Public Lands: Sturgeon v. Frost

Preview Issue 4, Vol. 43

By Richard H. Seamon

Published January 2016

Can the National Park Service Regulate Navigable Waters in Alaska’s National Parks?


CASE AT A GLANCE

For many years, petitioner John Sturgeon used a small hovercraft to hunt moose in the wilds of Alaska. One day, National Park Service (NPS) officials told him that hovercrafts are not allowed on the navigable waters in Alaska’s national parks. Sturgeon sued to challenge this restriction. He argues that the restriction is barred by Section 103(c) of the Alaska National Interest Lands Conservation Act.


ISSUE

Does Section 103(c) of the Alaska National Interest Lands Conservation Act bar the National Park Service from banning hovercrafts on navigable waters in Alaska’s national parks?


Sturgeon argues that, as a whole, Section 103(c) ensures that the NPS’s control over the national parks cannot extend to non-federally owned inholdings. Image source: Wikimedia Commons.


FACTS

Petitioner, John Sturgeon, is a lifelong Alaskan who hunts moose in the wilds of Alaska. In 1990, Sturgeon bought a hovercraft to travel over otherwise inaccessible parts of Alaska’s Nation River. Sturgeon registered his hovercraft with the state and used it, in compliance with Alaska law, on his annual moose hunts until 2007, when this dispute arose.

In 2007, National Park Service (NPS) officials found Sturgeon repairing his hovercraft on a gravel bar next to the Nation River. At the time, he and the craft were inside the Yukon-Charley Rivers National Preserve, which is a unit of the national park system in Alaska. The NPS officials told Sturgeon that hovercrafts aren’t allowed on the navigable waters in national parks. When Sturgeon challenged NPS’s authority to enforce the hovercraft ban, NPS officials threatened him with criminal prosecution.

Sturgeon brought this lawsuit in 2011. He sued various entities and officials, including named respondent Burt Frost, the Alaska Regional Director of the NPS. Sturgeon argued that NPS’s hovercraft ban is not enforceable on the navigable waters in Alaska, even those inside national parks. His argument rests on Section 103(c) of the Alaska National Interest Lands Conservation Act of 1980 (ANILCA). Sturgeon contends that Section 103(c) of ANILCA exempts state-owned and other non-federally owned lands in Alaska from NPS regulations, even if they are inside a national park. Sturgeon further argues that, because Alaska owns the submerged lands underlying all navigable waters within its borders, it owns the waters themselves. If this argument is correct, the hovercraft ban cannot be enforced on the Nation River, even those portions within the Yukon-Charley Rivers National Preserve, because they are navigable.

The United States District Court for the District of Alaska rejected Sturgeon’s argument, as did the United States Court of Appeals for the Ninth Circuit. They agreed with the NPS’s argument that Section 103(c) of ANILCA exempts non-federally owned lands in Alaska’s national parks only from certain NPS regulations: namely, NPS regulations that apply exclusively to Alaska’s national parks. The hovercraft ban is not exclusively applicable to Alaska’s national parks. It’s a nationwide rule.

The state of Alaska intervened in this lawsuit, taking Sturgeon’s side. The Ninth Circuit, however, held that Alaska lacked standing to participate as a party. Alaska remains in the case as an amicus, and has been granted permission to participate in the upcoming oral argument before the Court.


CASE ANALYSIS

This case requires the Court to interpret Section 103(c) of ANILCA, a three-sentence subsection of one of ANILCA’s general provisions, entitled “Maps.” But beyond this seemingly narrow and mundane issue of statutory interpretation looms the larger controversy about the federal government’s control over large portions of the western states.

Section 103(c) of ANICLA contains three sentences, each of which is likely to command attention at oral argument. The first sentence reflects that many “units” of the national park system in Alaska—such as the Yukon-Charley Rivers National Preserve, where this case arose—contain non-federally owned land within their boundaries. These so-called inholdings include land owned by Alaska, by Alaska Native Corporations, and by private landowners. The first sentence says that only the federally owned lands inside these units—and not the non-federally owned inholdings—are part of the unit:

Only those lands within the boundaries of any conservation unit which are public lands (as such term is defined in this Act) shall be deemed to be included as a portion of such unit.

