Respondents Brief — John Sturgeon, Petitioner v. Bert Frost, in His Official Capacity as Alaska Regional Director of the National Park Service, et al.
Supreme Court briefSep 11, 2018
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No. 17-949
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.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE RESPONDENTS
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JEFFREY H. WOOD
Acting Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
RACHEL P. KOVNER
Assistant to the Solicitor
General
ANDREW C. MERGEN
ELIZABETH ANN PETERSON
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether Section 103(c) of the Alaska National Interest Lands Conservation Act, 16 U.S.C. 3103(c), withdrew the National Park Service’s authority to regulate
activities on all navigable waters located within units of
the National Park System in Alaska.
(I)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statutory and regulatory provisions involved ........................... 1
Statement ...................................................................................... 2
A. Statutory background.................................................... 2
1. The authorities of the National Park Service ....... 2
2. ANILCA and its predecessors ............................... 3
a. The Alaska Statehood Act ................................ 4
b. The Alaska Native Claims Settlement Act .... 4
c. ANILCA ............................................................ 5
3. Regulation of navigable waters in the
National Park System following enactment of
ANILCA ................................................................... 9
4. Current regulation of navigable waters in the
National Park System ........................................... 12
B. Proceedings in this case .............................................. 13
Summary of argument ............................................................... 16
Argument:
The Park Service may regulate activities on the
navigable waters within the National Park System in
Alaska .................................................................................... 23
A. Park Service rules governing conduct on
navigable waters are valid without regard to
whether the United States holds a property
interest that supports classification of those
waters as “public lands” under ANILCA .................. 25
1. The 1976 Act authorizes the Park Service to
regulate activities occurring on navigable
waters within the National Park System ............ 25
2. Section 103(c) does not strip the Park Service
of its 1976 Act authorities on navigable waters
in Alaska ................................................................. 26
(III)
IV
Table of Contents—Continued:
Page
3. Petitioner’s contrary arguments are
incompatible with ANILCA’s text ....................... 30
B. In any event, the Park Service may enforce
regulations of “public lands” on navigable waters
within the National Park System in Alaska .............. 32
1. The Park Service’s regulations of navigable
waters are regulations of “public lands” under
ANILCA because of the federal interest in
those waters ........................................................... 32
2. Congress has ratified the Secretary’s
construction of “public lands” .............................. 37
C. Surrounding provisions of ANILCA confirm that
Section 103(c) did not strip the Park Service of
authority to regulate activities on navigable
waters within the National Park System .................. 40
1. Surrounding provisions demonstrate that the
Park Service retains authority to regulate
navigable waters within the National Park
System .................................................................... 40
2. Neither petitioner nor Alaska persuasively
accounts for these provisions ............................... 47
D. The placement and history of Section 103(c)
confirm that the provision does not rescind Park
Service authorities over navigable waters ................ 50
E. Petitioner errs in urging a clear-statement rule as
a basis for rescinding the Park Service’s
authorities over navigable waters .............................. 53
F. The Secretary’s interpretation would warrant
Chevron deference if there were ambiguity in the
statutory scheme .......................................................... 55
Conclusion ................................................................................... 57
Appendix — Statutory and regulatory provisions ................ 1a
V
TABLE OF AUTHORITIES
Cases:
Page
Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995),
cert. denied, 516 U.S. 1036, and 517 U.S. 1187
(1996) .................................................................. 10, 21, 38, 42
Alaska v. United States, 545 U.S. 75 (2005) ....................... 54
Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531
(1987) .............................................................................. 33, 49
Arizona v. California, 373 U.S. 546 (1963) ......................... 34
Cappaert v. United States, 426 U.S. 128
(1976) .................................................................. 19, 34, 35, 37
Commodity Futures Trading Comm’n v. Schor,
478 U.S. 833 (1986)........................................................ 20, 39
Coventry Health Care of Mo., Inc. v. Nevils,
137 S. Ct. 1190 (2017) ......................................................... 28
Crum v. Mt. Shasta Power Corp., 30 P.2d 30
(Cal. 1934) ............................................................................ 36
Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767
(2018) .................................................................................... 49
Federal Power Comm’n v. Niagara Mohawk Power
Corp., 347 U.S. 239 (1954) ...................................... 18, 33, 36
Garnett, In re, 141 U.S. 1 (1891) .................................... 25, 27
Gregory v. Ashcroft, 501 U.S. 452 (1991)............................. 53
Ingersoll-Rand Co. v. McClendon, 498 U.S. 133
(1990) .............................................................................. 28, 29
Kaiser Aetna v. United States, 444 U.S. 164 (1979) .......... 54
Kleppe v. New Mexico, 426 U.S. 529 (1976) ........................ 32
Lamar, Archer & Cofrin, LLP v. Appling,
138 S. Ct. 1752 (2018) ......................................................... 28
Morales v. Trans World Airlines, Inc., 504 U.S. 374
(1992) .................................................................................... 28
VI
Cases—Continued:
Page
National Ass’n of Home Builders v. Defenders of
Wildlife, 551 U.S. 644 (2007) ............................................. 56
PPL Mont., LLC v. Montana, 565 U.S. 576
(2012) ........................................................................ 29, 46, 54
The Propeller Genesee Chief v. Fitzhugh,
53 U.S. (12 How.) 443 (1852) .............................................. 25
Radcliff ’s Ex’rs v. The Mayor, 4 N.Y. 195 (1850) .............. 36
Rapanos v. United States, 547 U.S. 715 (2006) .................. 55
Roberts v. Sea-Land Servs., Inc., 566 U.S. 93 (2012) ......... 40
Solid Waste Agency v. United States Army Corps of
Eng’rs, 531 U.S. 159 (2001) ................................................ 54
Tee-Hit-Ton Indians v. United States, 348 U.S. 272
(1955) ...................................................................................... 4
United States v. Gerlach Live Stock Co., 339 U.S. 725
(1950) .................................................................................... 33
United States v. New Mexico, 438 U.S. 696 (1978) ...... 19, 35
United States v. Rands, 389 U.S. 121 (1967) ...................... 54
United States v. Riverside Bayview Homes, Inc.,
474 U.S. 121 (1985).............................................................. 55
United States v. Wilde, No. 10-cr-21, 2013 WL
6237704 (D. Alaska Dec. 3, 2013) ....................................... 44
Utilities Air Regulatory Grp. v. EPA, 134 S. Ct. 2427
(2014) .................................................................................... 49
Whitman v. American Trucking Ass’ns, 531 U.S. 457
(2001) .................................................................................... 51
Winters v. United States, 207 U.S. 564 (1908) .................... 34
Constitution, statutes, and regulations:
U.S. Const. Art. IV, Cl. 2 (Property Clause) ...................... 32
Act of Feb. 26, 1917, ch. 121, 39 Stat. 938 ............................. 2
Act of Oct. 7, 1976, Pub. L. No. 94-458, 90 Stat. 1939:
§ 1, 90 Stat. 1939 .......................................................... 7, 27
VII
Statutes and regulations—Continued:
Page
§ 1(2)(h), 90 Stat. 1939....................................................... 3
Alaska National Interest Lands Conservation Act,
Pub. L. No. 96-487, 94 Stat. 2371 (16 U.S.C. 3101
et seq.)..................................................................................... 2
§ 205, 94 Stat. 2384 .......................................................... 44
§ 303, 94 Stat. 2393 .......................................................... 44
Tit. VI, §§ 601-603, 94 Stat. 2412-2413 .......................... 42
16 U.S.C. 410hh .............................. 6, 19, 20, 24, 27, 35, 9a
16 U.S.C. 410hh(6) ....................................................... 6, 41
16 U.S.C. 410hh(8) ....................................................... 7, 41
16 U.S.C. 410hh(10) ......................................... 7, 24, 41, 9a
16 U.S.C. 410hh-1 ............................................ 6, 19, 35, 41
16 U.S.C. 410hh-1(1)........................................................ 41
16 U.S.C. 410hh-2 .................................................. 7, 21, 51
16 U.S.C. 1110(a) ............................................................... 7
16 U.S.C. 3101 ....................................................passim, 1a
16 U.S.C. 3101(a) ............................................... 5, 6, 40, 1a
16 U.S.C. 3101(b) ............................................. 6, 40, 41, 1a
16 U.S.C. 3101(c) ........................................6, 20, 41, 42, 2a
16 U.S.C. 3101(d) ......................................................... 6, 2a
16 U.S.C. 3102 ...................................................... 11, 49, 3a
16 U.S.C. 3102(1)-(3) ..................................8, 18, 32, 49, 3a
16 U.S.C. 3102(4) ................................................... 5, 43, 4a
16 U.S.C. 3102 note ......................................................... 11
16 U.S.C. 3103 ...................................................... 27, 50, 4a
16 U.S.C. 3103(a) ....................................................... 50, 4a
16 U.S.C. 3103(b) ................................................... 8, 50, 5a
16 U.S.C. 3103(c) (§ 103(c))...............................passim, 6a
16 U.S.C. 3111(1) ............................................................. 41
16 U.S.C. 3111(2) ............................................................. 42
16 U.S.C. 3113 ............................................................ 41, 42
VIII
Statutes and regulations—Continued:
Page
16 U.S.C. 3113(c) ............................................................. 20
16 U.S.C. 3114 ........................................................ 7, 21, 42
16 U.S.C. 3115(d) ................................................... 7, 10, 39
16 U.S.C. 3121 .............................................................. 7, 43
16 U.S.C. 3170 .............................................................. 7, 43
16 U.S.C. 3191(a) ............................................................... 9
16 U.S.C. 3191(b)(7) .................................17, 18, 28, 30, 7a
16 U.S.C. 3201 .................................................................. 43
16 U.S.C. 3202(a) ............................................................. 47
16 U.S.C. 3203(b) ............................................................. 44
16 U.S.C. 3204 .................................................................. 43
16 U.S.C. 3207 .................................................................. 45
16 U.S.C. 3207(2) ....................................................... 45, 46
16 U.S.C. 3207(3) ............................................................. 46
Alaska Native Claims Settlement Act, Pub. L. No.
92-203, 85 Stat. 688 (43 U.S.C. 1601 et seq.) ....................... 4
43 U.S.C. 1601 .................................................................... 4
43 U.S.C. 1603(b) ............................................................... 4
43 U.S.C. 1605 .................................................................... 4
43 U.S.C. 1610-1615........................................................... 4
43 U.S.C. 1616(d)(2)(A) ..................................................... 5
43 U.S.C. 1616(d)(2)(D) ..................................................... 5
Alaska Statehood Act, Pub. L. No. 85-508,
72 Stat. 339 ............................................................................ 4
§ 6(a), 72 Stat. 340 ............................................................. 4
§ 6(b), 72 Stat. 340 ............................................................. 4
§ 6(m), 72 Stat. 343 ............................................................ 4
Antiquities Act of 1906, 16 U.S.C. 431 et seq. ....................... 5
Department of the Interior and Related Agencies
Appropriations Act, 1996, Pub. L. No. 104-134,
Tit. I, § 101(c) [tit. III, § 336], 110 Stat. 1321-210...... 10, 38
IX
Statutes and regulations—Continued:
Page
Department of the Interior and Related Agencies
Appropriations Act, 1998, Pub. L. No. 105-83,
Tit. III, § 316(a), 111 Stat. 1592................................... 10, 38
Department of the Interior and Related Agencies
Appropriations Act, 1999, Pub. L. No. 105-277,
Div. A, § 101(e), 112 Stat. 2681-295 ............................. 10, 38
[tit. III, § 339(a)], 112 Stat. 2681-295....................... 10, 38
[tit. III, § 339(b)], 112 Stat. 2681-296 ...................... 11, 39
National Park Service Organic Act, ch. 408,
39 Stat. 535 ............................................................................ 2
Proclamation of Sept. 24, 1918, 40 Stat. 1855 ....................... 2
Proclamation of Feb. 26, 1925, 43 Stat. 1988 ........................ 2
Submerged Lands Act, 43 U.S.C. 1301 et seq. ...................... 4
43 U.S.C. 1311 .................................................................. 33
43 U.S.C. 1311(a) ............................................................... 4
Wild and Scenic Rivers Act, 16 U.S.C. 1271 et seq............. 42
16 U.S.C. 1281 .................................................................. 21
16 U.S.C. 1281(a) ............................................................. 43
16 U.S.C. 1281(c) ............................................................. 43
16 U.S.C. 1a-1 et seq. (1976) .................................................... 7
54 U.S.C. 100101(a) (Supp. IV 2016) ...............2, 23, 29, 34, 7a
54 U.S.C. 100751(a) (Supp. IV 2016) .................... 3, 31, 32, 8a
54 U.S.C. 100751(b) (Supp. IV 2016)......................passim, 8a
33 C.F.R. 2.38 ......................................................................... 25
36 C.F.R.:
Pt. 1:
Section 1.2(a) ................................................ 12, 26, 10a
Section 1.2(a)(3) ........................................... 11, 56, 10a
Pt. 2:
Section 2.1............................................................. 12, 26
Section 2.14........................................................... 12, 26
X
Regulations—Continued:
Page
Section 2.17(e) .............................................. 12, 26, 11a
Section 2.2............................................................. 12, 26
Section 2.3............................................................. 12, 26
Section 2.38................................................................. 25
Section 2.5............................................................. 12, 26
Pt. 3:
Sections 3.1-3.19................................................... 12, 26
Section 3.13........................................................... 12, 26
Pt. 6 ................................................................................... 32
Pt. 7:
Section 7.46(b) (1982) .................................................. 9
Section 7.46(c) (1982) ................................................... 9
Section 9.1 ........................................................................ 32
50 C.F.R. 100.3(b) ............................................................ 10, 36
Miscellaneous:
Alaska Dep’t of Natural Res., Mining, Land &
Water, State Policy on Navigability,
http://dnr.alaska.gov/mlw/nav/policy/
(last visited Sept. 11, 2018) ................................................ 47
2 William Blackstone, Commentaries on the Laws
of England (1766 ed.) ......................................................... 33
Bureau of Land Management, Final Summary
Report: Federal Interest in Lands Underlying
Kuskokwim River in the Kuskokwim Bay
Subregion, Alaska, https://www.blm.gov/sites/
blm.gov/files/LandsRealty_Alaksa_RDI_
KuskokwimRiver_FinalReport_05012013.pdf
(last visited Sept. 11, 2018) ................................................ 44
125 Cong. Rec. (1979):
p. 11,156 ...................................................................... 22, 52
p. 11,178 ............................................................................ 52
XI
Miscellaneous—Continued:
Page
p. 14,673 ............................................................................ 52
126 Cong. Rec. (1980):
p. 30,498 .................................................................. 9, 22, 52
pp. 30,495-30,500 ................................................................ 9
pp. 31,108-31,109 ................................................................ 9
34 Fed. Reg. 1025 (Jan. 23, 1969) ........................................... 4
48 Fed. Reg. 30,252 (June 30, 1983) ............................... 13, 29
59 Fed. Reg. 65,948 (Dec. 22, 1994) ......................... 12, 56, 57
61 Fed. Reg. 35,133 (July 5, 1996)............................ 11, 23, 56
62 Fed. Reg. 66,216 (Dec. 17, 1997) ............................... 10, 36
64 Fed. Reg. 1276 (Jan. 8, 1999) ......................... 10, 36, 38, 57
H.R. Con. Res. 452, 96th Cong., 2d Sess. (1980)
(94 Stat. 3688) ............................................................ 8, 22, 51
H.R. Rep. No. 97, 96th Cong., 1st Sess. Pt. 1 (1979) .......... 52
Letter of Curtis Bohlen, Deputy Assistant Sec’y
of the Interior (July 23, 1976), reprinted in
S. Rep. No. 1190, 94th Cong., 2d Sess. (1976) .................... 3
Memorandum of Assistant Attorney General Olson,
Federal Non-Reserved Water Rights, 6 Op. O.L.C.
