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July 24, 1998

BRUCE BABBITT, Secretary of the Interior, et al., Defendants.

The opinion of the court was delivered by: ROBERTSON


 Plaintiffs, the Alaska Legislative Council and certain members of the Alaska State Legislature suing in their capacities both as legislators and as residents of Alaska, bring three challenges to federal implementation of Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. §§ 3111-3126. They seek declaratory and injunctive relief against any implementation of ANILCA that, as they see it, would violate the Commerce Clause, U.S. Const. Art. I, § 8, Cl. 3, the Property Clause U.S. Const. IV, § 3, Cl. 2, and the Tenth and Eleventh Amendments (First Claim for Relief); the Equal Protection component of the Fifth Amendment (Second Claim for Relief); and the Administrative Procedure Act (APA) (Third Claim for Relief).

 Before the court is defendants' motion to dismiss, asserting that plaintiffs' claims are barred by, inter alia, the statute of limitations, the doctrine of res judicata, lack of standing, and ripeness. The motion will be granted for the reasons set forth below.


 Congress enacted Title VIII of ANILCA in 1980 to respond to a perceived failure on the part of the State of Alaska and federal authorities to protect subsistence hunting and fishing in Alaska. Title VIII requires that rural Alaska residents who wish to make non-wasteful subsistence use of fish and wildlife on public lands be given a priority to continue such use. Recognizing that fish and game regulation has traditionally been a prerogative of the State, however, Congress authorized the federal government to implement ANILCA's subsistence priority only if Alaska failed to enact laws of general applicability consistent with ANILCA.

 The State of Alaska, which has consistently and vehemently opposed a federal takeover of wildlife management within its borders, had already enacted such legislation. In 1982, the Secretary of the Interior certified Alaska's legislation as sufficient to stay federal implementation of ANILCA, and the state began to enforce the subsistence priority. That state of affairs continued until 1989, when the Alaska Supreme Court ruled that the state legislation creating the rural subsistence priority violated the state Constitution. McDowell v. Alaska, 785 P.2d 1 (Alaska 1989). Legislative remedies were thereafter proposed but not enacted. In 1990, the federal government began to implement Title VIII itself.

 The instant lawsuit is but the latest in a series of actions challenging the federal implementation of Title VIII. The others were litigated in the United States District Court for the District of Alaska and the United States Court of Appeals for the Ninth Circuit. The two main challenges, State of Alaska v. Babbitt and Katie John v. United States, were consolidated before Judge Russell Holland in the District of Alaska. The plaintiff in Alaska v. Babbitt challenged the authority of the Secretary of the Interior to implement the subsistence priority, which he had done by regulation after finding the state to be in noncompliance with Title VIII following the Alaska Supreme Court's decision in McDowell. The plaintiffs in Katie John, subsistence users of a fishing camp located along navigable waters in the Wrangell-St. Elias National Park, challenged the exclusion of navigable waters from the federal scheme, arguing that ANILCA defined "public lands" subject to the priority to include all navigable waters.

 Judge Holland rejected the challenge to federal implementation by the State of Alaska, ruling that "the Secretary [of the Interior], not the State of Alaska, is entitled to manage fish and game on public (federal) lands in Alaska for purposes of Title VIII of ANILCA." John v. United States, 1994 U.S. Dist. LEXIS 12785, 1994 WL 487830, *9 (D. Alaska, Mar. 30, 1994). The Ninth Circuit resolved the question raised by the Katie John plaintiffs, holding that "public lands subject to subsistence management under ANILCA include certain navigable waters," specifically those over which the United States has reserved water rights, but not all navigable waters. State of Alaska v. Babbitt, 72 F.3d 698, 703 (9th Cir. 1995), cert. denied, 517 U.S. 1187, 134 L. Ed. 2d 776, 116 S. Ct. 1672 (1996). *fn1" (The Ninth Circuit reached only the "navigable waters" issue raised by the Katie John plaintiffs because the state stipulated to the dismissal with prejudice of its appeal on the issue of federal authority to implement the subsistence priority. See 72 F.3d at 700 n.2.)

 Plaintiffs brought this new challenge to the federal government's authority in an apparent attempt to avoid the Hobson's choice between amending Alaska's Constitution to permit state implementation of the subsistence priority and suffering federal government implementation. Defendants immediately moved to transfer the case to Alaska, where Judge Holland was already familiar with ANILCA and had a similar case pending on his docket. Plaintiffs in that pending case, however, voluntarily dismissed their suit, and thereafter, because plaintiffs in this action had chosen a proper forum (though perhaps not the most logical one), the motion to transfer was denied.

 The defendants then filed the instant motion dismiss. *fn2" They sought expedited consideration because the Alaska Legislature was about to convene for the purpose, among other things, of considering a constitutional amendment.


 1. First claim for relief

 The first count of the Amended Complaint alleges that Congress exceeded its authority under the Commerce Clause, the Property Clause, the Enumerated Powers Doctrine, and the Tenth and Eleventh Amendments. Defendants move to dismiss on the theory that, because these claims could have been litigated in Alaska v. Babbitt, plaintiffs are barred by the doctrine of claim preclusion from bringing them now. The doctrine of claim preclusion provides that

when a final judgment has been entered on the merits of a case, it is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to ...

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