case: 09-36122 08/20/2010 page: 1 of 82 id: 7447177 ...washington, d.c. 20240 andrew c. mergen...

Nos. 09-36122, 09-37125, 09-36127

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

______________

KATIE JOHN, CHARLES ERHART, ALASKA INTER-TRIBAL COUNCIL, and VILLAGE OF TANANA,

Plaintiffs-Appellantsv.

UNITED STATES OF AMERICA, TOM VILSACK and KENNETH SALAZARDefendants-Appellees

and

STATE OF ALASKAIntervenor Defendant-Appellee

_____________________

STATE OF ALASKA, Plaintiff-Appellant

andALASKA FISH AND WILDLIFE CONSERVATION FUND,

ALASKA FISH and WILDLIFE FEDERATION and OUTDOOR COUNCIL, JOHN CONRAD and MICHAEL TURNER

Intervenor-Plaintiffs-Appellantsv.

UNITED STATES OF AMERICA, TOM VILSACK and KENNETH SALAZARDefendants-Appellees

andKATIE JOHN, CHARLES ERHART,

ALASKA INTER-TRIBAL COUNCIL, and VILLAGE OF TANANA,Intervenor-Defendants-Appellees

andALASKA FEDERATION OF NATIVES

Intervenor-Defendant-Appellee________________________

ANSWERING BRIEF FOR THE FEDERAL APPELLEES______________________

Of counsel: IGNACIA S. MORENOJASON R. HARTZ Assistant Attorney GeneralOffice of the SolicitorU.S. Dept of the Interior DEAN K. DUNSMOREWashington, D.C. 20240 ANDREW C. MERGEN

ELIZABETH ANN PETERSONKEITH A. GOLTZ Attorneys Office of the Regional Solicitor Environment & Natural Res. Div.U.s. Dep’t of the Interior U.S. Dept. of JusticeAnchorage, AK 99508 P.O. Box 23795, L’Enfant Station

Washington, D.C. 20026JAMES J.USTASIEWSKI (202) 514-3888Office of the General CounselU.S. Dep’t of AgricultureJuneau, AK 99802

Case: 09-36122 08/20/2010 Page: 1 of 82 ID: 7447177 DktEntry: 38

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TABLE OF CONTENTSPage

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. The statutory framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. The Alaska v. Babbitt litigation . . . . . . . . . . . . . . . . . . . . . . . 8

C. The litigation below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1. Katie John’s Challenge . . . . . . . . . . . . . . . . . . . . . . . . 13

2. The State’s Challenge . . . . . . . . . . . . . . . . . . . . . . . . . 14

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

I. The District Court Correctly Concluded That the 1999Regulations Are Entitled to Substantial Deference . . . . . . 21

II. The 1999 Regulations Do Not Displace Any “Traditional”Method of Identifying Waters in Which the United StatesHolds Reserved Water Rights . . . . . . . . . . . . . . . . . . . . . . . 26

A. No “Established Adjudication Process” Exists forDetermining Which of the Navigable Waters in Alaska


ii

Are “Public Lands” by Virtue of the Existence ofFederal Reserved Water Rights . . . . . . . . . . . . . . . . . 29

B. The Regulations Do Not Affect State RegulatoryAuthority over Water Resources . . . . . . . . . . . . . . . . . 35

III. The Secretaries Reasonably Concluded That the WatersUpstream and Downstream from Federal Reserves Are Not“Public Lands” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

IV. The Secretaries Reasonably Concluded That the Existence ofWater Rights Appurtenant to Alaska Native Allotmentsmust Be Determined on a Case-by-case Basis . . . . . . . . . . 41

V. The District Court Correctly Rejected the State’s ClaimsRegarding “Extraterritorial Application” of the SubsistencePriority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

A. The Secretaries Reasonably Treated as “Public Lands”the Water Bodies in Which the United States OwnsFRWRs where those waters are Within or Adjacent toFederal Reservations . . . . . . . . . . . . . . . . . . . . . . . . . . 49

B. The Record Supports the Determination That SixmileLake Should Be Managed as “Public Lands” . . . . . . . 51

C. The Secretaries Properly Determined That Seven Juneau Area Streams Are Public Lands . . . . . . . . . . 53

D. The District Court Correctly Affirmed the SecretariesAdoption of the “Headland-to-headland Methodologyfor Determining the Boundary Between Rivers and theSea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

E. The Secretaries’ Determination That All WatersWithin CSUs and National Forests Are Public LandsWas Reasonable and Supported on the Record . . . . . 60


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F. The Secretaries Correctly Identified Waters OnSelected But Not Yet Conveyed Lands as Public LandsSubject To The Title VIII Priority . . . . . . . . . . . . . . . 64

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . 69

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71


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TABLE OF AUTHORITIESCases: Page

Arizona v. California, 376 U.S. 340 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Akootchook v. U.S., 271 F.3d 1160 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . 24,44

Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995) . 3,4,7,9,10,22,23,25,29,36,37,39,42,43,59

Alaska. See United States v. Atlantic Richfield Co., 435 F. Supp. 1009 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Cappaert v. United States, 426 U.S. 128 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33,41

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,26

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Dugan v. Rank, 372 U.S. 609 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Skeem v. United States, 273 F. 93 (9th Cir. 1921) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Harris v. Elliott, 10 Pet. 25 (1836) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Humphries v. McKissock,


v

140 U.S. 304 (1891) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Jackson v. Hathaway, 15 Johns. 447 (1818) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Ka Makani ‘O Kohala Ghana Inc. v. Water Supply, 295 F.3d 955 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Katie John v. United States (“Katie John II”), 247 F.3d 1032 (9th Cir. 2001) (en banc) . . . . . . . . . . . . . . . . . . . . . 4

Kenaitze Indian Tribe v. State of Alaska, 860 F.2d 312 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,22

Kleppe v. New Mexico, 426 U.S. 529 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Linthicum v. Ray, 9 Wall. 241 (1891) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Miles v. Apex Marine Corp., 498 U.S. 19 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

National Cable & Telecommunications Ass'n v. Brand X InternetServices, 545 U.S. 967 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

National R.R. Passenger Corp. v. Boston Marine Corp., 503 U.S. 407 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

NationsBank of N. C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Ninilchik Traditional Council v. United States, 227 F.3d 1186 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . 20,23

Pacific Coast Fed'n of Fishermen's Ass'ns v. National Marine FisheriesService, 265 F.3d 1028 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . 21


vi

Pacific Gas and Electric Co. v. FERC, 746 F.2d 1383 (9th Cir.1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Pence v. Kleppe, 529 F.2d 135 (9th Cir. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Shields v. United States, 504 F. Supp. 1216 (D. Alaska 1981) aff'd, 698 F.2d 987 (9th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . 45

Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Sierra Club v. Watt, 659 F.2d 203 (D.C. Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Smiley v. Citibank, 517 U.S. 735 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

State of Alaska v. Lyng, 797 F.2d 1479 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Tulkisarmute Native Community Council v. Heinze, 898 P.2d 935 (Alaska 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

United States v. Adair, 723 F.2d 1394 (9th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

United States ex rel. Ray v. Hibner, 27 F.2d 909 (D. Idaho 1928) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

United States v. Ahtanum Irrigation Dist., 236 F.2d 321 (9th Cir. 1956) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

United States v. Hoflin, 880 F.2d 1033 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67


vii

United States v. Mead Corp., 533 U.S. 218 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

United States v. New Mexico, 438 U.S. 696 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,31,56

United States v. Oregon, 44 F.3d 758 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

United States v. Powers, 305 U.S. 527 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

United States v. Preston, 352 F.2d 352 (9th Cir. 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690 (1899) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Williams v. Babbitt, 115 F.3d 657 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Winters v. United States, 207 U.S. 564 (1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,31,33,50

STATUTES:

Act of February 8,1887, ch. 119, 24 Stat. 388 . . . . . . . . . . . . . . . . . . . . 44

Act of May 17, 1906 ch. 2469, 34 Stat. 197 . . . . . . . . . . . . . . . . . . . . . . 44

Act of August 2, 1956, Pub. L. No. 931, 70 Stat. 954 . . . . . . . . . . . . . . 44

Act of April 26, 1996, Pub. L. No. 104-134, 1996 U.S. Code Cong. & Admin. News (110 Stat.) 1321 . . . . . . . 10

Act of September 30, 1996, Pub. L. No. 104-208,


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1996 U.S. Code Cong.& Admin. News (110 Stat.) 3009 . . . . . . . . 10

Act of November 14, 1997, Pub. L. No. 105-83, 1998 U.S. Code Cong. & Admin. News 111 Stat. 1543 . . . . . . . . . . 10,11

Administrative Procedure Act5 U.S.C. 706(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Alaska National Interest Lands Conservation Act (“ANILCA”)

16 U.S.C. § 410hh(7)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5516 U.S.C. § 410hh(7)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5316 U.S.C. § 3102(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 716 U.S.C. § 3102(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1116 U.S.C. § 3103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60,6116 U.S.C. § 3103(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54,5816 U.S.C. § 3103(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6216 U.S.C. § 3111(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 616 U.S.C. § 3111(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 616 U.S.C. § 3113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 616 U.S.C. § 3114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,3,616 U.S.C. § 3115(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 716 U.S.C. § 3124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3916 U.S.C. § 3207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3743 U.S.C. § 1634(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4643 U.S.C. § 1635 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6643 U.S.C. § 1635(f)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6843 U.S.C. § 1635(o) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6643 U.S.C. § 1635(o)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Alaska Native Claims Settlement Act (“ANCSA”)

43 U.S.C. § 1618(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Alaska Native Allotment Act43 U.S.C. § 270-1 thru 270-3 (1970) . . . . . . . . . . . . . . . . . . . . . . . 44,45,4743 U.S.C. § 270-2 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45


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43 U.S.C. § 270-3 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Forest Service Organic Act, Act of June 4, 1897, Ch. 2, 30 Stat. 11,34-36, codified as amended 16 U.S.C. § 473 et seq., . . . . . . . . . . . . . . . 56

General Allotment Act25 U.S.C. § 381 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

McCarran Amendment, 43 U.S.C. § 666 . . . . . . . . . . . . . . . . . . . . . . . . 36

Omnibus Consolidated Appropriations Act of October 21, 1998, Pub. L.No. 105-277, 1999 U.S. Code Cong. & Admin. News 112 Stat. 2681 . . 10

28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

RULES and REGULATIONS:

36 C.F.R. § 242.3(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

43 C.F.R. § 2561.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

50 C.F.R. 100.3(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,9,59

50 C.F.R. § 100.3(b) (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,40,41

50 C.F.R. § 100.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

55 Fed. Reg. 27,114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

57 Fed. Reg. 22,940 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

57 Fed. Reg. at 45220 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

48 Fed. Reg. 7890, 7994 (February 24, 1983) . . . . . . . . . . . . . . . . . . . . 61

62 Fed. Reg. 66,216, 66,222-223 (December 17, 1997) . . . . . . . . . . . . . 11


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64 Fed. Reg. 1276, 1279 (January 8, 1999) . . . . . . . . . 11,12,40,43,44,64

70 Fed. Reg. 76400, 76401 (December 27, 2005) . . . . . . . . . . . . . . . 58,63

70 Fed. Reg. 76400, 76403 (December 27, 2005) . . . . . . . . . . . . . . . 56,63

70 Fed. Reg. 76400-08 (December 27, 2005) . . . . . . . . . . . . . . . . . . . . . 13

70 Fed. Reg. 76401, 76403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

70 Fed. Reg. 76407 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

70 Fed. Reg. 76402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59,60

OTHER AUTHORITIES

Clesson S. Kinney, Law of Irrigation and Water Rights, § 1011 . . . . . 31

Waters and Water Rights( Robert E. Beck, 1991 ed.) § 15.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

§ 37.01-.02(f)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Shalowitz, Aaron L., Shore and Sea Boundaries, vol. 1, U.S. Dept. OfCommerce (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Reed, Michael, Shore and Sea Boundaries, vol. 3, U.S. Dept. OfCommerce (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60


1/ The Court’s order also addressed claims in Lincoln Peratrovich v. UnitedStates and State of Alaska, No. 3:92-cv-0734, but it did not enter finaljudgment in that case.

