Reply Brief — Alaska, et al., Petitioners v. United States, et al.

Supreme Court briefDec 19, 2025

Ask Donna

What actually matters in this document.

Text

No. 25-320

In the Supreme Court of the United States

STATE OF ALASKA, ET AL.,

Petitioners,

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

REPLY BRIEF FOR PETITIONERS

STEPHEN J. COX

Attorney General

JENNA M. LORENCE

Solicitor 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

December 19, 2025

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

Counsel for Petitioners

TABLE OF CONTENTS

Table of Cited Authorities .......................................... ii

Reply Brief ...................................................................1

Katie John was wrongly decided and

conflicts with Sturgeon and Totemoff...................2

II. Whether Alaska’s navigable waters are

“public lands” is a question of exceptional

importance.............................................................5

III. There is no obstacle to this Court’s review. .........9

Conclusion .................................................................11

TABLE OF CITED AUTHORITIES

Cases

AMG Cap. Mgmt., LLC v. FTC,

593 U.S. 67 (2021) .................................................2

Buntin v. Schlumberger Tech. Corp.,

487 P.3d 595 (Alaska 2021) ..................................5

Cutter v. Wilkinson,

544 U.S. 709 (2005) .............................................10

Hagen v. Utah,

510 U.S. 399 (1994) ...............................................5

INS v. Chadha,

462 U.S. 919 (1983) ...............................................2

James v. State,

950 P.2d 1130 (Alaska 1997) ................................5

Marshall v. Marshall,

547 U.S. 293 (2006) .............................................10

Patterson v. McLean Credit Union,

491 U.S. 164 (1989) ...........................................8, 9

Petteway v. Galveston Cty.,

111 F.4th 596 (5th Cir. 2024) ...............................8

Rogers v. Lodge,

458 U.S. 613 (1982) .............................................10

Sackett v. EPA,

598 U.S. 651 (2023) ...............................................4

Sturgeon v. Frost,

587 U.S. 28 (2019) ....................................... 3, 4, 11

Totemoff v. State,

905 P.2d 954 (Alaska 1995) .......................... 3, 4, 5

iii

United States v. Carver,

260 U.S. 482 (1923) ...............................................9

United States v. Locke,

471 U.S. 84 (1985) ...............................................10

United States v. Skrmetti,

605 U.S. 495 (2025) ...............................................2

Woods v. Interstate Realty Co.,

337 U.S. 535 (1949) ...............................................5

Statutes

16 U.S.C. §3102 ...........................................................3

Other Authorities

Alaska Amicus Br., Sturgeon v. Frost,

2018 WL 4063284 (U.S.) .....................................11

Alaska Amicus Br., Sturgeon v. Frost,

2018 WL 776096 (U.S.) .......................................11

Amy Coney Barrett, Statutory Stare Decisis in the

Courts of Appeals,

73 Geo. Wash. L. Rev. 317 (2005) .........................8

BIO, Alaska v. Jewell,

2014 WL 690256 (U.S.) .........................................9

Oral Arg. Tr., Sturgeon v. Frost,

2018 WL 5792149 (Nov. 5, 2018)........................11

REPLY BRIEF

Respondents’ briefs confirm that this Court

should grant review. Tellingly, the United States declines to defend Katie John on the merits. For good

reason: Alaska’s navigable waters are not “public

lands” under ANILCA. This interpretation is compelled by Sturgeon and was the original position of the

United States more than 30 years ago. The Intervenors hold their ground, but they still have no answer

to Sturgeon or the plain text of ANILCA. Their retreat

to ANILCA’s supposed “purpose” is the same argument that this Court rejected in Sturgeon and the

Alaska Supreme Court rejected in Totemoff. If the

navigable river in Sturgeon wasn’t “public land,” then

the navigable river here isn’t either.

