Amicus Curiae Brief — John Sturgeon, Petitioner v. Bert Frost, in His Official Capacity as Alaska Regional Director of the National Park Service, et al.

No. 17-949

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In The

Supreme Court of the United States

-----------------------------------------------------------------JOHN STURGEON,

Petitioner,

v.

BERT FROST, in his Official Capacity as Alaska

Regional Director of the National Park Service, et al.,

Respondents.

-----------------------------------------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

-----------------------------------------------------------------BRIEF OF AMICUS CURIAE STATE OF ALASKA

IN SUPPORT OF PETITIONER

-----------------------------------------------------------------JAHNA LINDEMUTH

Attorney General of Alaska

RUTH BOTSTEIN

Counsel of Record

KATHRYN R. VOGEL

1031 W. 4th Avenue, Ste. 200

Anchorage, Alaska 99501

(907) 269-5100

ruth.botstein@alaska.gov

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether the Alaska National Interest Lands Conservation Act 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.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

INTEREST OF AMICUS CURIAE ......................

1

SUMMARY OF THE ARGUMENT .....................

2

ARGUMENT ........................................................

6

I.

The Ninth Circuit’s Decision Deprives

Alaska of Its Sovereign Right To Manage Its

Navigable Waters To Benefit Alaskans .......

6

A. Alaska’s ownership of its lands and

waters is an essential aspect of its

state sovereignty .................................

6

B. Loss of Alaska’s sovereign power to

manage its own waters will inflict serious harm on ordinary Alaskans........ 11

C. ANILCA’s requirement that state

lands be treated differently from federal lands protects Alaska’s sovereign

rights ................................................... 15

II.

The Ninth Circuit’s Decision Misapplies

§ 103(c) and the Federal Reserved Water

Rights Doctrine .......................................... 18

A. ANILCA does not contain the required

clear statement of congressional intent to divest Alaska of control over its

navigable waters.................................. 18

B. Alaska’s navigable waters are not public lands ............................................... 22

iii

TABLE OF CONTENTS – Continued

Page

C. Even if the government has a reserved

water right in the State’s waters, that

right is to use a defined quantity of

water, not to supersede Alaska’s regulation of navigable waters ................... 24

III.

In Restoring Alaska’s Sovereignty Over

Its Navigable Waters, this Court Need Not

and Should Not Disturb the Katie John

Circuit Precedents ..................................... 29

IV.

The Park Service’s Attempt To Regulate

Non-Federal Waters Within CSU Boundaries Cannot Be Alternatively Justified by

54 U.S.C. § 100751(b) ................................. 35

CONCLUSION..................................................... 37

iv

TABLE OF AUTHORITIES

Page

CASES

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

[Katie John I] .................................................. passim

Alaska v. United States, 201 F.3d 1154 (9th Cir.

2000) ...................................................................... 3, 8

Alaska v. United States, 545 U.S. 75 (2005) .................8

Cappaert v. United States, 426 U.S. 128 (1976) ... 4, 26, 27

Corley v. United States, 556 U.S. 303 (2009) ..............36

Coyle v. Smith, 221 U.S. 559 (1911).................... 1, 9, 26

Envtl. Def. v. Duke Energy Corp., 549 U.S. 561

(2007) .......................................................................34

Fed. Power Comm’n v. Niagara Mohawk Power

Corp., 347 U.S. 239 (1954) .......................................21

Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) .............................33

Gregory v. Ashcroft, 501 U.S. 452 (1991) .............. 18, 19

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S.

261 (1997) ..................................................................9

Illinois Cent. R.R. Co. v. Illinois, 146 U.S. 387

(1892) ............................................................... passim

John v. United States, 247 F.3d 1032 (9th Cir.

2001) (en banc) [Katie John II] ........................... 5, 29

John v. United States, 720 F.3d 1214 (9th Cir.

2013) [Katie John III] ................................... 5, 29, 33

v

TABLE OF AUTHORITIES – Continued

Page

McDowell v. Alaska, 785 P.2d 1 (Alaska 1989) ..........30

Oregon ex rel. State Land Bd. v. Corvallis Sand

& Gravel Co., 429 U.S. 363 (1977) ...................... 8, 25

PPL Montana, LLC v. Montana, 565 U.S. 576

(2012) .......................................................................25

Rapanos v. United States, 547 U.S. 715 (2006) ..........19

Solid Waste Agency of N. Cook County v. United

States Army Corps of Eng’rs, 531 U.S. 159

(2001) [SWANCC] ...................................................19

Sturgeon v. Frost, 136 S. Ct. 1061 (2016) ........... passim

Tarrant Reg’l Water Dist. v. Herrmann, 569 U.S.

614 (2013) ..................................................................1

Trustees for Alaska v. State, 736 P.2d 324

(Alaska 1987) ............................................................7

United States v. Alaska, 521 U.S. 1 (1997) ....... 1, 3, 8, 9

United States v. California, 436 U.S. 32 (1978) .........25

United States v. New Mexico, 438 U.S. 696 (1978)........27

United States v. Virginia Elec. & Power Co., 365

U.S. 624 (1961) ........................................................21

Utah Div. of State Lands v. United States, 482

U.S. 193 (1987) ..........................................................8

Util. Air Regulatory Grp. v. E.P.A., 134 S. Ct.

2427 (2014) ..............................................................34

vi

TABLE OF AUTHORITIES – Continued

Page

Vermont Agency of Natural Res. v. United States

ex rel. Stevens, 529 U.S. 765 (2000) .........................19

Will v. Michigan Dep’t of State Police, 491 U.S.

58 (1989) ..................................................................18

CONSTITUTIONAL PROVISIONS

Alaska Const. art. VIII, § 1-4.................................. 7, 14

Alaska Const. art. VIII, § 14 ................................... 7, 14

STATUTES

16 U.S.C. § 3101(d) .................................................. 4, 16

16 U.S.C. § 3102(1) .......................................... 16, 20, 22

16 U.S.C. § 3102(2) ................................................ 20, 22

16 U.S.C. § 3102(3) ......................................................22

16 U.S.C. § 3102(3)(A) .................................................21

16 U.S.C. § 3102(3)(B)-(C) ...........................................16

16 U.S.C. § 3102(4) ......................................................15

16 U.S.C. § 3102(11) ....................................................16

16 U.S.C. § 3103(c) .............................................. passim

16 U.S.C. § 3111 .............................................. 30, 31, 34

16 U.S.C. § 3111(1) ......................................................32

16 U.S.C. § 3111(2) ......................................................32

16 U.S.C. § 3111(4) .......................................... 21, 30, 34

16 U.S.C. § 3112 .................................................... 30, 34

vii

TABLE OF AUTHORITIES – Continued

Page

16 U.S.C. § 3113 ..........................................................29

16 U.S.C. § 3114 ..........................................................31

16 U.S.C. § 3115(d) ................................................ 30, 34

16 U.S.C. § 3207 ..........................................................17

43 U.S.C. §§ 1301 et seq. ......................................... 8, 15

43 U.S.C. § 1301(e) ........................................................9

43 U.S.C. § 1311(a) .................................................... 2, 8

54 U.S.C. § 100101 ......................................................13

54 U.S.C. § 100751(b) ..................................................35

Alaska Stat. § 38.05.126(b) ..........................................9

Alaska Stat. §§ 38.05.127-.128 .....................................9

Alaska Statehood Act, Pub. L. No. 85-508,

§§ 6(a)-(b), 72 Stat. 339, 340 (1958) ..........................7

Alaska Statehood Act, Pub. L. No. 85-508,

§ 6(m), 72 Stat. 339, 343 (1958) ............................ 2, 8

ANILCA Title VIII (Subsistence Management

and Use), 16 U.S.C. §§ 3111-3126 ..... 5, 29, 32, 33, 34

RULES AND REGULATIONS

36 C.F.R. § 2.17(e) .......................................................14

viii

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

Bureau of Land Management (BLM), Recordable Disclaimer of Interest (RDI), No. AA086371 (June 10, 2013) .............................................3

