Sally Jewell is substituted for her predecessor, Kenneth Lee Salazar, *

as Secretary of the Interior. Fed. R. App. P. 43(c)(2).

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT *

KATIE JOHN; CHARLES ERHART;

ALASKA INTER-TRIBAL

COUNCIL; NATIVE VILLAGE OF

TANANA; STATE OF ALASKA,

Plaintiffs,

and

ALASKA FISH AND WILDLIFE

CONSERVATION FUND; ALASKA

FISH AND WILDLIFE FEDERATION

AND OUTDOOR COUNCIL; JOHN

CONRAD; MICHAEL TINKER,

Plaintiffs-IntervenorsAppellants,

v.

UNITED STATES OF AMERICA;

MIKE JOHANNS; SALLY JEWELL,

*

Secretary of the Interior,

Defendants-Appellees,

ALASKA FEDERATION OF

NATIVES,

Defendant-Intervenor-Appellee.

No. 09-36122

D.C. Nos.

3:05-cv-00006-HRH

3:05-cv-00158-HRH
2 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

KATIE JOHN; CHARLES ERHART;

ALASKA INTER-TRIBAL

COUNCIL; NATIVE VILLAGE OF

TANANA,

Plaintiffs,

ALASKA FISH AND WILDLIFE

CONSERVATION FUND; ALASKA

FISH AND WILDLIFE FEDERATION

AND OUTDOOR COUNCIL; JOHN

CONRAD; MICHAEL TINKER,

Plaintiffs-Intervenors,

and

STATE OF ALASKA,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA;

MIKE JOHANNS; SALLY JEWELL,

Secretary of the Interior,

Defendants-Appellees,

ALASKA FEDERATION OF

NATIVES,

Defendant-Intervenor-Appellee.

No. 09-36125

D.C. Nos.

3:05-cv-00006-HRH

3:05-cv-00158-HRH
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 3

KATIE JOHN; CHARLES ERHART;

ALASKA INTER-TRIBAL

COUNCIL; NATIVE VILLAGE OF

TANANA,

Plaintiffs-Appellants,

and

STATE OF ALASKA,

Plaintiff,

ALASKA FISH AND WILDLIFE

CONSERVATION FUND; ALASKA

FISH AND WILDLIFE FEDERATION

AND OUTDOOR COUNCIL; JOHN

CONRAD; MICHAEL TINKER,

Plaintiffs-Intervenors,

v.

UNITED STATES OF AMERICA;

MIKE JOHANNS; SALLY JEWELL,

Secretary of the Interior,

Defendants-Appellees,

ALASKA FEDERATION OF

NATIVES,

Defendant-IntervenorAppellee.

No. 09-36127

D.C. Nos.

3:05-cv-00006-HRH

3:05-cv-00158-HRH

OPINION
4 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

Judge Betty B. Fletcher was a member of the panel but passed away **

after oral argument. Judge Canby was drawn to replace her. He has read

the briefs, reviewed the record, and listened to the tape of oral argument

held on July 25, 2011.

 This summary constitutes no part of the opinion of the court. It has

***

been prepared by court staff for the convenience of the reader.

Appeal from the United States District Court

for the District of Alaska

H. Russel Holland, Senior District Judge, Presiding

Argued and Submitted

July 25, 2011—Anchorage, Alaska

Filed July 5, 2013

Before: William C. Canby, Jr., Andrew J. Kleinfeld,

and Consuelo M. Callahan, Circuit Judges.**

Opinion by Judge Kleinfeld

SUMMARY

***

Alaska National Interest Lands Conservation Act

The panel affirmed the district court’s decisions

upholding the 1999 Final Rules promulgated by the Secretary

of the Interior and the Secretary of Agriculture to implement

part of the Alaska National Interest Lands Conservation Act

concerning subsistence fishing and hunting rights.
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 5

In Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995) (“Katie

John I”), the court held that, because Congress included

subsistence fishing in Title VIII, the Act applied to some of

Alaska’s navigable waters. The 1999 Rules identified which

navigable waters within Alaska constituted “public lands”

under Title VIII of the Act, which provides a priority to rural

Alaska residents for subsistence hunting and fishing on such

lands. 

As threshold issues, the panel held that the Secretaries

appropriately used notice-and-comment rulemaking, rather

than adjudication, to identifywhose waters are “public lands”

for the purpose of determining the scope of the Act’s rural

subsistence policy; and that in construing the term “public

lands,” the Secretaries were entitled to “some deference.”

The panel concluded that, in the 1999 Rules, the Secretaries

applied Katie John I and the federal reserved water rights

doctrine in a principled manner. The panel held that it was

reasonable for the Secretaries to decide that: the “public

lands” subject to the Act’s rural subsistence priority included

the waters within and adjacent to federal reservations; and

reserved water rights for Alaska Native Settlement allotments

were best determined on a case-by-case basis.
6 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

COUNSEL

Michael G. Mitchell (argued), Michael W. Sewright,

Assistant Attorneys General, Anchorage, Alaska; William P.

Horn and James H. Lister, Birch, Horton, Bittner, and Cherot,

Washington, D.C., for Appellant State of Alaska.

Will Sherman for Appellants Alaska Fish and Wildlife

Federation and Outdoor Council, Alaska Fish & Wildlife

Conservation Fund, Michael Tinker, and John Conrad.

Heather Kendall-Miller (argued), Native American Rights

Fund, Anchorage, Alaska, for Appellants Katie John, Charles

Erhart, Alaska Inter-Tribal Council, and Native Village of

Tanana.

Elizabeth Ann Peterson (argued), United States Department

of Justice, Environmental & Natural Resources Division,

Washington, D.C., for Appellees United States of America,

Mike Johanns and Sally Jewell.

Robert T. Anderson (argued), University of Washington

School of Law, Seattle, Washington, for Appellee Alaska

Federation of Natives.

Peter J. Ampe, First Assistant Attorney General, Federal and

Interstate Water Unit, Denver, Colorado, for Amicus Curiae

State of Colorado; Stephen R. Farris, Assistant Attorney

General, Director, Water, Environment, and Utilities

Division, Santa Fe, New Mexico, for Amicus Curiae State of

New Mexico; Peter K. Michael, Senior Assistant Attorney

General, Cheyenne, Wyoming, for Amicus Curiae State of

Wyoming.
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 7

 16 U.S.C. §§ 3101-3233, Pub. L. 96-487, 94 Stat. 2371 (1980). 1

OPINION

KLEINFELD, Senior Circuit Judge:

These consolidated appeals concern the 1999 Final Rules

(“1999 Rules”) promulgated by the Secretary of the Interior

and the Secretary of Agriculture (“Secretaries”) to implement

part of the Alaska National Interest Lands Conservation Act

(“ANILCA”). The 1999 Rules identify which navigable 1

waters within Alaska constitute “public lands” under Title

VIII of ANILCA, which provides a priority to rural Alaska

residents for subsistence hunting and fishing on such lands.

Plaintiffs-Appellants Katie John, et al., argue that the 1999

Rules sweep too narrowly, in that they fail to designate

certain navigable waterways as “public lands” subject to the

federal rural subsistence priority. Plaintiff-Appellant the

State of Alaska arguesthat the 1999 Rules sweep too broadly,

in that they include as “public lands” subject to the priority

waters in which no federal interest exists. The district court

upheld the 1999 Rules against both sets of challenges. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

BACKGROUND

A. Legal and factual background

1. ANILCA and the rural subsistence priority

Congress enacted ANILCA to preserve and protect

“nationally significant natural, scenic, historic, archeological,

geological, scientific, wilderness, cultural, recreational, and
8 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 16 U.S.C. § 3101(a)–(b); see also id. § 3102(4) (defining “conservation 2

system units”).

 Id. § 3101(c)–(d). 3

 Id. § 3114. 4

 Id. § 3113 (emphasis added). 5

wildlife values” and landscapes by creating “conservation

system units,” such as national parks, preserves, and other

federal reservations. Congress also sought to protect the 2

“subsistence way of life for rural residents” and the resources

upon which they depend, as well as to obviate the need for

future legislation regarding environmental conservation and

subsistence uses.3

To protect the “subsistence way of life for rural

residents,” Title VIII of ANILCA provides that, “[e]xcept as

otherwise provided in this Act and other Federal laws, the

taking on public lands of fish and wildlife for nonwasteful

subsistence uses shall be accorded priority over the taking on

such lands of fish and wildlife for other purposes.”4

“Subsistence uses” are defined as “customary and traditional

uses by rural Alaska residents of wild, renewable resources

. . . .” This federal subsistence priority for rural Alaska 5

residents therefore applies to all “public lands,” which

ANILCA defines as “land situated in Alaska which, after

December 2, 1980, are Federal lands,” except, as pertinent

here, “land selections of the State of Alaska which have been

tentatively approved or validly selected under the Alaska

Statehood Act and lands which have been confirmed to,

validly selected by, or granted to the Territory of Alaska or

the State under any other provision of Federal law,” and “land

selections of a Native Corporation made under the Alaska
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 9

 Id. § 3102(3). 6

 Id. § 3102(1)–(2). 7

 Id. § 3114. 8

 Id.

9

 Id. § 3115. 10

 Id. § 3115(d). 11

Native Claims Settlement Act which have not been conveyed

to a Native Corporation, unless any such selection is

determined to be invalid or is relinquished.” Federal lands 6

are “lands the title to which is in the United States after

December 2, 1980,” and “land” is “lands, waters, and

interests therein.” ANILCA gives rural subsistence uses 7

“priority over the taking on such lands of fish and wildlife for

other purposes.” When it is “necessary to restrict the taking 8

of populations of fish and wildlife on such lands for

subsistence uses in order to protect the continued viability of

such populations, or to continue such uses,” implementation

of such restrictions is subject to a set of criteria.9

ANILCA charges the Secretaries with implementing its

rural subsistence priority in Alaska. However, ANILCA 10

states that the Secretaries should not take action to implement

Title VIII if Alaska “enacts and implements laws of general

applicability which are consistent with” ANILCA’s rural

subsistence priority requirements. In other words, ANILCA 11

expresses a preference for state management of the rural
10 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 See id. § 3202(a). 12

 Id. § 3117. 13

 McDowell v. State, 785 P.2d 1, 1–2 (Alaska 1989) (citing Ch. 151 § 4 14

SLA 1978).

 Id. at 2. 15

 5 Alaska Admin. Code § 01.597 (repealed 1985), reprinted in 16

Madison v. Alaska Dep’t of Fish & Game, 696 P.2d 168, 172 n.8 (Alaska

1985); see also Bobby v. Alaska, 718 F. Supp. 764, 767 (D. Alaska 1989).

subsistence priority on “public lands,” but provides that the

United States may step in where the State fails to act.12

Persons aggrieved by an alleged failure to enforce the

rural subsistence priority are authorized to “file a civil action

in the United States District Court for the District of Alaska

to require such actions to be taken as are necessary to provide

for the priority.”13

2. The State’s efforts to protect subsistence uses

Alaska had addressed subsistence uses before ANILCA’s

passage, and had taken steps to assume the management

responsibility that ANILCA contemplated. A 1978 state law,

passed in anticipation of ANILCA becoming law, established

“that subsistence hunting and fishing had priority over other

uses of fish and game stocks.” The statute identified two 14

tiers of subsistence users based on customary and direct

dependence, local residency, and availability of alternative

resources. The state Joint Boards of Fish and Game issued 15

regulations linking subsistence fishing to particular

geographic communities, and eventually introducing a rural 16
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 11

 5 Alaska Admin. Code § 99.010 (1982), reprinted in Bobby,

17

718 F. Supp. at 794–95.

 See 5 Alaska Admin. Code § 99.020 (1982) (“In this chapter, ‘rural’ 18

means outside the road connected area of a borough, municipality, or other

community with a population of 7,000 or more, as determined by the

Alaska Department of Community and regional Affairs.”), reprinted in

Bobby, 718 F. Supp. at 795; see also Kenaitze Indian Tribe v. Alaska,

860 F.2d 312, 314 (9th Cir. 1988), cert. denied, 491 U.S. 905 (1989).

 Madison v. Alaska Dep’t of Fish & Game, 696 P.2d 168 (Alaska 19

1985).

