 1989) ....... 22, 23

Metlakatla Indian Cmty., Annette Islands Reserve v. Egan, 369 U.S. 45 (1962) ............................12

Native Village of Quinhagak v. United States, 35

F.3d 388 (9th Cir. 1994) ..................................... 21, 22

Ninilchik Traditional Council v. United States,

227 F.3d 1186 (9th Cir. 2000) ................ 19, 22, 29, 35

Organized Village of Kake v. Egan, 369 U.S. 60

(1962) ................................................................. 14, 15

State of Alaska v. Babbitt, 72 F.3d 698 (9th Cir.

1995) ................................................................ passim

State of Alaska v. Udall, 420 F.2d 938 (9th Cir.

1969) ........................................................................15

Sturgeon v. Frost, 136 S. Ct. 1061 (2016) ........... passim

Sturgeon v. Frost, 872 F.3d 927 (9th Cir. 2017) ............7

Tlingit and Haida Indians of Alaska v. United

States, 177 F. Supp. 452 (Fed. Cl. 1959).......... 8, 9, 10

United States v. Alexander, 938 F.2d 942 (9th

Cir. 1991) .................................................................19

United States v. Atlantic Richfield Co., 435

F. Supp. 1009 (D. Alaska 1977) ............. 10, 12, 15, 16

v

TABLE OF AUTHORITIES – Continued

Page

United States v. Libby, McNeil & Libby, 107

F. Supp. 697 (D. Alaska 1952) .................................12

Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427

(2014) ....................................................... 6, 32, 33, 34

STATUTES

Alaska National Interest Lands Conservation Act,

16 U.S.C. §§ 3101 et seq. .................................. passim

16 U.S.C. § 3101(b) ......................................................20

16 U.S.C. § 3101(c) ......................................................19

16 U.S.C. § 3102(4) ........................................................1

16 U.S.C. § 3111 ..........................................................19

16 U.S.C. § 3111(1) ............................................ 3, 19, 35

16 U.S.C. § 3111(2) ......................................................19

16 U.S.C. § 3111(3) ......................................................18

16 U.S.C. § 3111(4) ......................................................32

16 U.S.C. § 3112 ..........................................................19

16 U.S.C. § 3113 .................................................... 21, 30

16 U.S.C. § 3114 .............................................. 19, 20, 21

Alaska Native Claims Settlement Act,

43 U.S.C. §§ 1601-1629 .................................... passim

43 U.S.C. § 1603(b) ......................................................17

43 U.S.C. § 1606 ..........................................................17

15 Stat. 539 ...................................................................8

23 Stat. 24 .....................................................................9

vi

TABLE OF AUTHORITIES – Continued

Page

34 Stat. 197 .................................................................11

35 Stat. 102 .................................................................12

43 Stat. 253 .................................................................12

72 Stat. 39 ...................................................................15

OTHER AUTHORITIES

57 Interior Dec. 461 (Feb. 13, 1942) ...........................12

Alaska Native Subsistence and Fishing Rights,

Committee on Indian Affairs United States

Senate, 107th Congress, S. HRG. 107–456

(April 17, 2002) ........................................................22

B.A. Potter, Exploratory Models of Intersite Variability in Mid and Late Holocene Central

Alaska, 61(4) ARCTIC (Dec. 2008) ...........................1

David S. Case & David A. Voluck, Alaska Natives

and American Laws (University of Alaska

Press, 3d ed. 2012)................................... 9, 18, 20, 22

Ernest Gruening, The State of Alaska (Random

House 1968) ..................................................... passim

H.R.Rep. No. 1045, 95th Cong., 2d Sess. (1978).........19

Hearings Before the Committee on Interior and Insular Affairs, United States Senate on S. 2906,

90th Cong. 31 (Feb. 8-10, 1968) (statement of

Emil Notti, President, Alaska Federation of Natives) ............................................................................ 16

vii

TABLE OF AUTHORITIES – Continued

Page

Miranda Strong, Alaska National Interest Lands

Conservation Act Compliance & Nonsubsistence Areas: How Can Alaska Thaw Out Rural

& Alaska Native Subsistence Rights?, 30 Alaska

Law Review 71 (2013) .............................................19

Morgan Sherwood, Big Game in Alaska: A History of Wildlife and People 143 (Yale University Press 1981) .........................................................2

President’s Annual Message, 39 Cong. Rec. 10 (Dec.

6, 1904) (President Theodore Roosevelt) ............. 10, 11

Thomas A. Morehouse and Marybeth Holleman,

When Values Conflict: Accommodating Native

Subsistence 1 (1994) ................................................23

Thomas Parran et al., Alaska’s Health: A Survey

Report to the United States Department of

the Interior 143 (1954) ............................................13

W.E. Simeone, Ph.D. & J. Fall, Patterns and

Trends in the Subsistence Salmon Fisher of

the Upper Copper River (2003) .................................2

W.E. Simeone, Ph.D., Ahtna, The People and

Their History (Ahtna, Inc. 2018) ........................... 2, 3

1

INTEREST OF AMICUS CURIAE1

This brief is submitted on behalf of amicus curiae

Ahtna, Incorporated (“Ahtna”), which is an Alaska Native Regional Corporation created pursuant to the

Alaska Native Claims Settlement Act (“ANCSA”), 43

U.S.C. §§ 1601-1629.

Ahtna represents the interests of 2,021 Alaska

Native shareholders and owns lands and resources

located within conservation system units (“CSUs”)2

managed by various federal agencies. Ahtna is charged

with advancing the interests of its shareholders, many

of whom have limited incomes and live in remote locations. But Ahtna represents more than just a corporation.

The Ahtna Athabascan people have occupied eastcentral Alaska for more than 5,000 years. B.A. Potter,

Exploratory Models of Intersite Variability in Mid and

Late Holocene Central Alaska, 61(4) ARCTIC 407-25

(Dec. 2008). They thrived in this bountiful region by

following the rhythm of the seasons: fishing in the

lakes in the spring, fishing the mighty Copper River

1

The parties have consented to the filing of this brief. No

counsel for a party authored this brief and no counsel or party

made a monetary contribution intended to fund the preparation

or submission of this brief. No person other than the amicus curiae, its shareholders, or its counsel made a monetary contribution to its preparation or submission.

2

Conservation system units, or “CSUs,” are defined to mean

“any unit in Alaska of the National Park System, National Wildlife Refuge System, National Wild and Scenic Rivers Systems, National Trails System, National Wilderness Preservation System,

or a National Forest Monument[.]” 16 U.S.C. § 3102(4).

2

(or “Atna” in the Ahtna language) for salmon in the

summer, harvesting berries in the late summer and

fall, and hunting for moose and caribou in the fall. Due

to the long, cold winters, successful fishing, hunting,

and gathering were crucial for survival. But it was

not just about survival; these activities were the very

fabric of the Ahtnans’ social, political, and religious

identity. What the federal government defines as “subsistence,” is their customary and traditional way of life.