S. Rep. No. 96-413, 303, reprinted in 1980

U.S.C.C.A.N. 5070....................................................16

Victor Fischer, Alaska’s Constitutional Convention (1975) .................................................................6

1

INTEREST OF AMICUS CURIAE

The State of Alaska’s interest in this case is as a

sovereign seeking to maintain regulatory control over

tens of thousands of miles of its navigable waters. This

case, before the Court for the second time, challenges a

Ninth Circuit decision that interprets the Alaska National Interest Lands Conservation Act (ANILCA) as

commandeering the State’s traditional regulatory authority over its submerged lands and the navigable waters that flow over them for use by the United States.

The decision below grants the National Park Service

regulatory control over navigable waters wherever

State-owned riverbeds fall within or are appurtenant

to the boundaries of federal areas created by ANILCA,

called Conservation System Units (CSUs)—notwithstanding the State’s undisputed ownership of the submerged lands and ANILCA’s express prohibition on

treating state lands as though they are federally

owned.

Alaska’s “ownership of [its] submerged lands, and

the accompanying power to control navigation, fishing,

and other public uses of [its navigable] water is ‘an essential attribute of sovereignty.’ ” Tarrant Reg’l Water

Dist. v. Herrmann, 569 U.S. 614, 631 (2013) (quoting

United States v. Alaska, 521 U.S. 1, 5 (1997)); Coyle v.

Smith, 221 U.S. 559, 573 (1911). The State therefore

has a compelling interest in maintaining its ability to

manage those waters for the best interests of all Alaskans.

2

By interpreting ANILCA to federalize management of Alaska’s navigable waters for all purposes, the

Ninth Circuit dramatically redefined and expanded

the federal reserved water rights doctrine. Its approach conflicts with this Court’s cases and will adversely impact Alaska and its people. The ruling

ignores the reality of life in rural Alaska, where residents face unparalleled access challenges, acutely rely

on the State’s natural resources, and regularly use the

State’s waterways as transportation thoroughfares.

The State has a strong interest in preserving its authority to manage its waters as Congress intended:

freely using the waters for beneficial purposes, regulating them in accordance with constitutional obligations to manage Alaska’s waters for the benefit of all

Alaskan citizens, and protecting the Alaskans who rely

on access to and use of the State’s waters to provide for

their families.

------------------------------------------------------------------

SUMMARY OF THE ARGUMENT

As this Court has recognized, this dispute concerns “vital issues of state sovereignty.” Sturgeon v.

Frost, 136 S. Ct. 1061, 1072 (2016). Since statehood,

Alaska has owned the riverbeds of its navigable rivers.

43 U.S.C. § 1311(a); Alaska Statehood Act, Pub. L. No.

85-508, § 6(m), 72 Stat. 339, 343 (1958). These rivers

include the Nation River where John Sturgeon was operating his hovercraft in compliance with Alaska law;

the Alagnak River where the National Park Service enforced federal regulations requiring Alaska to apply for

3

a permit to conduct salmon research in its own waters;

the well-traveled Kuskokwim River where rural residents journey along waterways to access health care,

food, fuel, and school supplies; and the thousands more

rivers of great importance to Alaska and the Alaskans

that depend on them. See Alaska v. United States, 201

F.3d 1154, 1164-66 (9th Cir. 2000); Pet. App. 32a-33a;

Bureau of Land Management (BLM), Recordable Disclaimer of Interest (RDI), No. AA-086371 (June 10,

2013). Alaska’s sovereign ownership of its submerged

lands includes the right to regulate the waters that

overlie them, see United States v. Alaska, 521 U.S. at 5,

and the corresponding obligation to do so for the benefit of all Alaskans. Alaska Const. art. VIII, §§ 1-4, 14;

see Illinois Cent. R.R. Co. v. Illinois, 146 U.S. 387, 452

(1892).

While Congress has the power to limit a state’s

sovereignty over its waters by directing federal regulatory control, a court cannot properly interpret a statute

to have this effect “unless the intention was definitely

declared or otherwise made very plain.” United States

v. Alaska, 521 U.S. at 34. Yet nowhere does ANILCA’s

text suggest Congress intended to give the Park Service plenary regulatory control over state waters that

run through or are adjacent to a CSU. Instead, Congress endorsed Alaska’s sovereign right to manage its

lands, waters, and resources by providing that state,

native corporation, and other private lands located inside CSU boundaries would not be managed as if they

were federally owned. 16 U.S.C. § 3103(c). This distinction is essential to one of ANILCA’s core purposes of

4

providing “adequate opportunity for satisfaction of the

economic and social needs of the State of Alaska and

its people.” Sturgeon, 136 S. Ct. at 1066; 16 U.S.C.

§ 3101(d). Alaska has a direct and profound interest in

keeping its waterways open and regulating them in accordance with local needs, as Congress intended, and

without broad federal regulatory interference.

But the Ninth Circuit’s decision thwarts the plain

text of ANILCA—stripping the law of the requirement

that allows only waters to which the federal government has “title” to be considered public lands subject

to federal management. See Pet. App. 16a. The court

gave little attention to Alaska’s sovereign interests,

unconcerned that as a result of its decision, state land

would be regulated as if it were public land, undermining ANILCA’s explicit protections. Instead, the court

enlarged the National Park Service’s regulatory control over state waters—giving wholesale management

authority to the federal government based on an unsupportable expansion of the federal reserved water

rights doctrine. Pet. App. 12a-14a, 19a. The Ninth Circuit’s decision contorts a doctrine that simply entitles

the government to use or maintain a defined amount

of water necessary for a specific purpose into a broad

grant of regulatory authority that impermissibly overrides state regulation entirely. See Cappaert v. United

States, 426 U.S. 128, 141 (1976); Pet. App. 16a. In so

doing, the decision usurps the State’s constitutional

and statutory right to control its resources.

The Ninth Circuit ostensibly based its decision on

the circuit’s decades-old “Katie John” decisions. See

5

Pet. App. 13a; Alaska v. Babbitt, 72 F.3d 698 (9th Cir.

1995) [Katie John I]; John v. United States, 247 F.3d

1032 (9th Cir. 2001) (en banc) [Katie John II]; John v.

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

John III]). But the Katie John decisions arose in the

distinct subsistence context out of a desire to effectuate

Congress’s clear intention that Title VIII of ANILCA

include a meaningful rural subsistence preference.