 Madison, 696 P.2d at 177–78. 20

element to the subsistence preference. The regulations 17

initially treated towns with fewer than 7,000 people as

“rural.” In 1982, the Secretary of the Interior certified 18

Alaska to manage subsistence hunting and fishing on public

lands, as ANILCA and the Alaska legislature had intended.

However, in 1985, the Alaska Supreme Court held in

Madison that the regulations linking subsistence fishing to 19

particular geographic communities were inconsistent with

Alaska’s subsistence statute. The court reasoned that the

statutory preference was for subsistence users, whether or not

they were rural. Many Alaskans depend heavily on wild 20

fish and game for their protein, whether they live in isolation

or in villages, small towns, or cities. The Secretary of the

Interior notified the Governor of Alaska that Madison’s

holding “raised questions as to the continuing eligibility of

the State to manage subsistence on public lands in Alaska,”

and that Alaska had until June 1, 1986 to “revise its
12 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 Letter from Bill Horn, Assistant Secretary, Fish and Wildlife and 21

Parks, Office of the Secretary, United States Department of the Interior,

to Bill Sheffield, Governor of Alaska (Sept. 23, 1985), reprinted in Bobby,

718 F. Supp. at 813–15.

 McDowell, 785 P.2d at 1 (quoting Ch. 52 SLA 1986); see also 22

Kenaitze, 860 F.2d at 314.

 McDowell, 785 P.2d at 2 (quoting Alaska Stat. § 16.05.940(25)).

23

 See 5 Alaska Admin. Code § 99.020 (1982) (“In this chapter, ‘rural’ 24

means outside the road connected area of a borough, municipality, or

other community with a population of 7,000 or more, as determined by the

Alaska Department of Community and regional Affairs.”) (emphasis

added).

subsistence program to bring it back into compliance” with

ANILCA’s rural subsistence priority requirement.21

In response, the Alaska legislature amended the state

subsistence statute to expressly limit the definition of

subsistence activities to those “‘domiciled in a rural area of

the state.’” The amended statute defined a “rural area” as 22

“‘a community or area of the state in which the

noncommercial, customary, and traditional use of fish or

game for personal or family consumption is a principal

characteristic of the economy of the community or area.’”

23

Under the amended statute, the State did not treat the

Kenai peninsula as rural because it had Sears and Safeway

stores and shopping malls. That is, Alaskans tended to use

the word “rural” to refer to areas off the road system, rather

than sparsely populated agricultural areas, there being few

roads and little agriculture in Alaska. Accordingly, Alaska 24

law had provided a subsistence priority to people who largely

depended on hunting and fishing for their living. However,
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 13

 Kenaitze Indian Tribe v. Alaska, 860 F.2d 312 (9th Cir. 1988). 25

 Id. at 314 n.2. 26

 Id. at 316 (emphasis added). 27

 Id. at 317. 28

 McDowell v. State, 785 P.2d 1 (Alaska 1989). 29

 Id. at 9. 30

in Kenaitze Indian Tribe, the Ninth Circuit reasoned that the 25

Kenai peninsula had “a long way to go before it approaches

anything resembling an urban community.” Kenaitze held 26

that the state’s definition of “rural”—economies dominated

by subsistence fishing and hunting—“would exclude

practically all areas of the United States that we think of as

rural, including virtually the entirety of such farming and

ranching states as Iowa and Wyoming,” and was therefore

invalid. “Rural,” Kenaitze held, meant something like 27

communities smaller than 2,500 people, or towns or cities

outside urban areas with populations not exceeding certain

limits. Thus, under Kenaitze, ANILCA’s priority applied to 28

people in small communities regardless of whether they

depended on hunting and fishing.

In 1989, several months after Kenaitze came down, the

Alaska Supreme Court concluded in McDowell that Chapter 29

52 SLA 1986, the rural subsistence priority chapter put into

the Alaska Code to conform to ANILCA, was in tension with

provisions of the Alaska Constitution providing for common

use of fish and game and equality of access among those

similarly situated. Though a subsistence preference based 30

on individual characteristics would satisfy the Alaska
14 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 Id. at 10. 31

 Id. at 10–11. 32

 Id. at 9. 33

 See Subsistence Management Regulations for Public Lands in Alaska, 34

Subparts A, B, and C, 57 Fed. Reg. 22,940, 22,942 (May 29, 1992)

(codified at 36 C.F.R. pt. 242 and 50 C.F.R. pt. 100).

constitution, the rural-urban distinction was an “extremely

crude” means to establish such a preference. That is, many 31

of Alaska’s subsistence users lived in what, for Alaska, were

“urban” areas, and many people living in what were, under

Kenaitze, “rural” areas did not extensively rely on subsistence

resources. Accordingly, the Alaska Supreme Court held 32

that the rural subsistence priority chapter provided too poor

a fit with Alaska subsistence lifestyles to satisfy state

constitutional requirements.

33

3. Federal efforts to implement ANILCA’s rural

subsistence priority, Katie John I, and Katie John

II

Following McDowell, the federal government denied the

re-certification Alaska needed under ANILCA to manage its

own fish and game. Implementation of ANILCA’s rural

subsistence priority accordingly fell back to the federal

government in July 1990. In initial regulations promulgated

in 1992 (“1992 Rules”), the Secretaries took the position that

“public lands” under Title VIII of ANILCA, or those lands

subject to the rural subsistence priority, excluded all

navigable waters in Alaska. This position generated several

34

lawsuits, which were consolidated into a single action.

During the course of that litigation, the Secretaries changed
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 15

 Alaska v. Babbitt, 72 F.3d 698, 701 (9th Cir. 1995), cert. denied,

35

517 U.S. 1187 (1996).

 Babbitt, 72 F.3d 698. 36

 Id. at 702. 37

 Id. at 703–04 (emphasis added). 38

 Id. at 702 (quotation marks omitted). 39

 Id. at 702–03. 40

their position, arguing instead that some navigable waters

were “public lands” by virtue of the federal reserved water

rights doctrine, and therefore subject to the rural subsistence

priority.35

The consolidated lawsuits against the 1992 Rules came

before us in Alaska v. Babbitt (“Katie John I”). We 36

concluded that, because Congress included subsistence

fishing in Title VIII, ANILCA applies to some of Alaska’s

navigable waters. We observed that Title VIII was unclear 37

as to which navigable waters constitute “public lands,” but

rejected the Katie John plaintiffs’ argument, with which the

district court had agreed, that “public lands” includes “all

navigable waters” in Alaska. We explained that the federal

38

navigational servitude is a “concept of power, not property.”39

Because it did not give the United States any property

interest, the navigational servitude did not establish “public

lands,” the sine qua non for application of ANILCA’s rural

subsistence priority. Our task, therefore, was to “decide 40

whether the federal agencies’ conclusion that public lands

include some navigable waters under the reserved water
16 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 Id. at 702. 41

 Id. at 703. 42

 Id. 43

 Id. at 700, 704; see also id. at 704 (expressing “hope that the federal 44

agencies will determine promptly which navigable waters are public lands

subject to federal subsistence management”).

rights doctrine” was “based on a permissible construction of

the statute.”41

We concluded that it was. We explained that the United

States, in “reserv[ing] vast parcels of land in Alaska for

federal purposes through a myriad of statutes,”42

has also implicitly reserved appurtenant

waters, including appurtenant navigable

waters, to the extent needed to accomplish the

purposes of the reservations. By virtue of its

reserved water rights, the United States has

interests in some navigable waters.

Consequently, public lands subject to

subsistence management under ANILCA

include certain navigable waters.

43

We held that the “federal agencies that administer the

subsistence priority are responsible for identifying those

waters.” We recognized that this directive placed an 44

“extraordinary administrative burden” on the Secretaries, that

ANILCA contemplated a robust role for the State in

managing ANILCA’s rural subsistence priority, and that

“[o]nly legislative action by Alaska or Congress will truly
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 17

 Id. at 704. 45

 Subsistence Management Regulations for Public Lands in Alaska, 46

Subparts A, B, C, and D, Redefinition to Include Waters Subject to

Subsistence Priority, 64 Fed. Reg. 1,276, 1,276 (Jan. 8, 1999) (codified at

36 C.F.R. pt. 242 and 50 C.F.R. pt. 100).

 Id. 47

 Id. at 1,286–87. 48

 Id. at 1,287. These land units are a mix of ANILCA conservation 49

system units and other federal reservations.

resolve the problem” of how best to manage ANILCA’s rural

subsistence priority vis-à-vis Alaskan waters.

45

Following Katie John I, the Secretaries issued the 1999

Rules, which “amend[ed] the scope and applicability of the

Federal Subsistence Management Program in Alaska to

include subsistence activities occurring on inland navigable

waters in which the United States has a reserved water right

and to identify specific Federal land units where reserved

water rights exist.” Rather than listing specific bodies of 46

water that are “public lands” by virtue of the federal reserved

water rights doctrine, the 1999 Rules identify “Federal land

units in which reserved water rights exist.” The 1999 Rules 47

provide that the Rules apply to “all public lands including all

non-navigable waters located on these [land units], on all

navigable and non-navigable water within the exterior

boundaries of the [land units], and on inland waters adjacent

to the exterior boundaries of the [land units].” The 1999 48

Rules list thirty-four separate “Federal land units” subject to

this general rule of applicability. The 1999 Rules also, 49
18 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 43 U.S.C. § 1635(o)(2); see infra 62–65 (discussing § 906(o)(2)). 50

 64 Fed. Reg. at 1,276. 51

 See, e.g., United States v. Bass, 404 U.S. 336, 349 (1971) (“In

5 2

traditionally sensitive areas, such as legislation affecting the federal

balance, the requirement of clear statement assures that the legislature has

in fact faced, and intended to bring into issue, the critical matters involved

in the judicial decision.”).

 See John v. United States, 247 F.3d 1032 (9th Cir. 2001) (en banc) 53

(“Katie John II”).

pursuant to § 906(o)(2) of ANILCA, extend rural 50

subsistence priority management “to all Federal lands

selected under the Alaska Native Claims Settlement Act and

the Alaska Statehood Act and situated within the boundaries

of a Conservation System Unit, National Recreation Area,

National Conservation Area, or any new national forest or

forest addition, until conveyed to the State of Alaska or an

Alaska Native Corporation.”51

In 2000, the district court, which had retained jurisdiction

over the consolidated challenges to the 1992 Rules on remand

from Katie John I, concluded that the action should not serve

as the vehicle for challenges to the 1999 Rules. The court

issued an order “readopting all of its rulings on the merits,”

deeming those rulings final “for all purposes and to all

parties,” and dismissing the case.

