State of Alaska v. Babbitt, s. 94-35480

• Citation: 54 F.3d 549
• Decision Date: 20 April 1995
• Docket Number: 94-35481,Nos. 94-35480,s. 94-35480
• Parties: 25 Envtl. L. Rep. 21,043 STATE OF ALASKA, Plaintiff-Appellant, v. Bruce BABBITT, Secretary of the Interior, et al., Defendants-Appellees. Katie JOHN, et al., Plaintiffs-Appellees, v. UNITED STATES of America, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 549

54 F.3d 549

25 Envtl. L. Rep. 21,043

STATE OF ALASKA, Plaintiff-Appellant, v. Bruce BABBITT, Secretary of the Interior, et al.,

Defendants-Appellees.

Katie JOHN, et al., Plaintiffs-Appellees, v. UNITED STATES of America, et al., Defendants-Appellants.

Nos. 94-35480, 94-35481.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 8, 1995.

Decided April 20, 1995.

Joanne M. Grace, Asst. Atty. Gen., Anchorage, AK, for plaintiff-appellant-plaintiffs-appellees.

Elizabeth Ann Peterson, U.S. Dept. of Justice, Washington, DC, for defendants-appellees-defendants-appellants, Robert T. Anderson, Native American Rights Fund, Anchorage, AK, defendant-appellee-plaintiff-appellee.

Richard L. Young, Albuquerque, NM, for Peratrovich, et al., as amici curiae.

Michael A.D. Stanley, Juneau, AK, and Marc D. Slonim, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA, for Peninsula Marketing Association, et al., as amici curiae.

Clive J. Strong, Deputy Atty. Gen., Boise, ID, for States of Ariz., Cal., Idaho, Mont., Nev., and Or., as amici curiae.

Carol H. Daniel, Alaska Legal Services Corp., Anchorage, AK, for Native Village of Quinhagak, et al., as amici curiae.

Appeals from the United States District Court for the District of Alaska.

Before: WRIGHT, HALL and WIGGINS, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

These appeals arise from the efforts of Katie John, Doris Charles and the other upper Ahtna Athabaskan Indians of Mentasta Village to continue subsistence fishing at Batzulnetas as they and their ancestors have done since time immemorial. ¹ The fishery at Batzulnetas lies near the confluence of Tanada Creek and the Copper River and within Wrangell-St. Elias National Park. They also involve the claim by the state of Alaska that the Secretaries of the Interior and Agriculture, on behalf of the federal government, are attempting to exercise too much control over fish and wildlife management within the state.

The Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. Sec. 3101 et seq., requires that subsistence fishing and hunting be given a priority over other uses of fish and wildlife on "public lands." The sole issue remaining in this appeal concerns the meaning of the definition of public lands in Sec. 102 of ANILCA. 16 U.S.C. Sec. 3102. ² Specifically, the parties dispute whether navigable waters fall within the statutory definition of public lands and are thus subject to federal management to implement ANILCA's subsistence priority. ³

The district court adopted a highly expansive definition of public lands, holding that the subsistence priority applies to all Alaskan waters subject to the federal navigational servitude. We disagree. Instead, we hold that the subsistence priority applies to navigable waters in which the United States has reserved water rights. We hold also that the federal agencies that administer the subsistence priority are responsible for identifying those waters. We therefore reverse and remand to the district court for further proceedings consistent with this opinion.

I. BACKGROUND

In 1958, Congress preserved aboriginal fishing rights in the Statehood Act. Act of July 7, 1958, Pub.L. 85-508, Sec. 4, 72 Stat. 339. But in 1960, after assuming responsibility for fish and wildlife management, the state closed the fishery at Batzulnetas and other traditional subsistence fisheries. In 1971, Congress extinguished aboriginal fishing rights. 43 U.S.C. Sec. 1603(b).

Congress expected that the state and the federal agencies would protect subsistence hunting and fishing. 1971 U.S.C.C.A.N. 2192, 2247, 2250. In 1980, frustrated with their failure to do so, Congress enacted ANILCA. Title VIII of ANILCA required that rural Alaska residents be accorded a priority for subsistence hunting and fishing on public lands. 16 U.S.C. Secs. 3113, 3114. Pursuant to Sec. 805(d) of ANILCA, 16 U.S.C. Sec. 3115(d), Congress gave the state authority to implement the rural subsistence preference by enacting laws of general applicability consistent with ANILCA's operative provisions. In anticipation of ANILCA's passage, the state enacted laws consistent with Title VIII which gave rural residents a subsistence priority. In 1982, after Congress enacted ANILCA, the Secretary of the Interior certified the state to manage subsistence hunting and fishing on public lands.