Unfortunately, since the 1898 Klondike Gold Rush,

this customary and traditional way of life has been under constant threat. W.E. Simeone, Ph.D., Ahtna, The

People and Their History 206 (Ahtna, Inc. 2018). Population booms, and the development of road access into

the heart of the Ahtna region after World War II, created significant competition for hunting and fishing resources.3 The competition over limited fish and game

resources increased when the State of Alaska gained

regulatory control over fish and game and arbitrarily

restricted subsistence fishing in the region without

consulting the Ahtna people. The results were disastrous. The State’s restrictions eliminated traditional

Ahtna fishing sites, eviscerated a crucial food source,

3

Notably, there were 9,000 resident hunting licenses sold in

1946. By 1955/56, that number had increased to 31,500. Morgan

Sherwood, Big Game in Alaska: A History of Wildlife and People

143 (Yale University Press 1981). Between 1960 and 1970,

Salmon fishing permits on the Copper River increased a staggering 96 percent. W.E. Simeone, Ph.D. & J. Fall, Patterns and Trends

in the Subsistence Salmon Fisher of the Upper Copper River 21-32

(2003).

3

and made it difficult to dry fish in the traditional manner. Simeone 206-07.

Since that time the Ahtna people have been forced

to spend tremendous resources and energy litigating

to protect their customary and traditional way of life.

Even after the promises made in ANCSA and the

Alaska National Interest Lands Conservation Act

(“ANILCA”), 16 U.S.C. §§ 3101 et seq., where Congress

enacted a law designed to protect “the continuation of

the opportunity for subsistence uses by rural residents

of Alaska [because it] is essential to Native physical,

economic, traditional, and cultural existence. . . .”, id.

at § 3111(1), the State of Alaska continued to unduly

restrict access to Ahtna’s fish and game resources. It

was only with the landmark Katie John4 decision that

the Ahtna people began to secure meaningful protection for their customary and traditional way of life.

This case has extraordinary importance to Ahtna

and its shareholders for two reasons.

First, a decision that undermines, directly or indirectly, subsistence rights will violate ANILCA and

have devastating repercussions for Ahtna’s customary

and traditional way of life. Preservation of this way of

life is of the utmost importance to Ahtna.

Second, a decision from this Court that expands

federal authority beyond the powers granted to federal

land management agencies (like the National Park

4

State of Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995) (“Katie

John I ”).

4

Service (“NPS”)) will have deleterious effects on

Ahtna’s ability to develop its lands and resources for

the benefit of its shareholders as promised in ANCSA

and ANILCA.

Ahtna, therefore, asks this Court to strike a careful balance. Fortunately, this can be accomplished by

harmonizing the relevant provisions of ANILCA.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

Although the instant case does not involve Title

VIII of ANILCA, the Ninth Circuit Court of Appeals

implicated the subsistence priority by relying on Katie

John, which is a decision that interpreted Title VIII, to

construe the meaning of separate and distinct provisions of ANILCA. This Court should not follow the

Ninth Circuit’s lead but should, instead, issue a decision that acknowledges that (i) the extent of federal

authority under Title VIII is separate and distinct from

federal authority under the rest of ANILCA and (ii) case

law applying Article VIII should not be relied on to define the scope of federal land management agencies’

conservation-based regulations within CSUs.

In 1995, the Ninth Circuit adjudicated a case regarding the scope of “public lands” under Title VIII—

specifically, whether the term “public lands” encompasses navigable waterways for purposes of the subsistence priority. Katie John I, 72 F.3d 698. Correctly

recognizing the clear congressional intent to maintain

a priority for subsistence fishing—most of which occurs

5

on navigable waterways—the Ninth Circuit held that

navigable waterways in which the United States holds

a reserved water right are “public lands” for purposes

of Title VIII, and that the subsistence priority therefore applies to such waterways. Id. at 704; see also id.

at 702 (“[W]e have no doubt that Congress intended

that public lands include at least some navigable waters.”). That decision was upheld by an en banc panel

in 2001, John v. United States, 247 F.3d 1032 (9th Cir.

2001) (“Katie John II”), and the application of the subsistence priority to specific waters was finally resolved

in a related suit decided in 2013, John v. United States,

720 F.3d 1214, 1218 (9th Cir. 2013) (“Katie John III”).

In short, the Katie John trilogy resolved the hotly

contested issue of which Alaskan waters qualify for the

subsistence priority and who gets to manage subsistence rights over these waters.

Unfortunately, in the opinion below the Ninth Circuit failed to appreciate the uniqueness of Title VIII.

Instead of acknowledging Congress’s special emphasis

on the subsistence priority, the court bootstrapped the

Katie John decisions onto the instant dispute—even

though the present litigation does not involve subsistence priority issues. In doing so, the Ninth Circuit

simply assumed that “public lands” has the same

meaning under Title VIII as it does throughout the rest

of ANILCA.

This reasoning is erroneous. As a threshold matter, it ignores the Katie John I court’s explanation that

its interpretation of the “definition of public lands is

6

necessary to give meaning to [Title VIII’s] purpose of

providing an opportunity for a subsistence way of life”

and that its “interpretation of the term public lands in

this case will not allow the United States to usurp

state power over navigable waters elsewhere.” Katie

John I, 72 F.3d at 702 n.9.

More importantly, the opinion below violates “the

fundamental canon of statutory construction that the

words of a statute must be read in their context and

with a view to their place in the overall statutory

scheme.” King v. Burwell, 135 S. Ct. 2480, 2492 (2015)

(quotation omitted). Even though ANILCA does not define “public lands” differently in Title VIII as compared

to the rest of the statute, this Court has recognized

that the “ordinar[y]” presumption that “identical words

used in different parts of the same [statute] are intended to have the same meaning” “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 Regulatory

Grp. v. EPA, 134 S. Ct. 2427, 2441 (2014) (quotation

omitted).

Thus, an analysis of the meaning of “public lands”

under various provisions of ANILCA is incomplete if it

fails to consider that Congress exercised different authority to achieve the subsistence priority than it did

to achieve the rest of ANILCA’s goals. Regardless of

how this Court interprets “public lands” for purposes

of adjudicating whether the NPS has the authority

to enforce a hovercraft ban on navigable waterways,

7

“public lands” should not be deemed to categorically

exclude navigable waterways for purposes of Title VIII.

A ruling to the contrary would run afoul of congressional intent and established principles of statutory

interpretation, see Burwell, 135 S. Ct. at 2492, and disturb the hard fought compromise that gave meaning to

Title VIII.

------------------------------------------------------------------

BACKGROUND

The Ninth Circuit’s decision below found that the

NPS can exercise regulatory control over the water column flowing over private lands (i.e., the State and

Alaska Native Corporation owned lands) located

within the boundaries of the National Park System in

Alaska. Sturgeon v. Frost, 872 F.3d 927, 934-35 (9th Cir.