The State of Alaska appealed this final judgment, arguing

that the “clear statement doctrine” precluded the 52

determination that any navigable waters in Alaska could

constitute “public lands.” We granted initial en banc

rehearing. In a per curiam opinion, we wrote that “[a] 53
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 19

 Id. at 1033. 54

 Id. at 1034 (Tallman, J., concurring in the judgment). 55

 Id. at 1045–46 (Kozinski, J., dissenting). 56

 Id. at 1046–47 (Kozinski, J., dissenting) (citing 16 U.S.C. 57

§ 3102(1)–(3)).

 Id. at 1048–49 (Kozinski, J., dissenting). 58

majority of the en banc court has determined that the

judgment rendered by the [Katie John I] panel, and adopted

by the district court, should not be disturbed or altered by the

en banc court.” In an opinion concurring in the judgment, 54

three judges took the position that the federal reserved water

rights doctrine does not limit the scope of ANILCA’s rural

subsistence priority; rather, because Congress was exercising

its authority under the Commerce Clause when it enacted

ANILCA, the priority applied to all navigable waters in

Alaska. In a dissenting opinion, three judges took the 55

position that ANILCA did not provide the necessary “clear

statement”—that Congress sought to take away “important

incidents of a state’s sovereignty”—to make navigable waters

within Alaska subject to federal control. They also argued 56

that the United States does not have “title” to Alaskan waters

or the lands underlying them. For these reasons, they 57

concluded that no navigable waters are “public lands” under

ANILCA. Since neither of these opinions garnered a 58

majority of votes, Katie John I remains controlling.
20 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 In 2005, the Secretaries published amendments to the 1999 Rules to 59

“revise[ ] and clarif[y] the jurisdiction of the Federal Subsistence

Management Program for certain coastal areas in Alaska.” Subsistence

Management Regulations for Public Lands in Alaska, Subpart A, 70 Fed.

Reg. 76,400, 76,400 (Dec. 27, 2005) (codified at 36 C.F.R. pt. 242 and

50 C.F.R. pt. 100). These amendments are not at issue in these appeals,

except where noted below.

B. The current litigation

The current litigation includes two consolidated

challenges to the 1999 Rules. In the first challenge, 59

Plaintiffs-Appellants Katie John, et al., argue that the 1999

Rules violate ANILCA because they fail to provide the rural

subsistence priority for (1) the navigable waters upstream and

downstream from the conservation system units created under

ANILCA, and (2) waters appurtenant to lands allotted to

Alaska Natives under the Alaska Native Allotment Act of

1906. The State of Alaska intervened as a defendant. In the

second challenge, the State of Alaska, along with several

intervenors, argue, in essence, that the regulations violate

ANILCA by designating as “public lands” (1) waterways

outside the boundaries of federal lands, conservation system

units, or national forests; (2) water that constitutes “marine

water”; and (3) land selected for but not yet conveyed to

Alaska or a Native corporation. The Katie John plaintiffs, as

well as the Alaska Federation of Natives, intervened as

defendants.

Thus, both challenges assert that the Secretaries

improperly interpreted and applied the federal reserved water

rights doctrine. For the Katie John plaintiffs, the Secretaries

were too restrained in applying the doctrine; for the State, the

Secretaries were not restrained enough. Both challenges also

assert that the 1999 Rules are not entitled to deference under
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 21

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). Finally, the State of Alaska argues

that the Secretaries should have used adjudication, not

rulemaking, to implement Katie John I.

The district court issued two decisions—which we and the

parties refer to as “what process” and “which waters”

decisions—in which it rejected all the challenges to the 1999

Rules. In its “what process” decision, the district court

concluded that “the Secretaries’ use of the rulemaking

process to identify reserved water rights for purposes of

federal subsistence management was lawful.” In the “which

waters” decision, the court discussed the “test case”

waterways submitted by the litigants and concluded that the

Secretaries’ designation of which waters constitute “public

lands” was “lawful and reasonable.” The parties timely

appealed.

ANALYSIS

A. Threshold issues

1. The federal reserved water rights doctrine

In Katie John I, we approved the Secretaries’ use of the

federal reserved waterrights doctrine to identify which waters

are “public lands” for purposes of ANILCA’s rural

subsistence priority. Because that doctrine underlies the 1999

Rules, the parties’ arguments in this case, and our

conclusions, some background on the doctrine and its place

in Alaska’s history is necessary.

Congress had unfettered power to regulate the Territory

of Alaska from 1867, when the United States purchased the
22 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 The U.S. Constitution gives Congress “the power to dispose of and 6 0

make all needful Rules and Regulations respecting the Territory . . .

belonging to the United States.” U.S. Const. art. IV, § 3.

 United States v. 32.24 Acres of Land, 683 F.3d 1030, 1035 (9th Cir. 61

2012) (quoting Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 474

(1988)).

 Id. at 1034. 62

 Pollard v. Hagan, 44 U.S. 212, 230 (1845). 63

land from Russia, until 1959, when the Territory attained

statehood. Under the “equal footing” doctrine, when Alaska 60

was “admitted into the Union, it gain[ed] ‘the same rights,

sovereignty and jurisdiction in that behalf as the original

States possess within their respective borders.’” More 61

specifically, the equal footing doctrine gave Alaska

“presumptive title to its submerged lands when it join[ed] the

Union.” “The shores of navigable waters, and the soils 62

under them, were not granted by the Constitution to the

United States, but were reserved to the states

respectively. . . . The new states have the same rights,

sovereignty, and jurisdiction over this subject as the original

states.” Thus the State of Alaska has the same rights over 63

lands under navigable waters within it as, say, the State of

New York and the State of California do over such waters

within their borders. This authority is constrained by two

separate federal rights: the navigational servitude and the

federal reserved water rights doctrine.

“It is settled law in this country that lands underlying

navigable waters within a state belong to the state in its

sovereign capacity and may be used and disposed of as [the

state] may elect, subject to the paramount power of Congress
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 23

 United States v. Holt State Bank, 270 U.S. 49, 54 (1926). 64

 Winters v. United States, 207 U.S. 564 (1908). 65

 Id. at 577. 66

 Akiak Native Cmty. v. EPA, 625 F.3d 1162, 1173 n.5 (9th Cir. 2010). 67

to control such waters for the purposes of navigation in

commerce among the states and with foreign nations . . . .”64

Thus, where rivers and streams are navigable in interstate

commerce, the United States has authority to protect a

navigational servitude, but the states own the river beds and

other submerged lands.

Since 1908, the courts have also recognized that a federal

reservation of land carries with it the right to use water

necessary to serve the purposes of federal reservations.

Under the federal reserved water rights doctrine, water rights

for federal reservations are distinct from the federal servitude

for navigable waters. So, for example, in Winters v. United

States, a non-navigable stream was protected upstream 65

despite the admission of Montana to statehood and despite its

non-navigability, because diverting the upstream water could

turn the downstream Indian reservation into a “barren waste,”

which would be inconsistent with reservation of the land for

the use of the tribe.66

Winters involved an Indian reservation, but the federal

reserved water rights doctrine applies to all federal

reservations. The word “reservation” does not mean only an 67

Indian reservation—there is only one Indian reservation in

Alaska, the Metlakatla Indian Community of Tsimshian

Indians at the Annette Islands Reserve south of
24 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 United States v. Celestine, 215 U.S. 278, 285 (1909); see also Coeur 68

D’Alene Tribe of Idaho v. Hammond, 384 F.3d 674, 693 (9th Cir. 2004).

 Cappaert v. United States, 426 U.S. 128 (1976). 69

 Id. at 138. 70

 Id. at 141. 71

 United States v. New Mexico, 438 U.S. 696 (1978). 72

 Id. at 716–18. 73

Ketchikan—but rather “any body of land, large or small,

which Congress has reserved from sale for any purpose.”68

Reservations in Alaska serve a variety of purposes, such as

military bases and parks. Cappaert v. United States, a 69

modern case, shows how the federal reserved water rights

doctrine works outside the context of an Indian reservation.

In Cappaert, the federal reservation of a national monument

featuring a notable pool of water required enough water to fill

the pool to protect an endangered species living there. As a

result, the state could not grant a permit to a ranch two and

one-half miles away to pump so much groundwater that the

pool (and the species) would be further endangered. The

Supreme Court held that a federal reservation acquires for the

federal government a right to “appurtenant water then

unappropriated to the extent needed to accomplish the

purpose of the reservation,” regardless of whether the waters

are navigable or nonnavigable. The federal right, though, 70

“reserves only that amount of water necessary to fulfill the

purpose of the reservation, no more.” In United States v. 71

New Mexico, the Court reiterated that the federal reserved

72

water rights doctrine is limited to the quantity of water

necessary to fulfill the primary purposes of the reservation.73
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 25

 Id. at 700. 74

 Id. at 708, 713–15; see also id. at 700 (“Each time this Court has

75

applied the ‘implied-reservation-of-water doctrine,’ it has carefully

examined both the asserted water right and the specific purposes for which

the land was reserved, and concluded that without the water the purposes

of the reservation would be entirely defeated.”).

 See, e.g., Colville Confederated Tribes v. Walton, 647 F.2d 42, 46–47 76

(9th Cir. 1981) (first considering the existence of water rights and then

considering the amount of water reserved).

Notably, in these cases the United States sought water

itself, for the need of the reservation itself. In Winters, the

water was needed on an Indian reservation for the Indians’

farms and ranches, and in Cappaert for the deep pool of water

for which the federal land was reserved. In New Mexico the

Supreme Court held that federally reserved waters are limited

to the primary purposes for which the land was reserved,

without which “the purposes of the reservation would be

entirely defeated.” Applying this narrow rule, the Court 74

rejected a federal claim to water rights for “aesthetic,

environmental, recreational, or wildlife-preservation

purposes,” because those were not the primary purposes for

which the national forest lands at issue had originally been

reserved.75

What makes this case difficult is that, until now, the

federal reserved water rights doctrine has operated in the

context of the United States enforcing its right to that amount

of water necessary to fulfill the purpose of a particular

reservation. That is, previous applications of the federal 76

reserved water rights doctrine have focused on the amount of

water needed for a specific federal reservation, rather than the

locations of water sources that might generally be needed for
26 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 Katie John I was issued as a two-judge majority, with one dissenting 77

opinion. See 72 F.3d at 704–08 (Hall, J., dissenting). In Katie John II,

three judges concurring in the judgment thought that Katie John I erred in

failing to uphold a rural subsistence priority over all navigable waters and

three dissenting judges were of the view that it erred in applying the

priority over any navigable waters. See 247 F.3d at 1034–50.

 Katie John II, 247 F.3d at 1033. 78

subsistence living from many such reservations. We, and

perhaps the Secretaries, failed to recognize the difficulties in

applying the federal reserved water rights doctrine in this

novel way, and in retrospect the doctrine may provide a

particularly poor mechanism for identifying the geographic

scope of ANILCA’s rural subsistence priority management

when it comes to water.

Of course, we had the opportunity to revisit Katie John I

in Katie John II, and while a majority of the en banc court

agreed for diverging reasons that Katie John I was incorrectly

decided, we could not come to a controlling agreement about

why that was true. We accordingly concluded that the 77

decision “should not be disturbed or altered.” Katie John I 78

therefore remains controlling law, and we must attempt to

apply it in this case.

2. Rulemaking versus adjudication

The State argues that the Secretaries were required to

adjudicate, rather than prescribe by rule, which waters the

United States has an interest in by virtue of the federal

reserved water rights doctrine. The State argues that an

adjudicative process “is necessary because a right is being

established and one entity’s water right burdens and

diminishes the right and interests of another.”
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 27

 Because the 1999 Rules do not actually burden the State’s right to use 79

water, they do not infringe upon ANILCA’s water rights savings clause.

