Petition for Writ of Certiorari — Sturgeon v. Masica, 136 S. Ct. 27 (2015) (No. 14-1209)

14 «1209

IN THE

Supreme Court of the United Stater

JOHN STURGEON,

Petitioner,

v

SUE MASICA, IN HER OFFICIAL CAPACITY AS

ALASKA REGIONAL DIRECTOR OF THE NATIONAL

PARK SERVICE et al.,

Respondents.

On PETITION FOR A Writ OF CERTIORARI TO THE

Unrrep States Court oF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

WiLiiaM 8S. Consovoy MatTruHeEw T. FINDLEY

Tuomas R. McCartuy Counsel of Record

J. MICHAEL CONNOLLY Eva R. GARDNER

Consovoy McCartuy PLLC AsHBURN & Mason, P.C.

3033 Wilson Boulevard 1227 West Ninth Avenue

Suite 700 Suite 200

Arlington, VA 22201 Anchorage, AK 99501

(907) 276-4331

Douc.as Pope mtf@anchorlaw.com

Pore & KaTCHER

421 West First Avenue

Suite 220

Anchorage, AK 99501

Date: March 31, 2015 Attorneys for Petitioner

p

COUNSEL PRESS

{ROD) 974.2271 © (ROD) 250.6250

i

QUESTION PRESENTED

Whether Section 103(c) of the Alaska National

Interest Lands Conservation Act of 1980 prohibits the

National Park Service from exercising regulatory control

over State, Native Corporation, and private Alaska land

physically located within the boundaries of the National

Park System.

a2

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

Petitioner in this case is John Sturgeon.

Respondents are Sue Masica, in her official capacity

as Alaska Regional Director of the National Park Service;

Greg Dudgeon; Andee Sears; Sally Jewell, Secretary of

the Interior; Jonathan Jarvis, in his official capacity as

Director of the National Park Service; the National Park

Service; and the United States Department of the Interior.

v1

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..............sceeeeees i

PARTIES TO THE PROCEEDING AND

SP PTE, 66 oe vecesseceseuceseces ii

pg ere iii

Ts Ce AFTRA oc ccc ccccvesccscccceces Vv

TABLE OF CITED AUTHORITIES .............. vi

PETITION FOR A WRIT OF CERTIORARI........ 1

I no scccecescevesesescucusuesnad 1

JURISDICTION.......... ivktwsenséuneceandeneel 1

STATUTORY PROVISION INVOLVED............ 1

SL 66-00 <ecennvecessecsecedeseciual 2

STATEMENT OF THE CASE .................... 4

A. The State of Alaska’s Land Allocation......... 4

B. The Alaska National Interest Lands

Conservation Act of 1980 ................20.- 7

C. ANILCA’s Regulatory History.............. 11

ee 14

REASONS FOR GRANTING THE PETITION..... 18

I. The Petition Raises A Question of Exceptional

Importance To The State of Alaska, Native

Corporations, and Private Citizens........... 19

Il. The Ninth Circuit’s Interpretation of

Section 103(c) of ANILCA Is Unsustainable

Under This Court’s Decisions .............. .23

SEED Secccescccccnccsccceccecescoceces 31

Vv

TABLE OF APPENDICES

Page

APPENDIX A — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT, FILED DECEMBER 16,

APPENDIX B — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT, FILED OCTOBER 6,

APPENDIX C — DECISION OF THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA,

FILED OCTOBER 30, 2013 ................5.. 35a

vi

TABLE OF CITED AUTHORITIES

Page

Cases

Alaska v. United States,

201 F.3d 1154 (9th Cir. 2000). ............02000e- 15

Bond v. United States,

ei ccevensasedcedon .20, 22

Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc.,

EEE rn ern ee ee 24

Chugach Natives v. Doyon, Ltd.,

588 F.2d 723 (9th Cir. 1979) .............ceeeeeee 6

City of Angoon v. Marsh,

749 F.2d 1413 (9th Cir. 1984).................. 7, 19

City of Arlington, Tex. v. FCC,

IL 6 conecuccdcesedeoeseeccee 23

City of Saint Paul, Alaska v. Evans,

344 F.3d 1029 (9th Cir. 2003) ................005- 6

Coeur Alaska, Inc. v. Se. Alaska

Conservation Council,

EE ey IE NS ae a 19

Deal v. United States,

I a ale 27

vit

Cited Authorities

Page

John v. United States,

720 F.3d 1214 (9th Cir. 2013). ..............0000- 20

K Mart Corp. v. Cartier, Inc.,

Tee re caee 25

Koniag, Inc. v. Koncor Forest Resource,

BP Oe CGS BE wc ccccccccccccccccces 20

Maracich v. Spears,

Ns dies i etecdeuedenudes 30

Montana v. United States,

a ed 20

Nat'l Fed’n of Indep. Bus. v. Sebelius,

oc nidanks dbbuetiaees 22

Paroline v. United States,

oi ie i decuenseeddsbeuns 29

State of Minnesota by Alexander v. Block,

660 F.2d 1240 (8th Cir. 1981). ..... 2... 6... eee ee 21

Trustees for Alaska v. State,

ee IED ccc cccccccccccccccces 19

United States v. Lindsey,

606 F.2d 6 (Oth Cir. 1979)............0eeeeee 21, 22

Cited Authorities

Page

Statutes and Other Authorities

Py OF Is cv cccccccesceccesccsscunces 18, 27

BD es SP ED occ cccccccccccccccescuccsesesd 6

EER eee Rete RRs Soret passim

es I on cc cdcccccccessesccussscoees 7

EE I ccccccccsecudssccsesvneneees 7, 25

Ps Ws oc veccccccccccoscccccccvccccecd 9

es IG cccvccesececccesctedsccecoceces 9

es EE cccnccccccccccececesocecened 9, 24

16 U.S.C. § 3102(4) bateedesseedecdecusssseuusouaned 8

BB ULB. GERRI cc cc ccccccccccccccscces 2, 8, 24, 27

IE cccccdesvesceccecvesccesesecess 1

GD URE © Bc cc cccccccccccccccescecccencces 15

Be ee Os ccc vcvccccecccscccevesd 5, 6, 19, 20

GB ULB. § MBGBED. 2. ccccccccccccccccccscccccees 20

1a

Cited Authorities

Page

i eeéevccccccccessccesconsconsctsvesd 6

GP as FD ce cceccccvenccccvceccessesces 6

TA FB Beaten cc cccccvvcccccccccccccsccced 6

Pe cece ccccevccececesaseseccecesus 18

BPG O AEs ccvccccccsescesseesscesces 14, 17

PS PO se ccccsesscccoceeseoessses 12, 13, 14

SP BO cccccccccsecvcccscovcseescoccseses 13

ED ceccccceseccsessecsevneesées 14, 17

I EE sec cecscccsesesecscsensesosecsee 29

Py socccsvccccccossdvenessssuccusds 29

BPG © OED vvcccccccvessscescesecesoenceess 29

ED be ocvicecescccneenss sonsetoesend 29

PE EP cvvesescecvccosssesessceseucees 12

43 Fed. Reg. 57009 (1978) ...........ceeeeeeeeeees 6

43 Fed. Reg. 59756 (1978). ....... 2.2 ceeee cece eens 6

x

Cited Authorities

Page

SFE, Ba Fs ccc ccccccccccccecceccveces 6

Se I Ac ecccenccccccccsoscccccseesss 12

ee EE xesuececesekoceceunctscuves 12, 26

Gs EE Sccccccccescscccccececscsesess 13

re ED Wessccneccescccsescecccsuceses 13

Be ED Sh. ccccsevvccecsseccescosees 14, 16

Se Fe I sc cccccvcccecccesesevecseceses 14

IE cco cccvesceeseeseesesiced 9, 26

i o6 occ hecncoudéenscesuceeeunes 10

BPD GE ES oc ccc cccccsesccecccecscocess 1]

PP SEED Sc ccvsccccencccccnscoccceces 11

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

WE SP GID occ cccccccccccccccccccccces 5, 15

H. Cong. Res. 452, 96th Cong...............-2.005- 11

LEED ccdidccceeccsssoccescsesuced 6

Pub. L. 113-287, Dec. 19, 2014, 128 Stat. 3272........ 18

x

Cited Authorities

Page

occ ccececceynsecseccennses 6

Public Land Orders 5696-5711 ................0005. 6

SEE 0 60'o04deducenesceceesecevenss 9, 25, 29

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner John Sturgeon submits this petition for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Ninth Circuit is reported at 768 F.%d 1066 and is

reproduced in the Appendix (“App.”) at 3a-34a. The Ninth

Circuit’s order denying rehearing en banc is unreported

and is reproduced at App. la-2a. The opinion of the

United States District Court for the District of Alaska is

unreported and is reproduced at App. 35a-58a.

