John v. United States
| Decision Date | 05 July 2013 |
| Docket Number | 09–36125,No. 09–36122,09–36127.,09–36122 |
| Citation | 720 F.3d 1214 |
| Parties | Katie JOHN; Charles Erhart; Alaska Inter–Tribal Council; Native Village of Tanana; State of Alaska, Plaintiffs, and Alaska Fish and Wildlife Conservation Fund; Alaska Fish and Wildlife Federation and Outdoor Council; John Conrad; Michael Tinker, Plaintiffs–Intervenors–Appellants, v. UNITED STATES of America; Mike Johanns; Sally Jewell, Secretary of the Interior, Defendants–Appellees, Alaska Federation of Natives, Defendant–Intervenor–Appellee. Katie John; Charles Erhart; Alaska Inter–Tribal Council; Native Village of Tanana, Plaintiffs, Alaska Fish and Wildlife Conservation Fund; Alaska Fish and Wildlife Federation and Outdoor Council; John Conrad; Michael Tinker, Plaintiffs–Intervenors, and State of Alaska, Plaintiff–Appellant, v. United States Of America; Mike Johanns; Sally Jewell, Secretary of the Interior, Defendants–Appellees, Alaska Federation of Natives, Defendant–Intervenor–Appellee. Katie John; Charles Erhart; Alaska Inter–Tribal Council; Native Village of Tanana, Plaintiffs–Appellants, and State of Alaska, Plaintiff, Alaska Fish and Wildlife Conservation Fund; Alaska Fish and Wildlife Federation and Outdoor Council; John Conrad; Michael Tinker, Plaintiffs–Intervenors, v. United States of America; Mike Johanns; Sally Jewell, Secretary of the Interior, Defendants–Appellees, Alaska Federation of Natives, Defendant–Intervenor–Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Michael G. Mitchell (argued), Michael W. Sewright, Assistant Attorneys General, Anchorage, AK; William P. Horn and James H. Lister, Birch, Horton, Bittner, and Cherot, Washington, D.C., for Appellant State of Alaska.
Will Sherman for Appellants Alaska Fish and Wildlife Federation and Outdoor Council, Alaska Fish & Wildlife Conservation Fund, Michael Tinker, and John Conrad.
Heather Kendall–Miller (argued), Native American Rights Fund, Anchorage, AK, for Appellants Katie John, Charles Erhart, Alaska Inter–Tribal Council, and Native Village of Tanana.
Elizabeth Ann Peterson (argued), United States Department of Justice, Environmental & Natural Resources Division, Washington, D.C., for Appellees United States of America, Mike Johanns and Sally Jewell.
Robert T. Anderson (argued), University of Washington School of Law, Seattle, WA, for Appellee Alaska Federation of Natives.
Peter J. Ampe, First Assistant Attorney General, Federal and Interstate Water Unit, Denver, CO, for Amicus Curiae State of Colorado; Stephen R. Farris, Assistant Attorney General, Director, Water, Environment, and Utilities Division, Santa Fe, NM, for Amicus Curiae State of New Mexico; Peter K. Michael, Senior Assistant Attorney General, Cheyenne, WY, for Amicus Curiae State of Wyoming.
Appeal from the United States District Court for the District of Alaska, H. Russel Holland, Senior District Judge, Presiding. D.C. Nos. 3:05–cv–00006–HRH, 3:05–cv–00158–HRH.
