Petition for Writ of Certiorari — Alaska, et al., Petitioners v. United States, et al.
Supreme Court briefSep 15, 2025
Ask Donna
What actually matters in this document.
Text
No. ______
IN THE
Supreme Court of the United States
STATE OF ALASKA, ET AL.,
Petitioners,
v.
UNITED STATES OF AMERICA, ET AL.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
STEPHEN J. COX
Attorney General
MARGARET PATON-WALSH
AARON C. PETERSON
Assistant Attorneys General
DEPARTMENT OF LAW
1031 W. 4th Ave., Ste. 200
Anchorage, AK 99501
(907) 269-5100
J. MICHAEL CONNOLLY
Counsel of Record
TAYLOR A.R. MEEHAN
STEVEN C. BEGAKIS
ZACHARY P. GROUEV
CONSOVOY MCCARTHY PLLC
1600 Wilson Blvd., Ste. 700
Arlington, VA 22209
(703) 243-9423
mike@consovoymccarthy.com
September 15, 2025
Counsel for Petitioners
i
QUESTION PRESENTED
Whether the United States can regulate fishing on
Alaska’s navigable waters under the Alaska National
Interest Lands Conservation Act, when its statutory
authority is limited to “public lands” and that term is
defined as “lands, waters, and interests therein … the
title to which is in the United States.”
ii
PARTIES TO THE PROCEEDING
Petitioners are the State of Alaska; the Alaska Department of Fish and Game; and Doug Vincent-Lang,
in his official capacity as Commissioner of the Alaska
Department of Fish and Game. Petitioners were defendants below.
Respondent is the United States of America,
which was the plaintiff below.
Respondents also are the Kuskokwim River InterTribal Fish Commission; the Association of Village
Council Presidents; Betty Magnuson; Ivan M. Ivan;
Ahtna Tene Nene; Ahtna, Inc.; and the Alaska Federation of Natives. These parties were intervenor plaintiffs below.
RELATED PROCEEDINGS
United States District Court (D. Alaska):
United States v. Alaska, No. 22-cv-54-SLG (Mar.
29, 2024) (order granting summary judgment to
plaintiff and intervenor plaintiffs)
United States v. Alaska, No. 22-cv-54-SLG (Apr. 1,
2024) (judgment for plaintiff and intervenor
plaintiffs)
United States Court of Appeals (9th Cir.):
United States v. Alaska, No. 24-2251 (Aug. 20,
2025) (opinion)
iii
TABLE OF CONTENTS
Table of Cited Authorities ........................................... v
Introduction .................................................................1
Opinions Below ............................................................3
Jurisdiction ..................................................................3
Statutory Provisions Involved ....................................3
Statement of the Case .................................................3
A. The Alaska Statehood Act ..............................3
B. The Alaska National Interest Lands
Conservation Act ............................................5
C. Totemoff and the Katie John Litigation ........7
D. Sturgeon v. Frost ..........................................11
E. Factual Background .....................................14
F. Proceedings Below ........................................15
Reasons for Granting the Petition ............................17
I.
The petition raises a question of
exceptional importance. ......................................19
II. The decision below conflicts with decisions
of this Court and the Alaska Supreme Court ......25
A. The decision below conflicts with this
Court’s precedent. ........................................25
B. The decision below conflicts with Alaska
Supreme Court precedent ............................34
III. This case presents an excellent vehicle to
resolve the question presented. ..........................35
Conclusion .................................................................36
iv
Appendix
Appendix A – Opinion of the United States
Court of Appeals for the Ninth Circuit,
Filed August 20, 2025 .........................................1a
Appendix B – Order of the United States
District Court for the District of Alaska,
Filed March 29, 2024 ........................................ 41a
Appendix C – Judgment of the United States
District Court for the District of Alaska,
Filed April 1, 2024 ............................................ 75a
Appendix D – Declaration of Douglas VincentLang, Filed September 1, 2023.........................77a
Appendix E – Relevant Statutory Provisions ...... 103a
v
TABLE OF CITED AUTHORITIES
Cases
Alaska v. Arctic Maid,
366 U.S. 199 (1961) .............................................32
Alaska v. Babbitt (“Katie John I”),
72 F.3d 698 (9th Cir. 1995) .......1, 8-11, 13, 14, 16
......................................................17, 22, 30, 32-35
Alaska v. United States,
545 U.S. 75 (2005) ...............................................21
Alexander v. Sandoval,
532 U.S. 275 (2001) ......................................... 9, 31
Am. Constr. Co. v. Jacksonville T. & K.W. Ry. Co.,
148 U.S. 372 (1893) .............................................35
Amoco Prod. Co. v. Vill. of Gambell, AK,
480 U.S. 531 (1987) .............................................28
Atl. Cleaners & Dyers, Inc. v. United States,
286 U.S. 427 (1932) .............................................27
Azar v. Allina Health Servs.,
587 U.S. 566 (2019) .............................................36
BP PLC v. Mayor & City Council of Baltimore,
141 S.Ct. 1532 (2021) .................................... 33, 36
Burgess v. United States,
553 U.S. 124 (2008) .............................................29
Coyle v. Smith,
221 U.S. 559 (1911) .............................................19
Food Mktg. Inst. v. Argus Leader Media,
588 U.S. 427 (2019) .............................................36
vi
Gregory v. Ashcroft,
501 U.S. 452 (1991) .............................................33
Helvering v. Hallock,
309 U.S. 106 (1940) .............................................32
Idaho v. Coeur d’Alene Tribe,
521 U.S. 261 (1997) ....................................... 19, 21
Idaho v. United States,
533 U.S. 262 (2001) .............................................21
Jama v. ICE,
543 U.S. 335 (2005) .............................................32
John v. United States (“Katie John II”),
247 F.3d 1032 (9th Cir. 2001) ........... 10, 11, 33, 35
John v. United States (“Katie John III”),
720 F.3d 1214 (9th Cir. 2013) ....................... 10, 36
Johnson v. Transp. Agency, Santa Clara Cty.,
480 U.S. 616 (1987) .............................................32
Loper Bright Enters. v. Raimondo,
603 U.S. 369 (2024) ......................................... 9, 26
McDowell v. State,
785 P.2d 1 (Alaska 1989) ................ 5, 7, 10, 15, 23
Metlakatla Indian Cmty. v. Egan,
362 P.2d 901 (Alaska 1961) ............................ 4, 20
Metlakatla Indian Cmty. v. Egan,
369 U.S. 45 (1962) ...............................................20
Milner v. Dep’t of Navy,
562 U.S. 562 (2011) .............................................36
Montana v. United States,
450 U.S. 544 (1981) .............................................21
vii
NCAA v. Alston,
594 U.S. 69 (2021) ...............................................36
PPL Montana, LLC v. Montana,
565 U.S. 576 (2012) .............................................21
SWANCC v. USACE,
531 U.S. 159 (2001) .............................................34
Sackett v. EPA,
598 U.S. 651 (2023) ................................. 17, 18, 34
Sturgeon v. Frost (“Sturgeon I”),
577 U.S. 424 (2016) ..................................... 1, 2, 21
Sturgeon v. Frost (“Sturgeon II”),
587 U.S. 28 (2019) ............................. 1, 2, 3, 5, 6, 8
......................... 11-14, 16-18, 21, 24-28, 30, 35, 36
Sturgeon v. Frost,
872 F.3d 927 (9th Cir. 2017) ...............................11
SWANCC v. USACE,
531 U.S. 159 (2001) .............................................34
TVA v. Hill,
437 U.S. 153 (1978) .............................................32
Tanzin v. Tanvir,
592 U.S. 43 (2020) ...............................................27
Tarrant Reg’l Water Dist. v. Herrmann,
569 U.S. 614 (2013) .............................................21
Totemoff v. State,
905 P.2d 954 (Alaska 1995) .... 8, 12, 18, 25, 34, 35
United States v. Alaska,
422 U.S. 184 (1975) .............................................21
viii
United States v. Alaska,
503 U.S. 569 (1992) .............................................21
United States v. Alaska,
521 U.S. 1 (1997) .................................................21
Utah Div. of State Lands v. United States,
482 U.S. 193 (1987) ....................................... 19, 21
VMI v. United States,
508 U.S. 946 (1993) .............................................33
Statutes, Rules and Regulations
16 U.S.C. §45f(b)(1) ...................................................24
16 U.S.C. §90 .............................................................24
16 U.S.C. §110c(c)(3) .................................................24
16 U.S.C. §121 ...........................................................24
16 U.S.C. §228b(a) .....................................................24
16 U.S.C. §230a(b) .....................................................24
16 U.S.C. §272(a) .......................................................24
16 U.S.C. §273 ...........................................................24
16 U.S.C. §398d(a) .....................................................24
16 U.S.C. §410bb(b)(1) ..............................................24
16 U.S.C. §410ff-1(a) .................................................24
16 U.S.C. §410gg .......................................................24
16 U.S.C. §410ii-3(a) .................................................24
16 U.S.C. §410j ..........................................................24
16 U.S.C. §410jj-3(c) ..................................................24
ix
16 U.S.C. §410mm-2(b) .............................................24
16 U.S.C. §410rr-7(c) .................................................24
16 U.S.C. §460q-2(a)-(b) ............................................24
16 U.S.C. §460z-6(a) ..................................................24
16 U.S.C. §460aa-12 ..................................................24
16 U.S.C. §460bb-3(a) ................................................24
16 U.S.C. §460kk(c)(1)...............................................24
16 U.S.C. §3101(d) ...................................................5, 6
16 U.S.C. §3102 ............................................... 1, 2, 3, 6
16 U.S.C. §3102(1)-(3) ............................... 6, 12, 25, 30
16 U.S.C. §3102(4) .......................................................6
16 U.S.C. §3111(1) .....................................................29
16 U.S.C. §3111(4) .....................................................29
16 U.S.C. §3114 ............................................. 3, 6, 7, 29
16 U.S.C. §3115(d) .......................................................7
28 U.S.C. §1254(1) .......................................................3
43 U.S.C. §1311 ..................................................... 4, 12
S.Ct.R. 10(a) ..............................................................17
S.Ct.R. 10(c) ...............................................................17
57 Fed. Reg. 22940 (May 29, 1992) ....................... 8, 29
Hearings on H.R. 331 & S. 2036, 81st Cong.,
2d Sess., 486 (1950).............................................20
Pub. L. 96-487, 94 Stat. 2371 (Dec. 2, 1980) ..........5, 6
Pub. L. No. 104-134, 110 Stat. 1321
(Apr. 26, 1996) .......................................................9
x
Pub. L. 104-208, 110 Stat. 3009
(Sept. 30, 1996) .....................................................9
Pub. L. 105-83, 111 Stat. 1543
(Nov. 14, 1997) ................................................ 9, 31
Pub. L. 105-277, 112 Stat. 2681
(Oct. 21, 1998) ........................................... 9, 10, 31
143 Cong. Rec. S11258 (Oct. 28, 1997) ................. 9, 32
Other Authorities
Off. of Subsistence Mgmt., Federal Subsistence
Fisheries Regulations, DOI (Apr. 1, 2021),
perma.cc/J8DP-3Z5Z ...........................................30
Shapiro et al., Supreme Court Practice §4.18
(11th ed. 2019) ....................................................33
Statehood for Alaska: The Issues Involved
and the Facts About the Issues, Alaska
Statehood Ass’n (Aug. 1946),
perma.cc/6XXM-EYGH .......................................20
Sustaining Alaska’s Fisheries: Fifty Years of
Statehood, Alaska Dep’t of Fish & Game
(Jan. 2009), perma.cc/24FG-RJJA......................20
Understanding the Factors that Limit Alaska
Chinook Salmon Productivity, ADF&G
(Oct. 2022), perma.cc/2JH5-2YJ7 .......................22
INTRODUCTION
This Court twice granted certiorari to settle an issue of exceptional importance: whether the federal
government can regulate Alaska’s navigable waters—
specifically, by banning hovercrafts—when the waters
flowed through a federal preserve. See Sturgeon v.
Frost, 577 U.S. 424 (2016); Sturgeon v. Frost, 587 U.S.
28 (2019). In two unanimous opinions, the Court held
that Congress gave the federal government no such
power. Parsing the Alaska National Interest Lands
Conservation Act, the Court concluded that Alaska’s
navigable waters are not “public lands,” defined as
“lands, waters, and interests therein … the title to
which is in the United States.” 16 U.S.C. §3102. The
United States cannot have “title” to a reserved water
right, and even if it could, that would let it only “take
or maintain [a] specific ‘amount of water,’” not assert
“plenary authority” over the waters. Sturgeon II, 587
U.S. at 44-45.
Lurking in the background of Sturgeon was an
even bigger issue. In a case known as Katie John I, the
Ninth Circuit had held that Alaska’s navigable waters
were “public lands” under the reserved-water-rights
doctrine, and so the United States could impose a subsistence fishing priority on those waters under Title
VIII of ANILCA. If that interpretation of “public
lands” sounds at odds with Sturgeon, that’s because it
is. But this Court avoided that irreconcilability in
Sturgeon after parties urged the Court to reserve
judgment on Katie John for another day.
That time has come. The United States has continued to issue orders regulating fishing on part of the
2
Kuskokwim River, a navigable river that runs
through a federal refuge. Despite Sturgeon, the Ninth
Circuit held in the decision below that ANILCA empowers the United States to do so. Sturgeon was no
obstacle, according to the court, because Sturgeon interpreted “public lands” in Title I of ANILCA. That
same term, “public lands,” could have a different
meaning in Title VIII, even though ANILCA’s definition of “public lands” applies “[a]s used in this Act”
“except [for] titles IX and XIV.” 16 U.S.C. §3102.
The decision below squarely conflicts with Sturgeon. ANILCA carefully defines “public lands” and
uses the term more than 200 times. It is inconceivable
that Congress envisioned fluctuating meanings of this
defined term. And the Ninth Circuit never explained
how the United States could have “title” to a reserved
water right. No different than in Sturgeon, Alaska’s
navigable waters “did not become subject to new regulation by the happenstance of ending up within a national park.” Sturgeon II, 587 U.S. at 58.
Getting this right is critical for Alaska. Federal
mismanagement of Alaska’s fisheries was a key driver
of Statehood nearly 70 years ago. Alaska’s fisheries
are among the most bountiful in the world. They sustain the livelihoods of tens of thousands of Alaskans,
creating jobs through commercial fishing and food
sources through subsistence fishing. To preserve
these resources, Alaska must comprehensively regulate its waters. But the decision below deprives Alaska
of this control, perpetuates a broken regulatory regime, and disregards the text that Congress enacted.
The Court should grant certiorari and reverse.
3
OPINIONS BELOW
The Ninth Circuit’s opinion is reported at 2025
WL 2406531, --- F.4th ---, and is reproduced in the Appendix at App.1a-40a. The district court’s opinion is
reported at 2024 WL 1348632 and is reproduced at
App.41a-74a.
JURISDICTION
The Ninth Circuit’s judgment was entered on August 20, 2025. App.1a. This Court has jurisdiction under 28 U.S.C. §1254(1).
STATUTORY PROVISIONS INVOLVED
The relevant statutory provisions are set out in
the appendix at App.103a-105a. See 16 U.S.C. §§3102,
3114.
STATEMENT OF THE CASE
A. The Alaska Statehood Act
The United States purchased Alaska from Russia
in 1867. It thereby acquired in a “‘single stroke’ 365
million acres of land—an area more than twice the
size of Texas.” Sturgeon II, 587 U.S. at 33. For the next
90 years, the United States owned and regulated all
of Alaska’s lands and waters. Id. By the 1950s, Alaskans longed for statehood. Id. at 34. Among the major
reasons why Alaskans sought statehood was the desire to gain control over their fisheries. For years, distant federal officials had mismanaged Alaska’s fisheries. Most notably, the federal government had failed
to stop outside interests from installing fish traps,
4
which had caused Alaska’s fisheries to be “pitifully depleted.” Metlakatla Indian Cmty. v. Egan, 362 P.2d
901, 915 (Alaska 1961).
The 1958 Alaska Statehood Act, 72 Stat. 339,
made Alaska the country’s 49th State. By incorporating the Submerged Lands Act, the Statehood Act gave
Alaska “‘title to and ownership of the lands beneath
navigable waters.’” Sturgeon II, 587 U.S. at 34-35
(quoting 43 U.S.C. §1311). Alaska’s ownership of these
lands brought with it “regulatory authority over ‘navigation, fishing, and other public uses’ of those waters.” Id. at 35.
One of those rivers was the Kuskokwim River.
Running more than 700 miles, the Kuskokwim River
is the longest free-flowing river in the United States
that is contained entirely within one state. Because
the entire Kuskokwim River is navigable, App.20a,
84a, the State owns the lands beneath the river and
thus has “regulatory authority over ‘navigation, fishing, and other public uses’” on the river, Sturgeon II,
587 U.S. at 34-35. Five types of salmon—Chinook,
chum, sockeye, coho, and pink—return to the Kuskokwim every year. App.85a. Ever since statehood, the
State has been managing and protecting fish in the
Kuskokwim River and other navigable waters in
Alaska. App.87a.
Alaskans have long engaged in subsistence fishing, essentially the customary and traditional practice
of catching fish for personal or family consumption or
for trade and sharing. See AS §16.05.940(34). Many
Alaskans depend on subsistence fishing to feed their
families, and they consider the practice an essential
5
element of their culture and heritage. CA9-ER-88,
242.1 Alaska Natives have relied on subsistence practices “for thousands of years,” and, in more recent history, non-Natives have “come to rely on natural resources for their social and economic livelihoods as
well.” CA9-ER-242. Subsistence fishing occurs along
the entire Kuskokwim River. App.84a.
In 1978, Alaska adopted a law giving subsistence
fishing a priority over other types of fishing (e.g., commercial or sport fishing) in times of scarcity. See ch.
151 SLA 1978; McDowell v. State, 785 P.2d 1, 4
(Alaska 1989). Alaska’s law protected subsistence
fishing throughout the State, including on navigable
waters. See ch. 151 SLA 1978. All Alaskans (both urban and rural) were eligible to engage in subsistence
fishing if they met the requirements. McDowell, 785
P.2d at 4.
B. The Alaska National Interest Lands
Conservation Act
In 1980, Congress passed the Alaska National Interest Lands Conservation Act. See Pub. L. 96-487,
94 Stat. 2371 (Dec. 2, 1980). ANILCA sought to “‘balance’ two goals, often thought conflicting.” Sturgeon
II, 587 U.S. at 36. (quoting 16 U.S.C. §3101(d)). The
Act was designed to protect “the national interest in
the scenic, natural, cultural and environmental values on the public lands in Alaska” while also providing
1 “CA9.ER” refers to the Excerpts of Record filed with the
Ninth Circuit. See CA9.Dkt.14.
6
an “adequate opportunity for satisfaction of the economic and social needs of the State of Alaska and its
people.” 16 U.S.C. §3101(d).