2017). The court empowered the NPS to control access

and use of navigable waters in Alaska by extending the

reach of Katie John I, which is grounded in Title VIII

of ANILCA and addresses distinct issues related to

subsistence rights. The outcome of this case may, therefore, turn on how this Court construes Katie John. But

to properly understand Katie John, it is necessary to

discuss (i) the historic relationship between the United

States, Alaska, and Alaska Natives, and (ii) how Congress resolved Native land claims and aboriginal

rights.

8

Federal Oversight of Alaska: 1867 to 1958

The Russian Governor of Alaska, Alexander Baranof, reportedly said that “God is in Heaven and St. Petersburg is far away.” Substitute Washington, D.C. for

St. Petersburg and this is largely the epitome of the

United States’ relationship to Alaska and Alaskans

until Statehood.

The United States purchased Alaska from Russia

on March 30, 1867. Sturgeon v. Frost, 136 S. Ct. 1061,

1064 (2016). The 1867 Treaty of Cession did little to

create a functioning government and provided scant

guidance on what rights Alaska Natives retained; the

Treaty merely provides that “[t]he uncivilized tribes

will be subject to such laws and regulations as the

United States may, from time to time, adopt in regard

to the aboriginal tribes of that country.” Treaty Concerning the Cession of the Russian Possessions in

North America, Mar. 30, 1867, 15 Stat. 539.

After acquiring Alaska, the federal government

exhibited little interest in the new territory for the

first 17 years. Ernest Gruening, The State of Alaska 3343 (Random House 1968). Federal oversight essentially amounted to an “era of total neglect” for citizens

and Alaska Natives alike. Gruening at 33-43. Natives,

“who constituted an overwhelming majority of its approximately thirty thousand souls, were as devoid of

attention, or even mention, as was the population as a

whole.” Gruening at 355; see also Tlingit and Haida

Indians of Alaska v. United States, 177 F. Supp. 452,

456-59, 464-67 (Fed. Cl. 1959).

9

The passage of the Organic Act of Alaska, 23 Stat.

24 (“Organic Act”) in 1884 nudged the federal government’s oversight from “total neglect” to “flagrant neglect.” Gruening at 47-78. The Organic Act created a

civil government and provided some governing authority by making Alaska a civil and judicial district controlled by the general laws of the State of Oregon “so

far as they may be applicable,” and also “not in conflict

with the provisions of this act or the laws of the United

States.” 23 Stat. 24, 26.

With respect to Alaska Natives, the Organic Act

was the first effort by Congress to enact laws intended

to protect them “in the possession of any lands actually

in their use or occupation.” David S. Case & David A.

Voluck, Alaska Natives and American Laws 24 (University of Alaska Press, 3d ed. 2012); id. at 114-15

(based on this law, judicial decisions upheld possessory

rights and expanded the scope of Native title). The Organic Act specifically provided “[t]hat the Indians or

other persons in said district shall not be disturbed in

the possession of any lands actually in their use or occupation or now claimed by them but the terms under

which such persons may acquire title to such lands is

reserved for future legislation by Congress.”5 23 Stat.

5

Section 12 also provided that the Secretary of the Interior

should investigate “the condition of the Indians of the Territory

and for the making of a report on them and what lands, if any,

were to be reserved for their use[.]” Tlingit and Haida Indians of

Alaska, 177 F. Supp. at 465. In 1885, the Secretary issued a report

and recommended that Natives “should have deeds to the land

they actually used and occupied and that they should be secured

in the use of their fishing sites. The Report also recommended that

10

24, 26. But ultimately during this period little effort

was expended on resolving aboriginal rights. Gruening

353-56.

Alaska finally gained attention when, prompted

by the first major discovery of gold in the 1880s, Congress enacted a series of laws to cope with the gold

rush. Gruening at 63-75. The issue of aboriginal rights,

however, continued to be largely ignored. See United

States v. Atlantic Richfield Co., 435 F. Supp. 1009, 1015

(D. Alaska 1977) (“Under these laws, appropriate administrative officials authorized entries on, and disposition of, Alaska lands without regard to aboriginal

title claims of Natives.”); Gruening at 355-63.

This state of neglect did not significantly change

until 1904, when President Roosevelt acknowledged

the need for the federal government to take on a more

energetic role in Alaska. In his State of the Union address, President Roosevelt observed that Alaska had

“outgrown its present laws, while in others those laws

have been found to be inadequate.” President’s Annual

Message, 39 Cong. Rec. 10, 18 (Dec. 6, 1904) (President

Theodore Roosevelt). President Roosevelt specifically

stated that the federal government must do more to

address the issues facing Alaska Natives. He remarked

that for Alaska Natives “[t]heir country is being overrun by strangers, the game slaughtered and driven

away, the streams depleted of fish, and hitherto unknown and fatal diseases brought to them, all of which

the [Natives] be given the same right to acquire land as the white

people had.” Id. at 465-66.

11

combine to produce a state of abject poverty and want

which must result in their extinction. Action in their

interest is demanded by every consideration of justice

and humanity.” Id.

To address the deprivations and injustice facing

Native Alaskans, President Roosevelt asked Congress

to establish hospitals “so that contagious diseases that

are brought to them continually by incoming whites

may be localized and not allowed to become epidemic,

to spread death and destitution over great areas.”

Id. And President Roosevelt requested that Alaska’s

Governor be provided “with the means and the power

to protect and advise the native people, to furnish medical treatment in time of epidemics, and to extend

material relief in periods of famine and extreme destitution.” Id.

Most importantly for the instant case, President

Roosevelt requested that the “Alaskan natives should

be given the right to acquire, hold, and dispose of property upon the same conditions as given other inhabitants; and the privilege of citizenship should be given to

such as may be able to meet certain definite requirements.” Id.

Consistent with President Roosevelt’s State of the

Union address, the legislative and executive branches

of the federal government undertook periodic efforts to

protect Native hunting and fishing rights and allowed

for the acquisition of property: In 1906, Congress enacted the Alaska Native Allotment Act, which was

intended to significantly increase Native land ownership. 34 Stat. 197. In 1908, Congress amended Alaska’s

12

first game law, 35 Stat. 102, allowing for Natives to

take game animals. And in 1942, the Department of

the Interior issued an opinion concluding that Natives

have broad aboriginal fishing rights, which have “been

construed to include the occupancy of water and land

under water as well as land above water.” Aboriginal

Fishing Rights in Alaska, 57 Interior Dec. 461, 474

(Feb. 13, 1942).6

Efforts were also made to provide Alaska Natives

with civil rights. For example, in 1915, the Territorial

legislature granted some Alaska Natives the right to

become citizens and, in 1924, Congress passed legislation, 43 Stat. 253, extending citizenship to all Natives.

Gruening at 363; see also Atlantic Richfield Co., 435

F. Supp. at 1013-18 (providing overview of federal

treatment of Natives prior to Statehood).