JURISDICTION

The United States Court of Appeals for the }inth

Circuit rendered its decision on October 6, 2014. App. 5a.

A timely petition for rehearing en banc was denied on

December 16, 2014. App.la. On February 20, 2015, Justice

Kennedy extended the time to file this petition for writ of

certiorari to March 31, 2015. This Court has jurisdiction

under 28 U.S.C. § 1254(a).

STATUTORY PROVISION INVOLVED

Section 103(c) of the Alaska National Interest Lands

Conservation Act of 1980 provides:

Only those lands within the boundaries of any

conservation system unit which are public

lands (as such term is defined in this Act)

2

shall be deemed to be included as a portion of

such unit. No lands which, before, on, or after

December 2, 1980, are conveyed to the State, to

any Native Corporation, or to any private party

shall be subject to the regulations applicable

solely to public lands within such units. If the

State, a Native Corporation, or other owner

desires to convey any such lands, the Secretary

may acquire such lands in accordance with

applicable law (including this Act), and any

such lands shall become part of the unit, and

be administered accordingly.

16 U.S.C. § 3103(C).

INTRODUCTION

The State of Alaska contains over 150 million acres

of federally managed national parks, preserves, and

monuments. The act responsible for creating the majority

of this parkland, the Alaska National Interest Lands

Conservation Act (“ANILCA”), 16 U.S.C. § 3101 et seq.,

carefully and explicitly provided that non-federal land and

water physically located within these parks that is owned

by the State of Alaska, Alaska Native Corporations, and

private citizens would not be included within the National

Park System and, as a result, would not be subject to the

myriad federal rules and regulations enacted to manage

the National Park System.

In 1996, however, the National Park Service (“NPS”)

abandoned its longstanding interpretation of ANILCA

and declared that it had all along possessed full regulatory

authority over non-federal land and waters within national

3

parks and preserves in Alaska. It was that about-face that

led to this case. NPS bans hovercraft in all national parks,

and that regulation has been extended to state navigable

waters within the Yukon-Charley Preserve based on this

revised interpretation of ANILCA. While operating a

small personal hovercraft on the Nation River to access

moose hunting grounds upriver from the Yukon-Charley,

Mr. Sturgeon was informed by armed NPS officials (and

again later by their regional supervisor) that he would be

subject to federal criminal citation if he continued to use

his state-licensed hovercraft within the Yukon-Charley

Preserve. Mr. Sturgeon thereafter filed this suit in federal

district court challenging NPS’s interpretation of Section

103(¢) of ANILCA, and its extension of the hovercraft ban

to non-federal land, under the Administrative Procedure

Act. The district court granted summary judgment to

NPS and the Ninth Circuit affirmed.

The decision below warrants this Court’s review.

The Ninth Circuit has granted NPS plenary authority

to regulate State, Native Corporation, and private lands

within Alaska’s national parks and preserves as though

these lands were in fact part of these parks. That decision

has significant social and economic ramifications that will

reverberate throughout the State of Alaska. Not only does

it deprive petitioner of a liberty interest and the State of

Alaska of sovereign control over its land, it destroys rights

granted to Alaska Natives under the Alaska Native Claims

Settlement Act (“ANCSA”). Alaska Natives depend on this

land for economic support, which will be denied to them

by NPS regulations that destroy its economic value and

deny to these landowners the right to make productive

use of their property. In one fell swoop, then, the Ninth

Circuit has nullified not one—but two—important federal

4

statutes over which it has exclusive review and in turn

opened 19 million acres of non-federal Alaska land to

invasive federal regulation.

The Ninth Circuit’s decision also is unsustainable on

the merits. Section 103(c) unambiguously provides that

NPS may exercise regulatory control only over “public

lands” in Alaska, which the law defines to exclude State,

Native Corporation, and private lands (even if the non-

public land is located within the physical boundaries of

the National Park System). The Ninth Circuit’s decision

read this limitation on NPS authority out of existence,

holding that Section 103(c) protects non-public Alaska land

only from application of Alaska-specific NPS regulations

(as opposed to nationwide regulations like the hovercraft

rule). But not only does this interpretation betray the

statute’s text, structure, and history, it is utterly illogical

as it denies to these non-public lands the benefit of Alaska-

specific NPS regulations that relax nationwide restrictions

on hunting, camping, and motorized access. A Ninth

Circuit opinion interpreting a statute designed to insulate

millions of acres of non-federal Alaskan wilderness from

NPS management to somehow impose a more restrictive

regulatory regime on this land than NPS imposes even on

Alaska national park land warrants this Court’s attention.

The petition should be granted.

STATEMENT OF THE CASE

A. The State of Alaska’s Land Allocation

The State of Alaska covers 570,374 square miles, or

roughly one-fifth of the total land area of the contiguous

United States. From north to south, Alaska measures

5

1,420 miles, approximately the distance between Denver,

Colorado and Mexico City, Mexico, and from east to west it

measures nearly 2,400 miles, approximately the distance

from Savannah, Georgia to Santa Barbara, California.

While Alaska is the largest of the fifty states, it supports

a total population of only 710,231 people and most of its

acreage is inaccessible by road. Indeed, Alaska’s average

population density is only 1.2 persons per square mile. If

Manhattan had the same population density as the state

of Alaska, 28 people would live there. Allocating land

and resources in this vast landscape, and ensuring the

economic viability of its people, has been an issue of vital

importance since Alaska joined the Union in 1959.

Allowing the new State of Alaska to control its land

and resources was a central compact of statehood. In the

Alaska Statehood Act, Congress granted approximately

103,350,000 acres of land to the new State of Alaska (or 28

percent of its overall area), and required that any further

conveyance of this land must reserve mineral and other

rights to the State. See Alaska Statehood Act, Pub. L. 85-

508, 72 Stat. 339. The purpose of this grant was to ensure

Alaska’s economic viability.

However, statehood did not resolve Native Alaskan

land claims. In 1971, Congress passed the Alaska

Native Claims Settlement Act (““ANCSA”) in response

to the “immediate need for a fair and just settlement

of all claims by Natives and Native groups of Alaska,

based on aboriginal land claims[.]” 43 U.S.C. § 1601(a).

ANCSA created 13 Regional Corporations and 220

Village Corporations, and prescribed a three-step regime

involving the withdrawal, selection, and conveyance of

roughly 22 million acres of federal land within the State

6

of Alaska. ANCSA conveyed the land to the Village

Corporations and patented the subsurface estate to

Regional Corporations. The Regional Corporations also

received the right to select an additional 16 million acres

(of both surface and subsurface estates) from federal

land. See Chugach Natives v. Doyon, Ltd., 588 F.2d 723,

724 (9th Cir. 1979). Congress intended for the Native

Corporations to use the transfers of lands and assets for

economic development benefiting the Native peoples of

Alaska. See 43 U.S.C. § 1607; City of Saint Paul, Alaska

v. Evans, 344 F.3d 1029, 1031 (9th Cir. 2003).