328 (1982) ............................................................................. 33
NPS, U.S. Dep’t of the Interior:
Gates of the Arctic General Management Plan
(1986), https://www.nps.gov/gaar/learn/
management/upload/GAAR_GMP-LandProtection-Plan-Wilderness-Suitability1986.pdf ......................................................................... 9
Katmai National Park and Preserve
Management Plan (1986),
https://www.nps.gov/gaar/learn/management/upload/GAAR_GMP-Land-ProtectionPlan-Wilderness-Suitability-1986.pdf ....................... 9
XII
Miscellaneous—Continued:
Page
Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts (2012) ................... 39, 50
3 Herbert T. Tiffany, The Law of Real Property
(3d ed. 1939)......................................................................... 36
Waters and Water Rights (Amy K. Kelley, ed.)
(3d ed. LexisNexis 2018) .................................................... 33
In the Supreme Court of the United States
No. 17-949
JOHN STURGEON, PETITIONER
v.
BERT FROST, IN HIS OFFICIAL CAPACITY AS ALASKA
REGIONAL DIRECTOR OF THE NATIONAL PARK
SERVICE, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE RESPONDENTS
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-23a)
is reported at 872 F.3d 927. An earlier opinion of the
court of appeals (Pet. App. 26a-57a) is reported at 768
F.3d 1066. The decision of the district court (Pet. App.
58a-81a) is not published in the Federal Supplement but
is available at 2013 WL 5888230.
JURISDICTION
The judgment of the court of appeals was entered on
October 2, 2017. The petition for a writ of certiorari was
filed on January 2, 2018, and granted on June 18, 2018.
The jurisdiction of this Court rests on 28 U.S.C. 1254(1).
STATUTORY AND REGULATORY PROVISIONS INVOLVED
Pertinent statutory and regulatory provisions are
reprinted in the appendix to this brief. App., infra, 1a11a.
(1)
2
STATEMENT
This case concerns the authority of the National Park
Service (NPS or Park Service) to regulate navigable waters within the National Park System in Alaska. Congress has authorized the Park Service to regulate “activities on or relating to water located within” units of the National Park System, “including water subject to the jurisdiction of the United States.” 54 U.S.C. 100751(b) (Supp.
IV 2016). When Congress expanded the National Park
System in Alaska through the Alaska National Interest
Lands Conservation Act (ANILCA), Pub. L. No. 96-487,
94 Stat. 2371 (16 U.S.C. 3101 et seq.), with the aim of protecting “waters,” “freeflowing rivers,” and “fish,” 16 U.S.C.
3101, Congress did not simultaneously strip the Park Service of all authority to regulate conduct on navigable waters within the National Park System in Alaska.
A. Statutory Background
1. The authorities of the National Park Service
The United States has reserved federal lands and waters in the National Park System ever since the creation
of Yellowstone National Park in 1872. Three of the largest National Parks in Alaska—Mount McKinley National
Park, Katmai National Monument, and Glacier Bay National Monument—were created between 1917 and 1925.
See Act of Feb. 26, 1917, ch. 121, 39 Stat. 938; Proclamation of Sept. 24, 1918, 40 Stat. 1855; Proclamation of Feb.
26, 1925, 43 Stat. 1988. The “fundamental purpose” of
the National Park System “is to conserve the scenery,
natural and historic objects, and wild life in System units
and to provide for the enjoyment of ” those areas. 54 U.S.C.
100101(a) (Supp. IV 2016). The National Park Service Organic Act (Organic Act), ch. 408, 39 Stat. 535, authorizes
the Secretary to serve that goal through a general grant
3
of authority to “prescribe such regulations as the Secretary considers necessary or proper for the use and management of System units.” 54 U.S.C. 100751(a) (Supp. IV
2016).
In addition, since 1976, Congress has specifically authorized the Secretary to “promulgate 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,” so long as the regulations are
not in derogation of the authority of the Coast Guard.
Act of Oct. 7, 1976 (1976 Act), Pub. L. No. 94-458, § 1(2)(h),
90 Stat. 1939. That provision’s recent recodification replaces the phrase “waters located within areas of the
National Park System” with the phrase “water located
within Syste m units.” 54 U.S.C. 100751(b) (Supp. IV
2016). The Department of the Interior urged the enactment of the 1976 Act to respond to “recreational boating
and other water-related activities that affect the resources of many areas of the National Park System.”
Letter of Curtis Bohlen, Deputy Assistant Sec’y of the
Interior (July 23, 1976), reprinted in S. Rep. No. 1190,
94th Cong., 2d Sess. 12 (1976). The Department explained
that the enactment would make clear Congress’s “intent
to invoke its powers under the Commerce Clause” in
support of regulation of such activities, id. at 11, and
clarify the Secretary’s authority over the navigable waters that are also subject to Coast Guard jurisdiction,
id. at 12.
2. ANILCA and its predecessors
ANILCA is the third in a series of major statutes addressing the allocation of lands in Alaska.
4
a. The Alaska Statehood Act
The Alaska Statehood Act (Statehood Act), Pub. L. No.
85-508, 72 Stat. 339, which authorized Alaska to join the
Union, “permitted Alaska to select 103 million acres of
‘vacant, unappropriated, and unreserved’ federal land”
for conveyance to the State. 136 S. Ct. 1061, 1065 (quoting Statehood Act, § 6(a) and (b), 72 Stat. 340). The Statehood Act also provided, § 6(m), 72 Stat. 343, that Alaska,
like other States, would be covered by the Submerged
Lands Act, 43 U.S.C. 1301 et seq., which generally grants
States “title to and ownership of the lands beneath navigable waters within the boundaries of the respective
States, and the natural resources within such lands and
waters,” as well as “the right and power to manage, administer, lease, develop, and use the said lands and natural resources.” 43 U.S.C. 1311(a); see 136 S. Ct. at 1065.
b. The Alaska Native Claims Settlement Act
The United States had acquired the land that became Alaska through a treaty with Russia that did not
extinguish the land tenure of Alaska Natives. See TeeHit-Ton Indians v. United States, 348 U.S. 272, 277
(1955). The Statehood Act also did not address aboriginal title. After the Statehood Act’s passage, Alaska Natives “asserted aboriginal title to much of the same land”
claimed by the State, leaving title to those lands uncertain. 136 S. Ct. at 1065; see 34 Fed. Reg. 1025 (Jan. 23,
1969). Congress sought to resolve that conflict in the
Alaska Native Claims Settlement Act (ANCSA), Pub. L.
No. 92-903, 85 Stat. 688 (43 U.S.C. 1601 et seq.). ANCSA
extinguished claims of aboriginal title, in exchange for
a monetary settlement and a right of “corporations organized by groups of Alaska Natives to select 40 million acres
of federal land to manage within the State.” 136 S. Ct. at
1065; see 43 U.S.C. 1601, 1603(b), 1605, 1610-1615.
5
ANCSA also directed the Secretary to withdraw up
to 80 million additional acres that the Secretary “deems
are suitable for addition to or creation as units of the National Park, Forest, Wildlife Refuge, and Wild and Scenic Rivers Systems.” 43 U.S.C. 1616(d)(2)(A). ANCSA
provided for those reservations to be approved by Congress within five years, 43 U.S.C. 1616(d)(2)(D), but
Congress did not act within the five-year period. Rather
than allowing the designations to expire, President Carter
invoked the Antiquities Act of 1906, 16 U.S.C. 431 et seq.,
to designate the selected lands as national monuments
without congressional approval. See 136 S. Ct. at 1065.
The decision triggered protests, and “Congress once
again stepped in to settle the controversy.” Id. at 1066.
c. ANILCA
Congress enacted ANILCA to bring finality to the
allocation of land in Alaska. ANILCA set aside approximately 105 million acres of additional “lands and waters in the State of Alaska that contain nationally significant natural, scenic, historic, archeological, geological,
scientific, wilderness, cultural, recreational, and wildlife
values.” 16 U.S.C. 3101(a). ANILCA placed those lands
in “conservation system unit[s]” (CSUs)—a term of art
referring to “any unit in Alaska of the National Park
System, National Wildlife Refuge System, National
Wild and Scenic Rivers Systems, National Trails System, National Wilderness Preservation System, or a
National Forest Monument.” 16 U.S.C. 3102(4).
Congress set out ANILCA’s objectives expressly,
making clear that Congress understood the Secretary
would be able to adopt rules for the conservation of “waters,” “freeflowing rivers,” and “fish” in the areas it set
aside. 16 U.S.C. 3101. The statute named four objectives:
6
• To preserve the “lands and waters” reserved by
the Act for “the benefit, use, education, and inspiration of present and future generations,” based
on their scenic, geologic, wildlife, and other values, 16 U.S.C. 3101(a);
• To protect the reserved areas’ “natural landscapes,” wildlife, “resources related to subsistence
needs,” historical locations, “rivers, and lands,” and
“wilderness resource values and related recreational opportunities,” including opportunities for
canoeing and fishing “on freeflowing rivers,” and
“to maintain opportunities for scientific research
and undisturbed ecosystems,” 16 U.S.C. 3101(b);
• To “provide the opportunity for rural residents engaged in a subsistence way of life to continue to do
so,” where “consistent with management of fish and
wildlife” and other principles, 16 U.S.C. 3101(c);
and
• To “obviate[] * * * the need for future legislation
designating” additional federal conservation lands
in Alaska, 16 U.S.C. 3101(d).
Each of the 13 provisions that created or expanded a
unit of the National Park System also described purposes for which the particular unit “shall be managed.”
16 U.S.C. 410hh, 410hh-1. In each case, the purposes
included protection of bodies of water such as rivers and
lakes, protection of fish or marine mammal populations
and their habitat, or a combination thereof. See ibid.
For some areas, Congress’s purposes included ensuring
protection of particular identified waters. See 16 U.S.C.
410hh(1) (Aniakchak River); 16 U.S.C. 410hh(6) (Kobuk
River Valley, including the Kobuk, Salmon, and other
7
rivers); 16 U.S.C. 410hh(8) (Noatak River); 16 U.S.C.
410hh(10) (“the entire Charley River basin”).
Congress directed that the Secretary “shall administer the lands, waters, and interests therein” within new
and expanded National Parks “as new areas of the National Park System” under the Organic Act “as amended
and supplemented (16 U.S.C. 1 et seq.).” 16 U.S.C.
410hh-2. The 1976 Act authorizing regulation of activities on or relating to water in the National Park System
was an amendment to the Organic Act. See § 1, 90 Stat.
1939 (amending 16 U.S.C. 1a-1 et seq. (1976)).
Congress also set out Alaska-specific directives with
which the Park Service was required to comply when
regulating fishing and boating in the new and expanded
areas. See 16 U.S.C. 410hh-2, 1110(a), 3121, 3170(a).
Subsistence-Use Priority On “Public Lands.”
ANILCA created a priority for rural subsistence users
of fish and wildlife by providing that on “public lands”
in Alaska on which subsistence use is authorized, the
taking of fish and wildlife for non-wasteful subsistence
uses “shall be accorded priority over the taking on such
lands of fish and wildlife for other purposes.” 16 U.S.C.
3114. ANILCA gave the State the option of controlling
implementation of the priority, by providing that if the
State “enact[ed] and implement[ed] laws of general applicability” containing the “definition, preference, and
participation specified in” ANILCA, the federal government would not implement its own subsistence-use
priority on “public lands.” See 16 U.S.C. 3115(d).
Section 103(c) of ANILCA. When Congress created
new CSUs in ANILCA, it drew the boundaries to “ ‘follow hydrographic divides or embrace other topographic
or natural features’ ” instead of “map[ping] the Federal
8
Government’s landholdings.” 136 S. Ct. at 1066 (quoting 16 U.S.C. 3103(b)). “As a consequence,” CSUs in
Alaska included “over 18 million acres of state, Native
Corporation, and private land,” in addition to “the Federal Government’s landholdings.” Ibid.
ANILCA Section 103(c), in three sentences, addresses
the status of such lands. First, it states that only “public lands” within the borders of a CSU “shall be deemed
to be included as a portion of such unit.” 16 U.S.C.
3103(c). Public lands are “lands” and “waters,” and also
“interests therein” to which the United States holds
title, excluding lands selected for transfer to the State
or Native Corporations. 16 U.S.C. 3102(1)-(3); see
16 U.S.C. 3103(c).
Second, Section 103(c) provides that no lands “conveyed to the State, to any Native Corporation, or to any
private party” shall be subject to those “regulations
applicable solely to public lands within such units.”
