John Sturgeon v. Sue Masica

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN STURGEON, No. 13-36165

Plaintiff-Appellant,

D.C. No.

STATE OF ALASKA, 3:11-cv-00183-

Plaintiff-Intervenor, HRH

v.

SUE MASICA, in her official capacity

as Alaska Regional Director of the

National Park Service; GREG

DUDGEON; ANDEE SEARS; SALLY

JEWELL, Secretary of the Interior;

JONATHAN JARVIS, in his official

capacity as Director of the National

Park Service; THE NATIONAL PARK

SERVICE; THE UNITED STATES

DEPARTMENT OF THE INTERIOR,

Defendants-Appellees.

2 STURGEON V. MASICA

STATE OF ALASKA, No. 13-36166

Intervenor-Plaintiff–Appellant,

D.C. No.

and 3:11-cv-00183-

HRH

JOHN STURGEON,

Plaintiff,

OPINION

v.

SUE MASICA, in her official capacity

as Alaska Regional Director of the

National Park Service; GREG

DUDGEON; ANDEE SEARS; SALLY

JEWELL, Secretary of the Interior;

JONATHAN JARVIS, in his official

capacity as Director of the National

Park Service; THE NATIONAL PARK

SERVICE; THE UNITED STATES

DEPARTMENT OF THE INTERIOR,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Alaska

H. Russel Holland, Senior District Judge, Presiding

Argued and Submitted

August 12, 2014—Anchorage, Alaska

Filed October 6, 2014

STURGEON V. MASICA 3

Before: Jerome Farris, Dorothy W. Nelson,

and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Nguyen

SUMMARY*

Standing / National Park Service

The panel affirmed the district court’s summary judgment

in favor of federal appellees, and vacated the judgment

against intervenor/appellant State of Alaska, due to its lack of

standing, in an action brought by John Sturgeon challenging

the National Park Service’s enforcement of a regulation

banning the operation of hovercrafts on the Nation River.

Tha National Park Service (“NPS”) ban prevented

Sturgeon from using his personal hovercraft on his moose

hunting trips on the Nation River, part of which falls within

the Yukon-Charley Rivers National Preserve. The State of

Alaska intervened, challenging NPS’s authority to require its

researchers to obtain a permit before engaging in studies of

chum and sockeye salmon on the Alagnak River, part of

which falls within the boundaries of the Katmai National Park

and Preserve.

The panel held that Sturgeon established Article III

standing. The panel also held that the federal appellees

waived their prudential standing arguments. The panel

*

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

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

4 STURGEON V. MASICA

further held that the State of Alaska lacked standing to

challenge the NPS regulations. The panel vacated the district

court’s judgment as to Alaska, and remanded with

instructions that Alaska’s case be dismissed for lack of

jurisdiction.

The panel rejected Sturgeon’s contention that § 103(c) of

the Alaska National Interest Lands Conservation Act

precluded NPS from regulating activities on state-owned

lands and navigable waters that fell within the boundaries of

National Park System units in Alaska. The panel held that

Sturgeon’s interpretation of § 103(c) was foreclosed by the

plain text of the statute. The panel held that even assuming

that the waters of and lands beneath the Nation River had

been “conveyed to the State” for purposes of the Alaska

National Interest Lands Conservation Act § 103(c), NPS’s

hovercraft ban was not a regulation that applied solely to

public lands within conservation system units in Alaska; and

given its general applicability, the regulation could be

enforced on both public and nonpublic lands alike within

conservation system units.

The panel also rejected Sturgeon’s arguments that the

Secretary of the Interior exceeded her statutory authority in

promulgating the regulation at issue, and that her action

raised serious constitutional concerns.

STURGEON V. MASICA 5

COUNSEL

Matthew T. Findley (argued) and Eva R. Gardner, Ashburn

& Mason, P.C., Anchorage, Alaska; Douglas Pope, Pope &

Katcher, Anchorage, Alaska, for Plaintiff-Appellant John

Sturgeon.

Jeanie Ann Nelson (argued), Assistant Attorney General,

State of Alaska, Department of Law, Anchorage, Alaska, for

Intervenor-Plaintiff-Appellant State of Alaska.

Elizabeth Ann Peterson (argued), Andrew C. Mergen, David

C. Shilton, Dean K. Dunsmore, Vivian H. W. Wang, and Sam

Hirsch, Acting Assistant Attorney General, United States

Department of Justice, Environment and Natural Resources

Division, Washington, D.C.; Jason Waanders, United States

Department of the Interior, Office of the Solicitor,

Philadelphia, Pennsylvania; F. Christopher Bockmon, United

States Department of the Interior, Office of the Solicitor,

Anchorage, Alaska, for Defendants-Appellees.

Jahna M. Lindemuth and Katherine Demarest, Dorsey &

Whitney LLP, Anchorage, Alaska, for Amicus Curiae Cook

Inlet Region, Inc., Arctic Slope Regional Corp., Koniag, Inc.,

Chickaloon Moose Creek Native Association, Inc., Knikatnu,

Inc., Ninilchik Natives Association, Inc., Salamatof Native

Association, Inc., Seldovia Native Association, Inc., and

Tyonek Native Corp.

James D. Linxwiler and Josh Van Gorkom, Guess & Rudd

P.C., Anchorage, Alaska, for Amicus Curiae native

corporations.

6 STURGEON V. MASICA

Katherine Strong and Valerie Brown, Trustees for Alaska,

Anchorage, Alaska; Thomas E. Meacham, Anchorage,

Alaska, for Amicus Curiae National Parks Conservation

Association.

OPINION

NGUYEN, Circuit Judge:

John Sturgeon (“Sturgeon”) challenges the National Park

Service’s (“NPS”) enforcement of a regulation banning the

operation of hovercrafts on the Nation River, part of which

falls within the Yukon-Charley Rivers National Preserve.