But Alaska Natives would have to wait until 1971

for Congress to address their aboriginal rights in a

more meaningful manner.

6

See generally Alaska Pacific Fisheries v. United States, 248

U.S. 78 (1918) (United States filed suit to enjoin a commercial

fishing operation from operating in a reservation established to

protect Natives’ fishing rights); United States v. Libby, McNeil &

Libby, 107 F. Supp. 697 (D. Alaska 1952) (discussing the federal

efforts to reserve fishing rights for Natives); Tlingit and Haida

Indians of Alaska v. United States, 177 F. Supp. 452 (Fed. Cl. 1959)

(discussing Native land claims and federal efforts to protect hunting and fishing); Metlakatla Indian Cmty., Annette Islands Reserve v. Egan, 369 U.S. 45 (1962) (discussing federal efforts to

protect Native fishing rights).

13

Native Alaskans’ Socio-Economic Struggle

The failure to adequately address aboriginal

rights, including fishing and hunting rights, had dire

consequences for many Alaska Natives. A 1954 health

survey report on Alaska Natives prepared for the Department of the Interior (“Parran Report”) noted that

“the indigenous peoples of Native Alaska are the victims of sickness, crippling conditions and premature

death to a degree exceeded in very few parts of the

world.” Thomas Parran et al., Alaska’s Health: A Survey Report to the United States Department of the Interior 143 (1954), available at http://www.dhss.alaska.

gov/Commissioner/Documents/PDF/Parran_Report.pdf.

“It is easy to understand why these people, once among

the hardiest of the northern races, now are noticeably

depressed in the autumn and dread the winter—not

because of the coming of the long twilight and the

harsh cold, but because of the certain lack of food[.]” Id.

at 49. The Parran Report stated that approximately

35,000 Natives lived at a “marginal or sub-marginal

subsistence level.” Id. at 16. And at Statehood, the infant mortality rate for Natives was among the highest

in the world and life expectancy was 34.7 years, “while

his fellow Alaskan who happened to be white could expect to live for 70 years.” Gruening at 544.

The Parran Report concluded that the deplorable

conditions facing Alaska Natives were caused by three

main factors: (i) the federal government’s mismanagement of Alaska; (ii) “the great proportion of its industry

owned by non-residents uninterested in the development of the Territory”; and (iii) the country’s indifference

14

to the plight of Native Alaskans.7 Id. at 12-15, 22-23.

The Parran Report advised that the conditions could

be remedied if the federal government addressed,

among other things, unemployment and protected

hunting and fishing rights. Id. at 16-17, 22-23, 49.

Statehood Act Preserves the Status Quo

During the debates over Alaska Statehood, Congress considered Native fishing to be “of vital importance to Indians in Alaska” and noted that the

“existence of aboriginal fishing rights was affirmed by

the Interior Department’s Solicitor in 1942.” Organized Village of Kake v. Egan, 369 U.S. 60, 66 (1962).

Yet, consistent with the long history of neglecting

aboriginal rights, Congress failed to settle the Native

land claims in the Alaska Statehood Act. Instead, Congress opted to preserve the status quo. Section 4 of the

Statehood Act provides:

As a compact with the United States said

State [Alaska] and its people do agree and

declare that they forever disclaim all right

and title to any lands or other property not

7

“It seems incongruous that Americans, who have been critical during the past hundred years of the deficiencies in colonial

policies of other nations, have been oblivious of the destitution,

demoralization and death among the native peoples of Alaska,

which has been an American responsibility since 1867. . . . Every

good American should applaud the action of the Congress in authorizing $300 million for famine relief in other countries. But, in

all honor, this charity should begin with the relief of native Americans in our own Territory.” Parran Report at 49, 312.

15

granted or confirmed to the State . . . under

the authority of this Act, the right or title to

which is held by the United States . . . and to

any lands or other property (including fishing

rights), the right or title to which may be held

by any Indians, Eskimos, or Aleuts (hereinafter called natives) or held by the United

States in trust for said natives. . . .”

72 Stat. 39 § 4 (emphasis added). Thus, Section 4 requires the State to disclaim right and title to Native

property; the United States retains “absolute jurisdiction and control” over it for the benefit of Alaska Natives; and the State may not tax it. Organized Village

of Kake v. Egan, 369 U.S. 60, 62 (1962).

After Statehood, tensions rose over the State’s decision to select lands occupied and used by Alaska Natives. See, e.g., State of Alaska v. Udall, 420 F.2d 938

(9th Cir. 1969); Atlantic Richfield Co., 435 F. Supp. at

1015-18. The conflict was intensified by the State of

Alaska’s management of fish and game. Upon assuming responsibility for fish and wildlife, the State enacted laws that did not provide any preference for

subsistence fishing and closed traditional subsistence

fisheries, including in the Ahtna region where Katie

John and her ancestors had fished for generations.

Katie John I, 72 F.3d at 701; John v. United States,

1994 WL 487830 at *10 (D. Alaska March 30, 1994).

The failure to address aboriginal rights after

Statehood exacerbated the haunting plight of Alaska

Natives. In 1968, the President of the Alaska Federation of Natives, Emil Notti, testified before Congress

16

that “the human needs, the suffering and deprivations

that exist in the villages are beyond description and

are as bad as the worst conditions anywhere in the

world. The native people in many areas face a daily crisis just to exist.” Hearings Before the Committee on Interior and Insular Affairs, United States Senate on S.

2906, 90th Cong. 31 (Feb. 8-10, 1968) (statement of

Emil Notti, President, AFN). Notti added: “Controls by

the Federal agencies over the resources and lives of native people in Alaska has not met with any success

though the reasons can always be rationalized away by

those responsible for the failures.” Id. at 33.

As Notti explained, there was “a strong feeling

among the native people in Alaska that they want to

have control of their own destiny.” Id. To do so, Natives

needed title to their lands and resources. “We feel we

have the ability to make our own way and once we get

a fair settlement for our lands, it will enable us to operate our businesses. . . . [I]f we had title to the land

we would no longer be a starving people; we would

have an economy.” Id. at 50-51.

ANCSA Settles Land Claims &

Extinguishes Aboriginal Fishing Rights

Attempts to resolve Native land claims did not

gain traction until the discovery of the Prudhoe Bay oil

field in the late 1960s. Just as the gold rush prompted

Congress to establish land laws, the rush for oil forced

Congress to resolve the Native land claims. See United

States v. Atlantic Richfield Co., 435 F. Supp. 1009,

1017-18 (D. Alaska 1977).

17

In 1971, Congress enacted the Alaska Native

Claims Settlement Act (ANCSA), 43 U.S.C. §§ 1601 et

seq., to settle, through grants of a combination of land

and money, all “claims by Natives of Alaska.” To administer this land and money, Alaska was divided into

twelve geographic regions, and the Natives within

each region became shareholders in a regional corporation organized under Alaska law. 43 U.S.C. § 1606.