Katie John I, 72 F.3d at 704. Applying the reserved water rights doctrine for the limited purpose of effecting

the subsistence priority explicitly found in Title VIII of

ANILCA is a far cry from finding broad federal regulatory authority over Alaska’s navigable waters for all

purposes. The Ninth Circuit’s reliance here on the reserved water rights doctrine as a basis for including

Alaska’s navigable waters in the category “public

lands” means the exception now swallows the rule, and

the doctrine is no longer limited in application as required by this Court.

The Ninth Circuit’s decision on remand again effectuates a federal takeover of Alaska’s navigable waters, on different but equally faulty grounds. The

court’s new rationale continues to improperly construe

ANILCA and the balance it struck between federal and

state authority in Alaska, and it compounds that problem with an unsupported expansion of the federal reserved water rights doctrine—to the detriment of

Alaska and its people.

------------------------------------------------------------------

6

ARGUMENT

I.

The Ninth Circuit’s Decision Deprives Alaska

of Its Sovereign Right To Manage Its Navigable Waters To Benefit Alaskans.

The Ninth Circuit’s ruling transfers State decision-making authority over how best to manage

Alaska’s waters to a federal agency. The decision deprives Alaska and its people of a key component of sovereignty granted at statehood, and contradicts the

constitutional and statutory balance between conservation and Alaska’s interests in self-governance and

resource development. The Ninth Circuit’s decision

thus strikes at the heart of Alaska’s sovereignty and

upsets Congress’s intended federal-state balance. In so

doing, it inflicts real harms on the people of the State.

A. Alaska’s ownership of its lands and

waters is an essential aspect of its state

sovereignty.

Alaska’s authority to manage its lands and waters

is a particularly important sovereign interest, inextricably tied to its history and self-governance. Indeed,

Alaskans’ interest in controlling the state’s fisheries

without unwarranted federal control was a principal

motivation for statehood. See Victor Fischer, Alaska’s

Constitutional Convention 7-8 (1975). But the territory’s lack of taxable industry and population stood in

the way of statehood: “One of the principal objections

to Alaska’s admittance into the Union was the fear

that the territory was economically immature and

would be unable to support a state government.”

7

Trustees for Alaska v. State, 736 P.2d 324, 335 (Alaska

1987). Before statehood, 98 percent of Alaska’s land

was owned by the federal government, leaving “little

land available to drive private economic activity and

contribute to the state tax base.” Sturgeon, 136 S. Ct.

at 1065. Ultimately, the 1958 Alaska Statehood Act

“permitted Alaska to select 103 million acres of ‘vacated, unappropriated, and unreserved’ federal land—

just over a quarter of all land in Alaska—for state ownership.” Id. (quoting Statehood Act, Pub. L. No. 85-508,

§§ 6(a)-(b), 72 Stat. 339, 340 (1958)). Congress concluded that “the Statehood Act sufficiently provided for

Alaska’s financial well-being. The land grant of

103,350,000 acres was perceived . . . as an endowment

which would yield the income that Alaska needed to

meet the costs of statehood.” Trustees for Alaska, 736

P.2d at 336.

Alaska’s constitutional delegates viewed state

management of the anticipated grant of lands, waters,

and resources as a serious sovereign responsibility.

They drafted an entire natural resources article in the

Alaska Constitution—Article VIII—with provisions

designed to conserve and protect the State’s lands, waters, and other resources while allowing for responsible

access and use. Alaska’s Constitution reserves the

State’s resources to the people “for maximum use consistent with the public interest”; mandates that the

State manage replenishable resources on the sustained yield principle; and ensures free access to

Alaska’s navigable and public waters. Alaska Const.

art. VIII, §§ 1-4, 14.

8

Alaska owns the riverbed of the Nation River,

where Mr. Sturgeon was approached by armed federal

officials. See Alaska v. United States, 201 F.3d 1154,

1156, 1164-66 (9th Cir. 2000) (affirming finding of navigability of Nation River at statehood, placing riverbed

under State ownership). Alaska, like all states, took title to the lands underlying its inland navigable waters

as a matter of constitutional grace by virtue of the

equal footing doctrine and as an “essential attribute”

of state sovereignty. Utah Div. of State Lands v. United

States, 482 U.S. 193, 195 (1987); see also Oregon ex rel.

State Land Bd. v. Corvallis Sand & Gravel, 429 U.S.

363, 374 (1977) (“[T]he state’s title to lands underlying

navigable waters within its boundaries is conferred not

by Congress but by the Constitution itself.”). Congress

formally recognized and codified this conveyance in the

Submerged Lands Act. Alaska v. United States, 545

U.S. 75, 79 (2005) (citing 43 U.S.C. §§ 1301 et seq.,

§ 1311(a); Alaska Statehood Act, Pub. L. No. 85-508,

§ 6(m), 72 Stat. 339, 343 (1958) (incorporating Submerged Lands Act)).

Alaska’s ownership of its submerged lands includes the power to regulate the waters for its people.

See United States v. Alaska, 521 U.S. at 5. Indeed, that

is the purpose of state ownership of submerged lands.

See Illinois Cent. R.R. Co. v. Illinois, 146 U.S. 387, 452

(1892). Along with title to the submerged lands, the

State received management power over the navigable

waters themselves, including over the fish located in

the waters. See id; 43 U.S.C. § 1311(a) (defining the

rights of states to include “ownership of the natural

9

resources within such lands and waters” and the “right

and power to manage, administer, lease, develop, and

use the said lands and natural resources all in accordance with applicable State law”); 43 U.S.C. § 1301(e)

(defining “natural resources” to include fish). A state’s

title to land underlying navigable waters includes the

power, as the sovereign, “to control and regulate navigable streams.” Coyle v. Smith, 221 U.S. 559, 573

(1911). States hold submerged lands in trust for the

public to use the waterways for commerce, navigation,

and fishing. Illinois Cent. R.R. Co., 146 U.S. at 452

(holding state’s title to lands under navigable waters

“necessarily carries with it control over the waters

above them”). Alaska statutes interpreting the Alaska

Constitution similarly provide that Alaska “holds and

controls all navigable or public water in trust for the

use of the people of the state.” Alaska Stat.

§ 38.05.126(b); see also Alaska Stat. §§ 38.05.127-.128.

Allowing the Park Service to broadly usurp the

State’s control over its navigable waters and manage

the State’s navigable waters as if they were a federal

park infringes on Alaska’s sovereign authority and responsibility to its people. See Idaho v. Coeur d’Alene

Tribe of Idaho, 521 U.S. 261, 284 (1997) (acknowledging that “navigable waters uniquely implicate sovereign interests”); United States v. Alaska, 521 U.S. at 5

(holding that ownership of submerged lands “is an essential attribute of sovereignty”). Such a federal takeover would thwart the public trust doctrine and hinder

Alaska’s sovereign power to ensure open access to its

10

waters for navigation, fishing, and commerce. See Illinois Cent. R.R. Co., 146 U.S. at 452.