ANILCA accomplishes these goals through fifteen
titles. ANILCA, among other things, created and expanded national parks and wildlife refuges (Titles II
and III), established new conservation and recreation
areas (Title IV), expanded national forests and “wild
and scenic” rivers (Titles V and VI), designated new
national wildernesses (Title VII), created a rural
hunting and subsistence priority on public lands (Title
VIII), and designated places where the potential for
oil, gas, and other minerals must be studied (Title X).
The new preserves, refuges, and other areas created
by ANILCA are called “conservation system units.”
§3102(4). One of these units is the Yukon Delta National Wildlife Refuge, through which part of the Kuskokwim River runs. Pub. L. 96-487, §303(7), 94 Stat.
at 2392.
In Section 102, entitled “Definitions,” Congress
defined the term “public lands.” 16 U.S.C. §3102.
“Public lands” are “lands, waters, and interests
therein … the title to which is in the United States.”
§3102(1)-(3); see Sturgeon II, 587 U.S. at 1076-77.
Congress mandated that this definition applies in
every title of ANILCA “except … in titles IX and XIV.”
16 U.S.C. §3102.
In Title VIII, Congress established a subsistence
hunting and fishing priority on “public lands” for rural
Alaska residents. §3114. ANILCA instructs that “the
7
taking on public lands of fish and wildlife for nonwasteful subsistence uses shall be accorded priority
over the taking on such lands of fish and wildlife for
other purposes.” Id. Unlike the State’s subsistence
law, ANILCA gave a subsistence priority only to “rural” residents and applied the priority only to a subset
of lands and waters in Alaska (“public lands”). Id.
Congress authorized Alaska (instead of the federal government) to implement ANILCA’s subsistence
priority if the State adopted laws consistent with
ANILCA. §3115(d). To gain this power, the State
amended its law to give a subsistence hunting and
fishing priority only to “rural” residents. See McDowell, 785 P.2d at 4. But in 1989, the Alaska Supreme
Court in McDowell held that this new provision of the
law violated the Alaska Constitution’s right of equal
access to fish and game because it gave a subsistence
preference to “rural” residents. Id. at 4-9; see id. at
10-11 (describing the “rural” distinction as an “extremely crude” delineation that excludes “substantial
numbers of Alaskans … who have legitimate claims
as subsistence users”). As a consequence, all Alaskans
(not just “rural” Alaskans) were again eligible to engage in subsistence fishing under state law. Id. at 9.
When Alaska declined to amend its constitution to
override McDowell, implementation of ANILCA’s subsistence priority transferred to the federal government in 1990. App.7a.
C. Totemoff and the Katie John Litigation
The federal government initially recognized that
Alaska’s navigable waters are not “public lands.” That
is because “public lands” include only those lands “the
8
title to which is in the United States,” and the United
States “does not generally own title to the submerged
lands beneath navigable waters in Alaska.” 57 Fed.
Reg. 22940, 22942, 22952 (May 29, 1992). But the
United States later reversed its position in litigation,
asserting that it could regulate navigable waters “in
which the federal government has an interest under
the reserved water rights doctrine.” Alaska v. Babbitt
(“Katie John I”), 72 F.3d 698, 701 (9th Cir. 1995). Under the reserved-water-rights doctrine, “‘[w]hen the
Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the
Government, by implication, reserves appurtenant
water then unappropriated to the extent needed to accomplish the purpose of the reservation.’” Sturgeon II,
587 U.S. at 43.
In 1995, the Alaska Supreme Court rejected the
federal government’s new interpretation, holding that
ANILCA “does not give the federal government power
to regulate hunting and fishing in navigable waters.”
Totemoff v. State, 905 P.2d 954, 965 (Alaska 1995). Because the Submerged Lands Act “gives Alaska ownership of, title to, and management power over … lands
beneath the navigable waters of Alaska,” these waters
could never be “public lands.” Id. at 964. The reservedwater-rights doctrine had no relevance because “reserved water rights are not the type of property interests to which title can be held.” Id. at 965.
The Ninth Circuit saw it differently. In Katie
John I, the Ninth Circuit deferred under Chevron to
the federal government’s new interpretation, holding
that “public lands include those navigable waters in
9
which the federal government has an interest under
the reserved water rights doctrine.” 72 F.3d at 701,
703-04. The Ninth Circuit didn’t claim to find the “best
reading” of the statute, Loper Bright Enters. v. Raimondo, 603 U.S. 369, 400 (2024), only that the agencies’ interpretation was “reasonable” and a “permissible construction of the statute,” Katie John I, 72 F.3d
at 702-04. Judge Hall dissented, concluding that navigable waters were not “public lands” because “Alaska
has title to its navigable waters under the Submerged
Lands Act.” Id. at 706.
Four months after Katie John I, Congress adopted
an appropriations act that included a provision prohibiting the federal government from using any funds
to “assert jurisdiction, management, or control over
[Alaska’s] navigable waters.” Pub. L. No. 104-134,
§336, 110 Stat. 1321 (Apr. 26, 1996). Congress included similar provisions in three subsequent appropriations acts. See Pub. L. 104-208, §317, 110 Stat.
3009 (Sept. 30, 1996); Pub. L. 105-83, §316, 111 Stat.
1543 (Nov. 14, 1997); Pub. L. 105-277, Div. A, §339,
112 Stat. 2681 (Oct. 21, 1998). Congress sought to give
Alaska time to amend its constitution so the State
could continue to implement ANILCA. See, e.g.,
143 Cong. Rec. S11258, S11259 (Oct. 28, 1997) (Sen.
F. Murkowski) (provisions would avoid the “disaster
of Federal control” over “the management of [Alaska’s]
fish and game”). These appropriations acts did not
“comprehensively revis[e]” ANILCA, Alexander v.
Sandoval, 532 U.S. 275, 292 (2001), and no legislator
or committee ever suggested that the acts would codify Katie John I. When the State failed to amend its
10
constitution, the moratorium expired in October 1999.
Pub. L. 105-277, Div. A, §339(b)(2).
Because Katie John I was an interlocutory decision, the case had returned to the district court for further litigation. On appeal, the Ninth Circuit voted to
hear the case initially en banc. In a sharply divided
opinion, the Ninth Circuit declined to reconsider Katie
John I. Six judges rejected the earlier panel’s reliance
on the reserved-water-rights doctrine. See John v.
United States (“Katie John II”), 247 F.3d 1032, 1038
(9th Cir. 2001) (Tallman, J., concurring in the judgment); id. at 1046-47 (Kozinski, J., dissenting). Reversing the State’s long-held position, Alaska Governor Tony Knowles declined to seek certiorari.
App.16a.2
Because ANILCA lets only “rural” residents engage in subsistence fishing, many non-rural individuals with “longstanding cultural ties” to particular waters could no longer engage in subsistence fishing on
waters where the federal government asserted authority. McDowell, 785 P.2d at 5. Katie John also created a “balkanized” regulatory regime, where the
State could regulate only parts of its navigable waters.
App.92-93. This lack of control caused numerous management problems during times of scarcity. E.g.,
2 In 2013, the Ninth Circuit upheld federal regulations identifying which navigable waters are “public lands” under the reserved-water-rights doctrine. See John v. United States, 720 F.3d
1214 (9th Cir. 2013). Known as Katie John III, the Ninth Circuit
did not reconsider whether navigable waters could be “public
lands.” Id. at 1245.
11
App.102-03 (overfishing and fewer subsistence fishing
opportunities).
D. Sturgeon v. Frost
Katie John II was not the last word on the meaning of “public lands.” In 2019, this Court issued its
opinion in Sturgeon v. Frost. There, an Alaskan
hunter, John Sturgeon, was hunting moose along the
Nation River in Alaska. To reach his favorite hunting
ground, he would travel by hovercraft over part of the
Nation River that flows through a federal preserve.
On one of his trips, park rangers told him that a federal regulation prohibited the use of hovercrafts on
rivers within any federal preserve or park. Sturgeon
sued, arguing that the Park Service had “no power to
regulate lands or waters that the Federal Government
does not own” and the Nation River was not “public
land.” Sturgeon II, 587 U.S. at 32. The Park Service,
in response, argued that the part of the Nation River
that ran through a federal reserve was “public land”
under Katie John I and the reserved-water-rights doctrine. The Ninth Circuit agreed, holding that it was
“bound under [its] Katie John precedent” to find that
the Nation River was “public land.” Sturgeon v. Frost,
872 F.3d 927, 934 (9th Cir. 2017). Because “ANILCA’s
definition of ‘public lands’ applies throughout the statute,” the Ninth Circuit explained, it would be “anomalous” if the definition of “public lands” in Title VIII of
ANILCA “employ[ed] a different construction of ‘public lands’ than applicable elsewhere in ANILCA.” Id.
Judges Nguyen and Nelson concurred in the judgment, writing separately to explain why Katie John I’s
interpretation of “public lands” was wrongly decided.
Id. at 937-38.
12
This Court granted certiorari and unanimously
reversed. To start, all agreed that the Nation River
was not “land” or “waters” the “title to which is in the
United States.” 16 U.S.C. §3102(1)-(3). The United
States does not have “title” to “the lands beneath” navigable waters because “the Submerged Lands Act
gives each State ‘title to and ownership of the lands
beneath [its] navigable waters.’” Sturgeon II, 587 U.S.
at 42 (quoting 43 U.S.C. §1311). And the United
States does not have “title” to the river itself because
“running waters cannot be owned—whether by a government or by a private party.” Id.
That left the question of whether the United
States has “title” to an “interest” in the Nation River
under the reserved-water-rights doctrine. Id. at 43.
The Court found “no evidence that the Congress enacting ANILCA” intended to allow the United States
to “hold ‘title’ … to reserved water rights.” Id.
at 43-44. Reserved water rights instead are “‘usufructuary’ in nature, meaning that they are rights for the
Government to use—whether by withdrawing or
maintaining—certain waters it does not own.” Id.
at 43. Relying on the Alaska Supreme Court’s decision
in Totemoff, the Court emphasized the “common understanding” that “‘reserved water rights are not the
type of property interests to which title can be held.’”
Id. at 44 (quoting Totemoff, 905 P.2d at 965).
Moreover, the Court explained, even if it were possible for the United States to hold “title” to reserved
water rights, that interest would “merely enabl[e] the
Government to take or maintain the specific ‘amount
13
of water’—and ‘no more’—required to ‘fulfill the purpose of [its land] reservation.’” Id. But hovercrafts do
not “deplete or divert any water,” and the hovercraft
rule was designed to address “concerns not related to
safeguarding the water.” Id. at 45 (cleaned up). So
even if the United States could hold “title to a reserved
water right,” ANILCA still could not stop Sturgeon
from using his hovercraft on the river. Id.
Whether Sturgeon would abrogate Katie John I
was a major point of contention among the parties and
amici. Before this Court, the United States repeatedly
argued that Sturgeon’s position was irreconcilable
with Katie John I. Because ANILCA “contains a definitional section that sets out the meaning of ‘public
lands’ throughout ANILCA,” the United States explained, the statute “forecloses” the argument that the
term “public lands” can be given “one meaning in the
context of the subsistence-use-related sections of
ANILCA and a different meaning” elsewhere. United
States Br. 49, Sturgeon II (U.S. Sept. 11, 2018); see
United States Br. in Opp. 17, Sturgeon II (U.S. May 7,
2018) (same). The United States’ amici similarly argued that a ruling for Sturgeon would “undermine the
foundation on which the Katie John rulings stand” because “there is no separate definition of ‘public lands’
for purposes of Title VIII” and so any “attempt to distinguish the definition of ‘public lands’ for subsistence
and other purposes is not persuasive.” Alaska Native
Subsistence Users Amici Curiae Br. 22-23, Sturgeon
II (U.S. Sept. 18, 2018); see also Sturgeon II Tr. 27-28
(Sotomayor, J.) (“I’m having a hard time accepting
your position in this case with your position that the
Katie John decisions should be retained. I don’t know
14
how we can give different meaning to public lands in
two provisions of the same Act.”).
In response, both Sturgeon and the State of
Alaska (under a prior administration) argued that
there was “no need for th[e] Court to address the Katie
John line of decisions” because it was “beyond the
scope of the question presented.” Reply Br. 20-21,
Sturgeon II (U.S. Oct. 11, 2018); see Alaska Amicus
Br. 29, Sturgeon II (U.S. Aug. 14, 2018) (same). The
question presented “concern[ed] only Mr. Sturgeon’s
non-subsistence use of the Nation River,” which did
not “implicate Title VIII.” Alaska Am. Br. 29. This
Court agreed with Sturgeon and saw no need to address whether “public lands” had the same meaning
in Title VIII. In a footnote, the Court said that
ANILCA’s subsistence-fishing provisions were “not at
issue in this case” and so the Court was “not disturb[ing] the Ninth Circuit’s holdings.” Sturgeon II,
587 U.S. at 45 n.2.
E. Factual Background
Following Sturgeon, the United States continued
to assert authority over Alaska’s navigable waters, including the Kuskokwim River. App.93a. But the elephant in the room—whether Katie John I was still
good law—never emerged because it was “[f]ederal
policy to defer to State management … whenever possible.” App.93a; CA9.ER-254. The State manages
salmon stocks in a “‘conservative manner’” to achieve
three primary objectives: (1) maintain the salmon population by allowing salmon to “escape” upriver to
spawn, (2) provide a subsistence priority for all Alaskans, and (3) offer commercial, sport, and personal-
15
use fishing opportunities when harvestable surpluses
exist. App.82a, 87a-91a.
But then the federal government stopped deferring to the State’s management of its fisheries in the
spring of 2021. As the salmon season approached, the
State projected a low supply of Chinook salmon in the
Kuskokwim River. App.93a. The State issued emergency orders to restrict all fishing (except limited subsistence fishing) along the entire Kuskokwim River.
App.94-95a; e.g., CA9.ER-346–50. But a federal official in Alaska issued contradictory orders regulating
fishing on the part of the Kuskokwim River within the
Yukon Delta National Wildlife Refuge. App.94a; e.g.,
CA9.ER-343–45.
The State and federal orders conflicted. Per its
constitution, see McDowell, 785 P.2d at 9, the State
authorized subsistence fishing for all Alaskans who
met the criteria, but the federal government limited subsistence fishing to just “rural” Alaskans,
App.94a-95a. The federal orders thus prohibited individuals with “cultural ties to the Kuskokwim fishery”
from returning “‘home’” to engage in subsistence fishing. App.94a-95a; CA9.ER-410. The State also took a
more cautious approach, typically waiting for additional salmon-run data before issuing its orders.
App.94a-95a; App.100a-101a (criticizing federal authorization of fishing as “‘premature’” and “‘irresponsible management’”).
F. Proceedings Below
In May 2022, the United States sued the State of
Alaska. It sought a declaration that the State’s 2021
16
and 2022 orders were invalid and an injunction preventing the State from issuing orders “interfering
with or in contravention of federal orders addressing
ANILCA Title VIII and applicable regulations.”
Dist.Ct.Dkt.1 at 24; see App.54a (discussing the district court’s jurisdiction). Given the importance of the
issues at stake, four sets of plaintiffs were allowed to
intervene, with each group filing its own complaint
against the State. App.23a. The district court granted
summary judgment to the United States and the intervenors, concluding that the Kuskokwim River was
“public land” under ANILCA because Katie John I remained good law. App.60a-61a.
The Ninth Circuit affirmed. App.40a. The court
agreed that navigable waters were not “public lands”
if it interpreted “public lands” in Title VIII as this
Court interpreted that same term in Title I of
ANILCA. App.25a. And the court recognized that
“public lands” is a defined term and that “a word ‘is
presumed to bear the same meaning throughout a
text.’” Id. The court thus agreed that there was “some
tension between the Katie John Trilogy and Sturgeon
II.” App.40a.
Yet the Ninth Circuit found that Katie John I was
still good law because the State had not met the “high
standard” of showing that the opinion was “clearly irreconcilable” with Sturgeon. App.39a-40a. According
to the Ninth Circuit, Katie John I and Sturgeon could
be “reasonably harmonized” by giving the term “public
lands” a different meaning in Title VIII than in the
other parts of the statute. App.4a. “Congress in-
17
tended,” the Ninth Circuit believed, to apply a subsistence priority to waters “within conservation system
units” where rural users have “traditionally fished.”
App.30a, 32a. The court also concluded that Congress
had “‘accepted and ratified’ Katie John I’s reserved
water rights interpretation” through the appropriations acts that paused federal enforcement of
ANILCA. App.35a, 38a. The court never identified
“‘exceedingly clear language’” in ANILCA authorizing
the federal government to regulate fishing on the
State’s navigable waters. App.39a (quoting Sackett v.
EPA, 598 U.S. 651, 679 (2023)).
REASONS FOR GRANTING THE PETITION
The Court should hear this case because the Ninth
Circuit has “decided an important question of federal
law … in a way that conflicts with relevant decisions
of this Court” and “with a decision by a state court of
last resort.” S.Ct.R. 10(a), (c).
The question presented is undeniably important.
Upon entering the Union, Alaska gained the sovereign
right to regulate “‘navigation, fishing, and other public uses’” on its navigable waters. Sturgeon II, 587 U.S.
at 34-35. This right was critical for the new State,
which had endured years of federal mismanagement
of its fisheries. The decision below not only strips the
State of this sovereignty, but it perpetuates an arbitrary and confusing regulatory regime that has
wreaked havoc on Alaska’s navigable waters. To effectively manage its fisheries, the State must regulate
the entire river. But the decision below allows the federal government to override the State’s authority on
portions of the State’s rivers running through federal
18
conservation system units. This segregated authority
has led to overfishing, deprived rural residents upstream (both Native and non-Native) of an equal opportunity to participate in subsistence fishing, and
prevented others from returning home to practice
their culture and traditions.
The decision below also squarely conflicts with
both this Court’s and the Alaska Supreme Court’s
precedent. Though Sturgeon had no need to address
Title VIII of ANILCA, its interpretation of “public
lands” is irreconcilable with the decision below. If navigable waters are not “public lands” just because they
run through a conservation system unit for purposes
of Title I, as this Court has already unanimously held,
they are not “public lands” for purposes of Title VIII
either. The United States cannot hold “title” to reserved water rights and, even if it could, such rights
would never give the United States “plenary authority” to regulate a State’s navigable waters. 587 U.S.
at 44-45. Vague notions of Congress’s “purpose” cannot override the plain text, especially when there is no
“‘exceedingly clear language’” applying ANILCA to
the State’s navigable waters. Sackett, 598 U.S. at 679.
The decision below also conflicts with the Alaska Supreme Court’s decision in Totemoff, which—in a holding expressly adopted by this Court in Sturgeon—
found that navigable waters are not “public lands” under ANILCA.
Finally, this Court will not get a better opportunity to resolve this issue. Though this issue has fes-
19
tered for decades, this Court has never had a clean petition to resolve it. This case squarely presents the issue. The Court should grant certiorari and reverse.
I. The petition raises a question of
exceptional importance.
Certiorari is warranted because the decision below strips the State of Alaska of its sovereign right to
regulate fishing on its navigable waters and perpetuates a flawed regulatory regime that has harmed the
State’s subsistence and conservation efforts.
