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Alaska Department of Law 

State requests U.S. Supreme Court review of federal reserved water rights case

 


On Nov. 4, the State of Alaska filed a petition for writ of certiorari with the United States Supreme Court in State vs. Jewell. The petition requests review of the Ninth Circuit Court of Appeals’ decision extending control over fishing and hunting to the federal government on state-owned navigable waters not only in, but also adjacent to federal lands.

The case involves fundamental questions of control and authority over navigable waters in the state. When Alaska became a state, it was granted the same sovereign rights as all other states, including title to the lands underlying navigable waterways within its borders, and the right to control those navigable waters and the resources in them. This right applies regardless of whether the waterway goes through federal land.

According to Attorney General Michael Geraghty, “This decision not only threatens the principle that Alaskans should manage their own fish and game, which was the impetus for Alaska statehood, but also the ability of the state to conserve its resources for future generations.”

A federal regulation promulgated in 1999 took away control of navigable waters from the state and placed them under the authority of the federal government. Relying on an unprecedented extension of the federal reserved water rights doctrine, the Ninth Circuit upheld the regulation extending federal subsistence jurisdiction to navigable waterways not only in, but adjacent to federal lands under the Alaska National Interest Lands Conservation Act. This has led to conflicts and confusion about whether federal or state laws relating to fishing, hunting, and resource conservation apply on state-owned navigable waterways.

“Confusion and uncertainty for user groups do not serve Alaskans. That confusion, and the potential for future conflicts and litigation, will only increase,” stated Attorney General Geraghty, in explaining why the state is seeking appellate review.

A copy of the state’s petition is available at gov.alaska.gov/parnell_media/resources_files/petition110413.pdf.

 

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