Respondents cannot dispute the importance of the

question presented, so they urge the Court to just look

the other way. But this Court does not leave lower

court decisions in place when they rely on outdated

circuit precedent. Nor do the Ninth Circuit’s Katie

John precedents warrant special deference. Far from

creating a “workable” standard, Katie John has

wreaked havoc on the State’s ability to preserve and

protect its fishing resources. That Congress hasn’t

fixed Katie John is irrelevant. Congressional inaction

in the face of a lower court decision isn’t silent approval of that decision. If Congress wants to strip

Alaska of its right to manage its navigable waters, it

must say so expressly. Deferring to Congressional silence would be especially inappropriate here because

the reasoning of Katie John is so obviously incompatible with Sturgeon.

The Intervenors alone raise vehicle arguments,

but they are so meritless that the district court rejected them in two pages, and the Ninth Circuit ignored them entirely. Yet this Court need not even

reach these arguments because the Ninth Circuit did

not address them below. With the wrongness of Katie

John now squarely presented for this Court for the

first time, the Court should grant certiorari and reverse.

Katie John was wrongly decided and conflicts with Sturgeon and Totemoff.

1. The United States does not defend Katie John

on the merits, arguing only that the Ninth Circuit correctly followed that past precedent because it was not

“clearly irreconcilable” with Sturgeon. See USA-Br.2122 (saying that Sturgeon “does not necessarily control”

this case and that appropriations acts “can be seen as

evidence” that Congress ratified Katie John). But the

Ninth Circuit’s “clear irreconcilability” test applies

only to how that court handles its own precedent; it

has no application here. See, e.g., AMG Cap. Mgmt.,

LLC v. FTC, 593 U.S. 67, 71 (2021). The United

States’ silence as to the correctness of Katie John

speaks volumes.1

1 That the United States will not (it appears) defend Katie

John on the merits creates no vehicle issues. The United States

has not disavowed its intention to enforce ANILCA. See INS v.

Chadha, 462 U.S. 919, 939-40 (1983). And the Intervenors will

defend Katie John. Intervenors-Br.26-32; United States v.

Skrmetti, 605 U.S. 495, 509 n.1 (2025); see also Dist.Ct.Dkt.154

at 3-10.

The Intervenors defend Katie John, but they still

cannot reconcile its holding with Sturgeon and the

statutory text. Under ANILCA, “public lands” are

“lands, waters, and interests therein … the title to

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

So, for Katie John’s reading of “public lands” to be correct, the United States must be able to have “title” to

an “interest” in reserved water rights. But search Respondents’ briefs; they never explain how this is possible. Sturgeon says it’s not. Pet.25-26. Reserved water rights are “‘usufructuary’ in nature” and thus “‘are

not the type of property interests to which title can be

held.’” Sturgeon v. Frost, 587 U.S. 28, 43-44 (2019)

(quoting Totemoff v. State, 905 P.2d 954, 965 (Alaska

1995)).

Even assuming the United States could hold “title” to a reserved water right, Katie John requires one

more textual leap: that an interest in reserved water

rights gives the United States authority to regulate

subsistence fishing. Respondents again cannot defend

that inference in the wake of Sturgeon. Because a “reserved right, by its nature, is limited,” this right can

never give the United States “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. Because subsistence fishing does not

“‘deplet[e] or diver[t]’ ... waters in the River,” holding

title to reserved water rights cannot authorize the

general regulation of subsistence fishing or the particular subsistence fishing priority in Title VIII of

ANILCA. Id.

