Opposition Brief — Alaska v. Babbitt

No. 95-1084 “Ax 8 1996

Te CLERK

In The EEE Ses Sr weed

Supreme Court of the United States

October Term, 1995

*

STATE OF ALASKA,

Petitioner,

BRUCE BABBITT, Secretary of THE INTERIOR, et al.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

PRIVATE RESPONDENTS’ BRIEF IN OPPOSITION

+

Of Counsel: HEATHER R. KENDALL

Counsel of Record

LAwRENCE A. ASCHENBRENNER

Native AMERICAN RIGHTS

Wituam E. CALDWELL

1648 Cushman St.,

Suite 300 Bias

aa tae SibT sca li 310 K Street, Suite 708

Anchorage, Alaska 99501

(907) 276-0680

Counsel for Private

Respondents

March 6, 1996

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

tle 7

QUESTIONS PRESENTED

Whether the definition of “public lands” in § 102 of

the Alaska National Interest Lands Conservation Act

(“ANILCA”), 16 U.S.C. §§ 3102(1)-(3), encompasses

appurtenant navigable waters reserved as necessary parts

of the various federal reservations Congress has set aside

from the public domain in Alaska, thereby making the

priority for subsistence fishing on the “public lands”

mandated by §§ 803-805 of ANILCA, 16 U.S.C.

§§ 3113-3115, applicable to such waters?

Alternatively, are all navigable waters in Alaska

“public lands” to which the ANILCA subsistence priority

applies by virtue of the United States’ navigational servi-

tude?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED)... cccccccccscsereducvoss i

TABLE OF COPREEIGE cc cecaccscccectschetvopeens ii

TABLE OF AUTHIORIEES 4. so vies sdsécdccdcavsvliiec dee iii

PRIVATE RESPONDENTS’ BRIEF IN OPPOSITION... 1

OPENING DRULGIW, ccacces cadcceddisdalesoocncen 1

STATEMEING «3 occaccsdsseRwane owas 4 eueus Gans 1

The Statutery Background And Framework .. 2

The Background Of This Litigation .......... 8

The Proceeds TOGO av. s iste sebecccccecess 12

REASONS WHY THE PETITION SHOULD BE

DENIED) 3.ssana'<bctdcnwasep badadas tate tenet tenes 14

I. CONGRESS CLEARLY INTENDED FEDERAL

MANAGEMENT TO DISPLACE STATE MAN-

AGEMENT OF ALL SUBSISTENCE FISHERIES

THAT TAKE PLACE ON THE “PUBLIC

LANDS,” AND THE NINTH CIRCUIT COR-

RECTLY HELD THAT FEDERALLY RESERVED

WATERS ARE “PUBLIC LANDS” ............. 15

Il. THERE IS NEITHER A “JURISDICTIONAL

CRISIS” NOR A CONFLICT IN DECISIONAL

LAW WARRANTING THE EXERCISE OF THIS

COURT’S DISCRETIONARY JURISDICTION... 24

CONTE AROIG iss 5 bans canes boewhoh s eeReeaabavene 30

iii

TABLE OF AUTHORITIES

Page

Cases

Alaska Pacific Fisheries v. United States, 248 U.S. 78

ee eee os ose ass ool s bie dec cn edie: 2

Amoco Production Co. v. Village of Gambell, 48@ U.S.

EE SG 30h oc S tu oncids abla k db ncel<. 4, 14, 17, 24

Andrus v. Charlestone Stone Products Co., 436 U.S.

RSA rE 8 ae Ot het Aer a nei Ge ae a a 21

Arizona v. California, 373 U.S. 546 (1963).......... 21, 22

Bobby v. Alaska, 718 F. Supp. 764 (D. Alaska 1989)..... 8

Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973)..... 21

Caldwell v. United States, 250 U.S. 14 (1919).......... 21

Cappaert v. United States, 426 U.S. 128 (1976).... 16, 20, 22

City of Angoon v. Hodel, 803 F.2d 1016 (1986), cert.

a Me Pd, SU NODS 5 55 ob ob Bebe vd cdvedec duc 24

Douglas v. Seacoast Products, Inc., 431 U.S. 265

Fee Pe SEGURO S LOL ie UNi odie cdot ¥eccwreve'se see 23

Dugan v. Rank, 372 U.S. 609 (1963).................. 18

FPC v. Niagara Mohawk Power Corp., 347 U.S. 239

re See NACE es nyo whip wnain ds bbe ¥s6edéh ere ee 18

Hynes v. Grimes Packing Co., 337 U.S. 86 (1949)....2, 17

Katie John v. United States, No. A90-0484-CV

EE SS CE aU TOLLE NE 1, 11, 12

Kenaitze Indian Tribe v. Alaska, 860 F.2d 312 (9th Cir.

1988), cert. denied, 491 U.S. 905 (1989)........ 5, 8, 9, 28

Madison v. Alaska Department of Fish & Game, 696

ee ee I ie het oem h ls nwedieces 8

iv

TABLE OF AUTHORITIES - Continued

Page

McDowell v. State, 785 P.2d 1 (Alaska 1989)........ 9, 10

Metlakatla Indian Community v. Egan, 369 U.S. 45

‘L, | PPer er erry re es hr serTe ry preerer terror rey Ter 2

Native Village of Quinhagak v. United States, 35 F.3d

~ OO eee Pe erere re Ce rere 5

Oregon ex rel. State Land Board v. Corvallis Sand &

Corel Ce, GEO UI. OO CUFT a vs ov tdnnstsave ests 21

Organized Village of Kake v. Egan, 369 U.S. 60 (1962) ..... 2

State v. Babbitt, 72 F.3d 698 (9th Cir. 1995), super-

ceding, 54 F.3d 549 (9th Cir. 1995)........... 1, 12, 14

State v. Kenaitze Indian Tribe, 894 P.2d 632 (Alaska

SOT so 5 <6 ascnnlki's 4ch Dl DIRE A A Rae 8 SARK y

State v. Morry, 836 P.2d 358 (Alaska 1992)............ 9

Totemoff v. State, 905 P.2d 954 (Alaska 1995)..... passim

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

, ) remem OO rT ye Ara rm ere 5, 28

United States v. Gerlach Live Stock Co., 339 U.S. 725

ROE os as eaten sakuench dou cine bina eke saa ema 18

United States v. Grand River Dam Authority, 363

OS: Fae CAE oho elie V nc cao eh hae eek ie sees. - 21

United States v. New Mexico, 438 U.S. 696 (1978)..16, 22.

United States v. Rio Grande Dam & Irrigation Co.,

RFS: S5D; OO Ae nok ose ees sh cpates cos ones 18, 22

Utah Division of State Lands v. United States, 482

a Ti GIF a bch cd avcn tp tienaasatohnakad as 20, 22

Utah Power & Light Co. v. United States, 243 U.S.

Lg POPE OTe ET TEC ET COCR E TT e or ee oe 21

Winters v. United States, 207 U.S. 564 (1908) ...... 20, 22

Vv

TABLE OF AUTHORITIES - Continued

Page

CONSTITUTIONS AND STATUTES

Pa Ss Oe Oe 2

Pub. L. No. 85-508, 72 Stat. 339 (1958) ............... 2

Pub. L. No. 96-487, 94 Stat. 2371 (1980).............. 3

Endangered Species Act of 1973 (87 Stat. 884)..... <A

Federal Aid in Fish Restoration Act (64 Stat. 430) .... 23

Fishery Conservation and Management Act of

Se es ON ion 00 60d a os ERE 8 os acs 5 o0 23

Fur Seal Act of 1966 (80 Stat. 1091)................. 23

Marine Mammal Protection Act of 1972 (86 Stat.