Another example of intrusive federal authority is

found in Alaska’s companion case, decided together

with Sturgeon’s in a consolidated opinion before the

Ninth Circuit, No. 13-36166. Pet. App. 38a. There,

Alaska challenged Park Service regulations requiring

the Alaska Department of Fish and Game to obtain a

permit before engaging in scientific research involving

genetic sampling of chum and sockeye salmon on the

State-owned Alagnak River. Pet. App. 30a, 38a. By requiring the State to ask for advance permission before

accessing its own lands to conduct beneficial scientific

research, the federal government unduly interferes

with Alaska’s ability to make use of its resources. Compliance with the permit’s terms forced Alaska to accede

to obligations and limitations that undermined its sovereign rights, including a prohibition on destroying the

State’s own research specimens without Park Service

authorization; an obligation to “catalogue collected

specimens into the NPS’s Interior Collection Management System and label such specimens with NPS accession and catalog numbers”; and a requirement “to

submit an Investigator’s Annual Report and copies of

other final reports and publications resulting from the

study within a year of publication.” Pet. App. 38a. Thus,

under the Ninth Circuit’s decision here, the Park Service has jurisdiction not only to unilaterally restrict access to Alaska’s waters, but also to control whether and

how Alaska conducts its own fisheries management

11

research—a shocking overreach of agency authority

not reflected in any congressional text.

B. Loss of Alaska’s sovereign power to manage its own waters will inflict serious

harm on ordinary Alaskans.

Alaska’s sovereign interests in its waters are not

merely academic. The loss of State management authority inflicts real and unique harms on not just the

State, but on ordinary Alaskans. Alaska is home to

abundant natural resources, including over 12,000 rivers and three million lakes—the largest network of

navigable waters in the country. Alaska has more than

100,000 miles of navigable waters, covering a greater

area than the navigable waters of all the contiguous

States combined. The State also is home to myriad fish

and wildlife, significant oil and natural gas reserves,

and economically viable subsurface mineral deposits.

Alaska’s vast terrain and wild beauty captivate the national imagination and its bounty of resources fortifies

both the state and national economies. But Alaska’s

massive size, widely dispersed population, lack of developed infrastructure, variable topography, and extreme climate also make it the nation’s most

inaccessible state.

Over three-quarters of Alaska’s 300 communities

and roughly twenty percent of its 735,000 residents

live in regions unconnected to the road system. Half of

these residents live in the State’s most remote villages,

communities with disproportionately higher levels of

12

poverty and limited infrastructure, some lacking essential services like sanitation and safe drinking water. Rural citizens rely heavily on Alaska’s resources to

provide for their families. The State’s ability to manage

these resources in accordance with unique realities, local needs, and historical customs is thus critical to its

sovereign interests.

Alaskans living off the road system primarily

travel by all-terrain vehicles, small airplanes, snowmachines, and boats. Alaska’s extreme climates and

varied terrain further shape the unusual nature of the

State’s limited transportation options: severe storm

patterns routinely disrupt air service and rivers seasonally evolve into ice roads. Alaska’s waters provide

essential travel corridors year round. Many rural citizens live in small, isolated villages stretched along rivers, and depend on these networks of water

connections for their everyday needs. Major rivers like

the Yukon and Kuskokwim serve as critical arteries for

transporting commercial fuel and goods to much of

western Alaska throughout the summer months. Especially in more remote areas, Alaskans rely on these waters to access health care, goods, and services; recreate;

and travel to hunting and fishing grounds. In winter,

Alaska’s rivers freeze into highways for snowmachine,

dogsled, and other vehicle traffic, remaining a vital

part of the State’s transportation infrastructure so

that Alaskans can access vital natural resources as

well as commercial goods and services. Alaska’s rivers

have functioned in this way for hundreds of years.

13

Because Alaska’s rural villages are so isolated,

residents in these communities also face economic

challenges. Rural residents confront a formidable combination of high costs of living, little or no local tax

base, few job opportunities, and limited earnings. Localized resource-based activities—such as local tourism and recreation-related jobs or small-scale mining,

sport fishing, wildlife guiding, or trapping—often provide an essential part of families’ incomes and contribute to the economic activity of the region.

Alaska has an acute interest in retaining its management authority over water-based access routes to

address local needs—needs that might be ignored or

eclipsed by federal land management agencies with

singular preservationist priorities and a national constituency. See, e.g., 54 U.S.C. § 100101 (describing purpose of Park Service regulation as “to conserve the

scenery, natural and historic objects, and wild life in

the System units and to provide for the enjoyment of

the scenery, natural and historic objects, and wild life

in such manner and by such means as will leave them

unimpaired for the enjoyment of future generations”).

State regulators understand the unusual realities of

life in Alaska and use that knowledge to design rules

that consider local conditions, practices, and needs. But

federal regulators—who may never even visit Alaska,

let alone develop a nuanced understanding of the

unique aspects of rural Alaskan life—lack this

knowledge or focus. As a result, the regulations they

impose can be ill-fitting for Alaska. For example, in

permitting hovercraft to operate on state waters,

14

Alaska has prioritized opening its waters to meet the

access and transportation needs of residents like Mr.

Sturgeon. But in conflict with Alaska’s priority, the

Park Service intercepted Mr. Sturgeon and barred him

from taking his hovercraft to non-federally owned

hunting grounds. The federal government’s national

prohibition on hovercraft use1 might be sensible in

Lower 48 parks where waters are often used only for

recreational activities and tourism, but it is overbearing and harmful in Alaska, where, even in remote wilderness areas, citizens must use rivers for everyday

transportation and to access necessities like food, fuel,

and health care. In addition, while federal environmental policy may wax and wane with different administrations, Alaska remains under a continuing

constitutional obligation to manage its resources responsibly according to sustained yield and other conservation principles. Alaska Const. art. VIII, §§ 1-4, 14.

What is at stake here for Alaska, therefore, is not

just a disagreement with the National Park Service

about permissible weekend recreation or the best

method of routing tourists through national parks. Because “Alaska is different,” Sturgeon, 136 S. Ct. at

1070, the State’s continued management of its lands

and waters is essential to maintain unencumbered

1

The regulation prohibiting hovercraft use, 36 C.F.R.

§ 2.17(e), “is not limited to Alaska, but instead has effect in federally managed preservation areas across the country.” Sturgeon,

136 S. Ct. at 1067. It is not one of the Alaska-specific provisions

“woven throughout ANILCA” that reflect Congressional attention

to Alaska’s uniqueness. Id. at 1071.

15

access and meaningful use of Alaska’s natural resources by its citizens.

C. ANILCA’s requirement that state lands

be treated differently from federal lands

protects Alaska’s sovereign rights.

ANILCA reserved over 100 million acres of federal

land in Alaska—an area larger than California—for

the primary purposes of conservation and protection.

16 U.S.C. §§ 3101 et seq. Vast swaths of Alaska’s new

and expanded national parks, wildlife refuges, wild

and scenic rivers, national trails, wilderness areas, and

national forest monuments were organized into CSUs

managed by different federal land management agencies. 16 U.S.C. § 3102(4). But ANILCA’s CSU boundaries do not closely mirror federal land holdings: for

every six acres of federal land within the CSUs there

is one acre of non-federal land.

While ANILCA reserved massive amounts of

land—significantly limiting the possibility for Alaska’s

future economic development—it also included provisions meant to protect Alaska’s sovereignty, economic

well-being, and way of life. As this Court explained,

ANILCA had twin goals: to protect the national interest in scenic, natural, cultural, and environmental values on public lands in Alaska, but also to continue to

“provide[ ] adequate opportunity for satisfaction of the

economic and social needs of the State of Alaska and

16

its people.” 16 U.S.C. § 3101(d); accord Sturgeon, 136

S. Ct. at 1066.

Congress protected Alaska’s ability to direct the

use of its own lands and waters in numerous ways.