1

JURISDICTIONAL STATEMENT

The district court had jurisdiction pursuant to 28 U.S.C. 1331. It

entered final judgment as to the appellants’ claims1/ on October 22, 2009.

Timely appeals were filed on December 18, 2009, and December 21, 2009.

This Court has jurisdiction over these consolidated appeals pursuant to 28

U.S.C. 1291.

ISSUES PRESENTED

Title VIII of the Alaska National Interest Lands Conservation Act

(“ANILCA”), 16 U.S.C. 3114, accords a priority for the taking of fish and

wildlife on public lands by rural Alaska residents for nonwasteful

subsistence purposes. The Secretaries of the Interior and Agriculture

(“Secretaries”) are charged with implementing this priority through

regulations. This Court previously affirmed the Secretaries’ interpretation

of “public lands” as defined by Title VIII, which includes navigable waters

in which the United States has an interest by virtue of the reserved water

rights doctrine. These appeals concern the Secretaries’ amendment of


2

their regulations implementing Title VIII to incorporate that

interpretation of “public lands” and to identify those waters. The issues

are:

1. Whether the 1999 regulations containing the Secretaries’

interpretations of ANILCA and other statutes that reserved federal lands

in Alaska, with respect to whether water rights appurtenant to the federal

lands reserved by those statutes constitute “public lands” subject to Title

VIII of ANILCA, are entitled to Chevron deference.

2. Whether the Secretaries acted within the broad grant of

regulatory authority in ANILCA Title VIII in promulgating regulations

identifying the navigable waters that are “public lands” subject to the

subsistence use priority by virtue of the United States’ interest in reserved

water rights.

3. Whether the district court correctly concluded that the Secretaries

were not required to identify as “public lands” subject to the ANILCA Title

VIII priority waters upstream and downstream from areas in which the

United States holds reserved rights in waters adjacent to federal lands.

4. Whether the district court correctly concluded that the Secretaries

were not required to identify waters appurtenant to allotments granted


3

under the Alaska Native Allotment Act as “public lands” subject to the

ANILCA Title VIII priority .

5. Whether the Secretaries’ determinations that the United States

owns reserved water rights in various specific bodies of water in Alaska

were consistent with ANILCA and were otherwise lawful, reasonable, and

supported by substantial evidence in the administrative record.

STATEMENT OF THE CASE

In 1995, this Court rejected challenges by the State of Alaska, Katie

John, and others to the Secretaries’ interpretation of ANILCA sections 102

and 804, which established the scope of a statutory priority for the benefit

of rural Alaska residents. Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995).

ANILCA provides that rural Alaska residents shall be accorded a priority

for the taking of subsistence resources on “public lands.” 16 U.S.C. 3114.

In Alaska v. Babbitt, this Court affirmed the Secretaries’ conclusion that

the statutory definition of “public lands” in ANILCA Title VIII includes

waters in which the United States holds reserved rights pursuant to the

federal reserved water rights doctrine. 72 F.3d at 704. This Court further

held that the federal agencies charged with administering the priority are

responsible for identifying the waters in which the federal priority is to be


2/ Appellants Katie John, Charles Erhart, the Alaska Inter-Tribal Council,and the Village of Tanana are referred to collectively as “Katie John” inthis brief. The plaintiffs in the eariler Katie John II litigation were KatieJohn, Doris Charles and the Mentasta Village Council.

4

accorded to rural Alaska residents, and remanded the matter to the

agencies. Ibid.

Following the remand, the Secretaries of the Interior and Agriculture

amended their regulations to extend the priority to navigable waters in

which the United States holds a reserved water right. After the revised

regulations became effective, the district court issued a final judgment

dismissing the cases underlying the earlier appeals. Alaska appealed that

judgment on the ground that the definition of “public lands” adopted in the

regulations was an unauthorized intrusion into state sovereignty, and this

Court, sitting en banc, affirmed the earlier panel’s ruling that the agencies’

interpretation was reasonable and entitled to Chevron deference. Katie

John v. United States, 247 F.3d 1032 (9th Cir. 2001) (en banc) (Katie John

II).

In these consolidated appeals, both the State and Katie John2/

challenge the regulations identifying the waters that are “public lands” for

purposes of the ANILCA subsistence priority. Both contend that the


5

district court improperly accorded deference to the agencies’ regulations.

The State asserts that the federal reserved water rights doctrine dictates

a particular judicial process for determining the existence of federal

reserved rights. It contends that the agencies therefore were precluded

from identifying the waters in which such rights are held through the

promulgation of regulations. The State further contends that the

regulations identify as “public lands” certain waters that are beyond the

reach of the federal reserved water rights doctrine. Katie John, on the

other hand, challenges the regulations on the ground that they failed to

identify as “public lands” certain categories of waters in which Katie John

asserts the United States holds interests pursuant to the federal reserved

water rights doctrine. The district court held that the regulations

reasonably identified the navigable waters that are within the statutory

definition of “public lands,” and were otherwise lawful, reasonable and

consistent with this Court’s rulings in Alaska v. Babbitt and Katie John II.


3/ “Subsistence use” is defined in 16 U.S.C. 3113 to mean “customary andtraditional uses by rural Alaska residents of wild, renewable resources fordirect personal or family consumption as food, shelter, fuel, clothing, tools,or transportation; for the making and selling of handicraft articles out ofnonedible byproducts of fish and wildlife resources taken for personal orfamily consumption; for barter, or sharing for personal or familyconsumption; and for customary trade.”

6

STATEMENT OF FACTS

A. The statutory framework. – When Congress enacted ANILCA, it

found that “the national interest in the proper regulation, protection and

conservation of fish and wildlife on the public lands in Alaska and the

continuation of the opportunity for a subsistence way of life by residents

of rural Alaska require that an administrative structure be established for

the purpose of enabling rural residents * * * to have a meaningful role in

the management of fish and wildlife and of subsistence uses on the public

lands in Alaska.” 16 U.S.C. 3111(5). It therefore invoked “its

constitutional authority over Native affairs and its constitutional authority

under the property clause and the commerce clause” to establish such a

structure. 16 U.S.C. 3111(4). The cornerstone of the subsistence title is

the provision in section 804, 16 U.S.C. 3114, of a priority for subsistence

uses3/ by rural Alaska residents over other uses of wild, renewable


7

resources on federal “public lands.” Section 804 also provides criteria for

implementing the priority when it is necessary to restrict the taking of

populations of fish and wildlife on the public lands for subsistence uses.

The Title VIII priority applies on “public lands,” a term that is

defined in section 102(3) of the statute to mean “land situated in Alaska

which * * * are Federal lands.” 16 U.S.C. 3102(3). Section 102(2) defines

“Federal land” to mean lands the title to which is in the United States, and

states that “‘land’ means lands, waters, and interests therein, the title to

which is in the United States.” ANILCA established a cooperative

federalism scheme, providing that the federal management program would

be withheld if the State enacted conforming legislation. 16 U.S.C. 3115(d).

Alaska’s efforts to do so are described in detail in this Court’s opinion in

Kenaitze Indian Tribe v. State of Alaska,, 860 F.2d 312, 314 (9th Cir. 1988),

and Alaska v. Babbitt, 72 F.3d at 700-01.

ANILCA expressly reserves the priority for “rural” Alaska residents,

and – because the State constitution prohibits legislation that makes such

distinctions based on residency – the State has not succeeded in enacting

conforming legislation. The Secretaries therefore issued temporary

regulations implementing Title VIII in 1990 (55 Fed. Reg. 27,114), which


8

were replaced by final regulations on May 29, 1992 (57 Fed. Reg. 22,940).

The regulations provided that the rural priority would be accorded on “all

public lands including all non-navigable waters located on these lands.”

50 C.F.R. 100.3(b).

B. The Alaska v. Babbitt litigation. – On December 5, 1990, a group

of Alaska Natives (“Katie John”) sued to challenge the federal subsistence

regulations on the ground that “public lands” should include all navigable

waterways in Alaska and to enjoin enforcement of State subsistence laws

on certain waterways. The State also sued, arguing that ANILCA did not

authorize federal management of the subsistence priority. The State also

intervened in Katie John’s suit to assert that the interpretation of “public

lands,” in the regulations was too broad. The cases were consolidated.

While the case was pending in district court, the United States

announced a revised interpretation of “public lands” in response to a

petition for rulemaking filed on behalf of Katie John and other Alaska

Natives. The agencies’ revised interpretation of “public lands” broadened

the existing regulatory definition to include navigable waters in which the

United States holds a reserved water right. The district court rejected

both the original regulatory interpretation and the agencies’ revised


9

interpretation, and ruled that “public lands” included all navigable waters

in Alaska. It certified its ruling for interlocutory review, and this Court

granted permission for appeals by both the Secretaries and the State of

Alaska. The agencies withheld administrative action to implement the

priority pending this Court’s review.

This Court concluded that the definition published in the 1992

regulations was inconsistent with the statute’s purposes, but that the

revised interpretation, which included certain waters in which the United

States holds reserved rights, was reasonable. Alaska v. Babbitt, supra, 72

F.3d at 704. It held that there is “no doubt” (id. at 702) that the priority

was intended to be applied on some navigable waters, but that ANILCA

does not support the “complete assertion of federal control” that would

result if “public lands” were interpreted as encompassing all navigable

waters. It remanded the case. Id. at 704. In its ruling, however, this Court

expressed the view that action by either the Alaska legislature or the

United States Congress was needed for a fully satisfactory resolution to

the problems the agencies had encountered in attempting to implement

the statute.

Following this Court’s 1995 ruling, Congress prohibited further


4/ Act of April 26, 1996, Pub. L. No. 104-134, 1996 U.S. Code Cong. &Admin. News (110 Stat.) 1321, 1321-210; Act of September 30, 1996, Pub.L. No. 104-208, 1996 U.S. Code Cong. & Admin. News (110 Stat.) 3009,3009-222; Act of November 14, 1997, Pub. L. No. 105-83, 1998 U.S. CodeCong. & Admin. News (111 Stat.) 1543, 1592; Omnibus ConsolidatedAppropriations Act of October 21, 1998, Pub. L. No. 105-277, 1999 U.S.Code Cong. & Admin. News 112 Stat. 2681.