Ls FO wes en Spe Pee En OLE Lae Meee I

Se is Te PPT ET IE hc Fav kseae ers ehelietiices sites 23

Oe ea cad <b ons ca ncein Adc d ene ckae 23

BO ak Se ie BNNs oo ea teres bese neuawind cee 22

BP Aes SE ATE Le a eS ASU eine sé ep center en's 22

ok Tg FR END Dre e ere ot ab eae ae 23

Oe i Oe RN a cha i bs vag ese AOR K RO Eta SeaeeS 2

ee Ses Se I i bcc eae hak es obs 65 beso a 0s 23

Be es Oe Io a hs oe Ss Sad ceca eshdbasedecs 3

ee TEU oa sR URk son i Ub eae sce ees 23

16 U.S.C. § 3102......... 0. cere e eee cece e ee eees passim

aie: Ee ARMs i ick o vadae re bebe ee ewes passim

vi

TABLE OF AUTHORITIES - Continued

Page

16 U.S.C. GE SAGaa) GRE CO) oc occ cccccccsnccesscsvess 8

2B USA. BD TRGME bess cctacncketéscccendvesesseuens 13

43 USC. GH US01 GE COG. os occ vccccccccceccesssseses 19

43 USAC, Gh TAG, cans sive cient ABheeikw 2

43 TIGC. & BOs Uisis Kees cee bie heeds iv aaasi 2

REGULATORY MATERIAL

36 CR; Se Bs bua e cris odd bb vcbackaetre wae stheu 10

BG CEs Bee GS Gc ok ccccccesneciacvovbeabas 11

Se eis ee aid dk kd nko ad dR eeOeAl bdo 10

pew § ee Ue Ut . Peri cre rerererrereree 11

SS Fed. Reg. 23,522 (Jume &, 1990). ......cccscccccees 10

55 Fed. Reg. 27,114 (June 29, 1990).................. 10

57 Fed. Reg. 22,940 (May 29, 1992)............... 10, 11

LEGISLATIVE MATERIAL

H. Conr. Rep. No. 92-746, 92d Cong., 1st Sess.

(1971), reprinted in 1971 U.S. Cope Conc. &

PRO TES Ta 864 sik de sha dak a bao eee kd ota. 3

PRIVATE RESPONDENTS’ BRIEF IN OPPOSITION!

OPINIONS BELOW

The Ninth Circuit’s opinion (Pet. App. 1) is now

reported at 72 F.3d 698 (Dec. 19, 1995), superseding 54 F.3d

549 (April 20, 1995). The district court’s opinion granting

partial summary judgment to private respondents is

unreported, Nos. A90-0484 & A92-0264-CV (HRH), 1994

WL 487830 (D. Alaska, March 30, 1994), and is repro-

duced in the Supplemental Appendix (“Pet. Supp. App.”)

filed by petitioner.

STATEMENT

This case presents an issue of statutory interpretation

involving one section of the Alaska National Interest

Lands Conservation Act (“ANILCA”), 16 U.S.C.

§§ 3102(1)-(3), a statute unique to Alaska with no applica-

tion to any other state.

' Private respondents are the non-governmental parties in

two cases which were consolidated for disposition below: Katie

John v. United States, No. A90-0484-CV (HRH), and Alaska v.

Babbitt, No. A92-0264-CV (HRH) (D. Alaska). Private

respondents are the plaintiffs in the Katie John case, who are two

individual Alaska Natives (Katie John and Doris Charles) and a

federally recognized Indian tribe (Mentasta Village Council);

and the Alaska Federation of Natives (“AFN”), a statewide

Native organization, which was permitted to intervene as a

defendant and to file a cross-claim against the federal

defendants in the Alaska v. Babbit case.

The Statutory Background And Framework

In § 4 of the Alaska Statehood Act, Congress required

the newly admitted State to “forever disclaim all right

and title . . . to any lands or other property (including

fishing rights)” of Alaska Natives, which lands and other

property “shall be and remain under the absolute juris-

diction and control of the United States until disposed of

under its authority, except to such extent as the Congress

has prescribed or may hereafter prescribe.” Pub. L. No.

85-508, 72 Stat. 339 (1958), as amended, 73 Stat. 141

(1959).2 Under the terms of Alaska’s admission to the

Union, therefore, the fishing rights of Alaska Natives,

including their rights to fish in the navigable waters of

the State, see Hynes v. Grimes Packing Co., 337 U.S. 86

(1949); Alaska Pacific Fisheries v. United States, 248 U.S. 78

(1918), were expressly reserved by Congress for its own

disposition. Metlakatla Indian Community v. Egan, 369 U.S.

45 (1962); Organized Village of Kake v. Egan, 369 U.S. 60

(1962).

With enactment of the Alaska Native Claims Settle-

ment Act (“ANCSA”) in 1971, Pub. L. No. 92-203, 85 Stat.

688, 43 U.S.C. §§ 1601-1628, Congress confronted the land

and land-related claims of Alaska Natives and extin-

guished hunting and fishing rights based on aboriginal

title, 43 U.S.C. § 1603(b). At the same time, Congress

2 Similarly, in Article XII, § 12 of the Alaska Constitution of

1956, by which Alaska sought statehood, “[t}he State and its

people further disclaim[ed] all right or title in or to any

property, including fishing rights,” of Alaska Natives, which

“shall remain subject to the absolute disposition of the United

States.”

made clear its intent to continue federal protection of the

subsistence hunting and fishing rights of Alaska Natives.

Thus, while the Senate and the House were unable to

agree on the best means for fulfilling this intent, the

ANCSA Conference Committee recognized these rights

and expressed the conviction that the Secretary of the

Interior could “exercise his existing withdrawal author-

ity” to “protect Native subsistence needs and require-

ments.” H. Conr. Rep. No. 92-746, 92d Cong., 1st Sess. 37

(1971), reprinted in 1971 U.S. Cope Conc. & Apmin. News

2247, 2250. The Report further stated: “The Conference

Committee expects both the Secretary and the State to

take any action necessary to protect the subsistence needs

of the Natives.” Id.3

Congress returned to the subject in 1980 in the

Alaska National Interest Lands Conservation Act

(“ANILCA”), Pub. L. No. 96-487 (Dec. 2, 1980), 94 Stat.

2371. There, Congress undertook two principal compre-

hensive purposes: (1) to set aside, expand or redesignate

vast tracts of the public domain in Alaska as various

“conservation system units,” in order to preserve the

natural features and resources of those lands and waters

3 In the wake of ANCSA, Congress continued to act

affirmatively to recognize and protect the subsistence rights of

Alaska Natives. See, e.g., Marine Mammal Protection Act of

1972, 16 U.S.C. § 1371(b) (expressly exempting from the taking

moratorium “any Indian, Aleut, or Eskimo who dwells on the

coast of the North Pacific Ocean or the Arctic Ocean,” if such

taking is for “subsistence purposes” or for the “creating and

selling” of handicrafts and clothing); Endangered Species Act of

1973, 16 U.S.C. § 1539(e)(1) (again containing exemptions for

subsistence uses by Natives and “any non-native permanent

resident of an Alaskan native village”).

for present and future generations; and (2) “to protect the

resources related to subsistence needs” and “provide the

opportunity for rural residents engaged in a subsistence

way of life to continue to do so.” ANILCA §§ 101(a)-(c),

94 Stat. at 2374-75, 16 U.S.C. §§ 3101(a)-(c). With respect

to the latter purpose — protecting the subsistence way of

life of rural residents —- Congress in Title VIII generally

impressed all “public lands” in Alaska with a preference

for subsistence uses of fish and wildlife over all other

uses. ANILCA §§ 801-816, 94 Stat. at 2422-30, 16 U.S.C.

§§ 3111-3126.4 “Public lands” are defined as “ ‘lands,

waters, and interests therein’ ‘the title to which is in the

United States.’ ” Amoco Production Co. v. Village of Gambell,

4 This direct protection of the Native subsistence way of life

is, in turn, reinforced in the specific primary purposes of many

of the conservation system units established, redesignated or

expanded by the Act. Subsistence uses are specifically

authorized in all or significant parts of 12 of the 13 national

parks and preserves addressed in the Act (§§ 201-202, 94 Stat. at

2377-83); all of them include the protection of habitat for, and

populations of, fish and wildlife, usually specifically including

salmon, as well as waterfowl and other migratory birds, among

their express primary purposes; and three of them specifically

mention as a primary purpose protection of “the viability of

subsistence resources.”

Similarly, 15 of the 16 national wildlife refuges established,

redesignated or expanded by the Act expressly include “the

opportunity for continued subsistence uses by local residents”

as a primary purpose of the refuge. ANILCA §§ 302-303, 94 Stat.

at 2385-93. Each of the 16 refuges includes among its explicit

purposes the conservation of fish and wildlife populations

(specifically listing “salmon” or “salmonoids” in all refuges

where such species are found), the fulfillment of “international

treaty obligations,” and the assurance of “water quality and

necessary water quantity.”

480 U.S. 531, 548 n.15 (1987) (melding the definition in

ANILCA §§ 102(1)-(3), 16 U.S.C. §§ 3102(1)-(3)).

Congress used the term “fish” over twenty times in

Title VIII, with good reason. Almost invariably, the larg-

est subsistence food source for Alaska Natives is fish,

accounting by weight for some two-thirds of the state-

wide subsistence harvest. In addition to its nutritional

value, subsistence fishing provides vital social and cul-

tural values for Alaska Native Villages; it is a central

factor unifying tribal families and communities. See, €.g.,

Native Village of Quinhagak v. United States; 35 F.3d 388

(9th Cir. 1994); United States v. Alexander, 938 F.2d 942 (9th

Cir. 1991); Kenaitze Indian Tribe v. Alaska, 860 F.2d 312 (9th

Cir. 1988), cert. denied, 491 U.S. 905 (1989).