First, Section 103(c) assures Alaska’s sovereign authority to manage its waters and lands by excluding

from CSUs non-federal lands that happen to be located

within unit boundaries. 16 U.S.C. §§ 3103(c), 3102(1),

(3)(B)-(C), (11). This exclusion covered the lands and

waters owned by the State, Alaska Native Corporations, and other private landowners at the time of

ANILCA’s passage. Second, ANILCA expressly states

that non-federal “lands”—defined to include waters as

well as uplands—falling within newly expanded park

boundaries would not be regulated as if they were federally owned. 16 U.S.C. §§ 3102(1), 3103(c) (providing

non-federal lands are not “subject to the regulations

applicable solely to [federal lands] within such units”).

Third, Section 103(c) provides that, should the federal government wish to regulate non-public lands as

part of a system unit, it must first acquire them; only

then may the new lands become part of the unit and

“be administered accordingly.” 16 U.S.C. § 3103(c). This

is not to say that Congress exempted non-federal lands

within CSUs from all federal oversight—instead Congress left in place (and unaffected by ANILCA)

“[f ]ederal laws and regulations of general applicability

to both private and public lands, such as the Clean Air

Act . . . and other federal statutes and regulations of

general applicability.” S. Rep. No. 96-413, 303, reprinted

in 1980 U.S.C.C.A.N. 5070, 5247. But by removing

17

these non-federal lands and waters from the reach of

the extensive regulatory regime applicable to federally

owned parklands nationwide and drawing hard boundaries between how the different categories of lands

should be treated, Section 103(c) limits federal jurisdiction and protects against abuse of federal regulatory power. Finally, ANILCA contains a water rights

savings clause specifying that the Act may not be construed as “(1) affecting in any way any law governing

appropriation or use of, or Federal right to, water on

lands within the State of Alaska”; “(2) as expanding or

diminishing Federal jurisdiction, responsibility, interests, or rights in water resources development or control”; or “(3) as superseding, modifying, or repealing,

except as specifically set forth in this Act, existing laws

applicable to the various” federal regulatory agencies

involved in the Act. 16 U.S.C. § 3207.

Now, despite this Court’s direction on remand to

construe ANILCA in light of Alaska’s uniqueness and

the statute’s language and context, Sturgeon, 136

S. Ct. at 1070-71, the Ninth Circuit again nullified that

guarantee, awarding the Park Service—and presumably other federal land management agencies—broad

authority to regulate state waters as though they were

federal lands. The Ninth Circuit’s decision endorses

further federalization of State-owned resources and

subjects Alaskans to federal regulatory control in a

manner that Congress neither authorized nor intended.

18

II.

The Ninth Circuit’s Decision Misapplies

§ 103(c) and the Federal Reserved Water

Rights Doctrine.

The Ninth Circuit’s decision is not only based on

its continued misreading of § 103(c), but also its fundamental misapplication of the federal reserved water

rights doctrine. The Ninth Circuit ignores the clear

statement rule, disregards congressional intent, and

stretches the federal reserved water rights doctrine beyond all recognition by concluding that the Nation

River—a navigable waterway owned and traditionally

regulated by the State—qualifies as “public lands” because Congress implicitly reserved an undefined and

unquantified amount of water when it created the Yukon-Charley preserve.

A. ANILCA does not contain the required

clear statement of congressional intent

to divest Alaska of control over its navigable waters.

The Ninth Circuit’s analysis on remand ignored

the gatekeeping legal doctrine that protects against

unsanctioned federal encroachments on State power:

the clear statement rule. This Court has held that “[i]f

Congress intends to alter the usual constitutional balance between the States and the Federal Government,

it must make its intention to do so unmistakably clear

in the language of the statute.” Gregory v. Ashcroft, 501

U.S. 452, 460-61 (1991) (quoting Will v. Michigan Dep’t

of State Police, 491 U.S. 58, 65 (1989)) (internal quotation marks omitted; emphasis added); accord Vermont

19

Agency of Natural Res. v. United States ex rel. Stevens,

529 U.S. 765, 787 (2000). The clear statement rule requires that any infringements on state sovereignty be

“plain to anyone reading the [statute].” Gregory, 501

U.S. at 467. The rule is “an acknowledgement that the

States retain substantial sovereign powers under our

constitutional scheme, powers with which Congress

does not readily interfere.” Id. at 461. It is a crucial

check on agency overreach based on the bedrock principle that “Congress does not exercise lightly” the “extraordinary power” to “legislate in areas traditionally

regulated by the States.” Id. at 460.

The clear statement rule directly applies to this

case, where the Federal Government seeks to override

Alaska’s “traditional and primary power over land and

water use” by forcibly divesting Alaska of its authority

over its submerged lands and navigable waters. Rapanos v. United States, 547 U.S. 715, 738 (2006) (quoting Solid Waste Agency of N. Cook County v. United

States Army Corps of Eng’rs, 531 U.S. 159, 174 (2001)

[SWANCC]). The rule applies “where the administrative interpretation alters the federal-state framework

by permitting federal encroachment upon a traditional

state power.” SWANCC, 531 U.S. at 172-73. In

SWANCC, the Court held that the clear statement rule

foreclosed federal regulation of state waters where—as

in this case—the proposed regulation was not clearly

authorized by statute, would usurp traditional state

sovereignty, and raised significant constitutional questions regarding the extent of federal authority. Id. at

172-74.

20

Instead of applying the clear statement rule as

this Court’s precedents direct, however, the Ninth Circuit approached the case as a routine question of statutory construction, disregarding the strength of

Alaska’s sovereign interests entirely in favor of a quest

for definitional uniformity of the term “public lands”

throughout the statute. Pet. App. 13a-14a. The Court

began its analysis at the wrong place by assuming that

Katie John’s narrow, context-based holding must be expanded to the entire statute. But the clear statement

rule is not optional, and statutory construction canons

alone can neither substitute for Congressional authorization nor overcome the lack of authority delegated by

Congress. Proper application of the clear statement

rule would have required finding in Mr. Sturgeon’s favor. Instead, the Court skipped over this step, leading

it to improperly expand Katie John’s holdings to justify

a wholesale takeover of Alaska’s navigable waters for

non-subsistence purposes that Congress did not intend

or sanction.

The Ninth Circuit’s decision on remand flatly contravenes the clear statement rule. In direct conflict

with this Court’s precedents, the Ninth Circuit has authorized federal agencies to usurp Alaska’s regulatory

power along more than half of the State’s navigable

waters, based on a reserved water rights concept that

appears nowhere in ANILCA’s text or legislative history. Nor does ANILCA’s definition of “public lands” as

“lands, waters, and interests therein” the “title to

which is in the United States,” 16 U.S.C. § 3102(1), (2),

clearly and manifestly include navigable waters,

21

because the government does not hold “title” either to

an inchoate use right to a quantity of water, or to the

underlying submerged lands. In fact, Congress expressed the intent to exclude navigable waters from

the definition of “public lands,” by explicitly exempting

all “lands . . . granted to the Territory of Alaska or the

State under any other provision of Federal law.” 16

U.S.C. § 3102(3)(A). And as discussed above, § 103(c)

compels the same conclusion.