16 U.S.C. 3103(c).
Third, Section 103(c) provides that “[i]f 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) was added to ANILCA through a concurrent resolution to make technical “corrections,” after ANILCA had been passed by both the Senate and
House of Representatives. H.R. Con. Res. 452, 96th
Cong., 2d Sess. (1980) (94 Stat. 3688). The resolution’s
sponsor in the House explained that the resolution
would not “change any of the major features of ”
ANILCA or “have the effect of altering provisions related to conservation areas” in Alaska. 126 Cong. Rec.
9
30,498 (1980) (statement of Rep. Udall). The resolution
was passed with unanimous consent in both the Senate
and the House. See id. at 30,495-30,500, 31,108-31,109.
3. Regulation of navigable waters in the National Park
System following enactment of ANILCA
After ANILCA was enacted, the Park Service continued to regulate activities on navigable waters within
CSUs in Alaska. For instance, the Park Service adopted
park-specific rules governing activities on particular
navigable waters in National Parks. See, e.g., 36 C.F.R.
7.46(b) and (c) (1982) (rules for Naknek Lake and Naknek River in Katmai National Park); NPS, U.S. Dep’t of
the Interior, Katmai National Park and Preserve
Management Plan 53 (1986) 1 (explaining that Naknek
Lake and Naknek River are navigable). Park management plans created under ANILCA, see 16 U.S.C.
3191(a), likewise stated that the Park Service was responsible for “manag[ing] all waters within the boundaries” of the National Parks to protect fish and wildlife,
as well as their habitats, in cooperation with the State.
See, e.g., NPS, U.S. Dep’t of the Interior, Gates of the
Arctic General Management Plan 106 (1986). 2
The Secretary also promulgated regulations, since
ratified by Congress, that reflect the understanding
that ANILCA allows regulation of activities on navigable waters within CSUs. The question whether “public
lands” include navigable waters arose when the Secretary promulgated regulations to implement ANILCA’s
1
https://parkplanning.nps.gov/showFile.cfm?projectID=34515&
MIMEType=application%252Fpdf&filename=KATM%20GMP%
2Epdf&sfid=97151.
2
https://www.nps.gov/gaar/learn/management/upload/GAAR_GMPLand-Protection-Plan-Wilderness-Suitability-1986.pdf.
10
subsistence-use priority, which applies only on “public
lands.” In litigation over the scope of the subsistenceuse priority, the Ninth Circuit agreed with the Secretary that ANILCA’s definition of “public lands” permits
application of the subsistence-use priority on those navigable waters inside park boundaries as to which the
federal government has a reserved-water-right interest. Alaska v. Babbitt, 72 F.3d 698, 703-704 (9th Cir.
1995) (Katie John I), cert. denied, 516 U.S. 1036, and
517 U.S. 1187 (1996).
The Secretary implemented that understanding
through regulations. 50 C.F.R. 100.3(b); see 64 Fed.
Reg. 1276, 1279 (Jan. 8, 1999); see also 62 Fed. Reg.
66,216, 66,217-66,218 (Dec. 17, 1997). The regulations
identified reserved-water-rights interests in navigable
waters within CSUs in Alaska. 64 Fed. Reg. at 1276,
1279, 1286-1287.
Congress then ratified that understanding. Congress
initially delayed full implementation of the regulations
providing for “public lands” to include such waters, in
order to allow Alaska to enact an ANILCA-compliant
subsistence-use priority for “public lands.” 3 That would
have obviated the need for the federal regulations. See
16 U.S.C. 3115(d).
See Department of the Interior and Related Agencies Appropriations Act, 1996, Pub. L. No. 104-134, Tit. I, § 101(c) [tit. III, § 336],
110 Stat. 1321-210; Department of the Interior and Related Agencies Appropriations Act, 1998, Pub. L. No. 105-83, Tit. III, § 316(a),
111 Stat. 1592; Department of the Interior and Related Agencies
Appropriations Act, 1999, Pub. L. No. 105-277, Div. A, § 101(e)
[tit. III, § 339(a)], 112 Stat. 2681-295.
3
11
Congress ultimately provided, however, that if Alaska
did not enact a measure to implement ANILCA’s subsistence-use priority “before October 1, 1999,” the moratorium provision limiting the geographic scope of the subsistence-use regulations would be repealed, allowing
the Secretary’s definition of “public lands” to take effect. Department of the Interior and Related Agencies
Appropriations Act, 1999, Pub. L. No. 105-277, Div. A,
§ 101(e) [tit. III, § 339(b)], 112 Stat. 2681-296. Alaska
did not enact a measure to implement ANILCA’s subsistence-use priority. Accordingly, the subsistence-use
regulations became operative. See 16 U.S.C. 3102 note.
In addition, in nationwide regulations issued in 1996,
the Park Service made clear that park rules apply on all
“ ‘[w]aters subject to the jurisdiction of the United
States,’ includ[ing] navigable waters,” within “the boundaries of [the] National Park System.” 61 Fed. Reg. 35,133
(July 5, 1996) (citation omitted); see 36 C.F.R. 1.2(a)(3).
The Park Service explained that the rulemaking “clarifies and interprets existing NPS regulatory intent, practices and policies.” 61 Fed. Reg. at 35,133 (discussing
history).
In promulgating those regulations, the Secretary considered and rejected Alaska’s submission that “ANILCA
§ 103(c) preempts NPS’s well-established authority on
navigable waters,” and that it was therefore improper
for the Secretary to regulate navigable waters within
units of the National Park System in Alaska. 61 Fed.
Reg. at 35,135. The Secretary emphasized that Section
103(c), which had been “characterized by Congress as a
minor technical provision,” should not “be read in isolation from the context of the whole act.” Ibid. Interpreting ANILCA in a manner “consistent with its underlying protective purposes,” including “to protect objects
12
of ecological * * * interest,” the Secretary rejected
Alaska’s argument. Ibid.
The Secretary has also construed Section 103(c) as
inapplicable in the rare cases in which Park Service
rules are validly written to apply to non-public as well
as public lands. See 59 Fed. Reg. 65,948, 65,950 (Dec.
22, 1994). The Secretary explained that such regulations are not barred by the prohibition in Section 103(c)
because they do not apply “solely to public lands within”
the National Park System. Ibid. (quoting 16 U.S.C.
3103(c)).
4. Current regulation of navigable waters in the
National Park System
The Park Service has issued a number of general
rules that govern activities on waters within the units of
the National Park System, including in Alaska. These
rules apply within “[t]he boundaries of federally owned
lands and waters administered by the National Park
Service” and on “[w]aters subject to the jurisdiction of
the United States located within the boundaries of the
National Park System, including navigable waters * * *
without regard to the ownership of submerged lands.”
36 C.F.R 1.2(a). The rules include requirements relating to pollution and sanitation, e.g., 36 C.F.R. 2.14, 3.13,
introduction and removal of fish, plants, and wildlife,
e.g., 36 C.F.R. 2.1, 2.2, 2.3, 2.5, sanitation and noise
standards for boats and other vessels, e.g., 36 C.F.R.
3.1-3.19, and, as relevant here, a bar on “operation or
use of hovercraft,” 36 C.F.R. 2.17(e). The Park Service
issued the hovercraft rule after determining that the
crafts “introduce a mechanical mode of transportation
13
into locations where the intrusion of motorized equipment by sight or sound is generally inappropriate.”
48 Fed. Reg. 30,252, 30,258 (June 30, 1983). 4
B. Proceedings In This Case
1. In 2007, Park Service rangers observed petitioner
repairing a hovercraft inside the Yukon-Charley Rivers
National Preserve (Preserve), a unit of the National
Park System in Alaska. Petitioner was on a gravel bar
adjoining the Nation River, a navigable tributary of the
Yukon. Pet. App. 31a & n.1. The rangers warned petitioner that he could not operate his hovercraft in the
Preserve. Id. at 31a. Petitioner protested that Park
Service rules could not be enforced on the Nation River
within the Preserve on the ground that navigability of
the Nation River makes the river immune from Park
Service regulation. Pet. App. 3a, 31a. Nevertheless, he
removed his hovercraft, and refrained from using it in
the Preserve during the next two hunting seasons. Id.
at 31a-32a.
2. In 2011, petitioner filed suit challenging the Park
Service’s authority to enforce its park rules on navigable waters within the National Park System in Alaska.
He contended that Section 103(c) of ANILCA stripped
the Park Service of any ability to regulate conduct on
such waters. Pet. App. 30a, 59a-60a. Petitioner sought
Neither petitioner, nor Alaska, nor any other party has petitioned the Park Service to create an Alaska-specific exception to the
hovercraft rule, or otherwise argued that the rule should not be applied in the State because it is not suited to Alaska’s conditions. Instead, petitioner and Alaska have argued throughout this litigation
that the Secretary simply lacks authority to regulate any activity on
navigable waters within National Park System boundaries, and that
the hovercraft rule is invalid on that basis.
4
14
declaratory and injunctive relief permitting hovercraft
use on the Nation River within the Preserve. Ibid.
The district court granted summary judgment to the
government. Pet. App. 58a-81a. The court concluded
that petitioner’s challenge failed even if petitioner were
correct in his assertion that the navigable waters of the
Nation River are state-owned. It read Section 103(c) to
limit only the Park Service’s authority to impose Alaskaspecific rules, emphasizing that Section 103(c) limits
only regulations “applicable solely to public lands within
[conservation system] units,” and that “conservation
system units” is a term that refers only to units of the
National Park System in Alaska. Id. at 79a-80a (citation omitted).
3. The court of appeals affirmed on the same basis.
Pet. App. 26a-57a.
4. This Court granted a writ of certiorari and vacated the court of appeals’ decision. 136 S. Ct. at 1064,
1072. The Court concluded that Section 103(c) should
not be understood as a prohibition on Alaska-specific
regulations. It stated that the lower courts’ reading
“may be plausible in the abstract,” but that “[s]tatutory
language ‘cannot be construed in a vacuum,’ ” and must
instead be read in “ ‘context and with a view to [the
words’] place in the overall statutory scheme.’ ” Id. at
1070 (citation omitted). Looking to the overall scheme,
the Court noted that ANILCA “repeatedly recognizes
that Alaska is different,” ibid., and contains numerous
“Alaska-specific provisions,” id. at 1071. That statutory
context made it “implausible” that Congress designed
Section 103(c) to prohibit the Park Service from adopting rules or exceptions “recognizing Alaska’s unique
conditions.” Ibid.
15
The Court observed that the government, in defending the hovercraft rule, had principally relied “on very
different arguments * * * that it has longstanding authority to regulate waters within federally managed
preservation areas, and that Section 103(c) does not
take any of that authority away.” 136 S. Ct. at 1069.
The Court “d[id] not decide” the issues raised by those
arguments. Id. at 1072. Instead, it stated, the court of
appeals could address on remand whether the portions
of the Nation River within the National Park System
qualify as “public land” for purposes of ANILCA and
“whether the Park Service has authority under Section
100751(b) to regulate [petitioner’s] activities on the Nation River, even if the river is not ‘public’ land.” Ibid.
5. A unanimous panel of the court of appeals rejected
petitioner’s challenge on the first of those grounds. Pet.
App. 1a-19a. The court observed that under longstanding circuit precedent, “ANILCA’s definition of public
lands includes those navigable waters in which the
United States has an interest by virtue of the reserved
water rights doctrine.” Id. at 12a (citation and internal
quotation marks omitted); see id. at 12a-13a. Accordingly, the court observed, it had upheld application on
navigable waters of a subsistence-use priority that only
applies on “public lands” under ANILCA. Id. at 12a-13a.
The court also concluded that application of the hovercraft rule served the purposes “for which ANILCA reserved lands as conservation system units.” Id. at 14a.
Because those conclusions sufficed to defeat petitioner’s
challenge, the panel did not address whether the Park
Service’s authority to issue rules “concerning boating
and other activities on or relating to water located
16
within System units, including water subject to the jurisdiction of the United States,” 54 U.S.C. 100751(b)
(Supp. IV 2016), is applicable only on “public lands.”
Judge Nguyen, joined by Judge Nelson, also concurred. Pet. App. 20a-23a. The concurring judges stated
that in the absence of circuit precedent, they would have
upheld the Park Service’s application of the hovercraft
rule to the waters here based on the federal navigational servitude, rather than reserved water rights.
Ibid.
SUMMARY OF ARGUMENT
ANILCA created and expanded National Parks,
Wild and Scenic Rivers, Wildlife Refuges and other federal preserves in Alaska for stated purposes that include protecting “freeflowing rivers,” “waters,” and
fish. 16 U.S.C. 3101. Section 103(c) of that same enactment did not deprive the Park Service of its ability to
execute that directive by regulating conduct on navigable waters.
A. 1. Congress has authorized the Park Service to
regulate conduct on the navigable waters flowing
through the National Park System by enacting a waterfocused provision directly addressing navigable waters.
That provision states that the Park Service may make
rules “concerning boating and other activities on or relating to water located within System units, including
water subject to the jurisdiction of the United States.” 54
U.S.C. 100751(b) (Supp. IV 2016). Navigable waters are
the paradigmatic “water subject to the jurisdiction of
the United States.” Ibid.
2. ANILCA Section 103(c) does not strip the Park
Service of that authority in Alaska. Petitioner relies on
the portion of Section 103(c) providing that only “public
lands” should be “deemed to be included as a portion of
17
[a conservation system] unit.” 16 U.S.C. 3103(c). But
regardless of whether navigable waters within the
boundaries of the National Park System are public
lands “deemed to be included as a portion of [a conservation system] unit,” the Secretary’s regulation of hovercraft use and other activities on the Nation River
within the Preserve is regulation of “activities on * * *
water located within System units.”
54 U.S.C.
100751(b) (Supp. IV 2016). ANILCA makes clear that
even non-public lands are located “within System
units,” as relevant to 1976 Act authority. See 16 U.S.C.
3191(b)(7); 16 U.S.C. 3103(c).
In any event, the Park Service’s authority to regulate conduct on navigable waters under the 1976 Act
does not depend on whether navigable waters are themselves located “within” conservation system units, because the 1976 Act authorizes rules for activities not
only “on” water located within System units but also
“relating to water located within System units.”
54 U.S.C. 100751(b) (Supp. IV 2016) (emphasis added).
There is no dispute that all non-navigable stretches of
water on federal land within units of the National Park
System constitute “water located within System units.”