10

action by the agencies to implement the subsistence program in navigable

waters through a series of restrictions on their appropriations.4/ Finally,

in 1997, Congress adopted amendments to Title VIII of ANILCA, “only for

the purposes of determining whether the State’s laws provide for [the]

definition, preference and participation” required by ANILCA sections 803,

804 and 805. Act of November 14, 1997, Pub.L. 105-83. The legislation

provided that “[i]f the Secretary could not “certify before December 1, 1998

[that] such laws have been adopted in the State of Alaska [the

amendments] shall be repealed on such date.” Pub. L. 105-83, 111 Stat.

1543, 1593-94. The amendments accordingly lapsed on December 1, 1998,

because the State had failed to enact legislation.

Meanwhile, the agencies had published proposed regulations (62 Fed.

Reg. 66,216, 66,222-223 (Dec. 17, 1997)); and on January 8, 1999, the

Secretaries published final regulations amending the definition of “public


5/ Conservation system units (“CSUs”) are defined in 16 U.S.C. 3102(4) toinclude any unit in Alaska of the National Park System, National WildlifeRefuge System, National Wild and Scenic Rivers Systems, National TrailsSystem, National Wilderness Preservation System, or a National ForestMonument.

11

lands,” and identifying the navigable waters that are “public lands” as that

term was interpreted in Alaska v. Babbitt. 64 Fed. Reg. 1276. These

regulations also specified that the Secretaries retain authority to eliminate

activities occurring off the public lands when those activities interfere with

subsistence uses on public lands, and to extend the priority to lands within

the boundaries of conservation system units5/ that have been selected by,

but not yet conveyed to, the State of Alaska or an Alaska Native

Corporation. Ibid.

Following publication of the regulations, Alaska renewed its general

challenge to the interpretation of “public lands,” that had previously been

affirmed by this Court, arguing that ANILCA lacked a “clear statement”

of intent to diminish Alaska’s sovereign authority over waters and fishing

and therefore did not authorize federal subsistence management. The

State urged this Court to reinstate the interpretation in the agencies’

original regulations. See Katie John II, supra. This Court, sitting en banc,


6/ The Secretaries have since published amendments to the January 1999final rule, following notice and comment, (70 Fed. Reg. 76400-08(December 27, 2005)) to “revise[] and clarif[y] the jurisdiction of theFederal Subsistence Management Program for certain coastal areas inAlaska. The 2005 rule clarified that the United States did not claimreserve”d water rights in marine waters. Id. at 76401, 76403, and thatmarine waters are “public lands” only if they are above submerged landsthat were reserved to the United States at the time of Alaska statehood.Id. at 76402, 76403.

The preamble to the 2005 rule also sets forth an extensive list ofmarine waters within certain wildlife refuges that are excluded from thejurisdiction of the Federal Subsistence Management Program. Id. at

(continued...)

12

rejected the State’s arguments and reaffirmed the Secretaries’ revised

interpretation in a per curiam decision. Id.

C. The litigation below – In the 1999 regulations, the Secretaries

amended the regulatory definition of “public lands” to include navigable

waters “where the Federal Government holds a reserved water right or

holds title to the waters or submerged lands.” 64 Fed. Reg. 1276, 1279

(January 8, 1999). The regulations listed the affected conservation system

units and national forests in Alaska and provided that amended

regulations would apply on all public lands, including the inland waters

within and adjacent to the listed areas. Id. at 1286-87, codified at 36

C.F.R. § 242.3(b), 50 C.F.R. § 100.3(b) (2005).6/


6/(...continued)76404-05. The 2005 final rule acknowledged that the determination ofwaters to be managed as “public lands” remains subject to change. Id. at76408, section ___.3(e).

7/ This brief responds to the opening briefs of Katie John (KJ Br.) and the(continued...)

13

1. Katie John’s Challenge – On January 7, 2005, Katie John filed a

complaint alleging that the regulations failed to include as “public lands”

certain navigable waters appurtenant to lands in which the United States

holds “interests” that include reserved water rights. Katie John alleged

that waters located upstream and downstream of the listed CSUs and

forest reserves were necessary to the purposes for which the lands were

reserved, and therefore were “public lands.” (KJ ER 269-288). Katie John

further contended that rights in waters appurtenant to allotments selected

pursuant to the Alaska Native Allotment Act of 1906 were intended to be

included in all such allotments, and that the United States holds

substantial “interests” in such allotments. The federal “interests” in the

allotments, combined with the reservation of rights for each such

allotment, according to the Katie John plaintiffs, compelled the agencies

to designate waters appurtenant to Native allotments categorically as

“public lands.” (See KJ ER 284-85).7/


7/(...continued)State of Alaska (AK Br.). We refer to the excerpts of record filed withthose brief as “KJ ER [page number]” and “AK ER [page number],”respectively.

14

2. The State’s Challenge – On January 6, 2005, the State filed suit

in the District of Columbia challenging the regulations (See Complaint,

U.S. Supplemental Excerpt of Record 39 (“SER 39”). It alleged that the

Secretaries’ exceeded their authority in promulgating regulations to

identify the waters that were “public lands.” In July 2005, the State’s

lawsuit was transferred to federal district court in Alaska and consolidated

with that of the Katie John plaintiffs. (KJ ER 292). The State additionally

intervened in the Katie John case to challenge the regulations identifying

navigable waters as “public lands” on the ground that they exceeded

federal authority and constituted an invalid intrusion into state

sovereignty (CR 195, 197; see KJ ER 317-18).

In the district court, the parties first addressed the State’s challenge

to the use of rulemaking as the mechanism for identifying the navigable

waters included as “public lands” in the ANILCA definition. Following the

district court’s ruling on the rulemaking question (KJ ER 119), the parties

cross-moved for summary judgment on their claims regarding the


15

substance of the regulations. In that regard, the district court requested

(CR 130 see KJ ER 310) that arguments be presented in the context of

“test case waterways.”

On the merits, the parties raised essentially the same issues that

were addressed by this Court in Alaska v. Babbitt and Katie John II, now

in the context of the amended regulations. The State again sought to

invalidate the regulations on the grounds that they were unauthorized and

intruded into State sovereign interests, while Katie John argued that the

regulations should have interpreted “public lands” to encompass

essentially all inland navigable waterways in Alaska. The district court

rejected the challenges, holding that the regulations were authorized,

lawful, reasonable, and consistent with Alaska v. Babbitt. These appeals

followed.

SUMMARY OF ARGUMENT

The district court correctly rejected the appellants’ challenges. As an

interpretation of a federal statute by the agencies charged with its

administration, the regulations are entitled to substantial deference. This

Court previously considered broad-based challenges to the regulatory

definition now contained in the regulations and twice affirmed that


16

interpretation as reasonable and consistent with the statute. In those

decisions this Court concluded that ANILCA contains a clear statement of

intent to displace state regulatory authority to the extent of assuring the

priority for taking of subsistence resources on “public lands” as defined in

the regulations. The regulations challenged here do nothing to expand the

definition that was affirmed in those decisions.

Contrary to the State’s contentions, the regulations challenged in

these consolidated appeals were issued pursuant to a broad statutory

grant of regulatory authority and properly fill a gap in the statutory

language. The regulations set out the interpretation of “public lands”

previously affirmed by this Court and identify the navigable waters that

are included within the statutory definition of that term by virtue of the

United States’ reserved rights in those waters. They do not constitute a

“binding” determination of the United States’ reserved water rights or

convert water right claims into something more conclusive.

The regulations give notice to the public of the navigable waters that

are “public lands” for purposes of the ANILCA subsistence priority. No

established process exists for the identification of waters in which the

United States holds reserved rights; and the regulations challenged here


17

do not purport to displace any judicial process that may be available for

determining the relative rights of claimants to the use of water in Alaska.

Moreover, the existence of federal reserved water rights in the waters

identified in the regulations is fully consistent with the Alaska statute

governing water regulation, which is unaffected by any provision of the

regulations.

With respect to waters upstream and downstream from federal land

reservations, the Secretaries were not required to assert reserved water

rights. Although reserved rights exist in the waters within or adjacent to

federal land reservations, existing precedent does not conclusively hold

that such rights exist in waters less directly associated with those land

reservations. Additionally, there is clear legal authority for the proposition

that the United States may act beyond the boundaries of its property to

protect its interests in that property. The Secretaries therefore reasonably

concluded that waters adjacent to areas beyond the exterior boundaries of

federal land reservations are not “public lands” for purposes of Title VIII.

The status of Alaska Native allotments presents a unique set of legal

issues, many of which remain unresolved, and the Secretaries therefore

reasonably reserved the authority in the regulations to identify reserved


18

water rights appurtenant to such allotments on a case-by-case basis. This

approach to Alaska Native allotments is clearly within the Secretaries’

discretion under ANILCA and is not foreclosed by the district court’s

ruling here.

With respect to the State’s claims that water rights were asserted in

areas where the law does not support the existence of such rights, the

district court properly deferred to the Secretaries. For valid and

appropriate administrative reasons, the regulations determined that

waters that are public lands within and adjacent to the exterior

boundaries of federal land reservations are subject to the federal priority

both across their entire width and in areas where they abut inholdings.

No practicable means exists for segregating the waters for purposes of

joint management of subsistence resources. The Secretaries’ decision to

include these waters as “public lands” is reasonable and within their

authority.

The Secretaries adopted a standard, internationally accepted

methodology for determining the boundary between inland waters and

marine waters, and identified no marine waters as “public lands” by virtue

of reserved water rights. The use of this methodology is both reasonable


19

and consistent with ANILCA and its purposes. The record supports the

selection of this method, and the State’s concern regarding the expansion

of federal jurisdiction beyond the boundaries of the public lands into

marine waters is misplaced.

The application of the subsistence priority on lands selected by the

State or a Native corporation but not yet conveyed out of federal ownership

was based on a reasonable interpretation of ANILCA. Two competing

provisions of the statute address these lands, and the Secretaries

reasonably concluded that the best reading of the statute dictated the

management of such lands consistent with Title VIII, although they do not

fall within the statutory definition of “public lands.” The district court

correctly affirmed the Secretaries’ reasonable interpretation of ANILCA.

STANDARD OF REVIEW

This case presents questions of law, which are reviewed de novo.

“’De novo review of a district court judgment concerning the decision of an

administrative agency means [this Court] view[s] the case from the same

position as the district court.”’ Ka Makani ‘O Kohala Ghana Inc. v. Water

Supply, 295 F.3d 955, 959 (9th Cir. 2002) (quoting Sierra Club v. Babbitt,

65 F.3d 1502, 1507 (9th Cir. 1995)). The Secretaries’ interpretation of


20

ANILCA Title VIII in the challenged regulations is properly reviewed

under the deferential standard governing judicial review of agency action

set forth in the Administrative Procedure Act (“APA”). See Ninilchik

Traditional Council v. United States, 227 F.3d 1186, 1193-94 (9th Cir.

2000) (“a reviewing court must apply the deferential APA standard in the

absence of a stated exception when reviewing federal agency decisions”).