The ban prevented Sturgeon from using his personal

hovercraft on his moose hunting trips on the Nation River.

The State of Alaska intervened, challenging NPS’s authority

to require its researchers to obtain a permit before engaging

in studies of chum and sockeye salmon on the Alagnak River,

part of which falls within the boundaries of the Katmai

National Park and Preserve.

Sturgeon and Alaska present the same legal argument:

§ 103(c) of the Alaska National Interest Lands Conservation

Act (“ANILCA”) precludes NPS from regulating activities on

state-owned lands and navigable waters that fall within the

boundaries of National Park System units in Alaska. The

district court granted summary judgment in favor of the

federal appellees. Because we find that Sturgeon’s

interpretation of § 103(c) is foreclosed by the plain text of the

statute, we affirm as to Sturgeon. We hold that Alaska lacks

standing to bring this challenge, and thus vacate and remand

with instructions that Alaska’s case be dismissed.

STURGEON V. MASICA 7

I.

The facts are straightforward and largely undisputed.

Since 1971, Sturgeon has hunted moose on an annual basis on

the Nation River.1 The lower six miles of the Nation River lie

within the Yukon-Charley Rivers National Preserve

(“Yukon-Charley”), which is a unit of the National Park

System. In 1990, Sturgeon purchased a small, personal

hovercraft, which he used on his hunting excursions. In

September 2007, while repairing his hovercraft on a gravel

bar adjoining the river, Sturgeon was approached by three

NPS law enforcement employees. They informed him that

NPS regulations prohibited the operation of hovercrafts

within the Yukon-Charley and issued him a verbal warning.

Sturgeon protested that the NPS regulations were inapplicable

because he was operating his hovercraft on a state-owned

navigable river. Sturgeon contacted his attorney via satellite

phone, who in turn contacted Andee Sears, a Regional Law

Enforcement Specialist with NPS. Sears told Sturgeon’s

attorney that the hovercraft must be removed from the

Yukon-Charley. Sturgeon complied.

Later, Sturgeon followed up with Sears over the phone

and met with him in Anchorage. Sears advised Sturgeon that

even though Alaska might own the submerged land beneath

the river, the hovercraft ban was nonetheless in force within

1

The Nation River is a tributary of the Yukon River. While Sturgeon’s

complaint also mentions his hunting excursions on the Yukon River, part

of which also falls within the Yukon-Charley Rivers National Preserve, he

failed to raise a separate claim for the Yukon River. Thus, the district

court found that only the applicability of the regulation to the Nation River

was before the court. Sturgeon v. Masica, No. 3:11-CV-0183-HRH, 2013

WL 5888230, at *6 (D. Alaska Oct. 30, 2013). Sturgeon does not

challenge that finding on appeal.

8 STURGEON V. MASICA

the boundaries of the Yukon-Charley. Sears warned Sturgeon

that he risked criminal liability if he operated his hovercraft

within the Yukon-Charley. In response to these warnings,

Sturgeon refrained from using his hovercraft during the 2008

to 2010 moose hunting seasons and has not been able to hunt

on the portions of the Nation River that fall within the

boundaries of the Yukon-Charley.

Although Sturgeon sent a letter to then-Secretary of the

Interior, Ken Salazar, petitioning for repeal or amendment of

the NPS regulations restricting his access to navigable waters

located within national park boundaries, he did not receive a

response. He then sued in federal district court, seeking an

order declaring that NPS’s regulations violated ANILCA, as

applied to him on state-owned lands and waters, and

enjoining the federal defendants from enforcing these

regulations.

Alaska intervened, raising the same argument that the

application and enforcement of NPS regulations on

state-owned lands and waters violated ANILCA.

Specifically, Alaska challenged NPS regulations that required

employees of the Alaska Department of Fish and Game to

obtain a scientific research and collecting permit before

engaging in genetic sampling of chum and sockeye salmon on

the Alagnak River. These regulations purportedly harmed

Alaska “in the form of increased staff time and expense in

complying with NPS procedures and in the form of delays in

implementing the project.” Alaska further argued that NPS’s

actions both interfered with its sovereign right to manage and

regulate its lands and waters and chilled its citizens’ ability to

enjoy the rights and benefits flowing from its management of

state resources.

STURGEON V. MASICA 9

On summary judgment, the district court ruled in favor of

the federal appellees. Sturgeon v. Masica, No.

3:11-CV-0183-HRH, 2013 WL 5888230, at *9 (D. Alaska

Oct. 30, 2013). The district court found that Sturgeon’s and

Alaska’s interpretation of ANILCA § 103(c) lacks support in

the plain language of the statute. Id. at *8–*9. This appeal

followed.

II.

We review questions of law resolved on summary

judgment de novo, and the district court’s factual findings for

clear error. Al Haramain Islamic Found., Inc. v. U.S. Dep’t

of Treasury, 686 F.3d 965, 976 (9th Cir. 2012).

III.

As an initial matter, the federal appellees contend that we

lack jurisdiction over this appeal because Sturgeon and

Alaska have failed to establish standing. Even though the

federal appellees did not present these arguments to the

district court below, they may nonetheless do so for the first

time on appeal. The constitutional requirements for standing

under Article III are jurisdictional, cannot be waived by any

party, and may be considered sua sponte. City of Los Angeles

v. Cnty. of Kern, 581 F.3d 841, 845 (9th Cir. 2009). The

oft-repeated “irreducible constitutional minimum of standing

contains three elements.” Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992). “First, the plaintiff must have

suffered an ‘injury in fact,’” which is both concrete and

particularized, as well as actual or imminent. Id. “Second,

there must be a causal connection between the injury and the

conduct complained of,” meaning that the injury must be

“fairly traceable to the challenged action of the defendant.”