While protection of the subsistence way of life of

Alaska Natives was the driving concern of Title VIII,

Congress in the end afforded the subsistence-use prefer-

ence to all “rural residents.” Congress did so to accom-

modate Alaska’s concern that the Alaska Constitution

prevented the State from providing a subsistence priority

limited to Alaska Natives. See Kenaitze Indian Tribe v.

Alaska, supra, 860 F.2d at 313 n.1. Accordingly, in Title VIII

Congress found that

in order to fulfill the policies and purposes of

the Alaska Native Claims Settlement Act and as

a matter of equity, it is necessary for the Con-

gress to invoke its constitutional authority over

Native affairs and 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.

ANILCA § 801(4), 16 U.S.C. § 3111(4).5 Congress declared

its policy to be that “the utilization of the public lands in

Alaska is to cause the least adverse impact possible on

rural residents who depend upon subsistence uses of the

resources of such lands,” and that “nonwasteful subsis-

tence uses of fish and wildlife and other renewable

resources shall be the priority consumptive uses of all

such resources on the public lands of Alaska.” ANILCA

§§ 802 (1) and (2), 16 U.S.C. §§ 3112(1) and (2). The

substantive provisions of the title define subsistence uses

as the “customary and traditional uses” of fish and wild-

life resources by “rural Alaska residents” (§ 803), and

confer a priority for the taking of fish and wildlife for

subsistence uses on the “public lands” (§ 804). 16 U.S.C.

§§ 3113, 3114.

In addition to substituting a “rural” hunting-and-

fishing preference for a “Native” one, Congress sought to

accommodate Alaska’s interests in another significant

way: by enabling the State to have primary regulatory

responsibility for assuring the priority for subsistence

uses of fish and wildlife on all lands and waters, federal

as well as State. Thus, while subsections 805(a) through

(c) require the Secretary to implement a comprehensive

subsistence-use management system on the public lands,

> Congress determined that the opportunity for continued

subsistence uses “is essential to Native physical, economic,

traditional, and cultural existence and to non-Native physical,

economic, traditional, and social existence” (§ 801(1)), but that

the opportunity “is threatened by the increasing population of

Alaska” and the “increased accessibility of remote areas

containing subsistence resources,” among other things

(§ 801(3)). 16 U.S.C. § 3111.

16 U.S.C. §§ 3115(a)-(c), and § 814 directs that the Secre-

tary “shall prescribe such regulations as are necessary

and appropriate to carry out his responsibilities under

this title [VIII],” 16 U.S.C. § 3124, the State is given the

power to supplant federal management by § 805(d), 16

U.S.C. § 3115(d):

The Secretary shall not implement subsec-

tions (a), (b), and (c) of this section if within one

year of the date of enactment of this Act, the

State enacts and implements laws of general

applicability which are consistent with, and

which provide for the definition, preference,

and participation specified in, sections 803, 804,

and 805, such laws, unless and until repealed,

shall supersede such sections insofar as such

sections govern State responsibility pursuant to

this title for the taking of fish and wildlife on

the public lands for subsistence uses.

Finally, § 807(a) affords subsistence users a private

right of action in federal court to enforce the subsistence

priority against either the State or the Secretary (depend-

ing on which of them is exercising management author-

ity). 16 U.S.C. § 3117(a).

Congress expressly acknowledged that by these pro-

visions it was imposing conditions on the State’s “tradi-

tional” authority to regulate the taking of fish and

wildlife on the public domain. Consequently, ANILCA

§ 1314 states that “[nJothing in this Act is intended to

enlarge or diminish the responsibility and authority of

the State of Alaska for management of fish and wildlife

on the public lands except as may be provided in Title VIII,

or to amend the Alaska constitution,” nor “to enlarge or

diminish” the Secretary’s responsibility and authority

over management of the public lands “[e]xcept as speci-

fically provided otherwise by this Act.” 16 U.S.C. §§ 3202(a)

and (b) (emphases added).

The Background Of This Litigation

As noted above, § 805 of ANILCA requires the Secre-

tary to implement a subsistence-preference management

program on the public lands if the State either fails to

enact or repeals State laws of general applicability that

conform with the requirements of §§ 803-805 of the Act.

Initially the State accepted the congressional conditions,

and on May 14, 1982, the Secretary of the Interior certi-

fied the State’s statutory and regulatory program as com-

plying with §§ 803-805 of ANILCA, expressing his

determination that “[a]s a result of this certification of

compliance, the State retains its traditional role in the

regulation of fish and wildlife resources on the public

lands in Alaska.”© When three years later the Alaska

Supreme Court held that the “rural residents” restrictions

of the State’s regulatory program were inconsistent with

the then-extant version of the State statute, Madison v.

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

the Legislature promptly corrected the statute in the hope

of complying with ANILCA and retaining state subsis-

tence-management authority on the public lands. See Ken-

aitze Indian Tribe v. Alaska, supra, 860 F.2d at 314; Bobby v.

Alaska, supra, 718 F. Supp. at 768.

6 Letter from Secretary Watt to Governor Hammond,

reprinted in Bobby v. Alaska, 718 F. Supp. 764, 812-13 (D. Alaska

1989).

—

Unexpectedly in December of 1989, however, the

Alaska Supreme Court held that the Alaska Constitution

prohibits the Legislature from enacting a subsistence-use

priority that is limited to rural residents. McDowell v.

State, 785 P.2d 1 (Alaska 1989) (decision stayed until July

1, 1990). The court acknowledged the pre-emptive scope

of ANILCA,’ and that the result of its holding would be

the loss of state subsistence-management authority on

federal lands and waters. Id. at 10 n.20.8

7” See 785 P.2d at 3 (“ANILCA requires federal management

of public lands in Alaska in order to ensure the subsistence

priority. However, federal management may be supplanted by

the state so long as the state enacts and implements subsistence

laws ‘which are consistent with, and which provide for the

definition, preference, and participation specified in’ ANILCA,”

quoting 16 U.S.C. § 3115(d) (footnotes omitted)).

® With the “rural preference” of State law severed on

constitutional grounds, Alaska continues to have a law that

purports to afford a priority for subsistence uses on lands and

waters that remain under State jurisdiction. This so-called

priority, however, in reality dilutes the rights of true subsistence

users. Under State law, all Alaska residents who hunt and fish

are deemed to be subsistence users, and hence eligible to

participate in any subsistence hunt or fishery anywhere in the

State. See State v. Morry, 836 P.2d 358 (Alaska 1992).

Consequently, urban hunters and fishers are entitled to travel to

any rural area in the State and hunt and fish on the same

“priority” basis as local villagers — precisely one of the principal

reasons Congress found it necessary to afford a priority to rural

residents. See note 5, supra. At the same time, true Native

subsistence users who are residents of areas recently classified

as “non-subsistence” under State law, but which are deemed

rural under federal law, are prohibited under Alaska law from

engaging in subsistence hunting and fishing in their historical

local use areas (insofar as these lands and waters are not federal

“public lands”). Compare Kenaitze Indian Tribe v. Alaska, supra,

with State v. Kenaitze Indian Tribe, 894 P.2d 632 (Alaska 1995).

10

In the wake of McDowell, the Secretary implemented

a subsistence-management program for the public lands

in Alaska. 55 Fed. Reg. 27,114 (June 29, 1990) (temporary

subsistence management regulations); 57 Fed. Reg. 22,940

(May 29, 1992) (permanent regulations); see 36 C.F.R., Part

242; 50 C.FR., Part 100. That program has been in effect,

and the State’s authority over subsistence uses of fish and

wildlife on the public lands (some two-thirds of Alaska’s

landmass) correspondingly circumscribed, for over five

years. So far, however, the protection of federal law has

been limited primarily to subsistence uses of land mam-

mals on federal fast-lands, with no protection for the vast

majority of subsistence fisheries that are the object of

keen competition from sport and commercial users. This

is because the federal program has excluded from its

protective coverage most of the important subsistence

fishing grounds of rural Alaska Natives and other resi-

dents. Indeed, at the outset it was the Secretary’s avowed

policy to implement a program “that minimizes change to

the State’s program” in order to avoid “unnecessary

chaos if and when the State is able to bring its subsistence

program back into compliance with ANILCA.” 55 Fed.

Reg. 23,522 (June 8, 1990). See also 55 Fed. Reg. at 27,115

(June 29, 1990). Nowhere was the effort at minimizing

more complete than with respect to the exclusion of the

majority of navigable waters (and hence the majority of

subsistence fishing) from the “public lands” scope of the

program. See 55 Fed. Reg. at 23,526 (proposed temporary

regulations) (defining “public lands” as including certain

federal lands, and “Federal lands means lands the title to

which is in the United States”); 55 Fed. Reg. at 27,122

: ree |

11

(adopting proposed regulations). The Secretary explained

that, although the statutory definition of “land” includes

“interests” in “waters” (16 U.S.C. § 3102(1)), navigable

waters were being excluded from the federal program

because “[t]he United States generally does not hold title

to navigable waters.” Id. at 27,115.