ANCSA also addressed land allocation between the

State of Alaska and the United States. Under ANCSA,

the Secretary of Interior was directed to withdraw up to

80 million acres of federal land from availability for Native

Corporation selection to protect national interest lands for

“public use and enjoyment.” 43 U.S.C. § 1616(d)(2). This

process was never completed because the Secretary’s

withdrawals never received Congressional approval.’

The Carter Administration later stepped in and ordered

a series of land withdrawals, claiming authority under

the Federal Land Policy and Management Act of 1976

(“FLPMA”), 43 U.S.C. §§ 1701-1784, and the Antiquities

Act of 1906, 16 U.S.C. §§ 431-433. By 1980, the Executive

Branch had withdrawn over 100 million acres of federal

land. See Proclamation No. 4611, 43 Fed. Reg. 57009

(1978) (Admiralty Island National Monument); Public

Land Order 5653, 43 Fed. Reg. 59756 (1978); Public Land

Orders 5696-5711, 45 Fed. Reg. 9562 (1980).

1. ANCSA provided that Congress had five years to act

on the Secretary’s recommendations and without Congressional

action, the withdrawals would expire. 43 U.S.C. § 1616(d)(2)(D).

7

B. The Alaska National Interest Lands Conservation

Act of 1980

The Alaska National Interest Lands Conservation Act

of 1980 (“ANILCA”) was a direct legislative response to

the Executive Branch’s unilateral withdrawal of millions

of acres of federal lands for conservation purposes.

“Congress became aware of the need for a legislative

means of maintaining the proper balance between the

designation of national conservation areas and the

necessary disposition of public lands for more intensive

private use.” City of Angoon v. Marsh, 749 F.2d 1413, 1415-

16 (9th Cir. 1984). The congressional goal, in other words,

was “to preserve unrivaled scenic and geological values

associated with natural landscapes” and “to provide the

opportunity for rural residents engaged in a subsistence

way of life to continue to do so.” 16 U.S.C. § 3101(b)-(©).

Congress thus designed ANILCA to provide “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 provide[] adequate

opportunity for satisfaction of the economic and social

needs of the State of Alaska and its people.” Jd. § 3101(d).

ANILCA affected 104.3 million acres of land in

Alaska; the statute expanded the national park system in

Alaska by over 43 million acres, creating ten new national

parks, and increased the territory of three existing parks.

Congress designated this land as the “conservation system

unit” or “CSU.” As part of this national park expansion,

2. “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

8

ANILCA established the Yukon-Charley Preserve as a

CSU in east-central Alaska, west of the village of Eagle.

See id. § 410hh(10).

Essential to ANILCA’s compromise was Congress’s

assurance that the millions of acres of land previously set

aside for the economic and social needs of the Alaskan

people would not be subject to federal regulatory control

and management. This concern was quite real given that

much of this land surrounded or was located within the

physical boundaries of CSUs.

Section 103(c) of ANILCA addressed the concern:

Only those lands within the boundaries of any

conservation system unit which are public

lands (as such term is defined in this Act)

shall be deemed to be included as a portion of

such unit. No lands which, before, on, or after

December 2, 1980, are conveyed to the State, to

any Native Corporation, or to any private party

shall be subject to the regulations applicable

solely to public lands within such units. If the

State, a Native Corporation, or other owner

desires to convey any such lands, the Secretary

may acquire such lands in accordance with

applicable law (including this Act), and any

such lands shall become part of the unit, and

be administered accordingly.

16 U.S.C. § 3103(©).

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.” 16 U.S.C. § 3102(4).

9

“The term ‘land’ means lands, waters, and interests

therein.” Id. § 3102(1). “The term ‘Federal land’ means

lands the title to which is in the United States after

December 2, 1980.” Jd. § 3102(2). “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 which have not been conveyed to a Native

Corporation, unless any such selection is determined to

be invalid or is relinquished; and (C) lands referred to

in section 19(b) of the Alaska Native Claims Settlement

Act.” Id. § 3102(3).

Section 103(c)’s purpose was apparent from the

inception of the legislative process. The provision began

as an amendment “to make clear beyond any doubt that

any State, Native, or private lands, which may lie within

the outer boundaries of the conservation system unit are

not parts of that unit and are not subject to regulations

which are applied to public lands, which, in fact, are part

of the unit.” 125 Cong. Rec. H3240 (May 15, 1979). The

Senate Report explained that “[(t]hose private lands, and

those public lands owned by the State of Alaska ... are not

to be construed as subject to the management regulations

which may be adopted to manage and administer any

national conservation system unit which is adjacent to,

or surrounds, the private or non-Federal public lands.”

S. Rep. No. 96-413 at 303 (November 14, 1979).

10

Arizona Congressman Morris Udall, ANILCA’s

primary sponsor in the House of Representatives, further

explained that:

this bill... is a direct out-growth of the Alaska

Native Claims Settlement Act of 1971....

Thus, it is important to recall the relationship

between the conservation system units ... and

the lands which the Native peoples of Alaska

have received and will receive pursuant to the

Alaska Native Claims Settlement Act in return

for the extinguishment of their claims based on

aboriginal title. We recognize that there are

certain lands which have been selected by Native

Corporations and which are within the exterior

boundaries of some of the conservation system

units .... I want to make clear that inclusion of

these Native lands within the boundaries of

conservation system units is not intended to

affect any rights which the Corporations may

have under this act, the Alaska Native Claims

Settlement Act, or any other law, or to restrict

use of such lands by the owning Corporations

nor to subject the Native lands to regulations

applicable to the public lands within the specific

conservation system unit.

125 Cong. Rec. 9905 (May 4, 1979).

Senator Ted Stevens of Alaska agreed:

The fact that Native lands lie within the

boundaries of conservation system units is

not intended to affect any rights which the

1]

corporations have under this act, the Alaska

Native Claims Settlement Act, or any other

law. It is not our intent, by the inclusion of

Native lands within the exterior boundaries

of conservation system units, to imply that

such inclusion is a revocation of land selections

validly filed pursuant to any provision of

the Alaska Native Claims Settlement Act.

The Native organizations have been given

repeated assurances that including their lands

within conservation units will not affect the

implementation of the Native Claims Settlement

Act. We intend to have these assurances

translated into practice by the administrative

agencies.

126 Cong. Rec. 21882 (1980).

Section 103(c) was added to the final version of

ANILCA through a concurrent resolution. See H. Cong.

Res. 452, 96th Cong. (Nov. 21, 1980). The resolution, which

contained Section 103(©)’s text, was added to the statute in

order to firmly establish “that only public lands (and not

State or private lands) are to be subject to the conservation

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

30495, 30496 (1980).

C. ANILCA’s Regulatory History

For sixteen years following ANILCA’s enactment,

NPS interpreted Section 103(c) to deny it the authority

to regulate State of Alaska, Native Corporation, and

private lands within the physical boundaries of CSUs as if

they are part of the National Park System. In 1981, NPS

12

issued regulations to “provide interim guidance on public

uses of National Park System units in Alaska, including

units established by the Alaska National Interest Lands

Conservation Act.” 46 Fed. Reg. 31836 (June 17, 1981). The

section-by-section preamble explained that:

Sections 103(c) and 906(0) of ANILCA generally

restrict the applicability of National Park

Service regulations to federally-owned lands

within park area boundaries. Consistent with

the statute and the explanatory legislative

history ... § 13.2(e) restricts the applicability

of these regulations to ‘federally owned’ lands

(defined to mean all land interests held by the

Federal government including unconveyed

Native selections) within park boundaries

.... These regulations would not apply to

activities occurring on State lands. Similarly,

these regulations would not apply to activities

occurring on Native or any other non-federally

owned land interests located within park area

boundaries.