Congress could not have anticipated the next chain of events. In 1989, the Alaska Supreme Court struck down the state act granting the rural subsistence preference as contrary to the Alaska state constitution. McDowell v. Alaska, 785 P.2d 1 (Alaska 1989). It stayed its decision to give the legislature an opportunity to amend the constitution or otherwise bring its program into compliance with ANILCA. The legislature, however, failed to act during either its regular or special session.

In 1990, the federal government withdrew Alaska's certification and took over implementation of Title VIII. The Secretary of the Interior, on behalf of all concerned federal agencies, published temporary subsistence management regulations that adopted a very narrow definition of public lands, explaining that "navigable waters generally are not included within the definition of public lands." 55 Fed.Reg. 27,114, at 27,115 (June 29, 1990). The final regulations did not differ significantly. See 57 Fed.Reg. 22,940, at 22,942 (May 29, 1992).

Katie John and the state brought separate actions against the federal agencies; Katie John challenged the regulations that provided that public lands excluded navigable waters and the state challenged the federal government's authority to regulate in this area at all. The district court ordered these actions consolidated and that other actions raising similar issues be jointly managed. ⁴ After consulting with counsel for the parties in the jointly managed cases, the district court decided to address the fundamental issue of whether navigable waters are public lands before resolving other issues. ⁵

Katie John argued that public lands include virtually all navigable waters, by virtue of the federal navigational servitude. The state contended that public lands exclude navigable waters. Prior to oral argument before the district court, the federal agencies agreed with the state. But at oral argument, those agencies modified their position, arguing that public lands include those navigable waters in which the federal government has an interest under the reserved water rights doctrine.

On cross-motions for summary judgment, the district court concluded that public lands include all navigable waters encompassed by the navigational servitude. Subsequently, the district court stayed its decision and certified for interlocutory appeal the issue of whether public lands include navigable waters. ⁶ Both the state and the federal agencies appeal.

II. ANALYSIS

We consider two questions when we review an agency's construction of a statute that it administers. Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). First, we consider "whether Congress 'has directly spoken to the precise question at issue' either in the statute itself or in the legislative history." Railway Labor Executives' Ass'n v. ICC, 784 F.2d 959, 963 (9th Cir.1986) (quoting Chevron, 467 U.S. at 842, 104 S.Ct. at 2781). Second, if Congress has not directly spoken to that precise question, we consider "whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 843, 104 S.Ct. at 2782.

Under ANILCA, "the term 'public lands' means land situated in Alaska which ... are Federal lands." 16 U.S.C. Sec. 3102(3). "The term 'Federal land' means lands the title to which is in the United States." 16 U.S.C. Sec. 3102(2). And "[t]he term 'land' means lands, waters, and interests therein." 16 U.S.C. Sec. 3102(1). In other words, public lands are lands, waters, and interests therein, the title to which is in the United States. Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 548 n. 15, 107 S.Ct. 1396, 1405-06, n. 15, 94 L.Ed.2d 542 (1987).

As noted above, the parties dispute whether navigable waters are public lands. At one extreme, the state maintains that ANILCA's definition of public lands excludes all navigable waters because the federal government does not hold title to them by virtue of the navigational servitude or the reserved water rights doctrine. At the other extreme are Katie John and amici curiae Peratrovich Plaintiffs who argue that all navigable waters are public lands. Katie John says this is so because the navigational servitude defines the scope of public lands. The Peratrovich Plaintiffs say this is so because, in ANILCA, Congress expressed its intent to exercise its Commerce Clause powers to regulate subsistence fishing in navigable waters. ⁷ In the middle are federal agencies contending that public lands include certain navigable waters, defined by the reserved water rights doctrine. ⁸

ANILCA's language and legislative history indicate clearly that Congress spoke to the precise question of whether some navigable waters may be public lands. They clearly indicate that subsistence uses include subsistence fishing. See, e.g., 16 U.S.C. Sec. 3113. And subsistence fishing has traditionally taken place in navigable waters. Thus, we have no doubt that Congress intended that public lands include at least some navigable waters. ⁹

Unfortunately, ANILCA's language and legislative history do not give us the clear direction necessary to find that Congress spoke to the precise question of which navigable waters are public lands. ANILCA itself refers only to "lands, waters, and interests therein, the title to which is in the United States." It makes no reference to navigable waters. The legislative history is also unhelpful, containing only a single reference to navigable waters. See 126 Cong.Rec. 20278-80 (Nov. 12, 1980) ...