When the final regulations were adopted in 1992 (by

which time it was apparent the State likely would not soon

bring its program back into compliance with ANILCA), both

the “public lands” definition and the explanation had

changed, but the result remained essentially the same.

Although the new definition now tracked the statutory lan-

guage,’ the Secretary continued generally to exclude naviga-

ble waters from the program’s coverage, now on the basis of

the ownership of the lands underlying such waters: “Because

the United States does not generally own title to the sub-

merged lands beneath navigable waters in Alaska, the public

lands definition in ANILCA and these regulations generally

excludes navigable waters.” 57 Fed. Reg. at 22,942.19 See Pet.

Supp. App. 30-32.

9 “Federal lands means lands and waters and interests

therein the title to which is in the United States.” 57 Fed. Reg.

22,940, 22,952 (May 29, 1992).

10 As a result, the only subsistence fishing protected by the

federal program is that limited amount which takes place on

non-navigable waters on federal lands, and the waters

overlying certain tracts of submerged lands that were

withdrawn by the national government prior to statehood. See

36 C.F.R. §§ 242.3(b) & (c); 50 C.F.R. §§ 100.3(b) & (c). In the

overall context of subsistence fishing, this is very limited

protection. The subsistence priority is needed most where there

is the greatest competition over fishery resources; this

12

The Proceedings Below

On December 5, 1990, private respondents Katie

John, et al., initiated suit against the Secretary in Katie

John v. United States (see note 1, supra), alleging that the

federal subsistence program mandated by ANILCA had

been unlawfully restricted by excluding from its coverage

navigable waters in which the United States owns inter-

ests (including their traditional subsistence salmon fish-

ery at an ancient site known as Batzulnetas within the

Wrangell-St. Elias National Park and Preserve). See Pet.

App. 2; Pet. Supp. App. 23-25. The State was later added

as a defendant. Over a year later, on February 27, 1992,

the State filed its complaint in Alaska v. Babbitt (see note 1,

supra), the main focus of which alleged (erroneously) that

the Secretary had asserted subsistence-management juris- |

diction over certain navigable and non-navigable waters

belonging to the State, but which came to be understood

as challenging the authority of the Secretary to imple-

ment any subsistence-management program on the public

lands. Private respondent Alaska Federation of Natives

was permitted to intervene as a defendant/cross-claim-

ant. The cases were consolidated by the district court.

On March 30, 1994, the district court granted partial

summary judgment to private respondents, upholding

the authority of the federal government to implement a

subsistence-management program on the “public lands”

under Title VIII of ANILCA (Pet. Supp. App. 10-21),

competition from commercial and sport user groups (and the

great majority of subsistence fishing) takes place in the

navigable waters that are excluded from the Secretary’s 1992

“public lands” definition.

a ae RMS EET

13

which the court then construed to encompass all naviga-

ble waters in Alaska by virtue of the navigational servi-

tude of the United States. John v. United States, Nos.

A90-0484 & A92-0264-CV (HRH), 1994 WL 487830 (D.

Alaska) (Pet. Supp. App. 27-43). While the court

expressed its agreement with the lesser proposition

advanced by private respondents that ANILCA’s “public

lands” definition embraces appurtenant federal reserved

waters, the court determined that the navigational servi-

tude was more appropriate than the reserved-water-

rights doctrine, and “more compatible with the findings

and policies of Title VIII of ANILCA,” in “determining

the geographic scope of Title VIII.” Pet. Supp. App. 33-34.

The State took a permissive appeal under 28 U.S.C.

§ 1292(b) as to both holdings of the district court.

Although the Secretary also appealed from the holding as

to the navigational servitude, during the pendency of the

litigation the Secretary changed positions and acknowl-

edged that the federal subsistence program should be

extended to encompass those navigable waters in which

the United States owns reserved water rights. Prior to

oral argument in the Ninth Circuit, the State abandoned

its appeal insofar as it concerned the issue of the Secre-

tary’s authority to provide for the subsistence priority on

public lands, and the State accordingly entered into a

stipulation dismissing the appeal of that issue with preju-

dice. The Ninth Circuit accepted the stipulation of dis-

missal, Alaska v. Babbitt, 54 F.3d 549, 551 n.2 (April 20,

1995), and this Court denied petitions for certiorari by the

Alaska Legislature and the Alaska Outdoor Council seek-

ing to resurrect the issue, 116 S. Ct. 68, 272 (Oct. 2, 1995).

14

On the issue of the scope of Title VIII's protection for

subsistence fishing, the Ninth Circuit (with one judge

eventually dissenting in part) reversed the district court’s

holding as to the navigational servitude, but also held (as

the district court had implied) that federally reserved

navigable waters are “public lands” under ANILCA, and

that the Secretary has the responsibility for identifying

those waters and extending the subsistence priority to

them. 72 F.3d 698, 703-704 (Dec. 19, 1995) (Pet. App.

11-12), superseding 54 F.3d 549.

S

REASONS WHY THE PETITION SHOULD BE DENIED

As the court below correctly observed (72 F.3d at 702

n.9 (Pet. App. 8 n.9)), this case is sui generis, involving as

it does a singular statutory scheme with unique purposes

applicable to Alaska alone. Contrary to the suggestions of

petitioner and its amici, the decision below has no ram-

ifications beyond the borders of Alaska.'! Even with

1! Alaska and its friends contend that the phrase “lands,

waters and interests therein” (one component of the ANILCA

definition of “public lands”) is boilerplate routinely employed

by Congress in establishing, and in authorizing federal

acquisition of property for, parks and conservation areas. See

Pet. at 15.5; Brief Amici Curiae for Arizona, et al., at 11-12. They

point to no statute, however, which invokes that phrase in

conjunction with a statutory definition of “public lands,” much

less one that uses these terms to define the scope of federally

protected activities such as subsistence hunting and fishing. As

this Court has held in the context of the same statutory language

at issue here, the phrase “public lands” does not, “in and of

itself,” have “a precise meaning, without reference to a

definitional section or its context in a statute.” Amoco Production

Co. v. Village of Gambell, 480 U.S. 531, 548 n.15 (1987).

15

respect to its impact within Alaska, moreover, the deci-

sion below presents no issue warranting review here.

CONGRESS CLEARLY INTENDED FEDERAL MAN-

AGEMENT TO DISPLACE STATE MANAGEMENT OF

ALL SUBSISTENCE FISHERIES THAT TAKE PLACE

ON THE “PUBLIC LANDS,” AND THE NINTH CIR-

CUIT CORRECTLY HELD THAT FEDERALLY

RESERVED WATERS ARE “PUBLIC LANDS”

The State’s reliance on the “clear statement” doctrine

(Pet. 13-21) is difficult to fathom. In clear and unmistak-

able terms, Title VIII of ANILCA prescribes a system for

ensuring a priority for subsistence uses of fish and wild-

life on the “public lands,” and just as clearly prescribes

the requirements necessary for the State to supplant fed-

eral subsistence management on those lands. See pp. 3-8,

supra. Further, § 102 of ANILCA defines “public lands” as

lands, waters, and interests therein title to which is in the

United States. It is thus plain that, if the State fails to

comply with the prescribed conditions, Congress

intended for the Secretary to ensure a priority for all

subsistence fishing on all public lands. Indeed, the State

appears to concede as much. See Pet. 9, 20-21.

The question presented by this ‘case accordingly “is

not one governed by the “clear statement” doctrine, but

rather by old-fashioned principles of statutory construc-

tion: Does ANILCA’s definition of “public lands” encom-

pass either (a) all navigable waters in Alaska (by virtue of

the United States’ navigational servitude) or (b) appurte-

nant navigable waters reserved as parts of the federal

reservations Congress has set aside in Alaska? The Ninth

16

Circuit correctly answered the latter part of that question,

and the correct answer to the first part also sustains its

judgment. Further review is unwarranted.

1. It appears to be undisputed that, in establishing

and expanding numerous “conservation system units”

(defined in ANILCA § 102(4), 16 U.S.C. § 3102(4)) in

Alaska, Congress also “reserve[d] appurtenant water

then unappropriated to the extent needed to accomplish

the purpose of the reservation.” Cappaert v. United States,

426 U.S. 128, 138 (1976). Nor, as the district court noted

(Pet. Supp. App. 32-33), is there any dispute that waters

appurtenant to Wrangell-St. Elias National Park (where

private respondents’ subsistence fishery is located) were

reserved as part of the Park. This Court has established a

relatively simple test for ascertaining the nature and

scope of federally reserved waters:

In determining whether there is a federally

reserved water right implicit in a federal reser-

vation of public land, the issue is whether the

Government intended to reserve unappropri-

ated and thus available water. Intent is inferred

if the previously unappropriated waters are nec-

essary to accomplish the purposes for which the

reservation was created.