The second sentence of Section 103(c) addresses the applicability of NPS regulations to the non-federally owned lands in units of Alaska’s national park system:

No lands which, before, on, or after December 2, 1980 [ANILCA’s effective date], are conveyed to the State, to any Native Corporation, or to any private party shall be subject to the regulations applicable solely to public lands within such units.

The term “public lands” means federally owned land. The parties primarily dispute the meaning of the last part of this sentence: the phrase “regulations applicable solely to public lands within such units.” Sturgeon argues that this phrase refers to all NPS regulations applicable to national parks. In contrast, NPS argues that this phrase refers only to NPS regulations that apply exclusively to national parks in Alaska. Under NPS’s interpretation, this phrase does not include its hovercraft ban, because that ban applies in national parks nationwide, not just the national parks in Alaska.

At the microscopic level, this dispute concerns which words “solely” modifies. Does it modify only the phrase “public lands,” as Sturgeon contends, so as to exempt non-federally owned lands from all regulations applicable to federally owned (i.e., “public”) lands, regardless of whether those lands are located in Alaska or elsewhere? Or does “solely” modify the broader phrase “public lands within such units,” so that non-federally owned lands are exempt only from NPS regulations that are applicable exclusively to federally owned lands within units of Alaska’s national park system? Under the latter reading, which is urged by NPS, non-federally owned lands aren’t exempt from the hovercraft ban because that ban isn’t applicable exclusively (solely) in Alaska’s national parks.

Sturgeon argues that his interpretation has support when Section 103(c) is read as a whole. As stated above, the first sentence of Section 103(c) says that only the federally owned lands inside units of Alaska’s national park system are “deemed to be included as a portion of such unit.” Whereas this first sentence makes clear that non-federally owned lands aren’t part of these national park system units, Sturgeon argues, the second sentence makes clear that these non-federally owned lands cannot be regulated as if they were part of these national park system units. The third sentence of Section 103(c)—Sturgeon’s argument runs—makes clear that non-federally owned lands in Alaska national parks can be regulated as if they were a part of those parks only if the lands are transferred to federal ownership. The third sentence says:

If the State, a Native Corporation, or other owner desires to convey any such lands [i.e., lands inside one of Alaska’s national park system units], the Secretary [of Interior] may acquire lands in accordance with applicable law (including this Act), and any such lands shall become part of the unit, and be administered accordingly.

Sturgeon argues that, as a whole, Section 103(c) ensures that the NPS’s control over the national parks cannot extend to non-federally owned inholdings.

By now, the reader might have noticed that Section 103(c) of ANILCA refers to “lands,” not water. Yet the issue before the Court is whether the NPS can regulate the use of hovercrafts and other activity on navigable waters in Alaska’s national parks, such as the waters of the Nation River. The mystery disappears when you learn that ANILCA defines the word “lands” to mean “lands, waters, and interests therein.” Even so, the parties dispute whether or not Alaska owns the waters of the Nation River.

Sturgeon argues that, under Section 103(c)’s second sentence, the “lands … conveyed to the State”—which, under that sentence, are exempt from at least some NPS regulations—include all navigable waters in Alaska. Sturgeon maintains that those waters were “conveyed to” Alaska upon Alaska’s admittance to the United States in 1959 by the Alaska Statehood Act. The Alaska Statehood Act incorporated the Submerged Lands Act of 1953. The 1953 Act grants states title to the submerged land underlying their navigable waters. Sturgeon argues that this grant includes title to the navigable waters themselves.

NPS makes two counterarguments. First, NPS argues that the Submerged Lands Act conveyed only the land under navigable waters, not the waters themselves. NPS cites precedent stating that it is legally impossible for anyone to own running water outright; you can only gain “usufructuary” rights related to using it. Second, NPS argues that the federal government retains “reserved rights” in Alaska’s navigable waters, even though the lands underlying them belong to Alaska. NPS’s argument continues that, because ANILCA defines “public lands” to include “lands, waters, and interests therein” to which the United States holds title, the federal government’s ownership of reserved water rights makes the navigable waters “public lands” for purposes of ANILCA. Under the first sentence of Section 103(c), NPS concludes, the navigable waters are therefore part of the national park units in Alaska, and can be regulated as such.


On the facts of this particular case, Alaska argues that many people in Alaska cannot get access to food, health care, and jobs unless they use types of transportation, such as hovercraft, that would be considered unconventional in the “lower 48.”


