January 01, 2018

Sturgeon v. Frost: A little case in Alaska poses big questions for federalism

Matthew J. Sanders

Time and again we see that big cases often begin with little disputes. On its face, Sturgeon v. Frost is a simple case about whether the National Park Service may prohibit John Sturgeon from using his hovercraft on waters within the Yukon-Charley Rivers National Preserve (Preserve) in Alaska. But following the Ninth Circuit’s latest decision in the case, issued in October 2017 after a remand from the Supreme Court, Sturgeon may come to define the nature and reach of the federal government’s authority over waters in and beyond Alaska.


In 2007, Park Service rangers found John Sturgeon piloting his hovercraft upstream along the Nation River within the boundaries of the Preserve, near Alaska’s eastern border with Canada. The rangers told Sturgeon that hovercraft were prohibited by regulation within the National Park System throughout the United States. Sturgeon sued, arguing that the Park Service had no authority over the Nation River because the State of Alaska owned it. The district court granted summary judgment to the Park Service and the Ninth Circuit affirmed.

The prior proceedings

The legal issue addressed in both decisions—whether the Park Service could enforce its nationwide hovercraft ban within the Preserve—turned on section 103(c) of the Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. § 3103(c). ANILCA, passed in 1980, sought to balance three competing desires: federal preservation of wild areas, subsistence uses by Alaska Natives, and natural resource development by the State of Alaska and its citizens. So ANILCA, among other things, put lands for preservation into “conservation system units,” of which the Preserve is one, but limited the authority of the Park Service, which manages those units, to “public lands” within the units. 16 U.S.C. § 3103(c). Correspondingly, “non-public lands” were exempted from “regulations applicable solely to public lands within such units.” “Public lands” under ANILCA are those “lands, waters, and interests therein” to which the United States has “title.” See 16 U.S.C. § 3102.

In its first decision (Sturgeon v. Masica, 768 F.3d 1066 (9th Cir. 2014) (Sturgeon I)), the Ninth Circuit upheld the Park Service’s hovercraft ban on the ground that it applied nationwide—i.e., it was not a regulation that applied “solely to public lands within” the Preserve—and therefore could be enforced as to all lands within it (including non-public ones). 768 F.3d at 1077–78. (The district court had reached the same conclusion. See Sturgeon v. Masica, 2013 WL 5888230, at *8 (D. Alaska Oct. 30, 2013).) This reasoning allowed the Ninth Circuit to avoid addressing whether the Nation River was a “public land” within the meaning of ANILCA.

In a unanimous decision previously covered in Trends, the Supreme Court reversed. Sturgeon v. Frost, 136 S. Ct. 2016 (2016) (Sturgeon II). The Court held that the Ninth Circuit’s “topsy-turvy approach” ignored ANILCA’s purposes and fundamental premise—“that Alaska is often the exception, not the rule”—and would allow the Park Service to “regulate ‘non-public’ lands in Alaska only through rules applicable outside Alaska as well.” Id. at 1071. But Sturgeon II was narrow—it addressed only the Ninth Circuit’s reading of ANILCA section 103(c). As a result, on remand the Ninth Circuit had no choice but to face the question it had previously avoided: whether the Nation River, and other waters in Alaska’s conservation system units, are “public lands” under ANILCA.

The Ninth Circuit’s latest decision

In Sturgeon v. Frost, 872 F.3d 927, 2017 WL 4341742 (9th Cir. 2017) (Sturgeon III), the Ninth Circuit has now answered that question in the affirmative. Specifically, the panel concluded that the waters of the Nation River are “public lands” under ANILCA pursuant to the federal reserved water rights doctrine. That doctrine provides that where the United States withdraws lands for a federal purpose, it impliedly reserves the water needed to serve that purpose. See Cappaert v. United States, 426 U.S. 128, 138 (1976). In fact, when President Carter created the Preserve in 1977, he expressly “reserved all water necessary to the proper care and management of” the objects within the Preserve. The Ninth Circuit reasoned that such reservation included the Nation River and that banning over-water motorized vehicles like hovercraft served the purposes of the Preserve: to protect various natural resources, including the Charley River basin “in its undeveloped natural condition.” 16 U.S.C. § 410hh(10); see Sturgeon III, 872 F.3d at 934–35.

This result, or at least its reasoning, was not obvious. The federal reserved water rights doctrine is ordinarily used to determine the amount of water reserved for a federal withdrawal, not to identify the waters the federal government has authority to manage. The Sturgeon III panel was not writing on a clean slate, however. In a series of cases known as Katie John I, II, and III, the Ninth Circuit had employed the federal reserved waters rights doctrine to determine whether waters within Alaska’s conservation system units were “public lands” under ANILCA. In Katie John I, the Ninth Circuit reluctantly used that doctrine to define the scope of the federal government’s interests in certain navigable waters. Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995). Sitting en banc in Katie John II, the Ninth Circuit left Katie John I intact, but not without a spirited concurrence arguing that the Commerce Clause, not the federal reserved water rights doctrine, gives the federal government authority over all navigable Alaskan waters, and an equally spirited dissent arguing that the United States does not have “title” to Alaskan waters, as ANILCA requires. John v. United States, 247 F.3d 1032 (9th Cir. 2000) (en banc) (per curiam). And in Katie John III, the court, bound by its two prior decisions, again (and again reluctantly) applied the federal reserved water rights doctrine to determine the scope of certain subsistence rights under ANILCA. John v. United States, 720 F.3d 1214 (9th Cir. 2013).

By relying on this fraught precedent (as it had to), Sturgeon III may have morphed from a little case about an arcane statutory provision into a much larger one about the source and scope of federal authority over public waters in Alaska.

Looking ahead

What is the likelihood Sturgeon will fulfill its potential? Any appellate practitioner can spot the signs of a case headed for en banc or Supreme Court review, and Sturgeon III has most of them. First, while the issue of how to define “public lands” under ANILCA is specific to Alaska, it keeps coming up. Second, the Ninth Circuit’s judges continue to express disagreement and discomfort about how best to do that. Third, that discomfort continues with Sturgeon III; Judge Nyugen, joined by Judge Nelson, issued a concurrence to her own opinion explaining that the navigational servitude, not the federal reserved water rights doctrine, is actually the right vehicle for defining which waters are “public lands” under ANILCA. Finally, the Supreme Court acknowledged that the parties’ arguments in this case “touch on vital issues of state sovereignty, on the one hand, and federal authority, on the other.” Sturgeon II, 136 S. Ct. at 1071. But even if Sturgeon III is the final decision in this case, and even though it concerns Alaska-specific law and waters, the decision has the potential to influence how the courts approach more generally the federal government’s authority under the Commerce Clause and the federal reserved water rights doctrine, as well as states’ authority under the Equal Footing Doctrine. Sturgeon, in other words, may yet become an important federalism case.

Whatever Sturgeon III’s fate and jurisprudential impact, it is the latest chapter in an ongoing and fascinating debate, and it will still decide an issue of no small consequence to John Sturgeon: whether he may use his hovercraft to go hunting along the banks of the Nation River.

Matthew J. Sanders

Matthew J. Sanders is of counsel to Jeffer Mangels Butler & Mitchell, LLP. He is a member of the Trends editorial board.