Cappaert, supra, 426 U.S. at 139. The Court has explained

that identifying what is “necessary to accomplish the

[reservation’s] purposes” entails a determination “that

without the water the purposes of the reservation would

be entirely defeated.” United States v. New Mexico, 438

U.S. 696, 700 (1978). Lack of appurtenant water plainly

would defeat the purposes of many, if not most, federal

reservations in Alaska. See, e.g., note 4, supra.

17

2. Any debate over ANILCA’s definition of “public

lands,” and its use of the term “title” in conjunction with

“interests” in “waters,” 16 U.S.C. §§ 3102(1) & (2), was

resolved by this Court in Amoco Production Co. v. Village of

Gambell, 480 U.S. 531, 548 n.15 (1987) (which neither the

State in its petition nor the Alaska Supreme Court in its

Totemoff argument (see part II, infra) even mention). In

Gambell, the Court construed this very definition and

rejected any hypertechnical reading of “title.” 480 U.S. at

548 n.15. The issue there concerned the government's

contention that the Outer Continental Shelf is not “public

lands” under ANILCA because the United States does not

claim “title” to the OCS. Said the Court (id.):

The United States may not hold “title” to the

submerged lands of the OCS, but we hesitate to

conclude that the United States does not have

“title” to any “interests therein.” Certainly, it is

not clear that Congress intended to exclude the

OCS by defining public lands as “lands, waters,

and interests therein” “the title to which is in

the United States.” We also reject the assertion

that the phrase “public lands,” in and of itself,

has a precise meaning, without reference to a

definitional section or its context in a statute.

See Hynes v. Grimes Packing Co., 337 US., at

114-116.

This construction of the statute forecloses the State’s pre-

sent attempt to read “interests in waters” out of the

statutory definition. For if the only waters encompassed

in the ANILCA definition were those overlying the sub-

merged lands which are owned by the United States, the

statutory reference to separate “interests in waters”

would be rendered superfluous.

18

The State and its Supreme Court have also failed to

analyze and appreciate numerous authorities holding that

riparian interests in waters such as the reserved waters at

issue here, although usufructuary as opposed to pos-

sessory, nonetheless constitute real property interests that

may be assigned and mortgaged, bought, leased and sold,

and may not be taken without just compensation. See, e.g.,

Dugan v. Rank, 372 U.S. 609, 625 (1963); FPC v. Niagara

Mohawk Power Corp., 347 U.S. 239 (1954); United States v.

Gerlach Live Stock Co., 339 U.S. 725 (1950). Nor may a

state, absent specific congressional authority, “destroy the

right of the United States, as the owner of lands border-

ing on a stream, to the continued flow of its waters; so far

at least as may be necessary for the beneficial uses of the

government property.” United States v. Rio Grande Dam &

Irrigation Co., 174 U.S. 690, 703 (1899). The reserved

waters appurtenant to federal reservations in Alaska are

an essential part of the reservations themselves, to which

the United States holds “title” as that term is employed in

the statutory definition and context.

3. The State’s assertion (Pet. 19) that classifying fed-

eral reserved waters as public lands results in a definition

that is “so difficult to apply” and “meaningless” is hard

to grasp.!? The suggestion that reserved waters do not

12 The State informs the Court that “a federal interest in

lands or waters might constitute ‘public lands,’ but the

existence of the interest does not convert vast areas of land and

waters into ‘public lands.’ ” Pet. 19 n.7. The point is obscure. If it

is that the interest in waters constituting public lands may not

be construed as abrogating the remaining interests in those

waters held by others, including the State, the point may be

conceded. But under the statutory definition the waters are still

“public lands” to which ANILCA applies.

19

constitute a “definite area” (id.) is quite mistaken. While

there might be future discrete controversies over whether

a particular reservation includes appurtenant waters, we

have no doubt in the ability of federal land-management

agencies generally to identify those appurtenant rivers

and streams, or portions thereof, that are reserved as part

of the reservation. Nor is there any need in the context of

this litigation, as argued by the State (id. at 19-20) and the

dissenting judge below (Pet. App. 20), for the government

to quantify the “minimum amount of water” that must be

preserved for the reservations. All that is at issue here is

whether these indisputably federal interests in the waters

qualify them as public lands to which the Title VIII prior-

ity for subsistence fishing applies, and that is all the

Ninth Circuit has held. Title VIII requires the Secretary to

assure the priority for subsistence fishing on all public

lands, regardless of their particular purposes, unless pro-

hibited by some other provision of ANILCA or other

federal laws. See, e.g., ANILCA § 804, 16 U.S.C. § 3114.

The federal management obligation is imposed by

ANILCA itself, not by the various interests in lands and

waters which make them public lands.

4. The State also contends that Alaska’s ownership

interest in lands, waters and natural resources granted by

the Submerged Lands Act of 1953 (SLA), 43 U.S.C.

§§ 1301 et seqg., constitutes an exception to ANILCA’s

“public lands” definition since § 102(3)(A) of ANILCA

exempts from “public lands” those “lands which have

been ... granted to... Alaska . . . under any other

provision of Federal law.” 16 U.S.C. § 3102(3)(A).

The State’s SLA contention suffers from a fundamen-

tal flaw in its premise. Although § 6(m) of the Alaska

20

Statehood Act, 72 Stat. 343, makes applicable to Alaska

the SLA’s grant of rights to other States, § 4 of that same

Act, 72 Stat. 339, required the State to “forever disclaim

all right and title . . . to any lands or other property

(including fishing rights)” of Alaska Natives, which lands

and other property “shall be and remain under the abso-

lute jurisdiction and control of the United States until

disposed of under its authority, except to such extent as

the Congress has prescribed or may hereafter prescribe.”

See p. 2, supra. Reading these provisions in pari materia, it

cannot seriously be suggested that § 6(m) and the SLA

granted that which § 4 expressly reserved. Even if the

SLA had the meaning the State ascribes to it, the State-

hood Act’s reservation of “property (including fishing

rights)” of Alaska Natives plainly precludes those prop-

erty rights from passing to the State under the SLA.

Those rights were kept by Congress for future disposi-

tion, such as that made in ANILCA.

But the State is also mistaken in urging that the SLA

relinquished the federal government's proprietary right

in reserved waters. As noted earlier, when Congress sets

aside public lands it also “reserves appurtenant water

then unappropriated to the extent needed to accomplish

the purpose of the reservation.” Cappaert v. United States,

426 U.S. 128, 138 (1976). Federally reserved water is fed-

eral property which the federal government can use with-

out compliance with state law. Winters v. United States,

207 U.S. 564 (1908). Congress has plenary authority under

the Property Clause to regulate and dispose of such fed-

eral property, Utah Division of State Lands v. United States,

482 U.S. 193, 201 (1987), and its authority includes the

power to control the disposition and use of water on,

21

under, flowing through or appurtenant to such lands.

United States v. Grand River Dam Authority, 363 U.S. 229,

235 (1960). No vested interest in the property of the

United States may be acquired in the absence of an

express grant from Congress and absent that grant or

consent, it continues to be held by the United States. /d.;

Utah Power & Light Co. v. United States, 243 U.S. 389,

404-05 (1917). Most importantly, such grants and dis-

posals to the States are not lightly inferred and “nothing

passes but what is conveyed in clear and explicit lan-

guage, — inference being resolved not against but for the

Government.” Caldwell v. United States, 250 U.S. 14, 20

(1919); see also Andrus v. Charlestone Stone Products Co., 436

U.S. 604, 617 (1978).

The SLA on its face lacks the requisite “clear and

explicit” language necessary to relinquish the federal

government's proprietary rights in reserved waters.

Nowhere in the Act are reserved waters expressly men-

tioned, let alone Congress’ plenary authority to dispose

of public lands or waters. Moreover, it is well established

that the SLA created no new rights for the States in their

inland navigable waterways beyond that afforded by the

equal-footing doctrine. Bonelli Cattle Co. v. Arizona, 414

U.S. 313, 324 (1973); Oregon ex rei. State Land Board v.

Corvallis Sand & Gravel Co., 429 U.S. 363, 371 n. 4 (1977).

The Act “was intended to be merely confirmatory of the

State’s existing rights in the beds of their navigable

waterways.” Bonelli, 414 U.S. at 324 n. 19.

It is equally well established under the equal-footing

doctrine that the admission of a State into the Union does

not divest Congress of its plenary control over inland

navigable waterways. Arizona v. California, 373 U.S. 546,

579-98 (1963) (limiting the equal-footing doctrine to the

|

22

beds of navigable waters, not the waters themselves).