10 STURGEON V. MASICA

Id. (quoting Simon v. Eastern Ky. Welfare Rights Org.,

426 U.S. 26, 41–42 (1976) (quotation mark and alterations

omitted)). Third, it must be likely that a favorable decision

would redress the injury identified. Id. at 561.

Apart from these constitutional concerns, “there exists a

body of ‘judicially self-imposed limits on the exercise of

federal jurisdiction’” that forms the prudential standing

doctrine. Cnty. of Kern, 581 F.3d at 845 (quoting Allen v.

Wright, 468 U.S. 737, 751 (1984)); see also Sprint Commc’ns

Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 289–90 (2008).

Because these considerations are nonconstitutional in nature,

they may be deemed waived if not previously raised before

the district court. Cnty. of Kern, 581 F.3d at 845.

A.

We find that Sturgeon has established standing. The

federal appellees argue that Sturgeon has failed to show

probable or imminent enforcement of the NPS regulations to

meet the first requirement of an injury-in-fact. The federal

appellees’ view, however, cannot be reconciled with the

Supreme Court’s recent decision in Susan B. Anthony List v.

Driehaus, 134 S. Ct. 2334 (2014), where the Court

emphasized that threatened enforcement actions may suffice

to create Article III injuries. “When an individual is subject

to such a threat, an actual arrest, prosecution, or other

enforcement action is not a prerequisite to challenging the

law.” Id. at 2342. Thus, “a plaintiff satisfies the

injury-in-fact requirement where he alleges ‘an intention to

engage in a course of conduct arguably affected with a

constitutional interest, but proscribed by a statute, and there

exists a credible threat of prosecution thereunder.’” Id.

STURGEON V. MASICA 11

(quoting Babbitt v. Farm Workers Nat’l Union, 442 U.S. 289,

298 (1979)).

Sturgeon has satisfied the injury-in-fact requirement. He

has alleged an intention to use his hovercraft, and has

contacted both NPS and the Department of the Interior

regarding the applicability and enforcement of the regulation

to his hovercraft use. Sturgeon’s inability to use his

hovercraft for moose-hunting purposes arguably implicates

his right under the Privileges or Immunities Clause of the

Fourteenth Amendment “to use the navigable waters of the

United States, however they may penetrate the territory of the

several States.” The Slaughter-House Cases, 83 U.S. 36, 79

(1872); see also Courtney v. Goltz, 736 F.3d 1152, 1160 (9th

Cir. 2013) (interpreting the Privileges or Immunities Clause

to encompass “a right to navigate the navigable waters of the

United States”). Sturgeon thus alleges “an intention to

engage in a course of conduct arguably affected with a

constitutional interest.” Susan B. Anthony List, 134 S. Ct. at

2342 (quoting Babbitt, 442 U.S. at 298).

Further, there is no dispute that his intended conduct is

proscribed by NPS regulation. See 36 C.F.R. § 2.17(e)

(stating that “[t]he operation or use of hovercraft is

prohibited” within NPS-administered lands and waters, which

include the Yukon-Charley). Finally, “there exists a credible

threat of prosecution thereunder.” Susan B. Anthony List,

134 S. Ct. at 2342 (quoting Babbitt, 442 U.S. at 298). The

federal appellees concede that Sturgeon received a verbal

warning not to use the hovercraft, that Special Agent Sears

told Sturgeon’s lawyer that Sturgeon “should remove the

hovercraft from the preserve,” and that Sears later indicated

that Sturgeon “[might] be subject to criminal liability if he

12 STURGEON V. MASICA

operated a hovercraft in the preserve.”2 These facts are

sufficient to show a credible threat of enforcement against

Sturgeon.

Next, the federal appellees argue that any injury-in-fact

identified by Sturgeon is not “fairly traceable” to actions of

NPS. We disagree. The regulation was promulgated by NPS

and enforcement has been threatened by NPS employees.

Therefore, Sturgeon’s injuries are “fairly traceable” to actions

of NPS. Finally, a favorable decision would redress

Sturgeon’s identified injury-in-fact, and the federal appellees

do not contend otherwise.

In addition to contending that Sturgeon lacks Article III

standing, the federal appellees argue that prudential

considerations of ripeness and adverseness militate against a

finding of standing. However, the federal appellees failed to

raise these arguments before the district court. We thus find

them waived, as prudential standing arguments “can be

deemed waived if not raised in the district court” due to their

nonconstitutional nature.3 Cnty. of Kern, 581 F.3d at 845

(quoting Bd. of Natural Res. v. Brown, 992 F.2d 937, 946 (9th

Cir. 1993)) (internal quotation marks omitted).

2

Indeed, if Sturgeon violated NPS’s hovercraft ban, he would risk

incurring a fine and imprisonment for up to six months. See 36 C.F.R.

§ 1.3(a).

3

Moreover, it may be that the “Article III standing and ripeness issues

in this case ‘boil down to the same question’”–namely, whether a

sufficient injury-in-fact exists to render the case ripe. Susan B. Anthony

List, 134 S. Ct. at 2341 n.5 (quoting MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118, 128 n.8 (2007)).

STURGEON V. MASICA 13

B.

The State of Alaska, on the other hand, lacks standing.

Alaska offers three bases to support its standing: (1) harm “in

the form of increased staff time and expense” in obtaining

and complying with the terms of a scientific research and

collecting permit; (2) injuries to Alaska’s sovereign right to

control its lands and waters; and (3) the Secretary of the

Interior’s denial of its petition for administrative proceedings

that would repeal or amend the regulations at issue. We

address each of the proffered bases in turn.