1. The Court has long recognized that “[n]avigable
waters uniquely implicate sovereign interests.” Idaho
v. Coeur d’Alene Tribe, 521 U.S. 261, 284 (1997). Under English common law, the Crown “held sovereign
title to all lands underlying navigable waters.” Utah
Div. of State Lands v. United States, 482 U.S. 193, 195
(1987). Because title to such land was critical to “the
sovereign’s ability to control navigation, fishing, and
other commercial activity on rivers,” this ownership
was “considered an essential attribute of sovereignty.”
Id. When the Colonies became independent, they
“claimed title to the lands under navigable waters
within their boundaries as the sovereign successors to
the English Crown.” Id. at 196. Since then, all new
States have entered the Union on an “equal footing”
with the original 13 States and thus have gained “the
right to control and regulate” those navigable waters.
Coyle v. Smith, 221 U.S. 559, 573 (1911).
Nowhere is this sovereign power more important
than in Alaska. Indeed, one of the main reasons Alaskans sought statehood was to gain regulatory control
20
of its fisheries. Before statehood, “[l]ax federal management” had led to an overexploitation of salmon,
such that by “the 1950s Alaska salmon runs were declared a federal disaster.” Sustaining Alaska’s Fisheries: Fifty Years of Statehood 1, Alaska Dep’t of Fish &
Game (Jan. 2009), perma.cc/24FG-RJJA. The presence of fish traps throughout Alaska’s navigable waters was a “despised symbol of outside control of the
territory that inflamed Alaskans desire for statehood.” Id. at 4; see Metlakatla Indian Cmty. v. Egan,
369 U.S. 45, 47 (1962). The “economy of the entire
state [was] affected … by the plentitude of salmon in
a given season,” and so “preservation of [that] natural
resource [was] vital to the state.” Metlakatla Indian
Cmty., 362 P.2d at 915. For Alaskans, it was “inconceivable to think of a State being created without control of [fisheries].” Hearings on H.R. 331 & S. 2036,
81st Cong., 2d Sess., 486 (1950) (Gov. Ernest
Gruening); see also Statehood for Alaska: The Issues
Involved and the Facts About the Issues, Alaska Statehood Ass’n (Aug. 1946), perma.cc/6XXM-EYGH (“If
Congress should attempt to withhold the fisheries, …
Alaskans need not accept the gift of statehood, and undoubtedly would reject it at their election on ratification of the state constitution.”).
The importance of this sovereign right hasn’t lessened over time. Alaska is “one of the most bountiful
fishing regions in the world,” containing more than
three million lakes, 12,000 rivers, and 6,640 miles of
coastline. CA9.ER-41. Alaska’s fisheries are one of the
largest sources of private sector employment in
Alaska, creating more than $5 billion in annual eco-
21
nomic activity and employing nearly 70,000 individuals. CA9.ER-41–43. Subsistence fishing also is critically important for tens of thousands of Alaskans.
CA9.ER-65. For many Alaskans, subsistence fishing
“is about more than food consumption and economics;
it is directly tied to their history and central to their
customs and traditions.” Id. To preserve these benefits, Alaska’s constitution requires that all fish be “utilized, developed, and maintained” for future generations. Alaska Const. art. VIII, §4.
This Court regularly grants certiorari to resolve
disputes over a state’s right to regulate its navigable
waters. E.g., Tarrant Reg’l Water Dist. v. Herrmann,
569 U.S. 614 (2013); PPL Montana, LLC v. Montana,
565 U.S. 576 (2012); Idaho v. United States, 533 U.S.
262 (2001); Idaho v. Coeur d’Alene Tribe, 521 U.S. 261
(1997); Utah Div. of State Lands, 482 U.S. 193; Montana v. United States, 450 U.S. 544 (1981). And the
Court has paid special attention to Alaska. Shortly after Alaska became a state, this Court granted certiorari to review whether Alaska could tax commercial
fishing in its waters “because of the importance of the
ruling to the new State of Alaska.” Alaska v. Arctic
Maid, 366 U.S. 199, 202 (1961). Since then, the Court
has repeatedly heard cases dealing with the State’s
authority to regulate and use its natural resources—
especially its submerged lands—to benefit Alaska’s
citizens. See Sturgeon II, 587 U.S. 28; Sturgeon I, 577
U.S. 424; Alaska v. United States, 545 U.S. 75 (2005);
United States v. Alaska, 521 U.S. 1 (1997); United
States v. Alaska, 503 U.S. 569 (1992); United States v.
Alaska, 422 U.S. 184 (1975).
22
2. The harms to Alaska from losing regulatory
control over its navigable waters are not theoretical.
Katie John I created a “balkanized regulatory regime,” where the State manages all navigable waters
until the federal government asserts authority
over segments of them during times of scarcity.
App.92a-93a. But this is no way to run a railroad.
Fisheries management is a highly complex enterprise.
Myriad factors affect the salmon population, including
weather, predators, habitat changes, food supply, and
disease. Understanding the Factors that Limit Alaska
Chinook Salmon Productivity at 9-10, ADF&G
(Oct. 2022), perma.cc/2JH5-2YJ7. The Alaska Department of Fish and Game, which has an operating
budget of $240 million, employs the most sophisticated methods available for measuring the salmon
population, including “telemetry, sonar, aerial studies, test fisheries, weirs, and computer modeling.”
App.80a, 89a. For the State to meet its goals—maintaining a sustainable fish population while providing
subsistence and other fishing opportunities when
available—the State must manage the entire river
system, not just bits and pieces. App.87a-93a.
The conflict over the Kuskokwim River epitomizes
these problems. Only part of the Kuskokwim (about
one-fourth) lies within a conservation system unit,
which is in the lower portion of the river near the Bering Sea. App.84a-85a, 92a. It is critical that salmon
escape the system unit and travel upstream. Most of
the salmon spawning (laying and fertilizing of eggs)
occurs above the system unit, and many rural communities live upriver and depend on subsistence fishing.
Id.; CA9.ER-388–89. When the salmon population in
23
the Kuskokwim is low, the State seeks to conserve
salmon and provide fishing opportunities along the
entire river, not just within the system unit. App.92a,
102a. But the federal government focuses only on
providing subsistence opportunities for the slice of the
Kuskokwim within the system unit. App.92a-93a.
This “regulatory narrowness” has led to overfishing
within the conservation system unit and has deprived
communities living upstream of an equal “opportunity
to share in the harvest.” App.92a-93a, 101a-102a.
The Katie John regime also harms non-rural residents (often Alaska Natives) who have cultural connections to an area and wish to engage in subsistence
fishing. McDowell, 785 P.2d at 4. The Alaska Constitution guarantees that all Alaskans (not just rural
residents) may participate in subsistence fishing
when they meet the requirements. Id. at 9. Many
Alaska Natives have cultural ties to rural fisheries
but have been displaced to urban areas of the state for
health, education, economic, or other reasons.
App.83a, 96a; CA9.ER-410. Indeed, more than half of
Alaska Natives live in non-subsistence areas of
Alaska and thus cannot engage in subsistence fishing
where the federal government asserts authority.
CA9.ER-285. Alaska law thus provides greater subsistence fishing rights than federal law by ensuring
that these individuals can return “home” to practice
their culture and traditions. App.83a, 94a-95a; see
CA9.ER-410; McDowell, 785 P.2d at 4 (discussing the
“substantial numbers” of non-rural residents who
“have lived a subsistence lifestyle and desire to continue to do so”).
24
Importantly, correctly interpreting ANILCA
would not lessen the subsistence rights of rural communities. Rural Alaskans who currently engage in
subsistence fishing on navigable waters would have
the same right to engage in subsistence fishing because Alaska law provides a subsistence fishing priority on waters throughout the State, including on navigable waters. AS §16.05.258; see also App.95a-96a
(opening subsistence fishing to all Alaskans had “no
meaningful impact on subsistence fishing for rural
residents”). A uniform system of regulation would better protect Alaska’s fisheries for all subsistence users.
3. Certiorari would be warranted even if this case
only affected Alaska. But it doesn’t. ANILCA’s definition of “land” is not unique. The same definition appears in numerous federal land statutes. For example,
the boundaries of the Grand Canyon National Park
include “all lands, waters, and interests therein”
within a certain area. 16 U.S.C. §228b(a) And the Secretary of the Interior must “administer the lands, waters and interests therein” that makeup the Golden
Gate National Recreation Area. §460bb-3(a). These
are just a few examples.3 Sturgeon made clear that a
reserved water right could never “give the Government plenary authority over the waterway to which it
attaches,” but would be limited to “tak[ing] or maintain[ing] [a] specific ‘amount of water.’” 587 U.S. at 44.
Not so in the Ninth Circuit. As long as a broad “statutory objective” can be found (often an easy task),
3 See also 16 U.S.C. §§45f(b)(1), 90, 110c(c)(3), 121, 230a(b),
272(a), 273, 398d(a), 410bb(b)(1), 410ff-1(a), 410gg, 410ii-3(a),
410j, 410jj-3(c), 410mm-2(b), 460q-2(a)-(b), 410rr-7(c), 460z-6(a),
460aa-12, 460kk(c)(1).
25
App.4a, the federal government will be free to seize
control of non-federal waters. Granting certiorari
would preserve the limitations on the reserved-waterrights doctrine established in Sturgeon.
II.
The decision below conflicts with
decisions of this Court and the Alaska
Supreme Court.
This Court’s review is also warranted because the
decision below conflicts with this Court’s decisions—
most obvious, Sturgeon—and the Alaska Supreme
Court’s precedent in Totemoff.
A.
The decision below conflicts with this
Court’s precedent.
1. ANILCA is a comprehensive statute addressing
how the United States will regulate “public lands” in
Alaska. In Section 102, ANILCA carefully defines
“public lands” as “lands, waters, and interests therein
… the title to which is in the United States.” 16 U.S.C.
§3102(1)-(3). ANILCA expressly mandates that this
definition will apply “[a]s used in this Act … except …
in titles IX and XIV.” Id.
In Sturgeon, this Court held that navigable waters
running through a conservation system unit were not
“public lands” under the reserved-water-rights doctrine. Because reserved water rights are “‘usufructuary’ in nature,” they “‘are not the type of property interests to which title can be held.’” 587 U.S. at 43-44
(quoting Totemoff, 905 P.2d at 965). The Court found
“no evidence” that Congress intended “to use the term
[‘title’] in any less customary and more capacious
26
sense.” Id. at 44. Moreover, even if the United States
could hold “title” to a reserved water right, it still
couldn’t regulate the river under ANILCA. Id.
at 44-45. Because a “reserved right, by its nature, is
limited,” the United States would not gain “plenary
authority over the waterway to which it attaches.” Id.
at 44. This “interest” would “merely enabl[e] the Government to take or maintain the specific ‘amount of
water’—and ‘no more’—required to ‘fulfill the purpose
of [its land] reservation.’” Id.
After Sturgeon, this case should have been easy.
The Kuskokwim River is not “public land” because the
United States cannot hold “title” to an “interest” in a
reserved water right in the river. Id. at 43-44. And,
even if it had this title, it would at most “support a
regulation preventing the ‘depletion or diversion’ of
waters in the River.” Id. at 44-45. But subsistence
fishing regulations do “nothing of that kind.” Id. at 45.
That means that “ANILCA changed nothing” and
Alaska—not the United States—continues to have
sovereign authority to regulate the river. Id. at 58.
True, this Court declined to resolve this issue in
Sturgeon because Title VIII was “not at issue in this
case.” 587 U.S. at 45 n.2. But this Court’s unanimous
interpretation of ANILCA’s terms in Sturgeon cannot
be reconciled with the Ninth Circuit’s Katie John rule.
The Ninth Circuit believed that the term “public
lands” could be given a different meaning in Title VIII
than in the rest of ANILCA. App.4a, 25a. But that is
not the “best reading” of the statute. Loper Bright, 603
U.S. at 400. There is a “natural presumption that
identical words used in different parts of the same act
27
are intended to have the same meaning.” Atl. Cleaners
& Dyers, Inc. v. United States, 286 U.S. 427, 433
(1932). And this presumption is at its apex where (as
here) Congress explicitly defined a specialized term
and expressly identified where it does and does not
apply (all 15 titles, except titles IX and XIV). “‘When
a statute includes an explicit definition, [the Court]
must follow that definition,’ even if it varies from a
term’s ordinary meaning.” Tanzin v. Tanvir, 592 U.S.
43, 47 (2020). As Sturgeon said, the statutory definition of “public lands” is “‘virtually conclusive’” of the
term’s meaning. 587 U.S. at 56 (quoting Scalia & Garner, Reading Law: The Interpretation of Legal Texts
228 (2012)).
Here, ANILCA uses the term “public land” or
“public lands” more than 200 times and the term appears in every title of the statute. It is used, among
other ways, to determine the acreage and boundaries
of parks, monuments, and preserves (Title II); establish and expand wildlife refuges (Title III); create conservation and recreation areas (Title IV); expand national forest lands (Title V); designate wilderness areas (Title VII); identify the lands where the subsistence priority applies (Title VIII); and pinpoint the
places where the potential for oil, gas, and other minerals must be studied (Title X). Given the term’s prevalence throughout the statute and its express (and detailed) definition, it is implausible that Congress
wanted the term to have a loose and fluctuating meaning. As this Court has recognized, Congress was not
“merely waving its hand in the general direction” of
Alaskan lands and waters when it “defined the scope
of ANILCA” to apply only to “public lands.” Amoco
28
Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 548
(1987).
The Ninth Circuit thought this presumption could
be overcome because the “context and objective of Title VIII” indicated that “Congress intended the rural
subsistence priority to apply to the waters and to the
fish populations that rural subsistence users have traditionally fished and depended upon within conservation system units.” App.30a, 32a-33a (emphasis omitted). But this Court rejected a nearly identical argument in Sturgeon. Invoking “‘the overall statutory
scheme’” and “ANILCA’s general statement of purpose,” the federal government insisted “that ANILCA
must at least allow it to regulate navigable waters.”
587 U.S. at 55. This Court disagreed, stressing that
ANILCA’s “statements of purpose … cannot override
[the] statute’s operative language.” Id. at 57 (cleaned
up). This Court also rejected a similar purposive argument about Title VIII in Amoco. The Court found it
“difficult to believe that Congress intended the subsistence protection provisions of Title VIII, alone
among all the provisions in the Act, to apply to the
[Outer Continental Shelf],” and this was “particularly
implausible because the same definition of ‘public
lands’ which defines the scope of Title VIII applies as
well to the rest of the statute.” 480 U.S. at 550-51.
The Ninth Circuit is wrong about ANILCA’s “purpose” in any event. ANILCA balanced “conflicting”
goals, Sturgeon II, 587 U.S. at 36, and the best way to
give effect to the statute’s purpose is to respect this
“carefully drawn balance,” id. at 52. Contra the Ninth
29
Circuit, Congress did not impose a subsistence priority on all waters where “rural subsistence users have
traditionally fished … within conservation system
units.” App.32a. Congress created a subsistence priority only for “public lands.” 16 U.S.C. §3114; see also
§3111(4) (supporting “continued subsistence uses on
the public lands”) (emphasis added)); §3111(1) (supporting “the continuation of the opportunity for subsistence uses … on the public lands”) (emphasis
added)). “[I]f Congress wanted” to apply the subsistence priority to navigable waters, it “easily could have
written” ANILCA to do that. Burgess v. United States,
553 U.S. 124, 130 (2008).
That ANILCA does not reach the State’s navigable waters is not surprising given the regulatory regime in place when ANILCA was enacted. Supra p.5.
Congress could limit ANILCA’s reach to “public lands”
because the State already provided a subsistence priority on navigable waters. Id. And ANILCA provided
a meaningful complement to state law, even without
covering navigable waters. The United States is the
largest landowner in Alaska, owning an outstanding
60% of the State’s total area (222 million acres).
CA9.ER-169. ANILCA’s subsistence priority includes
not only hunting on federal lands but also subsistence
fishing on non-navigable waters on federal lands and
navigable waters running over land owned by the
United States—countless lakes, rivers, ponds,
streams, and the like that have long offered subsistence fishing opportunities. See 57 Fed. Reg. at 22941,
22951 (1992 regulations applying subsistence priority
to “non-navigable waters located on all public lands”
and “navigable waters located on certain public
30
lands”); see also Off. of Subsistence Mgmt., Federal
Subsistence Fisheries Regulations at 60, 67, DOI
(Apr. 1, 2021), perma.cc/J8DP-3Z5Z (discussing subsistence fishing opportunities for certain lakes and
ponds). And if Congress missed any waters, Sturgeon
pointed out the solution: ANILCA authorizes the
United States “to buy from Alaska the submerged
lands of navigable waters—and then administer them
as public lands.” 587 U.S. at 57.
Even assuming the Ninth Circuit correctly found
the unspoken “purpose” of ANILCA, the court failed
to provide a textual interpretation that makes sense.
The Ninth Circuit never explained how navigable waters could be “lands, waters, and interests therein …
the title to which is in the United States.” 16 U.S.C.
§3102(1)-(3) (emphasis added). Sturgeon says that reserved water rights are “usufructuary interests” and
thus “‘are not the type of property interests to which
title can be held.’” 587 U.S. at 44. The panel below
pointed back to Katie John I, but that opinion provides
no help. The Katie John I court admitted that its decision was “inherently unsatisfactory” because it gave
no “meaning to the term ‘title’ in the definition of the
phrase ‘public lands.’” 72 F.3d at 704. Sturgeon rejected this purposive approach to ANILCA and requires following the words Congress enacted.
2. Nor can the Ninth Circuit justify its atextual
approach with speculation that Congress “ratified”
Katie John I in the 1990s. App.33a-38a. Tellingly, this
Court was presented with the same congressional ratification arguments in Sturgeon and declined to adopt
31
them. See United States Br. at 37-40, Sturgeon II (arguing that “Congress … ratified the Secretary’s construction of ‘public lands’” through the appropriations
acts). They fare no better now.
When “Congress has not comprehensively revised
a statutory scheme but has made only isolated amendments,” this Court “ha[s] spoken … bluntly: It is impossible to assert with any degree of assurance that
congressional failure to act represents affirmative
congressional approval of [a] [c]ourt’s statutory interpretation.” Alexander, 532 U.S. at 292 (cleaned up).
“The mere failure of a legislature to correct extant
lower-court … or agency interpretations is not … a
sound basis for believing that the legislature has
‘adopted’ them.” Scalia & Garner 326.
Here, the appropriations acts did not “comprehensively revise” ANILCA—the statute was the same in
2000 as it was in 1995. What the Ninth Circuit called
“substantive amendments to ANILCA,” App.38a n.16,
were all repealed a year later when Alaska did not
amend its constitution to allow the State to implement
ANILCA’s rural subsistence priority. See Pub. L. 10583, §316(d); Pub. L. 105-277, Div. A, §339(b)(2). Giving
the State time to amend its constitution was all that
these appropriations act provisions were designed to
do. As Alaska Senator Frank Murkowski explained:
[A]voiding a Federal takeover of fish and
game management is simply critical in my
State. When Alaska became a State, Alaskans
were united in our desire to take over the
management of our fish and game. Many
32
Alaskans still have vivid memories of the disaster of Federal control …. The State, not the
elusive Federal bureaucrats with no accountability to Alaskans, should manage our fish
and game.