“[E]ven if the land under navigable water passes to the

State, the federal government may still control, develop,

and use the waters for its own purposes.” Utah Division of

State Lands v. United States, 482 U.S. 193, 202 (1987).

On numerous occasions this Court has concluded

that whatever powers the States acquired over their

waters as a result of congressional enactments and admis-

sion to the Union, Congress has never intended thereby

to relinquish its authority to reserve unappropriated

water in the future for use on appurtenant lands with-

drawn from the public domain for specific federal pur-

poses. United States v. Rio Grande Dam & Irrig. Co., 174

U.S. 690, 702 (1899); Winters v. United States, 207 U.S. 564,

577 (1908); Arizona v. California, 373 U.S. 546, 579-98

(1963); Cappaert v. United States, 426 U.S. 128, 143-46

(1976); United States v. New Mexico, 438 U.S. 696, 698

(1978). Here, this conclusion is only strengthened by Con-

gress’ continued reservation of waters in Alaska for var-

ious purposes despite the SLA’s alleged conveyance of all

such interests to the State. See, e.g., Wild and Scenic

Rivers Act, 16 U.S.C. §§ 1271, 1284(c), Pub. L. No. 90-542

(Oct. 2, 1968), 82 Stat. 917.35

Equally bereft of merit is the State’s claim that the

SLA’s transfer to the States of management authority over

natural resources precludes the federal government from

exercising regulatory authority over fish and wildlife in

13 Twenty-six rivers in Alaska have been specifically

reserved under the Wild and Scenic Rivers Act, “to be

administered by the Secretary of Interior.” 16 U.S.C.

§§ 1274(25)-(50).

23

navigable waters. Pet. 18. This Court considered and

rejected this very argument in Douglas v. Seacoast Prod-

ucts, Inc., 431 U.S. 265, 283-84 (1977).'4

5. Finally, even if the Ninth Circuit had committed

some error in its holding that ANILCA’s “public lands”

definition encompasses federal reserved waters, the

court’s judgment in this case must still stand because the

navigational servitude of the United States constitutes an

interest in navigable waters owned by the United States,

making all navigable waters in Alaska public lands for

ANILCA purposes.'5 Indeed, if the Ninth Circuit erred in

any respect, it erred in rejecting the district court’s well-

reasoned conclusion (Pet. Supp. App. 34-43) that the nav-

igational servitude is an interest of the United States in

14 Consistent with the SLA’s savings clause, Congress has

repeatedly exercised its reserved power to regulate fish and

wildlife in navigable waters. See, e.g., the Fur Seal Act of 1966

(80 Stat. 1091; 16 U.S.C. § 1151), the Endangered Species Act of

1973 (87 Stat. 884; 16 U.S.C. §§ 1531-1543), the Marine Mammal

Protection Act of 1972 (86 Stat. 1027; 16 U.S.C. §§ 1361-1407), the

Fishery Conservation and Management Act of 1976 (90 Stat. 331;

16 U.S.C. §§ 1801-1882), and the Federal Aid in Fish Restoration

Act (64 Stat. 430; 16 U.S.C. §§ 777-777K). Significantly, Title VIII

of ANILCA acknowledges these Acts as “governing the

conservation or protection of fish and wildlife.” § 815(4), 94 Stat.

at 2429, 16 U.S.C. § 3125(4). Each of these Acts would be reduced

to a nullity under Alaska’s reading of the SLA.

15 The subsistence fishery of private respondents Katie

John, et al., is conducted in navigable waters within a national

park that are both federally reserved and subject to the

navigational servitude. Private respondents are thus entitled to

the ANILCA subsistence priority if those waters are public

lands by virtue either of being reserved waters or being within

the navigational servitude.

'

'

24

the navigable waters of Alaska that falls within

ANILCA’s definition of “public lands.” 16

II.

THERE IS NEITHER A “JURISDICTIONAL CRISIS”

NOR A CONFLICT IN DECISIONAL LAW WARRANT- |

ING THE EXERCISE OF THIS COURT’S DISCRETION-

ARY JURISDICTION

Alaska’s claim (Pet. 8-13) of a “jurisdictional crisis”

rests upon a mischaracterization of the effect of the

Alaska Supreme Court’s “conflicting” decision in Totemoff

v. State, 905 P.2d 954 (1995) (Pet. App. 25). Contrary to

petitioner’s assertions, Alaska is not “bound to follow” |

(Pet. 9) the Totemoff dictum, for the simple reason that the

state court has not purported to direct the State to do |

anything, much less contravene a federal court order

entered in a case in which Alaska is a voluntary party.

The “conflicting” portion of the Alaska Supreme Court's

Totemoff opinion, moreover, is entirely manufactured. The

Totemoff case itself (a criminal prosecution for “spotlight- .

ing deer”) presented no issue of whether federal reserved

16 In its rather perfunctory rejection of the district court's

holding on this point, the Ninth Circuit relied on its earlier

summary conclusion in City of Angoon v. Hodel, 803 F.2d 1016,

1027 n.6 (1986), cert. denied, 484 U.S. 870 (1987), that the United

States does not hold “title” to the navigational servitude. 72 F.3d

at 702-03 (Pet. App. 9-10). But the Angoon decision predated this

Court’s decision in Amoco Production Co. v. Village of Gambell, 480

U.S, 531, 548 n. 15 (1987), in which the Court made it clear that

technical fee title is not the sine qua non of ANILCA’s “public

lands” definition. See p. 17, supra.

25

waters constitute “public lands.” The only waters argua-

bly involved in that case were the marine waters of the

territorial sea, as to which the reserved-water-rights doc-

trine has no application. The Alaska court reached far

beyond the controversy before it - the court even ignored

a stipulation by the State to be bound by the outcome of

this federal litigation - for the sole apparent purpose of

orchestrating a “conflict” with the Ninth Circuit that

would induce this Court to grant review here.'” Fairly

assessed, the Totemoff decision creates no more of a “con-

flict” for purposes of this Court’s Rule 10 than would an

“opinion” of the Alaska Attorney General or, for that

matter, the State’s briefing in this case. Even the dissent-

ing judge below (72 F.3d at 704-08 (Pet. App. 14-24))

ignored the Alaska court's Totemoff decision, although the

State had brought the decision to the Ninth Circuit's

attention in support of its petition for rehearing. See App.

at 6a, infra.

1. As shown in the Statement (pp. 10-11, supra),

Alaska has been subject to a dual system of fish and

wildlife management since July 1, 1990: one established

by the Secretary to govern subsistence hunting and fish-

ing on the public lands; the other established by the State

to govern all hunting and fishing on non-public lands, as

well as non-subsistence hunting and fishing on public

lands (to the extent not pre-empted by federal law). As

the Totemoff case graphically illustrates, Alaskan subsis-

tence users are already subject to one or both of two

distinct management regimes, depending on whether

17 The procedural history of the Totemoff litigation is set

forth in the Appendix, pp. 1a-7a, infra.

ee ee

their hunting and fishing activities take place on or off

the public lands (or on both public and non-public lands).

If the State’s prediction of “jurisdictional chaos” (Pet. 22)

resulting from the judgment below had any merit, such

chaos would already exist - and there would be nothing

that this Court could do about it. Not only has the State

abandoned any challenge to the Secretary’s authority to

implement a federal subsistence program for the public

lands (see p. 13, supra), such a bifurcated management

scheme is expressly required by Title VIII, and results

altogether from the State’s inability or unwillingness to

comply with the conditions imposed by Congress. See pp.

6-8, supra. All that is involved in this case is the proper

identification of “public lands” as defined in ANILCA.

Regardless of the outcome here, some two-thirds of

Alaska will continue to be regulated by the federal sub-

sistence-management program. Whatever “chaos” (or

lack of it) such a system produces will continue.

The State, in all events, has greatly exaggerated the

consequences of dual management.!® For more than five

18 Typical of the State’s penchant for overstatement is its

reliance on the Prince William Sound herring sac roe fishery as

an example of the impossible situation created by the court

below. Pet. 12. This fishery takes place exclusively in the marine

waters of the territorial sea, not in inland rivers and streams (to

which these fish do not migrate). Nothing in the Ninth Circuit’s

holding respecting federal reserved waters will have any effect

of any kind on the State’s management of this fishery.

Similarly beside the point is the State’s emphasis (Pet. 13)

on the claim of private respondents and others that the

Secretary has the authority and obligation to regulate the uses of

migratory species off the public lands in order to assure the

priority for subsistence uses of those species when they move

eT

27

years subsistence users of highly migratory species such

as moose and caribou, and the animals themselves (which

move on and off the public lands at will), have been

subject to the dual federal/state management regime. See

also Pet. 11 n.4 (describing different federal and state

regulations governing subsistence hunting from boats).