Congress contemplated that land granted under

ANCSA would be put primarily to three uses: subsistence, village expansion, and economic development.

See Koniag, Inc. v. Koncor Forest Resource, 39 F.3d 991,

996 (9th Cir. 1994). “Of these potential uses, Congress

clearly expected economic development would be the

most significant” and expected that most of the lands

selected by Natives would create opportunities and

jobs. Id.

But ANCSA also extinguished “any aboriginal

hunting or fishing rights that may exist.” 43 U.S.C.

§ 1603(b). Natives gave up these rights because they

were led to believe that these rights would be protected

by the State and federal agencies. Indeed, Congress

also believed that there would be little incentive for

Natives to select lands for subsistence use because it

was believed that Natives would continue their present subsistence uses regardless of whether the lands

were in Federal or State ownership. Id.; see also Chugach Natives, Inc. v. Doyon, Ltd., 588 F.2d 723, 731 (9th

Cir. 1978); Katie John I at 700 (“Congress expected that

18

the state and the federal agencies would protect subsistence hunting and fishing.”).

These uncodified promises were, however, unfulfilled.8

ANILCA Restores and

Codifies Subsistence Rights

After ANCSA, it became evident that two major

issues still needed resolution: federal protection for

subsistence and classifying the federal government’s

massive land holdings.9

ANILCA, therefore, has three overarching objectives: (i) establish land classifications for federal lands;

(ii) preserve economic development rights on State and

Native lands located within conservation system units;

8

“In the conference report, accompanying ANCSA . . . Congress expressed the clear intention that Alaska Native subsistence interests . . . should be protected by the Secretary of the

Interior and the state of Alaska. Neither the Secretary nor the

state lived up to these expectations, so it became increasingly obvious that other steps were necessary to protect Alaska Native

subsistence.” Case & Voluck, Alaska Natives and American Laws

291.

9

See Katie John I, 72 F.3d at 700 (discussing subsistence issues as a driving force behind ANILCA); City of Angoon v. Marsh

749 F.2d 1413, 1415 (9th Cir. 1984) (“Sometime after the passage

of ANCSA, Congress became aware of the need for a legislative

means of maintaining the proper balance between the designation of national conservation areas and the necessary disposition

of public lands for more intensive private use.”).

19

and (iii) protect subsistence rights. See Sturgeon, 136

S. Ct. at 1065; Katie John III, 720 F.3d at 1218.

Regarding subsistence, Congress found that Alaska

Natives’ ability to continue engaging in customary and

traditional use of resources was being threatened by

Alaska’s increasing population. 16 U.S.C. § 3111(3).

Congress also acknowledged that “in most cases, no

practical alternative means are available to replace

the . . . fish and wildlife which supply rural residents

dependent on subsistence uses[.]”10 16 U.S.C. § 3111(2).11

Thus, one of Congress’ primary aims in passing

ANILCA was to codify the promises made during

ANCSA that Native subsistence rights would be protected. Specifically, Congress sought to ensure “the

continuation of the opportunity for subsistence uses by

rural residents of Alaska.” Id. § 3111(1). As is evident

throughout ANILCA, “Congress places great emphasis

on providing rural residents of Alaska with the opportunity to maintain a subsistence way of life.” Ninilchik

Traditional Council v. United States, 227 F.3d 1186,

1192 (9th Cir. 2000) (citing 16 U.S.C. §§ 3101(c), 3111–

3112, 3114); id. at 1189 (ANILCA was enacted “to protect the viability of subsistence living”); United States

10

“[Fifty] percent of the food for three-quarters of the Native

families in Alaska’s small and medium villages is acquired

through subsistence uses, and 40 percent of such families spend

an average of 6 to 7 months of the year in subsistence activities.”

H.R.Rep. No. 1045, 95th Cong., 2d Sess., at 181 (1978).

11

See generally Miranda Strong, Alaska National Interest

Lands Conservation Act Compliance & Nonsubsistence Areas:

How Can Alaska Thaw Out Rural & Alaska Native Subsistence

Rights?, 30 Alaska Law Review 71-94 (2013).

20

v. Alexander, 938 F.2d 942, 945 (9th Cir. 1991) (“Many

Alaska natives who are not fully part of the modern

economy rely on fishing for subsistence. If their right

to fish is destroyed, so too is their traditional way of

life.”).

To effectuate these objectives, Title VIII of ANILCA

requires that ‘‘subsistence uses’’ be given priority

over the taking of fish and wildlife for other purposes.

16 U.S.C. § 3114; Case & Voluck, Alaska Natives and

American Laws 296-301 (providing a comprehensive

overview of Title VIII and discussing how it “is intended to carry out the subsistence-related policies

and fulfill the purposes of ANCSA”).

But, of course, Congress had additional reasons for

enacting ANILCA. See Sturgeon, 136 S. Ct. at 1065;

Amoco Production Company v. Village of Gambell,

Alaska, 480 U.S. 531, 549 (1987) (ANILCA’s “primary

purpose [was] to complete the allocation of federal

lands in the State of Alaska.”). In ANILCA’s statement

of purpose Congress declares as a goal to “preserve wilderness resource values and related recreational opportunities[.]” 16 U.S.C. § 3101(b). Conservation is

another goal: “It is the intent of Congress in this Act

. . . to provide for the maintenance of sound populations of, and habitat for, wildlife species of inestimable

value to the citizens of Alaska and the Nation[.]” Id.

Finally, Congress was also aware of the need to

safeguard State and Native lands located within conservation system units or CSUs. Thus, Congress

wanted to ensure that federal agencies would not use

21

their new powers to stifle economic development on

lands conveyed to the State in the Statehood Act, and

Native Corporations in ANCSA. See Sturgeon, 136

S. Ct. at 1066; City of Angoon v. Marsh, 749 F.2d 1413,

1417 (9th Cir. 1984) (“the drafters of ANILCA never intended the mere location of boundary lines on maps

delineating the overall conservation system to indicate

that private lands conveyed to Native Corporations

were to be treated as public lands”).

The Battle Over State and Federal

Management of Subsistence Rights

Title VIII of ANILCA required that rural Alaska

residents be accorded a priority for subsistence hunting and fishing on public lands. 16 U.S.C. §§ 3113,

3114. Pursuant to § 805(d) of ANILCA, Congress gave

the State authority to implement the rural subsistence

preference by enacting laws of general applicability

consistent with ANILCA’s operative provisions. In anticipation of ANILCA’s passage, the State enacted laws

consistent with Title VIII which gave rural residents a

subsistence priority. In 1982, after Congress enacted

ANILCA, the Secretary of the Interior certified the

State to manage subsistence hunting and fishing on

public lands.