Before: WILLIAM C. CANBY, JR., ANDREW J. KLEINFELD, and CONSUELO M. CALLAHAN, Circuit Judges.**
These consolidated appeals concern the 1999 Final Rules (“1999 Rules”) promulgated by the Secretary of the Interior and the Secretary of Agriculture (“Secretaries”) to implement part of the Alaska National Interest Lands Conservation Act (“ANILCA”).1 The 1999 Rules identify which navigable waters within Alaska constitute “public lands” under Title VIII of ANILCA, which provides a priority to rural Alaska residents for subsistence hunting and fishing on such lands. Plaintiffs–Appellants Katie John, et al., argue that the 1999 Rules sweep too narrowly, in that they fail to designate certain navigable waterways as “public lands” subject to the federal rural subsistence priority. Plaintiff–Appellant the State of Alaska argues that the 1999 Rules sweep too broadly, in that they include as “public lands” subject to the priority waters in which no federal interest exists. The district court upheld the 1999 Rules against both sets of challenges. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Congress enacted ANILCA to preserve and protect “nationally significant natural, scenic, historic, archeological, geological, scientific, wilderness, cultural, recreational, and wildlife values” and landscapes by creating “conservation system units,” such as national parks, preserves, and other federal reservations.2 Congress also sought to protect the “subsistence way of life for rural residents” and the resources upon which they depend, as well as to obviate the need for future legislation regarding environmental conservation and subsistence uses.3
To protect the “subsistence way of life for rural residents,” Title VIII of ANILCA provides that, “[e]xcept as otherwise provided in this Act and other Federal laws, the taking on public lands of fish and wildlife for nonwasteful subsistence uses shall be accorded priority over the taking on such lands of fish and wildlife for other purposes.” 4 “Subsistence uses” are defined as “customary and traditional uses by rural Alaska residents of wild, renewable resources....” 5 This federal subsistence priority for rural Alaska residents therefore applies to all “public lands,” which ANILCA defines as “land situated in Alaska which, after December 2, 1980, are Federal lands,” except, as pertinent here, “land selections of the State of Alaska which have been tentatively approved or validly selected under the Alaska Statehood Act and lands which have been confirmed to, validly selected by, or granted to the Territory of Alaska or the State under any other provision of Federal law,” and “land selections of a Native Corporation made under the Alaska Native Claims Settlement Act which have not been conveyed to a Native Corporation, unless any such selection is determined to be invalid or is relinquished.” 6 Federal lands are “lands the title to which is in the United States after December 2, 1980,” and “land” is “lands, waters, and interests therein.” 7ANILCA gives rural subsistence uses “priority over the taking on such lands of fish and wildlife for other purposes.” 8 When it is “necessary to restrict the taking of populations of fish and wildlife on such lands for subsistence uses in order to protect the continued viability of such populations, or to continue such uses,” implementation of such restrictions is subject to a set of criteria.9
ANILCA charges the Secretaries with implementing its rural subsistence priority in Alaska.10 However, ANILCA states that the Secretaries should not take action to implement Title VIII if Alaska “enacts and implements laws of general applicability which are consistent with” ANILCA's rural subsistence priority requirements.11 In other words, ANILCA expresses a preference for state management of the rural subsistence priority on “public lands,” but provides that the United States may step in where the State fails to act.12
Persons aggrieved by an alleged failure to enforce the rural subsistence priority are authorized to “file a civil action in the United States District Court for the District of Alaska to require such actions to be taken as are necessary to provide for the priority.” 13
Alaska had addressed subsistence uses before ANILCA's passage, and had taken steps to assume the management responsibility that ANILCA contemplated. A 1978 state law, passed in anticipation of ANILCA becoming law, established “that subsistence hunting and fishing had priority over other uses of fish and game stocks.” 14 The statute identified two tiers of subsistence users based on customary and direct dependence, local residency, and availability of alternative resources.15 The state Joint Boards of Fish and Game issued regulations linking subsistence fishing to particular geographic communities,16 and eventually introducing a rural element to the subsistence preference.17 The regulations initially treated towns with fewer than 7,000 people as “rural.” 18 In 1982, the Secretary of the Interior certified Alaska to manage subsistence hunting and fishing on public lands, as ANILCA and the Alaska legislature had intended.
However, in 1985, the Alaska Supreme Court held in Madison19 that the regulations linking subsistence fishing to particular geographic communities were inconsistent with Alaska's subsistence statute. The court reasoned that the statutory preference was for subsistence users, whether or not they were rural.20 Many Alaskans depend heavily on wild fish and game for their protein, whether they live in isolation or in villages, small towns, or cities. The Secretary of the Interior notified the Governor of Alaska that Madison's holding “raised questions as to the continuing eligibility of the State to manage subsistence on public lands in Alaska,” and that Alaska had until June 1, 1986 to “revise its subsistence program to bring it back into compliance” with ANILCA's rural subsistence priority requirement. 21
In response, the Alaska legislature amended the state subsistence statute to expressly limit the definition of subsistence activities to those “ ‘domiciled in a rural area of the state.’ ” 22 The amended statute defined a “rural area” as “ ‘a community or area of the state in which the noncommercial, customary, and traditional use of fish or game for personal or family consumption is a principal characteristic of the economy of the community or area.’ ” 23
Under the amended statute, the State did not treat the Kenai peninsula as rural because it had Sears and Safeway stores and shopping malls. That is, Alaskans tended to use the word “rural” to refer to areas off the road system, rather than sparsely populated agricultural areas, there being few roads and little agriculture in Alaska.24 Accordingly, Alaska law had provided a subsistence priority to people who largely depended on...
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Case summaries.
...the inclusion of the fish and wildlife cost estimate. Alaska National Interest Lands Conservation Act John v. United States, 720 F.3d 1214 (9th Cir. This litigation concerned two consolidated challenges to the 1999 Final Rules (1999 Rules), which regulate the implementation of the Alaska Na......