Faced with these textual problems, Respondents

rehash the Ninth Circuit’s reasoning. But these arguments fare no better here. Pet.25-34. It is inconceivable that Congress intended for “public lands”—a defined term that is used more than 200 times throughout ANILCA—to have a fluctuating meaning across

ANILCA’s different titles. Pet.26-29. The purpose of

ANILCA was not to regulate the State’s navigable waters, see Pet.28-30, and regardless, Sturgeon already

rejected the argument that ANILCA’s supposed “purpose” can “‘override [the] statute’s operative language,’” 587 U.S. at 57 (cleaned up); Pet. 28. Nor did

Congress ratify or approve of Katie John through two

appropriations acts—an argument this Court already

found unpersuasive in Sturgeon. Pet.30-33. And while

the Court need not turn to the clear-statement rule

given the statute’s plain text, ANILCA unquestionably contains no “‘exceedingly clear language’” supporting the convoluted interpretation adopted in Katie

John. Sackett v. EPA, 598 U.S. 651, 679 (2023); Pet.

33-34; States-Br.9-11; Ass’n-Fish-Wildlife-AgenciesBr.6-8, 19-20.

2. Respondents cannot dispute that the Alaska

Supreme Court’s decision in Totemoff squarely conflicts with Katie John, so they argue that its reasoning

was merely dicta. But these were no throwaway lines.

The Alaska Supreme Court devoted more than eight

pages to explaining why navigable waters are not

“public lands” and why Katie John was wrong to conclude otherwise. Totemoff, 905 P.2d at 961-68. The

Alaska Supreme Court also views its decision as binding. In Totemoff, it said, “we hold that navigable waters are generally not ‘public lands’ under ANILCA.”

Id. at 968 (emphasis added); see also James v. State,

950 P.2d 1130, 1132 n.5 (Alaska 1997) (“In Totemoff[,]

we held … that ANILCA does not apply to navigable

waters overlying [lands] owned by the State.” (emphasis added)). The Alaska Supreme Court plainly “relied

on this conclusion of law” when resolving “‘the facts

before [the] court.’” Buntin v. Schlumberger Tech.

Corp., 487 P.3d 595, 601 (Alaska 2021); see also Woods

v. Interstate Realty Co., 337 U.S. 535, 537 (1949)

(“Where a decision rests on two or more grounds, none

can be relegated to the category of obiter dictum.”).

That the conflict between Totemoff and Katie John

is between courts with overlapping jurisdiction is all

the more reason to grant review. See, e.g., Hagen v.

Utah, 510 U.S. 399, 409 (1994) (reviewing a “direct

conflict between th[e] decisions of the Tenth Circuit

and the Utah Supreme Court”). Because of Katie

John, the State has declined to prosecute individuals

in state court when their actions would have been legal in the Ninth Circuit. But this forbearance has not

eliminated the confusion. Certain activities (like the

hunting on a navigable water that occurred in Totemoff) remain illegal under state law. Alaskans

should not have to roll the dice as to which court reviews the legality of their conduct. Eliminating this

uncertainty strongly supports this Court’s review.

II. Whether Alaska’s navigable waters are

“public lands” is a question of exceptional

importance.

Respondents cannot dispute that the question

presented is important. Pet.19-25. While every state

has a strong sovereign interest in controlling its navigable waters, see States-Br.8-11, none has a greater

interest than the State of Alaska, Pet.19-21; AIDEABr.6-17. Alaska insisted on the right to control its navigable waters when it joined the Union, and its waters

remain the lifeblood of the State’s culture and economy. Pet.19-21. Alaska shouldn’t be stripped of these

rights lightly. Pet. 36-37.

Respondents urge the Court to close its eyes and

not get involved “at this late date.” USA-Br.17. None

of their arguments for leaving bad precedent in place

is persuasive. Respondents first assert (without evidence) that Katie John has created a “workable standard” for providing a subsistence priority. Id. Not so.

Katie John has been an administrative nightmare for

the State. Pet.22-23. To achieve its sustainability and

subsistence goals, the State must manage the entire

river system. Pet.22. But Katie John strips the State

of authority as soon as the river flows through a federal conservation system unit. This “‘balkanized regulatory regime’” has “led to overfishing within the conservation system unit and has deprived communities

living upstream of an equal ‘opportunity to share in

the harvest.’” Pet.22-23. Respondents dispute none of

this.