Under the APA, agency decisions must be upheld unless found to be

“arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. 706(2). Under this standard, the reviewing

court should not substitute its judgment for that of the agency; rather, the

reviewing court assesses “whether the agency considered the relevant

factors and articulated a rational connection between the facts found and

the choice made.” Pacific Coast Fed’n of Fishermen’s Ass’ns v. National

Marine Fisheries Service, 265 F.3d 1028, 1034 (9th Cir. 2001) (quotations

omitted). This inquiry must be thorough, but the standard of review is

narrow and highly deferential, and the agency decision is “entitled to a

presumption of regularity.” Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402, 415 (1971). Under the APA, the agency’s findings of fact

must be sustained so long as they are supported by substantial evidence


21

in the record as a whole. see, e.g., Pacific Gas and Electric Co. v. FERC,

746 F.2d 1383, 1387 (9th Cir.1984).

ARGUMENT

I. The District Court Correctly Concluded That the 1999 RegulationsAre Entitled to Substantial Deference

In Alaska v. Babbitt, supra, 72 F.3d at 702, this court held that in

ANILCA Title VIII Congress unambiguously stated its intent to partially

preempt state regulation of hunting and fishing on “public lands,” the

statutory definition of which includes “lands, waters and interests therein,

the title to which is in the United States.” See also Kenaitze Indian Tribe

v. State of Alaska, supra, 860 F.2d at 316, 318. This Court further stated

in Alaska v. Babbitt that “we have no doubt that Congress intended that

the public lands include at least some navigable waters,” 72 F.3d at 702,

and that “the federal agencies that administer the subsistence priority are

responsible for identifying those waters.” 72 F.3d at 704. The challenged

regulations implementing the federal program authorized by Title VIII

accordingly interpret “public lands,” and identify the navigable waters that

are included in the definition.

Both the State and Katie John contend that no deference should be


22

given to the agencies’ determinations (State Br. at 3-5: KJ Br. 23-25) on

the ground that whether the United States holds a reserved water right

(hereinafter referred to as a “FRWR”) is a legal question subject to de novo

review. But, as this Court concluded in Alaska v. Babbitt, in enacting

ANILCA, Congress intended to provide a meaningful subsistence use

priority for rural Alaska residents, while recognizing the State’s exclusive

authority to regulate hunting and fishing on lands and waters in Alaska

that are not “public lands.” Alaska v. Babbitt, 72 F.3d at 703. To do so, the

agencies charged with implementing ANILCA needed to interpret the

statutes that reserved the federal lands on which Congress directed that

subsistence uses be accorded a priority to determine whether those

purposes may be achieved without the use of water.

Contrary to the appellants’ assertions (AK Br. 21; KJ Br. 22) the

Secretaries have precisely the expertise required to make these

determinations. This Court has consistently held that the land managing

agencies’ interpretations of the statutes reserving federal lands in Alaska

are entitled to deference. See, e.g., Ninilchik Traditional Council v. United

States, 227 F.3d. 1186, 1191 (9th Cir. 2000) (federal agencies’

interpretation of ANILCA entitled to deference); Williams v. Babbitt, 115


23

F.3d 657, 663 n.5 (9th Cir. 1997) (Interior interpretations of ANCSA

entitled to Chevron deference; State of Alaska v. Lyng, 797 F.2d 1479 (9th

Cir. 1986) (Forest Service’s interpretation of Alaska Statehood Act entitled

to deference): Akootchook v. U.S., 271 F.3d 1160, 1167 (9th Cir. 2001)

(deference due Interior interpretation Alaska Native Allotment Act).

Katie John contends (Br. 22-23) that the courts are better situated

than the Secretaries to identify the waters in which the United States

holds federal reserved water rights, because the FRWR doctrine is

“anchored in federal common law.” But the existence of FRWRs is a

question of statutory interpretation (see, e.g. United States v. New Mexico,

438 U.S. 696 (1978)). Congress enacted ANILCA against the backdrop of

the FRWR doctrine, which dates from the early twentieth century (see

Winters v. United States, 207 U.S. 564 (1908)). See, e.g. Miles v. Apex

Marine Corp., 498 U.S. 19, 32, (1990) (“We assume that Congress is aware

of existing law when it passes legislation”). Because the Secretaries are

charged with administering ANILCA as well as the other statutes that

reserved federal lands in Alaska, Chevron deference should be accorded to

their reasonable interpretations of those statutes, including their

interpretations of the statutes’ purposes and the necessity of water – and


24

inherent reservation of water rights – to achieve those purposes.

This Court held in Alaska v. Babbitt that ANILCA’s definition of

“public lands” may reasonably be interpreted to include certain waters by

virtue of the reserved rights doctrine, and that such a regulatory definition

should “identify[] those waters.” 72 F.3d at 704. Chevron holds that

ambiguities in statutes are to be filled by the agencies charged with their

administration in the first instance. See Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984). Where, as

here, the agency’s statutory interpretation “fills a gap or defines a term in

a way that is reasonable in light of the legislature’s revealed design, we

give [that] judgment ‘controlling weight.’” NationsBank of N. C., N.A. v.

Variable Annuity Life Ins. Co., 513 U.S. 251, 257 (1995) (quoting Chevron,

supra, at 844). Because the intent and effect of the regulations challenged

here was to fill a statutory gap in a manner that this Court has already

affirmed as “reasonable in light of the legislature’s revealed design,” the

district court correctly accorded deference to the agencies’ determinations.

Katie John’s assertion (KJ Br. 25) that the 1999 regulations are not

entitled to deference because they were “only enacted by virtue of this

Court’s directive” is unsupported. In affirming the agencies’ revised


25

interpretation of “public lands” for purposes of ANILCA § 804, this Court

held that the Secretaries were responsible for identifying the navigable

waters that are “public lands.” The agencies then issued the 1999

amendments, conforming their regulations implementing ANILCA section

804 to the Secretaries’ revised interpretation and providing guidance for

identifying those waters. The fact that this Court has previously affirmed

the amendments in concept does nothing to diminish the deference due to

the amended regulations, which are fully consistent with the earlier order

of this Court and constitute the interpretation of a federal statute by the

agencies charged with its administration. Chevron, supra.

To the extent that they “interpret the federal reserved water rights

doctrine,” the regulations challenged in these consolidated appeals contain

the Secretaries’ identification of the navigable waters that are “public

lands” for purposes of ANILCA’s subsistence priority, by virtue of the

United States’ ownership of federal reserved water rights, consistent with

this Court’s ruling in Alaska v. Babbitt. As the district court correctly held

(KJ ER 115), it is entirely appropriate that the agencies charged with

implementing ANILCA Title VIII exercise their rule-making authority to

identify the navigable waters that are subject to the priority by virtue of


8/ The district court interpreted the State’s challenge as a claim that theSecretaries had misapplied federal reserved water rights doctrine, and notthat promulgation of the regulations exceeded the agencies rule-makingauthority (AK ER 110:17). It noted that “if the State were pursuing aclaim that the Secretaries do not have jurisdiction or the authority topromulgate regulations implementing Title VIII of ANILCA, such a claimwould be precluded” by this Court’s prior decisions. Id.

26

the United States’ reserved water rights. Such legal interpretations, made

through notice-and-comment rulemaking, are entitled to substantial

judicial deference. See, e.g., United States v. Mead Corp., 533 U.S. 218,

229-31 (2001); Smiley v. Citibank, 517 U.S. 735, 741 (1996). Accordingly,

the regulations challenged here are comfortably within the statutory

delegation to the Secretaries to prescribe necessary and appropriate

regulations and are entitled to Chevron deference, as the district court

correctly concluded (KJ ER 29).

II. The 1999 Regulations Do Not Displace Any “Traditional” Method ofIdentifying Waters in Which the United States Holds ReservedWater Rights.

Alaska contends (AK Br. 22) that Congress did not authorize the

Secretaries to promulgate regulations to identify the navigable waters that

are “public lands” by reason of the United States’ interest in federal

reserved water rights.8/ Instead, the State asserts (Br. 23-28) that the


27

priority may be applied only where the United States owns the bed of the

waterway or holds a judicially confirmed reserved water right. There is no

support for the State’s argument, as the district court correctly concluded

(KJ ER 115).

It is undisputed that one of Congress’s primary purposes in enacting

ANILCA was to preserve the subsistence way of life of rural Alaska

residents, and that the statute accomplishes that purpose, inter alia,

through the provision of a priority for the subsistence use of fish and

wildlife on “public lands” by residents of rural Alaska. Interpreting and

administering the statute thus requires the Secretaries to identify the

“public lands” – including waters in which the United States holds

reserved rights – on which the priority is to be accorded. This Court

previously reviewed challenges to the Secretaries’ interpretation of “public

lands” and concluded that an interpretation that includes navigable

waters in which the United States holds reserved water rights was

reasonable and that the Secretaries were responsible for identifying those

waters. Alaska now contends that the “extraordinary administrative

burden” that this Court recognized would accompany the task of

identifying such waters (72 F. 3d at 704) was only the beginning:


28

According to Alaska, the Secretaries must also engage in a “judicial

process” for affirming the existence of reserved rights in those waters, and

must complete that judicial process before the federal subsistence program

may be extended to navigable waters. There is no legal foundation for this

argument, which cannot be reconciled with this Court’s prior rulings.

The State misconstrues both the intent and the effect of the

regulations at issue here, repeatedly referring (AK Br. 5,7,17,18,20,22,25,

26,30,34,35,37,39) to them as “establishing” or “unilaterally establishing”

FRWRs, and “seriously diminishing” the State’s authority over its waters.

The regulations do neither. As the district court correctly observed (KJ ER

113), the challenged regulations do not purport to adjudicate the United

States’ water rights, and instead merely identify those waters that are

“public lands,” which are subject to the priority for subsistence use

established in ANILCA Title VIII, by virtue of the federal reserved water

rights doctrine. On appeal, the State incorrectly asserts (AK Br. 22) that

the district court “transformed the Secretaries’ ‘claims’ into ‘conclusive

determinations’” of water rights by giving deference to the Secretaries’

interpretation of the statutes reserving “public lands” in Alaska. Alaska

further incorrectly contends that the regulations – which it erroneously


9/ A thing is ‘appurtenant’ to something else when it stands in relation ofan incident to a principal and is necessarily connected with use andenjoyment of the latter. Humphries v. McKissock, 140 U.S. 304, 313-314(1891), citing Harris v. Elliott, 10 Pet. 25, 54 (1836); Jackson v. Hathaway,15 Johns. 447, 455 (1818); Linthicum v. Ray, 9 Wall. 241 (1891). Therelationship of an appurtenant water right to the land on which it is usedis such as to make the land usable for a purpose for which the water rightis necessary. See Clesson S. Kinney, Law of Irrigation and Water Rights,§§ 1011-1013.

29

asserts are now “binding determinations” – exceed the authority granted

by ANILCA and therefore should be set aside.

A. No “Established Adjudication Process” Exists for IdentifyingWaters in Alaska that Are “Public Lands” by Virtue of theExistence of Federal Reserved Water Rights

The State asserts that the challenged regulations “conclusively

determined” federal reserved water rights and “fundamentally and

radically” departed from the established procedure for doing so. But, as

the district court correctly concluded (AK ER 110:26) the regulations did

not “determine” water rights, and instead merely identified waters

appurtenant9/ to land reservations in Alaska for which a primary purpose

requires the use of water. Moreover, there is no “established procedure”

for identifying such waters, although federal law has held for over a

century that water rights are necessarily reserved where land is set apart


10/ Alaska’s water code (AS 46.15.010-.270) prohibits unlicensedappropriations and generally prohibits appropriations that would degradefish habitat (see, e.g. Tulkisarmute Native Community Council v. Heinze,898 P.2d 935, 952 (Alaska 1995) (abuse of discretion to approve waterpermit that failed to ensure protection of salmon habitat). Accordingly, itis unlikely that the State would allow appropriations that conflict with theUnited States’ reserved rights for protection of fish and wildlife habitatand preservation of the subsistence way of life of rural Alaskans.