With regard to Alaska’s chum and sockeye salmon study,

the increased burdens to Alaska as a result of NPS’s permit

requirement clearly constitute injuries-in-fact. It is

undisputed that NPS employees informed Alaska’s

Department of Fish and Game (“DFG”) that a scientific

research and collecting permit was required before it engaged

in the study. The scientific research and collecting permit

that DFG actually obtained and the General Conditions and

Park Specific Guidance that accompanied it–all of which are

part of the record–demonstrate that DFG was forced to

comply with numerous obligations and limitations under the

terms of the permit. To name just a few, DFG was not

allowed to destroy research specimens without NPS’s prior

authorization, was obligated to catalogue collected specimens

into NPS’s Interior Collections Management System and

label such specimens with NPS accession and catalog

numbers, and was required to submit an Investigator’s

Annual Report and copies of other final reports and

publications resulting from the study within a year of

publication. The record thus amply supports Alaska’s

allegation of harm in the form of increased staff time and

expense.

14 STURGEON V. MASICA

But while Alaska may have suffered cognizable injuries,

a favorable ruling would not redress these injuries. Alaska’s

complaint sought a declaration that the NPS regulations were

invalid and void as applied to state-owned lands and waters

and an injunction barring future enforcement of the

regulations on state-owned lands and waters. Such relief

would not remedy injuries relating to DFG’s chum and

sockeye salmon study in 2010, which have already been

incurred and suffered. At oral argument, Alaska represented

that DFG’s chum and sockeye salmon study is complete, and

the record offers no indication that related studies or efforts

are pending or forthcoming. In the absence of evidence

showing how the requested relief would redress its identified

injuries, Alaska may not rely on activities relating to the 2010

study of chum and sockeye salmon to establish standing. Cf.

Lujan, 504 U.S. at 564 (“Past exposure to illegal conduct

does not in itself show a present case or controversy

regarding injunctive relief . . . if unaccompanied by any

continuing, present adverse effects.” (alteration in original)

(quoting Los Angeles v. Lyons, 461 U.S. 95, 102 (1983))

(internal quotation marks omitted).

The second basis proffered by Alaska presents a closer

question. Alaska argues that the NPS regulations violate its

“sovereign[]” and “proprietary interests” in its lands and

waters, and interfere with its “authority and ability to manage

its property in accordance with the Alaska Constitution and

state law.” States certainly possess sovereign and proprietary

interests that may be pursued via litigation. Alfred L. Snapp

& Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592,

601–02 (1982); see also, Pennsylvania v. New Jersey,

426 U.S. 660, 665 (1976) (“It has . . . become settled doctrine

that a State has standing to sue only when its sovereign or

quasi-sovereign interests are implicated . . . .”). However, we

STURGEON V. MASICA 15

conclude that Alaska’s arguments are unavailing for purposes

of establishing standing under the circumstances of this case.

To begin with, Alaska failed to meet the requirement that

its purported injuries be “actual or imminent.” Lujan,

504 U.S. at 560 (quoting Whitmore v. Arkansas, 495 U.S.

149, 155 (1990)) (internal quotation mark omitted). Because

Alaska did not identify any actual conflict between NPS’s

regulations and its own statutes and regulations, we are left

with only a vague idea of how exactly NPS’s permitting

requirement infringes on the state’s sovereign and proprietary

interests in its lands and waters, or how the requirement

interferes with the state’s control over and management of

those lands and waters. In the absence of such a conflict,

Alaska’s purported injuries are too “conjectural or

hypothetical” to constitute injuries-in-fact. Id. (quoting

Whitmore, 495 U.S. at 155) (internal quotation marks

omitted).

Alaska has cited no case that finds standing based simply

on purported violations of a state’s sovereign rights. Rather,

evidence of actual injury is still required. For example, in

Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme

Court found that Massachusetts had standing to challenge the

EPA’s denial of a rulemaking petition requesting regulation

of greenhouse gas emissions under the Clean Air Act. Id. at

510–11, 526. The Court noted that the state was due “special

solicitude in [the] standing analysis” based on two factors:

(1) Massachusetts sought to vindicate a procedural right,

which eliminated the need under Article III to demonstrate

redressability and immediacy, and (2) Massachusetts’s status

as a “sovereign State.” Id. at 517–20; see also Washington

Envtl. Council v. Bellon, 732 F.3d 1131, 1144–45 (9th Cir.

2013) (distinguishing Massachusetts v. EPA). Even in light

16 STURGEON V. MASICA

of this special solicitude, however, the Court specifically

found that “[b]ecause the Commonwealth ‘own[ed] a

substantial portion of the state’s coastal property,’ it ha[d]

alleged a particularized injury in its capacity as a landowner”

due to rising global sea levels. Massachusetts, 549 U.S. at

522 (citation omitted).

Similarly, in Oregon v. Legal Services Corp., 552 F.3d

965 (9th Cir. 2009), Oregon contended that a private,

nonprofit corporation established by the United States to

provide federal funds to local legal assistance programs

“thwart[ed] [its] efforts at policy making with regards to

Oregon’s Legal Service Program.” Id. at 973. We rejected

Oregon’s claim because “there [was] no dispute over

Oregon’s ability to regulate its legal services program, and no

claim that Oregon’s laws ha[d] been invalidated as a result of

the [corporation’s] restrictions.” Id. Because Oregon was

able “to regulate its legal service programs as it desire[d],”

there was thus “no judicially cognizable injury.” Id. at 974.

Finally, Nevada v. Burford, 918 F.2d 854 (9th Cir. 1990),

is also illustrative. Nevada challenged the Bureau of Land

Management’s decision to grant a right-of-way over

state-owned land to the Department of Energy. Id. at 855.