Id. at 31843. NPS further explained that the Alaska-

specific regulations found in 36 C.F.R. Part 13 “would

not apply to activities occurring on Native or any other

non-federally owned land interests located inside park

area boundaries.” /d.

As promulgated in 1983, then, 36 C.F.R. § 1.2(b)

provided that:

The regulations contained in Parts 1 through 7

of this chapter are not applicable on privately

13

owned lands and waters (including Indian lands

and waters owned individually or tribally)

within the boundaries of a park area, except

as may be provided by regulations relating

specifically to privately owned lands and waters

under the legislative jurisdiction of the United

States.

48 Fed. Reg. 30252 (June 30, 1983).

36 C.F.R. § 1.4 defined “legislative jurisdiction” to

mean “lands and waters under the exclusive or concurrent

jurisdiction of the United States.” NPS further explained

that the regulation was “intended to also include state

inholdings that are under the legislative jurisdiction of

the United States.” 48 Fed. Reg. at 30261.

Confusion nonetheless persisted as to the regulatory

status of State-owned lands and the meaning of the phrase

“legislative jurisdiction of the United States.” In 1987,

NPS resolved the confusion by revising Section 1.2(b). As

revised, the regulation provided:

Except for regulations containing provisions

that are specifically applicable, regardless of

land ownership, on lands and waters within

a park area that are under the legislative

jurisdiction of the United States, the regulations

contained in Parts 1 through 5 and Part 7

of this chapter do not apply on non-federally

owned lands and waters or on Indian lands and

waters owned individually or tribally within the

boundaries of a park area.

14

52 Fed. Reg. 35238 (Sept. 18, 1987). NPS cleared up the

issue as to State-owned lands by broadening Section 1.2

to cover all “non-federally owned lands and waters or

on Indian lands and waters.” As to the meaning of “the

legislative jurisdiction of the United States,” NPS clarified

that “when applied to non-federal lands, [it] means lands

and waters over which the State has ceded some or all

of its legislative authority to the United States.” 52 Fed.

Reg. 35238 (Sept. 17, 1987).

NPS reversed course in 1996, extending all of its

regulations to non-federal lands in Alaska. To accomplish

this objective, NPS issued 36 C.F.R. § 1.2(a)(3), which

provides that NPS regulations apply to “[wjaters 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, tidelands, or lowlands.” $1 Fed. Reg.

35133 (July 5, 1996) (emphasis added). NPS revised 36

C.F.R. § 1.2(b) to provide that the “regulations contained

in parts 1 through 5, part 7, and part 13 of this chapter

do not apply on non-federally owned lands and waters or

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.” Id. (emphasis added). Among the

NPS regulations made applicable to State-owned lands is

36 C.F.R. § 2.17(e), which bans the use of hovercraft within

NPS boundaries.

D. Factual Background

John Sturgeon has held a resident hunting license

in Alaska for the past 40 years and, from 1971 until this

15

controversy, annually hunted moose on the Yukon River

downstream from Eagle, Alaska, and its tributary,

the Nation River. App. 8a. The Nation River has been

adjudicated to be navigable. See Alaska v. United States,

201 F.3d 1154 (9th Cir. 2000). Thus, title to the bed of the

Nation River vested in Alaska under the Statehood Act,

Pub. L. No. 85-508, 72 Stat. 339 (1958); accordingly, its

waters and submerged lands are not “public land” for

purposes of ANILCA. App. 55a. Further, the Submerged

Lands Act of 1953 grants the State of Alaska the authority

to manage, use, and administer these submerged lands,

the natural resources in them, and the navigable waters

that flow over them. See 43 U.S.C. § 1311(a).

In 1990, in order to access all of the waters of the

Nation River, including those waters of the Nation River

upriver from the Yukon-Charley boundary, Mr. Sturgeon

purchased a small personal hovercraft and licensed it

with the State of Alaska as a watercraft. App. 8a. From

1990 through 2007, Mr. Sturgeon used the hovercraft

to access moose hunting grounds on the Yukon River

downstream from Eagle to the confluence of the Nation

and Yukon Rivers, and on the Nation River thirty-five to

forty miles upriver from the Yukon-Charley boundary.

App. 8a. Operation of hovercraft on the Nation River is

permissible under Alaska law.

In September of 2007, during his annual moose-

hunting trip, Mr. Sturgeon entered the Nation River from

the Yukon River for the purpose of taking the hovercraft

upriver to hunt “moose meadows” and other stretches of

the Nation River beyond the Yukon-Charley boundary.

App. 8a. Approximately two miles upriver, while stopped

on a gravel bar located below mean high water to engage

16

in some repairs, Mr. Sturgeon was approached by three

armed NPS law enforcement employees. App. 8a. The

NPS employees told Mr. Sturgeon it was a federal crime

for him to operate the hovercraft within the boundaries

of the Yukon-Charley. App. 8a. When Mr. Sturgeon

advised the NPS employees that the hovercraft was being

operated on a State-owned navigable river and thus the

NPS water regulations did not apply, the NPS employees

advised him that he was incorrect. App. 8a. Mr. Sturgeon

complied with the NPS employees’ directive to remove

his hovercraft from within the boundaries of the Yukon-

Charley App. 8a.

After returning from this hunt, Mr. Sturgeon had

phone conversations and met with NPS Special Agent

Andee Sears in Anchorage, Alaska. App. 9a. Ms. Sears

agreed that the State of Alaska owned the submerged

land within the banks of the Yukon and Nation Rivers, but

reaffirmed NPS’s position that use of a hovercraft within

the boundaries of the Yukon-Charley is a federal crime,

even on navigable waters or on submerged land between

the banks of navigable rivers, and warned Mr. Sturgeon

that he would be criminally cited if he ever again operated

the hovercraft within the Yukon-Charley. App. 9a. As a

result of these warnings by NPS officials and employees,

Mr. Sturgeon has not used his hovercraft within the

boundaries of the Yukon-Charley in subsequent hunting

seasons; as a result, he has not been able to hunt areas of

the Nation River and the Yukon River he had previously

accessed on a regular basis with the use of his hovercraft.

App. 9a.

3. In October 2010, Mr. Sturgeon, by and through counsel,

sent a letter to then Secretary of the Interior Ken Salazar,

17

E. Proceedings Below

On September 14, 2011, Mr. Sturgeon filed a complaint

in the U.S. District Court for the District of Alaska to,

among other things, enjoin application of 36 C.F.R. § 1.2(a)

(3) and 36 C.F.R. § 2.17(e) on various grounds under the

APA. The State of Alaska intervened and joined in the

challenge to these NPS regulations. The district court

granted summary judgment to the NPS as to all claims.

App. 35a-58a. Mr. Sturgeon and the State both timely

appealed.

The Ninth Circuit affirmed, holding that ANILCA

did not prohibit the NPS from asserting authority over

non-public lands within CSUs pursuant to regulations of

general applicability. To the Ninth Circuit, Section 103(©)’s

restriction on NPS’s power to impose on non-public land

“regulations applicable solely to public lands within such

units” was limited to Alaska-specific regulations. App.

25a-28a. ANILCA, which was passed in 1980, therefore

did not supersede the general authority that Congress, in

1976, vested in the Secretary of Interior to “[p}Jromulgate

and enforce regulations concerning boating and other

petitioning him to engage in rulemaking to repeal or amend NPS

regulations so that the NPS would no longer assert the authority to

restrict access on navigable waters located within the boundaries

of park areas in Alaska. Mr. Sturgeon never received a response

to this letter. App. 49a. Faced with this lack of response, on June

26, 2011 he wrote a letter to the NPS Alaska District Regional

Chief Ranger, copying Ms. Sears, in which he requested written

confirmation that he would be cited if he attempted to operate

his hovercraft within the Yukon-Charley in the areas he had

traditionally hunted. Mr. Sturgeon also never received a response

to this letter. App 49a.