While the Intervenors acknowledge that the administration of Alaska’s waters has been “messy” (to

say the least), Intervenors-Br.23, they insist that federal regulators always “coordinat[e] closely with the

State, and no federal closure has ever been done without state consultation,” Intervenors-Br.22. The Intervenors cite nothing to support this statement because

it isn’t correct. See CA9.ER-377 (federal government

acknowledging that “consultation [with the State] is

not always possible”). Indeed, federal orders in this

case occurred without adequate consultation. See, e.g.,

Dist.Ct.Dkt.9-3 at 7 (State learning about federal orders from the media). Despite the State’s expertise in

these areas, Pet.22, it is simply “being told what actions are going to be taken” on its waters. CA9.ER389.

The State agrees that “[r]ural subsistence communities in Alaska have long depended on subsistence

fishing in navigable waters as part of their traditional

way of life.” USA-Br.19. But overturning Katie John

will not “deprive [them] of any real ability to engage

in subsistence fishing.” Intervenors-Br.28. Rural

Alaskans will continue to have a legal priority to engage in subsistence fishing under state law; the only

difference is that they will share that priority with

non-rural residents (typically Alaska Natives and others with cultural connections to an area) who are able

to return home to engage in subsistence fishing.

Pet.23-24. Allowing these limited individuals to also

participate in subsistence fishing has “no meaningful

impact on subsistence fishing for rural residents.”

App.95a-96a. True, the State as a regulator is more

likely to prevent overfishing within federal refuges

and preserves, since Alaska law requires the State to

provide subsistence fishing opportunities along the

entire river system, not just within federal conservation system units. But this is a reason to grant the petition, not to deny it. Pet.22-24.

Respondents insist that Congress approves of

Katie John because it has not amended ANILCA to

override the Ninth Circuit’s decisions. USA-Br.19-21;

Intervenors-Br.29-30. But such “[c]ongressional silence is meaningless.” Amy Coney Barrett, Statutory

Stare Decisis in the Courts of Appeals, 73 Geo. Wash.

L. Rev. 317, 335 (2005). A “host of explanations other

than congressional approval of an opinion may account for legislative inaction.” Id. “Equating the failure to act with agreement reflects a simple and complete misunderstanding of the legislative process.” Id.

at 336; Pet.31-32.

What Respondents are really seeking is for Katie

John to be treated like it was a decision of this Court.

But “[w]hatever the merits of statutory stare decisis

in the Supreme Court,” there is “no sound basis” for

giving this heightened deference to lower court decisions. Barrett, supra, 318; see Petteway v. Galveston

Cty., 111 F.4th 596, 613 (5th Cir. 2024) (en banc). Circuit courts play a different role in our federal system,

and their opinions lack the finality of this Court’s decisions. If a lower court decision is wrong and the

question is important, this Court should fix it.

Keeping Katie John in place because it’s old would

be especially inappropriate after Sturgeon. When this

Court has overruled its own statutory precedent, one

of the “primary reason[s] … has been the intervening

development of the law.” Patterson v. McLean Credit

Union, 491 U.S. 164, 173 (1989). When a judicial opinion has “removed or weakened the conceptual underpinnings from the prior decision” or “rendered the decision irreconcilable with competing legal doctrines,”

this Court “has not hesitated to overrule an earlier decision.” Id. Sturgeon has done so for Katie John, which

was not on solid grounds in the first place, see Pet.711.

Respondents note that this Court denied certiorari in Katie John I and Katie John III. Of course,

“[t]he denial of a writ of certiorari imports no expression of opinion upon the merits of the case.” United

States v. Carver, 260 U.S. 482, 490 (1923). More important, those cases had vehicle issues that aren’t present here. Pet.35-36. Katie John I was an interlocutory decision, which the Court rarely reviews. Pet.35.