Because Nevada’s complaint was “silent as to how [the

Bureau’s] alleged violations . . . resulted in injury to Nevada,”

in the absence of demonstrated injury, its claim

“‘constitute[d] a generalized grievance that the [Bureau]

[was] not acting in . . . accordance’ with federal laws” and

was thus “insufficient to demonstrate standing.” Id. at

856–57 (first, third, and fourth alterations added, second

alteration in original) (quoting Nevada v. Burford, 708 F.

Supp. 289, 295 (D. Nev. 1989)). See also Table Bluff

Reservation (Wiyot Tribe) v. Philip Morris, Inc., 256 F.3d

STURGEON V. MASICA 17

879, 883 (9th Cir. 2001) (finding no injury-in-fact where

twenty Native American tribes challenged a Master

Settlement Agreement between Philip Morris, Inc. and

forty-six states, five territories, and the District of Columbia

because the tribes identified no tribal regulations or contracts

that would be affected by the Agreement).

Similarly, here, Alaska’s claims regarding its sovereign

and proprietary interests lack grounding in a demonstrated

injury. While Alaska alleges that NPS regulations “have

directly interfered with Alaska’s ability as a sovereign to

manage and regulate its land and waters,” Alaska identifies

no conflict between NPS regulations and its own state statutes

and regulations.4 Any injury to Alaska’s sovereign and

proprietary interest is pure conjecture and thus insufficient to

establish standing.

The third and final basis upon which Alaska relies to

establish standing is the Secretary of the Interior’s denial of

its petition for new administrative proceedings. A plaintiff

possesses standing to enforce procedural rights “so long as

the procedures in question are designed to protect some

threatened concrete interest of his that is the ultimate basis of

his standing.” Lujan, 504 U.S. at 573 n.8. As discussed

above, Alaska fails to identify any “threatened concrete

4

Alaska also alleges that the NPS regulations have had “a chilling

effect” on Alaskans’ use and enjoyment of state-owned lands and waters.

But “a state does not have standing ‘to protect her citizens from the

operation of federal statutes.’” Oregon v. Legal Servs. Corp., 552 F.3d

965, 971 (9th Cir. 2009) (quoting Massachusetts v. EPA, 549 U.S. 497,

520 n.17 (2007)). And “the State must articulate an interest apart from the

interests of particular private parties.” Id. (quoting Alfred L. Snapp & Son,

Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982)) (internal

quotation mark omitted). Alaska has failed to do so.

18 STURGEON V. MASICA

interest.” Alaska cannot rely on the Secretary’s denial of its

petition because “[p]articipation in agency proceedings is

alone insufficient to satisfy judicial standing requirements.”

Gettman v. Drug Enforcement Admin., 290 F.3d 430, 433

(D.C. Cir. 2002) (quoting Fund Democracy, LLC v. SEC,

278 F.3d 21, 27 (D.C. Cir. 2002)) (internal quotation marks

omitted). Alaska’s “right to petition the agency does not in

turn ‘automatic[ally]’ confer Article III standing when that

right is deprived.” Id. (alteration in original) (quoting Pet’rs’

Br.).

Therefore, we hold that Alaska has failed to establish

standing to challenge the NPS regulations. We vacate the

district court’s judgment as to Alaska and remand with

instructions that Alaska’s case be dismissed for lack of

jurisdiction.

IV.

We now turn to the merits of Sturgeon’s challenge.

Sturgeon contends that § 103(c) of ANILCA bars the

application and enforcement of NPS’s hovercraft ban on the

Nation River,5 which he contends is state-owned land.

According to Sturgeon, the plain text of the statute, its

legislative history, and our decision in City of Angoon v.

Marsh, 749 F.2d 1413 (9th Cir. 1984), support his view.

5

Many of Sturgeon’s arguments resemble a facial challenge to NPS’s

general regulatory authority over nonfederal land within conservation

system units. However, the district court’s finding that Sturgeon had

pleaded an as-applied challenge, Sturgeon, 2013 WL 5888230, at *1, is

not contested on appeal, and we therefore limit our consideration to the

regulation as applied to Sturgeon.

STURGEON V. MASICA 19

Before explaining why we find Sturgeon’s contentions

unpersuasive, we offer a bit of background.

A.

ANILCA, enacted in 1980, offered new “protection[s] for

the national interest in the scenic, natural, cultural and

environmental values on the public lands in Alaska, and at the

same time provide[d] adequate opportunity for satisfaction of

the economic and social needs of the State of Alaska and its

people.” 16 U.S.C. § 3101(d). Summarized succinctly,

“ANILCA is generally concerned with the designation,

disposition, and management of land for environmental

preservation purposes.” Stratman v. Leisnoi, Inc., 545 F.3d

1161, 1165 (9th Cir. 2008). To this end, Congress “set aside

approximately 105 million acres of federal land in Alaska for

protection of natural resource values by permanent federal

ownership and management.” Nat’l Audubon Soc’y v. Hodel,

606 F. Supp. 825, 827–28 (D. Alaska 1984). Portions of

those lands were used to expand existing units of the National

Park System and create new units, which were to be

administered by the Secretary of the Interior. 16 U.S.C.

§ 410hh; id. § 410hh-1. Such units included national parks,

preserves, and monuments. See 16 U.S.C. § 410hh; id.

§ 410hh-1. ANILCA refers to units of the National Park

System situated in Alaska as “conservation system unit[s]”

(“CSUs”). 16 U.S.C. § 3102(4).

Not all lands that lie within the boundaries of a CSU are

owned by the federal government. Where possible, Congress

drew unit boundaries “to include whole ecosystems and to

follow natural features,” and was thus cognizant of the fact

that state, Native, or private-owned land could fall within the

boundaries of CSUs. Marsh, 749 F.2d at 1417 (quoting

20 STURGEON V. MASICA

125 Cong. Rec. 9905 (1979)). The presence of both

federal-owned and nonfederal-owned land lying within CSUs

led Congress to clarify two things: first, what land would

actually comprise the CSUs, and second, more generally, how

land falling within a CSU’s boundaries–whether federally

owned or not–could be regulated. See id. (discussing the

House version of ANILCA and the “Tsongas substitute” in

the Senate).