18

activities on or relating to waters located with areas of

the National Park System, including waters subject to

the jurisdiction of the United States.” App. 31a (quoting

16 U.S.C. § 1a-2(h)).4 The Ninth Circuit concluded that

because the “hovercraft ban ... applies to all federal owned

lands and waters administered by NPS nationwide”—

and not only on federal lands within Alaska—it may be

enforced on Alaskan land owned by the State, Native

Corporations, and individuals. App. 26a.°

REASONS FOR GRANTING THE PETITION

The Ninth Circuit “has decided an important federal

question in a way that conflicts with relevant decisions of

this Court.” Sup. Ct. Rule 10(c). The decision below has

significant social and economic ramifications for the people

of Alaska. It implicates not only Alaska’s sovereignty and

Mr. Sturgeon’s liberty, but Alaskan Natives’ dependence

on access to the State’s natural resources for economic

sustainability. The Ninth Circuit’s decision jeopardizes

all of these interests in contravention of Section 103(c) of

ANILCA, which squarely prohibits NPS from regulating

non-federal Alaska land as if it were part of the National

Park System.

4. 16 U.S.C. § la-2(h) was repealed and recodified by Pub.

L. 113-287, Dec. 19, 2014, 128 Stat. 3272. See 54 U.S.C. § 100751.

5. The Ninth Circuit rejected the government’s argument

that Mr. Sturgeon lacked standing. App. 10a-14a. But the court

agreed with the government that the State lacked standing and

instructed the district court to dismiss its complaint. App. 14a-20a.

19

I. The Petition Raises A Question of Exceptional

Importance To The State of Alaska, Native

Corporations, and Private Citizens.

Because no circuit split is possible on this issue, the

key consideration for purposes of certiorari is whether the

petition raises an important federal question. It is difficult

to conceive of an issue of greater importance to the people

of Alaska than the one presented here. This case concerns

the regulatory disposition of more than 19 million acres of

Alaskan land. Perhaps more than any other State, Alaska

depends on the beneficial use of its land for “economic and

social well-being.” Trustees for Alaska v. State, 736 P.2d

324, 335 (Alaska 1987). Yet if the Ninth Circuit’s decision

is upheld, the ability of Alaskans to productively use their

natural resources will be subject to the plenary control of

NPS, which prefers to use the Alaska wilderness strictly

for conservation purposes. As a result, it is likely that the

developmental potential of this land will be unrealized.

The economic ramifications of the Ninth Circuit’s decision

for the people of Alaska is a compelling basis for reviewing

this petition. See, e.g., Coewr Alaska, Inc. v. Se. Alaska

Conservation Council, 557 U.S. 261, 267 (2009).

Because the decision’s economic impact will fall most

harshly on Native Corporations, which own approximately

18 million acres of the non-public land at issue, the need

for further review is all the more urgent. Congress passed

ANCSA in 1971 to resolve the “aboriginal land claims.”

43 U.S.C. § 1601(a). Under ANCSA, roughly 40 million

acres of land were conveyed to Alaska Native regional

and village corporations to “assist them in achieving

financial independence and self-sufficiency.” City of

Angoon, 749 F.2d at 1414. “Congress contemplated that

20

land granted under ANCSA would be put primarily to

three uses—village expansion, subsistence, and capital for

economic development. Of these potential uses, Congress

clearly expected economic development would be the most

significant.” Koniag, Inc. v. Koncor Forest Resource, 39

F.3d 991, 996 (9th Cir. 1994) (citations omitted). Congress

thus extinguished aboriginal claims in exchange for land,

on the understanding that Alaska Natives “would be able

to develop that land and to realize that potential.” Jd. at

997. Under the Ninth Circuit’s ruling, however, Native

Corporations will be foreclosed from developing roughly

30 percent of the land that Congress conveyed to them to

address “the real economic and social needs of Natives.”

43 U.S.C. § 1601(b).

But the importance of this case extends far beyond the

practical harms resulting from the Ninth Circuit’s view of

ANILCA. These non-public lands, including the specific

territory at issue in this case, do not belong to the federal

government. See supra at 14-15. “After a State enters

the Union, title to the land is governed by state law. The

State’s power over the beds of navigable waters remains

subject to only one limitation: the paramount power of the

United States to ensure that such waters remain free to

interstate and foreign commerce.” Montana v. United

States, 450 U.S. 544, 551 (1981). Alaska thus owns the

“shores of navigable waters, and the soils under them.”

John v. United States, 720 F.3d 1214, 1224 (9th Cir. 2013).

NP3S’s assertion of regulatory authority therefore impairs

Alaska’s sovereign right to manage and direct the use

of these non-federal lands. The significant federalism

concerns created by the Ninth Circuit’s decision warrant

this Court’s attention. See Bond v. United States, 131 S.

Ct. 2355, 2364 (2011) (“T]he federal structure serves to

21

grant and delimit the prerogatives and responsibilities

of the States and the National Government vis-a-vis one

another. The allocation of powers in our federal system

preserves the integrity, dignity, and residual sovereignty

of the States.”).

The basis for the State of Alaska’s intervention in

this dispute illustrates the point. The State sought to

collect specimens from the bed of the Alagnak River in

connection with fisheries research. App. 9a-10a. Although

the riverbed is indisputably State-owned submerged land,

NPS restricted the State’s ability to access it, asserting

that the Alagnak’s location within the Katami National

Park subjected it to NPS regulation. App 9a-10a. The

State was therefore barred from accessing the riverbed

until it applied for a permit, obtained approval, and

granted ownership of the resulting samples to NPS. App.

15a. The State should not have to seek permission from

the federal government to conduct environmental studies

on its own land.

Indeed, the Ninth Circuit’s reading of ANILCA to

grant NPS control over non-federal lands raises a difficult

constitutional question. Congress’s Article I authority to

wrest supervision and control of these lands from Alaska

wouid need to derive from the Commerce Clause or the

Property Clause. But neither provides the sweeping power

NPS asserts here. Both require a showing that activities

on State-owned water sufficiently impact NPS controlled

land so as to justify extra-territorial regulation. See, e.g.,

United States v. Lindsey, 595 F.2d 5, 6 (9th Cir. 1979);

State of Minnesota by Alexander v. Block, 660 F.2d 1240,

1249 (8th Cir. 1981). Thus, while this authority allows NPS

to enforce specific targeted regulations on non-federal

22

lands to protect federal lands, see Lindsey, 595 F.2d at 6,

it is not blanket authorization for the NPS to enforce the

entirety of its regulations on non-federal lands, especially

when NPS seeks to infringe on state sovereignty and

regulate state-owned lands.

These important constitutional issues are not just a

means to resolving a turf war between NPS and the State

of Alaska. “Federalism is more than an exercise in setting

the boundary between different institutions of government

for their. own integrity. State sovereignty is not just an

end in itself: Rather, federalism secures to citizens the

liberties that derive from the diffusion of sovereign power

... Federalism secures the freedom of the individual.”

Bond, 131 S. Ct. at 2364 (citations and quotations omitted).

“The fragmentation of power produced by the structure of

our Government is central to liberty, and when we destroy

it, we place liberty at peril.” Nat’l Fed’n of Indep. Bus. v.

Sebelius, 132 S. Ct. 2566, 2677 (2012) (joint dissent). This

case shows just how true that is.

As noted above, Mr. Sturgeon has held a resident

hunting license in Alaska for the past 40 years and has

used a small personal hovercraft, which he licensed with

the State of Alaska, to access moose hunting grounds on

the Yukon River since 1990. App. 8a. Yet, in 2007, he was

approached by armed NPS officials who told him it was

illegal to use the hovercraft. App. 8a. Petitioner was later

informed that he would be subject to federal prosecution if

he ever attempted to use the hovercraft again. App. 9a. It

is difficult to conceive of a more severe threat to individual

liberty than being threatened with criminal citation. NPS

should not be permitted to threaten Mr. Sturgeon with

criminal penalties for using a state-approved hovercraft

for a state-approved purpose on non-federal land.