See 16 U.S.C. § 3207 (“Nothing in [ANILCA] shall be construed as

limiting or restricting the power and authority of the United States

or . . . as affecting in any way any law governing appropriation or use of,

or Federal right to, water on lands within the State of Alaska[, or] as

expanding or diminishing Federal or State jurisdiction, responsibility,

interests, or rights in water resources development or control.”).

The State is correct that, until this point, the federal

reserved water rights doctrine has been applied to adjudicate

competing claims to water, a task that requires an adjudicator

to allocate use of water among the claimants. The State,

however, fails to appreciate the distinction between the

adjudication of the amount of federal reserved water rights

and the identification of the geographic scope of those rights

for purposes of administering ANILCA’s rural subsistence

priority. The Secretaries were charged with the latter task,

i.e., identifying those bodies of water to which the rural

subsistence priority might apply by virtue of the federal

reserved water rights doctrine. Thus, the 1999 Rules identify

the bodies of waters in which the Secretaries believe the

United States has a federal reserved water rights interest (for

purposes of administering ANILCA), but they do not actually

allocate or reserve any water in these bodies. In other words,

the rules do not purport to assert rights over a particular

amount of water, nor do they do anything to displace future

water rights litigation. The agencies are not, therefore,

“determining their own water rights,” nor does their

rulemaking burden the State’s right to use water.

79

Two implications flow from this observation. First, as

long as water remains abundant in the identified bodies,
28 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 See New Mexico, 438 U.S. at 699 (recognizing that, where water is 80

abundant, there is no need to determine the relative rights of various

claimants of water from a particular source).

 16 U.S.C. § 3124. 81

 Katie John I, 72 F.3d at 704. 82

allocation of their waters may never become necessary.80

Second, any future attempt by the United States to enforce its

right to reserved water in a particular body could burden the

State’s use of water. At that point, the State could challenge

the quantitative scope of the United States’ reservation.

Indeed, in the context of a particular enforcement action, the

State could take the position that no amount of water from a

particular identified source is necessary to fulfill the primary

purposes of the reservation. But, to reiterate, the 1999 Rules

do not displace or otherwise affect future water rights

litigation; they were promulgated merely for the purposes of

administering Title VIII of ANILCA and complying with

Katie John I.

For these reasons, we hold that the Secretaries

appropriately used notice-and-comment rulemaking, rather

than adjudication, to identify those waters that are “public

lands” for the purpose of determining the scope of ANILCA’s

rural subsistence priority. The use of rulemaking is

consistent with ANILCA, which requires the federal

government to “prescribe such regulations as are

necessary,” and with our decision in Katie John I, where we 81

expressed our “hope that the federal agencies will determine

promptly which navigable waters are public lands subject to

federal subsistence management.” A more particularized 82

approach could not have fulfilled the requirement that the

federal agencies make their determination “promptly,” since
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 29

 Sauer v. U.S. Dep’t of Educ., 668 F.3d 644, 650 (9th Cir. 2012). 83

 Ka Makani ‘O Kohala Ohana Inc. v. Water Supply, 295 F.3d 955, 959 84

(9th Cir. 2002) (internal quotation marks and citation omitted).

 5 U.S.C. §§ 701–706. 85

 Id. § 706(2). The State incorrectly argues that we must review the 86

Katie John plaintiffs’ arguments under § 706(1), for agency action

“unlawfully withheld or unreasonably delayed.” The Katie John plaintiffs

challenge the validity of an agency action (the 1999 Rules), not an

agency’s alleged failure to act. See Norton v. S. Utah Wilderness Alliance,

542 U.S. 55, 62–63 (2004).

Alaska constitutes about one-sixth of the entire United States,

and most of its coastline. In directing the Secretaries to make

this determination, we could not have intended to require the

agencies to initiate individual water rights adjudication

proceedings for each identified body of water, particularly

when the purpose of the directive was not to allocate water,

but to identify which bodies of water constituted “public

lands” for purposes of ANILCA’s rural subsistence priority.

Logically, we intended the agencies to act through

rulemaking, where doing so was feasible.

3. The standards of review and Chevron deference

This case presents questions of law, which we review de

novo. “De novo review of a district court judgment 83

concerning the decision of an administrative agency means

we view the case from the same position as the district

court.” Under the Administrative Procedure Act, we ask 84 85

whether an agency decision is “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law” or “in

excess of statutory . . . authority.”86
30 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

87

467 U.S. 837 (1984).

 Id. at 842–43. 88

 Id. at 843. 89

The district court determined that, because the Secretaries

are charged with administering ANILCA, deference was

warranted for questions of statutory interpretation under

Chevron. Applying Chevron deference involves a two-step 87

inquiry: if Congress has “directly spoken to the precise

question at issue,” then the court must “give effect to the

unambiguously expressed intent of Congress.” If instead 88

the “statute is silent or ambiguous with respect to the specific

issue,” the court defers to the administering agency’s

interpretation as long as it reflects “a permissible construction

of the statute.”89

We generally agree with the district court that Chevron

deference applies to questions of ANILCA’s interpretation in

this case, where ANILCA is ambiguous as to the answer. In

promulgating the 1999 Rules, the Secretaries were identifying

those bodies of water in which the United States may claim

an interest by virtue of the federal reserved water rights

doctrine, and which thereby qualify as “public lands” for

purposes of administering ANILCA’s rural subsistence

priority. The Secretaries are expressly charged with

administering that priority when the state does not enact law
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 31

 See 16 U.S.C. § 3115(a)(1) (providing for subsistence program 9 0

implementation by the Secretaries, in consultation with the State); id.

§ 3115(d) (“The Secretary shall not implement subsections (a), (b), and (c)

of this section if the State enacts and implements laws of general

applicability which are consistent with, and which provide for the

definition, preference, and participation specified in . . . this title . . . .”).

 See Katie John I, 72 F.3d at 702; Ninilchik Traditional Council v. 91

United States, 227 F.3d 1186, 1191–92 (9th Cir. 2000) (holding that the

agency’s interpretation of ANILCA is entitled to deference).

 See, e.g., Morris v. Commodity Futures Trading Comm’n, 980 F.2d 92

1289, 1293 (9th Cir. 1992) (“Where the question to be decided involves

matters of particular expertise of the agency, the deferential standard

should be applied. But judicial deference is not necessarily warranted

where courts have experience in the area and are fully competent to decide

the issue.”) (citation omitted).

that implements it. In construing the term “public lands,” 90

therefore, the Secretaries are entitled to some deference.91

We say “some deference” because this is not a typical

administrative law case, where an agency is simply applying

its expertise in implementing a substantive statute. Instead,

the Secretaries are applying, in a novel way, a judicially

created doctrine to implement ANILCA. The courts have a

strong role in defining the contours of such doctrines.92

B. The merits

As an initial matter, the State argues that the 1999 Rules

are invalid because they do not expressly address the

“elements” of the federal reserved water rights doctrine with

respect to each of the identified 34 reservation units. That is,

the Secretaries failed to state the purpose of the land
32 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 See New Mexico, 438 U.S. at 698 (recognizing Congressional 93

authority “to reserve unappropriated water in the future for use on

appurtenant lands”) (emphasis added); Katie John I, 72 F.3d at 703

reservation and the amount of water necessary for each

reserved unit.

However, these steps were not necessary for the

Secretaries to identify which bodies of water constitute

“public lands” under ANILCA. The administrative record

reveals the bases for asserting federal reserved water rights

with regard to each unit, and nothing in the identification

process pertains to the amount of water reserved in each body

of water, which is still open to future determination by the

appropriate adjudicator. It falls to us to determine whether

the Secretaries’ decisions are arbitrary or capricious.

1. Adjacent waters

The State argues that, in the 1999 Rules, the Secretaries

improperly included within the definition of “public lands”

waters “adjacent to,” but not physically on, federally reserved

land. In the State’s view, federal reserved water rights arising

by implication exist only within the borders of the federal

reservations, not beyond them. Even if such rights may be

invoked to enjoin the use of waters outside the boundaries of

a federal reservation, the State argues that the rights

themselves exist only in the waters that are within the

boundaries of the reservation.

We disagree. The federal reserved water rights doctrine

allows the United States to reserve waters “appurtenant” to

federally reserved lands in order to fulfill the purposes of that

reservation. While the cases do not define “appurtenancy,” 93
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 33

(“Under the reserved water rights doctrine, when the United States

withdraws its lands from the public domain and reserves them for a federal

purpose, the United States implicitly reserves appurtenant waters then

unappropriated to the extent needed to accomplish the purpose of the

reservation.”); Walton, 647 F.2d at 46 (“Where water is needed to

accomplish [the purposes of federal land withdrawn from the public

domain], a reservation of appurtenant water is implied.”).

 David H. Getches, Water Law 349–50 (4th ed. 2009); see also 94

4 Waters and Water Rights § 37.01(b)(3) (Robert E. Beck ed., 1991 ed.,

repl. vol. 2004) (“[R]eserved rights may be drawn from water sources that

do not traverse or border on reservations.”).

there is an apparent consensus that it does not mean physical

attachment:

The reserved water rights doctrine holds that

the government impliedly withdrew its

consent to creation of private rights each time

it earmarked public lands for a specific federal

purpose to the extent necessary to fulfill that

purpose. Thus, the fact that a reservation was

detached from water sources does not prove

an absence of intent to reserve waters some

distance away. Judicial references to such

rights being “appurtenant” to reserved lands

apparently refer not to some physical

attachment of water to land, but to the legal

doctrine that attaches water rights to land to

the extent necessary to fulfill reservation

purposes.94

As the district court recognized, “[a]ppurtenancy has to do

with the relationship between reserved federal land and the

use of the water, not the location of the water.”
34 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 Cappaert, 426 U.S. at 133, 142 (internal citation and quotation marks 95

omitted). 

 Id. at 143; see also United States v. Orr Water Ditch Co., 600 F.3d 96

1152, 1158 (9th Cir. 2010) (recognizing that a tribe’s water rights to

surface water protected it against diminution resulting from allocation of

groundwater, because of the “reciprocal hydraulic connection between

groundwater and surface water”).

 The 1999 Rules provide that the regulations will apply to “inland 97

waters adjacent to the exterior boundaries of” 34 different “areas.”

Several of the identified “areas” actually include multiple reservations or

units. Sixteen of the “areas” are national wildlife refuges established,

No court has ever held that the waters on which the

United States may exercise its reserved water rights are

limited to the water within the borders of a given federal

reservation. Instead, the Supreme Court has recognized that

federal water rights may reach sources of water that are

separated from, but “physically interrelated as integral parts

of the hydraulic cycle” with, the bodies of water physically

located on the reserved land. In Cappaert, the Court held 95

that the United States could enjoin the use of groundwater

two and one-half miles from Devil’s Hole because the federal

reserved water rights doctrine is “based on the necessity of

water for the purpose of federal reservation,” rather than the

location of the water. The relevant question, then, is not 96

where these waters are located, but rather whether these

waters are “appurtenant” to the reserved land. And if the

waters are “appurtenant” to the reserved land, they may be

subject to future enforcement of federal reserved water rights

if the other requirements for asserting a federal reserved

water right are met.

Each federal reservation listed in the 1999 Rules was

created for an express set of statutory purposes. These 97
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 35

expanded or redesignated by ANILCA. Twelve of the “areas” include one

or more units of the National Park System established, expanded or

redesignated by ANILCA. The remaining six “areas” include two national

forests (the Chugach and the Tongass), one National Conservation Area,

one National Recreation Area, the National Petroleum Reserve in Alaska,

and all components of the Wild and Scenic River System located outside

the boundaries of National Park, National Preserves or National Wildlife

Refuges. Only the National Petroleum reserve was not established,

expanded or redesignated by ANILCA.