Such clarification came in ANILCA § 103(c). The full

text of that subsection reads as follows:

Only those lands within the boundaries of any

conservation system 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. No lands which, before, on, or after

December 2, 1980, 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. If the State, a Native Corporation, or

other owner desires to convey any such lands,

the Secretary may acquire such lands in

accordance with applicable law (including this

Act), and any such lands shall become part of

the unit, and be administered accordingly.

16 U.S.C. § 3103(c).

Section 103(c) thus contains three separate instructions

regarding the composition and regulation of CSUs. First,

only “public lands” lying within the boundaries of a CSU are

“deemed to be included as a portion of such unit.” Id. Under

STURGEON V. MASICA 21

ANILCA, “public lands” are “[f]ederal lands” (including

“lands, waters, and interests therein”) in which the United

States holds title after December 2, 1980. Id. § 3102(1)–(3).

The first sentence of § 103(c) makes clear that the boundaries

of CSUs “do[] not in any way change the status of that State,

native, or private land” lying within those boundaries.

125 Cong. Rec. 11158 (1979).

The second sentence of § 103(c) declares that state,

Native, and private-owned land shall not be subject to

“regulations applicable solely to public lands within such

units.” 16 U.S.C. § 3103(c). Accordingly, under § 103(c)’s

plain text, only public land lying within a CSU’s boundaries

may be subjected to CSU-specific regulations—nonfederal

land is expressly made exempt from such regulations. As the

1979 Senate Report on ANILCA makes clear, nonfederal land

would not be “subject to the management regulations which

may be adopted to manage and administer any national

[CSU] which is adjacent to, or surrounds, the private or

non-federal public lands.” S. Rep. No. 96-413, at 303 (1979),

reprinted in 1980 U.S.C.C.A.N. 5070, 5247 (emphasis

added). Importantly for purposes of this case, in contrast to

CSU-specific regulations, “[f]ederal laws and regulations of

general applicability to both private and public lands” are

“unaffected,” and “would be applicable to private or

non-federal public land holdings within [CSUs].” Id.

Finally, § 103(c)’s third sentence provides that the

Secretary of the Interior may acquire nonfederal land lying

within a CSU’s boundaries; such land would then “become

part of the unit” and may “be administered accordingly.”

16 U.S.C. § 3103(c). Once acquired, what was previously

nonfederal land would no longer be free from “regulations

applicable solely to public lands within [CSUs].” Id.; see

22 STURGEON V. MASICA

also 126 Cong. Rec. 21882 (1980) (noting that “if the

[Native-]corporations ever decide to dispose of their property,

[it] could become part of the [CSU]”).

B.

With this background in mind, we easily resolve

Sturgeon’s appeal. Sturgeon argues that the plain language

of ANILCA § 103(c) removes nonfederal lands from the

reach of federal regulations promulgated to manage public

lands. Thus, his argument goes, NPS may not enforce the

hovercraft ban on the lower portion of the Nation River that

falls within the Yukon-Charley because the water and

submerged land of that river is owned by the state of Alaska.

While we agree with Sturgeon that § 103(c) is

unambiguous, we find that it unambiguously forecloses his

interpretation. The plain text of § 103(c) only exempts

nonfederal land from “regulations applicable solely to public

lands within [CSUs].” 16 U.S.C. § 3103(c) (emphasis

added). The regulation at issue, banning hovercraft use in the

Yukon-Charley, is not so limited.

In 1976, Congress vested the Secretary of the Interior

with the authority to “[p]romulgate and enforce regulations

concerning boating and other activities on or relating to

waters located within areas of the National Park System,

including waters subject to the jurisdiction of the United

States.” 16 U.S.C. § 1a-2(h). Pursuant to this grant of

authority, the Secretary promulgated a number of regulations

to “provide for the proper use, management, government, and

protection of persons, property, and natural and cultural

resources within areas under the jurisdiction of the National

Park Service.” 36 C.F.R. § 1.1(a). Within the chapter of the

STURGEON V. MASICA 23

Code of Federal Regulations containing those regulations,

parts 1 through 5 “apply to all persons entering, using,

visiting, or otherwise within” federally owned lands and

waters administered by NPS and “[w]aters subject to the

jurisdiction of the United States located within the boundaries

of the National Park System, including navigable waters.” 36

C.F.R. § 1.2(a)(1), (3). The hovercraft ban is located within

part 2 of that chapter. See 36 C.F.R. § 2.17(e).

In short, then, the hovercraft ban is not one that “appli[es]

solely to public lands within [CSUs]” in Alaska. 16 U.S.C.

§ 3103(c). Rather, this regulation applies to all federal-

owned lands and waters administered by NPS nationwide, as

well as all navigable waters lying within national parks.

Thus, even assuming (without deciding) that the waters of

and lands beneath the Nation River have been “conveyed to

the State” for purposes of § 103(c), that subsection does not

preclude the application and enforcement of the NPS

regulation at issue. Because of its general applicability, the

regulation may be enforced on both public and nonpublic

lands alike within CSUs. Though Sturgeon might prefer a

more robust regulatory exemption, we “must presume that a

legislature says in a statute what it means and means in a

statute what it says.” Barnhart v. Sigmon Coal Co., Inc.,

534 U.S. 438, 461–62 (2002) (quoting Conn. Nat’l Bank v.

Germain, 503 U.S. 249, 253–54 (1992)).6

6

Because we resolve this case based on the plain text of the statute, we

need not address whether our decisions in John v. United States (Katie

John III), 720 F.3d 1214 (9th Cir. 2013), John v. United States (Katie

John II), 247 F.3d 1032 (9th Cir. 2001) (en banc) (per curiam), or State of

Alaska v. Babbitt (Katie John I), 72 F.3d 698 (9th Cir. 1995) supply an

alternative basis for affirming the district court.

