May 10, 2019

Sizing up Sturgeon v. Frost

Matthew Sanders

In 2005, I had the good fortune of visiting Alaska to present oral argument before the U.S. Court of Appeals for the Ninth Circuit. My case concerned whether the U.S. National Park Service (Park Service) could require a family living on an inholding in Wrangell-St. Elias National Park and Preserve to obtain a permit before clearing an old road through the park. After the argument, I spent five days backpacking in the shadow of the Alaska Range, wondering, as any lawyer would, whether I would win my case. I did, but more lasting than my victory was the indelible feeling that trip left me with: that Alaska is in all respects sui generis.

And so the Supreme Court has concluded in its most recent decision in Sturgeon v. Frost. Sturgeon, 587 U.S. -- , 2019 WL 1333260 (Mar. 26, 2019). For public lands lawyers, the question from the start has been whether Sturgeon would turn out to be a gamechanger for federalism and public lands management or a narrow statement on an Alaska-specific law. We now know it’s more the latter, but Sturgeon still raises important questions about federal authority inside our nation’s largest state. And the answers to those questions may quietly reverberate “Outside,” the name Alaskans give to the rest of the country.


Like the access case I argued in 2005, Sturgeon is a case about how far the federal government can reach in Alaska. In 2007, rangers from the Park Service found John Sturgeon piloting his hovercraft in the waters of the Nation River near Alaska’s eastern border with Canada. When the rangers found him, Sturgeon was on the part of the Nation River that flows through the 1.7-million-acre Yukon-Charley Rivers National Preserve (Yukon Preserve), a unit of the National Park System. When the rangers told Sturgeon that nationwide regulations prohibited him from using his hovercraft, 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 legal issue in both courts’ decisions—whether the Park Service could enforce its nationwide hovercraft ban within the Yukon Preserve—turned on section 103(c) of the Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. § 3103(c). See 2013 WL 5888230 (Oct. 30, 2013); 768 F.3d 1066 (9th Cir. 2014). ANILCA, passed in 1980 and codified at 16 U.S.C. §§ 3101–3233, created “conservation system units” (including the Yukon Preserve) to preserve wild areas, protect subsistence uses by Alaska Natives, and promote natural resource development by the state. Section 103(c) limited the authority of the Park Service to “public lands” within the units (with “lands” defined as “lands, waters, and interests therein”) to which the United States had “title,” and exempted “non-public lands” (defined as certain state, Native, and private lands) from “regulations applicable solely to public lands within such units.” 16 U.S.C. §§ 3102(1)-(3), 3103(c).

In a unanimous 2016 decision previously covered in Trends, the U.S. Supreme Court reversed. 136 S. Ct. 1061 (2016). Like the lower courts, the high Court addressed only section 103(c). However, the Court directed the Ninth Circuit to consider on remand whether the Park Service could regulate hovercraft, not under section 103(c), but by virtue of the river being a “public land” under ANILCA or on some other basis. And while the Court’s opinion was narrow, it hinted that the underlying question—whether the Nation River was a “public land” under ANILCA—raised issues that “touch on vital issues of state sovereignty, on the one hand, and federal authority, on the other.” Id. at 1072.

When Sturgeon returned to the Ninth Circuit, that court looked to the “federal reserved waters rights” doctrine to determine whether the Nation River was a “public land” under ANILCA. In doing so, the court was relying on its prior Katie John decisions, which had used the reserved water rights doctrine to delineate subsistence uses under ANILCA. Under the doctrine, when the United States reserves land for particular purposes, it also reserves the unappropriated water necessary to meet them. See, e.g., Cappaert v. United States, 426 U.S. 128, 138–39 (1976); John v. United States, 720 F.3d 1214, 1223–27, 1229–32 (9th Cir. 2013). Applying the doctrine to the Nation River, the Ninth Circuit concluded that the river was indeed a “public land” under ANILCA. 872 F.3d 927 (9th Cir. 2017). The court concluded that, because President Carter had “reserved all water necessary to the proper care and management of” the objects within the Yukon Preserve when he created it in 1977, banning over-water motorized vehicles like hovercraft served the preserve’s purposes. See id. at 934–35; 16 U.S.C. § 410hh(10).

The Supreme Court once again granted certiorari on the question whether ANILCA “prohibits the National Park Service from exercising regulatory control over State, Native Corporation, and private land physically located within the boundaries of the National Park System in Alaska.” 138 S. Ct. 2648 (2018).

The Court’s latest decision

In a unanimous decision, the Supreme Court has again reversed the Ninth Circuit. The opinion holds that the Park Service lacks the authority to regulate hovercraft on the Nation River within the Yukon Preserve. Justice Sotomayor, joined by Justice Ginsburg, filed a concurrence to “emphasize the important regulatory pathways that the Court’s decision leaves open for future exploration.” Concurrence, at 1.

In its opinion, the Court first concludes that the Nation River is not a “public land” under ANILCA. The statute defines “public land” to mean “lands, waters, and interests therein,” the “title to which is in the United States.” 16 U.S.C. § 3102(1)-(2). Because running waters cannot be owned by anyone, the Park Service cannot have title to the Nation River “in the ordinary sense.” Slip op. at 12. And because Alaska’s Statehood Act incorporated the Submerged Lands Act, Alaska, not the federal government, has “‘title to and ownership of the lands beneath [its] navigable waters.’” Id. at 13 (quoting 43 U.S.C. § 1311).