Ibid. And regulations that apply on the navigable waters running through such units are, at minimum, regulations “relating to” the non-navigable stretches with
which they interconnect.
3. Petitioner errs in arguing (Br. 42) that by specifying the areas that are “deemed a portion of ” CSUs,
Section 103(c) strips the Park Service of authority over
all other lands and waters. The sentence on which petitioner relies is simply definitional. And petitioner’s
reading of that sentence as a substantive bar to Park
Service regulation is countermanded by the very next
18
sentence of Section 103(c). That sentence states that
state, Native Corporation and private lands—lands that
are not “public lands”—cannot be subject to one particular class of Park Service regulations: the “regulations
applicable solely to public lands within such [conservation system] units.” 16 U.S.C. 3103(c) (emphasis
added). Petitioner’s argument would make superfluous
the tailored prohibition that Section 103(c) actually contains. Petitioner’s reading is equally incompatible with
ANILCA’s provisions concerning park management
plans, which direct the Park Service to consider “issuance or enforcement of regulations” for “privately
owned areas” within the National Park System. 16
U.S.C. 3191(b)(7). That provision recognizes that the
Secretary’s regulatory authority is not limited to “public lands” within CSUs.
B. Park Service regulation of petitioner’s conduct
on the navigable waters of the Nation River within the
Preserve would be consistent with ANILCA even if the
Park Service were limited to regulating “public lands”
under ANILCA.
ANILCA defines “public lands” to include not only
“lands” and “waters” but also “interests therein” to which
the United States holds title. 16 U.S.C. 3102(1)-(3).
ANILCA’s definition encompassing “interests” is particularly important with respect to navigable waters because it is only possible to hold interests in navigable
waters; “neither sovereign nor subject” can own the waters themselves. Federal Power Comm’n v. Niagara
Mohawk Power Corp., 347 U.S. 239, 247 n.10 (1954).
The United States holds interests in navigable waters in the National Park System in Alaska under the
reserved-water-rights doctrine. That doctrine provides
19
that when the government reserves land, it also reserves an interest in appurtenant waters when “needed
to accomplish the purpose” of the federal reservation.
Cappaert v. United States, 426 U.S. 128, 138 (1976).
There is no dispute that the reservation of lands in
Alaska as units of the National Park System carried
with it a reservation of water rights. Congress created
the National Parks in Alaska for purposes that expressly include safeguarding waters, protecting aquatic
wildlife, providing opportunities for marine recreation,
and preserving opportunities for subsistence uses such
as fishing. 16 U.S.C. 3101; see 16 U.S.C. 410hh, 410hh1. This Court has concluded that comparable provisions
reserve rights in appurtenant waters. Cappaert, 426
U.S. at 141; United States v. New Mexico, 438 U.S. 696,
709-710 (1978). And the Secretary has determined in
regulations that the federal title to lands reserved under
ANILCA includes reserved water rights in navigable waters in the National Park System.
If any ambiguity existed at the time of ANILCA’s
passage as to whether navigable waters may be subject
to rules for “public lands,” Congress removed that ambiguity when it ratified the regulations on that topic.
Congress initially delayed the implementation of subsistence-use regulations in which the Secretary determined
that the government could impose rules for “public
lands” on specified navigable waters based on the federal reserved-water-right interest. That delay gave
Alaska time to enact an ANILCA-compliant subsistence-use priority, which would have obviated the need
for the federal subsistence-use regulations. But Congress directed that if Alaska failed to enact such a priority by a particular date, the moratorium would be repealed, enabling the regulations defining the priority’s
20
geographic scope to take effect. Accordingly, when
Alaska failed to act, the Secretary’s regulations construing “public lands” were implemented. This ratification through positive legislation is “virtually conclusive”
evidence of the meaning of Section 103(c). Commodity
Futures Trading Comm’n v. Schor, 478 U.S. 833, 846
(1986).
C. This Court has emphasized that Section 103(c)
should not “be considered in a vacuum,” and that its words
should “be read in their context and with a view to their
place in the overall statutory scheme.” 136 S. Ct. at
1070 (citation omitted).
Here, ANILCA as a whole leaves no doubt that Section 103(c) did not eliminate Park Service authority to
regulate conduct on navigable waters in the National
Park System. Congress repeatedly stated in ANILCA
that by placing new areas under Park Service authority,
it intended to protect and preserve their rivers and waters. 16 U.S.C. 3101. ANILCA also identified particular navigable waters that it intended to protect. 16
U.S.C. 410hh. These provisions refute petitioner’s contention that ANILCA Section 103(c)—which nowhere
mentions navigable waters—stripped the Park Service
of its authority to protect navigable waters within the
National Park System.
ANILCA’s subsistence-use provisions also confirm
the Park Service’s authority. Congress stated that it
was the “intent and purpose” of ANILCA, 16 U.S.C
3101(c), that its subsistence-use priority enable rural
residents who engaged in “customary and traditional
fishing activities” to continue to do so, 16 U.S.C. 3113(c).
ANILCA did so by authorizing subsistence fishing
within new and expanded units of the National Park
System and directing that subsistence fishing be given
21
priority over non-subsistence uses on the “public lands”
where subsistence uses are authorized. 16 U.S.C.
410hh-2, 3114. Those provisions confirm that “public
lands” include navigable waters. ANILCA would not
ensure that rural residents engaged in traditional subsistence fishing could maintain a subsistence way of life
unless the priority applied on navigable waters, because
customary and traditional subsistence fishing takes
place on navigable waters, rather than non-navigable
ones. Alaska v. Babbitt, 72 F.3d 698, 702 (9th Cir. 1995)
(Katie John I), cert. denied, 516 U.S. 1036 and 517 U.S.
1187 (1996).
ANILCA is shot through with other provisions demonstrating that the Park Service retains authority to
regulate conduct on the navigable waters within CSUs.
For example, the statute designates a number of navigable waters “wild and scenic rivers,” to be administered under the “general statutory authorities relating
to areas of the national park system” to “protect and
enhance the values which caused [the rivers] to be” designated. 16 U.S.C. 1281. Those designations would not
make sense if ANILCA stripped the Park Service of authority to regulate navigable waters. ANILCA’s rules
limiting Park Service regulation of certain motorboat
use and commercial fishing, among others, also demonstrate that Section 103(c) did not strip the Park Service
of regulatory authority over navigable waters altogether.
D. The enactment of Section 103(c) as a correction
placed within the statute’s “Maps” section confirms that
the provision is not a sweeping withdrawal of Park Service authority. Congress would not have enacted a major reworking of Park Service authority as a subsection
in a provision principally focused on the availability of
22
physical maps and “minor” adjustments of boundary
lines. 16 U.S.C. 3103(c). The manner in which Congress
enacted Section 103(c) confirms this point. There is no
question that when initially passed by both Houses,
ANILCA left in place the Park Service’s authority to
make rules protecting the navigable waters within National Parks. Congress then added Section 103(c) through
a unanimous-consent concurrent resolution whose text
explained that it contained only “corrections.” H.R. Con.
Res. 452, 96th Cong., 2d Sess. (1980) (94 Stat. 3688).
That would not be an apt description of the major rescission of Park Service power that petitioner urges.
Moreover, Section 103(c) was described as one of
several “minor revisions,” 126 Cong. Rec. at 30,498, that
were “technical” and “non-controversial,” 125 Cong. Rec.
at 11,156, and would not “change any of the major features of ” the statute, 126 Cong. Rec. at 30,498. No
Member of Congress suggested that the provision would
rescind the Park Service’s authority to regulate conduct
on all the navigable waterways flowing through the
National Park System in Alaska. On the contrary,
Members of Congress repeatedly indicated that they
understood ANILCA would allow the Park Service to
protect the rivers within the National Park System in
Alaska.
E. Petitioner errs in contending that Section 103(c)
should be read to strip the Park Service of authority to
regulate navigable waters based on a clear-statement
rule. Both the 1976 Act and ANILCA make abundantly
clear that the Park Service retains its authority to regulate conduct on navigable waters within Alaska. And
in any event, no clear-statement rule applies to federal
regulation of conduct on navigable waters—let alone
navigable waters within the National Park System.
23
F. Text, structure, and history demonstrate that petitioner’s construction of Section 103(c) is incorrect.
But if they did not, the Secretary’s reasonable regulations would resolve any remaining ambiguity under
principles of Chevron deference. The Secretary has
adopted regulations through notice-and-comment procedures that make Park Service rules applicable on navigable waters within the National Park System, including
within Alaska. In doing so, the Secretary considered
and rejected the argument that Section 103(c) “should
be interpreted as superseding NPS authority” over navigable waters within Alaska under the 1976 Act, after
determining that such a reading was not consistent with
the statutory scheme or with ANILCA’s express objectives. 61 Fed. Reg. at 35,135. The Secretary’s conclusion is, at a minimum, a reasonable one that is entitled
to deference.
ARGUMENT
THE PARK SERVICE MAY REGULATE ACTIVITIES ON
THE NAVIGABLE WATERS WITHIN THE NATIONAL
PARK SYSTEM IN ALASKA
Congress established the National Park System to
preserve the natural resources contained in System
units, such as rivers, fish, and plant life, and to enable
the public to enjoy those resources. 54 U.S.C. 100101(a)
(Supp. IV 2016). Congress did not depart from those
aims when it set aside areas as units of the National
Park System in Alaska under ANILCA. On the contrary, Congress expressly stated in ANILCA that it
was creating and expanding areas of the National Park
System for purposes that included protecting those areas’ “freeflowing rivers,” “waters,” and “fish,” 16 U.S.C.
3101, and it identified particular navigable bodies of water that it intended to protect, see 16 U.S.C. 410hh. For
24
instance, it created the Preserve here to protect “the
environmental integrity of the entire Charley River basin,” including “lakes” and “streams,” as well as to protect “habitat for, and populations of, fish.” 16 U.S.C.
410hh(10).
ANILCA was atypical in one respect, however.
When it drew boundaries based on topographic and
other natural features, “rather than to map the Federal
Government’s landholdings,” ANILCA brought within
park boundaries millions of acres of lands that had been
conveyed, or selected for conveyance, to the State, Native Corporations, and private landholders. 136 S. Ct.
at 1066.
The provision on which petitioner relies in this case,
Section 103(c) of ANILCA, limits the Park Service’s authority to regulate these lands, but it does not strip the
Park Service of its authorities to regulate activities on
the waters, including the navigable waters, in National
Parks. Petitioner’s argument to the contrary rests on
two mistaken premises: First, that the Secretary’s authority to regulate activities on navigable waters within
the National Park System in Alaska is limited to regulating waters that qualify as “public lands” under
ANILCA, and second, that the United States lacks a
property interest in navigable waters within the National Park System, and therefore may not regulate
those waters as “public lands” under Section 103(c).
25
A. Park Service Rules Governing Conduct On Navigable
Waters Are Valid Without Regard To Whether The
United States Holds A Property Interest That Supports
Classification Of Those Waters As “Public Lands” Under
ANILCA
The Park Service’s regulation of conduct on navigable waters within National Park System areas is authorized under the 1976 statute expressly authorizing such
regulation—an authority unaffected by whether such
navigable waters qualify as “public lands” under
ANILCA.
1.
The 1976 Act authorizes the Park Service to regulate
activities occurring on navigable waters within the
National Park System
In 1976, Congress enacted legislation specifically
granting the Secretary authority to regulate conduct
“on or relating to” waters within the National Park System, including navigable waters. 54 U.S.C. 100751(b)
(Supp. IV 2016). As currently codified, the 1976 Act
provides that the Secretary may “[p]rescribe regulations * * * concerning boating and other activities on
or relating to water located within System units, including water subject to the jurisdiction of the United
States,” so long as the Secretary’s regulations are not
in derogation of the authority of the Coast Guard. Ibid.
Navigable waters are the paradigmatic “water subject
to the jurisdiction of the United States.” See, e.g., In re
Garnett, 141 U.S. 1, 15-16 (1891); The Propeller Genesee
Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 457 (1852); see
also 33 C.F.R. 2.38 (“Navigable waters of the United
States” are “[w]aters subject to the jurisdiction of the
United States”) (emphasis omitted).
There is no dispute that, in the National Park System in every State other than Alaska, this authorization
26
fully supports sanitation and noise standards for boats
and other vessels, e.g., 36 C.F.R. 3.1-3.19, rules concerning pollution and sanitation, e.g., 36 C.F.R. 2.14, 3.13,
constraints on introduction and removal of fish, plants,
and wildlife, e.g., 36 C.F.R. 2.1, 2.2, 2.3, 2.5, and, as relevant here, a bar on “operation or use of hovercraft,”
36 C.F.R. 2.17(e), on navigable waters, 36 C.F.R 1.2(a),
as well as on the non-navigable waters on federally
owned lands.
2.
Section 103(c) does not strip the Park Service of its
1976 Act authorities on navigable waters in Alaska
Section 103(c) does not abrogate throughout Alaska
the Park Service’s authority to regulate activities on or
relating to navigable waters under the 1976 Act. Petitioner rests his argument for abrogation (Br. 41-42) on
the sentence of Section 103(c) providing that “[o]nly
those lands within the boundaries of any conservation
system unit which are public lands * * * shall be deemed
to be included as a portion of such unit.” 16 U.S.C. 3103(c).
But even if “navigable waters” are not “public lands,”
the Park Service’s authority to regulate navigable waters under the 1976 Act would remain intact.
First, regardless of whether navigable waters within
the boundaries of CSUs are “deemed to be included as
a portion of [a conservation system] unit” under Section
103(c), 16 U.S.C. 3103(c) (emphasis added), the Secretary’s application on navigable waters within park
boundaries of rules concerning hovercraft (and other
subjects) would be regulation of “activities on * * * water located within System units”—as relevant to 1976
Act authority. 54 U.S.C. 100751(b) (Supp. IV 2016) (emphasis added). The 1976 Act expressly provides that the
“water located within System units[] includ[es] water
27
subject to the jurisdiction of the United States,” ibid.,
like navigable waters, see, e.g., Garnett, 141 U.S. at 15-16.