Once the State began managing for subsistence,

Alaskans spent years fighting over the subsistence

preference.12 In Native Village of Quinhagak v. United

12

See, e.g., Madison v. Alaska Dep’t of Fish & Game, 696 P.2d

168 (Alaska 1985); Amoco Production Co. v. Village of Gambell,

22

States, 35 F.3d 388 (9th Cir. 1994), tribes filed suit challenging the State’s decision to prohibit subsistence

fishing in and around subsistence fishing villages. Under the State’s regulations, tribal members—in one of

the poorest regions in the country—were subject to an

absolute ban on taking rainbow trout for subsistence

uses and could be prosecuted for subsistence fishing in

navigable waters. Meanwhile, the State authorized

sport rainbow trout fishers in these same rivers. Id. at

390.

The battle reached a new level when, in 1989, the

Alaska Supreme Court ruled that Alaska’s subsistence

program violated the Alaska constitution because, as

required by ANILCA, it provided for a rural preference

while the Alaska constitution forbids residency requirements. McDowell v. State, 785 P.2d 1 (Alaska

1989). The State’s inability to comply with ANILCA

required the federal government to take over the subsistence program. And, despite repeated efforts throughout the 1990s, the State was never able to come into

compliance with ANILCA.13

480 U.S. 531 (1987); Kenaitze Indian Tribe v. State of Alaska, 860

F.2d 312 (9th Cir. 1988); Ninilchik Traditional Council v. United

States, 227 F.3d 1186 (9th Cir. 2000). See generally Case & Voluck,

Alaska Natives and American Laws 291-310 (collecting cases).

13

Alaska Native Subsistence and Fishing Rights, Committee on

Indian Affairs United States Senate, 107th Congress, S. HRG.

107–456 (April 17, 2002) (discussing at length the subsistence

battles and the State’s inability to comply with ANILCA).

23

By 1994, it was widely believed that the conflict

between equal access to Alaska’s fish and game versus

preserving the subsistence priority was “likely to continue indefinitely, no matter what courts or legislators

may do to resolve the subsistence preference issue.”

Thomas A. Morehouse and Marybeth Holleman, When

Values Conflict: Accommodating Native Subsistence 1

(1994).

Perhaps worse, the subsistence wars in the 1980s

and 1990s were ugly. Writing in the Anchorage Times

immediately after McDowell, one political activist

“compared the Alaska Supreme Court not only to

southern segregationist judges of another era but also

to George Armstrong Custer.” When Values Conflict:

Accommodating Native Subsistence 4. On the other

side of the debate, a former official of the Alaska Department of Fish and Game wrote in the Anchorage

Daily News in 1990 that he was “not interested . . . in

having the equal protection articles of either the U.S.

or Alaska’s constitution abridged in order to preserve

elements of a ‘Stone Age culture.’ ” When Values Conflict: Accommodating Native Subsistence 6.

Katie John and the Resolution

of the Subsistence Wars

The most significant litigation over subsistence

rights involved the State’s failure to provide Ahtna

shareholders, including Katie John, with an opportunity to pursue their traditional fishing activities at

a site known in Athabascan as Nataełde, or “Roasted

24

Salmon Place.”14 In 1985, Katie John filed suit in

federal court, seeking enforcement of her subsistence

rights.15 She prevailed.

On appeal, the Ninth Circuit considered the scope

of ANILCA’s Title VIII in a trilogy of cases between

1995 and 2013. In Katie John I, the court grappled with

the definition of “public lands” to which the Title VIII

subsistence priority applies. 72 F.3d at 701-04. Rejecting the district court’s holding that the subsistence priority applies to all Alaskan waters subject to the

federal navigational servitude, the Ninth Circuit held

that the subsistence priority applies only to “navigable

waters in which the United States has reserved water

rights.” Id. at 700. As for identifying the waters in

which the United States has reserved water rights, the

court held that that task belongs to the federal agencies that administer the subsistence priority. Id.

After the district court entered its judgment pursuant to the Ninth Circuit’s mandate in Katie John I,

the judgment was appealed. The Ninth Circuit heard

the appeal en banc and issued a per curiam opinion

14

In 1984, Katie John and Doris Charles submitted a proposal to the Alaska State Board of Fisheries requesting that the

Nataełde, or Batzulnetas, area be opened to subsistence fishing.

The proposal was denied.

15

Katie John v. State of Alaska, No. A85–0698–CV (D. Alaska).

Congress expressly provided for federal jurisdiction over the State

regarding its implementation of ANILCA. ANILCA Section

807(a). Katie John was forced to repeatedly return to court because the State failed to abide by its obligations. For instance, in

1989, Katie John sought preliminary relief from the regulation

that limited fishing. Order, June 6, 1989 (No. A85–0698–CV).

25

affirming the district court’s judgment, thereby leaving Katie John I in place. John v. United States, 247

F.3d 1032 (9th Cir. 2001) (“Katie John II”).

In a concurring opinion, three judges argued for

a broader definition of “public lands” than that set

forth in Katie John I. Citing Title VIII’s emphasis on

subsistence fishing—most of which takes place on navigable waters—the concurrence argued that “Congress

clearly established a subsistence priority that applies

to all navigable waters in the State of Alaska, not just

those waters in which the United States has a reserved

water right.” Id. at 1044 (Tallman, J., concurring).

Judge Tallman explained:

Given the crucial role that navigable waters

play in traditional subsistence fishing, it defies common sense to conclude that, when

Congress indicated an intent to protect traditional subsistence fishing, it meant only the

limited subsistence fishing that occurs in nonnavigable waters. Reading the statute to exclude navigable waters frustrates Congress’s

express purpose of protecting traditional subsistence fishing for all rural Alaskans by establishing subsistence fishing as a priority

use of Alaska’s natural resources. We must

not interpret federal statutes to negate their

own stated purposes. . . . [W]e cannot presume

that Congress intended to protect traditional

subsistence fishing with one hand, while reducing it to a veritable nullity with the other.

Id. at 1036-37 (quotations and citations omitted) (emphasis added).

26

Following Katie John I, the Secretary of the Interior and the Secretary of Agriculture in 1999 issued

regulations (“1999 Rules”) identifying which navigable

waters in Alaska qualify as “public lands” to which Title VIII’s subsistence priority applies. See Katie John

III, 720 F.3d at 1218. Litigation again ensued. A number of environmental and tribal organizations argued

that the 1999 Rules fell short by failing to properly designate certain waters for the subsistence priority. Id.

The State of Alaska argued that the 1999 Rules went

too far by applying a subsistence priority to waters

that are not “public lands.” Id. Applying the reserved

water rights doctrine set forth in Katie John I and preserved in Katie John II, the Ninth Circuit rejected both

sets of arguments and held that the federal agencies

had properly designated each of the waters at issue. Id.

at 1245.

After Katie John, the subsistence wars largely

subsided. A fragile equilibrium was finally established

among the United States, the State of Alaska, and

Alaska Natives regarding the scope of Title VIII’s subsistence priority. Decades of turmoil and uncertainty

have been replaced with some stability. And because

the instant suit does not involve Title VIII’s subsistence priority, there is no basis for disrupting this equilibrium. See Katie John I, 72 F.3d at 702 n.9 (limiting

its holding to those portions of ANILCA “necessary to

give meaning to [ANILCA’s] purpose of providing an

opportunity for a subsistence way of life”); State Brief

at 17 n.3 (“Alaska supports the subsistence regulations.”).

