December 6, 2013

PLF files amicus brief in Supreme Court in support of State of Alaska

By Anthony L. Francois Senior Attorney

The State of Alaska has asked the United States Supreme Court to review a decision of the Ninth Circuit which says that the federal government, instead of the state, has the power to regulate hunting and fishing in navigable waters in Alaska.  PLF has filed an amicus brief in support of Alaska, encouraging the high court to accept the case.

As a general matter, states have sovereignty over the navigable waters in their territory, and also have the primary authority to regulate hunting, fishing, and wildlife generally.  And the United States Supreme Court has previously ruled that this is so in Alaska.  But since 1999, the federal government has asserted control over fishing and hunting in Alaska’s navigable waters, under a controversial reading of the Alaska National Interest Land Conservation Act (ANILCA).  The government’s forced interpretation of ANILCA has resulted in a federal takeover of a vast expanse of Alaska’s navigable waterways.

The Ninth Circuit agreed with the US Park and Forest Services that even though ANILCA does not clearly express a congressional intent to override customary federal deference to state management of navigable waters, the federal agencies could nonetheless usurp state control through a Rube Goldberg type series of questionable agency interpretations of various terms in the statute.  This violates long established United States Supreme Court precedent that federal displacement of state sovereignty over navigable waters will not be found absent a clear statement from Congress.

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