John v. Alaska Fish & Wildlife Conservation Fund

The Secretaries of the Interior and of Agriculture were reasonable in their methods of notice and comment rulemaking to determine which of Alaska's navigable waters constituted "public lands" for the purposes of compliance with ANILCA.

Plaintiffs appealed the district court's ruling, which upheld the 1999 Final Rules implementing the Alaska National Interest Lands Conservation Act ("ANILCA"). Plaintiffs Katie John, et. al. challenged the Rules as being too narrow in scope and intervening plaintiff, State of Alaska, challenged the Rules as being too broad in scope. The Secretaries of the Interior and of Agriculture implemented the 1999 Final Rules using notice and comment rule-making procedures following the Court's 1995 decision in Alaska v. Babbitt ("Katie John I"). While the holding from Katie John I does not best solve the problem of identifying what waterways can be considered "public lands" for the purpose of designating their priority use for subsistence hunting and fishing by rural Alaska residents, the decision has not been overturned and, therefore, remains the best method for making such determinations. Plaintiffs argued the Secretaries improperly implemented the Rules using notice and comment rulemaking, as opposed to adjudication. However, the Ninth Circuit rejected this argument since did not consider that the Court in Katie John I hoped federal agencies would determine which navigable waters were public lands promptly. Using rulemaking, instead of adjudication, results in the most prompt and sweeping determinations. Therefore, the panel applied Chevron deference analysis and determined the Secretaries were entitled to "some deference." The State argued that the Secretaries improperly included waters adjacent to federally reserved lands in their definition of "public lands," however, no court has held that waters must be on federally reserved lands to be defined as public lands, especially when those waters feed into, or otherwise have an effect on, adjacent federally reserved lands. The Secretaries did not include, in the 1999 Final Rules, waters appurtenant to Alaska Native allotments as public lands. Instead, the Secretaries reserve these questions for case-by-case analysis, as the legal issues are very complex. The panel determined that the Secretaries case-by-case basis decision was reasonable. AFFIRMED.