This has not resulted in chaos. Moreover, the Alaska

Supreme Court (and to a lesser extent the State, see Pet.

20-21 & note 8) asserts that a “substantial” portion of the

State’s navigable waters are already properly regulated

by the federal program, and that “some subsistence fish-

ing takes place in non-navigable waters which are ‘public

lands.’ ” Totemoff, 905 P.2d at 968 & n.7 (Pet. App. 53).

Although there certainly have been a few “conflicts” over

the years, there is no evidence that either the people or

the fish and wildlife of Alaska have been harmed. Again,

however, to the extent this situation is deemed undesir-

able from the standpoint of good public policy, the State

holds the key to the solution: comply with the conditions

prescribed by § 805(d) of ANILCA, 16 U.S.C. § 3115(d). If

that solution is not desirable, the State should be petition-

ing Congress, not this Court.

2. The State also errs in its persistent attempts to

portray the Alaska court’s Totemoff decision as compelling

the State to defy the Ninth Circuit’s judgment. The

Alaska court did no such thing. Totemoff was a criminal

case involving a subsistence hunter who was charged

under state law with using a spotlight to aid in the

on to the public lands. This claim has not yet been decided, but

it has nothing to do with the scope of “public lands.”

28

shooting of a deer on a federal island in Prince William

Sound from a boat situated in marine waters. Totemoff,

905 P.2d at 957 (Pet. App. 25). The principal issue was

whether the State’s criminal jurisdiction was pre-empted

by ANILCA or implementing federal regulations. The

Alaska Supreme Court held that ANILCA did not pre-

empt the field of subsistence regulation on public lands,

and that in that case there was no actual conflict between

state regulation and any provision of ANILCA or a fed-

eral regulation. Id. at 958-61 (Pet. App. 26-36).'% These

holdings were dispositive of the issue of state jurisdic-

tion. Nonetheless, the court proceeded, on the arguendo

assumption that these holdings were unsound, to pursue

the theory that the State would still have jurisdiction “if

ANILCA does not apply to the navigable waters from

which Totemoff shined his spotlight at the deer.” Id. at

961 (Pet. App. 36). But as previously noted, the “naviga-

ble waters” in question were part of the territorial sea

and the Ninth Circuit below had already foreclosed the

possibility that the marginal sea would be subject to the

federal subsistence program by rejecting the district

court’s holding that the navigational servitude constitu-

ted “public lands.” Rather than simply note that fact, or

even express its independent agreement with the Ninth

Circuit on the point, the Alaska court reached out to

argue that the federal court erred in concluding that

1% The Totemoff court’s construction of the pre-emptive

scope of Title VIII of ANILCA would appear to conflict with

prior decisions of the Ninth Circuit. See United States v.

Alexander, 938 F.2d 942 (9th Cir. 1991); Kenaitze Indian Tribe v.

Alaska, 860 F.2d 312, 313 n.1 (9th Cir. 1988), cert. denied, 491 U.S.

905 (1989). But that issue is not in any way involved in this case.

ac neaeisiniicannaeinicaliiiaiaiisls

29

federally reserved waters are included within ANILCA’s

definition of “public lands.” Id. at 962-68 (Pet. App.

36-53). The court did this without the benefit of adver-

sarial briefing, despite the State's stipulation to be bound

by the outcome in federal court, and even though the

reserved-waters issue had no bearing on the case at hand.

See App. at 2a-7a, infra. This is the purest form of obiter

dictum, engaged in for no apparent purpose other than to

manipulate this C. urt’s certiorari jurisdiction. The Court

should decline the gambit.

In any event, there is nothing in the Totemoff case that

requires the State to do anything. The State is a party to

the instant case, and it is bound by the decision below.

That judgment directs the Secretary to identify federally

reserved inland waters and to extend ANiLCA’s protec-

tion to subsistence fishing by rural Alaska residents on

those waters. “Jurisdictional chaos” most certainly will

not ensue. Alaska will continue to regulate sport and

commercial fisheries in those (and all other) waters in the

State; only to the extent that those non-subsistence fish-

eries deprive rural subsistence users of their customary

and traditional fishing opportunities on the public lands

will State regulation be subject to pre-emption —- as it

already is with respect to the majority of subsistence

hunting and some subsistence fishing.?°

*

20 The Alaska Supreme Court has acknowledged that any

federal regulations that actually conflict with State regulations

will pre-empt the State regulations. Totemoff, 905 P.2d at 960-61

(Pet. App. 32-36)

30

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

HeaTHER R. KENDALL

Counsel of Record

LAWRENCE A. ASCHENBRENNER

Native AMERICAN RiGHTs FUND

310 K Street, Suite 708

Anchorage, Alaska 99501

(907) 276-0680

Wituam E. CALDWELL

Of Counsel

1648 Cushman Street, #300

Fairbanks, Alaska 99701

(907) 452-5181

la

APPENDIX

CHRONOLOGY OF THE ALASKA SUPREME

COURT’S DISPOSITION IN TOTEMOFF v. STATE

23 December 1993, Totemoff v. State, No. A-4276, 866

P.2d 125 (Alaska App.). The Alaska Court of Appeals,

while upholding the trial court’s finding of fact that

Totemoff’s alleged game violations (spotlighting deer)

occurred on federal public lands (id. at 126 n.3), also

upheld his conviction on the ground that the State’s

concurrent jurisdiction over federal lands was not gener-

ally pre-empted by ANILCA, and that there was no actual

conflict between the applicable State and federal regula-

tions. (Totemoff was charged with taking deer on Naked

Island (federally owned) in Prince William Sound with

the aid of a spotlight from a boat in the territorial sea.)

The Court of Appeals did not address any Katie John/

Alaska v. Babbitt issue, and indeed did not even mention

those pending federal cases, inasmuch as the State’s Brief

of Appellees (2 Feb. 1993), at 12 n.9, had urged the court

to abstain from deciding any of those issues in deference

to their ongoing adjudication in the federal-court cases in

which the State was a party, one of which (Alaska v.

Babbitt) it had initiated.

11 February 1994. Totemoff filed his Petition for

Hearing, No. S-6151, asking the Alaska Supreme Court to

review the Totemoff decision of the court of appeals. The

petition raised no Katie John issue, and alluded to none, in

view of the fact that both lower courts had found as fact

that the offense alleged by the State occurred on federal

land. The State’s Response and Opposition to Petition for

Hearing (3 March 1994) likewise made no mention of any

Katie John issue.

2a

30 March 1994. Chief Federal District Judge Holland

filed his decision in the consolidated cases of Katie John v.

United States (1990) and Alaska v. Babbitt (1992) on the

issues of “who” should be affording the ANILCA subsis-

tence priority on federal lands and waters (the federal

government or the State) and “where” (on any or all

navigable waters) beyond federal fast-lands that priority

extended. Judge Holland held that the federal govern-

ment had properly assumed subsistence-management

authority over the public lands in 1990, and that the

priority extends to all navigable waters in Alaska by

reason of the navigational servitude of the United States.

18 April 1994, Totemoff v. State, No. S-6151. The

Alaska Supreme Court entered an order granting the

Totemoff petition for review and specifying three issues to

be addressed by the parties:

A. Whether the prosecution is “subject to a

defense that spotlighting is a ‘customary and

traditional’ method of taking game which is pro-

tected under ANILCA?”

B. “If the answer to the above question is

in the affirmative, is there a sufficient non-

federal nexus in this case to sustain the convic-

tion solely under Alaska law?”

C. “With respect to question B above, is

the State precluded by the [Katie John] decision

from contending that tidelands or lands under

navigable water within tne three-mile limit are

not subject to ANILCA?”

Although the latter two questions related to Katie John,

they were to be answered only if the first question

(whether ANILCA protects customary and traditional

3a

methods of taking wildlife) was answered in the affirma-

tive. No issue was raised by either the Court or the

parties pertaining to federally reserved waters.

17 May 1994, Katie John & Alaska v. Babbitt. The Ninth

Circuit granted the petitions of the State and the federal

government for leave to take an interlocutory appeal

from Judge Holland’s Katie John decision.

28 June 1994, Totemoff v. State, No. S-6151. Counsel

for the State and Totemoff filed with the Alaska Supreme

Court a “Stipulated Request for Stay” asking the court to

stay further proceedings in Totemoff until the Ninth Cir-

cuit had decided the State’s appeal in Katie John and until

any ensuing petitions for review by this Court had been

resolved. In addition to noting the status of the Katie John

appeal, the State and Totemoff stated: “Despite the fact

that John may not reach final resolution in federal court

until sometime in 1995 and possibly later, both parties

stipulate and agree that this Court should stay this pro-

ceeding until these critical issues are finally resolved in

federal court.”