 See ANILCA §§ 201, 202 (codified at 16 U.S.C. 410hh, 410hh-1). 98

Sixteen of the 17 National Park System units listed in the 1999 Rules have

the identified purpose “to protect habitat for, and populations of” fish and

wildlife. The remaining National Park System unit, the Glacier Bay

National Preserve, has the purpose to “protect a segment of the Alsek

River, fish and wildlife habitats and migration routes.”

 See ANILCA §§ 302, 303. All 16 of the National Wildlife Refuges 99

named in the 1999 Rules have a primary purpose “to conserve fish and

wildlife populations and habitats in their natural diversity.”

 Cf. United States v. Alaska, 423 F.2d 764, 767 (9th Cir. 1970) 100

(rejecting the argument that the Kenai National Moose Range did not

reserve water rights in navigable water because this would leave “only

mountains, hills, ridges, valleys and barren areas . . . for the moose to feed

and breed”).

purposes may require water not only from the water sources

on the lands themselves, but also from surrounding areas. For

example, the majority of the federal reservations identified in

the 1999 Rules are to be managed “to protect habitat for, and

populations of” fish and wildlife or “to conserve fish and 98

wildlife populations and habitats.” The State does not 99

dispute that the wildlife in these reservations readily use the

waters adjacent to the reservations. Due to the proximity 100

and connectivity of these adjacent waters to the reserved land,

and given the fact that the federal reserved water rights

doctrine allows the United States to exert rights over water
36 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 See Katie John I, 72 F.3d at 703 (“By virtue of its reserved water 101

rights, the United States has interests in some navigable waters.”).

 Cappaert, 426 U.S. at 139. 102

that is “physically interrelated” with the reserved land, the

Secretaries reasonably concluded that adjacent waters are

appurtenant to, and may be necessary to fulfill the primary

purposes of, the federal reservations identified in the 1999

Rule, and are sources from which the United States could at

some point claim a reservation of water. Accordingly, the

Secretaries reasonably concluded that the United States has

an “interest” in these adjacent waters by virtue of the federal

reserved water rights doctrine sufficient to qualify as “public

lands” for purposes of Title VIII.

101

There is a broader point to be made here. As discussed

above, the federal reserved water rights doctrine does not

typically assign a geographic location to implied federal

water rights. The rights are created when the United States

reserves land from the public domain for a particular purpose,

and they exist to the extent that the waters are necessary to

fulfill the primary purposes of the reservation. The United 102

States may enforce this implied right in a particular,

appurtenant body of water, and it is at this point that the right

takes on a geographical dimension. The existence of the

right, therefore, has no physical location separate and distinct

from the waters on which the right can be enforced. For

purposes of this case, then, we must include within its

potential scope all the bodies of water on which the United

States’ reserved rights could at some point be enforced— i.e.,

those waters that are or may become necessary to fulfill the

primary purposes of the federal reservation at issue. Because

this potential scope in hypothetical scenarios is immensely
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 37

 See ANILCA § 201(7)(b), 16 U.S.C. § 410hh(7)(b) (providing that 103

“[n]o lands conveyed to the Nondalton Village Corporation shall be

considered to be within the boundaries of the park or preserve”).

broad, it runs up against the conclusion in Katie John I that

not all navigable waters are included in the rural subsistence

priority. That judgment reflects the practical view that the

federal reservations are unlikely to need all the water even in

some of the greatest rivers in the world. It was reasonable for

the Secretaries to conclude that a federal reserved water right

existed in adjacent waters to serve all of the purposes of the

reservations. The Secretaries also concluded, however, that

the needs ofsubsistence uses did not justify expansion to vast

reaches of waters upstream and downstream. For reasons we

will explain when we address that issue below, we conclude

that this decision of the Secretaries was also reasonable.

2. Specific water bodies

The State challenges the designation of specific bodies of

water as “public lands for purposes for ANILCA.” We

consider each challenge in turn.

a. Sixmile Lake

The State argues that Sixmile Lake should not be

considered a “public land” subject to federal subsistence

management because the Lake’s shoreline is non-federal,

non-public land owned primarily by the Native Village

Corporation for Nondalton. Therefore, the State argues, 103

Sixmile Lake is not within any federal reservation and does

not touch federally reserved land.
38 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 See National Park System Units in Alaska; Description of 104

Boundaries, 57 Fed. Reg. 45,166, 45,220 (Sept. 30, 1992).

 16 U.S.C. § 3103. 105

However, the agency map of the Lake Clark National

Park and Preserve places the Park’s boundary at the 104

shoreline of Sixmile Lake. ANILCA provides that, “[i]n the

event of discrepancies between the acreages specified in this

Act and those depicted on such maps, the maps shall be

controlling.” The Secretaries therefore properly concluded

105

that Sixmile Lake was in fact adjacent to the Lake Clark

National Park and Preserve. Moreover, under the federal

reserved water rights doctrine, theSecretaries must show only

that the waters are positioned such that the United States may

need to exercise its rights upon them. For that reason, the

formal ownership of the land immediately along the shoreline

of Sixmile Lake is not dispositive, so long as the lake

contains water that is or might be necessary to fulfill the

primary purposes of the Lake Clark National Park and

Preserve. The State does not dispute that, due to its location,

the United States has such an interest in Sixmile Lake. We

therefore affirm the Secretaries’ determination that Sixmile

Lake is a “public land” subject to ANILCA’s rural

subsistence priority.

b. Seven Juneau-area streams

The State argues that the Secretaries improperly declared

seven streams in the Juneau area “public lands” under

ANILCA. The upper reaches of these streams are in the

Tongass National Forest, but, according to the State, they also

flow through many lands in the Juneau area that are not

federally owned. The State contends that the determination
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 39

 See Union Oil Co. of Cal. v. FPC, 542 F.2d 1036, 1040 (9th Cir. 106

1976) (stating that rulemaking is not the kind of adjudicative procedure for

which the Administrative Procedure Act specifies a “substantial evidence”

standard of review).

 See 64 Fed. Reg. at 1,286–87 (codified at 36 C.F.R. § 242.3(b), 50 107

C.F.R. § 100.3(b))

that the United States has an interest in these waters is

erroneous because they are “exterior waters downstream of

the reservation.”

The parties disagree about whether the streams in

question fall completelywithin the boundaries of the Tongass

National Forest, or whether a portion of the streams lies

outside of these boundaries. None of the maps offered by the

parties is entirely conclusive. The map upon which the

Secretaries relied, however, does indicate that the entire

streams fall within the exterior boundaries of the Tongass

National Forest. It was not unreasonable for the Secretaries

to rely on it instead of the map or other evidence offered by

the State. We therefore uphold the Secretaries’ inclusion 106

of these streams within the definition of “public lands.”

c. Water on inholdings

The Secretaries included within the definition of “public

lands” all navigable and non-navigable water within the outer

boundaries of the 34 listed land units. Within these units,

107

however, also lie State and privately owned lands, referred to

as “inholdings.” ANILCA expressly provides that lands that

have been conveyed to Alaska, a Native corporation, or a

private individual, even if such lands are within the

boundaries of a conservation system unit, are not subject to
40 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 16 U.S.C. § 3103(c). 108

 See Winters, 207 U.S. at 577 (holding that the United States’ 109

reservation of water in the Milk river for the Fort Belknap Indian

Reservation was not repealed when Montana was admitted to the union);

Arizona, 373 U.S. at 596–99; Walton, 647 F.2d at 48–49.

regulation under Title VIII of ANILCA. The State argues 108

that designating waters that lie on such “inholdings” as

“public lands” runs contrary to the principle that only waters

appurtenant to reserved federal lands can contain a federally

reserved water right.

However, water rights that the United States impliedly

acquires are not forfeited or conveyed to third parties when

the government conveys to another party land within a federal

reservation. Furthermore, federal reserved water rights can 109

reach waters that lie on inholdings as long as those waters,

based on their location and proximity to federal lands, are or

may become necessary for the primary purposes of the

federally reserved land. Because these water bodies are

actually situated within the boundaries of federal

reservations, it is reasonable to conclude that the United

States has an interest in such waters for the primary purposes

of the reservations. We therefore uphold the Secretaries’

inclusion of these waters within “public lands.”

d. Coastal waters and the “headland-toheadland” method

Section 103(a) of ANILCA provides that federal

reservation boundaries “shall, in coastal areas, not extend

seaward beyond the mean high tide line to include lands

owned by the State of Alaska unless the State shall have
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 41

 16 U.S.C. § 3103(a). 110

 64 Fed. Reg. at 1,287 (codified at 36 C.F.R. § 242.4 and 50 C.F.R. 111

§ 100.4).

 70 Fed. Reg. at 76,402. 112

 In the 2005 amendments, the Secretaries clarified that the 1999 Rules 113

do not identify any marine waters as “public lands” by virtue of the federal

reserved water rights doctrine. 70 Fed. Reg. at 76,401 (“[N]either the

1999 regulations nor this final rule claims that the United States holds a

reserved water right in marine waters as defined in the existing

regulations.”).

concurred in such boundary extension.” In the 1999 Rules, 110

the Secretaries defined “inland waters” as “those waters

located landward of the mean high tide line or the waters

located upstream of the straight line drawn from headland to

headland across the mouths of rivers or other waters as they

flow into the sea.” This boundary represents the 111

Secretaries’ determination of “where the river ends and the

sea begins,” that is, the line that separates inland waters from

marine waters. Creation of such a boundary was necessary 112

because, as the Secretaries recognize, federal reserved water

rights have never been held to exist in marine waters.

113

The State contends that the Secretaries’ use of the

“headland-to-headland” method improperly places marine

and tidal waters under federal management because, in

§ 103(a), Congress placed the boundary of federal control at

the high tide line. The Secretaries respond that, because they

can assert federal reserved water rights in “tidally influenced

waters,” their use of the headland-to-headland method was a

reasonable way of designating the boundary of federal rural

subsistence priority management.
42 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 Id. at 76,402. 114

We agree with the Secretaries. The boundary Congress

set forth in § 103(a) establishes only the physical boundary

for the federal reservations themselves; it does not set the

limit for the water over which the United States may exert

any interest. As discussed above, a federal interest by virtue

of the federal reserved water rights doctrine may exist in

waters adjacent to, but outside the boundary of, a federal

reservation, as long as these waters are appurtenant to the

reservation. Because the headland-to-headland method

includes tidally influenced waters that are physically

connected to, and indeed practically inseparable from, waters

inland of the high tide line (or waters on the federal

reservations themselves), drawing of the boundary line in this

manner is consistent with the federal reserved water rights

doctrine. Finally, as the Secretaries explain in the 2005

amendments, “the regulations use the methodology found in

the Convention on the Territorial Sea and Contiguous Zone

from the United Nations Law of the Sea for closing the

mouths of rivers.” For these reasons, using the headland- 114

to-headland approach for purposes of determining the

boundaries of rural subsistence priority management is a

reasonable way to administer ANILCA.