Petitioner suggests (Br. 41-42) that ANILCA Section 103(c) provides “more specific” direction excluding
navigable waters. But the 1976 Act provides the most
specific guidance on whether navigable waters (that is,
“water subject to the jurisdiction of the United States”)
constitute “water located within System units.” And
ANILCA expressly directs that new and expanded CSUs
be governed by the 1976 Act, by directing the Secretary
to administer those units under the “Organic Act, as
amended and supplemented.” 16 U.S.C. 410hh. The
1976 Act is an amendment to the Organic Act. 1976 Act
§ 1, 90 Stat. 1939. ANILCA Section 103(c), in contrast,
does not mention navigable waters.
Moreover, ANILCA Section 103(c) does not contradict the 1976 Act’s authorization. ANILCA treats the
areas that are “within” System units—to which the 1976
Act refers—as broader than the areas that are “deemed
to be included as a portion of ” System units. 16 U.S.C.
3103(c). Thus, the first sentence of Section 103(c) provides that “[o]nly those areas within the boundaries of
any conservation system units” that are “public lands”
“shall be deemed to be included as a portion of such
unit.” Ibid. (emphasis added). The boundaries of the
unit thus encompass more than its public lands. Further, the second sentence of Section 103(c) itself provides that state, Native Corporation, and private inholdings shall not “be subject to the regulations applicable solely to public lands within such units.” Ibid.
(emphasis added). The second sentence’s acknowledgment that certain rules apply “solely to public lands
28
within [conservation system] units” reflects the understanding that not all lands “within” CSUs are public
lands. Ibid.
Congress confirmed as much in the portion of
ANILCA that directs the Secretary to promulgate a
management plan for each CSU that contains a description “of privately owned areas, if any, which are within
such unit.” 16 U.S.C. 3191(b)(7) (emphasis added).
That provision again demonstrates that even non-public
lands—such as “privately owned areas”—fall “within”
CSUs, as relevant to 1976 Act authority. Ibid.
Second, the Secretary’s authority to regulate activities on navigable waters under the 1976 Act does not
depend on whether navigable waters are “within”
CSUs, because the 1976 Act authorizes rules for activities not only “on” water located within System units, but
also “relating to water located within System units.”
54 U.S.C. 100751(b) (Supp. IV 2016) (emphasis added).
The ordinary meaning of “relating to” is “expansive[].”
Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct.
1752, 1760 (2018) (citing Coventry Health Care of Mo.,
Inc. v. Nevils, 137 S. Ct. 1190, 1197 (2017); Morales v.
Trans World Airlines, Inc., 504 U.S. 374, 383-390
(1992); Ingersoll-Rand Co. v. McClendon, 498 U.S. 133,
139 (1990)). “Congress characteristically employs the
phrase to reach any subject that has ‘a connection with,
or reference to’ the topics the statute enumerates.”
Coventry, 137 S. Ct. at 1197 (citation omitted).
Regulations that apply to navigable waters within
the boundaries of the National Park System are regulations “relating to” waters within the National Park System, even setting aside whether navigable waters are
themselves “within” the CSUs. Petitioner does not dispute that all the non-navigable stretches of water on
29
federally owned lands within CSUs constitute “water located within System units,” 54 U.S.C. 100751(b) (Supp.
IV 2016). And navigable and non-navigable waters are
interconnected. Indeed, whether a waterway is navigable often varies from stretch to stretch: navigability determinations are made “on a segment-by-segment basis,” so that a single body of water can transition into
and out of navigability depending on the “[p]hysical conditions that * * * often vary significantly over the
length of a river.” PPL Mont., LLC v. Montana, 565
U.S. 576, 593-595 (2012).
Regulations of activities on navigable stretches are,
at minimum, regulations relating to those interconnected non-navigable waters, because regulating navigable stretches protects the integrity and enjoyment
of navigable and non-navigable stretches alike. See
54 U.S.C. 100101(a) (Supp. IV 2016) (describing the
Park System’s “fundamental purpose” as to “conserve
the scenery, natural and historic objects, and wild life in
System units and to provide for the enjoyment of ” the
same). Thus, rules on navigable waterways that control
such matters as sanitation, pollution, and noisy and visually obtrusive modes of transportation, see 48 Fed.
Reg. at 30,258 (hovercraft rule), have a connection to,
and effect on, the condition and enjoyment of the interwoven non-navigable stretches. See, e.g., IngersollRand Co., 498 U.S. at 139 (explaining that a law would
“ ‘relate[] to’ ” an employee benefit plan “even if the law
is not specifically designed to affect such plans, or the
effect [on such plans] is only indirect,” if the law nevertheless “ ‘has a connection with or reference to such a
plan’ ”) (citation omitted).
30
3.
Petitioner’s contrary arguments are incompatible
with ANILCA’s text
Petitioner argues (Br. 42) that the specification in
the first sentence of Section 103(c) of the land “deemed
to be included as a portion of [a conservation system]
unit,” 16 U.S.C. 3103(c), strips the Park Service of all
authority to regulate land that is not deemed a portion
of a CSU. But that is not what the first sentence says.
That sentence is only definitional. And petitioner’s
reading is directly countermanded by the very next sentence of Section 103(c). That sentence provides that
state, Native Corporation and private lands—lands that
are not “public lands”—cannot be subject to one particular class of Park Service regulations: the “regulations
applicable solely to public lands within such [conservation system] units.” 16 U.S.C. 3103(c) (emphasis
added). That tailored limitation confirms that non-public lands are not exempted from all Park Service regulations. Indeed, if the definition specifying what lands
are “deemed to be included” in a CSU by itself prohibited the Park Service from regulating non-public lands,
the prohibition on applying to state, Native Corporation, and private lands the “regulations applicable solely
to public lands within” CSUs would be superfluous.
Petitioner’s interpretation flouts other parts of
ANILCA as well. ANILCA directs the Park Service to
consider “issuance or enforcement of regulations” governing activities in “privately owned areas” within the
boundaries of National Parks in Alaska, when needed
to serve the purposes of the System unit. 16 U.S.C.
3191(b)(7). Congress would not have directed the Park
Service to consider “issu[ing] or enforc[ing]” regulations for activities in privately owned areas if Section
103(c) barred the Secretary from issuing or enforcing
31
such regulations. Ibid. Petitioner has sought to explain
this provision by stating that perhaps Congress meant
the Secretary could acquire the private land. 14-1209
Reply Br. 3-4. But a provision directing the Secretary
to consider “issuance or enforcement of regulations” for
the “activities carried out in, or proposed for,” “privately owned areas” is not plausibly read as a provision
actually directing the Secretary to consider acquiring
private lands.
Petitioner has previously argued that Section 103(c)
would be “meaningless” unless it exempted non-public
lands from all Park Service regulation. 14-1209 Reply
Br. 3; see Alaska Amicus Br. 36. Petitioner thus has
argued that unless Section 103(c) bans the application
on non-public lands of all Park Service regulations, rather than only “regulations applicable solely to public
lands,” 31 U.S.C. 3103(c), “NPS could evade any limit
on its authority merely by extending a regulation to
both federal and nonfederal lands.” 14-1209 Reply Br. 3.
That is wrong. ANILCA’s directive that certain
lands not be deemed a portion of the conservation system unit substantially constrains the Park Service’s authority. The Organic Act allows the Park Service to
make only rules that are “necessary or proper for the
use and management of System units,” 54 U.S.C.
100751(a) (Supp. IV 2016). And, as more specifically
relevant here, the 1976 Act authorizes the Park Service
only to issue regulations governing boating and other
activities on or relating to covered waters. 54 U.S.C.
100751(b) (Supp. IV 2016). Accordingly, Section 103(c)
means that the Park Service’s authority over non-public
lands within CSUs is limited to imposing certain waterrelated rules and those rules “necessary or proper for
32
the use and management of ” the public lands themselves—most notably, rules regarding activities on nonpublic lands that pose hazards for the public lands.
54 U.S.C. 100751(a) (Supp. IV 2016); see 36 C.F.R. Pt. 6
(rules regarding solid-waste disposal sites made applicable on all lands within National Park System boundaries); 36 C.F.R. 9.1 (rules regarding mining made applicable on all lands within National Park System boundaries); see also, e.g., Kleppe v. New Mexico, 426 U.S. 529,
537-538 (1976) (explaining that rules for conduct on private lands adjoining federal lands may be appropriate
to safeguard wildlife or ecological features of federal
lands, under the Property Clause). Petitioner’s suggestion that giving the language of Section 103(c) its ordinary meaning would leave the Park Service with “unfettered authority” to regulate state, Native Corporation,
and private lands, 14-1209 Reply Br. 4-5, is incorrect.
B. In Any Event, The Park Service May Enforce Regulations
Of “Public Lands” On Navigable Waters Within The
National Park System In Alaska
Even if Section 103(c) were read to strip the Park
Service of all authority over lands that are not “public
lands,” the regulations here would be valid, because of
the federal property interest in navigable waters under
the reserved-water-rights doctrine.
1.
The Park Service’s regulations of navigable waters
are regulations of “public lands” under ANILCA
because of the federal interest in those waters
ANILCA defines “public lands” as lands, waters, and
“interests therein” to which the United States holds title. 16 U.S.C. 3102(1)-(3). Accordingly, federal authority over “public lands” extends to circumstances in which
the United States holds “interests” in land or water.
33
Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 549
n.15 (1987). Thus, in Village of Gambell, the Court explained that even if the United States did not hold title
to submerged lands on the Outer Continental Shelf,
those lands could be subject to regulation as “public
lands” if the United States held an “interest[]” in those
submerged lands. Ibid.
ANILCA’s definition of “public lands” as encompassing “interests” in water is particularly important with
respect to navigable waters because, as petitioner (Br.
36) and Alaska (Amicus Br. 24-25) acknowledge, it is
only possible to own “interests” in navigable waters, rather than the navigable waters themselves. As this
Court has held, “[n]either sovereign nor subject can acquire anything more than a mere usufructuary right” in
navigable waters. Federal Power Comm’n v. Niagara
Mohawk Power Corp., 347 U.S. 239, 247 n.10 (1954).
That principle dates back to the “Institutes of Justinian,” which explained that “running waters, like the air
and the sea, were res communes—things common to all
and property of none.” United States v. Gerlach Live
Stock Co., 339 U.S. 725, 744 (1950); see also 2 William
Blackstone, Commentaries on the Laws of England 395
(1766 ed.); Memorandum of Assistant Attorney General
Olson, Federal Non-Reserved Water Rights, 6 Op. O.L.C.
328, 364-367 (1982); Waters and Water Rights § 36.02
(Amy K. Kelly, ed.) (3d ed. LexisNexis 2018). That principle is also reflected in the Submerged Lands Act,
which provides that States generally hold “title to and
ownership of the lands beneath navigable waters,” and
title to “the natural resources within such lands and waters,” 43 U.S.C. 1311, not title to the navigable waters
themselves.
34
The United States has interests in the navigable waters within and appurtenant to the federal lands inside
the National Park System in Alaska. “[W]hen the Federal Government withdraws its land from the public domain and reserves it for a federal purpose,” under the
doctrine of reserved water rights, “the Government, by
implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose
of the reservation.” Cappaert v. United States, 426 U.S.
128, 138 (1976). For example, where the United States
holds title to reservation lands in trust for an Indian
tribe, and the productivity of the reservation lands depends on irrigation, the United States’ title also includes the right to waters appurtenant to the reservation sufficient to fulfill the tribe’s needs to make agricultural use of their reservation lands. Arizona v.
California, 373 U.S. 546, 600 (1963); see Winters v.
United States, 207 U.S. 564, 576 (1908) (same). Reserved water rights exist not only when a reservation’s
purposes require withdrawal of water, but also when
those purposes require that waters be protected against
depletion or withdrawal by others. See, e.g., Cappaert,
426 U.S. at 139.
Applying those principles, the United States holds
interests in the navigable waters that are appurtenant
to or within the federal lands set aside as portions of the
National Park System in Alaska, because those waters
must be safeguarded against depletion or diversion in
order “to accomplish the purpose[s] of the reservation”
of the adjoining land. Cappaert, 426 U.S. at 138. Congress has set aside land in the National Park System for
the “fundamental purpose” of conserving the scenery,
natural objects, and wildlife therein and facilitating enjoyment of those natural features. 54 U.S.C. 100101(a)
35
(Supp. IV 2016). And in creating and expanding units
of the National Park System in Alaska specifically, Congress has again stated that its purposes include safeguarding waters, protecting aquatic wildlife, preserving
opportunities for marine recreation, and preserving opportunities for subsistence use, including subsistence
fishing. 16 U.S.C. 3101. Further, in each of the individual provisions of ANILCA that created or expanded
units of the National Park System in Alaska, Congress
stated its intent to protect particular bodies of water,
particular fish or marine mammal populations and habitats, or a combination thereof. See 16 U.S.C. 410hh,
410hh-1. Because those purposes require that the waters within CSUs be safeguarded against depletion and
diversion by others, Congress’s reservations of park
lands also reserved interests in appurtenant navigable
waters.
This Court has repeatedly explained that statements
of purpose like those at issue here reserve water rights
for conservation purposes. Cappaert, 426 U.S. at 141
(reserved water right created by preservation of land at
Devil’s Hole Monument “for the reservation of the unusual features of scenic, scientific, and educational interest,” because the proclamation stated that the pool was
home to a particular species of fish and that the pool was
of “outstanding scientific importance”); United States v.
New Mexico, 438 U.S. 696, 709-710 (1978) (determining
that particular language creating a national forest did
not create a reserved water right in part based on the
contrast between the statement of purpose for the forest and the language of the Organic Act noted above).
The Secretary has further concluded in regulations
promulgated pursuant to notice-and-comment procedures that the United States’ title to the lands reserved
36
in ANILCA includes reserved water rights in navigable
waters within the National Park System. See 64 Fed.
Reg. at 1279; 50 C.F.R. 100.3(b); see also 62 Fed. Reg.
at 66,217-66,218 (proposed rule). As a result, as the
Ninth Circuit correctly concluded in the Katie John
cases, those reserved water rights constitute an “interest[]” in the navigable waters within the National Park
System, and therefore establish that those waters are
not removed from the sphere of permissible regulation
by ANILCA Section 103(c).