The Park Service may argue that the federal government’s navigational servitude justifies the infringement on Alaska’s sovereignty here, BIO at 12, but this

argument too ignores the clear statement rule. See Fed.

Power Comm’n v. Niagara Mohawk Power Corp., 347

U.S. 239, 249 (1954) (holding that “the exercise of that

servitude, without making allowances for preexisting

rights under state law, requires clear authorization”).

While the federal government possesses the theoretical power to override State regulation to protect navigation, it simply has not exercised that power here. The

navigational servitude is a Commerce Clause power,

see, e.g., United States v. Virginia Elec. & Power Co., 365

U.S. 624, 627-28 (1961), and ANILCA invoked the Commerce Clause only in connection with Title VIII’s subsistence provisions. 16 U.S.C. § 3111(4). It has not

granted the Park Service any authority under the

Commerce Clause to regulate Alaska’s waters for nonsubsistence purposes. See Katie John I, 72 F.3d 698,

703 (9th Cir. 1995) (“Neither the language nor the legislative history of ANILCA suggests that Congress intended to exercise its Commerce Clause powers over

22

submerged lands and navigable Alaska waters.”). A

power that Congress declined to exercise cannot justify

infringing Alaska’s sovereignty.

B. Alaska’s navigable waters are not public lands.

Equally compelling as ANILCA’s silence on the

subject of usurping traditional state power is what

ANILCA does say about the dichotomy between the

government’s regulatory authority on public and nonpublic lands. ANILCA authorizes the federal government to regulate “public lands,” which it defines as a

subset of “[f ]ederal lands.” 16 U.S.C. § 3102(3) (excluding certain state and native corporation land selections). “Federal land” in turn is defined as “lands the

title to which is in the United States.” Id. § 3102(2)

(emphasis added). And “land” includes “lands, waters,

and interests therein.” Id. § 3102(1). The Ninth Circuit’s conclusion that Alaska’s navigable waters are

“public lands” under these definitions is unsupportable.

The United States does not hold “title” to navigable waters in which it has an implied water right, let

alone to the submerged lands underlying Alaska’s navigable waters. The Ninth Circuit conceded that

“[r]eserved water rights are not a ‘title’ interest . . . in

a narrow, technical sense,” Pet. App. 16a (internal quotation marks omitted), but nevertheless found “a

vested interest in the water” to be good enough. Id. at

17a. Even if an inchoate reserved water right that has

23

never been adjudicated and is not tied to the need for

any particular quantity of water could properly be described as “vested,” it still would not be sufficient to

qualify as a title interest under ANILCA. If Congress

intended that a non-title, judicially-created “interest”

in theoretical uses of water could make a river “public

lands” that are fully subject to the power of federal regulation, it would have written the statute to say that.

It did not.

The Ninth Circuit reasoned that “the United

States has an implied reservation of water rights [in

the Nation River], rendering the river public lands.”

Pet. App. 19a. The court held that “non-public land is

still subject to [regulations applicable only to public

lands] if the United States retains an interest in it because the land is public to the extent of the interest.”

Pet. App. 8a. But this fails to honor the sovereignty protections of § 103(c). First, by defining public lands

broadly enough to encompass State-owned waters, the

Ninth Circuit decision disregards ANILCAs admonitions that state lands within the boundaries of the

CSU are not part of the CSU and the government must

first acquire those lands if it wants to regulate them.

Second, the holding ignores the plain text of ANILCA,

which cautions that land belonging to the State cannot

be regulated as if it were public land. 16 U.S.C.

§ 3103(c).

And because the decision does not purport to defeat the State’s continued title to its submerged lands,

the regulations unlawfully regulate the State-owned

submerged lands as if they were public lands. These

24

regulations do not apply only to a hypothetical “nonstate” portion of the lands; they control what vehicles

can travel on the submerged land, and what scientific

studies Alaska can perform on riverbeds that it owns.

Indeed, Mr. Sturgeon was stopped on a gravel bar between the ordinary high water marks of the Nation

River—in other words, on State-owned submerged

lands—illustrating how the decision in a very real way

affects not only Alaska’s sovereignty over state waters,

but also over state submerged lands.

C. Even if the government has a reserved

water right in the State’s waters, that

right is to use a defined quantity of water, not to supersede Alaska’s regulation of navigable waters.

The Ninth Circuit’s analysis also vastly overinflates the proper scope of any federal reserved water

right by transforming a limited federal right to reserve

a specific quantity of water into an assumption of total

regulatory control over all the water. Its decision bootstraps a limited reserved water right into a full titled

interest in order to find broad federal regulatory authority—causing the exception to swallow the rule, and

to the detriment of Alaska. The court first achieves this

by attempting to divorce Alaska’s title ownership of the

submerged lands from its sovereign responsibility over

the navigable waters above them. Pet. App. 10a.

Although navigable waters themselves are not

usually considered subject to traditional title

25

ownership, a sovereign’s title to the bed of navigable

waters “necessarily carries with it control over the waters above them.” Illinois Cent. R.R. Co. v. Illinois, 146

U.S. 387, 452 (1892). Thus, the Submerged Lands Act

recognized State assumption of both “submerged lands

and waters.” United States v. California, 436 U.S. 32,

37 (1978). This control and authority is constitutionally based, not merely statutory; under the equal footing doctrine, “the State’s title to navigable waters

within its boundaries is conferred not by Congress but

by the Constitution itself.” Oregon ex rel. State Land

Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 374

(1977). Thus, “[u]pon statehood, the State gains title

within its borders to the beds of waters then navigable”

as a matter of constitutional grace, allowing it to “allocate and govern those lands according to state law” as

sovereign. PPL Montana, LLC v. Montana, 565 U.S.

576, 591 (2012). Ever since statehood, then, Alaska has

had sovereign control and management authority over

its waters.

The Ninth Circuit’s reasoning creates a strange

disconnect between submerged lands and the waters

above. The court acknowledged that Alaska holds title

to the submerged lands underlying the Nation River,

but it simultaneously held that the waters themselves

are federal public lands subject to broad federal jurisdiction based on the government’s reserved water

right. Pet. App. 10a, 13a. This reasoning appears to decouple the state’s control and management of the waters from its sovereign ownership of the submerged

lands underneath them. But it has been well-settled

26

for over a century that a state’s title to land underlying

navigable waters includes “the right to control and regulate navigable streams.” Coyle v. Smith, 221 U.S. 559,

573 (1911); see also Illinois Cent. R.R. Co., 146 U.S. at

452. Congress also has enshrined this principle in statute. 43 U.S.C. § 1311(a) (defining the rights of states to

include “ownership of the . . . natural resources within

such lands and waters” and “the right and power to

manage, administer, lease, develop, and use said lands

and natural resources all in accordance with applicable State law.”) The Ninth Circuit did not explain how

ownership and control of the waters and lands could

properly be split apart, either as a practical or legal

matter.

