Here is “An Alaskan village is falling into the sea. Washington is looking the other way.”
Here is the petition in Alaska v. Jewell:
1. Whether the Ninth Circuit properly held—in conflict with this Court’s decisions—that the federal reserved water rights doctrine authorizes the unprecedented federal takeover of Alaska’s navigable waters sanctioned by the 1999 Rule.
2. Whether the Ninth Circuit properly proceeded on the premise—which also conflicts with this Court’s decisions—that ANILCA could be interpreted to federalize navigable waters at all given Congress’s silence on the Act’s application to navigable waters.
Lower court materials here.
Here is the opinion.
And the court’s syllabus:
The panel affirmed the district court’s decisions upholding the 1999 Final Rules promulgated by the Secretary of the Interior and the Secretary of Agriculture to implement part of the Alaska National Interest Lands Conservation Act concerning subsistence fishing and hunting rights.
In Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995) (“Katie John I”), the court held that, because Congress included subsistence fishing in Title VIII, the Act applied to some of Alaska’s navigable waters. The 1999 Rules identified which navigable waters within Alaska constituted “public lands” under Title VIII of the Act, which provides a priority to rural Alaska residents for subsistence hunting and fishing on such lands.
As threshold issues, the panel held that the Secretaries appropriately used notice-and-comment rulemaking, rather than adjudication, to identify whose waters are “public lands” for the purpose of determining the scope of the Act’s rural subsistence policy; and that in construing the term “public lands,” the Secretaries were entitled to “some deference.” The panel concluded that, in the 1999 Rules, the Secretaries applied Katie John I and the federal reserved water rights doctrine in a principled manner. The panel held that it was reasonable for the Secretaries to decide that: the “public lands” subject to the Act’s rural subsistence priority included the waters within and adjacent to federal reservations; and reserved water rights for Alaska Native Settlement allotments were best determined on a case-by-case basis.
Briefs are here.
Lower court materials are here.
Here are the materials in John v. United States:
Lower court materials here.
Elizabeth Barrett Ristroph of the North Slope Borough Legal Department has posted “Alaska Tribes’ Melting Subsistence Rights” on BEPress.
Here is the abstract:
Climate change impacts subsistence-dependent Alaska Natives more than Lower 48 Natives and other United States populations because (1) the effects of climate change on land and wildlife are more severe in Alaska than elsewhere in the U.S.; and (2) compared to Lower 48 tribes, Alaska tribes have less control over land and wildlife needed for subsistence.