Petitioner does not dispute that the United States
holds an interest in the navigable waters appurtenant
to or within federal lands in the National Park System
in Alaska under the reserved-water-rights doctrine. Instead, he argues (Br. 35-36) that those rights are not “a
title interest,” but rather “a limited reservation of sovereign power.” That is incorrect. Rights to withdraw
or maintain flows of water are “property rights,” Niagara Mohawk, 347 U.S. at 251, and their owners hold “title” to them. 3 Herbert T. Tiffany, The Law of Real
Property § 722, at 117 (3d ed. 1939) (discussing “usufructuary title” to waters); see Crum v. Mt. Shasta
Power Corp., 30 P.2d 30, 36 (Cal. 1934) (en banc) (per
curiam) (discussing riparian owners’ “usufructuary title
to the water”); Radcliff ’s Ex’rs v. The Mayor, 4 N.Y.
195, 196 (1850) (stating that an action is available
against a person who diverts water “without having title
to any thing more than the usufruct”). The federal government, moreover, holds that property right as an incident of its title to land. That is, the reserved water
rights doctrine is based on the principle that when Congress exercises its right to reserve property interests to
the government, its reservation of land carries with it
the property interest in water needed to achieve the
37
purposes for which the federal government reserved
lands in federal ownership. Cappaert, 426 U.S. at 139.
Petitioner alternatively contends (Br. 37-41) that
regulation of activities on or relating to navigable waters within the National Parks “exceeds the scope of
whatever reserved right the United States might hold,”
Br. 37. He observes that a reserved water right permits
the United States to “exclude others from appropriating water that feeds federal land or to ensure that the
federal government has access to a sufficient volume of
water to meet its statutory objectives,” Br. 38, but does
not “confer[] on the federal government plenary regulatory power over the body of water at issue,” Br. 39.
This argument misunderstands the relevance of reserved water rights under ANILCA. The government
does not argue that reserved water rights themselves
carry sovereign powers. Rather, the Park Service’s
regulatory authority derives from the Organic Act, as
amended by provisions including the 1976 Act. Reserved water rights are relevant, however, because petitioner has argued that Section 103(c) strips the Park
Service of all authority to regulate lands that are not
“public lands,” and “public lands” are defined under
ANILCA as not only lands and waters but also “interests” therein. The federal usufructuary title in navigable waters—the only type of title that it is possible to
hold in navigable waters—demonstrates that such waters may be regulated as “public lands” under Section
103(c).
2.
Congress has ratified the Secretary’s construction of
“public lands”
If ambiguity existed at the time of ANILCA’s passage regarding whether navigable waters may be sub-
38
ject to rules for “public lands,” that ambiguity was removed when Congress ratified regulations addressing
that question. The Secretary addressed the application
to navigable waters of ANILCA provisions concerning
“public lands” more than two decades ago through regulations to implement ANILCA’s subsistence-use priority. The Secretary ultimately determined that the
federal interest in the navigable waters in the National
Park System in Alaska permitted application on those
waters of ANILCA’s subsistence-use priority for “public lands.” See Alaska v. Babbitt, 72 F.3d 698, 702 (9th
Cir. 1995) (Katie John I) (explaining and adopting Secretary’s conclusion that “public lands” under ANLICA
include waters in which the United States has “reserved
water rights”), cert. denied, 516 U.S. 1036 and 517 U.S.
1187 (1996); 64 Fed. Reg. at 1276 (identifying navigable
waters within the National Park System in Alaska as
“Federal land units in which reserved water rights exist,” and consequently as “public lands”).
Congress ultimately ratified those regulations. Appropriations measures initially delayed the full implementation of the Secretary’s definition of “public lands”
to reach navigable waters. Under the moratoria, the
Secretary was permitted to enforce subsistence-use
rules only in limited areas, rather than in all the areas
identified as “public lands” through the regulations. 5
Those delays gave Alaska an opportunity to obviate the
See Department of the Interior and Related Agencies Appropriations Act, 1996, Pub. L. No. 104-134, Tit. I, § 101(c) [tit. III, § 336],
110 Stat. 1321-210; Department of the Interior and Related Agencies Appropriations Act, 1998, Pub. L. No. 105-83, Tit. III, § 316(a),
111 Stat. 1592; Department of the Interior and Related Agencies
Appropriation Act, 1999, Pub. L. No. 105-277, Div. A, § 101(e)
[tit. III, § 339(a)], 112 Stat. 2681-295.
5
39
need for the federal subsistence-use regulations entirely, by enacting an ANILCA-compliant subsistenceuse priority. See 16 U.S.C. 3115(d) (providing that the
Secretary shall not implement the subsistence-use priority if the State chooses to implement the priority
itself ). In 1999, however, Congress directed that
if Alaska did not enact a measure to implement
ANILCA’s subsistence-use priority “before October 1,
1999,” those geographic limits would be repealed, allowing the rules specifying the geographic scope of the subsistence-use priority for public lands to become operative. Department of the Interior and Related Agencies
Appropriations Act, 1999, Pub. L. No. 105-277, Div. A,
§ 101(e) [tit. III, § 339(b)], 112 Stat. 2681-296. When
Alaska did not enact a rural subsistence-use priority by
the date specified, the regulations applying the priority
to specified navigable waters took effect.
Congress’s actions present an unusually clear case of
ratification. When Congress simply reenacts statutory
language without change, against the backdrop of an
authoritative construction by the responsible agency,
Congress can be understood to have ratified the agency’s
interpretation. Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 322
(2012). Here, however, “Congress has not just kept its
silence by refusing to overturn [an] administrative construction,” but has instead “ratified [the administrative
construction] with positive legislation,” Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 846 (1986),
by providing for regulations defining “public lands” to
take effect if the State failed to enact a subsistence-use
priority within a specified period. This Court has explained that when Congress ratifies an administrative
construction with positive legislation, courts “cannot but
40
deem [the administrative] construction virtually conclusive.” Ibid.
C. Surrounding Provisions Of ANILCA Confirm That Section 103(c) Did Not Strip The Park Service Of Authority
To Regulate Activities On Navigable Waters Within
The National Park System
In considering Section 103(c) two years ago, this
Court emphasized the importance of construing the
provision in light of the “context of the statute as a
whole.” 136 S. Ct. at 1070. It explained that “[s]tatutory language ‘cannot be construed in a vacuum,’ ” and
that the words of Section 103(c) must “ ‘be read in their
context and with a view to their place in the overall statutory scheme.’ ” Ibid. (quoting Roberts v. Sea-Land
Servs., Inc., 566 U.S. 93, 101 (2012)). Here, statutory
context removes any doubt that Congress understood
and intended that the Park Service could adopt rules to
protect navigable waters and regulate conduct on or relating to those waters within the National Park System
in Alaska.
1.
Surrounding provisions demonstrate that the Park
Service retains authority to regulate navigable
waters within the National Park System
Numerous provisions of ANILCA demonstrate that
the Park Service retains authority to regulate conduct
on navigable waters within the boundaries of the National Park System. First, as noted above, Congress
stated clearly (and repeatedly) in ANILCA that its purposes in placing new areas under the Park Service’s
regulatory authority included “to protect and preserve
* * * rivers,” 16 U.S.C. 3101(b), to protect the “waters”
in the new and expanded units, 16 U.S.C. 3101(a), and
to preserve opportunities for canoeing and fishing on
41
“freeflowing rivers,” 16 U.S.C. 3101(b). It did the same
in the statements of purpose regarding particular units,
including in designations that state an intent to protect
navigable waters such as the “Aniakchak River,” 16
U.S.C. 410hh(1), the Kobuk and Salmon Rivers, 16
U.S.C. 410hh(6), and “the Noatak River,” 16 U.S.C.
410hh(8), and stretches of “the Alsek River,” 16 U.S.C.
410hh-1(1). Indeed, Congress directed that the Secretary manage the Yukon-Charley Rivers National Preserve, in which petitioner was operating his hovercraft,
“[t]o maintain the environmental integrity of the entire
Charley River basin, including streams, lakes, and
other natural features, in its undeveloped natural condition for public benefit and scientific study, to protect
habitat for, and populations of, fish and wildlife.” 16
U.S.C. 410hh(10) (emphasis added). Those provisions
demonstrate that Congress regarded rivers and other
waters as central parts of System units. And they confirm that the Park Service is permitted under ANILCA
to issue rules to protect and preserve the waters, including navigable waters, within the National Park System.
Second, ANILCA’s provisions relating to subsistence use demonstrate that Congress regarded navigable waters within the National Park System as subject
to regulation as public lands. Congress stated that it
sought through ANILCA to “provide the opportunity
for rural residents engaged in a subsistence way of life,”
16 U.S.C. 3101(c), including “customary and traditional” fishing activities, 16 U.S.C. 3113, “to continue to
do so,” 16 U.S.C. 3101(c). It described “the continuation
of the opportunity for subsistence uses by rural residence of Alaska * * * on the public lands” as “essential”
to both Native and non-Native Alaskans. 16 U.S.C.
42
3111(1). And it stated that there was no practical alternative “to 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 therefore authorized subsistence
hunting and fishing activities within many units of the
National Park System and provided a priority for subsistence fishing over non-subsistence fishing on all
“public lands.” 16 U.S.C. 3114. Those provisions demonstrate that the “public lands” to which the subsistenceuse priority applies include navigable waters, because
the “customary and traditional” fishing activities that
Congress specified the priority would protect, 16 U.S.C.
3113, are conducted “in navigable waters,” rather than
non-navigable ones. Katie John I, 72 F.3d at 702. Congress could not have “[p]rovide[d] the opportunity for
rural residents engaged in a subsistence way of life to
continue to do so,” 16 U.S.C. 3101(c), without protecting
the “customary and traditional” fishing activities, 16
U.S.C. 3113, that are part of a “subsistence way of life,”
16 U.S.C. 3101(c).
Third, Congress again made clear that ANILCA preserves the Secretary’s authority to regulate conduct on
navigable waters in provisions designating particular rivers to be part of the National Park System. Title VI of
ANILCA decrees that 26 rivers are “to be administered
by the Secretary of the Interior” as “wild and scenic rivers within the national park system” or “wild and scenic
rivers within national wildlife refuge system,” §§ 601603, 94 Stat. 2412-2413 (capitalization omitted). Under
the Wild and Scenic Rivers Act, 16 U.S.C. 1271 et seq.,
a river that Congress designates to be “administered by
the Secretary of the Interior through the National Park
Service” is made “part of the national park system,” and
43
is to be administered pursuant to the “general statutory
authorities relating to areas of the national park system,” 16 U.S.C. 1281(c), for the purpose of “protect[ing]
and enhanc[ing] the values which caused [the river] to
be” designated, 16 U.S.C. 1281(a). Such designations
thus reflect Congress’s intent that the Park Service
could in fact administer the rivers pursuant to its general statutory authorities. Those designations cannot
be reconciled with a reading of ANILCA Section 103(c)
that would immunize navigable waters from federal regulation by placing them outside of the relevant CSU.
See 16 U.S.C. 3102(4) (defining “conservation system
unit” to include “any unit in Alaska of the National Park
System” or “National Wild and Scenic Rivers Systems”).
Fourth, ANILCA again establishes that it did not rescind the Park Service’s authority to regulate activities
on navigable waters within the National Park System in
Alaska through provisions that either confirm or constrain Park Service authority to regulate individuals’
passage along particular navigable waters, motorboating, and fishing. For example, ANILCA provides that:
• Motorboats may be used in conservation systems
units “subject to reasonable regulations by the
Secretary to protect the natural and other values
of the conservation system units,” 16 U.S.C. 3170;
see 16 U.S.C. 3121 (permitting motorboats “on
the public lands”);
• The Secretary may issue “regulations prescribing
* * * restrictions relating to * * * fishing,”
16 U.S.C. 3201; see also 16 U.S.C. 3204;
• “[P]ermanent improvements and facilities such as
fishways, fish weirs, fish ladders, fish hatcheries,
44
spawning channels, stream clearance, egg planting, and other accepted means of maintaining, enhancing, and rehabilitating fish stocks may be
permitted” in wildlife refuges, but only “[s]ubject
to reasonable regulations,” 16 U.S.C. 3203(b);
• “The Secretary may take no action to restrict unreasonably the exercise of valid commercial fishing rights or privileges obtained pursuant to existing law,” ANILCA § 205, 94 Stat. 2384; and
• “[S]ubject to reasonable regulation, the Secretary
shall administer the [Yukon Delta Wildlife] refuge so as to not impede the passage of navigation
and access by boat on the Yukon and Kuskokwim
Rivers,” ANILCA § 303, 94 Stat. 2393.
These provisions again confirm that Section 103(c)
does not divest the Park Service of authority to regulate
conduct on navigable waters within the boundaries of
the National Park System. Congress would not have
barred the Secretary from impeding “passage of navigation and access by boat on the Yukon and Kuskowim
Rivers” within the Yukon Delta Wildlife Refuge if the
Secretary lacked authority to regulate conduct on navigable waters—because the Yukon and Koskowim Rivers within the Yukon Delta Wildlife Preserve are navigable. See, e.g., United States v. Wilde, No. 10-cr-21,
2013 WL 6237704 (D. Alaska Dec. 3, 2013) (noting that
Yukon River is navigable); Bureau of Land Management, Final Summary Report: Federal Interest in
Lands Underlying Kuskokwim River in the Kuskokwim Bay Subregion, Alaska. 6 And statutory safeguards for motorboating and “valid commercial fishing
https://www.blm.gov/sites/blm.gov/files/LandsRealty_Alaksa_
RDI_KuskokwimRiver_FinalReport_05012013.pdf.
6
45
rights” likewise reflect an understanding that the Park
Service would have regulatory authority over activities
on navigable waters within the National Park System,
because motorboating and commercial fishing are not
activities that occur with any frequency on waters that
are not navigable.
Petitioner’s view of Section 103(c) as withdrawing
Park Service authority over activities on navigable waters is equally undermined by the provision concerning
ANILCA’s “[e]ffect on existing rights; water resources,”
16 U.S.C. 3207, that petitioner himself invokes (Br. 33).
Section 3207 specifies that “[n]othing in [ANILCA]
shall be construed as limiting or restricting the power
and authority of the United States,” and then provides
—in a manner incompatible with petitioner’s position—
that “[n]othing in this Act shall be construed * * * as
affecting in any way any law governing * * * use of
* * * water on lands within the State of Alaska.” Petitioner contradicts those instructions by construing Section 103(c) to affect—indeed, to withdraw entirely—the
Secretary’s preexisting authorities under the Organic
Act, as amended by the 1976 Act, to regulate uses of water within the National Park System in Alaska, including in National Parks that predated ANILCA.
