State of Alaska v. Bruce Babbitt, Secretary of the Interior, Katie John v. United States of America

ORDER

The opinion filed April 20, 1995, and published at 54 F.3d 549 (9th Cir.1995) is withdrawn. It is replaced by the opinion and dissent filed concurrently with’ this order.

OPINION

These appeals arise from the efforts of Katie John, Doris Charles and the other *700 upper Ahtna Athabaskan Indians of Mentas-ta Village to continue subsistence fishing at Batzulnetas as they and their ancestors have done since time immemorial. 1 The fishery at Batzulnetas lies near the confluence of Tana-da Creek and the Copper River and within Wrangell-St. Elias National Park. They also involve the claim by the state of Alaska that the Secretaries of the Interior and Agriculture, on behalf of the federal government, are attempting to exercise too much control over fish and wildlife management within the state.

The Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. § 3101 et seq., requires that subsistence fishing and hunting be given a priority over other uses of fish and wildlife on “public lands.” The sole issue remaining in this appeal concerns the meaning of the definition of public lands in § 102 of ANILCA. 16 U.S.C. § 3102 . 2 Specifically, the parties dispute whether…

dissenting:

I.

The issue in this case should be a simple one to resolve: Is the fish camp located in navigable waters at the confluence of the Tanaga Creek and Copper River, in the midst of the Wrangell-St. Elias National Park, “public land” for the purposes of the Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. §§ 3101 , et seq.? It is, unfortunately, an incredibly complex issue 1 whose resolution will impact all the navigable waters in Alaska. Because I feel that we, as judges, are not empowered to resolve this issue without direction from Cqn-gress, I dissent.

I agree with the majority that ANILCA defines “public land” as “lands, waters, and interests therein, the title to which is in the United States.” Maj. op. at 701-02; 16 U.S.C. § 3102 ; Amoco Production Co. v. Village of Gambell, 480 U.S. 531 , 548 n. 15, 107 S.Ct. 1396 , 1406 n. 15, 94 L.Ed.2d 542 (1987).

Given this definition, this appears to be an easy case at first blush. Because the fish camp is in the midst of a National Park, the United States would seem to have title to all land and waters within the Park. 16 U.S.C. § 410hh(9) (creating Wrangell-St. Elias National Park and Preserve); S.Rep.…

72 F.3d 698 26 Envtl. L. Rep. 20 ,369, 95 Cal. Daily Op. Serv. 9660, 95 Daily Journal D.A.R. 16 ,808 STATE OF ALASKA, Plaintiff-Appellant, v. Bruce BABBITT, Secretary of the Interior, et al., Defendants-Appellees. Katie JOHN, et al., Plaintiffs-Appellees, v. UNITED STATES of America, et al., Defendants-Appellants. Nos. 94-35480, 94-35481. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 8, 1995. Opinion Filed April 20, 1995. Opinion Withdrawn Dec. 19, 1995. Decided Dec. 19, 1995. Joanne M. Grace, Assistant Attorney General, Anchorage, Alaska, for plaintiffs-appellants-plaintiffs-appellees. Elizabeth Ann Peterson, United States Department of Justice, Washington, DC, for defendants-appellees-defendants-appellants. Robert T. Anderson, Native American Rights Fund, Anchorage, Alaska, for defendant-appellee-plaintiff-appellee. Richard L. Young, Albuquerque, New Mexico, for Peratrovich, et al., as amici curiae. Michael A.D. Stanley, Juneau, Alaska; Marc D. Slonim, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, Washington, for Peninsula Marketing Association, et al., as amici curiae. Clive J. Strong, Deputy Attorney General, Boise, Idaho, for States of…