30

for purposes that cannot be achieved without them. See Winters v. United

States, 207 U.S. 564 (1908). As the Supreme Court observed in United

States v. New Mexico, 438 U.S. 696, 699 (1978), where water is abundant,

there is no need to determine the relative rights of the various users of the

water from a given source.10/ See United States v. Oregon, 44 F.3d 758,

763 (1994) (discussing historical development of general stream

adjudications); see also 2 Beck, Waters and Water Rights § 15.01 (1991

ed.).

Although the federal reserved water rights doctrine was developed

in the context of disputes over scarce water in the arid west, it is

undisputed that the doctrine extends to the reserved federal lands in

Alaska. And, as the district court correctly noted (KJ ER 113), the

regulations here merely identify the waters in which reserved rights exist

and do not purport to confirm or otherwise “establish” the reserved water


31

rights themselves. Instead, the challenged regulations serve to identify

waters that are “public lands” by virtue of the United States’ ownership of

“interests” in the form of reserved water rights. The determinations

therefore are unrelated to the use or development of water resources and

are relevant only to federal subsistence program jurisdiction.

It is well established that federal reserved water rights exist where

the purposes of federal land reservations would be defeated without the

use of water. The regulations accordingly contain the Secretaries’

interpretation of the statutes and other legal authorities reserving “public

lands” in Alaska, as to whether their primary purposes would be defeated

without the use of water. They further demarcate the boundaries of the

waters appurtenant to the relevant land reservations. These boundaries

delimit the “public lands” on which the federal government is authorized

to administer the ANILCA priority, but do not adjudicate or otherwise

“determine” water rights. They instead reflect the interpretation of

ANILCA and various other federal land management statutes by the

agencies charged with their administration.

None of the authorities Alaska cites for the proposition (AK Br. 23-

28) that “third party adjudication” is necessary to determine the existence


11/ Federal reserved water rights have a priority date as of the date ofestablishment of the reservation based on Winters v. United States, 207U.S. 564 (1908). See generally Michael C. Blumm, Waters and WaterRights § 37.01-.02(f)(2) (Robert E. Beck, 1991 ed.) (describing the roots ofthe reserved water rights doctrine). Non-Indian reserved water rights arefederally created and spring from the act of reserving lands for a particularpurposes. Id. at § 37.02(a)-(a)(1).

32

of federal reserved water rights stands for any such thing. Indeed, it is

well established that a federal reserved water right “vests on the date of

the reservation and is superior to the rights of future appropriators.”

Cappaert v. United States, 426 U.S. 128, 138 (1976).11/ Accordingly, while

adjudication may be necessary to determine the relative rights of the

United States and other appropriators, a federal reserved right does not

depend for its existence on any such proceeding. As a matter of law, it

exists upon Congressional or other action reserving a federal lands.

Arguing that the regulations actually “establish” certain “binding”

water rights, the State and its amici mistakenly contend (AK Br. 23-28,

Amicus Br. 23-24) that the regulations have displaced “traditional” means

of adjudicating water rights disputes and therefore should be set aside.

Missing from this argument, however, is any allusion to the water rights

“dispute” that purportedly is resolved by the regulations. The regulations


33

clearly do not purport to establish water rights (see KJ ER 27,113), and

instead merely provide notice to the public of the waters that are “public

lands” for purposes of the ANILCA subsistence priority.

Indeed, the regulations do not even identify “water rights” and

instead identify the water bodies, or portions of water bodies, containing

water necessary and therefore appurtenant to federal lands that have been

reserved for purposes that depend on water. As a matter of law, federal

reserved water rights exist in such waters. However, the regulations do

not provide that the United States owns the waters identified as “public

lands” or otherwise “establish” a property interest in water rights.

Moreover, the existence of jurisdiction to accord rural residents a priority

for the taking of fish in these waters is “binding” only for the purpose of

ensuring the ANILCA priority.

Nor is there a legal basis for Alaska’s claim that the regulations

challenged here are contrary to law (AK Br. 28) because they “unilaterally”

identify the waters in which federal reserved rights exist. Even assuming

that determinations made through notice-and-comment rulemaking can

be considered “unilateral,” there is no law that prohibits the identification

of such waters. Indeed, to undertake an action in federal court for a


12/ In the absence of competing claims to rights in the use of the wateramounting to a “case or controversy,” it is unclear that jurisdiction existsfor such a federal court adjudication.

13/ The McCarran amendment is a limited waiver of the United States’sovereign immunity to joinder in comprehensive adjudications. See, e.g.Dugan v. Rank 372 U.S. 609, 617-18 (1963)

34

declaration of federal reserved rights,12/ the United States would first need

to determine which of the potentially affected federal lands are reserved

for purposes that require water – just as it did in promulgating the

regulations (see, e.g., SER 6-7) – and then further determine the scope and

quantity of any reserved rights. We are aware of no authority for the

proposition that the assertion of jurisdiction to protect the rights identified

prior to the resolution of such an adjudication would be “contrary to law.”

Nor did this Court anticipate that identifying “public lands” would

involve an adjudication. Even if the State were to undertake general

stream adjudications in which the United States could be joined pursuant

to the McCarran Amendment, 43 U.S.C. § 66613/ – which it has not – the

United States would need to identify the waters in which it claimed

reserved rights, as well as the quantity of water reserved, in order to file

claims in such an adjudication. The administrative investigation of such


35

rights is an integral element of such adjudications, and that investigation

alone can take years or even decades. See, e.g., U.S. v. Adair, 723 F.2d

1394, 1405 (9th Cir. 1983). Accordingly, the State’s assertion (AK Br. 5)

that this Court “contemplated” that the process of identifying the waters

that are public lands would include an adjudication of the rights is both

unsupported and irreconcilable with this Court’s “hope that the federal

agencies will determine promptly which navigable waters are public lands

subject to federal subsistence management.” Babbitt, 72 F.3d at 704.

Therefore, the district court was correct in concluding (KJ ER 115) that “in

directing the Secretaries to ‘identify’ reserved waters, [this Court] could

not have intended that the Secretaries initiate water rights adjudications

when there was no need for allocation of water resources.”

B. The Regulations Do Not Affect State Regulatory Authority overWater Resources

Contrary to Alaska’s contention (AK Br. 28-29), the identification of

the waters in which federal rights have been reserved does not alter State

water law, diminish State regulatory jurisdiction over water resources, or

otherwise run afoul of the savings clause in 16 U.S.C. 3207. This Court

has previously determined that there is “no doubt” that Congress intended


36

to preempt contrary state law to the extent of providing the subsistence-

use priority in at least some navigable waters, 72 F.3d at 702, and that the

agencies reasonably interpreted the statutory priority to apply in waters

in which the United States holds interests by virtue of FRWRs. Id. at 703-

04. The regulations do nothing more than to spell out the boundaries of

the “public lands” on which the statutory subsistence priority for

subsistence taking of fish and wildlife is to be accorded. They do not

independently affect the State’s regulatory jurisdiction over its water

resources in any way.

Alaska asserts (AK Br. 29-30) that dicta in Sierra Club v. Watt, 659

F.2d 203, 206 (D.C. Cir. 1981) somehow supports the view that § 1319

“does not allow unilateral rulemaking to establish FRWRs.” In that case,

the court stated that a provision similar to the ANILCA savings clause

underscored the court’s conclusion that water rights were not reserved by

the Federal Lands Policy and Management Act (“FLPMA”). The decision

in Watt, however, turned on the fact that FLPMA did not reserve any

federal lands. In contrast, ANILCA reserved vast swaths of federal land

and waters and expressly defined “public lands” to include “lands, waters

and interests therein.” Unlike FLPMA, therefore, ANILCA created


14/ Before the final regulations were issued, the Senate Energy and NaturalResources Committee held hearings on the 1999 subsistence managementregulations, S. Hrg. 106-386 (Oct. 26, 1999), specifically addressing therelationship of FRWRs to “public lands.” Id. at 15.

37

FRWRs. Moreover, the savings clause in ANILCA § 1319 has nothing to

do with rulemaking. Instead, as the Senate Report accompanying ANILCA

explained, it “clarifies that the Act does not affect the jurisdiction of State

of Alaska or the Federal Government as it relates to appropriation, control,

or development of water resources.” S. Rep. No. 96-413, 309 (96th Cong.

1st Sess. 1979). The regulations at issue here merely identify waters in

which the rights necessary to fulfill the purposes of federal land

withdrawals, including protection of the subsistence way of life, have been

reserved.14/ This Court determined in Alaska v. Babbitt, 72 F.3d at 702,

that there is “no doubt” that Congress intended to displace state

management of subsistence resources in some of its waters.

Alaska v. Babbitt held that the Secretaries reasonably determined

that waters in which the United States holds reserved rights are “public

lands” and that the Secretaries “are responsible for identifying those

waters.” 72 F.3d at 704. As the district court correctly observed (KJ ER

115), “the statutory method for the Secretaries to carry out their


38

regulatory responsibilities under ANILCA is to “prescribe such regulations

as are necessary.” See 16 U.S.C. 3124. Accordingly, the district court

correctly affirmed the Secretaries’ use of the rulemaking process to

identify the waters that are public lands by virtue of the United States’

ownership of reserved water rights.

III. The Secretaries Reasonably Concluded That the Waters Upstreamand Downstream from Federal Reserves Are Not “Public Lands”

Katie John asserts (KJ Br. 33-35) that the Secretaries erroneously

asserted reserved rights only in navigable waters within and adjacent to

CSUs, although the entire run of a river may be necessary to fulfill the

purposes of such CSUs. Katie John contends that the FRWR doctrine

dictates that a reservation of water to preserve anadromous fish

necessarily includes rights in all waters that affect the life cycle of such

fish (KJ Br. 33), and that therefore “public lands” are found wherever

water is necessary for any portion of the life cycle of the salmon on which

rural residents depend for subsistence (KJ Br. 32-37), or wherever stream

flows are necessary for other purposes of the CSUs (KJ Br.37-43).

The regulations identified as “public lands” all inland waters that are

within or adjacent to the exterior boundaries of a CSU. 50 C.F.R. §


39

100.3(b), (c); but “any waters falling outside of the designated units

identified [in the regulations] are not included” within the scope of the

Title VIII priority. See 64 Fed. Reg. at 1279. With respect to such adjacent

waters, the Secretaries concluded:

We have determined that a Federal reserved water right existsin those waters and that their inclusion is necessary for theeffective management of subsistence fisheries.

Ibid. Katie John seeks to expand “public lands” to include essentially all

inland navigable waters in Alaska. As the Secretaries and the district

court correctly explained, this interpretation of “public lands,” although

potentially justifiable based on the FRWR doctrine, is not reasonable in

light of this Court’s order in Alaska v. Babbitt and Congress’s “cooperative

federalism” purposes in adopting Title VIII of ANILCA.

