John v. United States

TALLMAN, Circuit Judge,

with whom Circuit Judges TASHIMA and W. FLETCHER join, concurring in the judgment:

The Court today affirms the district court’s judgment effectuating the opinion of the majority in Alaska v. Babbitt, 72 F.3d 698 (9th Cir.1995) (“Katie John I”).1 That decision approved an interpretation of ANILCA that seized on a single, undefined term — “title”—and, as a result, limited ANILCA’s protection of subsistence fishing.

We write separately because we do not believe Congress intended the reserved water rights doctrine to limit the scope of ANILCA’s subsistence priority. The…