143 Cong. Rec. at S11259.
Appropriation acts that avoided the “disaster of
Federal control” were not silently endorsing sweeping
federal power over the State’s navigable waters. Indeed, the Ninth Circuit could not cite a single statement from any report, committee, or even member of
Congress to support its ratification theory. That Congress never amended the definition of “public lands”
to override Katie John I cannot be seen as an endorsement of the opinion. Given the “inertia” created by the
Constitution’s “‘complicated check on legislation,’”
this inaction could be due to any number of factors,
including an “inability to agree upon how to alter the
status quo” or simply “political cowardice.” Johnson v.
Transp. Agency, Santa Clara Cty., 480 U.S. 616, 672
(1987) (Scalia, J., dissenting). And this Court has long
held that the mere appropriation of funds cannot
change substantive law. TVA v. Hill, 437 U.S. 153,
190-91 (1978). This Court would “walk on quicksand”
if it tried to find a “controlling legal principle” from
these appropriation acts. Helvering v. Hallock, 309
U.S. 106, 121 (1940).
Nor was Katie John I “‘settled’” or “unquestioned”
such that a court “must presume Congress … endorsed it.” Jama v. ICE, 543 U.S. 335, 349 (2005).
33
When Congress adopted these acts, the Katie John litigation was still ongoing. Katie John I was an interlocutory decision, and the issue would be hotly debated in Katie John II just a few years after Congress
passed the appropriations acts. And the fact that this
Court denied certiorari in Katie John I is not, as the
Ninth Circuit believed, App.34a n.14, a reason to regard the point as settled. This Court “generally
await[s] final judgment in the lower courts before exercising [its] certiorari jurisdiction,” and so denying
certiorari does not “preclude [a party] from raising the
same issues in a later petition, after final judgment
has been rendered.” VMI v. United States, 508 U.S.
946, 946 (1993) (Scalia, J., respecting the denial of the
petition for writ of certiorari); see Shapiro et al., Supreme Court Practice §4.18 (11th ed. 2019).
In the end, what some unnamed members of Congress may have been thinking here is beside the point.
The Court “cannot” rely on a theory of congressional
ratification when “‘the text and structure of the statute are to the contrary.’” BP PLC v. Mayor & City
Council of Baltimore, 141 S.Ct. 1532, 1541 (2021). Especially so here given ANILCA’s straightforward definition of “public lands.”
3. If there were any doubt, the clear-statement
canon resolves it. This Court does not interpret a statute to “alter the usual constitutional balance between
the States and the Federal Government” unless Congress makes “its intention to do so unmistakably clear
in the language of the statute.” Gregory v. Ashcroft,
501 U.S. 452, 460 (1991) (cleaned up). For example, in
34
Sackett, the Court rejected an “overly broad interpretation of the [Clean Water Act’s] reach” that would
have impinged on the “core of traditional state authority” to “[r]egulat[e] … land and water use.” 598 U.S.
at 679-80; see also SWANCC v. USACE, 531 U.S. 159,
169 n.5 (2001).
Here, the regulation of fishing on navigable waters is unquestionably a core function of state sovereignty. Yet there is no “‘exceedingly clear language’”
in ANILCA authorizing the federal government to deprive the State of this authority. Sackett, 598 U.S.
at 679. Indeed, as Katie John I recognized, ANILCA
“makes no reference to navigable waters” at all.
72 F.3d at 702. This lack of exceedingly clear language
confirms that the Ninth Circuit’s opinion has no basis
in the text.
B.
The decision below conflicts with
Alaska Supreme Court precedent.
The Ninth Circuit’s Katie John rule also conflicts
with Alaska’s highest court’s interpretation of
ANILCA. In Totemoff, the Alaska Supreme Court considered a subsistence hunter’s use of artificial lighting—a portable spotlight—to hunt deer from his perch
on a small river boat on Alaska’s navigable waters.
The State prosecuted the hunter for violating state
law prohibiting hunting with an artificial light. The
hunter argued that ANILCA prevented the State from
prosecuting him because he shot the deer on navigable
waters, which he reasoned were the federal government’s to regulate. The Alaska Supreme Court rejected that defense, holding that navigable waters
35
owned by the State are not “public lands” under
ANILCA. 905 P.2d at 968.
The Alaska Supreme Court held that navigable
waters were not “public lands” under the reserved-water-rights doctrine. In reasoning that this Court would
later adopt in Sturgeon, the Alaska Supreme Court explained that “reserved water rights are not the type of
property interests to which title can be held.” Id.
at 965; see Sturgeon II, 587 U.S. at 44 (quoting Totemoff). Interpreting the statute to include navigable
waters also “would conflict with the clear statement
doctrine.” Totemoff, 905 P.2d at 966. As the court
noted, “[s]tates have traditionally had the power to
govern hunting and fishing in their navigable waters,”
and in enacting ANILCA, “Congress has not expressed in unmistakably clear language a desire to alter this traditional allocation of state and federal
power.” Id. Resolving this clear split in authority between Alaska’s high court and the Ninth Circuit is yet
another reason to grant certiorari.
III. This case presents an excellent vehicle to
resolve the question presented.
Though this issue has been debated by the lower
courts since 1995, this Court has never been presented with a clean petition to resolve it. In Katie
John I, the Court was asked to review a decision on
interlocutory review, something it has long declined to
do “unless it is necessary to prevent extraordinary inconvenience and embarrassment in the conduct of the
cause.” Am. Constr. Co. v. Jacksonville T. & K.W. Ry.
Co., 148 U.S. 372, 384 (1893); supra p.33. In Katie
John II, the case became final after a heavily divided
36
en banc decision, but Alaska Governor Knowles
flipped the State’s long-held position and declined to
file a petition for certiorari. App.16a. In Katie John
III, the Ninth Circuit addressed the legality of federal
regulations, not the underlying reserved water rights
holding. 720 F.3d at 1245. And in Sturgeon, ANILCA’s
subsistence-fishing provisions were “not at issue in
th[e] case,” so the Court “d[id] not disturb the Ninth
Circuit’s holdings.” 587 U.S. at 45 n.2. The decision
below, by contrast, squarely presents the meaning of
“public lands” under Title VIII of ANILCA.
That the Ninth Circuit has applied its Katie John
rule since the 1990s is no reason to deny certiorari.
This Court has “no warrant to ignore clear statutory
language on the ground that other courts have done
so,” even if they have done so for “‘30 years.’” Milner
v. Dep’t of Navy, 562 U.S. 562, 575-76 (2011); see BP
PLC, 141 S.Ct. at 1541. The Court thus does not hesitate to grant certiorari to consider statutory questions
that have been misinterpreted by the lower courts for
decades. See, e.g., Food Mktg. Inst. v. Argus Leader
Media, 588 U.S. 427, 436-37 (2019) (overturning the
D.C. Circuit’s 45-year-old interpretation of the Freedom of Information Act, which had been adopted by
multiple courts of appeals and was “a relic from a ‘bygone era of statutory construction’”).
In the end, Respondents will no doubt argue that
policy concerns warrant leaving the decision below in
place. But the way to achieve policy goals is “‘by legislation and not by court decision.’” NCAA v. Alston, 594
U.S. 69, 96 (2021). Courts “aren’t free to rewrite clear
37
statutes under the banner of [their] own policy concerns.” Azar v. Allina Health Servs., 587 U.S. 566, 581
(2019). If Congress wants the federal government to
take over the State’s navigable waters, it should say
so. Until it does, courts should follow the statute as
written.
CONCLUSION
The Court should grant certiorari.
Respectfully submitted,
STEPHEN J. COX
Attorney General
J. MICHAEL CONNOLLY
Counsel of Record
TAYLOR A.R. MEEHAN
MARGARET PATON-WALSH STEVEN C. BEGAKIS
AARON C. PETERSON
ZACHARY P. GROUEV
Assistant Attorneys
CONSOVOY MCCARTHY PLLC
General
1600 Wilson Blvd., Ste. 700
DEPARTMENT OF LAW
Arlington, VA 22209
1031 W. 4th Ave., Ste. 200 (703) 243-9423
Anchorage, AK 99501
mike@consovoymccarthy.com
(907) 269-5100
September 15, 2025
Counsel for Petitioners
APPENDIX
i
TABLE OF APPENDICES
Page
A P P E N DI X A — O P I N ION O F T H E
UNITED STATES COURT OF APPEALS
FOR T HE NIN T H CIRCU I T, FILED
AUGUST 20, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B — ORDER OF THE UNITED
S TAT E S DI S T R IC T C OU RT FOR
THE DISTRICT OF A LA SK A , FILED
MARCH 29, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41a
A PPENDI X C — J U DGMENT OF THE
UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF A LA SK A , FILED
APRIL 1, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75a
A P P EN DI X D — DE C L A R A T ION OF
DOUGLAS VINCENT-LANG FOR THE
UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF A LA SK A , FILED
SEPTEMBER 1, 2023 . . . . . . . . . . . . . . . . . . . . . . . . 77a
APPENDIX E — RELEVANT STATUTORY
PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103a
1a
APPENDIX A — Appendix
OPINIONAOF THE UNITED
STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT, FILED AUGUST 20, 2025
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 24-2251
D.C. No. 1:22-cv-00054-SLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
KUSKOKWIM RIVER INTER-TRIBAL FISH
COMMISSION; ASSOCIATION OF VILLAGE
COUNCIL PRESIDENTS; BETTY MAGNUSON;
IVAN M. IVAN; AHTNA TENE NENE; AHTNA,
INC.; ALASKA FEDERATION OF NATIVES,
Intervenor-Plaintiffs-Appellees,
v.
STATE OF ALASKA; ALASKA DEPARTMENT
OF FISH AND GAME; DOUG VINCENT-LANG,
in his official capacity as Commissioner of the Alaska
Department of Fish & Game,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, Chief District Judge, Presiding
2a
Appendix A
Argued and Submitted June 23, 2025
Seattle, Washington
Filed August 20, 2025
Before: Consuelo M. Callahan, Roopali H. Desai, and
Ana de Alba, Circuit Judges.
Opinion by Judge Callahan
OPINION
CALLAHAN, Circuit Judge:
The Alaska National Interest Lands Conservation Act
(“ANILCA”), Pub. L. No. 96-487, 94 Stat. 2371 (1980), has
multiple purposes, including to “provide the opportunity
for rural [Alaska] residents engaged in a subsistence way
of life to continue to do so.” 16 U.S.C. § 3101(c). To fulfill
this purpose, Title VIII of ANILCA (codified at 16 U.S.C.
§§ 3111-26) establishes the “rural subsistence priority,”
which generally provides that rural Alaska residents who
fish and hunt for subsistence purposes are given priority
over others in fishing and hunting on “public lands”
whenever it is necessary to restrict fishing and hunting
to protect the rural subsistence users’ ability to continue
their subsistence uses. See id. §§ 3111-15.
We resolved the meaning of the term “public lands” as
used in Title VIII—and, therefore, the geographic scope
of the rural subsistence priority—more than a decade ago
in a series of decisions dubbed the Katie John Trilogy. In
3a
Appendix A
Katie John I, we held that “public lands” includes navigable
waters in which the United States holds reserved water
rights. Alaska v. Babbitt (Katie John I), 72 F.3d 698, 704
(9th Cir. 1995), cert. denied, 517 U.S. 1187 (1996), and
cert. denied sub nom., Alaska Fed’n of Natives v. United
States, 517 U.S. 1187 (1996). Then, sitting en banc in Katie
John II, we maintained the holding of Katie John I. John
v. United States (Katie John II), 247 F.3d 1032 (9th Cir.
2001) (en banc) (per curiam). Finally, in Katie John III,
we upheld regulations identifying the navigable waters
that constitute “public lands” because the United States
holds reserved water rights in them. John v. United States
(Katie John III), 720 F.3d 1214, 1245 (9th Cir. 2013), cert.
denied sub nom., Alaska v. Jewell, 572 U.S. 1042 (2014).
Recently, the Supreme Court considered the meaning
of “public lands” as used in another part of ANILCA—
Section 103(c) in Title I (codified at 16 U.S.C. § 3103(c))—
and declined to interpret the term to include navigable
waters in which the United States holds reserved water
rights. Sturgeon v. Frost (Sturgeon II), 587 U.S. 28, 4245 (2019). In Sturgeon II, Alaska changed its prior course
and defended the Katie John Trilogy, arguing that “public
lands” has a different meaning in 16 U.S.C. § 3103(c) than
in Title VIII, that the Katie John Trilogy’s reserved water
rights interpretation is proper in the latter context, and
that the Katie John Trilogy should be preserved because
rural Alaskans rely on it. Br. of Amicus Curiae State of
Alaska in Support of Pet’r at 29-35, Sturgeon II, 587 U.S.
28 (No. 17-949), 2018 WL 4063284, at *29-35. In response,
the Supreme Court, citing Alaska’s amicus brief, included
a footnote in Sturgeon II stating that “[Title VIII’s
4a
Appendix A
subsistence-fishing] provisions are not at issue in this
case, and we therefore do not disturb the Ninth Circuit’s
holdings [in the Katie John Trilogy] that the Park Service
may regulate subsistence fishing on navigable waters.”
587 U.S. at 45 n.2.
Alaska now claims that the Katie John Trilogy was
wrongly decided and has been overruled by Sturgeon
II. More specifically, because three-judge panels of this
court are bound by circuit precedent unless it is “clearly
irreconcilable” with intervening higher authority, see
Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en
banc), Alaska argues that the Katie John Trilogy is clearly
irreconcilable with Sturgeon II.
We hold that it is not. As explained below, the
decisions can be reasonably harmonized on the ground
that the distinct context and statutory objective of Title
VIII call for an interpretation of “public lands” that
includes navigable waters, where subsistence fishing “has
traditionally taken place.” Katie John I, 72 F.3d at 702.
Additionally, immediately after Katie John I, Congress
passed appropriations acts that signaled its approval of
Katie John I’s interpretation of “public lands” for purposes
of Title VIII. Although Katie John, the Ahtna woman
who advocated for subsistence fishing rights on behalf of
Alaska Natives, has since passed away, the precedent that
bears her name lives on.
I.
To put it mildly, we do not write on a clean slate.
Therefore, we begin with the relevant legal background.
5a
Appendix A
A.
In 1980, Congress passed ANILCA, which “set
aside 104 million acres of federally owned land in Alaska
for preservation purposes.” Sturgeon II, 587 U.S. at
36 (citation omitted). In doing so, Congress created or
expanded a number of “conservation system units”—
ANILCA’s term for national parks, refuges, preserves,
and the like. Id. at 37 (citations omitted); see 16 U.S.C.
§ 3102(4).
Title I of ANILCA includes three sections: one
setting forth ANILCA’s purposes, 16 U.S.C. § 3101;
another providing its definitions, id. § 3102; and a third
concerning the boundaries of its conservation system
units and the application of regulations within them, id.
§ 3103. As previously noted, one of Act’s purposes is “to
provide the opportunity for rural residents engaged in a
subsistence way of life to continue to do so,” “consistent
with management of fish and wildlife in accordance with
recognized scientific principles and the purposes for which
each conservation system unit is established, designated,
or expanded by or pursuant to this Act.” Id. § 3101(c).
This is the purpose of Title VIII, in particular, id.
§ 3112(1), which includes its own declaration of supporting
Congressional findings, id. § 3111. Title VIII establishes
the “rural subsistence priority,” Katie John III, 720
F.3d at 1219, which provides that with respect to “the
taking on public lands of fish and wildlife,” “nonwasteful
subsistence uses” by rural Alaska residents “shall be
accorded priority over . . . other purposes” whenever “it
6a
Appendix A
is necessary to restrict the taking of populations of fish
and wildlife on such lands for subsistence uses in order
to protect the continued viability of such populations, or
to continue such uses.”1 16 U.S.C. § 3114; see id. §§ 311315. Such restrictions are to be implemented based on “(1)
customary and direct dependence upon the populations as
the mainstay of livelihood; (2) local residency; and (3) the
availability of alternative resources.” Id. § 3114.
Title VIII charges the Secretary of the Interior and
the Secretary of Agriculture (collectively, “Secretaries”)
with implementing the rural subsistence priority. Id.
§ 3115; see id. § 3102(12). However, Title VIII also provides
that if Alaska “enacts and implements laws of general
applicability which are consistent with” ANILCA’s rural
subsistence priority, then the Secretaries “shall not”
implement it. Id. § 3115(d). “In other words, ANILCA
expresses a preference for state management of the rural
subsistence priority . . . but provides that [the Secretaries]
may step in where the State fails to act.” Katie John III,
720 F.3d at 1219 (citing 16 U.S.C. § 3202(a)).
B.
In 1978, in anticipation of the enactment of ANILCA,
the Alaska Legislature enacted a statutory subsistence
1. “[S]ubsistence uses” are “the customary and traditional
uses by rural Alaska residents of wild, renewable resources
for direct personal or family consumption as food, shelter, fuel,
clothing, tools, or transportation; for the making and selling of
handicraft articles out of nonedible byproducts of fish and wildlife
resources taken for personal or family consumption; for barter,
or sharing for personal or family consumption; and for customary
trade.” 16 U.S.C. § 3113.
7a
Appendix A
priority. Id. State agencies subsequently adopted
regulations to establish a preference for rural residents,
and the Secretary of the Interior certified Alaska’s law as
consistent with ANILCA’s rural subsistence priority. Id.
But in 1985, the Alaska Supreme Court struck down the
state regulations on the ground that their rural preference
was inconsistent with the state statute. Madison v. Alaska
Dep’t of Fish & Game, 696 P.2d 168, 178 (Alaska 1985).
In response, the Alaska Legislature amended the
state statute to limit its subsistence priority to rural
residents. See McDowell v. State, 785 P.2d 1, 3 (Alaska
1989). But in 1989, the Alaska Supreme Court struck
down the amended statute on the ground that the rural
preference violated state constitutional provisions that
protect equal access to fish and game. Id. at 5-9.
Although the Alaska Supreme Court temporarily
stayed its decision to give the Alaska Legislature “an
opportunity to amend the constitution or otherwise bring
its program into compliance with ANILCA,” the Alaska
Legislature failed to do so. Katie John I, 72 F.3d at 701.
“Implementation of ANILCA’s rural subsistence priority
accordingly fell back to the federal government in July
1990.” Katie John III, 720 F.3d at 1221.
C.
In connection with the federal government assuming
management of ANILCA’s rural subsistence priority, the
Secretaries promulgated temporary regulations in 1990
and then permanent regulations in 1992 (“1992 Rules”).
8a
Appendix A
See Temporary Subsistence Management Regulations for
Public Lands in Alaska, 55 Fed. Reg. 27114 (June 29, 1990);
Subsistence Management Regulations for Public Lands in
Alaska, 57 Fed. Reg. 22940 (May 29, 1992). Among other
things, the rules addressed the geographic scope of the
rural subsistence priority by interpreting the term “public
lands” as used in Title VIII. 57 Fed. Reg. at 22942, 22951;
see also 55 Fed. Reg. at 27115, 27118.