Both sides claim support for their competing interpretations of Section 103(c) in the purposes of ANILCA and other statutes. Sturgeon argues, with Alaska’s support, that ANILCA was meant to ensure that Alaskans could build a viable economy, infrastructure, and state government despite a small population and unique natural challenges. On the facts of this particular case, Alaska argues that many people in Alaska cannot get access to food, health care, and jobs unless they use types of transportation, such as hovercraft, that would be considered unconventional in the “lower 48.”

NPS counters that ANILCA is meant to preserve Alaska’s unique natural resources, and so it complements the NPS’s authority under other statutes to preserve national parks. NPS observes that rules such as its hovercraft ban apply on navigable waters within national parks outside Alaska, even though other states, like Alaska, own the submerged lands underlying those waters. NPS contends that Alaska is arguing for highly exceptional treatment that Congress could not have intended to grant through such obscure wording as found in a relatively obscure provision such as Section 103(c).


SIGNIFICANCE

Some commentators have wondered why the Court granted certiorari in this case. After all, the question presented concerns the proper interpretation of a statute applicable only in Alaska. Furthermore, the Ninth Circuit decision resolving that issue against Sturgeon does not conflict with any other appellate court decision. Considering the case’s apparent insignificance, one might suspect that the Court granted certiorari to do something that it says it doesn’t like to do but that it does with some regularity: namely, to correct a lower court’s obvious error, even though the error lacks significance. The Ninth Circuit has been a frequent victim of the Court’s error-correction function. But there may be more to this case than meets the eye of readers in the lower 48 states, especially those in the East. Such readers may be overlooking two things.

One is Alaska’s size and the proportion of federal government ownership of that state. Alaska has the largest land mass of all the states. It exceeds the size of California, for example, by a factor of four. The federal government owns about 60 percent of Alaska. ANILCA alone put more than 100 million acres into the national park system, in what are called “conservation system units.” In Alaska’s brief in support of granting certiorari, Alaska asserts that nearly 40 percent of Alaska falls within the boundaries of these units. As a result, Alaska’s national parks alone account for two-thirds of the entire national park system. Furthermore, inside Alaska’s national park system are 19 million acres of nonfederally owned lands— called “inholdings.” In short, this case concerns federal regulatory control over a vast amount of land and water.

Second, Alaska is not the only state in which the federal government owns most of the land. For example, the federal government owns about two-thirds of Utah and about 80 percent of Nevada. Federal ownership of such large portions of a state causes friction. The friction is illustrated by Utah’s enactment of legislation directing the federal government to turn over certain federal lands. The friction is also illustrated in this case. One reason Alaska claims an interest in this case is that the NPS has required state officials to get federal permits to conduct scientific studies on state-owned lands and waters. Alaska objects to the NPS’s “mandat[ing] that Alaska sacrifice its sovereign dignity and beg, hat in hand, to conduct scientific research on state land.”

It is possible, especially if the Court rules against the NPS, that the Court or some of its members could make broad statements suggesting limits on federal control of state-owned lands and navigable waters. It is at least equally possible, however, that the Court will resolve this case through a close parsing of a statute that applies only inside Alaska, and have no occasion to address the broader controversy that underlies this case.



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MORE ABOUT THIS CASE:


Sturgeon v. Frost

(Docket No. 14-1209)


Argument Date: January 20, 2016


Attorneys for the Parties:


For Petitioner John Sturgeon:

Matthew T. Findley


For Respondents Burt Frost, in his Official Capacity as Alaska Regional Director of the National Park Service, et al.:

Donald B. Verrilli Jr., Solicitor General


Amicus Briefs:

See all amicus briefs for this case


 ABOUT THE AUTHOR


Richard H. Seamon is a coauthor of Supreme Court Sourcebook (Aspen, 2013) and author of Administrative Law: A Context and Practice Casebook (Carolina Academic Press, 2013). Read his profile here.


IN THIS ISSUE:


Preview Issue 4, Vol. 43 covers the following cases:



Double Jeopardy Clause
Peurto Rico v. Sanchez Valle

Federal Diversity Jurisdiction
Americold Realty Trust v. ConAgra Foods, Inc.

First Amendment
Friedrichs v. California Teachers Association

Habeas Corpus
Duncan v. Owens

Indian Law
Nebraska v. Parker

Plain Error

Molina-Martinez v. United States

Public Lands
Sturgeon v. Frost

Separation of Powers
Bank Markazi v. Peterson



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