Petitioner disregards that portion of Section 3207,
but invokes (Br. 33) the portion stating that nothing in
ANILCA should be understood “as expanding or diminishing Federal or State jurisdiction, responsibility, interests, or rights in water resources development or
control.” 16 U.S.C. 3207(2). That provision does not
bear on the Secretary’s authority here, because rules
concerning such matters as sanitation, pollution, and
transportation on waters in the National Park System
46
do not deprive the State or federal government of “jurisdiction, responsibility, interests, or rights” in the “resources” contained within water. See ibid. (referring to
“water resources” that can be “develop[ed]”); see also
16 U.S.C. 3207(3) (discussing “Federal agencies which
are authorized to develop or participate in the development of water resources or to exercise licensing or regulatory functions in relation thereto”). Petitioner’s invocation of Section 3207(2) appears to rest on a misreading of the provision (Br. 33) as discussing “water resources, development, or control” rather than “water
resources development or control.” 16 U.S.C. 3207(2).
In any event, if regulation of boating and other activities
were a matter of “water resources development or control,” ibid., interpreting Section 103(c) to rescind the
Park Service’s authority over those activities would “diminish[] Federal * * * jurisdiction, responsibility, interests, or rights” in those matters. Ibid.
More generally, petitioner’s approach to Park Service authority is implausible. Petitioner appears to believe that Congress intended Section 103(c) to create a
patchwork of jurisdiction, in which the Park Service
would be free to regulate pursuant to its longstanding
authorities on non-navigable stretches, but would be
divested of its authorities where the waters become
navigable—and perhaps only for limited stretches, if
the waters then became non-navigable again. That approach, however, would often make the duties of Park
Service rangers impossible. Determining navigability
requires analysis of whether particular stretches of water could be used for trade and travel at the time of
statehood. See PPL Montana, 565 U.S. at 600. For
many waters, those determinations are difficult, and in
Alaska, the remoteness of rivers and the fact that many
47
rivers debouch from glaciers and flow shallowly across
the landscape for some distance can make navigability
determinations even more piecemeal and complex.
Thus, navigability determinations depend in many instances on information that “is both time consuming and
expensive” to obtain, particularly in light of “Alaska’s
undeveloped and remote character”; require application
of a navigability test that has been the subject of substantial disagreement when applied “to the specific uses
of Alaska’s lakes and streams”; and yield an answer that
is “always subject to legal challenge.” Alaska Dep’t of
Natural Res., Mining, Land & Water, State Policy on
Navigability, http://dnr.alaska.gov/mlw/nav/policy. It
is improbable that Congress intended to make the ability of Park Service rangers to enforce rules within the
National Park System turn on such costly and uncertain
determinations.
2.
Neither petitioner nor Alaska persuasively accounts
for these provisions
Neither petitioner nor amicus Alaska persuasively
reconciles their interpretations of Section 103(c) with
these numerous surrounding statutory provisions. Petitioner acknowledges (Br. 34 & n.4) that the application
on navigable waters of the subsistence-use priority limited to public lands has a “foothold in the statute” (citation omitted). But he fails to explain how “public lands”
could have a different meaning in the subsistence-use
provision than it does elsewhere in ANILCA. 7
Petitioner briefly suggests (Br. 34) that the subsistence-use provisions aid his argument because ANILCA specifies that “[n]othing
in [ANILCA] is intended to enlarge or diminish the responsibility
and authority of the State of Alaska for management of fish and
wildlife on the public lands” except as is provided in the subsistenceuse provisions. 16 U.S.C. 3202(a). But in declining to rescind the
7
48
Beyond this, petitioner addresses the subsistenceuse priority, the statutory statements of purpose, and
the other provisions premised on Park Service authority over navigable waters only by invoking (Br. 29) the
principle that “Congress did not intend to pursue conservation at all costs.” That observation does not aid
petitioner. ANILCA does demonstrate a commitment
to balancing conservation goals against other aims, including through Alaska-specific safeguards for private
and commercial activity that the Park Service might
otherwise have prohibited for conservation reasons.
See 136 S. Ct. at 1071 (discussing protections for motorboating, commercial fishing, and other examples);
pp. 43-45, supra. But ANILCA’s statements of purpose, subsistence-use priority, and limited protections
for activities such as commercial fishing and motorboating all demonstrate that Congress struck a balance between conservation and other goals under which the
Park Service generally retained authority to regulate
conduct on navigable waters.
Alaska does not address most of the water-related
provisions discussed above, but it acknowledges (Br. 2935) that the subsistence-use priority on “public lands”
within CSUs must be applied on navigable waters
in light of the provisions explaining the priority’s intended operation. Br. 31-32. It agrees that “this Court
should preserve the Katie John precedents” holding as
much. Br. 31. Alaska nevertheless posits that this
Court could interpret ANILCA as rescinding within
Park Service’s preexisting authority to regulate boating and other
activities on or relating to navigable waters within National Parks
in Alaska, ANILCA did not “diminish the responsibility and authority of the State of Alaska for management of fish and wildlife on
public lands.” Ibid.
49
Alaska the Park Service’s authority to regulate conduct
on navigable waters within the National Park System
by giving “public lands” one meaning in the context of
the subsistence-use-related sections of ANILCA and a
different meaning in the context of Section 103(c).
ANILCA, however, forecloses that course: the statute contains a definitional section that sets out the meaning of “public lands” throughout ANILCA. 16 U.S.C.
3102(1)-(3) (defining “public lands,” in relevant part, as
“lands, waters, and interests therein,” “the title to which
is in the United States”). Accordingly, this Court held
in Village of Gambell that “the same definition of ‘public
lands’ which defines the scope of Title VIII”—ANILCA’s
subsistence-use provisions—“applies as well to the rest
of the statute,” except where the definitional provision
itself provides to the contrary. 480 U.S. at 550-551.
That holding reflects the principle that “[w]hen a statute includes an explicit definition, [the Court] must follow that definition.” Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767, 776-777 (2018) (citation omitted).
And it reflects that a statute “[l]eav[es] no doubt as to
[a] definition’s reach” when it contains a directive concerning the provisions as to which a definition applies,
as ANILCA does. Id. at 777; see 16 U.S.C. 3102 (specifying that definitions of specified terms, including “[t]he
term ‘public lands,’ ” apply “[a]s used in this Act (except
that in titles IX and XIV, the following terms shall have
the same meaning as they have in the Alaska Native
Claims Settlement Act and the Alaska Statehood Act)”)
(citation omitted).
Alaska invokes (Br. 33-34) Utilities Air Regulatory
Group v. EPA, 134 S. Ct. 2427 (2014), which found a
statutory definition did not govern certain provisions
50
when it was “plain as day” that the term carried a narrower meaning in those provisions and that application
of the statutory definition would be “incompatible” with
the statute’s “regulatory structure.” Id. at 2240, 2242.
But Village of Gambell rejected that approach to
ANILCA’s definition of “public lands” for good reason:
the circumstances in which “a defined meaning can be
replaced with another permissible meaning of [a] word
on the basis of other textual indications” are “very
rare”; “the definition is virtually conclusive.” Scalia &
Garner 228. Here, there are no compelling indicators
that “public lands” is used differently in different provisions of ANILCA. On the contrary, as discussed
above, multiple provisions of ANILCA—not just the
subsistence-use provision—indicate that the government’s interest in navigable waters was understood to
permit regulation of those waters as “public lands.”
D. The Placement And History Of Section 103(c) Confirm
That The Provision Does Not Rescind Park Service
Authorities Over Navigable Waters
1. The placement of Section 103(c) provides additional evidence that it is not to be read as the sweeping
withdrawal of the Park Service’s authority that petitioner claims. Rather than placing Section 103(c) in one
of the ANILCA provisions setting forth or limiting the
Secretary’s substantive authority, Congress placed it in
a section entitled “Maps.” 16 U.S.C. 3103. That section
is principally focused on the availability of physical maps.
Its provisions require the Secretary to place maps “on
file and available for public inspection,” 16 U.S.C. 3103(a),
to arrange for maps and descriptions to be placed on file
with Congress and published in the Federal Register,
and to address “minor” adjustments of boundary lines,
16 U.S.C. 3103(b). Congress does not “hide elephants
51
in mouseholes.” Whitman v. American Trucking Ass’ns,
531 U.S. 457, 468 (2001). Accordingly, Congress’s placement of Section 103(c) as a third subsection in the Maps’
section of ANILCA reinforces that Section 103(c)
should not be read as an implicit revocation of the Park
Service’s longstanding authority to regulate activities
on navigable waters within the boundaries of the National Park System.
2. The manner in which Congress added Section
103(c) to ANILCA reinforces that conclusion. When
ANILCA was initially passed by the Senate and House
of Representatives, it left the Park Service’s authority
over navigable waters in place, expressly directing the
Secretary to “administer the lands, waters, and interests” within new CSUs “as new areas of the National
Park System” under the provisions of the Organic Act
which includes the 1976 Act. See 16 U.S.C. 410hh-2.
Congress then added Section 103(c) to ANILCA as part
of a concurrent resolution, the text of which explained
that it contained only “corrections.” H.R. Con. Res. 452,
96th Cong., 2d Sess. (1980) (94 Stat. 3688). A “correction[]” would not be an apt description of a significant
withdrawal of Park Service authorities. And it is improbable that a Congress seeking to protect waters, rivers, and fish in new and expanded National Parks would
have voted to rescind Park Service authority to regulate
activities on navigable waters by a unanimous vote of
both Houses.
3. The legislative record supplies still further evidence that Section 103(c) was not designed to make any
broad change in the Park Service’s authority over navigable waters. In offering the concurrent resolution that
added Section 103(c) to ANILCA, the sponsor in the
House of Representatives emphasized that no portion
52
of the resolution would “change any of the major features of the Alaska National Interest Lands Conservation Act” or “have the effect of altering provisions related to conservation areas.” 126 Cong. Rec. at 30,498
(statement of Rep. Udall). And in both the House and
the Senate, Section 103(c) was labeled a “minor revision[]”
—a label plainly inapplicable to an amendment that
would rescind or revise longstanding authority to regulate navigable waters throughout National Parks System Units in the State of Alaska. Ibid.; see 126 Cong.
Rec. 31,108 (1980); see also 125 Cong. Rec. 11,156 (1979)
(statement of Rep. Seiberling) (describing amendment
to add text of Section 103(c) to bill as “technical,” “noncontroversial,” and not a “substantive amendment[]”).
Petitioner plumbs the legislative record (Br. 7-10)
for statements in which Members of Congress noted
ANILCA’s distinction between “public lands” and “State,
native, or private land.” But petitioner identifies no occasion at any point when any Member of Congress suggested that rivers, lakes, and other navigable waters
that ANILCA sought to protect through the creation
and expansion of CSUs would be excluded from Park
Service regulation. To the contrary, Members repeatedly indicated that they understood that ANILCA
would enable federal park managers to safeguard the
rivers placed within park units, as the statute itself makes
clear. See, e.g., H.R. Rep. No. 97, 96th Cong., 1st Sess.
Pt. 1, at 457 (1979); 125 Cong. Rec. 14,673 (1978) (Rep.
Kostmayer); 125 Cong. Rec. 11,178 (1979) (Rep. Bereuter).
53
E. Petitioner Errs In Urging A Clear-Statement Rule As A
Basis For Rescinding The Park Service’s Authorities
Over Navigable Waters
Petitioner urges (Br. 31-32) that the Court should reject application of Park Service rules to navigable waters in Alaska based on a clear-statement rule. He invokes the principle that a clear statement is required
when a statute “alter[s] the ‘usual constitutional balance between the States and the Federal Government.’ ”
Br. 32 (quoting Gregory v. Ashcroft, 501 U.S. 452, 460
(1991)).
That argument lacks merit. In the first place, the
1976 Act and ANILCA make abundantly clear in numerous provisions that the Park Service’s authority applies to navigable waters in the National Park System.
Under the 1976 Act, there is no dispute that the Park
Service may generally regulate such matters as sanitation, pollution, and watercraft use on navigable waters
within the National Park System. In arguing that
ANILCA Section 103(c) withdrew the authority that the
1976 Act supplies, within the State of Alaska, it is petitioner who seeks to alter a federal-state balance Congress has clearly established. Moreover, for the reasons described above, ANILCA itself also makes clear
that the Park Service retains its 1976 Act authorities
over navigable waters within the National Park System.
In any event, there is no basis for a clear-statement
rule in the context of federal regulation of navigable waters. Since the Founding Era, the “usual constitutional
balance” concerning navigable waters has been one of
joint federal and state control, Pet. Br. 32 (citation omitted). As a general matter, each State holds “title within
its borders to the beds of waters [that were] navigable”
54
at the time of statehood, but its authority to govern activities on navigable waters is “subject * * * to ‘the paramount power of the United States to control such waters’ ” under the dominant federal navigational servitude. PPL Montana, 565 U.S. at 591 (citation omitted);
see United States v. Rands, 389 U.S. 121, 127 (1967) (argument that federal regulation of activity on navigable
waters “subverts the policy of the Submerged Lands
Act” is “misplaced,” because that act “expressly recognized that the United States retained ‘all its navigational servitude and rights in and powers of regulation
and control of said lands and navigable waters for the
constitutional purposes of commerce, navigation, national defense, and international affairs, all of which
shall be paramount to, but shall not be deemed to include, proprietary rights of ownership’ ”) (citation omitted); see also Alaska v. United States, 545 U.S. 75, 116117 (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.”). This “paramount” power applies to
regulation of navigable waters “irrespective of whether
navigation” itself “is involved.” Kaiser Aetna v. United
States, 444 U.S. 164, 173-174 (1979).
Petitioner points to no case in which this Court has
required a “clear statement” to uphold a federal statute
exercising this traditional power to regulate conduct on
navigable waters. Petitioner invokes (Br. 32) Solid
Waste Agency v. United States Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), and Rapanos v.