5 July 1994, Totemoff v. State, No. S-6151. The Alaska

Supreme Court entered an order granting the parties’

request to stay all proceedings in Totemoff “pending a

decision by the federal court.” The court directed the

parties “to advise the clerk as soon as a decision is made

by the federal court.”

8 February 1995. The Ninth Circuit heard oral argu-

ment on the remaining (“where”) issues in Katie John and

Alaska v. Babbitt (i.e., whether ANILCA’s subsistence pri-

ority applies to navigable waters by virtue of either the

navigational servitude or federal reserved water rights).

4a

17 February 1995, Totemoff v. State, No. S-6151.

Although no party had asked it to do anything, the

Alaska Supreme Court sua sponte issued an order vacat-

ing the 5 July 1994 stay and directing that briefing pro-

ceed forthwith on an expedited basis. Totemoff filed his

brief on 31 March, and the State filed its brief on 20 April.

Neither brief contained any argument on the issue of

whether federal reserved water rights constitute “public

lands” under ANILCA. The only mention of the issue was

in the State’s Brief of Respondent, at 23 n.10, where the

State pointed out that the reserved-water-rights doctrine

can have no application to the ocean.

20 April 1995, Katie John v. United States & Alaska v.

Babbitt, 54 F.3d 549 (9th Cir.) (9th Cir. Nos. 94-35480 &

-35481). The Ninth Circuit decided the remaining Katie

John issues, holding that the navigational servitude does

not make all of Alaska’s navigable waters federal public

lands to which ANILCA’s priority for subsistence fishing

therefore applies, but that federally reserved waters

appurtenant to congressional and executive reservations

of the public domain in Alaska do constitute such “public

lands,” that is, “lands, waters and interests therein the

title to which is in the United States.” That same day the

State filed a copy of the Ninth Circuit’s decision with the

Alaska Supreme Court, along with a letter asserting that

the Ninth Circuit’s rejection of the navigational servitude

as a basis for ANILCA jurisdiction disposed of any possi-

bility that Totemoff’s boat was on public lands, since

federal reserved water rights apply only to inland waters.

(Totemoff then moved to strike the cover letter because it

contained argument.)

5a

24 May 1995, Totemoff v. State, No. S-6151. The Alaska

Supreme Court entered an order striking the State’s cover

letter, but allowing the State to file “a short supplemental

brief” concerning the Ninth Circuit’s decision within

three days, and allowing Totemoff to file a short response

within five days thereafter. The State seized the oppor-

tunity to file a 15-page brief in 26 May contending that

the Ninth Circuit’s decision was wrong about the nature

and scope of federally reserved waters in relation to

ANILCA’s definition of public lands. In his responsive

brief filed on 31 May, defendant Totemoff (whom the two

lower courts had found to have committed the offense

charged by the State on federal fast-lands) argued that

the court had no business reviewing the Ninth Circuit's

decision, which did not affect him either way and to

which the State had voluntarily bound itself (and in any

event was bound by the common law of collateral estop-

pel); he also argued that the court should not reach out to

decide the issue in the absence of the federal government

being a party to the case. Totemoff made no effort to brief

the correctness of the Ninth Circuit’s decision which he

deemed immaterial to his case.

8 June 1995. Although no one had asked for an

expedited hearing, much less accelerated briefing

(Totemoff had received no jail time), the Alaska Supreme

Court scheduled and heard oral argument shortly after

the last supplemental brief was filed.

7 August 1995, Totemoff v. State, No. S-6151, Slip

Opinion No. 4236 (Alaska). Within an unprecedented

6a

sixty days of oral argument,' the Alaska Supreme Court

filed its “opinion,” reaching out and (unnecessarily)

deciding that the Ninth Circuit had committed error with

respect to a number of federal questions related to feder-

ally reserved waters that had not been subjected to adver-

sarial briefing and argument in the Totemoff case - and

that were not even presented by the controversy at hand.

The court first held that ANILCA did not pre-empt State

criminal jurisdiction in the context at bar, in part because

it did not protect hunting methods. Slip op. at 3-12.

Although that holding was dispositive, the court then

proceeded at length to argue that the Ninth Circuit was

wrong in its reserved-waters ruling. Slip op. at 12-31.

8 August 1995, Katie John v. United States & Alaska v.

Babbitt, 9th Cir. Nos. 94-35480 & -35481. The Ninth Circuit

panel entered an order denying the State’s petition for

rehearing and rejecting its suggestion for rehearing en

banc. Pet. App. 55. (On this same day, the State filed with

the Ninth Circuit a copy of the Alaska Supreme Court’s

Totemoff opinion as supplemental authority in support of

the petition for rehearing.)

1 The Alaska Attorney General publicly speculated that the

Court was trying to lend the State a hand in its federal Katie John

litigation:

My suspicion is that the court wanted to get the

opinion out as quickly as possible so the (federal

appeals court) would have a chance to see it before it

ruled on the reconsideration issue. Unfortunately, we

didn’t beat the clock.

Anchorage Daily News, p. A-1, 9 August 1995.

eT

7a

10 August 1995, Katie John v. United States & Alaska v.

Babbitt, 9th Cir. Nos. 94-35480 & -35481. The Ninth Circuit

entered an order withholding issuance of its mandate.

19 August 1995. Full jurisdiction over the Totemoff

case returned to the State trial court pursuant to ALAsKa

Rute oF AppeLtLATE Procepure 507.

30 August 1995, Katie John v. United States & Alaska v.

Babbitt, 9th Cir. Nos. 94-35480 & -35481. The Ninth Circuit

entered an order requesting the parties to submit supple-

mental five-page letter briefs addressing the “public

lands” analysis in the Alaska Supreme Court’s Totemoff

opinion of 7 August.

20 October 1995, Totemoff v. State, No. S-6151, Cor-

rected Slip Opinion No. 4276, 905 P.2d 954 (Alaska) (Pet.

App. 25). Although jurisdiction over the case had long

since returned to the trial court, the Alaska Supreme

Court sua sponte entered an order withdrawing its 7

August opinion and replacing it with a “corrected” opin-

ion. The order explained that “the corrections are found

in the last full paragraph on page 18 and in the first full

paragraph on page 26.” Page 8a, infra. (These paragraphs,

as they appeared in the original 7 August opinion are set

forth at pp. 8a-9a, infra. Compare with Pet. App. 41 & 49

(905 P.2d at 963 & 967).)?

2 According to defendant Totemoff’s petition for rehearing,

filed with the Alaska Supreme Court on 30 October 1995, the

“corrected” opinion was the product of the court (even though it

no longer had jurisdiction of the case) having obtained, ex parte

from counsel for the State, copies of the letter briefs the federal-

court parties had filed with the Ninth Circuit.

8a

ORDER FILED 20 OCTOBER 1995 IN

TOTEMOFF v. STATE

(ALASKA SUPREME COURT NO. S-6151)

Before: Compton, Chief Justice, Rabinowitz, Matthews,

Moore, and Eastaugh, Justices.

IT IS ORDERED, SUA SPONTE:

1. Opinion No. 4236 issued in this case on August 7,

1995, is WITHDRAWN.

2. Corrected Opinion No. 4276 is issued today in its

place. The corrections are found in the last full paragraph

on page 18 and in the first full paragraph on page 26.

Entered by direction of the court at Anchorage,

Alaska on October 20, 1995.

CLERK OF THE

SUPREME COURT

/s/ Jan Hansen

JAN HANSEN

EXCERPTS FROM PAGES 18 AND 26 OF SLIP OP.

NO. 4236 FILED 7 AUGUST 1995 IN

TOTEMOFF v. STATE

(ALASKA SUPREME COURT NO. S-6151)

*e 2 *

For a number of reasons, we find that neither the

navigational servitude nor reserved water rights bring

navigable waters within ANILCA’s definition of “public

lands,” and that the federal government has no authority

9a

to regulate hunting and fishing in Alaska’s navigable

waters. [Slip op. at 18.]

*ne 2

Fifth, the navigational servitude is derived from the

Commerce Clause, see Cherokee Nation, 480 U.S. at 704,

and the power to reserve water rights comes from the

Commerce and Property Clauses. Cappaert, 426 US. at

138. Neither of these clauses gives Congress the authority

to regulate subsistence hunting and fishing on state land

or water. Cf. United States v. Lopez, 115 S. Ct. 1624 (1995)

(Commerce Clause does not give Congress authority to

ban possession of firearms in school zones). Thus, neither

the navigational servitude power to regulate for naviga-

tion purposes nor the power to reserve water rights can

grant the federal government jurisdiction to manage

hunting and fishing in navigable waters. The two powers

are over navigation and water, not fish and game. [Slip

op. at 26.]