23

Unlike other instances, the significant practical and

structural concerns raised by this case are not the result

of Congress’s desire to press the boundaries of its Article I

authority. Congress has not demanded federal regulatory

control over millions of acres of Alaskan land. It is instead

NP%S’s assertion of expansive authority under a federal law

specifically designed to curb its power, see infra at 23-30,

and the Ninth Circuit’s decision to accept that contorted

interpretation that has led to this confrontation. This case

epitomizes the concern that “[t]he administrative state

wields vast power and touches almost every aspect of

daily life.... It would be a bit much to describe the result

as the very definition of tyranny, but the danger posed by

the growing power of the administrative state cannot be

dismissed.” City of Arlington, Tex. v. FCC, 133 S. Ct. 1863,

1878-79 (2013) (Roberts, C.J., dissenting) (citations and

quotation omitted). The administrative state’s assertion of

power over all manner of “economic, social, and political”

activity, 7d. at 1878, is troublesome enough when it comes

with the imprimatur of Congress. This Court’s attention

is certainly required where, as here, it does not.

II. The Ninth Circuit’s Interpretation of Section 103(c)

of ANILCA Is Unsustainable Under This Court’s

Decisions.

The question presented asks whether Section 103(c) of

ANILCA prohibits NPS from managing and regulating

Alaskan and Native Corporation non-federal lands located

within the National Park System as if they were part of

the National Park System. Contrary to the Ninth Circuit’s

ruling, the statute unambiguously denies this authority

to NPS. “If the intent of Congress is clear, that is the

end of the matter; for the court, as well as the agency,

24

must give effect to the unambiguously expressed intent

of Congress.” Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842-43 (1984). Because the

intent behind Section 103(c) is clear, the ruling conflicts

with this Court’s prior decisions and should be reversed.

Section 103(c) states that “[oJnly those lands within

the boundaries of any conservation system unit which

are public lands (as such term is defined in the Act) shall

be deemed to be included as a portion of such unit.” 16

U.S.C. § 3103(c). Under the statute, “public lands” means

“land situated in Alaska which, after December 2, 1980,

are Federal lands” and excludes from its ambit lands

belonging to the “State of Alaska,” “a Native Corporation,”

or “lands referred to in Section 19(b) of the Alaska Native

Claims Settlement Act.” Jd. § 3102(3). Accordingly, “[nJo

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.” Jd. § 3103). “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.” /d.

The law is straightforward. Under Section 103(0),

State, Native Corporation, and private land within the

boundaries of the ANILCA conservation system units are

not part of these units and may not be managed as though

they are. Each sentence of Section 103(c) clarifies, in

different ways, that State, Native Corporation, and private

land is not to be managed or otherwise treated as part of

a CSU. Section 103(c) thus removes these lands from the

25

reach of the vast array of federal regulations promulgated

to manage public lands, such as the hovercraft regulation

at issue here, and forecloses the ability of NPS and other

federal agencies to exert authority beyond public lands in

Alaska. Accordingly, any NPS regulation that attempts to

manage non-federal land in Alaska as if it is public land

is not in accordance with law.

This interpretation follows not only from the law’s

plain meaning, it vindicates Congress’s purpose. See, e.g.,

K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 300 (1988).

ANILCA’s dramatic expansion of federal park acreage

raised serious concerns that it would sacrifice the needs of

Alaskans who live off this land. See supra at 7-11. Section

103(c) struck a balance. It “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.” 16 U.S.C. § 3101(d). The

statute accomplished this objective by “[(s]pecifying that

only public lands (and not State or private lands) are to

be subject to the conservation unit regulations applying

to public lands.” H. Cong. Res. 452, 96th Cong. (Nov. 21,

1980); see also S. Rep. No. 96-413 at 303 (Nov. 14, 1979)

(“Those private lands, and those public lands, owned by

the State of Alaska ... are not to be construed as subject

to the management regulations which may be adopted to

manage and administer any national conservation system

unit which is adjacent to, or surrounds, the private or

non-Federal public lands.”). The whole point was to “make

clear beyond any doubt that any State, Native, or private

lands, which may lie within the outer boundaries of the

conservation system unit are not parts of that unit and

26

are not subject to regulations which are applied to public

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

H3240 (May 15, 1979). The inclusion of Section 103() in the

final version of ANILCA reflected a deliberate choice by

Congress to preserve State management and limit NPS

authority over these lands.

That is why, until 1996, NPS correctly interpreted

Section 103(¢) just as Petitioner does here. See supra at 11-

14. In 1981, NPS explained that its “regulations would not

apply to activities occurring on Native or any other non-

federally owned land interests located inside park area

boundaries.” 46 Fed. Reg. 31843 (June 17, 1981). Further,

in 1987, NPS reaffirmed that: “Except for regulations

containing provisions that are specifically applicable,

regardless of land ownership, on lands and waters within

a park area that are under the legislative jurisdiction of

the United States, the regulations contained in Parts

1 through 5 and Part 7 of this chapter do not apply on

non-federally owned lands and waters or on Indian lands

and waters owned individually or tribally within the

boundaries of a park area.” 52 Fed. Reg. 35238 (Sept. 18,

1987). That is, NPS interpreted Section 103(©) faithful to

its terms by limiting NPS’s regulatory authority to public

lands in Alaska.

The Ninth Circuit nevertheless rejected this reading

based on a crabbed interpretation of Section 103(c). App.

25a-28a. In the Ninth Circuit’s view, the limitation on

NPS authority to impose “regulations applicable solely

to public lands within such units” applies only to Alaska-

specific NPS regulations. App. 25a-26a. According to the

Ninth Circuit, NPS was thus free to ban hovercrafts on

non-federal Alaskan lands under its general authority to

27

“[p}jromulgate.and enforce regulations concerning boating

and other activities on or relating to waters located within

areas of the National Park System,” 16 U.S.C. § 1a-2(h),

so long as the ban was applied “to all federal-owned lands

and waters administered by NPS nationwide” and not just

to Alaska public lands. App. 25-26a. This interpretation

of Section 103(c) is unsustainable.

Although its reasoning is far from clear, the Ninth

Circuit appears to derive its Alaska-specific interpretation

of Section 103(c) from its determination that “{tJhe

plain text of § 103(c) only exempts nonfederal land from

‘regulations applicable solely to public lands within

[(CSUs].”” App. 25a (emphasis in original). The Ninth

Circuit believed that this language limited Section 103(c)

to “CSU-specific regulations.” App. 25a (emphasis in

original). But the Ninth Circuit drew the line in the wrong

place. ANILCA does not distinguish between regulations

applying nationwide and those applying only “within such

units” in Alaska. The law distinguishes between NPS’s

authority to manage “public lands within such units”

and its lack of authority to manage non-public (i.e., nor.-

federal) lands within such units. That point is made clear

by the preceding sentence: “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.” 16 U.S.C.

§ 3103(c). The Ninth Circuit committed the cardinal error

of reading the phrase “within such units” in “isolation”

instead of “the context in which it is used.” Deal v. United

States, 508 U.S. 129, 132 (1993).

The Ninth Circuit sought to draw additional support

from Section 103(c)’s use of the word “solely,” since

28

nationwide NPS regulations are not “solely” applicable

to federal lands in Alaska. App. 25a. The Ninth Circuit

claimed that only this interpretation could reconcile the

statutory text with Congress’s statement that “[f]ederal

laws and regulations of general applicability to both

private and public lands’ are ‘unaffected,’ and ‘would be

applicable to private or non-federal public land holdings

within [CSUs].”” App. 27a-28a (quoting S. Rep. 96-413, at

303 (1979)). But the Ninth Circuit’s textual analysis again

missed the mark.