Katie John contends (KJ Br. 35-36) that the Secretaries must now

identify as “public lands” all waters possibly implicated by the purposes of

the CSUs. This is unnecessary for purposes of implementing ANILCA's

subsistence priority. It is well established that the United States may

protect its property by regulating activities off of public lands necessary to

protect its interests in the public lands. Kleppe v. New Mexico, 426 U.S.

529, 538 (1976). Inherent in the right to maintenance of stream flows


40

within and adjacent to the CSUs and forest reserves is the authority to

curtail as necessary the use of water beyond the boundaries of the federal

reservations. See, e.g., Cappaert, 426 U.S. at 142-43 (United States may

compel reduction in use of remote ground water well to protect surface

water). Accordingly, the Secretaries reasonably identified as “public

lands” only inland waters within or adjacent to CSUs.

Katie John also contends that the United States’s treaty obligations

with respect to the Yukon River require that the entire length of the river

be deemed “public lands” (KJ Br. at 41-42). Nothing in ANILCA required

the Secretaries to identify as “public lands” all waters in which the United

States may claim reserved rights. The Secretaries are charged with

implementing the subsistence priority on the “public lands;” and as this

Court held in Alaska v. Babbitt, Congress intended to establish a

regulatory scheme that would both ensure the subsistence priority and

preserve meaningful regulatory authority to the State. 72 F.3d at 704.

Identification of the waters upstream and downstream from federal

reservations would greatly expand the scope of Federal jurisdiction and

substantially limit the scope of the State’s jurisdiction. The agencies noted

that this extension of jurisdiction would effectively exclude the State from


41

any meaningful authority over inland navigable waters (SER 12, 3-4 AR

Tab 88 at 1706). For this additional reason, the Secretaries’ decision not

to include upstream and downstream waters as “public lands” was

reasonable and not arbitrary or capricious or contrary to law. Therefore,

the district court correctly rejected the Katie John plaintiffs’ contention

that waters upstream and downstream from CSUs are public lands subject

to the Title VIII priority.

IV. The Secretaries Reasonably Concluded That the Existence of WaterRights Appurtenant to Alaska Native Allotments must BeDetermined on a Case-by-Case Basis

Many allotments granted pursuant to the Alaska Native Allotment

Act are within the boundaries of the CSUs and forest reserves identified

in the regulations. See 64 Fed. Reg. at 1279. Waters flowing through or

adjacent to those allotments therefore are “public lands” for purposes of

federal subsistence jurisdiction. However, waters on Native allotments

falling outside of the listed lands and waters are not included. The

Secretaries reasonably determined that the question whether federal

reserved water rights are included in these Native allotments should be

answered on a case-by-case basis (id.).

The regulations delegate to the Federal Subsistence Board the


15/ But see National R.R. Passenger Corp. v. Boston Marine Corp., 503 U.S.407, 420 (1992) (“an agency’s action cannot be upheld on grounds otherthan those relied on by the agency”).

16/ Act of May 17, 1906, ch. 2469, 34 Stat. 197. As amended by the Act ofAugust 2, 1956, Pub. L. No. 931, 70 Stat. 954, the Alaska Native AllotmentAct was last codified at 43 U.S.C. § 270-1 thru 270-3 (1970).

42

authority to make recommendations to the Secretaries for additions, if

necessary, to the waters that are “public lands” by virtue of FRWRs, which

potentially includes waters appurtenant to such Native allotments. 64

Fed. Reg. at 1276, 1279 (Jan. 9, 1999). The district court held (KJ ER 77-

78) that this delegation of authority to the Board was lawful and

reasonable, while rejecting Katie John’s argument that FRWRs exist in

waters appurtenant to allotments granted pursuant to the Alaska Native

Allotment Act of 1906 (KJ ER 78). The district court thus upheld the

regulation, but not for the reason given by the Secretaries.15/ Katie John

contends that the district court’s conclusions are erroneous and must be

reversed; and that Alaska Native allotments include reserved water rights

as a matter of law (KJ Br. 57).

The Alaska Native Allotment Act16/ (“1906 Act”), was enacted to

adapt the allotment policy of the time, as expressed in the General


43

Allotment Act, to the special circumstances existing in Alaska. See Act of

Feb. 8, 1887, ch. 119, 24 Stat. 388 (codified as amended in scattered

sections of 25 U.S.C.); Akootchook v. United States, 271 F.3d 1160, 1162

(9th Cir. 2001); Shields v. United States, 504 F. Supp. 1216, 1217 (D.

Alaska 1981), aff’d, 698 F.2d 987 (9th Cir. 1983); see also, Pence v. Kleppe,

529 F.2d 135, 140 (9th Cir. 1976) (discussing origins of 1906 Act). The Act

authorized the Secretary of the Interior to provide allotments to Alaska

Natives, not to exceed one hundred and sixty acres, of land in the District

of Alaska, and specified that allotments withdrawn from the public domain

for Alaska Natives “shall be inalienable and nontaxable until otherwise

provided by Congress.” 34 Stat. 197; see also 43 U.S.C. § 270-1 (1970); 43

C.F.R. § 2561.3.

The 1906 Act was later amended to allow allotments to be alienated

with the approval of the Secretary; to permit certain allotments to be

granted within national forests, 43 U.S.C. 270-2 (1970); and to provide

that no allotment was to be made until the applicant submitted “proof

satisfactory to the Secretary * * * of substantially continuous use and

occupancy of the land for a period of five years.” 43 U.S.C. 270-3 (1970).

ANILCA subsequently approved all Alaska Native allotment applications


17/ Although § 1634(a)(1(A) employs the term “trust,” it is unclear whetherCongress intended that the United States would hold trust title to AlaskaNative allotments. The term first appeared in S. 1787 (1977), an earlyversion of ANILCA introduced by Senator Stevens. Subsequently, butbefore ANILCA was enacted, the Interior Board of Land Appeals (IBLA)ruled that the 1906 Act process conveyed full legal title to Alaska Nativeallottees, and therefore that they were more in the nature of patents thantrust allotments. State of Alaska, 45 IBLA 318, 322-23 (Feb. 6, 1980);State of Alaska, 35 IBLA 140, 141-42 (May 22, 1978).

44

pending prior to the passage of ANCSA, with certain exceptions, and

provided that the Secretary “shall issue trust certificates therefor.” 43

U.S.C. 1634(a)(1)(A).17/ Accordingly, the United States has taken the

position that it has an interest in these allotments because of their

restricted fee status.

Courts generally have recognized that allotments owned by

individual Indians outside Alaska include FRWRs. In the typical case,

allotments of Indian reservations to individual Indians, as well as the

transfer of these allotments to non-Indians, have been found to carry with

them a share of the reservation’s FRWRs pursuant to section 7 of the

General Allotment Act, 25 U.S.C. 381. See e.g., United States v. Powers,

305 U.S. 527, 532 (1939); Colville Confederated Tribes v. Walton, 647 F.2d

42, 48 (9th Cir. 1981). Courts have similarly concluded that individual


45

Indian allotments within areas ceded by Indian tribes to the United States

also have FRWRs. See Skeem v. United States, 273 F. 93, 95 (9th Cir.

1921). See also United States ex rel. Ray v. Hibner, 27 F.2d 909, 911-12 (D.

Idaho 1928) (analyzing same treaty provisions, court follows Skeem and

holds that non-Indian successors acquire same right as held by the Indian

transferor).

The legal status of Alaska Native allotments, however, is unique.

The 1906 Act authorized allotment “of vacant, unappropriated, and

unreserved nonmineral land” 43 U.S.C. § 270-1 (1970). Alaska Natives

had little or no ability to take allotted lands from Indian reservations

because the United States essentially abandoned the reservation policy in

Alaska. See United States v. Atlantic Richfield Co., 435 F. Supp. 1009,

1015 (1977); and see M-36662, Allotment of Land to Alaska Natives, 71

Interior Dec. 340, 348 n.18 (Sept. 21, 1964). In 1971, Congress abolished

all prior reservations set aside for Alaska Natives except for the

Metlakatla (Annette Island) Reservation in section 19 of ANCSA. 43

U.S.C. § 1618(a). The complex legal issues surrounding the question led

the Secretaries to conclude that identifying waters appurtenant to Native

allotments outside Federal lands as “public lands” should be done on a


46

case-by-case basis.

The district court here unnecessarily concluded “there are no federal

reserved water rights in navigable waters on or abutting conveyed Native

allotments which lie outside the boundaries of federal reservations and are

not immediately adjacent to the boundary of a federal reservation” (KJ ER

77), and did not suggest that its conclusion followed from unambiguous

statutory language. A court’s prior judicial construction of a statute

trumps an agency construction otherwise entitled to Chevron deference

only if the prior court decision holds that its construction follows from the

unambiguous terms of the statute and thus leaves no room for agency

discretion. National Cable & Telecommunications Ass’n v. Brand X

Internet Services, 545 U.S. 967, 982 (2005). Accordingly, as the agency

charged with administering both ANILCA and the Alaska Native

Allotment Act, the Department of the Interior is not foreclosed from

reaching a different interpretation through the process set out in the

regulations, which the district court affirmed, albeit not for the reasons

given by the Secretaries.

V. The District Court Correctly Rejected the State’s Claims Regarding“Extraterritorial Application” of the Subsistence Priority.


47

The State contends (AK Br. 38) that the district court allowed the

expansion of the federal subsistence program into waters that are not

“public lands,” by affirming the Secretaries’ categorical determinations of

the waters that are to be managed as “public lands” on which the priority

is accorded, instead of requiring that the Secretaries establish specific

water rights. The State wrong.

The district court rejected the State’s assertion that FRWRs arising

by implication only exist within and ‘not beyond the borders’ of a federal

reservation,” noting that in Winters the United States Supreme Court

recognized a federal reserved water right in waters that bordered the

federal reservation (KJ ER 48). Alaska asserts (AK Br. 40) that the

regulations reach waters beyond the scope of ANILCA’s authorization to

the Secretaries because reserved rights in appurtenant waters “must have

a geographic location that is part of the [land] reservation.” But none of

the authorities on which the State relies addresses the question whether

the right is recognized because of its location within, rather than on, the

boundary of a federal reservation, and Winters itself relied in part on a

previous Supreme Court decision which recognized “the right of the United

States, as owners of the lands bordering on a stream, to the continued flow


48

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)(emphasis added). See Winters, 207

U.S. at 577; United States v. Preston, 352 F.2d 352, 357 (9th Cir. 1965)

(recognizing implied reservation of rights to the use of the waters which

“arise, traverse or border upon” the reservation); United States v.

Ahtanum Irrigation Dist., 236 F.2d 321, 325-26 (9th Cir. 1956) (“it would

be a novel rule of water law to limit either the riparian proprietor or the

appropriator to waters which originated upon his lands or within the area

of appropriation.”).

The principles on which the State relies in identifying “critical

errors” (AK Br. 39) in the district court’s reasoning accordingly lack

support. Regardless whether a water right itself has a “geographic

location,” federal law firmly supports the district court’s conclusion that

reserved rights may exist in waters adjacent to, as opposed to within,

federal reservations. And, because reserved rights constitute federal

“interests” in the waters, under this Court’s decision in Alaska v. Babbitt,

those waters reasonably fall within the statutory definition of “public

lands” subject to the Title VIII priority.


