ELR Citation: ELR 21043
No(s). s. 94-35480, -35481 (9th Cir. Apr 20, 1995)

The court holds that among navigable waters, only those in which the United States has reserved water rights fall within the Alaska National Interest Lands Conservation Act's (ANILCA's) definition of "public lands" for purposes of the subsistence fishing and hunting priority that ANILCA establishes on public lands in Alaska. The court first holds that "public lands" under ANILCA are lands, waters, and interests therein, the title to which is in the United States. The court next holds that Congress intended that public lands include at least some navigable waters, because ANILCA's language and legislative history clearly indicate that subsistence uses include subsistence fishing, and because subsistence fishing has traditionally taken place in navigable waters. The court holds, however, that ANILCA leaves unclear which specific navigable waters are public lands. The court next rejects the argument that the navigational servitude is an interest the title to which is in the United States such that all navigable waters are public lands within ANILCA's meaning. The court has previously held that the navigational servitude is not "public land" because the United States does not hold title to it. The court next holds that Congress did not express its intent to exercise its Commerce Clause powers to regulate subsistence fishing in all Alaskan navigable waters. Although Congress explicitly invoked its authority to protect and provide the opportunity for continued subsistence uses on public lands, its invocation of that authority is also consistent with an implicit reservation of waters under the reserved water rights doctrine. Further, a senator's statement in the legislative history that public lands include all navigable waters throughout Alaska is entitled to little weight because he inserted it into the record after the Senate had passed ANILCA and the House had debated it. The court next holds that the federal agencies' conclusion that public lands include those navigable waters in which the United States has an interest by virtue of the reserved water rights doctrine is reasonable. The United States has reserved vast parcels of land in Alaska for federal purposes. It has also implicitly reserved appurtenant waters, including navigable waters, to the extent needed to accomplish the purposes of those reservations. Thus, the United States has interests in some navigable waters, and, consequently, public lands subject to subsistence management under ANILCA include certain navigable waters. The court finally holds that the federal agencies that administer the subsistence priority are responsible for identifying those waters.

Counsel for Plaintiff
Joanne M. Grace, Ass't Attorney General
Attorney General's Office
1031 W. 4th St., Ste. 200, Anchorage AK 99501
(907) 269-5100

Counsel for Defendants
Elizabeth A. Peterson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Wright, Hall and Wiggins, JJ.