55
United States, 547 U.S. 715 (2006). But those cases applied a clear-statement rule in determining how far the
Clean Water Act extends beyond traditional navigable
waters. While the Clean Water Act states that it applies
on “navigable waters,” “the meaning of ‘navigable waters’ in the [Clean Water] Act is broader than the traditional understanding of the term.” Rapanos, 547 U.S.
at 731 (plurality opinion) (citation omitted); see, e.g.,
United States v. Riverside Bayview Homes, Inc., 474 U.S.
121, 133 (1985). SWANCC and Rapanos addressed how
far beyond traditional navigable waters the statute extended, with each case rejecting extensions to particular non-navigable waters. SWANCC, 531 U.S. at 162,
171 (addressing “nonnavigable” intrastate waters used
as migratory bird habitats); Rapanos, 547 U.S. at 735
(plurality opinion) (agreeing that Clean Water Act jurisdiction extends beyond traditional navigable waters,
but stating that the Court need not decide how far because “typically dry channels” receiving intermittent
flows of water are not covered). And a clear-statement
rule would be especially inappropriate in the context of
waters within the National Park System—where the
federal government has interests as a property-holder
in addition to as a sovereign.
F. The Secretary’s Interpretation Would Warrant Chevron Deference If There Were Ambiguity In The Statutory Scheme
The text and structure of the 1976 Act and of Section
103(c) clearly establish that Section 103(c) does not rescind the Park Service’s authority to regulate conduct
on navigable waters within CSUs. But if ambiguity existed, the Secretary’s formal rulemaking would settle
the matter. The Secretary is entitled to deference concerning reasonable interpretations of ANILCA and the
56
1976 Act. See National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 666 (2007).
Here, the Secretary has issued regulations through
notice-and-comment procedures that make Park Service rules applicable on navigable waters within the
boundaries of the National Park System, including within
Alaska. 36 C.F.R. 1.2(a)(3); see 61 Fed. Reg. at 35,136.
In doing so, the Secretary considered and rejected the
argument that Section 103(c) “should be interpreted as
superseding NPS authority” under the 1976 Act to
“promulgate and enforce regulations concerning boating and related activities * * * on navigable waters
within park boundaries.” 61 Fed. Reg. at 35,135. The
Secretary determined that Section 103(c) did not “preempt[] NPS’s well-established authority on navigable
waters,” emphasizing that ANILCA “charged NPS to
protect populations of fish and wildlife and habitat that
necessarily includes the great river systems running
through and within the parks (ANILCA Title II).” Ibid.
The Secretary rejected petitioner’s interpretation of
Section 103(c), “which was characterized by Congress
as a minor or technical provision,” after reading Section
103(c) in “the context of the whole act.” Ibid.
The Secretary has also rejected petitioner’s arguments regarding Section 103(c) in other notice-andcomment regulations. First, the Secretary has determined that Section 103(c) does not bar application on
non-public lands of the narrow class of regulations validly written to apply to both public and non-public lands
within the National Park System. 59 Fed. Reg. at
65,950. The Secretary has explained that such regulations are not rules that apply “solely to public lands
within” the parks. Ibid. (quoting 16 U.S.C. 3103(c)).
Moreover the Secretary explained, while non-public
57
lands are not “ ‘a portion of ’ the [conservation system]
unit,” such lands are still “ ‘within’ [the] unit.” 59 Fed.
Reg. at 65,950. See pp. 26-29, supra (explaining that
Section 103(c) is not relevant to 1976 Act authority for
this reason). In addition, as noted above, in implementing ANILCA’s subsistence-use priority, the Secretary
adopted regulations, subsequently ratified by Congress, reflecting the reasonable conclusion that “public
lands” include navigable waters within the National
Park System in Alaska, by virtue of federal reserved
water rights. 64 Fed. Reg. at 1276; see pp. 32-37, supra
(explaining that the federal interest in navigable waters
supports regulation of those waters as “public lands” for
this reason). At minimum, these conclusions are reasonable and entitled to deference.
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JEFFREY H. WOOD
Acting Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
RACHEL P. KOVNER
Assistant to the Solicitor
General
ANDREW C. MERGEN
ELIZABETH ANN PETERSON
Attorneys
SEPTEMBER 2018
APPENDIX
1.
16 U.S.C. 3101 provides:
Congressional statement of purpose
(a)
Establishment of units
In order to preserve for the benefit, use, education,
and inspiration of present and future generations certain lands and waters in the State of Alaska that contain nationally significant natural, scenic, historic, archeological, geological, scientific, wilderness, cultural,
recreational, and wildlife values, the units described in
the following titles are hereby established.
(b)
Preservation and protection of scenic, geological,
etc., values
It is the intent of Congress in this Act to preserve
unrivaled scenic and geological values associated with
natural landscapes; to provide for the maintenance of
sound populations of, and habitat for, wildlife species of
inestimable value to the citizens of Alaska and the
Nation, including those species dependent on vast relatively undeveloped areas; to preserve in their natural
state extensive unaltered arctic tundra, boreal forest,
and coastal rainforest ecosystems; to protect the resources related to subsistence needs; to protect and
preserve historic and archeological sites, rivers, and
lands, and to preserve wilderness resource values and
related recreational opportunities including but not
limited to hiking, canoeing, fishing, and sport hunting,
within large arctic and subarctic wildlands and on free-
(1a)
2a
flowing rivers; and to maintain opportunities for scientific research and undisturbed ecosystems.
(c)
Subsistence way of life for rural residents
It is further the intent and purpose of this Act consistent with management of fish and wildlife in accordance with recognized scientific principles and the purposes for which each conservation system unit is established, designated, or expanded by or pursuant to this
Act, to provide the opportunity for rural residents engaged in a subsistence way of life to continue to do so.
(d)
Need for future legislation obviated
This Act provides sufficient protection for the national interest in the scenic, natural, cultural and environmental values on the public lands in Alaska, and at
the same time provides adequate opportunity for satisfaction of the economic and social needs of the State
of Alaska and its people; accordingly, the designation
and disposition of the public lands in Alaska pursuant
to this Act are found to represent a proper balance
between the reservation of national conservation system units and those public lands necessary and appropriate for more intensive use and disposition, and thus
Congress believes that the need for future legislation
designating new conservation system units, new national conservation areas, or new national recreation
areas, has been obviated thereby.
3a
2.
16 U.S.C. 3102 provides in pertinent part:
Definitions
As used in this Act (except that in titles IX and XIV
the following terms shall have the same meaning as
they have in the Alaska Native Claims Settlement Act
[43 U.S.C. 1601 et seq.], and the Alaska Statehood
Act)—
(1) The term “land” means lands, waters, and
interests therein.
(2) The term “Federal land” means lands the title to which is in the United States after December
2, 1980.
(3) The term “public lands” means land situated
in Alaska which, after December 2, 1980, are Federal lands, except—
(A) land selections of the State of Alaska
which have been tentatively approved or validly
selected under the Alaska Statehood Act and
lands which have been confirmed to, validly selected by, or granted to the Territory of Alaska
or the State under any other provision of Federal
law;
(B) land selections of a Native Corporation
made under the Alaska Native Claims Settlement
Act [43 U.S.C. 1601 et seq.] which have not been
conveyed to a Native Corporation, unless any
such selection is determined to be invalid or is
relinquished; and
4a
(C) lands referred to in section 19(b) of the
Alaska Native Claims Settlement Act [43 U.S.C.
1618(b)].
(4) The term “conservation system unit” means
any unit in Alaska of the National Park System, National Wildlife Refuge System, National Wild and
Scenic Rivers Systems, National Trails System, National Wilderness Preservation System, or a National Forest Monument including existing units,
units established, designated, or expanded by or
under the provisions of this Act, additions to such
units, and any such unit established, designated, or
expanded hereafter.
*
3.
*
*
*
*
16 U.S.C. 3103 provides:
Maps
(a)
Filing and availability for inspection; discrepancies; coastal areas
The boundary maps described in this Act shall be on
file and available for public inspection in the office of
the Secretary or the Secretary of Agriculture with regard to the National Forest System. In the event of
discrepancies between the acreages specified in this
Act and those depicted on such maps, the maps shall be
controlling, but the boundaries of areas added to the
National Park, Wildlife Refuge and National Forest
Systems shall, in coastal areas not extend seaward be-
5a
yond the mean high tide line to include lands owned by
the State of Alaska unless the State shall have concurred in such boundary extension and such extension
is accomplished under the notice and reporting requirements of this Act.
(b)
Changes in land management status; publication in
Federal Register; filing; clerical errors; boundary
features and adjustments
As soon as practicable after December 2, 1980, a
map and legal description of each change in land management status effected by this Act, including the National Wilderness Preservation System, shall be published in the Federal Register and filed with the Speaker
of the House of Representatives and the President of the
Senate, and each such description shall have the same
force and effect as if included in this Act: Provided,
however, That correction of clerical and typographical
errors in each such legal description and map may be
made. Each such map and legal description shall be
on file and available for public inspection in the office of
the Secretary. Whenever possible boundaries shall
follow hydrographic divides or embrace other topographic or natural features. Following reasonable
notice in writing to the Congress of his intention to do
so the Secretary and the Secretary of Agriculture may
make minor adjustments in the boundaries of the areas
added to or established by this Act as units of National
Park, Wildlife Refuge, Wild and Scenic Rivers, National Wilderness Preservation, and National Forest Systems and as national conservation areas and national
6a
recreation areas. For the purposes of this subsection,
a minor boundary adjustment shall not increase or decrease the amount of land within any such area by
more than 23,000 acres.
(c)
Lands included within unit; acquisition of land by
Secretary
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.
4.
16 U.S.C. 3191(b) provides in pertinent part:
Management plans
(b)
National Park service plan requirements
Each plan for a unit established, redesignated, or
expanded by subchapter LIX-F of chapter 1 of this title
shall identify management practices which will carry
out the policies of this Act and will accomplish the purposes for which the concerned National Park System
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unit was established or expanded and shall include at
least the following:
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(7) A description (A) of privately owned areas,
if any, which are within such unit, (B) of activities
carried out in, or proposed for, such areas, (C) of the
present and potential effects of such activities on
such unit, (D) of the purposes for which such areas
are used, and (E) of methods (such as cooperative
agreements and issuance or enforcement of regulations) of controlling the use of such activities to
carry out the policies of this Act and the purposes
for which such unit is established or expanded.
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5. 54 U.S.C. 100101 (Supp. IV 2016) provides in pertinent part:
Promotion and regulation
(a) IN GENERAL.—The Secretary, acting through
the Director of the National Park Service, shall promote and regulate the use of the National Park System
by means and measures that conform to the fundamental purpose of the System units, which purpose is
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
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leave them unimpaired for the enjoyment of future
generations.
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6. 54 U.S.C. 100751 (Supp. IV 2016) provides in pertinent part:
Regulations
(a) IN GENERAL.—The Secretary shall prescribe
such regulations as the Secretary considers necessary
or proper for the use and management of System units.
(b) BOATING AND OTHER ACTIVITIES ON OR RELATING TO WATER.—The Secretary, under such terms
and conditions as the Secretary considers advisable,
may prescribe regulations under subsection (a) concerning boating and other activities on or relating to
water located within System units, including water subject to the jurisdiction of the United States. Any regulation under this subsection shall be complementary
to, and not in derogation of, the authority of the Coast
Guard to regulate the use of water subject to the jurisdiction of the United States;
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7.
16 U.S.C. 410hh provides in pertinent part:
Establishment of new areas
The following areas are hereby established as units
of the National Park System and shall be administered
by the Secretary under the laws governing the administration of such lands and under the provisions of this
Act:
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(10) Yukon-Charley Rivers National Preserve,
containing approximately one million seven hundred
and thirteen thousand acres of public lands, as generally depicted on map numbered YUCH–90,008,
and dated October 1978. The preserve shall be managed for the following purposes, among others: To
maintain the environmental integrity of the entire
Charley River basin, including streams, lakes and
other natural features, in its undeveloped natural
condition for public benefit and scientific study; to
protect habitat for, and populations of, fish and wildlife, including but not limited to the peregrine falcons and other raptorial birds, caribou, moose, Dall
sheep, grizzly bears, and wolves; and in a manner
consistent with the foregoing, to protect and interpret historical sites and events associated with the
gold rush on the Yukon River and the geological and
paleontological history and cultural prehistory of
the area. Except at such times when and locations
where to do so would be inconsistent with the purposes of the preserve, the Secretary shall permit
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aircraft to continue to land at sites in the Upper
Charley River watershed.
8.
36 C.F.R. 1.2 provides in pertinent part:
Applicability and scope
(a) The regulations contained in this chapter apply
to all persons entering, using, visiting, or otherwise
within:
(1) The boundaries of federally owned lands and
waters administered by the National Park Service;
(2) The boundaries of lands and waters administered by the National Park Service for public-use purposes pursuant to the terms of a written instrument;
(3) Waters subject to the jurisdiction of the United
States located within the boundaries of the National
Park System, including navigable waters and areas
within their ordinary reach (up to the mean high water
line in places subject to the ebb and flow of the tide and
up to the ordinary high water mark in other places) and
without regard to the ownership of submerged lands,
tidelands, or lowlands;
(4) Lands and waters in the environs of the District
of Columbia, policed with the approval or concurrence
of the head of the agency having jurisdiction or control
over such reservations, pursuant to the provisions of
the Act of March 17, 1948 (62 Stat. 81);
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(5) Other lands and waters over which the United
States holds a less-than-fee interest, to the extent necessary to fulfill the purpose of the National Park Service administered interest and compatible with the
nonfederal interest.
(b) The regulations contained in parts 1 through 5,
part 7, and part 13 of this chapter do not apply on nonfederally owned lands and waters or on Indian tribal
trust lands located within National Park System boundaries, except as provided in paragraph (a) or in regulations specifically written to be applicable on such
lands and waters.
(c) The regulations contained in part 7 and part 13
of this chapter are special regulations prescribed for specific park areas. Those regulations may amend, modify,
relax or make more stringent the regulations contained
in parts 1 through 5 and part 12 of this chapter.
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36 C.F.R. 2.17 provides in pertinent part:
Aircraft and air delivery.
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(e) The operation or use of hovercraft is prohibited.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.