3. Upstream and downstream waters

The 1999 Rules apply the federal rural subsistence

priority to waters within and adjacent to the federal

reservations listed in the Rules. We have explained why the

State of Alaska’s argument—that the federal priority should

not extend to adjacent waters—does not have merit.
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 43

 The Katie John plaintiffs’ complaint asks for “a declaratory judgment 115

that reserved waters extend upstream and downstream of CSUs.” “CSU”

stands for “conservation system unit,” which is a defined term in

ANILCA. The 1999 Rules cover some, but not all, of the ANILCA

conservation system units. The 1999 Rules also cover some federal

reservations that are not “conservation system units,” such as the National

Petroleum Reserve in Alaska. It is unclear whether the Katie John

plaintiffs argue that upstream and downstream waters are necessary for all

of the reservations listed in the 1999 Rules, or only those that are

conservation system units. It is also unclear whether the Katie John

plaintiffs seek a declaratory judgment that applies to conservation system

units that are not listed in the 1999 Rules. Because we conclude that the

1999 Rules are reasonable, we need not resolve these ambiguities.

However, the Secretaries did not make claim to waters

farther afield from the federal reservations, waters we refer to

as “upstream and downstream waters.” The Secretaries

justified their decision to exclude upstream and downstream

waters on the grounds that the United States had no such

general practice, no Indian treaty rights were involved, and

such reservation “would conflict with the parts of the Katie

John [I] decision holding that ANILCA did not extend

subsistence fishing to all navigable waters in Alaska.”

The Katie John plaintiffs argue that the federal priority

should apply to waters upstream and downstream from

federal reservations—a position that would subject most of

the rivers and streams in Alaska to the federal priority, since

the federal reservations listed in the 1999 Rules cover about

one-half of Alaska. We reject this argument, and hold that 115

the Secretaries did not act arbitrarily or contrary to law in

refusing to extend the federal rural subsistence priority to

waters upstream and downstream from federal reservations.

We base our conclusion on the limits of the federal reserved

water rights doctrine, the primary purposes of the federal

reservations at issue in the 1999 Rules, the history (and
44 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 Gerald E. Bowkett, Reaching for a Star 12 (1989) (“If there were one 116

symbol of the economic discrimination Alaskan’s sought to end through

statehood it was the salmon trap, a highly efficient means of catching fish

controlled primarily by the big absentee canning interests.”).

 Id. at 74. 117

limits) of ANILCA’s rural subsistence priority, and Katie

John I and II. As we will explain, there is no shortage of

water on the ANILCA reservations, so any need for

additional water beyond adjacent waters for general purposes

of wilderness preservation is too remote to require the

Secretaries to identify upstream and downstream waters as

subject to a reserved right. The question then is whether

ANILCA’s priority for rural subsistence uses somehow

requires a more expansive identification of reserved rights.

For the reasons that follow, we conclude that it does not.

a. The history of ANILCA’s rural subsistence

priority

As our previous discussion makes clear, ANILCA makes

“subsistence uses” of fish and wildlife a priority “on public

lands.” Though stated in broad terms, the priority is not

without limits.

Some historical background provides context. Among the

major reasons why Alaskans sought statehood was that

federal regulation of territorial waters allowed non-Alaskan

commercial firms to take salmon in “fish traps,” which

starved local Alaskans of the catch and threatened the salmon

runs. In 1948, outside salmon packing companies owned 116

383 of the 429 fish traps licensed in Alaska. Alaskans 117

twice voted overwhelmingly to eliminate fish traps, but these
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 45

 Id. 118

 Id. at 74–76; Alaska Const. Ord. 3, § 2 (“As a matter of immediate 119

public necessity, to relieve economic distress among individual fishermen

and those dependant upon them for a livelihood, to conserve the rapidly

dwindling supply of salmon in Alaska, to insure fair competition among

those engaged in commercial fishing, and to make manifest the will of the

people of Alaska, the use of fish traps for the taking of salmon for

commercial purposes is hereby prohibited in all the coastal waters of the

State.”) (emphasis added).

 Bowkett, Reaching for a Star, at 12. 120

pre-statehood votes meant nothing because Alaska and its

people then had no power to regulate fisheries. One of the 118

first acts of the Alaska Constitutional Convention in 1955

was to adopt an ordinance prohibiting fish traps, to be

submitted to voters for approval along with the state

constitution. Between 1936 and 1959, when federal 119

management of Alaska’s salmon finally ended, production

had fallen from 8.5 million cases annually to 1.8 million

cases.120

Ernest Gruening, former governor of and United States

senator from Alaska, opposed the establishment of a federal

Arctic Wildlife Range because of federal mismanagement of

fish and game:

I opposed the bill because it seemed to me

unthinkable that after the Interior

Department’s failure in the management and

conservation of Alaska’s fishery and wildlife

resources, the new state, which had set up its

own far-more-qualified fish and wildlife

organization and had offered to make this
46 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 Ernest Gruening, Many Battles 426 (1973). 121

 16 U.S.C. § 3102(3). 122

 Id. § 3111(1). 123

 See id. §§ 3102(2)–(3), 3114. 124

 Id. § 3103(c). 125

range a state-managed project, should be

asked to turn it back to that discredited federal

control.121

Modern efforts at federal regulation, including ANILCA’s

rural subsistence priority, remain intensely controversial

within Alaska.

As a result of this long-running federal-state controversy,

ANILCA imposes negotiated limits on how certain natural

resources are managed in Alaska. While ANILCA

emphasizes the importance of “subsistence uses” of fish and

wildlife and gives them a priority “on public lands,” it limits

the priority to rural subsistence uses, to certain (but not all)

public lands, and to federal lands. Moreover, lands owned by

the United States but subject to valid State and Native

corporation land selections are excluded from the definition

of public lands. The priority for “subsistence uses by rural

122

residents of Alaska, including both Natives and nonNatives,” applies only on the specified subset of federal

123

lands. State, Native corporation, and private lands are 124

expressly excluded from the rural subsistence preference

regulations.

125
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 47

 Id. §§ 3113–3115, 3202(a). 126

 Id. § 3125(1)–(3). 127

 Coeur D’Alene Tribe of Idaho, 384 F.3d at 697 (Kleinfeld, J., 128

dissenting).

Furthermore, ANILCA establishes an elaborate scheme

for cooperation with state fish and game authorities in

managing the rural subsistence priority and limits federal

authority even for protecting that priority. Congress 126

prohibits any construction of the statute “granting any

property right in any fish or wildlife,” or “enlarging or

diminishing the Secretary’s authority to manipulate habitat”

on the public lands, or restricting the taking of fish or wildlife

on the federal lands for nonsubsistence uses “unless necessary

for the conservation of healthy populations of fish and

wildlife [or] to continue subsistence uses of such

populations.”127

b. The primary purposes of ANILCA and other

federal reservations in Alaska

“From the 1780s, when the Articles of Confederation

government enacted the Northwest Ordinance and its

predecessors, to 1986, when the Homestead Act repeal

became effective in Alaska, national policy on federally

owned lands was to sell them cheap or give them away, rather

than to hold on to them or charter them to great companies as

England and Spain had.”128

With so liberal a policy of giving away the

public domain, the government needed a

means to mark out some portions that would
48 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 Id. at 698 (footnotes omitted). Homesteaders usually were required 129

to pay $1.25 per acre, a price that was reduced substantially if the land

was not particularly desirable. See http://www.archives.gov/education/

lessons/homestead-act (last visited June 26, 2013).

 Bureau of Land Management, Homesteading Frequently Asked 130

Questions, available at http://www.blm.gov/ak/st/en/prog/culture/

ak_history/homesteading/homesteading_Q_and_A.html#6 (last visited

June 26, 2013).

not be turned into farms, mines, homesites,

trade sites, and all the other categories of

private ownership. Under the Northwest

Ordinance and its Jeffersonian predecessor,

land was to be reserved from sale (giving

away land for free was Lincoln’s subsequent

innovation under the Homestead Act) for such

purposes as schools and transfer to

Revolutionary War veterans. Likewise, under

the Morrill Land-Grant Act of 1862, lands

were reserved from entry for various public

purposes, such as schools. Beginning in 1872

with Yellowstone, reservations from entry

were made for parks.129

Homesteading ended on October 21, 1976, when Congress

enacted the Federal Land Policy and Management Act of

1976. “On that day, all homestead laws were repealed

nationwide, however, a 10-year extension was allowed in

Alaska since it was a new state with fewer settlers. The last

time anyone could file any type of [federal] homestead claim

in Alaska was on October 20, 1986. After that day, no more

new homesteading was allowed on federal land in Alaska.”130

Many of Alaska’s federal reservations are military

reservations, such as 607,800 acres near Fairbanks for a
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 49

 Ernest Gruening, Many Battles 418 (1973); see also United States v. 131

N. Am. Transp. & Trading Co., 253 U.S. 330 (1920) (reservation of land

near Nome for use as an Army post).

 Se. Alaska Conservation Council, Inc. v. Watson, 697 F.2d 1305, 132

1307 (9th Cir. 1983).

 See generally 16 U.S.C. §§ 410hh–410hh-1. 133

 See id. § 410hh(2)–(3), (6). ANILCA states that “subsistence uses by 134

local residents shall be permitted” in several reservations, but that is far

different from saying that subsistence use is a reason why the reservations

were created. See id. §§ 410hh(1), (3), (4)(a), (6), (7)(b), (9), 410hh1(3)(a).

 Id. § 410hh(1). 135

missile-testing range. In 1980, ANILCA designated

131

approximately 105 million acres in Alaska as permanently

protected federal lands, for various purposes generally

associated with wilderness preservation.132

Indeed, by and large the reservations ANILCA

established are not for use by any people who might need the

water itself in competition with other users. These lands

generally were reserved from people (other than subsistence

users) who might want to live there, not for them. For

example, ANILCA sets up seventeen new units within the

National Park System and expands three others, and lists the

“purposes” for each reservation. In seventeen of these 133

twenty reservations, none of the “purposes” include human

subsistence, and only in three is the protection of “the

viability of subsistence resources” mentioned as one among

several purposes. For example, the Aniakchak National 134

Monument is reserved to maintain volcanic features and study

the flora and fauna, and to protect habitat for wildlife. The 135
50 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 Id. § 410hh(3). 136

 Id. § 410hh(8)(a). 137

 Id. § 410hh(5) (emphasis added). 138

Cape Krusenstern National Monument is established for

archeological study and to preserve habitat for wildlife.136

The 6.5 million-acre Noatak National Preserve has as among

its purposes maintaining the river “unimpaired by adverse

human activity.” The purpose of the 567,000-acre Kenai 137

Fjords National Park is “[t]o maintain unimpaired the scenic

and environmental integrity of the Harding Icefield, its

outflowing glaciers, and coastal fjords and islands in their

natural state; and to protect seals, sea lions, other marine

mammals, and marine and other birds and to maintain their

hauling and breeding areas in their natural state, free of

human activity which is disruptive to their natural

processes.” The Secretaries’ 1999 Rule includes additional 138

reservations that also are not primarily designed for the

purpose of furthering subsistence hunting or fishing.

However, because quite a few people, Native and nonNative, already did live on the vast newly reserved lands, or

hunted or fished there for their subsistence, ANILCA was

shaped to preserve their interest in subsistence living from the

new federal restrictions. Accordingly, Congress preserved

subsistence use in many of the reservations, even though none

of the reservations listed such use as their primary purpose

and most did not list subsistence use among their purposes at

all. The crucial point is that human use for subsistence on

most federal reservations in Alaska is a servitude imposed as
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 51

 Perhaps the best example of the tension between the purposes of 139

federal reservations in Alaska—more or less of excluding human

activities—and the preservation of rural subsistence rights as a kind of

servitude is the case of Alex Sando Tarnai. Tarnai was a trapper who had

fled Hungary after the unsuccessful 1956 uprising, and who built his cabin

on the Nowitna River in 1977. David Hullen, Trapper, government wage

strange battle, Anchorage Daily News, Nov. 19, 1989, at A1. In 1980,

ANILCA established the Nowitna National Wildlife Refuge to “conserve

wildlife populations and habitats in their natural diversity.” ANILCA

§ 302(6), 94 Stat. 2371. Tarnai was the sole human living in the vast

wilderness of the newly created 2.1-million acre refuge, two days’ dogsled

trip from Ruby, Alaska.