24 STURGEON V. MASICA

C.

Sturgeon acknowledges that § 103(c)’s language exempts

nonfederal lands from regulations applicable “solely” to

public lands, but argues that overreliance on the word

“solely” leads to a result contrary to the express legislative

purpose of restricting federal authority over nonfederal land

within CSUs. “When confronted with a statute which is plain

and unambiguous on its face, we ordinarily do not look to

legislative history as a guide to its meaning.” Tennessee

Valley Auth. v. Hill, 437 U.S. 153, 184 n. 29 (1978); see also

Balen v. Holland Am. Line Inc., 583 F.3d 647, 653 (9th Cir.

2009) (quoting North Dakota v. United States, 460 U.S. 300,

312 (1983)) (internal quotation mark omitted) (stating that

when statutory language is clear, its “language must

ordinarily be regarded as conclusive”). But even if we

consider the legislative history of ANILCA, we find no

support for Sturgeon’s claim. Rather, the legislative records

from the House and Senate contain numerous statements

supporting the plain language of the statute. The sponsor of

§ 103(c) in the House offered the view that his amendment

“restate[d] and ma[de] clear” that nonfederal lands within

CSUs would not be “subject to regulations which are applied

to public lands which, in fact, are part of the unit.” 125 Cong.

Rec. 11158 (1979). The primary sponsor of ANILCA in the

House declared that nonfederal land would not be constrained

by “regulations applicable to the public lands within the

specific conservation system unit.” 125 Cong. Rec. 9905

(1979). The House Concurrent Resolution that added

§ 103(c) to ANILCA specified that “only public lands (and

not State or private lands) are to be subject to the [CSU]

regulations applying to public lands.” 126 Cong. Rec. 30498

(1980). Finally, the Senate Report notes that §103(c) would

exempt nonfederal land from “regulations which may be

STURGEON V. MASICA 25

adopted to manage and administer any [CSU] which is

adjacent to, or surrounds, the private or non-Federal public

lands.” S. Rep. No. 96-413, at 303 (1979), reprinted in 1980

U.S.C.C.A.N. 5070, 5247.7 Rather than help Sturgeon, the

legislative history confirms that ANILCA § 103(c) did not

purport to exempt nonfederal lands within CSUs from

generally applicable federal laws and regulations like the

hovercraft ban.

D.

Next, Sturgeon argues that our decision in City of Angoon

v. Marsh, 749 F.2d 1413 (9th Cir. 1984), supports his

interpretation. Sturgeon’s reliance on Marsh, however, is

misplaced. Marsh involved the interaction between two

subsections of ANILCA § 503. The first, § 503(b),

established the Admiralty Island National Monument, which

was composed of 921,000 acres “of public lands.” Id. at 1416

(emphasis omitted) (quoting ANILCA, Pub. L. No. 96-487,

§ 503(b), 94 Stat. 2371 (1980)). The second, § 503(d), stated

that “[w]ithin the Monument[], the Secretary shall not permit

the sale of [sic] harvesting of timber.” Id.

Reading these two subsections in conjunction, we held

that the district court erred in finding that “all lands within the

boundaries of a National Forest System Monument”–

7

Sturgeon also claims that until 1996, NPS did not purport to have

regulatory authority over state-owned lands and waters within CSUs, but

in July 1996, NPS reversed course. Even if so, NPS’s current view

comports with the text of the statute, and to the extent Sturgeon believes

that NPS’s purported change in position militates against deference,

“[a]gency inconsistency is not a basis for declining to analyze the

agency’s interpretation under the Chevron framework.” Nat’l Cable &

Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005).

26 STURGEON V. MASICA

including private lands–“come within the harvesting

prohibition of section 503(d).” Id. (emphasis omitted). We

pointed out that under § 503(b), the Admiralty Island

National Monument, “by definition, consists solely of public

or federally owned lands.” Id. Thus, § 503(d)’s use of the

phrase “[w]ithin the Monument” was inapplicable “to private

lands which are within the boundaries of a national forest

conservation system unit.” Id. (emphasis added and omitted).

Marsh clearly is inapposite to the present dispute. First,

Marsh’s discussion of § 103(c) is largely dicta because that

subsection was inapplicable to the timber harvesting ban at

issue. While ANILCA § 103(c) refers to “regulations

applicable solely to public lands within such units,” § 503(d)

imposes a statutory prohibition against timber harvesting. At

most, Marsh drew inferences from § 103(c) for the purpose

of determining the reach of § 503(d). See id. at 1418 (noting

that the court examined sections 102, 103(c), 503(d), and

506(c) “harmoniously” to determine Congressional intent

regarding the ban on timber harvesting). Second, Marsh

offers little guidance in Sturgeon’s case because, if

promulgated as a regulation, § 503(d)’s ban on timber

harvesting would fall under § 103(c)’s exception to the

application of regulations applying solely to public lands,

while NPS’s hovercraft ban does not. Section 503(d)

specifically refers to activities taking place “[w]ithin the

Monument[],” and thus only limits conduct taking place on

public lands within a specific CSU. For that reason, if

promulgated as an agency regulation, its harvesting ban

would qualify as a “regulation[] applicable solely to public

lands within [CSUs],” and would be unenforceable on state,

Native, or private-owned land under ANILCA § 103(c). As

we noted above, NPS’s hovercraft ban is not so constrained,

and it applies to federally owned lands and waters

STURGEON V. MASICA 27

administered by NPS nationwide, as well as navigable waters

within national parks.