Congress inserted “solely” into Section 103(c) to

avoid inadvertently nullifying all federal statutes and

regulations applicable to non-federal lands in Alaska. That

is, Congress was careful to ensure that ANILCA did not

exempt non-federal lands in Alaska from laws such as

the Clean Air Act and the Clean Water Act. These are

the federal laws of “general applicability” (and not the

run-of-the-mill NPS management regulations) that were

to be “unaffected” by ANILCA:

Federal laws and regulations of general

applicability to both private and public lands,

such as the Clean Air Act, the Water Pollution

Control Act, U.S. Army Corps of Engineers

wetland regulations and other Federal statutes

of general applicability would be applicable to

private or non-Federal public land in holdings

within conservations [sic] system units, and

to such lands adjacent to conservation system

units, and thus are unaffected by the passage

of the bill.

29

S. Rep. 96-413, at 303 (1979). Had the Ninth Circuit not

selectively quoted from the Senate Report, this would

have been clear.

But even if there were some support for the Ninth

Circuit’s Alaska-specific version of Section 103(c), which

there is not, the statute should be interpreted to avoid a

“nonsensical result” if the text will allow it. Paroline v.

United States, 134 S. Ct. 1710, 1729 (2014). As explained

above, the Ninth Circuit’s reading exempts non-federal

lands from NPS’s Alaska-specific regulations, but not

from NPS’s nationwide regulations. Under that reading,

then, non-federal land could not benefit when NPS exempts

Alaska national parks from a more restrictive nationwide

rule. By the Ninth Circuit’s reasoning, the non-public land

would remain subject to the more restrictive nationwide

regulation. If NPS decided to exempt Alaska public lands

from the hovercraft regulations, the non-federal lands (i.e.,

State, private, and Native-owned) would, paradoxically,

still be subject to the ban.

This is not some wild hypothetical. There are many

NPS regulations that make allowances for Alaska public

lands that are not applicable to the rest of the National

Park System. For example, NPS has granted Alaska parks

more liberal hunting, trapping, and motorized access rules

because of the unique terrain. See, e.g., 36 C.F.R. §§ 13.25,

13.30, 13.45, 13.182. It is nonsensical to interpret Section

103(©) to force non-federal land in Alaska to abide by the

more restrictive nationwide rule instead of benefiting from

the less restrictive Alaska-specific rule. Yet that is where

the Ninth Circuit’s ruling leads. The better interpretation

of Section 103(¢) is one that, as Congress clearly intended,

leaves day-to-day management of these non-fe¢ral lands

30

to their owners: the State of Alaska, Native Corporations,

and private individuals.

At base, the Ninth Circuit’s interpretation violates

the “text, structure, and purpose” of ANILCA. Maracich

v. Spears, 133 S. Ct. 2191, 2196 (2013). Section 103(¢) was

enacted to enforce the law’s bargain that those lands not

transferred to the federal government would be subject to

state and local management. See supra at 5-11. Under the

Ninth Circuit’s reasoning, however, the promise is illusory.

If the decision below is allowed to stand, NPS could easily

circumvent any limitation on its day-to-day management

authority merely hy regulating on a nationwide basis.

There is no basis for interpreting Section 103(c) to defeat

ANILCA’s objective of preserving state authority, private

property rights, and Native Alaskan land rights within

the new federal park lands it created. Certainly not when

there is a strong textual basis for interpreting the law to

achieve that unambiguous congressional purpose.

31

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

WILLiaM S. Consovoy MatTTHEW T. FINDLEY

THomMAs R. McCartuy Counsel of Record

J. MICHAEL CONNOLLY Eva R. GARDNER

Consovoy Mccartuy PLLC AsHBuURN & Mason, P.C.

3033 Wilson Boulevard 1227 West Ninth Avenue

Suite 700 Suite 200

Arlington, VA 22201 Anchorage, AK 99501

(907) 276-4331

DoucLas Pore mtf@anchorlaw.com

Pore & KaTCHER

421 West First Avenue

Suite 220

Anchorage, AK 99501

Date: March 31, 2015 Attorneys for Petitioner

APPENDIX

la

APPENDIX A — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT, FILED DECEMBER 16, 2014

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 13-36165

JOHN STURGEON,

Plaintiff-Appellant,

STATE OF ALASKA,

Plaintiff-Intervenor,

v.

SUE MASICA, in her official capacity as Alaska

Regional Director of the National Park Service; GREG

DUDGEON; ANDEE SEARS; SALLY JEWELL,

Secretary of the Interior; JONATHAN JARVIS,

in his official capacity as Director of the National

Park Service; THE NATIONAL PARK SERVICE;

THE UNITED STATES DEPARTMENT OF THE

INTERIOR,

Defendants-Appellees.

D.C. No. 3:11-ev-00183-HRH

District of Alaska,

Anchorage

2a

Appendix A

ORDER

Before: FARRIS, D.W. NELSON, and NGUYEN, Circuit

Judges.

Judge Farris, Nelson, and Nguyen have voted to

deny the petitions for panel rehearing filed by Plaintiff-

Appellant John Sturgeon and Plaintiff-Intervenor State

of Alaska. Judge Nguyen has voted to deny the petitions

for rehearing en banc filed by Sturgeon and the State of

Alaska, and Judges Farris and Nelson so recommend.

The full court has been advised of the petitions, and

no judge of the court has requested a vote on the petitions

for rehearing en banc. Fed. R. App. P. 35.

The petitions for rehearing and rehearing en banc

are DENIED.

3a

APPENDIX B — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT, FILED OCTOBER 6, 2014

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 13-36165

D.C. No. 3:11-cv-00183-HRH

JOHN STURGEON,

Plaintiff-Appellant,

STATE OF ALASKA,

Plaintiff-Intervenor,

V.

SUE MASICA, in her official capacity as Alaska

Rezional Director of the National Park Service;

GREG DUDGEON; ANDEE SEARS; SALLY

JEWELL, Secretary of the Interior; JONATHAN

JARVIS, in his official capacity as Director of the

National Park Service; THE NATIONAL PARK

SERVICE; THE UNITED STATES

DEPARTMENT OF THE INTERIOR,

Defendants-Appellees.

4a

Appendix B

No. 13-36166

D.C. No. 3:11-ev-00183-HRH

STATE OF ALASKA,

Intervenor-Plaintiff-Appellant,

and

JOHN STURGEON,

Plaintiff,

v.

SUE MASICA, in her official capacity as Alaska

Regional Director of the National Park Service; GREG

DUDGEON; ANDEE SEARS; SALLY JEWELL,

Secretary of the Interior; JONATHAN JARVIS,

in his official capacity as Director of the National

Park Service; THE NATIONAL PARK SERVICE;

THE UNITED STATES DEPARTMENT OF THE

INTERIOR,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Alaska

H. Russel Holland, Senior District Judge, Presiding

August 12, 2014, Argued and Submitted,

Anchorage, Alaska

5a

Appendix B

October 6, 2014, Filed

Before: Jerome Farris, Dorothy W. Nelson, and

Jacque.ine H. Nguyen, Circuit Judges.

Opinion by Judge Nguyen

SUMMARY

Standing / National Park Service

The panel affirmed the district court’s summary

judgment in favor of federal appellees, and vacated the

judgment against intervenor/appellant State of Alaska,

due to its lack of standing, in an action brought by

John Sturgeon challenging the National Park Service’s

enforcement of a regulation banning the operation of

hovercrafts on the Nation River.