ANILCA’s definitions section defines “public lands”
as follows:
(1) The term “land” means lands, waters, and
interests therein.
(2) The term “Federal land” means lands the
title to which is in the United States after
December 2, 1980.
(3) The term “public lands” means land situated
in Alaska which, after December 2, 1980, are
Federal lands, except—
(A) land selections of the State of Alaska
which have been tentatively approved
or validly selected under the Alaska
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;
9a
Appendix A
(B) land selections of a Native Corporation
made under the Alaska Native Claims
Settlement Act which have not been
conveyed to a Native Corporation, unless
any such selection is determined to be
invalid or is relinquished; and
(C) lands referred to in section 19(b) of the
Alaska Native Claims Settlement Act.
16 U.S.C. § 3102. Thus, “public lands” generally includes
“lands, waters, and interests therein” “situated in Alaska”
“the title to which is in the United States.” Id. § 3102(1)-(3).
The 1992 Rules interpreted “public lands” to generally
exclude navigable waters because “the United States does
not generally own title to the submerged lands beneath
navigable waters in Alaska.” 57 Fed. Reg. at 22942. For
context, Alaska generally holds title to the submerged
lands because the Alaska Statehood Act, Pub. L. No.
85-508, § 6(m), 72 Stat. 339, 343 (1958), incorporated the
Submerged Lands Act, which granted states “title to and
ownership of the lands beneath navigable waters within
[their] boundaries,” Pub. L. No. 83-31, § 3(a), 67 Stat.
29, 30 (1953) (codified at 43 U.S.C. § 1311(a)). Also, such
title generally “brings with it regulatory authority over
‘navigation, fishing, and other public uses.’” Sturgeon II,
587 U.S. at 35 (quoting United States v. Alaska, 521 U.S.
1, 5 (1997)).
The 1992 Rules led to the Katie John I litigation.
“At one extreme,” Alaska defended the rules’ position
10a
Appendix A
that “public lands” generally excludes navigable waters
because the United States “does not hold title to them.”
Katie John I, 72 F.3d at 702. “At the other extreme,” Alaska
Natives took the position that “public lands” includes all
navigable waters in Alaska because the United States
holds an “interest” in those waters—its navigational
servitude. Id. “[I]n the middle,” the United States adopted
a new position: that “public lands” includes some navigable
waters—those in which the United States holds an
“interest” pursuant to the reserved water rights doctrine.
Id. at 701-02. That doctrine generally provides that “[w]hen
the Federal Government withdraws its land from the
public domain and reserves it for a federal purpose, the
Government, by implication, reserves appurtenant water
then unappropriated to the extent needed to accomplish
the purpose of the reservation.” Sturgeon II, 587 U.S. at
43 (quoting Cappaert v. United States, 426 U.S. 128, 138
(1976)).
In Katie John I, we rejected Alaska’s interpretation.
In doing so, we explained that we had “no doubt that
Congress intended that public lands include at least some
navigable waters,” because “ANILCA’s language and
legislative history” “clearly indicate that subsistence uses
include subsistence fishing,” and “subsistence fishing has
traditionally taken place in navigable waters.” Katie John
I, 72 F.3d at 702 (citing 16 U.S.C. § 3113). Thus, Alaska’s
interpretation would “undermine congressional intent
to protect and provide the opportunity for subsistence
fishing.” Id. at 704. We also rejected the Alaska Natives’
preferred interpretation, including on the ground that
the navigational servitude is “‘a concept of power, not
11a
Appendix A
of property’” and not an “interest” to which the United
States holds “title” in the relevant sense. Id. at 702-03
(quoting United States v. Certain Parcels of Land, 666
F.2d 1236, 1238 (9th Cir. 1982)); see also City of Angoon v.
Hodel, 803 F.2d 1016, 1027 n.6 (9th Cir. 1986). We further
concluded that ANILCA did “not support” a “complete
assertion of federal control” over all navigable waters in
Alaska. Katie John I, 72 F.3d at 704.
Finally, applying Chevron, we adopted the United
States’ reserved water rights interpretation. Id. at 70304. We reasoned that the United States holds “interests
in some navigable waters” because when the United
States “reserved vast parcels of land in Alaska for
federal purposes through a myriad of statutes” (including
ANILCA), it “also implicitly reserved appurtenant waters,
including appurtenant navigable waters, to the extent
needed to accomplish the purposes of the reservations.”
Id. at 703. Given that the 1992 Rules included a different
interpretation of “public lands,” we expressed “hope” that
the Secretaries would “determine promptly” the navigable
waters in which the United States holds reserved water
rights such that the waters are “public lands subject to
federal subsistence management.” Id. at 704.
D.
In April 1996, just months after the Katie John I
decision was published, the Secretaries issued an advance
notice of proposed rulemaking to identify the navigable
waters in which the United States holds reserved water
rights. Subsistence Management Regulations for Public
12a
Appendix A
Lands in Alaska, 61 Fed. Reg. 15014, 15015, 15018
(proposed April 4, 1996). Meanwhile, Congress passed
an appropriations act (“1996 Appropriations Act”) that
included a provision preventing the Secretaries from using
appropriated funds to implement the rural subsistence
priority on navigable waters where Alaska held title to the
submerged lands. Omnibus Consolidated Rescissions and
Appropriations Act of 1996, Pub. L. No. 104-134, § 336,
110 Stat. 1321, 1321-210 (1996). Later that year, Congress
passed another appropriations act (“1997 Appropriations
Act”) with a similar provision. Omnibus Consolidated
Appropriations Act, 1997, Pub. L. No. 104-208, § 317, 110
Stat. 3009, 3009-222 (1996). Thus, in effect, Congress
temporarily delayed federal implementation of Katie John
I’s holding that “public lands” includes navigable waters
in which the United States holds reserved water rights,
even where Alaska holds title to the submerged lands.
A year later, in November 1997, Congress passed
another appropriations act (“1998 Appropriations Act”)
that did two things. Department of the Interior and
Related Agencies Appropriations Act, 1998, Pub. L. No.
105-83, 111 Stat. 1543 (1997). First, like the previous acts,
it prevented the Secretaries from using appropriated
funds prior to December 1, 1998, to implement the rural
subsistence priority on navigable waters where Alaska
held title to the submerged lands. Id. § 316(a). Second,
it made amendments to Title VIII, which would be
repealed if Alaska failed to amend state law to bring it
into compliance with the rural subsistence priority by
December 1, 1998. Id. § 316(d).
13a
Appendix A
Specifically, the 1998 Appropriations Act amended
Title VIII’s declaration of Congressional findings to read
as follows:
(b) The Congress finds and declares further that
...
(4) in accordance with title VIII of this
Act, the Secretary of the Interior is
required to manage fish and wildlife for
subsistence uses on all public lands in
Alaska because of the failure of State law
to provide a rural preference;
(5) the Ninth Circuit Court of Appeals
determined in 1995 in State of Alaska v.
Babbitt (73 F.3d 698) that the subsistence
priority required on public lands under
section 804 of this Act applies to navigable
waters in which the United States has
reserved water rights as identified by the
Secretary of the Interior;
(6) management of fish and wildlife resources
by St at e gover nments has proven
successful in all 50 States, including
Alaska, and the State of Alaska should
have the opportunity to continue to
manage such resources on all lands,
including public lands, in Alaska in
accordance with this Act, as amended;
and
14a
Appendix A
(7) it is necessary to amend portions of
this Act to restore the original intent of
Congress to protect and provide for the
continued opportunity for subsistence
uses on public lands for Alaska Native
and non-Alaska Native rural residents
through the management of the State of
Alaska.
Id. § 316(b)(3). Additionally, the act amended part of the
definition of “public lands” by adding a second sentence
to the definition of “Federal lands”: “The term ‘Federal
land’ means lands the title to which is in the United States
after December 2, 1980. ‘Federal land’ does not include
lands the title to which is in the State, an Alaska Native
corporation, or other private ownership.” Id. § 316(b)(2).
Around the same time, the Secretaries issued a notice of
proposed rulemaking consistent with the advance notice
of proposed rulemaking they had previously published.
Subsistence Management Regulations for Public Lands
in Alaska, 62 Fed. Reg. 66216 (proposed Dec. 17, 1997).
The following year, in October 1998, Congress passed
another appropriations act (“1999 Appropriations Act”)
that again delayed federal implementation of Katie John
I and gave Alaska yet another chance to bring state law
into compliance with ANICLA’s rural subsistence priority.
Omnibus Consolidated and Emergency Supplemental
Appropriations Act, Pub. L. No. 105-277, Div. A, sec.
101(e), § 339, 112 Stat. 2681, 2681-251-52, 2681-271, 2681295-96 (1998). The act appropriated a total of $11,000,000
for implementation of the rural subsistence priority
and provided that the funds would go to Alaska if the
15a
Appendix A
Alaska Legislature passed a proposal to amend the state
constitution by October 1, 1999. Id. But if the Alaska
Legislature failed to do so, the funds would go to the
Secretaries, and the restriction on their ability to use the
funds would be lifted. Id.
The Secretaries then published their final rule
(“1999 Rules”), which interpreted “public lands” to
include “all navigable and non-navigable water” within
and appurtenant to more than 30 federal land units.
Subsistence Management Reg ulations for Public
Lands in Alaska, 64 Fed. Reg. 1276, 1287 (Jan. 8, 1999).
Consistent with the 1999 Appropriations Act, the 1999
Rules provided that they would take effect on October 1,
1999, if the Alaska Legislature failed to pass the requisite
constitutional proposal by then. Id. at 1276.
The Alaska Legislature failed to pass the proposal. 2
As a result, the 1999 Rules took effect, and the Secretaries
were free to use the appropriated funds to implement
Katie John I.
E.
The Katie John I district court, “which had retained
jurisdiction over the consolidated challenges to the 1992
Rules on remand from Katie John I, concluded that the
2 . Days before t he dea d l i ne, t he A la sk a House of
Representatives passed a proposal to amend the constitution. See
H.R.J. Res. 202, 21st Leg., 2d Spec. Sess. (Alaska 1999); Alaska
H.R.J., 21st Leg., 2d Spec. Sess., at 1854-55 (1999). But it fell just
shy of the requisite two-thirds vote needed to pass the Senate. See
Alaska S.J., 21st Leg., 2d Spec. Sess., at 1881-82 (1999).
16a
Appendix A
action should not serve as the vehicle for challenges to the
1999 Rules.” Katie John III, 720 F.3d at 1222. After the
district court entered a final judgment, Alaska appealed,
and we granted initial hearing en banc. Id. at 1223. In a
decision known as Katie John II, we issued a short opinion
holding that Katie John I “should not be disturbed or
altered by the en banc court.” Katie John II, 247 F.3d
at 1033. This time, Alaska declined to file a petition for
certiorari, with Alaska’s Governor announcing that he
had decided to “stop a losing legal strategy that threatens
to make a permanent divide among Alaskans.” Alaska
Governor Won’t Fight Subsistence Fishing Ruling, L.A
Times (Aug. 28, 2001), https://perma.cc/YT9H-68BX.
But the litigation continued, with Alaska and Alaska
Natives both challenging the 1999 Rules. Katie John
III, 720 F.3d at 1223-24. Alaska argued that the rural
subsistence priority should have narrower application,
and the Alaska Natives argued that it should have
broader application. Id. In Katie John III, we rejected
both sides’ challenges, concluding that “in the 1999 Rules,
the Secretaries have applied Katie John I and the federal
reserved water rights doctrine in a principled manner.”
Id. at 1245.
F.
Several years later, the Supreme Court was presented
with a case concerning the meaning of “public lands”
as the term is used in 16 U.S.C. § 3103(c), within Title I
of ANILCA. As noted above, that section concerns the
boundaries of ANILCA’s conservation system units and
the application of regulations within them. By way of
17a
Appendix A
background, when Congress “sketch[ed]” the “boundary
lines” of ANILCA’s conservation system units, it “made
an uncommon choice—to follow ‘topographic or natural
features,’ rather than enclose only federally owned lands.”
Sturgeon II, 587 U.S. at 37 (quoting 16 U.S.C. § 3103(b)).
This is in part because Congress’s “prior cessions of
property to the State and Alaska Natives had created
a ‘confusing patchwork of ownership’” that was “all
but impossible to draw one’s way around.” Id. (citation
omitted). As a result, “more than 18 million acres of state,
Native, and private land”—known as “inholdings”—
“wound up inside” the conservation system units. Id. at
38 (citation omitted). To limit the geographic scope of
regulations “applicable solely to public lands within such
units,” 16 U.S.C. § 3103(c) provides that “[o]nly those lands
within the boundaries” of a unit “which are public lands
(as such term is defined in this Act) shall be deemed to be
included as a portion of such unit” and that State, Native,
or private lands shall not be subject to such regulations.
John Sturgeon was a hunter who wished to use his
hovercraft on a portion of the Nation River within a
conservation system unit to reach remote areas to hunt
moose. Sturgeon II, 587 U.S. at 31-32. But a National Park
Service (“NPS”) regulation banned hovercrafts on waters
“located within the boundaries of the National Park
System, including navigable waters . . . without regard
to the ownership of submerged lands. . . .’” 36 C.F.R.
§ 1.2(a). Relying on 16 U.S.C. § 3103(c), Sturgeon argued
that NPS could not apply its regulatory hovercraft ban
on the Nation River on the ground that the Nation River
does not fall within the meaning of “public lands” as the
term is used in that section.
18a
Appendix A
The Supreme Court agreed with Sturgeon and
rejected the United States’ argument that, under the
reserved water rights doctrine, it holds “title to” an
“interest” in the relevant stretch of the Nation River.
Sturgeon II, 587 U.S. at 42-45. First, the Court observed
that reserved water rights “are ‘usufructuary’ in nature,
meaning that they are rights for the [United States] to
use—whether by withdrawing or maintaining—certain
waters it does not own.” Id. at 43 (citation omitted).
Although the United States “ha[d] found a couple of old
cases suggesting that a person can hold ‘title’ to such
usufructuary interests,” the Court explained that “the
more common understanding . . . is that ‘reserved water
rights are not the type of property interests to which
title can be held’; rather, ‘the term “title” applies’ to ‘fee
ownership of property’ and (sometimes) to ‘possessory
interests’ in property like those granted by a lease.” Id.
at 43-44 (citations omitted). The Court “[saw] no evidence
that the Congress enacting ANILCA meant to use the
term in any less customary and more capacious sense.”
Id. at 44.
Second, “even assuming” it was possible for the United
States to hold “title to” a reserved water right, the Court
declined to adopt the United States’ reserved water rights
interpretation. Id. As the Court explained, the term
“public lands” only includes the United States’ “specific
‘interest’” in the relevant body of water. Id. (citations
omitted). And a reserved water right “by its nature”
“merely enables the Government to take or maintain the
specific ‘amount of water’—and ‘no more’—required to
‘fulfill the purpose of [its land] reservation.’” Id. (quoting
19a
Appendix A
Cappaert, 426 U.S. at 141). Because the regulatory
hovercraft ban was not intended to prevent “depletion
or diversion” of the water or to otherwise “safeguard[]
the water,” it exceeded the United States’ interest and
therefore the river did not constitute “public lands” for
purposes of 16 U.S.C. § 3103(c). Id. at 45.
Although Alaska had previously fought the Katie John
Trilogy’s reserved water rights interpretation of “public
lands” for purposes of Title VIII, Alaska adopted a new
position in Sturgeon II. In an amicus brief in support of
Sturgeon, Alaska argued that while the Supreme Court
should adopt Sturgeon’s interpretation of “public lands”
for purposes of 16 U.S.C. § 3103(c), the Court “need not
and should not disturb the Katie John circuit precedents”
interpreting “public lands” for purposes of Title VIII. Br.
of Amicus Curiae State of Alaska at 29, 2018 WL 4063284,
at *29 (citation modified). Alaska contended that “public
lands” has a different meaning in Title VIII, id. at 34; that
the Katie John Trilogy’s interpretation of “public lands” is
“proper[]” in that context, id.; and that the Court “should
preserve the Katie John precedents” for “prudential and
policy reasons,” including because “in the nearly twenty
years since the federal government assumed management
of subsistence activities on federal lands in Alaska, rural
Alaskans have depended on this subsistence priority to
effectuate [the important values embodied by subsistence]
and [to] preserve their way of life,” id. at 31-32.
Citing Alaska’s amicus brief, the Supreme Court
included the following footnote 2 in its opinion:
20a
Appendix A
As noted earlier, the Ninth Circuit has held in
three cases—the so-called Katie John trilogy—
that the term “public lands,” when used in
ANILCA’s subsistence-fishing provisions,
encompasses navigable waters like the Nation
River. See Alaska v. Babbitt, 72 F.3d 698 (1995);
John v. United States, 247 F.3d 1032 (2001) (en
banc); John v. United States, 720 F.3d 1214
(2013); supra, at 1078. Those provisions are
not at issue in this case, and we therefore do
not disturb the Ninth Circuit’s holdings that
the Park Service may regulate subsistence
fishing on navigable waters. See generally Brief
for State of Alaska as Amicus Curiae 29-35
(arguing that this case does not implicate those
decisions); Brief for Ahtna, Inc., as Amicus
Curiae 30-36 (same).
Sturgeon II, 587 U.S. at 45 n.2.
II.
That brings us to the present case. Before flowing
into the Bering Sea, the Kuskokwim River (“River”)
runs for approximately 180 miles through the Yukon
Delta National Wildlife Refuge (“Refuge”). Within the
Refuge, the River is navigable, and Alaska holds title to
the submerged lands.
Pursuant to the 1999 Rules upheld in Katie John
III, the Secretaries have implemented ANILCA’s rural
subsistence priority on the stretch of the River within the
Refuge. See Katie John III, 720 F.3d at 1232-33 & n.107;
21a
Appendix A
see 36 C.F.R. § 242.3(b); 43 C.F.R. § 51.3(b). But in the
wake of Sturgeon II, Alaska’s Department of Fish & Game
(“ADF&G”)— apparently deciding that it was no longer
bound by the Katie John Trilogy—asserted authority over
the entire River, notwithstanding efforts by the Refuge
Manager to implement the rural subsistence priority. 3
The River is home to five types of salmon—Chinook,
chum, sockeye, coho, and pink—all of which follow the
same life cycle. The salmon hatch from fertilized eggs in
freshwater, then migrate to the ocean to feed for several
years, and later return to the freshwater to spawn. Upon
their return, the females deposit eggs, the males fertilize
them, and the cycle begins anew.
As the Refuge Manager has explained, the residents
of the local villages within the Refuge along the River
and its tributaries “are almost entirely federally qualified
subsistence users, both native and nonnative, who are
highly dependent on salmon as a source of food.” Also,
for these communities, subsistence fishing is more than
a source of food; it is deeply engrained in their culture
and identity.
