## Facts

- ANILCA provides a rural subsistence priority for taking fish and wildlife on “public lands” in Alaska.
- After Alaska became unable to administer ANILCA’s rural priority under state law, federal agencies assumed management for subsistence on “public lands.”
- Federal regulations initially defined “public lands” in a manner that excluded most navigable waters.
- Rural Alaska Native subsistence users and related organizations challenged that definition, asserting that some navigable waters should be covered because the United States retained reserved water rights connected to federal reservations.
- A prior Ninth Circuit decision held that federal reserved water rights are a sufficient federal “interest in land” to treat the affected navigable waters as “public lands” for ANILCA subsistence purposes.
- On remand, the district court entered judgment implementing the prior Ninth Circuit mandate; Alaska appealed that judgment.
- The Ninth Circuit granted en banc review to decide whether the prior panel judgment and the district court’s implementing judgment should be altered.

## Issues

1. Whether the en banc court should disturb or modify the prior Ninth Circuit decision treating certain navigable waters as “public lands” under ANILCA due to federal reserved water rights.
2. Whether the district court properly entered judgment implementing the prior Ninth Circuit mandate on the scope of federal subsistence jurisdiction over covered navigable waters.

## Decision

- The en banc court affirmed the district court’s judgment.
- The court declined to disturb or alter the prior panel’s judgment that federal reserved water rights can bring associated navigable waters within ANILCA “public lands.”
- As a result, federal agencies could continue applying ANILCA’s rural subsistence priority to those navigable waters covered by reserved federal water rights tied to federal reservations.

## Legal Principles

- Under the reserved water rights doctrine, when the United States reserves land for federal purposes, it impliedly reserves sufficient water rights to fulfill the reservation’s purposes.
- Federal reserved water rights in navigable waters constitute a federal “interest in land” sufficient to treat the affected waters as “public lands” for ANILCA subsistence management.
- Where such reserved rights exist, federal authorities may regulate subsistence fishing under ANILCA’s priority regime on the covered navigable waters.

## Conclusion

The en banc Ninth Circuit left in place the existing circuit rule that certain navigable waters are subject to ANILCA subsistence management when the United States holds reserved water rights appurtenant to federal reservations, and it affirmed the district court judgment implementing that rule.


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