V.

We reject two additional arguments asserted by Sturgeon,

that the Secretary of the Interior exceeded her statutory

authority in promulgating the regulation at issue and that her

action raises serious constitutional concerns.

A.

The 1976 Park Service Administration and Improvement

Act (“1976 Act”) grants the Secretary of the Interior broad

authority over boating and water-related activities within the

National Park System. That authorization provides as

follows:

[T]he Secretary of the Interior is authorized

. . . [to] [p]romulgate and enforce regulations

concerning boating and other activities on or

relating to waters located within areas of the

National Park System, including waters

subject to the jurisdiction of the United States:

Provided, That any regulations adopted

pursuant to this subsection shall be

complementary to, and not in derogation of,

the authority of the United States Coast Guard

to regulate the use of waters subject to the

jurisdiction of the United States.

16 U.S.C. § 1a-2(h). Sturgeon contends that the latter portion

of this subsection restricts the Secretary’s regulatory power

28 STURGEON V. MASICA

and does not permit her to regulate any and all activities on

waters within national parks.

However, the plain text of the 1976 Act merely requires

that any regulations promulgated by the Secretary

complement, and not derogate, Coast Guard authority over

waters subject to federal jurisdiction. It does not, as Sturgeon

argues, limit the Secretary’s regulatory authority to that

enjoyed by the Coast Guard. The Oxford English Dictionary

defines “complement” to mean “to supply what is wanting,”

3 Oxford English Dictionary 610 (2d ed. 1989), and

“derogate” to mean to “diminish,” id. at 504. Thus, under the

1976 Act, the Secretary may regulate boating and other

water-related activities taking place within the National Park

System and its navigable waters so long as those regulations

supplement and do not diminish the Coast Guard’s authority.8

Indeed, the legislative history of the 1976 Act makes this

clear. The concern regarding the regulatory authority of the

Coast Guard was first raised by the Secretary of the Interior

in a letter to the House Committee on Interior and Insular

Affairs.9 H.R. Rep. No. 94-1569, at 13 (1976), reprinted in

8

Moreover, ANILCA § 1319 provides that “[n]othing in [the statute]

shall be construed as . . . superseding, modifying, or repealing, except as

specifically set forth in this Act, existing laws applicable to the various

Federal agencies which are authorized to . . . exercise licensing or

regulatory functions in relation thereto.” 16 U.S.C. § 3207 (emphasis

added).

9

The Secretary of Transportation also submitted a letter to the House

Committee “strongly object[ing]” to the fact that the bill as drafted “would

authorize the Secretary of the Interior to promulgate and enforce boating

regulations which relate to construction, performance, and equipment

standards”–responsibility for which had been previously delegated to “the

Secretary of the department in which the Coast Guard is operating.” H.R.

STURGEON V. MASICA 29

1976 U.S.C.C.A.N. 4290, 4299. The Secretary noted that the

Coast Guard possessed existing authority to “promulgate and

enforce regulations for the promotion of safety of life and

property on . . . waters subject to the jurisdiction of the

United States.” Id. (alteration in original) (emphasis added)

(quoting 14 U.S.C. § 2(3)). Because many waters within the

National Park System were navigable, the Secretary noted

that his agency would “exercise authority concurrent with the

Coast Guard in many instances,” and thus recommended an

amendment clarifying that the bill’s grant of regulatory

authority would “not diminish the Coast Guard’s authority

under existing law to regulate boat design and safety.” Id.

The remainder of the bill would still, however, grant her the

authority “to regulate recreational, commercial and other

uses and activities relating to all waters of the National Park

System.” Id. (emphasis added).

The statute reflects just such a clarifying amendment. See

16 U.S.C. § 1a-2(h). Thus, both the plain text and the

legislative history of the 1976 Act make clear that Sturgeon’s

argument that the Secretary of the Interior exceeded her

statutory authority is without merit.

B.

Finally, Sturgeon contends that the Secretary’s exercise

of her regulatory authority under the 1976 Act implicates

“serious constitutional concerns.” Specifically, he raises the

specter of potential violations of the Property and Commerce

Clauses, though without offering any specifics as to how or

why the NPS regulations contravene those clauses. We

Rep. No. 94-1569, at 24 (1976), reprinted in 1976 U.S.C.C.A.N. 4290,

4310.

30 STURGEON V. MASICA

therefore decline to invalidate NPS’s hovercraft ban on

constitutional grounds because “[w]hatever the extent of the

State’s proprietary interest in [its] river[s], the pre-eminent

authority to regulate the flow of navigable waters resides with

the Federal Government.” New England Power Co. v. New

Hampshire, 455 U.S. 331, 338 n.6 (1982); see also Alaska v.

United States, 545 U.S. 75, 116–17 (2005) (Scalia, J.,

concurring in part and dissenting in part) (“If title to

submerged lands passed to Alaska, the Federal Government

would still retain significant authority to regulate activities in

the waters of Glacier Bay by virtue of its dominant

navigational servitude, other aspects of the Commerce

Clause, and even the treaty power.”).

VI.

We hold that even assuming that the waters of and lands

beneath the Nation River have been “conveyed to the State”

for purposes of ANILCA § 103(c), NPS’s hovercraft ban is

not a regulation that applies solely to public lands within

CSUs in Alaska. Therefore, as to Sturgeon, we affirm the

district court’s grant of summary judgment in favor of the

federal appellees. Because Alaska cannot establish standing

on this record, we vacate the district court’s judgment as to

Alaska and remand with instructions that Alaska’s action be

dismissed for lack of subject matter jurisdiction.

AFFIRMED IN PART, VACATED AND

REMANDED IN PART.