In recent years, the populations of Chinook and
chum have declined, causing concern among the federal
and state authorities, as well as the Kuskokwim River
Inter-Tribal Fish Commission. In response, the Refuge
Manager issued emergency special actions for the
3. The Refuge Manager exercises authority delegated by the
Federal Subsistence Board (“FSB”), which administers the rural
subsistence priority. 36 C.F.R. § 242.10; 43 C.F.R. § 51.10.
22a
Appendix A
2021 and 2022 fishing seasons to ensure that Chinook
escapement targets4 would be met, while also “allowing
at least some opportunity for federally qualified local
residents to address their subsistence needs.”
In 2021, the Refuge Manager closed parts of the
River to gillnet fishing starting on June 1 but provided
exceptions for federally qualified rural subsistence users
to use gillnets on specified days. ADF&G issued conflicting
orders, including orders that purported to authorize
gillnet fishing by all subsistence users (i.e., including
non-rural subsistence users) on a different set of days.
(Recall that Alaska’s subsistence law, unlike ANILCA,
does not provide preference for rural subsistence users.
See generally State v. Kenaitze Indian Tribe, 894 P.2d
632 (Alaska 1995); McDowell, 785 P.2d at 1, 5-9.)
In 2022, the Refuge Manager once more closed parts of
the River to gillnet fishing starting on June 1 but provided
exceptions for federally qualified rural subsistence users
to use gillnets on specified days. Again, ADF&G issued
conflicting orders that purported to authorize fishing by
all subsistence users.
III.
On May 17, 2022, the United States sued the State
of Alaska, ADF&G, and the Commissioner of ADF&G
4. Per the Refuge Manager, “escapement” refers to “the
number of fish that are allowed to reach the spawning grounds
with the goal of ensuring the continuation of healthy populations
into the future.”
23a
Appendix A
(collectively, “Alaska”), seeking declaratory and injunctive
relief to preclude Alaska from taking actions that
interfere with federal efforts to implement ANILCA’s
rural subsistence priority. The district court granted
motions to intervene in support of the United States by
the Kuskokwim River Inter-Tribal Fish Commission;
the Association of Village Council Presidents; Betty
Magnuson and Ivan Ivan; Ahtna Tene Nené and Ahtna,
Inc.; and the Alaska Federation of Natives.
After initially granting a preliminary injunction in the
summer of 2022, United States v. Alaska, 608 F. Supp. 3d
802 (D. Alaska 2022), the district court granted summary
judgment to the United States and the Intervenors
(collectively, “Plaintiffs”) and entered a permanent
injunction in the spring of 2024, United States v. Alaska,
No. 1:22-cv-00054-SLG, 2024 WL 1348632 (D. Alaska
Mar. 24, 2024). As is relevant here, the district court
concluded that the Katie John Trilogy was not clearly
irreconcilable with Sturgeon II and therefore remained
binding law. Alaska, 2024 WL 1348632, at *8.
Alaska timely appealed. 5
IV.
“[W]here the reasoning or theory of our prior circuit
authority is clearly irreconcilable with the reasoning or
5. In the proceedings below, Alaska also challenged the
constitutionality of the FSB under the Appointments Clause.
The district court rejected those arguments. Alaska, 2024 WL
1348632, at *8-12. Alaska initially raised them again on appeal,
but it has since withdrawn them.
24a
Appendix A
theory of intervening higher authority, a three-judge panel
should consider itself bound by the later and controlling
authority, and should reject the prior circuit opinion as
having been effectively overruled.” Miller, 335 F.3d at
893. However, “we are bound by our prior precedent if
it can be reasonably harmonized with the intervening
authority.” Lair v. Bullock, 697 F.3d 1200, 1206 (9th Cir.
2012) (citation omitted). Clear irreconcilability is a “high
standard.” Id. at 1207 (citation omitted). “It is not enough
for there to be ‘some tension’ between the intervening
higher authority and prior circuit precedent, or for the
intervening higher authority to ‘cast doubt’ on the prior
circuit precedent.” Id. (citations omitted).
We review the district court’s order de novo. Zellmer v.
Meta Platforms, Inc., 104 F.4th 1117, 1121 (9th Cir. 2024).
V.
Alaska’s primary argument is that the Katie John
Trilogy is clearly irreconcilable with Sturgeon II.
Assuming that Sturgeon II’s footnote 2 does not resolve
this argument6 and that this argument is not barred by
6. Plaintiffs read Sturgeon II’s footnote broadly, arguing
that because the Supreme Court apparently adopted the “do
not disturb” language from the cited amicus briefs (including
Alaska’s), the Supreme Court agreed with the amici’s argument
that “public lands” has a different meaning in Title VIII than
it does in 16 U.S.C. § 3103(c). See Br. of Amicus Curiae State
of Alaska at 29, 2018 WL 4063284, at *29 (arguing that “[The
Supreme] Court Need Not and Should Not Disturb the Katie
John Circuit Precedents”); Amicus Curiae Br. for Ahtna, Inc.
25a
Appendix A
judicial estoppel or issue preclusion, we conclude that the
cases are not clearly irreconcilable.
A.
1.
To begin, the definition of “public lands” applies to
both 16 U.S.C. § 3103(c) and to Title VIII. See 16 U.S.C.
§ 3102. Thus, the Katie John Trilogy and Sturgeon II may
only be reconciled on the basis that the term as defined
may be given different meanings in the two different
parts of ANILCA. And, as Alaska stresses, according to
the presumption of consistent usage, a word “is presumed
to bear the same meaning throughout a text.” MezaCarmona v. Garland, 113 F.4th 1163, 1167 (9th Cir. 2024)
(citations omitted).
However, this presumption “‘readily yields’ to
context, and a statutory term—even one defined in the
statute—‘may take on distinct characters from association
with distinct statutory objects calling for different
in Support of Neither Party at 30, Sturgeon II, 587 U.S. 28 (No.
17-949), 2018 WL 3952032, at *30 (arguing that “The Katie John
Doctrine Effectuates the ANILCA Balance and Should Not Be
Disturbed”). At a minimum, Plaintiffs contend, the footnote
means that the Katie John Trilogy and Sturgeon II are not clearly
irreconcilable. Alaska reads footnote 2 narrowly—as the Supreme
Court merely clarifying that it was not expressing any view on
whether the Katie John Trilogy’s interpretation of “public lands”
is correct for purposes of Title VIII. We assume without deciding
that Alaska reads the footnote correctly.
26a
Appendix A
implementation strategies.’” Util. Air Regul. Grp. v.
EPA, 573 U.S. 302, 320 (2014) (quoting Env’t Def. v. Duke
Energy Corp., 549 U.S. 561, 574 (2007)). For example,
the Supreme Court has given a defined term different
meanings in different sections of a statute when “the term
standing alone is necessarily ambiguous and each section
must be analyzed to determine whether the context gives
the term a further meaning that would resolve the issue.”
Robinson v. Shell Oil Co., 519 U.S. 337, 343-44 (1997). The
Court has also “declined to apply a statutory definition
that ostensibly governed where doing so would have been
‘incompatible with . . . Congress’ regulatory scheme,’
or would have ‘destroy[ed] one of the [statute’s] major
purposes.’” Digital Realty Tr., Inc. v. Somers, 583 U.S.
149, 163-64 (2018) (first quoting Util. Air Regul. Grp., 573
U.S. at 322; and then quoting Lawson v. Suwannee Fruit
& S.S. Co., 336 U.S. 198, 201 (1949)). Here, Plaintiffs argue
that the presumption against consistent usage is rebutted
because the distinct context and objective of Title VIII
call for an interpretation of “public lands” that is broader
than Sturgeon II’s interpretation of the term in 16 U.S.C.
§ 3103(c).
Again, “public lands” is generally defined as “lands,
waters, and interests therein” “situated in Alaska” “the
title to which is in the United States.” 16 U.S.C. § 3102(1)(3). As Sturgeon II recognized, the words “title to” at
times have been used broadly to apply to “usufructuary
interests,” which are rights to use property that one does
not own, such as reserved water rights. 587 U.S. at 43-44
(citing Fed. Power Comm’n v. Niagara Mohawk Power
Corp., 347 U.S. 239, 246 (1954); Crum v. Mt. Shasta Power
27a
Appendix A
Corp., 30 P.2d 30, 36 (Cal. 1934); Radcliff’s Ex’rs v. Mayor
of Brooklyn, 4 N.Y. 195, 196 (1850)). But “title to” is more
commonly understood to apply only to fee interests and
“possessory interests.” Id. at 44 (citations omitted). Seeing
“no evidence that the Congress enacting ANILCA meant
to use” these words in the less common, broader sense,
id. at 44, Sturgeon II did not find 16 U.S.C. § 3103(c) to
be ambiguous, id. at 46 n.3.
But that is not the end of the matter. “[O]ftentimes
the ‘meaning—or ambiguity—of certain words or phrases
may only become evident when placed in context.’” King v.
Burwell, 576 U.S. 473, 486 (2015) (quoting FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 132 (2000));
accord Robinson, 519 U.S. at 341. Accordingly, “when
deciding whether the language is plain,” we “must read the
words ‘in their context and with a view to their place in the
overall statutory scheme.’” King, 576 U.S. at 486 (quoting
Brown & Williamson, 529 U.S. at 133). Under Sturgeon
II’s interpretation of “title to,” the term “public lands”
generally excludes navigable waters. That is because no
one can own “running waters,” Sturgeon II, 587 U.S. at
42 (citing Niagara Mohawk Power, 347 U.S. at 247, n.10),
or “acquire anything more than a mere usufructuary
right” in them, Niagara Mohawk Power, 347 U.S. at 247,
n.10 (citation omitted). In Sturgeon II, that did not pose
a problem, because the context of 16 U.S.C. § 3103(c)—
which concerns the scope of “regulations applicable solely
to public lands within [conservation system units]”—did
not indicate that the term “public lands” as used in that
section includes navigable waters. But Sturgeon II did not
consider Title VIII. Id. at 45 n.2.
28a
Appendix A
2.
Title VIII contains a number of contextual clues
that “public lands”—and, therefore, “title to”—carries a
broader meaning in Title VIII, and they are sufficient to
rebut the presumption of consistent usage.
The Title begins with a declaration of Congressional
findings, including that “the continuation of the opportunity
for subsistence uses by rural residents of Alaska, including
both Natives and non-Natives, on the public lands . . .
is essential,” 16 U.S.C. § 3111(1), and “threatened,”
including by the “taking of fish and wildlife in a manner
inconsistent with recognized principles of fish and wildlife
management,” id. § 3111(3). Congress also found that, “in
most cases, no practical alternative means are available
to replace the food supplies and other items gathered
from fish and wildlife which supply rural residents
dependent on subsistence uses,” id. § 3111(2). “[I]nvok[ing]
its constitutional authority over Native affairs and its
constitutional authority under the property clause and
the commerce clause,” id. § 3111(4), Title VIII then
establishes the rural subsistence priority, id. §§ 3113-15,
the purpose of which “is to provide the opportunity for
rural residents engaged in a subsistence way of life to do
so,” “in accordance with . . . the purposes for each unit
established, designated, or expanded by or pursuant to
titles II through VII of this Act,” id. § 3112(1); accord id.
§ 3101(c) (emphasis added).
In turn, these cross-referenced titles provide that
many of ANILCA’s conservation system units shall
29a
Appendix A
offer the opportunity for rural residents to continue to
engage in subsistence uses. In particular, Title III, which
established and added to 16 national wildlife refuges,
provides that each “is established and shall be managed”
“to conserve fish and wildlife populations” and “to provide
. . . the opportunity for continued subsistence uses by
local residents.” 7 Additionally, Title II, which established
and added to 13 national parks, provides that most of
them either “shall be managed” “to protect the viability
of subsistence resources”8 or that “[s]ubsistence uses by
local residents shall be permitted” within them “where
such uses are traditional in accordance with the provisions
of title VIII.” 9
7. ANILCA, §§ 302(1)(B)(i) & (iii) (Alaska Peninsula National
Wildlife Refuge), (2)(B) (i) & (iii) (Becharof National Wildlife
Refuge), (3)(B)(i) & (iii) (Innoko National Wildlife Refuge), (4)
(B)(i) & (iii) (Kanuti National Wildlife Refuge), (5)(B)(i) & (iii)
(Koyukuk National Wildlife Refuge), (6)(B)(i) & (iii) (Nowitna
National Wildlife Refuge), (7)(B)(i) & (iii) (Selawik National
Wildlife Refuge), (8)(B)(i) & (iii) (Tetlin National Wildlife Refuge),
(9)(B)(i) & (iii) (Yukon Flats National Wildlife Refuge), 303(1)(B)
(i) & (iii) (Alaska Maritime National Wildlife Refuge), (2)(B)(i),
(iii) (Arctic National Wildlife Refuge), (3)(B)(i) & (iii) (Izembek
National Wildlife Range), (4)(B)(i) & (iii) (Kenai National Wildlife
Refuge), (5)(B)(i) & (iii) (Kodiak National Wildlife Refuge), (6)(B)
(i) & (iii) (Togiak National Wildlife Refuge), (7)(B)(i) & (iii) (Yukon
Delta National Wildlife Refuge).
8. A NILCA , § 201(2) (Bering Land Bridge National
Preserve), (3) (Cape Krusenstern National Monument), (6) (Kobuk
Valley National Park).
9. ANILCA, § 201(1) (Aniakchak National Monument), (3)
(Cape Krusenstern National Monument), (4)(a) (Gates of the Arctic
National Park), (6) (Kobuk Valley National Park), (7)(b) (Lake
30a
Appendix A
Collectively, the foregoing provisions make clear
that Congress intended the rural subsistence priority
to apply to the waters and to the fish populations that
rural subsistence users have traditionally fished and
depended upon within conservation system units. In
particular, the sections setting forth Title VIII’s purpose
and findings explain that the rural subsistence priority
was established “to assure the continued viability of . . .
fish population[s]” and “the continuation of subsistence
uses of such population[s],” id. § 3112(2) (emphases
added); accord id. §§ 3111(1), (3), (4), (5), and that it shall
be managed with the input from rural subsistence users
who have “personal knowledge of local conditions and
requirements,” id. § 3111(5); accord § 3115. And the section
that establishes the rural subsistence priority states that
it shall be applied to “populations of fish” based on rural
subsistence users’ “customary and direct dependence
upon the [fish] populations as the mainstay of livelihood.”
Id. § 3114.
As Katie John I recognized, “subsistence fishing
has traditionally taken place in navigable waters.” 72
F.3d at 702; see also, e.g., Native Village of Quinnagak
v. United States, 35 F.3d 388, 393 (9th Cir. 1994) (“Most
subsistence fishing (and most of the best fishing) is in the
large navigable waterways rather than in the smaller
non-navigable tributaries upstream and lakes where
[fishermen] have access to less fish.”). Accordingly, it
follows that Title VIII’s provisions indicate that “public
lands” includes navigable waters within conservation
system units, as Katie John I held.
Clark National Park), (9) (Wrangell-Saint Elias National Park),
ANILCA, § 202(3) (Mount McKinley National Park).
31a
Appendix A
The facts of this case help illustrate why that is so.
The rural subsistence communities here—like many
others throughout Alaska—have long lived and fished
on a navigable river. That is unsurprising because these
communities depend on salmon.10 And, as explained above,
salmon run in navigable rivers in order to get from the
ocean to their spawning grounds.11 See Katie John II, 247
F.3d at 1036 (Tallman, J., concurring) (“Fishing Alaska’s
navigable, salmonid-bearing waters has sustained
Alaska’s native populations since time immemorial.”
(citations omitted)); Metlakatla Indian Cmty. v. Egan,
369 U.S. 45, 46 (1962) (“Long before the white man came
to Alaska, the annual migrations of salmon from the sea
into Alaska’s rivers to spawn served as a food supply
for the natives.” (emphasis added)). Further, when fish
populations are threatened, these communities draw on
10. See Kuskokwim River Inter-Tribal Fish Comm’n,
Kuskokw im River: Salm o n Situ atio n Repo r t 3 (2 0 21),
https://perma.cc/8SD3-23KC (by weight, fish comprises up to 85%
and salmon up to 53% of subsistence harvests by village residents
in the Kuskokwim region); see also Alaska Dep’t of Fish and Game:
Div. of Subsistence, Food Production and Nutritional Values of
Noncommercial Fish and Wildlife Harvests in Alaska 3-4 (2019),
https://perma.cc/G7GL-GF3F (by weight, fish comprises 56.8
percent and salmon 32.3% of wild food harvests by communities
outside nonsubsistence areas).
11. It is also unsurprising that these communities live on a
navigable river because they are unconnected to the road system,
and the River therefore serves as their road. See Sturgeon II, 587
U.S. at 57 (“[R]ivers function as the roads of Alaska, to an extent
unknown anyplace else in the country. Over three-quarters of
Alaska’s 300 communities live in regions unconnected to the State’s
road system.” (citation omitted)).
32a
Appendix A
their longstanding knowledge of local conditions to advise
the federal authorities on implementation of the rural
subsistence priority, including through the Kuskokwim
River Inter-Tribal Fish Commission, an inter-tribal
consortium that represents the interests of 33 federally
recognized tribes in the Kuskokwim drainage area.
Alaska does not dispute that subsistence fishing has
traditionally occurred on navigable waters. Instead, it
insists that its interpretation of “public lands” would
still include some non-navigable bodies of water to which
the United States holds “title.” But it has not shown
that subsistence fishing traditionally occurred in those
waters.12 Therefore, it has failed to persuasively explain
how its interpretation—which excludes the waters and fish
populations that rural subsistence users have traditionally
fished and depended upon—can be harmonized with
Title VIII’s provisions that establish a rural subsistence
priority to protect subsistence fishing as traditionally
practiced.
Accordingly, in light of Title VIII’s subsistence fishing
provisions, which Sturgeon II did not consider, Alaska
has not shown that the presumption of consistent usage
does not “yield to” the distinct context and objective of
Title VIII, Util. Air Regul. Grp., 573 U.S. at 320 (citation
12. At most, Alaska’s citations merely indicate that the FSB
currently manages subsistence fishing on “lakes and ponds”
affiliated with the Kasilof River and the Kenai River. See Dep’t of
Interior: Off. of Subsistence Mgmt., Management Regulations for
the Harvest of Fish and Shellfish on Federal Public Lands and
Waters in Alaska 60, 67 (2021), https://perma.cc/BK3Z-KFDU.
33a
Appendix A
modified), such that “public lands” may have a broader
meaning within that title that includes navigable waters.
B.
Alaska additionally argues that the Katie John
Trilogy’s reserved water rights interpretation is clearly
irreconcilable with the second part of Sturgeon II’s
reasoning that “even assuming” the United States may
hold “title to” a reserved water right, the term “public
lands” only includes the United States’ interest in the
body of water, which is limited to preserving the volume
or quality of water needed to fulfill the purposes of a
land reservation. See Sturgeon II, 587 U.S. at 44. In
Alaska’s view, just as the river in Sturgeon II did not
constitute “public lands” in 16 U.S.C. § 3103(c) because
the regulation banning hovercrafts was “not related to”
the United States’ interest in “safeguarding the water,”
id. at 45 (citation omitted), so too the navigable waters
within and appurtenant to conservation system units do
not constitute “public lands” in Title VIII because the
rural subsistence priority is not related to the United
States’ interest in safeguarding the water.13 Plaintiffs
counter that the Katie John Trilogy’s reserved water
rights interpretation is nevertheless reconcilable with
Sturgeon II because Congress ratified that interpretation
through the 1998 and 1999 Appropriations Acts. See Katie
John I, 72 F.3d at 703-04.