Tarnai was so isolated that he did not learn of ANILCA until two

years after it had become law. When federal officials learned that a

woman was planning to visit him for a few weeks at his cabin, they

threatened to treat his cabin as a “recreational” rather than a “subsistence”

cabin, so that he would be evicted from his home. Their theory was that

if a woman who was not an immediate family member stayed in his cabin,

his use of the cabin would become “recreational” rather than

“subsistence,” and the statute bars permits for “private recreational use”

cabins. See 16 U.S.C. § 3193(b)(2). Tarnai and his guest slept in a tent

outside his cabin in minus-twenty-degree weather to avoid a citation.

Tarnai later successfully litigated against the federal government,

establishing that his subsistence use for trapping was not defeated by this

incidental non-subsistence use, and that even a “subsistence” dweller was

entitled to engage in activities in his cabin yielding companionship or

pleasure, not just activities sustaining life. Tarnai v. Fisher, No. 87-0068

(D. Alaska dismissed Jan. 21, 1990).

a limitation on federal control,rather than a specified purpose

for which the federal reservation was established.139

Indeed, not only are the ANILCA and other federal

reservations not established for human use of the water in the

streams, but most of time, at least in the northern half of the

state, the water is not even “water” in the sense of being a

liquid. It is ice. No one can drink it without making a hole
52 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 ANILCA § 302(6)(B), 94 Stat. 2371, 2387 (1980) (“The purposes for 140

which the Nowitna National Wildlife Refuge is established and shall be

managed include—(i) to conserve fish and wildlife populations and

habitats in their natural diversity including, but not limited to, trumpeter

swans, white-fronted geese, canvasbacks and other waterfowl and

in the ice, and it could not be used for irrigation, if there were

anything to irrigate, which by and large there is not. There

are no large farms or ranches, nor great reservoirs serving

cities, along the greatest of the waters, the roughly two

thousand-mile-long Yukon, nor along most of the other rivers

and streams at issue in this litigation.

This observation distinguishes the federal reservations at

issue in this case from much of the American West, where

water is scarce and where, as in Winters, aridity can defeat

the purpose of a reservation. In this case, in contrast, no one

is claiming that the water itself must be reserved to fulfill the

purposes of the ANILCA reservations. That is, there is no

suggestion that any federal reservation along any Alaskan

waters risks being turned into a “barren waste” as in Winters,

or a substantially diminished pool, as in Cappaert, or is in

any way short of water. In this way, Alaska’s federal

reservations differ dramatically from the reservations in arid

regions.

Of course, water must be preserved for the geese and

ducks, and if anyone were to drain the many lakes and ponds,

the reduction in water quantity would threaten migrating

birds. For example, the Nowitna National Wildlife Refuge,

where Alex Tarnai lived, has among its legislatively stated

purposes ensuring the necessary water quantity “within the

refuge” to conserve its fish and wildlife population, including

geese, ducks, moose, pike, salmon, and other wildlife. The 140
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 53

migratory birds, moose, caribou, martens, wolverines and other furbearers,

salmon, sheefish, and northern pike; (ii) to fulfill the international treaty

obligations of the United States with respect to fish and wildlife and their

habitats; (iii) to provide in a manner consistent with the purposes set forth

in subparagraphs (i) and (ii), the opportunity for continued subsistence

uses by local residents; and (iv) to ensure, to the maximum extent

practicable and in a manner consistent with the purposes set forth in

paragraph (i), water quality and necessary water quantity within the

refuge.”).

 16 U.S.C. § 410hh(9). 141

 Id. § 410hh(7)(a). 142

Wrangell-Saint Elias National Park and Preserve seek to

protect habitat for “fish and wildlife” such as “trumpeter

swans and other waterfowl.” And the Lake Clark National 141

Park and Preserve were created “to protect the watershed

necessary for perpetuation of the red salmon fishery in Bristol

Bay.” As for the people living in or near these and other

142

ANILCA reservations, the utility of the water is generally as

transportation arteries for riverboats, snow machines, and

occasionally dog teams, and for fishing.

ANILCA’s text and history, as well as the history and

realities of rural living in Alaska, thus lead to a critical

observation: human use for subsistence on many federal

reservations in Alaska, including ANILCA conservation

system units, is a servitude imposed as a limitation on federal

control, rather than a specified purpose for which most such

reservations were established. For this reason, and because

modern federal efforts to regulate natural resources in Alaska

remain controversial, ANILCA limits the application of its

rural subsistence priority to a carefully delineated subset of

federal lands, and establishes an elaborate scheme for
54 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 Katie John I, 72 F.3d at 703. 143

 Id. at 700. 144

 Id. at 703. 145

 Id. at 704. 146

cooperation between the Secretaries and State fish and game

authorities in managing the rural subsistence priority.

c. The constraints of the federal reserved water

rights doctrine

Recognizing these constraints in Katie John I, we limited

federal ANILCA authority over waters outside the boundaries

of reservations to federally reserved lands, including

“appurtenant waters then unappropriated to the extent

necessary to accomplish the purpose of the reservation.”143

That is, we held that the ANILCA rural subsistence priority

applied not to all Alaska waters subject to the federal

navigational servitude, but only to those “navigable waters in

which the United States has reserved water rights.” Waters 144

were reserved to the United States only if the United States

intended to reserve the water. That intent would be inferred

“if those waters are necessary to accomplish the purposes for

which the land was reserved.” We noted that the United 145

States had reserved vast lands in Alaska for many different

purposes, and left it to the federal agencies to identify the

“navigable waters in which the United States has an interest

by virtue of the reserved water rights doctrine.” These 146

prior holdings control on the critical questions in this

litigation.
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 55

 Id. at 703 (quoting New Mexico, 438 U.S. at 700). 147

 Se. Alaska Conservation Council, 697 F.2d at 1307. 148

 Teresa Hull & Linda Leask, Dividing Alaska, 1867–2000: Changing 149

Land Ownership and Management, Alaska Review of Social & Economic

Conditions, Volume XXXII, 6 tbl. 1 (2000).

 16 U.S.C. § 3101(b). 150

The Katie John plaintiffs would have us extend the rural

subsistence priority to all waters upstream and downstream

from, and not only adjacent to, federal reservations, on the

theory that what happens elsewhere may affect what happens

within a reservation. That broad claim, to federal regulation

of a substantial majority of the rivers and streams in Alaska,

is unsupported by ANILCA’s text and conflicts with Katie

John I and Katie John II. Our circuit is committed to the

position that for the rural subsistence priority to apply to

navigable waters outside federal reservations, the waters have

to be “appurtenant to” the reservations and so “necessary to

accomplish the purposes for which the land was reserved”

that “without the water the purposes of the reservation would

be entirely defeated.”147

ANILCA put 105 million acres (162,500 square miles), of

Alaska under federal restrictions (beyond the 84.1 million 148

acres (131,406 square miles) already reserved or withdrawn

when Alaska attained statehood ) for purposes that involve 149

little or no water consumption and many of which have little

or nothing to do with human use. Congress did state at the

beginning its intent in ANILCA “to protect the resources

related to subsistence needs.” ANILCA provides for 150

“continuation of the opportunity for subsistence uses by rural
56 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 16 U.S.C. § 3111(1). 151

 Amoco Production Co. v. Village of Gambell, 480 U.S. 531 (1987). 152

 Id. at 545–46. 153

 The National Petroleum Reserve in Alaska was established for 154

exploration of petroleum reserves. See 42 U.S.C. § 6504.

residents of Alaska” to avoid disrupting and destroying the 151

human uses already being made, but the Supreme Court held

in Amoco Production Co. v. Village of Gambell that 152

ANILCA does not make subsistence uses more important

than other uses of federal lands. Rather, ANILCA simply

recognizes subsistence uses as “a public interest” within a

statutory “framework for reconciliation, where possible, of

competing public interests.” Similarly, the additional (non- 153

ANILCA) federal reservations listed in the 1999 Rules were

not primarily withdrawn for the stated purpose of furthering

subsistence fishing or hunting. As explained above, human 154

subsistence needs are imposed on all of these reservations as

a kind of servitude, so that ANILCA does not destroy the

preexisting way of life on those federal lands. But it is

untenable to reason that upstream and downstream waters are

necessarily included in the priority granted to subsistence

uses on those reservations, particularlywhen subsistence uses

are not among the primary purposes listed in the statutory

sections establishing most of the reserves.

Again, water rights may be essential to a purpose of the

reservation other than subsistence. Were non-federal

activities, such as a dam or diversion of a river where salmon

spawn, or drying up of lakes and ponds that migrating geese

use, to threaten the purposes of a federal reservation,

ANILCA’s rural subsistence priority might come into play as
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 57

 We note, as do the Secretaries, that there is no shortage of waters to 155

serve the primary purposes of the reservations.

 See 438 U.S. at 708, 713–15. 156

 Katie John I, 72 F.3d at 704. 157

a result of an enforcement action particularized to the

particular purposes of a particular reservation. But no such

activity is before us. This is not a particularized enforcement

action, and the Katie John plaintiffs do not ask us or the

Secretaries to consider the actual purposes of any of the

reservations. Instead, they seek a generalized declaratory

judgment “that reserved waters extend upstream and

downstream of” all the federal reservations listed in the 1999

Rules.155

Such relief we cannot grant. We cannot conclude that the

Secretaries acted arbitrarily, capriciously, or contrary to law

in declining to include upstream and downstream waters as

currently within a reserved right for purposes of a rural

subsistence priority, when subsistence uses in many cases

were not specified as primary purposes of the reservations.

The Katie John plaintiffs’ demand would require us to ignore

the central role those purposes play in applying the federal

reserved water rights doctrine, and to make up out of nothing

a notion that all federal reservations in Alaska require all

upstream and downstream waters for purposes we or the

plaintiffs, not Congress, claim. Such a holding would be

inconsistent with the Supreme Court’s decision in New

Mexico, under which reserved water rights exist to serve only

the primary purposes of a federal reservation, and with 156

ANILCA, which simply “does not support such a complete

assertion of federal control.”157
58 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 New Mexico, 438 U.S. at 702. 158

If any of the various reservations ever do run short of the

water necessary to maintain subsistence uses, the United

States may or may not be entitled to that water under the

federal reserved water rights doctrine, a fact the Secretaries

acknowledge. But “[w]here water is only valuable for a

secondary use of the reservation,” the United States must

acquire the water “in the same manner as any other public or

private appropriator.” No claims particularized to any 158

federal reservation and its need for water are made in the

complaint in this case.

In short, we agree with the district court that the

Secretaries reasonably determined that, as a general matter,

federally reserved water rights may be enforced to implement

ANILCA’s rural subsistence priority as to waters within and

“immediately adjacent to” federal reservations, but not as to

waters upstream and downstream from those reservations.