The decision also inappropriately transforms the

very nature of a federal reserved water right from a

limited interest—allowing the government to use a

specified amount of water—into an extremely broad jurisdictional doctrine—allowing the government to assume full regulatory control over entire rivers. This

tremendous leap is entirely unsupported by law. Under

this Court’s jurisprudence, a federal reserved water

right is a limited, non-ownership right to use or preserve a specific volume of water. Cappaert v. United

States, 426 U.S. 128, 138-41 (1976). When the federal

government withdraws and reserves lands for a public

purpose, such as creating a national park, it “by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of

the reservation.” Id. at 138. This Court has strictly limited the scope of this doctrine: it applies only to “that

27

amount of water necessary to fulfill the purpose of the

reservation, no more.” Id. at 141; see also United States

v. New Mexico, 438 U.S. 696, 700 (1978).

Thus, in Cappaert, this Court examined the extent

of the federal government’s reserved water right in the

Devil’s Hole National Monument, a deep limestone

cavern in Nevada containing a subterranean pool

home to a rare and endangered pupfish. In establishing the national monument, Congress’s direction to

give special protection to the pool and the fish living in

it established a federal reserved water right—but the

government’s interest extended only to preserve the

exact amount of water necessary to keep the fish alive.

Id. at 141. To ensure that the doctrine remains limited

to the amount of water absolutely necessary to fulfill

the government’s purposes—a crucial check on federal

authority—courts applying the doctrine “carefully examine[ ] both the asserted water right and the specific

purposes for which the land was reserved, and [must]

conclude[ ] that without the water the purposes of the

reservation would be entirely defeated.” New Mexico,

438 U.S. at 700.

The Ninth Circuit did not even try to adhere to

this limiting principle. It made no attempt to constrain

the scope of the Park Service’s reserved water rights in

accordance with this Court’s case law, instead effectively granting the Park Service the broad, general

regulatory authority that § 103(c) expressly prohibits.

The court held that the Park Service’s reserved water

right extended to prevent any water use that might

merely impact the purposes of the reservation. App.

28

17a-18a. This novel redefinition of federal reserved water rights vastly expands the doctrine and usurps

Alaska’s sovereign authority just because there may be

some federal interest in some use of the water as a theoretical matter. And the Ninth Circuit’s analysis no

longer treats the reserved water rights doctrine as concerning use of a particular amount of water, as this

Court has required. Instead, the Ninth Circuit has invoked the doctrine to justify a wholesale grant of federal management authority over Alaska’s navigable

waters. This is a startling expansion of the doctrine,

and one with no foundation in this Court’s jurisprudence.

Congress did not intend that a federal usufructuary right—an interest far less than title—would transform entire rivers into “public land,” enabling broad

federal regulation for all purposes. Section 103(c) itself

makes this clear, since it limits the ability of the Secretary of the Interior to regulate state, private, or other

non-federal lands unless it purchases or otherwise acquires them. Yet the Ninth Circuit now gives the Park

Service this right to regulate state waters without any

purchase, compensation, or acquiescence from the

State. This Court should reject the Ninth Circuit’s tortured reformulation of the federal reserved water

rights doctrine, which contravenes federal law and undermines Alaska’s sovereign rights.

29

III. In Restoring Alaska’s Sovereignty Over Its

Navigable Waters, this Court Need Not and

Should Not Disturb the Katie John Circuit

Precedents.

The Ninth Circuit’s federal reserved water rights

holding in this case was based on an unwarranted expansion of prior Circuit precedent, the Katie John decisions, which expanded the definition of public lands

to include state-owned navigable waters in order to address an express and discrete part of ANILCA: Title

VIII (Subsistence Management and Use), 16 U.S.C.

§§ 3111-3126. See Alaska v. Babbitt, 72 F.3d 698 (9th

Cir. 1995) [Katie John I]; John v. United States, 247

F.3d 1032 (9th Cir. 2001) (en banc) [Katie John II]; John

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

John III]). In Title VIII, Congress created a priority in

the taking of fish and wildlife on public lands for rural

subsistence users—Alaskans who practice and depend

upon the “customary and traditional uses by rural

Alaska residents of wild, renewable resources for direct personal and family consumption as food, shelter,

fuel, clothing, tools, or transportation.” 16 U.S.C.

§ 3113.

The Katie John decisions are not at issue in this

appeal; the Question Presented concerns only Mr. Sturgeon’s non-subsistence use of the Nation River, which

does not fall within or implicate Title VIII at all. Neither party has asked this Court to overrule or reconsider Katie John in connection with Mr. Sturgeon’s

case. Thus, this Court need not directly address the

prior circuit holdings in order to resolve this appeal.

30

Nor should the Katie John and Sturgeon decisions

be tied together as the Ninth Circuit has done. Title

VIII stands apart from the rest of ANILCA with its

own findings, 16 U.S.C. § 3111, its own statement of

policy, 16 U.S.C. § 3112, and—unlike any other part of

the legislation—specific invocations of congressional

authority under the Commerce Clause, the Property

Clause, and Congress’s “constitutional authority over

Native affairs.” 16 U.S.C. § 3111(4). Furthermore,

while Congress began with the assumption and expectation that the State would enact and assume management authority over its subsistence regulations, as a

backstop, Congress included language authorizing the

federal government to step in if Alaska failed to act. 16

U.S.C. § 3115(d); Katie John I, 72 F.3d at 700 n.2. When

the State found itself constitutionally unable to enforce

state laws implementing the subsistence priority demanded by Congress because of the state constitutional guarantee of equal access to fish and game,

McDowell v. Alaska, 785 P.2d 1, 5-9 (Alaska 1989), the

federal government took over. See Katie John I, 72 F.3d

at 701.

The Ninth Circuit decisions upholding this takeover of subsistence regulation were attempting to reconcile what were perceived as two conflicting statutory

demands: the definition of public lands—which on its

face does not include State navigable waters because

Congress required a federal title interest—and the rural subsistence preference over fishing, which the court

believed needed to include the navigable waters containing the fish in order to fulfill Congressional intent.

31

See, e.g., Katie John I, 72 F.3d at 704 (“We recognize

that our holding may be inherently unsatisfactory. . . .

If we were to adopt the state’s position, that public

lands exclude navigable waters, we would give meaning to the term ‘title’ in the definition of the phrase

‘public lands.’ But we would undermine congressional

intent to protect and provide the opportunity for subsistence fishing. . . . The issue raised by the parties

cries out for a legislative, not a judicial, solution.”).

Since the Katie John rationale was rooted in Congress’s discrete intent that there be an enforceable

subsistence priority, nothing in the decisions’ rationale

warrants expanding their definition of public lands

outside the subsistence realm. The Ninth Circuit identified a direct conflict within the statute between two

commands—on the one hand, 16 U.S.C. § 3114’s command that there exist an enforceable subsistence priority; and on the other, the statutory definition of

“public lands,” which would seem to vitiate that command (at least where Alaska is unable to effectuate the

priority itself ). By contrast, there is no conflict between the rest of ANILCA and the definition of “public

lands.” To the contrary, reading “public lands” according to its plain meaning in non-subsistence contexts effectuates the statute’s purposes.

There are also prudential and policy reasons why

this Court should preserve the Katie John precedents.