13. To be clear, Alaska does not dispute that Congress has
the power to regulate fishing on navigable waters where Alaska
holds title to the submerged lands. Alaksa argues only as a matter
of statutory interpretation that Congress did not do so in Title
VIII of ANILCA.
34a
Appendix A
According to the ratification canon, “Congress is
presumed to be aware of an administrative or judicial
interpretation of a statute and to adopt that interpretation
when it re-enacts a statute without change.” Fla. Dep’t
of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33,
47 (2008) (quoting Lorillard v. Pons, 434 U.S. 575, 58081 (1978)). Thus, we begin with the observation that
Congress was aware of Katie John I’s reserved water
rights interpretation when it passed the 1998 and 1999
Appropriations Acts.14 Indeed, when amending Title
VIII’s declaration of Congressional findings in the 1998
Appropriations Acts, Congress expressly recognized that:
[T]he Ninth Circuit Court of Appeals determined
in 1995 in State of Alaska v. Babbitt (73 F.3d
14. Alaska claims that the 1998 and 1999 Appropriations Acts
cannot shed any light on the meaning of “public lands” because
Katie John I’s interpretation was not sufficiently “settled” at
the time. As Alaska notes, the ratification canon does not apply
when the “supposed judicial consensus” was not “so broad and
unquestioned” that courts “must presume Congress knew of
and endorsed it.” Jama v. Immigr. & Customs Enf’t, 543 U.S.
335, 349 (2005). But here Congress was aware of Katie John I’s
interpretation, and there is no evidence that Congress deemed
the interpretation “unsettled.” The 1998 and 1999 Appropriations
Acts were passed after the Ninth Circuit—the only circuit likely
to interpret the provision, given its geographic scope limited to
Alaska—had issued a precedential opinion and after the Supreme
Court had denied certiorari. See Alaska, 517 U.S. 1187; Alaska
Fed’n of Natives, 517 U.S. 1187. In short, this is not an instance
where Congress may have declined to act while waiting to see if a
judicial interpretation would be overturned upon further judicial
review.
35a
Appendix A
698) that the subsistence priority required
on public lands under section 804 of this Act
applies to navigable waters in which the United
States has reserved water rights as identified
by the Secretary of the Interior . . . .
1998 Appropriations Act, § 316(b)(3). Additionally, the
temporary restrictions on the use of appropriated funds
in the 1996, 1997, 1998, and 1999 Appropriations Acts were
undoubtedly responses to Katie John I, as those provisions
temporarily prevented the Secretaries from implementing
Katie John I’s holding. See 1996 Appropriations Act, § 336;
1997 Appropriations Act, § 317; 1998 Appropriations Act,
§ 316(a); 1999 Appropriations Act, § 339; see also H.R.
Rep. No. 104-537, at 428 (1996) (Conf. Rep.).
The 1998 and 1999 Appropriations Acts also provide
“convincing support for the conclusion that Congress
accepted and ratified” Katie John I’s reserved water
rights interpretation. Tex. Dep’t of Hous. & Cmty. Affairs
v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 536 (2015).
In the 1998 Appropriations Act, Congress recognized
Katie John I’s interpretation while amending Title
VIII’s subsistence fishing provisions and the definition
of “public lands,” but it left Katie John I’s interpretation
in place. 1998 Appropriation Act, § 316(b). Subsequently,
in the 1999 Appropriations Act, Congress appropriated
$11 million to implement the rural subsistence priority
and set a deadline by which the temporary restriction
on using appropriated funds to carry out Katie John I’s
holding would be lifted. 1999 Appropriations Act, Div.
36a
Appendix A
A, sec. 101(e), § 339, 112 Stat. at 2681-251-52, 2681-271,
2681-295-96.15
Alaska contends that the 1998 and 1999 Appropriations
Acts were intended to give Alaska time to amend state
law, not to endorse Katie John I. But that poses a false
dichotomy. Congress certainly hoped that Alaska would
conform state law to ANILCA’s rural subsistence priority
in a timely manner. To this end, in the 1998 Appropriations
Act, Congress extended the temporary restriction on
the Secretaries’ implementation of Katie John I through
December 1, 1998, determining that Alaska “should have
the opportunity” to resume management of the rural
subsistence priority. See 1998 Appropriations Act § 316(a),
(b). And in the 1999 Appropriations Act, Congress again
extended the temporary restriction on the Secretaries’
implementation of Katie John I to October 1, 1999. See
15. In light of the 1998 Appropriations Act’s statutory
amendments regarding the meaning of “public lands” and the
1999 Appropriations Act’s provision lifting the restriction on the
use of appropriated funds to implement Katie John I’s holding
regarding the scope of “public lands,” we are not persuaded by
Alaska’s reliance on cases where Congress passed legislation
that did not include any provisions relevant to the interpretive
issue, e.g., AMG Cap. Mgmt., LLC v. FTC, 593 U.S. 67, 81-82
(2021); Alexander v. Sandoval, 532 U.S. 275, 291-92 (2001). See
Tex. Dep’t of Hous. & Cmty. Affairs, 576 U.S. at 521 (holding
that amendments “that would have been superfluous” absent the
prior judicial interpretation “signal[ed] that Congress ratified”
the interpretation); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230,
244, n.11 (2009) (“When Congress amended [the Act] without
altering the text of [the relevant provision], it implicitly adopted
[the judicial] construction of the statute”).
37a
Appendix A
1999 Appropriations Act, § 339. Congress also provided
that if Alaska took the necessary action to amend its law by
that deadline, it would not only get to manage ANILCA’s
rural subsistence priority but also receive $11,000,000 to
do so. See id. at Div. A, sec. 101(e), 112 Stat. at 2681-25152, 2681-271. But if Alaska failed to take the necessary
action, the funds would go to the Secretaries, and they
could implement Katie John I. See Div. A, sec. 101(e),
§ 339, 112 Stat. at 2681-251-52, 2681-271, 2681-295-96. In
sum, after four years of delaying implementation of Katie
John I, Congress decided that enough was enough and
that in either scenario—whether it be state management
or federal management—the rural subsistence priority
would be implemented as interpreted by Katie John I come
October 1, 1999, including on navigable waters in which
the United States holds reserved water rights.
Alaska also contends that the legislative history
does not support this conclusion. But the legislative
history indicates that the 1998 Appropriations Act
was a compromise between Alaska, which opposed
federal implementation of ANILCA’s rural subsistence
priority with respect to fishing, and President Clinton’s
Administration, which opposed any further delay in
federal implementation. See 143 Cong. Rec. 23453
(1997) (statement of Sen. Slade Gorton); 143 Cong. Rec.
23459 (1997) (statement of Sen. Frank Murkowski).
That compromise—which was extended in the 1999
Appropriations Act—gave Alaska additional time to
amend its law, but it also decidedly left Katie John I’s
interpretation regarding the scope of the rural subsistence
priority in place. Further, the legislative history of the
38a
Appendix A
1998 Appropriations Act specifically provides that its
amendments of Title VIII did not “overturn[]” and shall
not be “construed to overturn the decision of the Ninth
Court of Appeals in State of Alaska v. Babbitt (73 F.3d
698) (commonly known as the Katie John case).” H.R. Rep.
No. 105-337, at 94-95 (1997) (Conf. Rep.).16
In sum, because we find Plaintiffs’ ratification
argument persuasive, we conclude that the Katie John
Trilogy is not clearly irreconcilable with the second part
of Sturgeon II’s reasoning regarding the scope of any
reserved water rights interpretation of “public lands” as
used elsewhere in ANILCA. See Sturgeon II, 587 U.S. at
44-45.17
16. Alaska asserts that “the mere appropriation of funds
cannot change substantive law,” citing cases that concern
whether appropriations acts may overcome the presumption
against implied repeals. See Tenn. Valley Auth. v. Hill, 437
U.S. 153, 189-91 (1978); Firebaugh Canal Co. v. United States,
203 F.3d 568, 574-75 (9th Cir. 2000). But this case does not
concern the presumption against implied repeals. Rather than
impliedly repealing any provision of ANILCA, the 1998 and 1999
Appropriations Acts signal Congressional approval of a judicial
interpretation of ANILCA. Moreover, the 1998 Appropriations
Act made substantive amendments to ANILCA, and we held
that the same appropriations acts supported a Congressional
ratification argument in Alaska Department of Fish & Game v.
Federal Subsistence Board, 139 F.4th 773, 786-87 (9th Cir. 2025).
17. Alaska also contends that Loper Bright Enterprises v.
Raimondo, 603 U.S. 369 (2024), supports the conclusion that the
Katie John Trilogy “is no longer good law.” In its reply brief,
Alaska clarifies that it does not argue that Katie John I is clearly
irreconcilable with Loper Bright; instead, it argues that the Katie
39a
Appendix A
VI.
Finally, Alaska claims that the Katie John Trilogy
is clearly irreconcilable with Sackett v. Environmental
Protection Agency, 598 U.S. 651, 679 (2023), which applied
the canon of statutory interpretation that Congress
must “enact exceedingly clear language if it wishes to
significantly alter the balance between federal and state
power.” Id. at 679 (citations omitted). But this canon predates Katie John I, and Alaska already unsuccessfully
raised an argument based on it in Katie John II. See Katie
John II, 247 F.3d at 1042-44 (Tallman, J., concurring); id.
at 1044-50 (Kozinski, J., dissenting). Thus, Sackett does
not constitute “intervening” authority sufficient for us to
revisit the Katie John Trilogy. See Silva v. Garland, 993
F.3d 705, 717 (9th Cir. 2021) (“a three-judge panel must
apply binding precedent even when” that precedent was
“clearly wrong” in its application of the law at the time
it was decided (citation omitted)), abrogated on other
grounds by Loper Bright, 603 U.S. 369, as recognized in
Lopez v. Garland, 116 F.4th 1032, 1039 (9th Cir. 2024);
accord Sierra Forest Legacy v. Sherman, 646 F.3d 1161,
1189 (9th Cir. 2011) (per curiam) (“[Miller’s] rule makes
sense because we cannot continually re-litigate issues
that our court has already decided simply because a
party puts forth a new argument about why we should
rule differently.”).
John Trilogy cannot be reconciled with Sturgeon II on the basis
that Katie John I deferred to an agency interpretation under
Chevron, while Sturgeon II did not. We do not reconcile the cases
on this basis.
40a
Appendix A
VII.
We acknowledge that there is some tension between
the Katie John Trilogy and Sturgeon II.18 But for purposes
of Miller, “[n]othing short of ‘clear irreconcilability’ will
do.” Close v. Sotheby’s, Inc., 894 F.3d 1061, 1074 (9th Cir.
2018). Because Alaska has not met this high standard, our
precedent remains binding, and we affirm the judgment
below.
AFFIRMED.
18. We also appreciate that judges of this court have expressed
reservations about Katie John’s interpretation of “public lands,”
including by referring to it as “shov[ing] a square peg into a hole
we acknowledge is round.” Sturgeon v Frost, 872 F.3d 927, 938 (9th
Cir. 2017) (Nguyen, J., concurring); see also Katie John I, 72 F.3d
at 704; id. at 706 (Hall, J., dissenting); Katie John II, 247 F.3d at
1034, 1038-40 (Tallman, J., concurring); id. at 1044-50 (Kozinski,
J., dissenting); Katie John III, 720 F.3d at 1245. But for purposes
of Title VIII, Alaska’s alternative interpretation has never been
a round peg itself. See supra Section V(A)(2); see also Katie John
I, 72 F.3d at 704; Katie John II, 247 F.3d at 1034-44 (Tallman,
J., concurring); see also Katie John I, 72 F.3d at 706 (Hall, J.,
dissenting); Sturgeon, 872 F.3d at 938 (Nguyen, J., concurring).
41a
B THE UNITED
APPENDIX B —Appendix
ORDER OF
STATES DISTRICT COURT FOR THE DISTRICT
OF ALASKA, FILED MARCH 29, 2024
IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF ALASKA
Case No. 1:22-cv-00054-SLG
THE UNITED STATES OF AMERICA,
Plaintiff
and
KUSKOKWIM RIVER INTER-TRIBAL FISH
COMMISSION, et al.,
Intervenor-Plaintiffs
v.
THE STATE OF ALASKA, et al.,
Defendants.
ORDER RE MOTION AND CROSS-MOTION FOR
SUMMARY JUDGMENT
Before the Court at Docket 70 is the United States’
Motion for Summary Judgment. The State of Alaska1
1. Defendants a re the St at e of A laska , the A laska
Department of Fish and Game (“ADF&G”), and Doug Vincent-
42a
Appendix B
filed a Combined Motion for Summary Judgment and
Opposition to the United States’ Motion for Summary
Judgment at Docket 72 and Docket 73. 2 The United
States filed a Reply Memorandum in Support of Motion
for Summary Judgment and in Opposition to Defendants’
Motion for Summary Judgment at Docket 101. IntervenorPlaintiffs joined the United States’ Motion for Summary
Judgment. 3 Each filed a combined response in opposition
to the State’s motion for summary judgment and reply
in support of the United States’ motion for summary
judgment.4 The State filed a Reply in Support of Motion
for Summary Judgment at Docket 122. While the Court
previously indicated that oral argument could be held, 5
upon review of the parties’ briefing, oral argument was
not requested by any party and was not necessary to the
Court’s determination.6
Lang, Commissioner of ADF&G (collectively, “the State” or
“Defendants”). Docket 1 at ¶¶ 9-11.
2. The documents are identical. For convenience, the Court
refers only to Docket 73 in this order.
3. Docket 71 at 1-2; Docket 98 at 1. Intervenor-Plaintiffs
are Kuskokwim River Inter-Tribal Fish Commission (“the
Commission”), see Docket 29; the Association of Village Council
Presidents, Betty Magnuson, and Ivan Ivan (collectively, “AVCP”),
see Docket 37; Ahtna Tene Nené and Ahtna, Inc. (collectively,
“Ahtna”), see Docket 47; and Alaska Federation of Natives
(“AFN”), see Docket 96. The United States and IntervenorPlaintiffs are collectively referred to as “Plaintiffs.”
4. Docket 109 (the Commission); Docket 110 (AFN); Docket
113 (Ahtna); Docket 115 (AVCP).
5. Docket 68 at 2.
6. Docket 126.
43a
Appendix B
BACKGROUND
The United States Supreme Court observed that
Congress has “repeatedly recognize[d] that Alaska is
different—from its ‘unrivaled scenic and geological values,’
to the ‘unique’ situation of its ‘rural residents dependent
on subsistence uses,’ to ‘the need for development and
use of Arctic resources with appropriate recognition and
consideration given to the unique nature of the Arctic
environment.’” 7 The unique situation of rural Alaskans’
dependence on subsistence uses is squarely implicated in
this case.
The Kuskokwim River runs more than 700 miles
in southwest Alaska before it ends in the Bering Sea.
Approximately 180 miles of the Kuskokwim River runs
within the Yukon Delta National Wildlife Refuge (“the
Refuge”) beginning at the mouth of the river. 8 The
Kuskokwim River contains several species of salmon,
including Chinook and chum salmon. “The residents
of the local villages along the Kuskokwim River and
its tributaries are almost entirely federally qualified
subsistence users, both native and non-native, who are
highly dependent on salmon as a source of food.” 9 In
addition, “subsistence harvest of salmon is engrained
7. Sturgeon v. Frost (Sturgeon I), 577 U.S. 424, 438-39 (2016)
(quoting Alaska National Interest Lands Conservation Act, 16
U.S.C. §§ 3101(b), 3111(2), 3147(b)(5)).
8. Docket 5-1 at ¶ 3 (Decl. of Boyd Blihovde). See Docket 101-1
at ¶ 3 (2d Decl. of Boyd Blihovde) (referencing first declaration).
9. Docket 5-1 at ¶ 8.
44a
Appendix B
within the culture and identity of these Kuskokwim area
rural residents.”10
I.
Alaska National Interest Lands Conservation Act
In 1980, Congress enacted the Alaska National
Interest Lands Conservation Act (“ANILCA”).11 One of
ANILCA’s primary objectives is to protect and preserve
the opportunity for rural residents to engage in a
subsistence way of life.12 Congress expressly found that
“the continuation of the opportunity for subsistence uses
by rural residents of Alaska, including both Natives and
non-Natives, . . . is essential to Native physical, economic,
traditional, and cultural existence and to non-Native
physical, economic, traditional, and social existence.”13
The “Congressional statement of policy” in § 802 of
ANILCA provides that “the purpose of this subchapter
is to provide the opportunity for rural residents engaged
in a subsistence way of life to do so.”14
Section 804 of ANILCA, entitled “Preference for
subsistence uses,” provides that “the taking on public
10. Docket 5-1 at ¶ 8.
11. Pub. L. No. 96-487, 94 Stat. 2371 (1980) (codified at 16
U.S.C. § 3101 et seq.).
12. 16 U.S.C. § 3101. See Alaska v. Fed. Subsistence Bd., 544
F.3d 1089, 1091 (9th Cir. 2008).
13. 16 U.S.C. § 3111(1).
14. Id. § 3112(1).
45a
Appendix B
lands of fish and wildlife for nonwasteful subsistence uses
shall be accorded priority over the taking on such lands of
fish and wildlife for other purposes.”15 ANILCA defines
“subsistence uses” to mean “customary and traditional
uses by rural Alaska residents of wild, renewable
resources.”16 Thus, Title VIII of ANILCA 17 requires
that “rural Alaska residents be accorded a priority for
subsistence hunting and fishing on public lands.”18 In
enacting Title VIII of ANILCA, Congress indicated it
was “invok[ing] . . . its constitutional authority under
the property clause and the commerce clause to protect
and provide the opportunity for continued subsistence
uses on the public lands by Native and non-Native rural
residents.”19
Pursuant to § 805(d) of ANILCA, “Congress gave
the state authority to implement the rural subsistence
preference by enacting laws . . . consistent with ANILCA’s
operative provisions.” 20 If Alaska “enforce[d] a rural
15. Id. § 3114. See also id. § 3102(1)-(3) (defining “land,”
“Federal land,” and “public lands”).
16. Id. § 3113 (emphasis added).
17. Title VIII of ANILCA is codified at 16 U.S.C. §§ 31113126.
18. Alaska v. Babbitt (Katie John I), 72 F.3d 698, 700 (9th Cir.
1995) (citing 16 U.S.C. §§ 3113- 3114), adhered to sub nom. John
v. United States (Katie John II), 247 F.3d 1032 (9th Cir. 2001) (en
banc) (per curiam).
19. 16 U.S.C. § 3111(4).