We also agree with the district court that the federal reserved

water rights doctrine might apply upstream and downstream

from reservations in some circumstances, were there a

particularized enforcement action for that quantity of water

needed to preserve subsistence use in a given reservation,

where such use is a primary purpose for which the reservation

was established. But the abstract claim that all upstream and

downstream waters are necessary for all the federal

reservations in the 1999 Rules cannot withstand ANILCA’s

text or history, the joint decision of the two cabinet

secretaries to whom administration ofthe complex statute has

been delegated, our decisions in Katie John I and Katie John

II, or the facts established in this litigation.
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 59

 Pub. L. 59-171, 34 Stat. 197 (1906, as amended) (codified at 159

43 U.S.C. §§ 270-1 through 270-3 (1970)). The original Act did not

include Aleuts, or require five years of substantially continuous use.

 Id. 160

 Pub. L. 92-203, 85 Stat. 688 (1971, as amended) (codified at 161

43 U.S.C. §§ 1601–1629h).

 43 U.S.C. § 1617(a). 162

 43 C.F.R. § 2561.3 (2006). 163

 Some allotments granted pursuant to the Alaska Native Allotment Act 164

are within the boundaries of the conservation system units and forest

reserves identified in the 1999 Rules. See 64 Fed. Reg. at 1,279. These

allotments are already subject to ANILCA’s rural subsistence priority. Id.

4. Alaska Native Allotments

The Alaska Native Allotment Act of 1906 authorized 159

the Secretary of the Interior to allot “to any Indian, Aleut, or

Eskimo” a 160-acre allotment of unsurveyed or otherwise

unappropriated land upon proof of “substantially continuous

use and occupancy” of the land for five years. The Alaska 160

Native Claims Settlement Act of 1971 repealed the 1906 161

Act but did not extinguish existing allotments or allotments

under application at the time of the repeal. Alaska Natives 162

who have been granted allotments own the lands conveyed to

them in restricted fee. The allotments are non-taxable unless

authorized by Congress, and theycannot be conveyed without

approval from the Secretary of the Interior.163

The Secretaries did not include within “public lands” the

waters appurtenant to Alaska Native allotments falling

outside the land units listed in the 1999 Rules. Rather, the 164
60 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 Id. at 1,290 (codified at 36 C.F.R. § 242.10(d)(4)(xix) and 50 C.F.R. 165

§ 100.10(d)(4)(xix)).

1999 Rules delegate to the Federal Subsistence Board the

authority to

[i]dentify, in appropriate specific instances,

whether there exists additional Federal

reservations, Federal reserved water rights or

other Federal interests in lands or waters,

including those in which the United States

holds less than a fee ownership, to which the

Federal subsistence priority attaches, and

make appropriate recommendation to the

Secretaries for inclusion of those interests

within the Federal Subsistence Management

Program.165

Thus, the Federal Subsistence Board has the authority to

make recommendations to the Secretaries for additions, if

necessary, to the waters that are “public lands” by virtue of

the federal reserved water rights doctrine, including waters

appurtenant to the Alaska Native allotments.

The Secretaries concede that the United States has

consistently asserted an interest in Native American

allotments by virtue of their restricted fee status. The

Secretaries also recognize that, typically, “allotments of

Indian reservations to individual Indians, as well as the

transfer of these allotments to non-Indians, have been found

to carry with them a share of the reservation’s [federal

reserved water rights] pursuant to section 7 of the General
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 61

 See, e.g., United States v. Powers, 305 U.S. 527, 532 (1939); Walton,

166

647 F.2d at 50 (“It is settled that Indian allottees have a right to use

reserved water.”)

Allotment Act, 25 U.S.C. § 381.” Although the Secretaries 166

do not take the position that federal reserved water rights do

not or cannot reach the waters appurtenant to Alaska Native

allotments, they argue that the allotments are “unique” and

that the “complex legal issues surrounding the question” led

them to conclude that identification of which waters

appurtenant to these allotments should be included within

“public lands” was best done on a case-by-case basis.

The State argues that the Alaska Native allotments do not

give rise to federal reserved water rights at all. The State

reasons that, “[u]nlike the allotments [created under the

General Allotment Act], Alaska Native allotments are not

derived from a previous Indian reservation and, therefore,

cannot succeed to any Winters water rights associated with an

Indian reservation.” In other words, federal reserved water

rights emerge only out of federal reservations; they do not

attach to Alaska Native allotments created from the public

domain.

For their part, the Katie John plaintiffs challenge the

Secretaries’ decision not to categorically designate as “public

lands” subject to ANILCA’s rural subsistence priority the

waters appurtenant to all Alaska Native allotments. The

Katie John plaintiffs argue that the United States has an

interest in the allotments by virtue of their restricted fee

status, and that water is necessary to carry out the subsistence

purposes for which these allotments were created.
62 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

 Katie John I, 72 F.3d at 704. 167

We need not decide whether Alaska Native allotments

can give rise to federal reserved water rights. The Secretaries

reasonably decided to resolve this difficult issue on a case-bycase basis. We uphold the 1999 Rules, and affirm the district

court’s conclusion that it was “lawful and reasonable” for the

Secretaries to delegate authority to the Federal Subsistence

Board to decide which Native allotments falling outside of

federal reservations, if any, give rise to federal reserved water

rights which justify imposing ANILCA’s rural subsistence

priority on appurtenant waters.

Determining which waters within or appurtenant to each

allotment may be necessary to fulfill the allotment’s needs is

a complicated and fact-intensive endeavor that is best left in

the first instance to the Secretaries, not the courts. We are

mindful that Katie John I expresses the hope that the federal

agencies will “determine promptly which navigable waters

are public lands subject to federal subsistence

management,” and that the parties to this litigation have an 167

interest in a final determination of how the Secretaries will

manage ANILCA’s rural subsistence priority. Accordingly,

while we defer to the Secretaries’ determination in the 1999

Rules regarding how best to identify federal reserved water

rights for Alaska Native settlement allotments, we encourage

them to undertake that process in a reasonably efficient

manner.

5. Selected-but-not-yet-conveyed lands

The final disputed issue is not about water rights, but

rather about certain lands on which the Secretaries have

chosen to apply ANILCA’s rural subsistence priority. These
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 63

16 U.S.C. § 3102(3)(A) (excluding from the definition of public lands 168

“land selections of the State of Alaska which have been tentatively

approved or validly selected under the Alaska Statehood Act and lands

which have been confirmed to, validly selected by, or granted to the

Territory of Alaska or the State under any other provision of Federal

law”); id. § 3102(3)(B) (excluding from the definition of public lands

“land selections of a Native Corporation made under the Alaska Native

Claims Settlement Act [43 U.S.C.A. § 1601 et seq.] which have not been

conveyed to a Native Corporation, unless any such selection is determined

to be invalid or is relinquished”).

 43 U.S.C. § 1635(o)(2). 169

 16 U.S.C. § 3102 states that “in titles IX and XIV the following terms 170

shall have the same meaning as they have in the Alaska Native Claims

Settlement Act, and the Alaska Statehood Act.” We are not aware of any

lands—known as “selected-but-not-yet-conveyed” lands—are

federal lands that have been selected by the State or an

Alaska Native corporation for conveyance, but have not yet

been formally conveyed from the United States to Alaska or

the corporation.

Section 102 of ANILCA expressly excludes selected-butnot-yet-conveyed lands from the definition of “public

lands.” For this reason the State argues that the 168

Secretaries’ decision to administer them according to the

rural subsistence priority was unlawful. But it is not so

simple. Section 906(o)(2) of ANILCA, located in Title IX of

the statute, provides a competing directive: “Until conveyed,

all Federal lands within the boundaries of a conservation

system unit, National Recreation Area, National Conservation

Area, new national forest or forest addition, shall be

administered in accordance with the laws applicable to such

unit.” Because ANILCA does not define “Federal land” for 169

purposes of § 906(o)(2), we give that term its ordinary 170
64 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

definition of “Federal land” in the Alaska Native Claims Settlement Act,

see 43 U.S.C. § 1602, or the Alaska Statehood Act, see Pub. L. 85-508,

72 Stat. 339 (1958).

 Black’s Law Dictionary 893 (8th ed. 2004). 171

 Chevron, 467 U.S. at 842–43. The district court, in upholding the 172

Secretaries’ decision to apply ANILCA’s subsistence priority to selectedbut-not-yet-conveyed lands, reasoned that the provision in ANILCA

§ 804, 16 U.S.C. § 3114, that the subsistence priority applies “[e]xcept as

otherwise provided in this Act and other Federal laws” cures any conflict

between §§ 102 and 906, and supports the Secretaries’ decision to apply

the priority to selected-but-not-yet-conveyed lands. We are not so

sanguine. Read in the context of § 804, “[e]xcept as otherwise provided”

is most naturally read to limit the application of the rural subsistence

meaning, i.e., “[l]and owned by the United States

government.” The record in this case shows that title to 171

selected-but-not-yet-conveyed lands remains with the United

States.

Accordingly, in administering ANILCA’s rural

subsistence priority, the Secretaries faced inconsistent

obligations. On one hand, selected-but-not-yet-conveyed

lands are not “public lands” subject to the rural subsistence

priority. On the other hand, these lands are “Federal lands,”

which, under § 906(o)(2), “shall be administered in

accordance with the laws applicable to” the federal

reservation that they are within. ANILCA therefore is

ambiguous regarding whether selected-but-not-yet-conveyed

lands “within the boundaries of a conservation system unit,

National Recreation Area, National Conservation Area, new

national forest or forest addition” are subject to rural

subsistence priority management, and we must decide

whether the Secretaries’ decision—that they are so

subject—is a permissible interpretation of the statute.172
JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND 65

priority, indicating that there may be instances in which even “public

lands” are not subject to subsistence management.

The Secretaries argue that they resolved this inherent

conflict in favor of § 906(o)(2) because to do otherwise

would make all laws except Title VIII of ANILCA applicable

to the selected-but-not-yet-conveyed lands within the

boundaries of the conservation system units. Admittedly, by

resolving the conflict in this manner, the Secretaries are

extending rural subsistence priority beyond “public lands.”

But their position is reasonable. To hold that the selectedbut-not-yet-conveyed lands are subject to the same laws as

the surrounding areas except rural subsistence priority

management would require the Secretaries to carve out small

geographic sections from the larger federal land units and

then administer the rural subsistence priority on all lands but

these sections. Such a regime would be unmanageable and

contrary to the intent of § 906(o)(2). Furthermore, because

the title to the selected-but-not-yet-conveyed land remains

with the United States, there is no practical reason to exclude

these lands from federal rural subsistence priority

management before they are formally conveyed to the State

or a Native corporation. For these reasons, the Secretaries’

reconciliation of conflicting provisions in favor of

§ 906(o)(2) was a permissible construction of an ambiguous

statute.

CONCLUSION

In reaching our decision, we recognize that we and the

Secretaries have been working with imperfect tools. Katie

John I was a problematic solution to a complex problem, in

that it sanctioned the use of a doctrine ill-fitted to determining

which Alaskan waters are “public lands” to be managed for
66 JOHN V. ALASKA FISH & WILDLIFE CONSERVATION FUND

rural subsistence priority under ANILCA. But Katie John I

remains the law of this circuit, and we, like the Secretaries,

must apply it as best we can.

We conclude that, in the 1999 Rules, the Secretaries have

applied Katie John I and the federal reserved water rights

doctrine in a principled manner. It was reasonable for the

Secretaries to decide that: the “public lands” subject to

ANILCA’s rural subsistence priority include the waters

within and adjacent to federal reservations; and reserved

water rights for Alaska Native Settlement allotments are best

determined on a case-by-case basis.

AFFIRMED.