------------------------------------------------------------------

27

ARGUMENT

The Ninth Circuit’s decision to justify the NPS’s

regulatory authority—using a doctrine established

specifically to interpret and apply ANILCA’s Title VIII

subsistence priority—pulled subsistence interests and

the fragile equilibrium crafted by the Katie John trilogy into the present case. Thus, this Court’s decision

will have broad implications not only for the scope of

federal authority within CSUs, but for the Alaska Natives who depend on the subsistence priority for their

livelihoods.

Alaskans endured over twenty years of bitter acrimony before achieving the relative calm on subsistence

rights made possible by the Katie John decisions. If

those decisions are disturbed, Alaskans will be forced

to relitigate the ugly subsistence wars of the 1980s and

1990s.

A. ANILCA Struck a Balance Between Competing Interests.

In ANILCA, Congress struck a balance between

three competing concerns: (i) conserving large land areas; (ii) vindicating the promises the federal government made in the Statehood Act and ANCSA to enable

the State and Alaska Natives to manage, control, and

use their lands within CSUs; and (iii) preserving a subsistence priority for rural Alaskans. These goals are in

tension, and there has been substantial litigation to

define the scope of the second two goals with respect to

the first.

28

Despite ANCSA’s clear intent that the land conveyed to Alaska Native corporations should be used for

economic development, Native corporations were

nonetheless forced to litigate to defend their ability to

put their inholdings within CSUs to economic use. In

City of Angoon v. Marsh, the Ninth Circuit rejected an

attempt by environmentalists to block a Native corporation from harvesting timber on its lands within a National Forest Monument included in one of the CSUs.

749 F.2d 1413 (1984). Shee Atika, the Native corporation seeking to exercise its timber rights in that case,

obtained the land at issue under ANCSA “in order to

settle and extinguish their aboriginal claims with certainty and in conformity with the real economic and

social needs of the Natives.” Id. at 1418. Notwithstanding ANILCA’s general prohibition on logging within

National Forest Monuments, the court explained that,

given the “stated purpose” of ANCSA’s land conveyance to Shee Atika, “it is inconceivable that Congress

would have extinguished their aboriginal claims and

insured their economic wellbeing by forbidding the

only real economic use of the lands so conveyed.” Id.

The Court concluded that when the pertinent sections

of ANILCA are read “harmoniously,” “it becomes clear

that Congress intended that the private status of the

lands conveyed to Shee Atika is to remain unaffected

by their inclusion within the exterior boundaries of the

conservation system unit.” Id.

Alaska Natives have had to fight even harder to

defend their subsistence rights. In addition to the Katie

John trilogy discussed above, Native groups were

29

forced to litigate frequently to protect their customary

and traditional way of life. See, e.g., Ninilchik Traditional Council, 227 F.3d at 1193 (holding that rural

subsistence users must be given a “meaningful use

preference”); Kenaitze Indian Tribe, 860 F.2d at 318

(holding that Alaska’s definition of “rural” violated

ANILCA’s subsistence preference).

As evidenced by the extensive litigation ANILCA

has spawned, the balance Congress struck in ANILCA

is difficult to manage. Nevertheless, when the provisions of ANILCA are properly understood and harmonized, all three of ANILCA’s goals can be achieved. To

wit, the Act balances federal authority and economic

development by providing federal land managers with

regulatory authority over public lands—lands to which

the federal government has title—and cannot use this

authority to interfere with activities on State or Native

corporation lands. In 1984 the Ninth Circuit recognized and explained this limitation on federal authority: “section 103(c) was added to ANILCA . . . for the

express purpose of specifying that only public lands

(and not State owned or private lands) are to be subject

to the conservation system unit regulations applying

to public lands and to make clear that other particular

provisions of the bill apply only to public lands.” Angoon, 749 F.2d at 1417 (quotations omitted)).

Yet the balance between federal authority and economic development must also accommodate subsistence. Consistent with the State of Alaska’s sovereign

rights, Congress intended that the State manage the

30

subsistence preference and established standards in

Title VIII that the State must achieve to take on the

responsibility. When the State could not comply, federal land managers properly assumed the authority,

which in turn diminished State authority over fish and

game. And, in Katie John I, the Ninth Circuit clarified

that federal authority to enforce the subsistence priority extended to some navigable waters. This was necessary, as the Ninth Circuit recognized, because the

subsistence priority would be effectively meaningless

if it did not apply to fishing in navigable streams, 72

F.3d at 702, given that (i) “ANILCA’s language and legislative history . . . clearly indicate that subsistence

uses include fishing” (16 U.S.C. § 3113) and (ii) subsistence fishing has traditionally taken place in navigable

waters. Id. Accordingly, there can be no debate that

federal management authority over navigable waters

must extend as far as necessary to effectuate the subsistence preference in Title VIII.

B. The Katie John Doctrine Effectuates the

ANILCA Balance and Should Not Be Disturbed.

1. No Party Seeks to Overturn Katie John

and its Progeny.

Critically, no party to the instant litigation seeks

to overturn the Katie John trilogy. The Federal Respondents, of course, maintain that it is good law that

supports the NPS’s broader regulatory authority. Br. in

Opp. 16. Sturgeon explains, however, that Katie John

and its progeny are specific to Title VIII, a title not

31

implicated by the NPS’s hovercraft ban, and one with

markedly different statutory authority. See Sturgeon

Br. at 19, 44. Thus, because it is not at issue in this

appeal, any decision by this Court should leave undisturbed the subsistence priority established by the

Katie John decisions.

2. The Katie John Doctrine is Restricted to

ANILCA’s Subsistence Preference.

The Katie John cases were specifically restricted

to interpreting the application of the Title VIII rural

subsistence priority. See Katie John I, 72 F.3d at 700

(“Specifically, the parties dispute whether navigable

waters fall within the statutory definition of public

lands and are thus subject to federal management to

implement ANILCA’s subsistence priority.”) (emphasis

added); Katie John II, 247 F.3d at 1035-37; Katie John

III, 720 F.3d at 1218. They did not address the extent

of federal control over navigable waters for purposes

separate from the subsistence priority. Thus, if this

Court reverses the Ninth Circuit’s decision on appeal,

it need not vacate the Katie John decisions—the holding in Katie John has not been challenged and the underlying rationale for the decisions should be left in

place.

32

3. ANILCA’s Use of “Public Lands” Was Employed in Different Parts of the Act with

Different Intent.

The Ninth Circuit reasoned in the decision on appeal that “ANILCA’s definition of ‘public lands’ applies

throughout the statute” and found that it would be

“anomalous” to treat the definition of “public lands”

used in the Katie John decisions as using a “different

construction of ‘public lands’ than applicable elsewhere in ANILCA.” Pet.App.13a.