Katie John III didn’t address the question presented

here at all, see Pet.36, and the United States (unlike

here) made multiple procedural arguments for why

the case was “an inappropriate vehicle for consideration of the” Katie John question, see BIO 22-23, Alaska

v. Jewell, 2014 WL 690256 (U.S.). The United States

also argued that “the Katie John cases were correct,”

id. at 23, a position it has now abandoned after Sturgeon.

III. There is no obstacle to this Court’s review.

Intervenors (but not the United States) claim that

there are “serious vehicle problems” because the

State’s Katie John argument is barred by issue preclusion and judicial estoppel. Intervenors-Br.2, 24-26.

These arguments were rejected by the district court,

App.57a-58a, and are so weak that the Ninth Circuit

never addressed them, App.24a-25a. The State’s Katie

John argument is not barred by issue preclusion because, among other reasons, “Sturgeon constitutes a

‘change in the legal context.’” App.57a; see also

CA9.Dkt.63.1 at 7-20. And it isn’t barred by judicial

estoppel because, among other reasons, “the State was

not a party in Sturgeon.” App.58a; see also

CA9.Dkt.63.1 at 26-33.

Yet this Court need not even reach these issues

because the Ninth Circuit did not address them below.

Because the Court is “a court of review, not of first

view,” it need not consider arguments that were “not

addressed by the Court of Appeals.” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005). This rule holds

true for the preclusion and estoppel arguments that

the Intervenors raise here. See, e.g., Marshall v. Marshall, 547 U.S. 293, 313 n.5, 315 (2006) (“The Court of

Appeals ... did [not] address Pierce’s arguments concerning claim and issue preclusion. These issues remain open for consideration on remand.” (citation

omitted)); United States v. Locke, 471 U.S. 84, 89 n.7

(1985) (“The District Court did not consider [the equitable] estoppel claim. … [W]e leave any further treatment of this issue … to the District Court on remand.”). These arguments thus present no obstacle to

this Court’s review.2

Respondents make much of the fact that Alaska,

under a different administration, argued in Sturgeon

that Katie John shouldn’t be disturbed. But the

State’s primary argument in Sturgeon was that “[t]he

2 To the extent the Intervenors are asserting claim preclusion, see Intervenors-Br.25-26, that argument was not “properly

raised in the Court of Appeals and was not addressed by that

court,” and so this Court need not address it. Rogers v. Lodge,

458 U.S. 613, 628 n.10 (1982); App.24a-25a. This new argument

would fail in any event. CA9.Dkt.63.1 at 26; see also id. at 20-26.

Katie John decisions [were] not at issue in [Sturgeon’s] appeal” and so this Court didn’t need to “directly address the prior circuit holdings in order to resolve th[e] appeal.” Alaska Amicus Br. 29, Sturgeon,

2018 WL 4063284 (U.S.). This Court correctly agreed,

noting that the subsistence fishing provisions were

“not at issue in th[e] case” and so there was no reason

to “disturb the Ninth Circuit’s holdings.” Sturgeon,

587 U.S. at 45 n.2. The point of the State’s brief was

not that Katie John was correctly decided; it was that

this Court shouldn’t decide an issue that wasn’t before

it. See Alaska Amicus Br. 16-17, Sturgeon, 2018 WL

776096 (U.S.) (calling Katie John a “muddled” decision that shouldn’t be “broaden[ed] … beyond the subsistence context”); see also Oral Arg. Tr. 30-31, Sturgeon, 2018 WL 5792149 (Nov. 5, 2018) (State declining

to answer whether it “agree[s] with the Katie John decisions”). Indeed, the State’s longstanding position

has been that navigable waters are not public lands

and that Katie John was wrongly decided. See Pet.811.

Now, for the first time, the Katie John issue is

squarely presented for the Court’s review. Pet.35-36.

Katie John was wrongly decided, it is undermining

sustainability and subsistence fishing in Alaska, and

it should be overruled.

CONCLUSION

The Court should grant certiorari.

Respectfully submitted,