49

A. The Secretaries Reasonably Treated as “Public Lands” theWater Bodies Within or Adjacent to Federal Reservations inWhich the United States Owns FRWRs

The district court correctly rejected (KJ ER 57-58) Alaska’s assertion

that the FRWR doctrine does not support the Secretaries’ inclusion of the

full width of stream reaches adjacent to federal reservations as “public

lands.” First, the State is precluded from arguing that the “public lands”

area of a water body in which the United States owns FRWRs does not

encompass the full width of the water body. And in any event, the

Secretaries reasonably determined that the areas designated as “public

lands” included the full width of waters within or adjacent to federal land

reservations.

In its brief to this Court in Katie John II, the State argued that the

Secretaries’ interpretation of “public lands” exceeded their authority under

ANILCA, because “an implied right – no matter how small - [would]

convert all the water in the river or lake touched by the right – from bank

to bank – into public lands subject to federal subsistence management.”

(En Banc Brief for Appellants State of Alaska in 9th Cir. No.00-35121, at

34). This Court rejected Alaska’s argument and affirmed the Secretaries’

interpretation. Having lost that argument in Katie John II, Alaska cannot


50

now argue that the Secretaries’ adoption of the State’s own theory of the

impact of FRWRs on subsistence jurisdiction is “erroneous.”

Moreover, as the district court observed (KJ ER 58), the practicalities

of joint management of these areas preclude a “longitudinal” division of

the waters. Segregating the waters within or bordering federal lands for

purposes of dividing jurisdiction between the State and the Secretaries

would introduce unacceptable management complexities into both regimes.

And in any event, water rights may well exist in the full width of an

adjacent water body, where those rights are, for example, to the flow of the

stream at a level sufficient to support fisheries. Accordingly, the district

court correctly rejected the State’s contention (see AK Br. 45) that the

Secretaries were not legally justified in according the federal priority in

the entire width of the Yukon river adjacent to the Nowitna and Innoko

National Wildlife Refuges as “public lands.”

B. The Record Supports the Determination That Sixmile LakeShould Be Managed as “Public Lands”

The State also faults the district court’s affirmance of the Secretaries’

determination that the United States holds FRWRs in Sixmile Lake, on

the ground that the lake “does [not] even touch federally reserved lands.”


51

The State contends (AK Br. 45) that by operation of section 201(7)(b) of

ANILCA, 16 U.S.C. 410hh(7)(b), the Lake Clark National Park and

Preserve is not adjacent to Sixmile Lake because its shoreline is owned

primarily by the Nondalton Village Corporation. Section 201(7)(b)

provides in pertinent part:

No lands conveyed to the Nondalton Village Corporation shallbe considered to be within the boundaries of the [Lake ClarkNational] park or preserve; if the corporation desires to conveysuch lands, the Secretary may acquire such lands with theconsent of the owner, and any such lands so acquired shallbecome part of the park or preserve, as appropriate.

Although Section 201(7)(b) appears to place the lands surrounding

the lake, which were conveyed to Nondalton Village Corporation pursuant

to ANCSA, outside of the Lake Clark National Park and Preserve, the

State’s reliance on it to show that Sixmile Lake should have been excluded

from the “public lands” subject to the Title VIII priority is misplaced.

Federal lands need not touch a water source in order to have a right to

waters from that source. Arizona v. California, 376 U.S. 340, 344 (1964)

(confirming reserved water rights from the Colorado River for an Indian

reservation that does not abut the river). And, in any event, the map for

the Lake Clark National Park and Preserve published at 57 Fed. Reg. at


18/ The report plainly states that “This amendment [to place the landsoutside the boundary] does not change the boundary of the preserve butprovides that the lands which the village received pursuant to ANCSAwhich are not part of the village proper shall not be treated as inholdings.”(Emphasis added).

52

45220 (see SER 33) clearly places the boundaries of the preserve along the

bank of Sixmile Lake, and ANILCA § 103(a), 16 U.S.C. 3103(a), states that

the boundaries and maps to be published in the Federal Register establish

the boundaries of the various units, including the Lake Clark National

Park and Preserve. Because section 103(a) further provides that in the

event of discrepancies, “the maps shall be controlling,” the Secretaries

properly relied on the map in concluding that Sixmile Lake is adjacent to

the reserve.

In addition, the legislative history shows that in enacting § 201(7)(b),

Congress did not intend to change the boundaries of the reserve, and

instead included that section to avoid the treatment of the lands conveyed

to the Village of Nondalton as national park inholdings. See S. Rep. 96-

413 at 154.18/ The Senate report thus explains the discrepancy between

the statutory language on which the State relies and the map showing the

reserve to be immediately adjacent to Sixmile Lake. Because the purposes


53

for which Lake Clark park and preserve were created included “to protect

habitat for and populations of fish and wildlife” (see 16 U.S.C. 410hh(7)(a))

the Secretaries’ conclusion that the United States owns FRWRs in the lake

which therefore is subject to the ANILCA Title VIII priority, clearly was

reasonable and supported by substantial evidence.

C. The Secretaries Properly Determined That Seven Juneau AreaStreams Are Public Lands.

The State contends (Br. 46-47) that the Secretaries failed to

document adequately their findings that the United States holds FRWRs

in seven streams (Auke Creek, Cowee Creek, Lemon Creek, Mendenhall

River, Montana Creek, Peterson Creek, and Salmon Creek) that flow into

the Gastineau Channel near Juneau. There is no dispute that all of these

streams arise within the Tongass National Forest. There is also no

dispute that these waters are within the broad exterior boundaries of the

Tongass National Forest as created in 1909.

The State contends (AK Br. 46) that the determination that the

United States holds FRWRs in these waters was erroneous, on the ground

that they are “exterior waters downstream of a reservation.” The State is

incorrect. The Federal Register notices cited in the State’s brief (ibid)


54

explain the agencies’ basis for concluding that FRWRs are held in

reservations created by ANILCA, 70 Fed. Reg. 76400, 76403 (Dec. 27,

2005). The seven streams are within portions of Tongass National Forest

that was not created by ANILCA. The administrative record shows,

however, that the agencies determined that the United States holds

FRWRs in the waters of the Tongass National Forest (SER 7,24); and that

the exterior boundaries of the Tongass National Forest were recognized as

including the seven streams at issue (id. at 27). Accordingly, the record

supporting the agencies’ decision regarding these streams contains

substantial evidence that the streams are within the boundaries of a

federal reservation.

As a matter of law, national forests include FRWRs pursuant to the

Forest Service Organic Act, Act of June 4, 1897, Ch. 2, 30 Stat. 11, 34-36,

codified as amended 16 U.S.C. 473 et seq., which authorized the creation

of the TNF. As the U.S. Supreme Court held in United States v. New

Mexico, 438 U.S. 696, 718 (1978):

Congress intended that water would be reserved only wherenecessary to preserve the timber or to secure favorable waterflows for private and public uses under state law. This intentis revealed in the purposes for which the national forest systemwas created and Congress’s principled deference to state water


55

law in the Organic Administration Act of 1897 and otherlegislation.

Accordingly, the United States owns water rights in inland waters within

the exterior boundaries of the Tongass National Forest. Because the

record supports the Secretaries’ conclusion that these streams are within

the boundary, the United States hold FRWRs in them.

The regulations clearly provide that waters in which the United

States holds any FRWR in any amount are public lands. And, as discussed

above (p. 53), because of the Secretaries’ legitimate concern with the

difficulties inherent in a checkerboard jurisdictional system and the need

for unified areas of management and clear jurisdictional boundaries, the

determination that inland waters within the exterior boundaries of the

forest are “public lands” for purposes of the Title VIII priority is reasonable

and should be sustained.

D. The District Court Correctly Affirmed the Secretaries Adoptionof the “Headland-to-headland Methodology for Determining theBoundary Between Rivers and the Sea.

The State contends (AK Br. 47) that the regulations unlawfully

include marine and tidally influenced waters within the definition of public

lands. It interprets ANILCA section 103(a), 16 U.S.C. 3103(a), which


56

states that federal reservation boundaries shall not extend seaward

beyond the mean high tide line, to exclude all tidally influenced waters

from the definition of public lands, and asserts (AK Br. 47) that the

Secretaries therefore have included as “public lands” waters “located

entirely outside reservation boundaries.”

First, the Secretaries explicitly stated that challenged regulations do

not identify any marine waters as public lands by virtue of reserved water

rights in the 2005 rulemaking. 70 Federal Register 76400, 76401 (Dec. 27,

2005) (“neither the 1999 regulations nor this final rule claims that the

United States holds a reserved water right in marine waters”). The

regulations define marine waters as

those waters located seaward of the mean high tide line or thewaters located seaward of the straight line drawn fromheadland to headland across the mouths of rivers or otherwaters as they flow into the sea.

50 C.F.R. § 100.4. No reserved water rights are claimed in marine waters,

which therefore are not “public lands” unless the United States reserved

the lands beneath the specific waters prior to Alaska statehood. 70 Fed.

Reg. 76401, 76403. The waters determined to be public lands by reason of

a pre-statehood reservation are set forth in 50 C.F.R. § 100.3(b). 70 Fed.


57

Reg. at 76407. The State has not challenged those determinations.

The State objects, however, to the use of the standard and accepted

headland-to-headland methodology for determining the boundary between

marine and inland waters. The Secretaries explained that because

reserved water rights can be held in rivers and lakes but not in marine

waters, it is necessary “to determine where the river ends and the sea

begins.” 70 Fed. Reg. 76402. The Secretaries further explained:

Some rivers are tidally influenced for a significant distanceabove their mouths. Although submerged lands under portionsof rivers which are tidally influenced may be owned by theState or other entity, those stretches are still a part of the riverand remain subject to potential Federal reservation of waterrights. Rivers and streams have high water marks rather thanlines of mean high tide.

Id. Because many rural Alaskans have traditionally lived along or near

coastal and tidal waters, the exclusion of all tidally influenced waters from

the definition of public lands would have deprived many of these rural

Alaskans of a meaningful opportunity for the taking of fish for subsistence

uses, contrary to a central purpose of ANILCA. See Alaska v. Babbitt, 72

F.3d at 704. Accordingly, the question is whether the Secretaries’ adoption

of the headland-to-headland methodology was reasonable, consistent with

established law, and not arbitrary or capricious. As the Secretaries


58

explained, the headland-to-headland methodology set forth in the

definitions of marine and inland waters is internationally used precisely

for this purpose:

[T]he regulations use the methodology found in the Conventionon the Territorial Sea and Contiguous Zone from the UnitedNations Law of the Sea for closing the mouths of rivers.”

70 Fed. Reg. 76402 (Dec. 27, 2005). See Shalowitz, Aaron L., Shore and

Sea Boundaries, vol. 1, U.S. Dept. Of Commerce (1962); see also generally

Ch. 3, Reed, Michael, Shore and Sea Boundaries, vol. 3, U.S. Dept. Of

Commerce (2000), describing the determination of boundaries of bays and

rivers. The decision to use such an established methodology is reasonable

and is not arbitrary or capricious.

As the district court correctly concluded, the use of the headland-to-

headland methodology does not conflict with 16 U.S.C. 3103, because, as

discussed above, a reserved right may be held in waters adjacent to, but

outside the boundary of, the reserved lands to which it is appurtenant.