What the Ninth Circuit failed to consider, however,

is that the provision of ANILCA interpreted in the

Katie John decisions stands apart from the rest of

ANILCA. As noted by Sturgeon (Pet. Br. 43-44), Congress invoked its Commerce Clause authority only for

Title VIII. 16 U.S.C. § 3111(4). This separate and distinct constitutional authority should have prompted

the Ninth Circuit to examine why Congress intended

to exercise its authority over navigable waters only in

Title VIII (but not to effectuate the other goals of the

Act), and whether it was proper to leverage the subsistence authority to justify broader federal control.

Moreover, because ANILCA “is far from a chef

d’oeuvre of legislative draftsmanship” no court should

presume that “identical words used in different parts

of the same statute are intended to have the same

meaning[.]” Util. Air Regulatory Grp. v. EPA, 134 S. Ct.

2427, 2441-42 (2014). This Court has recognized that

this presumption “readily yields to context, and a statutory term—even one defined in the statute—may

33

take on distinct characteristics from association with

distinct statutory objects calling for different implementation strategies.” Id. at 2441 (quotations omitted).

After all—

Although we presume that the same term has

the same meaning when it occurs here and

there in a single statute. . . . We also understand that most words have different shades

of meaning and consequently may be variously construed, not only when they occur in

different statutes, but when used more than

once in the same statute or even in the same

section. Thus, the natural presumption that

identical words used in different parts of the

same act are intended to have the same meaning is not rigid and readily yields whenever

there is such variation in the connection in

which the words are used as reasonably to

warrant the conclusion that they were employed in different parts of the act with different intent. A given term in the same statute

may take on distinct characters from association with distinct statutory objects calling for

different implementation strategies. The

point is the same even when the terms share

a common statutory definition. . . .

Environmental Defense v. Duke Energy Corporation,

549 U.S. 561, 574 (2007) (quotations and citations

omitted).

Put simply, courts “must do [their] best, bearing in

mind the ‘fundamental canon of statutory construction

that the words of a statute must be read in their

34

context and with a view to their place in the overall

statutory scheme.’ ” Util. Air Regulatory Group, 134

S. Ct. at 2441 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)).

For example, in King v. Burwell, 135 S. Ct. 2480

(2015), this Court held that tax credits are available in

each state regardless of whether the state creates its

own insurance exchange or has a federal exchange. Notably, a straightforward reading of the critical text

pointed toward a conclusion that the credits are available only for state exchanges. As Justice Scalia explained in his dissent: “The Court holds that when the

Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange

established by the State or the Federal Government.’ ”

Id. at 2496. Although Justice Scalia viewed this outcome as “quite absurd,” id., the majority relied on “the

fundamental canon of statutory construction that the

words of a statute must be read in their context and

with a view to their place in the overall statutory

scheme,” id. at 2492 (emphasis added). After concluding that the phrase “[e]xchange established by the

State” was ambiguous, the Court “turn[ed] to the

broader structure of the Act.” Because limiting tax

credits to state exchanges “would destabilize the individual insurance market in any State with a Federal

Exchange”—which would run counter to the ACA’s

purpose—the Court held that tax credits are available

for both state and federal exchanges. Id.

Similarly, the title-based definition of “public

lands” applicable elsewhere in ANILCA must yield

to Title VIII’s unequivocal purpose of codifying the

35

promises made to Alaska Natives that their customary

and traditional way of life would be protected in exchange for the elimination of their aboriginal hunting

and fishing rights.16 Applying a consistent definition of

“public lands” would render an entire section of

ANILCA effectively meaningless. Katie John I, 72 F.3d

at 704 (“If we were to adopt the state’s position, that

public lands exclude navigable waters, we would give

meaning to the term ‘title’ in the definition of the

phrase ‘public lands.’ But we would undermine congressional intent to protect and provide the opportunity for subsistence fishing.”); Katie John II, 247 F.3d

at 1036 (reading “public lands” in Title VIII “to exclude

navigable waters frustrates Congress’s express purpose of protecting traditional subsistence fishing for all

rural Alaskans”) (Tallman, J., concurring).

Finally, even if the term “public lands” is interpreted the same way throughout the Act, it does not

follow that federal general regulatory authority should

be co-extensive with federal authority to enforce the

subsistence priority. Given Congress’s clear desire to

protect subsistence rights and the obvious reality that

the protection would be substantially diminished if

federal land managers did not have the authority to

16

The entire purpose of Title VIII is to protect the subsistence preference. “[T]he continuation of the opportunity for subsistence uses by rural residents of Alaska . . . is essential to Native

physical, economic, traditional, and cultural existence. . . .” 16

U.S.C. § 3111(1) (emphasis added); Ninilchik Traditional Council,

227 F.3d at 1192 (“As is evident throughout ANILCA, Congress

places great emphasis on providing rural residents of Alaska with

the opportunity to maintain a subsistence way of life.”).

36

enforce the subsistence priority in navigable waters, it

is reasonable to interpret federal authority to achieve

that end, as the Ninth Circuit did in the Katie John

decisions. However, the same concerns about preserving federal control over navigable waters are not present in other sections of ANILCA. To the contrary, the

legislative history clearly demonstrates that Section

103(a) was added specifically to preserve State, Native,

and private control over lands within areas included in

CSUs. The decision on appeal failed to address the

clear differences in Congress’s intentions for federal

regulation of navigable waters vis-à-vis the subsistence priority as opposed to the conservation goals

within the broadly defined CSUs. This failure is a critical error because, by invoking the Katie John doctrine

without addressing these significant differences in

statutory context, the Ninth Circuit did not give effect

to the most important purpose of ANILCA—the careful

balance it crafted among competing goals.

------------------------------------------------------------------

CONCLUSION

Consistent with ANILCA’s goal of balancing competing interests, Ahtna urges the Court to be mindful

of the impacts a decision adjudicating the conservation

and sovereign interests raised below would have on

Congress’s undisputed goal of protecting Ahtna shareholders’ subsistence priority. A decision that eliminated all federal control over navigable waters—

without recognizing Congress’s special attention to meaningfully preserving Native customary and traditional

37

ways of life—would defeat the plain purposes of

ANCSA and ANILCA and plunge Alaska back into

the subsistence wars.

Respectfully submitted,

JONATHAN W. KATCHEN

Counsel of Record

SARAH C. BORDELON

BRYSON C. SMITH

HOLLAND & HART LLP

1029 W. Third Avenue, Suite 550

Anchorage, Alaska 99501

(907) 865-2600

jwkatchen@hollandhart.com

NICHOLAS OSTROVSKY

AHTNA, INCORPORATED

110 W. 38th Avenue, Suite 100

Anchorage, Alaska 99501

(907) 868-8265

nostrovsky@ahtna.net

Counsel for Ahtna, Inc.