Congress mandated the subsistence priority to protect

the important values embodied by subsistence, 16

U.S.C. § 3111, and in the nearly twenty years since

the federal government assumed management of

32

subsistence activities on federal lands in Alaska, rural

Alaskans have depended on this subsistence priority

to effectuate those values and preserve their way of

life. Congress found that subsistence use by Alaskans

is “essential to Native physical, economic, traditional,

and cultural existence and to non-Native physical, economic, traditional, and social existence.” 16 U.S.C.

§ 3111(1). It also found that many Alaskans had no realistic alternative to subsistence that could possibly

“replace the food supplies and other items gathered

from fish and wildlife which supply rural residents dependent on subsistence uses.” 16 U.S.C. § 3111(2). Congress’s observations remain true today. The State’s

rural residents currently harvest about 18,000 tons of

wild foods each year, averaging 295 pounds per person.

And to many Alaska Natives, subsistence is not a recreational or purely practical activity, but rather a way

of life, the lifeblood of cultural, spiritual, economic, and

physical well-being. Subsistence activities under

ANILCA are also crucial to Alaskans living in remote,

undeveloped settings where residents rely on customary and traditional harvest of wild and natural foods

because access to packaged and other processed and

non-local foodstuffs may not be available at a reasonable price—or any price. Limited or nonexistent job opportunities to earn cash wages in rural Alaska, the

high costs of living in remote areas, and the seasonal

nature of rural Alaskan life further enhance the importance of subsistence to rural residents.

The Ninth Circuit believed that—having decided

in Katie John that for Title VIII purposes that Alaska’s

33

navigable waters are public lands by virtue of federal

reserved water rights—it had no choice but to broaden

that holding to apply with equal force to Mr. Sturgeon’s

non-subsistence activities. This reasoning is unsustainable and incorrect. The Ninth Circuit itself has recognized that Katie John 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 rural subsistence priority under ANILCA.” Katie John III, 720 F.3d

at 1245. Instead of restricting the narrow, fact-specific

holding to the unique context in which it arose and

where it served to effectuate Congress’s intent, the

Ninth Circuit now has expanded it into a widespread,

generally-applicable doctrine that entirely redefines

federal reserved water rights law, where Congress has

not willed it. This Court should reject the expansion of

a compromise solution to a discrete problem into a

wide-ranging justification for intrusive federal management of state lands and waters throughout Alaska.

“[A] reviewing court should not confine itself to examining a particular statutory provision in isolation.

The meaning—or ambiguity—of certain words or

phrases may only become evident when placed in context.” Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000). Although the

Ninth Circuit believed itself controlled by its prior construction of the term “public lands” in the unique context of Title VIII, in fact, the “natural presumption that

identical words used in different parts of the same act

are intended to have the same meaning” is not

34

controlling. Envtl. Def. v. Duke Energy Corp., 549 U.S.

561, 574 (2007). This Court has stressed that “the presumption of consistent usage readily yields to context,

and a statutory term—even one defined in the statute—may take on distinct characters from association

with distinct statutory objects calling for different implementation strategies.” Util. Air Regulatory Grp. v.

E.P.A., 134 S. Ct. 2427, 2441 (2014) (Scalia, J.) (quoting

Duke Energy Corp., 549 U.S. at 574 (internal quotation

marks omitted)).

This case presents a salient example of a circumstance where a complex statute’s use of a term in different contexts is properly interpreted differently. Like

the Clean Water Act, which was at issue in Utility Air

Regulatory Group, ANILCA is a long, complex, and

multifaceted statute. The context of Title VIII and the

remainder of ANILCA differ in material and significant ways. Unlike the bulk of the statute, Title VIII explicitly calls upon separate Congressional policies and

findings of purpose. 16 U.S.C. §§ 3111, 3112. Title VIII

draws on the authority of the Property Clause, the

Commerce Clause, and Congress’s special powers over

Native American affairs—constitutional sources of law

that are conspicuously absent from the remainder of

the statute. 16 U.S.C. § 3111(4). And Title VIII explicitly contemplates federal regulation if necessary to ensure that rural Alaska residents can engage in

traditional and customary subsistence fishing activities. 16 U.S.C. § 3115(d). Furthermore, the Ninth Circuit itself has recognized that Katie John’s resolution

of the meaning of “public lands” to incorporate a

35

federal reserved water rights rationale was employed

only to effectuate Congressional intent. Katie John I,

72 F.3d at 704. None of this applies to the remainder of

the statute. This Court need not and should not overrule Katie John, but it should reverse the Ninth Circuit’s expansion of Katie John beyond the narrow and

unique context in which it arose.

IV. The Park Service’s Attempt To Regulate

Non-Federal Waters Within CSU Boundaries Cannot Be Alternatively Justified by 54

U.S.C. § 100751(b).

For all the above reasons, the Ninth Circuit’s decision is wrong and this Court should reverse it. But, as

it did before, the Park Service may press an alternative

rationale as a basis for affirmance by arguing that it

does not matter whether Alaska’s navigable waters are

public lands or not. BIO at 14-15. The Park Service believes it has the authority to regulate both public and

non-public lands alike pursuant to 54 U.S.C.

§ 100751(b), which provides that the Secretary may

promulgate regulations “concerning boating and other

activities on or relating to water located within System

units.” In the government’s view, the “on or relating to”

language gives the Park Service broad authority to

regulate all the waters within CSU boundaries, even if

they are not public lands. BIO at 14-15. This Court

should reject any such claim. Alaska’s ownership of

submerged lands and corresponding right to regulate

its navigable waters has meaning. If the Nation River

and the rest of Alaska’s navigable waterways are not

36

public land, the Park Service cannot nonetheless regulate them with the same regulations that apply to actual federal lands.

Allowing regulation of Alaska’s lands and waters

on the theory that they “relat[e] to” public lands would

eviscerate § 103(c) and contravene the intent of Congress. This Court already has held that because

“ANILCA repeatedly recognizes that Alaska is different,” a reading of the law that does away with § 103(c)’s

distinction between public and non-public land is unsustainable because it is “contorted and counterintuitive.” Sturgeon, 136 S. Ct. at 1070-71. Allowing the

Park Service to evade § 103(c)’s explicit limitations on

federal jurisdiction over non-public lands merely by

claiming that the non-public land is “relat[ed] to” public land would run afoul of this admonition. It would

also render § 103(c) toothless and meaningless. After

all, if all land and waters within CSU boundaries fall

under federal jurisdiction merely because they

“relat[e] to” adjacent public lands, then Congress’s

command that non-federal land must be treated differently from federal land would mean nothing at all.

Such an interpretation would contravene “one of the

most basic interpretive canons”: “[a] statute should be

construed so that effect is given to all its provisions, so

that no part will be inoperative or superfluous, void or

insignificant.” Corley v. United States, 556 U.S. 303,

314 (2009) (internal quotation marks omitted)). This

Court should reject the Park Service’s continuing efforts to nullify § 103(c).

------------------------------------------------------------------

37

CONCLUSION

The Court should reverse, restoring Alaska’s sovereignty and fulfilling Congress’s promise.

Respectfully submitted,

JAHNA LINDEMUTH

Attorney General of Alaska

RUTH BOTSTEIN

Counsel of Record

Kathryn R. Vogel

1031 W. 4th Avenue, Ste. 200

Anchorage, Alaska 99501

(907) 269-5100

ruth.botstein@alaska.gov