20. Katie John I, 72 F.3d at 700 (citing 16 U.S.C. § 3115(d)).
46a
Appendix B
subsistence priority through the exercise of its own
sovereignty, Congress [would] return primary regulatory
authority over [subsistence uses] to state stewardship,”
but if Alaska failed to do so, then “the federal government
would step in to protect subsistence [uses] as traditionally
practiced by rural Alaskans.”21 Promptly after ANILCA’s
enactment, the State enacted laws consistent with Title
VIII’s rural subsistence preference, and, in 1982, “the
Secretary of the Interior certified the state to manage
subsistence hunting and fishing on public lands” in
Alaska. 22
However, in 1989, the Alaska Supreme Court in
McDowell v. Alaska “struck down the state act granting
the rural subsistence preference as contrary to the Alaska
state constitution.” 23 The court “stayed its decision to
give the [Alaska] legislature an opportunity to amend the
constitution or otherwise bring its program into compliance
with ANILCA,” but the state legislature “failed to act.” 24
Therefore, in 1990, “the federal government withdrew
Alaska’s certification and took over implementation of Title
21. Katie John II, 247 F.3d at 1037 (Tallman, J., concurring)
(citing 16 U.S.C. § 3115(d)). The terms “rural subsistence priority”
and “rural subsistence preference” are used interchangeably in
this order.
22. Katie John I, 72 F.3d at 700-01.
23. Katie John I, 72 F.3d at 701 (citing McDowell v. Alaska,
785 P.2d 1 (Alaska 1989)).
24. Katie John I, 72 F.3d at 701.
47a
Appendix B
VIII.” 25 To this day, the relevant provisions of Alaska’s
Constitution remain the same, and so a rural subsistence
preference remains unconstitutional under Alaska law.
In ANILCA, Congress directed the Secretaries of
the Interior and Agriculture to promulgate regulations
in furtherance of ANILCA’s directives. 26 Following
McDowell, the Secretaries enacted temporary emergency
regulations in 1990 creating the Federal Subsistence
Board (“FSB”) to “administer[]” “[s]ubsistence taking and
uses of fish and wildlife on public lands.”27 The regulations
were made permanent in 1992, and they presently provide
that the Secretaries of the Interior and Agriculture
“assign [the FSB] responsibility for administering the
25. Id. See also Temporary Subsistence Management
Regulations for Public Lands in Alaska, 55 Fed. Reg. 27114 (June
29, 1990).
26. 16 U.S.C. § 3124; id. § 3102(12) (“The term ‘Secretary’
means the Secretary of the Interior, except that when such term
is used with respect to any unit of the National Forest System,
such term means the Secretary of Agriculture.”); Fed. Subsistence
Bd., 544 F.3d at 1092. “The Secretaries promulgated identical
regulations, codified at 50 C.F.R., pt. 100, and 36 C.F.R., pt. 242.”
Fed. Subsistence Bd., 544 F.3d at 1092 n.1. The Department of
the Interior’s regulations are codified at 50 C.F.R. Part 100, and
the Department of Agriculture’s regulations are codified at 36
C.F.R. Part 242. For the sake of simplicity, the Court cites to the
regulations promulgated by the Secretary of the Interior at 50
C.F.R. Part 100 in this order.
27. Temporary Subsistence Management Regulations
for Public Lands in Alaska, 55 Fed. Reg. at 27123; 50 C.F.R.
§ 100.10(a).
48a
Appendix B
subsistence taking and uses of fish and wildlife on public
lands.” 28 The FSB is composed of:
A Chair to be appointed by the Secretary
of the Interior with the concurrence of the
Secretary of Agriculture; two public members
who possess personal knowledge of and direct
experience with subsistence uses in rural
Alaska to be appointed by the Secretary
of the Interior with the concurrence of the
Secretary of Agriculture; the Alaska Regional
Director, U.S. Fish and Wildlife Service;
Alaska Regional Director, National Park
Service; Alaska Regional Forester, U.S. Forest
Service; the Alaska State Director, Bureau of
Land Management; and the Alaska Regional
Director, Bureau of Indian Affairs. 29
The FSB is “empowered . . . to implement Title VIII
of ANILCA,” and it is authorized to “[i]ssue regulations
for the management of subsistence taking and uses of
fish and wildlife on public lands”; “[a]llocate subsistence
2 8. 50 C.F.R . § 10 0.10(a); Subsistence Management
Regulations for Public Lands in Alaska, Subparts A, B, and C, 57
Fed. Reg. 22940, 22953 (May 29, 1992) (to be codified at 36 C.F.R.
pt. 242 and 50 C.F.R. pt. 100).
29. 50 C.F.R. § 100.10(b)(1). Initially, in 1990, FSB membership
was narrower; it included the same members listed in the current
regulation, but without “two public members who possess personal
knowledge of and direct experience with subsistence uses in rural
Alaska.” See Temporary Subsistence Management Regulations
for Public Lands in Alaska, 55 Fed. Reg. at 27123.
49a
Appendix B
uses of fish and wildlife populations on public lands”; and
“[r]estrict the taking of fish and wildlife on public lands
for nonsubsistence uses or close public lands to the take of
fish and wildlife for nonsubsistence uses when necessary
for the conservation of healthy populations of fish and
wildlife, to continue subsistence uses of fish and wildlife,
or for reasons of public safety or administration.” 30 The
FSB can also entirely “[r]estrict or eliminate taking of
fish and wildlife on public lands.” 31 In addition, the FSB
has the authority to adopt “special actions” to “open or
close public lands for the taking of fish” “if necessary to
ensure the continued viability of a fish . . . population” or
“to continue subsistence uses of fish.” 32
II. Federal and State Closures of the Kuskokwim River
In 2021 and 2022, the FSB and federal field officials
determined that closing the 180-mile section of the
Kuskokwim River within the Refuge to non-subsistence
uses was “necessary to conserve the fish population for
continued subsistence uses of the Chinook salmon upon
which rural residents of the area depend.” 33 Accordingly,
30. 50 C.F.R. § 100.10(d)(4)(i), (iv), (vi).
31. Id. § 100.10(d)(4)(ix).
32. 50 C.F.R. § 100.19(a). See Subsistence Management
Regulations for Public Lands in Alaska, Subparts A, B, and C,
57 Fed. Reg. at 22957.
33. Docket 1 at ¶ 4; accord Docket 1-1 at 4 (“The closure
of Federal public waters to the harvest of salmon with gillnets
beginning June 1 is based on conservation concerns and provisions
50a
Appendix B
“the FSB and agency field officials exercised their authority
under ANILCA to issue emergency special actions to close
the 180-mile-long section of the Kuskokwim River within
the Yukon Delta National Wildlife Refuge . . . to nonsubsistence uses, while allowing limited subsistence uses
by local rural residents under narrowly prescribed terms
and means of harvest.”34 In both 2021 and 2022, the Alaska
Department of Fish and Game (“ADF&G”) subsequently
issued its own emergency orders that overlapped with,
and to some degree were inconsistent with, the FSB’s
emergency actions. 35
a.
2021 Closures
In May 2021, federal authorities, in an emergency
special action, closed the Kuskokwim River located within
the Refuge to all gillnet fishing of salmon, beginning on
June 1, 2021. However, the closure action provided five
dates during which federally qualified subsistence users
could use gillnets to fish. 36 Federal authorities later added
of opportunity for subsistence uses.”); Docket 5-1 at ¶ 11 (“[I]n
2021 and 2022, the underlying basis for my decisions relating to
harvest of salmon has been to reach an escapement of at least
110,000 Chinook while allowing at least some opportunity for
federally qualified local residents to address their subsistence
needs.”) (Decl. of Boyd Blihovde).
34. Docket 1 at ¶ 4.
35. See Docket 1 at ¶ 5.
36. Docket 1-1 at 2-3 (Federal Emergency Special Action
(“ESA”) #3-KS-01-21). The emergency actions set different dates
for federally qualified users to harvest salmon using set gillnets
51a
Appendix B
additional days and locations during which federally
qualified subsistence users could use gillnets within the
Refuge. 37 At no time during the federal closure were nonfederally qualified users allowed by federal emergency
special actions to gillnet fish on the Kuskokwim River
within the Refuge.
Several days after the first federal closure order was
issued in May 2021, ADF&G issued an emergency order
closing parts of the Kuskokwim River to gillnet fishing,
which was consistent with the federal closure action. 38
At the same time, however, ADF&G issued a second
emergency order that allowed subsistence gillnet fishing
along the Kuskokwim River for all Alaskans—that was
not limited to federally qualified subsistence users—on
each of the same dates that the federal emergency actions
had reserved for federally qualified subsistence users. 39
When two federal emergency actions opened additional
dates for federally qualified subsistence gillnet fishing,
the State followed suit for the same dates, but authorized
and using drift gillnets. For the purposes of this order, the Court
groups the set gillnet dates and the drift gillnet dates together.
37. Docket 1-1 at 5 (Federal ESA #3-KS-02-21); Docket 1-1
at 7-8 (Federal ESA #3-KS-03-21).
38. Docket 1-2 at 2-4 (State Emergency Order (“EO”) #3S-WR-01-21).
39. Docket 1-2 at 5-6 (State EO #3-S-WR-02-21), 7 (State EO
#3-S-WR-04-21). See also Docket 73 at 29 (“Unlike [the federal]
orders, the State’s orders authorized subsistence fishing for all
Alaskans that qualified for subsistence fishing, not just rural
Alaskans, as required by the Alaska Constitution.”).
52a
Appendix B
subsistence gillnet fishing for all Alaskans.40 In one state
emergency order in 2021, the State authorized subsistence
gillnet fishing for all Alaskans on a date when federal
subsistence gillnet fishing was not allowed.41
b.
2022 Closures
On May 2, 2022, federal authorities issued an
emergency special action closing the main stem of the
Kuskokwim River within the Refuge to gillnet fishing for
all salmon and closing river tributaries to all gillnet fishing
and to the harvest of Chinook and chum salmon, effective
June 1, 2022.42 However, the emergency action allowed
federally qualified subsistence users to use gillnets to
harvest salmon on June 1, 4, 8, 12, and 16, 2022.43
On May 13, 2022, ADF&G issued an emergency order
closing parts of the Kuskokwim River to gillnet fishing,
which was consistent with the federal emergency action
taken earlier that month.44However, at the same time,
ADF&G issued a second emergency order that authorized
subsistence gillnet fishing by all Alaskans—not just
40. Compare Docket 1-1 at 5 (Federal ESA #3-KS-02-21),
7-8 (Federal ESA #3-KS-03-21), with Docket 1-2 at 9 (State EO
#3-S-WR-06-21), 15 (State EO #3-S-WR-08-21).
41. Compare Docket 1-2 at 12-13 (State EO #3-S-WR-07-21),
with Docket 1-1 at 2-9 (2021 Federal ESAs).
42. Docket 1-1 at 10 (Federal ESA #3-KS-01-22).
43. Docket 1-1 at 11-12 (Federal ESA #3-KS-01-22).
44. Docket 1-2 at 17-18 (State EO #3-S-WR-01-22).
53a
Appendix B
federally qualified subsistence users—on three of the
dates that the federal emergency action had reserved
for federally qualified subsistence users: June 1, 4, and
8, 2022. 45 The State explained that it intended this
opportunity to “allow those individuals who have been
displaced to the urban areas of Alaska for educational,
social, health or other reasons to practice their traditional
and cultural subsistence way of life that is closely tied to
the Kuskokwim River.”46
Plaintiffs sought —and the Cour t g ranted—a
prel i m i na r y i nju nct ion enjoi n i ng A DF&G f rom
implementing its order authorizing subsistence gillnet
fishing on three dates in June 2022 by all Alaskans for
the duration of this case.47 ADF&G was further prohibited
“from taking similar actions that authorize gillnet fishing
by all Alaskans on the Kuskokwim River within the Yukon
Delta National Wildlife Refuge when such action(s) would
be contrary to federal orders issued pursuant to Title VIII
of the ANILCA.”48
Now before the Court are the parties’ motions for
summary judgment on whether the FSB’s orders pursuant
to Title VIII of ANILCA preempt ADF&G’s emergency
orders authorizing subsistence gillnet fishing on the
45. Docket 1-2 at 19-20 (State EO #3-S-WR-02-22).
46. Docket 1-2 at 19 (State EO #3-S-WR-02-22).
47. United States v. Alaska (Kuskokwim I), 608 F. Supp. 3d
802, 813 (D. Alaska 2022).
48. Id.
54a
Appendix B
Kuskokwim River for all Alaskans.49 The State maintains
that its actions are not preempted by federal law because
ANILCA does not apply to the Kuskokwim River and
the FSB violates the Appointments Clause of the United
States Constitution. 50
JURISDICTION
The Court has jurisdiction pursuant to 28 U.S.C.
§ 1345 because the United States commenced this civil
action, and pursuant to 28 U.S.C. § 1331 because this is a
civil action with claims arising under federal law, namely
ANILCA, 16 U.S.C. § 3101 et seq., and the Appointments
Clause of the United States Constitution. Whether a
federal law preempts a state law is a question of federal
law. 51
LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) directs a court
to “grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
The burden of showing the absence of a genuine dispute
of material fact lies with the movant.52 In reviewing cross49. See Docket 70 at 2; Docket 73 at 8-9.
50. Docket 73 at 8-9.
51. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 214
(1985).
52. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
55a
Appendix B
motions for summary judgment, a court “review[s] each
separately, giving the non-movant for each motion the
benefit of all reasonable inferences.”53
DISCUSSION
I.
Waiver
The United States contends that the State has “waived
any argument on preemption.”54 The State counters that
the State “briefed the issue extensively” in its motion
for summary judgment by asserting that “[t]he State’s
orders are not preempted because the Kuskokwim River
is not ‘public land’ under ANILCA,” and “because the
FSB members were not properly appointed.”55 In essence,
the State claims that federal preemption does not apply
to the State’s conduct here because the portion of the
Kuskokwim River at issue is outside ANILCA’s purview,
and any potentially preemptive federal action by the FSB
was conducted by unconstitutionally selected federal
officers. The Court therefore finds that the State has
not waived its argument against federal preemption and
proceeds to address the State’s challenges to preemption
below.
53. Flores v. City of San Gabriel, 824 F.3d 890, 897 (9th Cir.
2016) (citing Ctr. for Bio-Ethical Reform, Inc. v. L.A. Cnty. Sheriff
Dep’t, 533 F.3d 780, 786 (9th Cir. 2008)).
54. Docket 101 at 20.
55. Docket 122 at 22 (quoting Docket 73 at 34-50).
56a
Appendix B
II. ANILCA and the Kuskokwim River Within the
Refuge
As a threshold issue, Plaintiffs maintain that the State
is “precluded from relitigating” its “defenses” because
they were, or could have been, decided in prior litigation.56
The United States contends that issue preclusion bars
the State from “relitigating whether ANILCA Title
VIII applies to subsistence fishing in navigable waters
that include the Kuskokwim River.”57 The United States
maintains that “[t]his issue was squarely decided by
the Ninth Circuit in the Katie John litigation in which
Alaska was a plaintiff.”58 The State counters that issue
preclusion does not apply because, among other reasons,
Sturgeon v. Frost constitutes a “change in the applicable
legal context.”59
56. Docket 101 at 21. See Docket 109 at 21-26. In its response
brief, the Commission also contends that 28 U.S.C. § 2401(a),
which contains a six-year statute of limitations on claims against
the federal government, bars the State’s defenses. Docket 109
at 27-31. However, as the State notes, that limitation applies to
“civil action[s] commenced against the United States” and the
State did not commence this action but rather is the defendant.
Docket 122 at 45.
57. Docket 101 at 22-31.
58. Docket 101 at 22 (first citing Katie John I, 72 F.3d 698;
then citing Katie John II, 247 F.3d 1032; and then citing John v.
United States (Katie John III), 720 F.3d 1214 (9th Cir. 2013), cert.
denied sub nom. Alaska v. Jewell, 572 U.S. 1042 (2014)).
59. Docket 122 at 27-29 (citing Sturgeon v. Frost (Sturgeon
II), 587 U.S. 28 (2019)).
57a
Appendix B
Issue preclusion, or collateral estoppel, applies “where
(1) the issue necessarily decided at the previous proceeding
is identical to the one which is sought to be relitigated; (2)
the first proceeding ended with a final judgment on the
merits; and (3) the party against whom collateral estoppel
is asserted was a party or in privity with a party at the
first proceeding.”60 “Offensive collateral estoppel refers
to the situation where the plaintiff seeks to foreclose a
defendant from relitigating an issue the defendant has
previously litigated unsuccessfully in another action
against the same or a different party.”61 Issue preclusion
does not “foreclose[] . . . relitigation of [an] issue in [a]
second action between the parties” if “[t]he issue is one
of law and . . . a new determination is warranted in order
to take account of an intervening change in the applicable
legal context.”62
Here, all three prerequisites for issue preclusion
are present. Nonetheless, the Court finds that Sturgeon
constitutes a “change in the legal context,” as it addressed
the definition of public lands in ANILCA—albeit in the
60. Af-Cap Inc. v. Chevron Overseas (Congo) Ltd., 475 F.3d
1080, 1086 (9th Cir. 2007) (quoting Kourtis v. Cameron, 419 F.3d
989, 994 (9th Cir. 2005)).
61. Coeur D’Alene Tribe of Idaho v. Hammond, 384 F.3d 674,
689 (9th Cir. 2004) (internal quotation marks omitted) (quoting
Nat’l Med. Enters., Inc. v. Sullivan, 916 F.2d 542, 545 n.2 (9th
Cir. 1990)).
62. Segal v. Am. Tel. & Tel. Co., 606 F.2d 842, 845 (9th Cir.
1979) (citation omitted).
58a
Appendix B
application of Title I and not Title VIII—such that issue
preclusion should not apply.63
Further, Plaintiffs maintain that judicial estoppel
prevents the State from arguing that Sturgeon undermines
the Katie John trilogy because the State asserted, in an
amicus brief before the Supreme Court in Sturgeon,
that Katie John was not at issue in that case.64 The State
maintains that judicial estoppel is inapposite because the
State was not a party in Sturgeon; rather, it participated
only as an amicus curiae.65
Judicial estoppel applies when (1) a party takes a
position that is clearly inconsistent with its earlier position;
(2) the earlier position was judicially accepted; and (3) the
party asserting the inconsistent position would derive an
unfair advantage if not estopped.66 The Court finds that
judicial estoppel does not apply because the State was not a
party in Sturgeon and, while judicial estoppel might apply
to non-parties in privity with a party, the State is not in
privity with either party involved in Sturgeon.67
63. Sturgeon II, 587 U.S. at 38-53.
64. Docket 101 at 27-31; Docket 109 at 13-21.
65. Docket 122 at 39-40.
66. New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001)
(citations omitted).
67. The United States maintains that participation as an
“amicus . . . does not foreclose application of judicial estoppel”
and “judicial estoppel can apply in suitable circumstances to
representations by a non-party participant in prior litigation.”
59a
Appendix B
The Court now turns to the State’s contention
that “Sturgeon ‘undercut[s] the theory [and] reasoning
underlying’ Katie John, the tw
This text is long and has been trimmed here. Open the source document for the complete record.
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.