Does the reserved water rights doctrine make the Nation River a “public land,” as the Ninth Circuit held? No, the Court says. Even if the federal government could hold “title” to a reserved water right (the Court suspects it can’t), the title would be only to the “interest” in the amount of water required to fulfill the purposes of the Yukon Preserve. Reserving a specific quantity of water does not give rise to plenary authority, including the authority to ban hovercraft, at least absent a showing that banning hovercraft somehow serves that interest—e.g., by keeping the Nation River from being depleted, diverted, or polluted. Slip op. at 14–15.

Having concluded that the Nation River is not a “public land” under ANILCA, the Court asks next whether the Park Service may regulate hovercraft, even on nonpublic lands (again, those lands and waters that, like the Nation River, are within the boundaries of federal conservation units but not owned by the federal government). Again, it answers no. The Yukon Preserve’s boundaries, like those of other conservation system units under ANILCA, “followed the area’s ‘natural features,’ rather than (as customary) the Federal Government’s property holdings.” Slip op. at 17 (quoting 16 U.S.C. § 3103(b)). As a result, the preserve includes lands owned by Alaska, Native Corporations, and private persons, all of whom wanted to be exempt from Park Service control. Slip op. at 17. Accordingly, section 103(c)—part of ANILCA’s “grand bargain” between federal conservation and other, non-federal uses—“deem[s]” those non-federal lands to be outside the Preserve; “[g]eographic inholdings thus become regulatory outholdings, impervious to the [Park] Service’s ordinary authority.” Id. at 19, 22. And the general instructions in ANILCA and other statutes to, for example, “protect and preserve rivers,” 16 U.S.C. § 3101(b), does not overcome section 103(c)’s more specific instruction to exempt nonpublic lands from Park Service control. Slip op. at 26–29.

Notably, the Court observes that its decision does not disturb the Ninth Circuit’s Katie John precedent. Id. at 15 n.2. That outcome was vital to Alaska Natives. The Court is also clear that Sturgeon does not affect the Park Service’s authority to regulate waters outside of conservation system units or on public lands “flanking” nonpublic rivers. Id. at 19 n.5, 28.

Looking downstream

In its first Sturgeon decision, the Supreme Court observed that “Alaska is often the exception, not the rule.” 136 S. Ct. at 1071. In this latest decision, the Court makes that observation and another like it (“Alaska is different”) no fewer than eight times, and repeatedly discusses how ANILCA was a unique compromise among the stakeholders in Alaska’s lands and waters. So channelized, Sturgeon will not be the federalism blockbuster that some had desired and others feared. Instead it will remain primarily a case about Alaska.

Still, Alaska is a big place. ANILCA’s conservation system units comprise 44 million acres—more than 10 percent of the state—and 18 million of these are nonpublic lands. Slip op. at 6, 8. Most obviously, we know from Sturgeon that the Park Service cannot enforce its nationwide hovercraft ban on the Nation River, or on other waters to which Alaska holds title, and that as a result John Sturgeon gets to “take his hovercraft out of storage.” Id. at 11.

But Sturgeon’s impact is not limited to hovercraft on the Nation River. The decision calls into question similar assertions of authority by the Park Service. To be sure, the decision expressly leaves open the possibility that the federal government can regulate what happens on such lands and waters on other grounds, including under other federal environmental statutes (e.g., Endangered Species Act, the Clean Water Act); through “cooperative agreements” with Alaska; or by buying those nonpublic lands. Id. at 24 n.9, 26 n.10, 28. And indeed this is the point Justice Sotomayor makes in her concurrence: Sturgeon holds only that the Park Service may not apply a nationwide hovercraft ban on nonpublic lands inside conservation system units in Alaska. Concurrence, at 1–2. The Court does not decide whether the Park Service could use its authority under the Park Service Organic Act, 54 U.S.C. § 100101 et seq., to regulate navigable waters in other ways to protect park units, or under the Wild and Scenic Rivers Act, 16 U. S. C. § 1271 et seq., to protect those Alaskan rivers that bear that designation (the Nation River does not). Id. at 2, 8–11. In addition, the Court does not decide whether the Nation River is a “public land” pursuant to ANILCA under the navigational servitude, a wide-ranging Commerce-Clause power that was discussed in one of the Ninth Circuit’s Katie John cases. Id. at 5 n.5; see also John v. United States, 247 F.3d 1032, 1034–44 (Tallman, J., concurring). All this may be tepid comfort to the federal government; now it will need to test, and the courts will need to define, the contours of some or all of these alternative theories.

Will Sturgeon have any impact outside Alaska? Maybe. Justice Sotomayor explains that Sturgeon “introduces limitations on—and thus could engender uncertainty regarding—the Service’s authority over navigable rivers that run through Alaska’s parks.” Concurrence, at 2. That is, while Sturgeon steers clear of significantly limiting the Park Service’s authority, it also does not champion her point that, because the Park Service is obligated to preserve rivers and parks, it must have the authority—some authority—to do that. Id. at 2–3, 6, 12. If federalism finds a camel’s nose in Sturgeon, it may be this studied indifference toward strong federal authority. For now, though, we are reminded that Alaska is “the exception, not the rule.”

Matthew Sanders

Matthew Sanders is a deputy county counsel for San Mateo County, California, and lecturer in law at Stanford Law School. His views are his own.