Home » Case Summaries » 1995 » State of Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995)


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



This case required the Ninth Circuit to decide what waters are considered public lands within the meaning of section 102 of the Alaska National Interest Lands Conservation Act (ANILCA).[1] The ANILCA requires subsistence fishing and hunting be given a priority over other uses of fish and wildlife on public lands.[2] ANILCA defines public lands as lands, waters, and interests therein.[3] The Ninth Circuit held that navigable waters in which the United States has reserved water rights are included in the definition of public lands.

Members of the Ahtna Athabaskan Indian Tribe brought suit challenging a federal regulation that excluded navigable waters from the definition of public lands. The State of Alaska joined, challenging the federal government’s ability to regulate in this area, and arguing that control is with the state. The Tribe argued that public lands include virtually all navigable waters because of the federal navigational servitude, which allows the federal government to regulate waterways and state-recognized property rights in water without compensation. The tribe argued that Congress intended to exercise its Commerce Clause powers in enacting ANILCA. The state further argued that all navigable waters were excluded. The U.S. Secretary of Interior countered that those waters that the federal government has an interest in under the reserved water rights doctrine are included. The reserved water rights doctrine holds that when the federal government withdraws land from public domain and reserves them for a federal purpose, it implicitly reserves the appurtenant waters that are needed to accomplish the purpose of the federal reservation.

The Ninth Circuit held that Congress clearly intended that at least some navigable waters be included in the definition of public lands because Congress intended to regulate subsistence fishing, and subsistence fishing traditionally takes place in navigable waters. Noting, however, that Congress had not decided which navigable waters, the court then tried to answer whether the Secretary of the Interior’s position is based on a permissible construction of the statute. The court followed its holding in City of Angoon v. Hodel[4] that the navigational servitude did not include public lands. It also found that nothing in the legislative history supports the conclusion that Congress intended to extend its powers to the limits of the Commerce Clause.

The court concluded that in reserving vast parcels of land under various federal statutes, Congress implicitly reserved the needed, appurtenant waters. These appurtenant waters include some navigable waters. Thus, under ANILCA Congress reserved the waters necessary to give meaning to the statute. The court also held that the federal government is responsible for determining what waters those are. Therefore, it is left to the federal government to determine which navigable waters are public lands subject to federal subsistence management. The court concluded by stressing that the resolution of the matter is best reached through legislative channels.

The dissent disagreed with the majority’s holding on two grounds. It first argued that the court could not decide the matters at hand because only Congress could answer what interest the federal government must have in Alaska’s waters in order for those waters to be considered public lands. The dissent argued that because there was so little evidence of what Congress intended by the word “interest,” the court could not reach any well-reasoned decision. Because any holding, the dissent argued, would have far-reaching consequences, and would not be well grounded in sound reasoning, it should not rule on the issue but wait for Congress to act.

The dissent then argued that were the decision the court’s to make, it still could not give effect to Congress’s intent. The dissent went through each of the theories on which the majority relied, discrediting each. First, it found that the reserved water rights doctrine is inapplicable to the case at hand because it only applies to waters running over lands that the federal government owns. Such is not the case here because Alaska has title to the lands beneath navigable waters, pursuant to the Submerged Lands Act of 1953.[5] It then argued that subsistence fishing by a few Alaskan natives would not sufficiently affect interstate commerce for the Commerce Clause to provide support for the notion of a federal interest in the waters. Finally, the dissent found that the navigational servitude, which gives the federal government power to condemn lands underneath navigable waterways without compensation, is also inapplicable because the navigational servitude requires that the condemnation be done to maintain waters as navigable.

The dissent therefore concluded that the court is unable to resolve any question as to whether Alaska or the United States has control over Alaska’s navigable waters, and that therefore it should reverse the district court holding and wait for Congress to make a decision.

[1]42 U.S.C. § 3102 (1994).

[2] Id. § 3101.

[3] Id. § 3102(1) (1994).

[4]803 F.2d 1016, 1027 n.6 (9th Cir. 1986), cert. denied, 484 U.S. 870 (1987).

[5]16 U.S.C. § 3102(3)(A) (1994).

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