Because there is no certainty as to where tidally influenced waters cease

to serve the purposes of a federal reservation of land for purposes of

reserved water rights, the Secretaries reasonably employed the headland-

to-headland methodology to determine the boundary between inland and


19/ Shown as Area 14 on KJ Exhibit 2 (KJ ER 136).

59

marine waters. The district court correctly affirmed this choice of a

reasonable and appropriate solution that is consistent with established

law.

The State baldly asserts (Br. 49) that the Secretaries have placed

“roughly six square miles of Togiak Bay and its marine and tidally

influenced waters and resources under federal control.” This assertion is

based on an incorrect understanding of the boundaries between the inland

and marine waters of Togiak Bay, as we demonstrated below. Togiak Bay

is within and adjacent to the Togiak NWR.19/ The State relied in the

district court on exhibits that incorrectly depicted the boundary and

excluded the bay from the refuge. (See Declaration of Tom Jennings ¶¶

4d- 4e, (SER 36)). The correct boundaries are shown on the map published

pursuant to 16 U.S.C. 3103 in 48 Federal Register 7890, 7994 (Feb. 24,

1983) (SER 36). As Mr. Jennings explained (SER 36), the waters depicted

on the State’s exhibit along the eastern shore line of the Togiak Bay are

not public lands for purposes of Title VIII. The only portion of Togiak Bay

that is deemed to be public lands is what might be described as the inner


60

bay at the very northern end of the Togiak Bay itself. As shown by the

Federal Register map, this inner bay lies within the boundaries of the

Togiak NWR. Thus, contrary to the State’s assertion, the only waters of

Togiak Bay that have been determined to be public lands are within the

boundaries of the refuge.


61

E. The Secretaries’ Determination That All Waters Within CSUsand National Forests Are Public Lands Was Reasonable andSupported on the Record

The district court correctly affirmed the Secretaries’ determination

that all inland waters, both navigable and non-navigable, within a CSU or

a National Forest are public lands subject to the Title VIII priority. The

State contends (AK Br. 50) that the regulations improperly include as

“public lands” waters on non-Federally owned lands within the respective

units. It bases its contention on the provision in section 103(c) of ANILCA,

16 U.S.C. 3103(c), that: “[o]nly those lands within the boundaries of any

conservation system unit which are public lands (as such term is defined

in this Act) shall be deemed to be included as a portion of such unit.”

Consistent with this provision, the Federal subsistence regulations do not

purport to regulate the taking of wildlife on private lands within a CSU or

national forest, because the lands themselves are not public lands.

However, under Alaska v. Babbitt, if FRWRs are held in waters on these

lands, those waters may be considered public lands as defined in ANILCA.

The 1999 regulations identified as public lands all waters within or

adjacent to the boundaries of the areas listed in those regulations. As the

Secretaries explained, FRWRs exist in all such waters, and it was


62

impracticable to designate only portions of the waters within the CSUs as

public lands:

[I]n order to provide a meaningful subsistence use priority thatcould be readily implemented and managed, unified areas ofjurisdiction were required for both Federal land managers andthe subsistence users. The problems associated with the dualState and Federal management caused by the State’s inabilityto take actions needed to implement the required subsistenceuse priority are difficult enough without imposing on thatsituation elaborate and scattered areas of differentjurisdictions.

70 Fed. Reg. 76400, 76401 (Dec. 27, 2005). The purposes of the CSUs and

national forests were uniformly water-dependent, and therefore FRWRs

arose in the waters traversing or adjoining them. The Secretaries

reasonably determined that the inclusion of all waters within a CSU or

national forest with publicly established and published boundaries was

the most reasonable means to provide both the managers and the public

with notice of where the Federal regulations are and are not applicable.

See 64 Fed. Reg. at 1279.

The district court rejected Alaska’s contention that the Secretaries

had claimed federal reserved water rights in these waters based on

“administrative convenience” (see AK Br. 52), correctly explaining that a

federal reserved water right exists because water is necessary to fulfill the


63

purpose of a federal reservation, and federal reserved water rights can

exist in waters on inholdings. As the district court correctly held, (KJ ER

53) appurtenancy “has to do with the relationship between reserved

federal land and the use of the water, not the location of the water.”

Accordingly, a navigable water body located only non-federal land may

nonetheless be appurtenant to federal land.

For the same reasons, the State is incorrect that waters on private

inholdings such as the Chignik Lake and River system, within the Alaska

Peninsula NWR, may not be considered “public lands.” Although most of

the lands adjacent to Chignik Lake, Black Lake and the Chignik River

from Chignik Lagoon to Black Lake are not in Federal ownership, the

refuge’s purpose of providing “the opportunity for continued subsistence

uses” of fishery resources would be substantially defeated if these waters

were not public lands. Therefore the Secretaries’ determination that the

United States holds FRWRs in these waters was correct, and they

reasonably fall within the Title VIII definition of “public lands.” Contrary

to Alaska’s contentions, the Secretaries did not arbitrarily make sweeping

categorical FRWR determinations in derogation of state sovereignty. As

the district court correctly concluded, “when, as here, the federal


64

government has retained its reserved water rights and/or the ability to

create such rights in navigable waters, it retains an interest in the

navigable waters on or appurtenant to those reserved lands sufficient to

support ANILCA jurisdiction” (KJ ER 54).

F. The Secretaries Correctly Identified Waters On Selected ButNot Yet Conveyed Lands as Public Lands Subject To The TitleVIII Priority

The district court further correctly affirmed the Secretaries’

determination that they are required to regulate all lands within any unit

of the National Park System, National Wildlife Refuge System, National

Wildlife and Scenic Rivers Systems, National Forest Monument, National

Recreation Area, National Conservation Area, new national forest or forest

addition that have been selected by but not yet conveyed to the State or a

Native corporation as if they were public lands, because ANILCA § 906(o),

43 U.S.C. 1635(o), requires the Secretaries to do so.

Section 906 of ANILCA, 94 Stat. 2437-44, codified in part in 43

U.S.C. 1635, addresses lands selected by the State pursuant to the Alaska

Statehood Act and by Native corporations pursuant to the Alaska Native

Claims Settlement Act. Section 906(o)(2) provides that:

Until conveyed, all Federal lands within the boundaries


65

of a conservation system unit, National Recreation Area,National Conservation Area, new national forest or forestaddition, shall be administered in accordance with the lawsapplicable to such unit.

The question whether these lands are subject to the subsistence

priority is complicated by the fact that ANILCA section 102(3), the

provision that defines the “public lands” to which section 804 extends the

subsistence priority, excludes selected but not yet conveyed lands.

The Secretaries resolved the conflict between these two provisions of

ANILCA in favor of section 906(o), because to do otherwise would

effectively write a new exception, making all laws applicable to the

surrounding lands except Title VIII of ANILCA applicable to selected but

not yet conveyed lands. The courts are not to write into statutes that

which Congress left out. United States v. Hoflin, 880 F.2d 1033, 1038 (9th

Cir. 1989). Section 804 applies to “public lands” as defined by § 102(3)

“[e]xcept as otherwise provided in this Act[.]” The district court found

that “Section 906(o)(2) is part of the ‘Act’; and as to selected-but-not-

yet-conveyed lands, it provides ‘otherwise.’” It therefore concluded “that

Congress unambiguously provided that Title VIII applies to

selected-but-not-yet conveyed lands ‘within the boundaries of a


66

conservation system unit, National Recreation Area, National

Conservation Area, new national forest or forest addition.’ 43 U.S.C.

1635(o)(2)” (KJ ER 85), and that the 1999 regulation lawfully and

reasonably treated such lands as subject to the ANILCA priority.

The State contends (AK Br. 54), without explanation, that ANILCA

as a whole is more consistent with a reading that grafts a new exception

onto section 906(o) than with the Secretaries’ interpretation. It points (AK

Br. 56) to provisions of the statute that authorize limitation of the

subsistence priority on public lands as evidence that “except as otherwise

provided” in the statute cannot reasonably be read to extend the priority

to selected but not yet conveyed lands. But even assuming that the district

court is not correct in its conclusion that the statute unambiguously

applies the subsistence priority on selected but not yet conveyed lands, the

Secretaries’ interpretation is reasonable and entitled to deference.

Selected but not yet conveyed lands are merely a potential inholding.

Until they are actually conveyed, legal title remains in the United States.

A determination must still be made as to eligibility for the conveyance. If

the lands ultimately are not conveyed to either the State or a Native


20/ For example, over-selection is permitted. 43 U.S.C. 1635(f)(1).Therefore, some lands now subject to section 906(o) may well never beconveyed.

67

Corporation, title remains in the United States.20/ It is therefore

reasonable for the Secretaries to administer these lands under all general

laws applicable to the units in which they may be located.

The Secretaries’ determination that they are required to provide for

the Title VIII subsistence use priority on selected but not yet conveyed

lands is fully supported by the explicit language of section 906(o).

Moreover, managing selected but not yet conveyed lands as if they were

subject to the Title VIII priority furthers ANILCA’s purpose of preserving

the subsistence way of life of rural Alaska residents. Accordingly, the

district court’s conclusion that the regulations properly apply the priority

on selected but not yet conveyed lands was correct and should be affirmed.


68

CONCLUSION

For the foregoing reasons, the decision of the district court should be

affirmed.

Of counsel: Respectfully submitted,

JASON R. HARTZ IGNACIA S. MORENOOffice of the Solicitor Assistant Attorney GeneralU.S. Dep’t of the InteriorWashington, D.C. DEAN K. DUNSMORE

ANDREW C. MERGENKEITH A. GOLTZ ELIZABETH ANN PETERSONOffice of the Regional Solicitor Attorneys U.S. Dep’t of the Interior Environment & Natural Res. Div.Anchorage, AK U.S. Dept. of Justice

P.O. Box 23795, L’Enfant StationJAMES J. USTASIEWSKI Washington, D.C. 20026Office of the General Counsel (202) 514-3888U.S. Dep’t of Agriculture Juneau, Alaska 99802

AUGUST 201090-1-18-13146


69

STATEMENT OF RELATED CASESPURSUANT TO NINTH CIRCUIT RULE 28-2.6

The United States is not aware of any related case pending in this

Court.

/s/ Elizabeth Ann Peterson Elizabeth Ann Peterson, AttorneyUnited States Department of JusticePost Office Box 23795Washington, D.C.(202) 514-3888


70

CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(a)(7)(C)

and Circuit Rule 32-1

I certify that:

a. Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule

32-1, the attached opening brief is:

Proportionately spaced, has a typeface of 14 points or more and

contains 13,741 words.

8/20/2010 /s/ Elizabeth Ann Peterson Date Elizabeth Ann Peterson

Attorney, Department of JusticePost Office Box 23795Washington, DC 20026-3795Phone: (202) 514-3888


71

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Answering Brief for the Federal

Appellees has been served via this Court’s Electronic Case Filing (“ECF”)

system, this 20th day of August, 2010, and that all participants in this case

are registered ECF system users.

/s/ Elizabeth Ann Peterson Elizabeth Ann Peterson Attorney, Department of Justice


case: 09-36122 08/20/2010 page: 1 of 82 id: 7447177 ...washington, d.c. 20240 andrew c. mergen...

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