Tha National Park Service (“NPS”) ban prevented

Sturgeon from using his personal hovercraft on his moose

hunting trips on the Nation River, part of which falls

within the Yukon-Charley Rivers National Preserve. The

State of Alaska intervened, challenging N PS’s authority to

require its researchers to obtain a permit before engaging

in studies of chum and sockeye salmon on the Alagnak

River, part of which falls within the boundaries of the

Katmai National Park and Preserve.

* This summary constitutes no part of the opinion of the

court. It has been prepared by court staff for the convenience of

the reader.

6a

Appendix B

The panel held that Sturgeon established Article III

standing. The panel also held that the federal appellees

waived their prudential standing arguments. The panel

further held that the State of Alaska lacked standing to

challenge the NPS regulations. The panel vacated the

district court’s judgment as to Alaska, and remanded

with instructions that Alaska’s case be dismissed for lack

of jurisdiction.

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

of the Alaska National Interest Lands Conservation Act

precluded NPS from regulating activities on state-owned

lands and navigable waters that fell within the boundaries

of National Park System units in Alaska. The panel held

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

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

assuming that the waters of and lands beneath the Nation

River had been “conveyed to the State” for purposes of the

Alaska National Interest Lands Conservation Act § 103(c),

NPS’s hovercraft ban was not a regulation that applied

solely to public lands within conservation system units in

Alaska; and given its general applicability, the regulation

could be enforced on both public and nonpublic lands alike

within conservation system units.

The panel also rejected Sturgeon’s arguments that the

Secretary of the Interior exceeded her statutory authority

in promulgating the regulation at issue, and that her action

raised serious constitutional concerns.

Ta

Appendiz B

OPINION

NGUYEN, Circuit Judge:

John Sturgeon (“Sturgeon”) challenges the National

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

banning the operation of hovercrafts on the Nation River,

part of which falls within the Yukon-Charley Rivers

National Preserve. The ban prevented Sturgeon from

using his personal hovercraft on his moose hunting trips

on the Nation River. The State of Alaska intervened,

challenging NPS’s authority to require its researchers

to obtain a permit before engaging in studies of chum

and sockeye salmon on the Alagnak River, part of which

falls within the boundaries of the Katmai National Park

and Preserve.

Sturgeon and Alaska present the same legal

argument: § 103(c) of the Alaska National Interest Lands

Conservation Act (“ANILCA”) precludes NPS from

regulating activities on state-owned lands and navigable

waters that fall within the boundaries of National Park

System units in Alaska. The district court granted

summary judgment in favor of the federal appellees.

Because we find that Sturgeon’s interpretation of § 103(c)

is foreclosed by the plain text of the statute, we affirm

as to Sturgeon. We hold that Alaska lacks standing to

bring this challenge, and thus vacate and remand with

instructions that Alaska’s case be dismissed.

8a

Appendix B

I.

The facts are straightforward and largely undisputed.

Since 1971, Sturgeon has hunted moose on an annual basis

on the Nation River.' The lower six miles of the Nation

River lie within the Yukon-Charley Rivers National

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

National Park System. In 1990, Sturgeon purchased a

small, personal hovercraft, which he used on his hunting

excursions. In September 2007, while repairing his

hovercraft on a gravel bar adjoining the river, Sturgeon

was approached by three NPS law enforcement employees.

They informed him that NPS regulations prohibited the

operation of hovercrafts within the Yukon-Charley and

issued him a verbal warning. Sturgeon protested that

the NPS regulations were inapplicable because he was

operating his hovercraft on a state-owned navigable river.

Sturgeon contacted his attorney via satellite phone, who in

turn contacted Andee Sears, a Regional Law Enforcement

Specialist with NPS. Sears told Sturgeon’s attorney that

the hovercraft must be removed from the Yukon-Charley.

Sturgeon complied.

1. The Nation River is a tributary of the Yukon River. While

Sturgeon’s complaint also mentions his hunting excursions on the

Yukon River, part of which also falls within the Yukon-Charley

Rivers National Preserve, he failed to raise a separate claim

for the Yukon River. Thus, the district court found that only the

applicability of the regulation to the Nation River was before the

court. Sturgeon v. Masica, No. 3:11-CV-0183-HRH, 2013 U.S. Dist.

LEXIS 157078, 2013 WL 5888230, at *6 (D. Alaska Oct. 30, 2013).

Sturgeon does not challenge that finding on appeal.

9a

Appendiz B

Later, Sturgeon followed up with Sears over the phone

and met with him in Anchorage. Sears advised Sturgeon

that even though Alaska might own the submerged land

beneath the river, the hovercraft ban was nonetheless in

force within the boundaries of the Yukon-Charley. Sears

warned Sturgeon that he risked criminal liability if he

operated his hovercraft within the Yukon-Charley. In

response to these warnings, Sturgeon refrained from

using his hovercraft during the 2008 to 2010 moose

hunting seasons and has not been able to hunt on the

portions of the Nation River that fall within the boundaries

of the Yukon-Charley.

Although Sturgeon sent a letter to then-Secretary

of the Interior, Ken Salazar, petitioning for repeal or

amendment of the NPS regulations restricting his

access to navigable waters located within national park

boundaries, he did not receive a response. He then sued

in federal district court, seeking an order declaring that

NPS’s regulations violated ANILCA, as applied to him on

state-owned lands and waters, and enjoining the federal

defendants from enforcing these regulations.

Alaska intervened, raising the same argument that

the application and enforcement of NPS regulations

on state-owned lands and waters violated ANILCA.

Specifically, Alaska challenged NPS regulations that

required employees of the Alaska Department of Fish

and Game to obtain a scientific research and collecting

permit before engaging in genetic sampling of chum and

sockeye salmon on the Alagnak River. These regulations

purportedly harmed Alaska “in the form of increased

10a

Appendix B

staff time and expense in complying with NPS procedures

and in the form of delays in implementing the project.”

Alaska further argued that NPS’s actions both interfered

with its sovereign right to manage and regulate its lands

and waters and chilled its citizens’ ability to enjoy the

rights and benefits flowing from its management of state

resources.

On summary judgment, the district court ruled in

favor of the federal appellees. Sturgeon v. Masica, No.

3:11-CV-0183-HRH, 2013 U.S. Dist. LEXIS 157078, 2013

WL 5888230, at *9 (D. Alaska Oct. 30, 2013). The district

court found that Sturgeon’s and Alaska’s interpretation

of ANILCA § 103(¢) lacks support in the plain language

of the statute. 2013 U.S. Dist. LEXIS 157078, [WL] at

*8-*9. This appeal followed.

Il.

We review questions of law resolved on summary

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

for clear error. Al Haramain Islamic Found., Inc. v. U.S.

Dep't of Treasury, 686 F.3d 965, 976 (9th Cir. 2012).

Il.

As an initial matter, the federal appellees contend that

we lack jurisdiction over this appeal because Sturgeon and

Alaska have failed to establish standing. Even though the

federal appellees did not present these arguments to the

district court below, they may nonetheless do so for the

first time on appeal. The constitutional requirements for

lla

Appendix B

standing under Article III are jurisdictional, cannot be

waived by any party, and may be considered sua sponte.

City of Los Angeles v. Cnty. of Kern, 581 F.3d 841, 845 (9th

Cir. 2009). The oft-repeated “irreducible constitutional

minimum of standing contains three elements.” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130,

119 L. Ed. 2d 351 (1992). “First, the plaintiff must have

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

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

there must be a causal connection between the injury

and the conduct complained of,” meaning that the injury

must be “fairly traceable to the challenged action of the

defendant.” Jd. (quoting Simon v. Eastern Ky. Welfare

Rights Org., 426 U.S. 26, 41-42, 96 S. Ct. 1917, 48 L. Ed.

2d 450 (1976) (quotation mark and alterations omitted)).

Third, it must be likely that a favorable decision would

redress the injury identified. Jd. at 561.

Apart from these constitutional concerns, “there

exists a body of ‘judicially self-imposed limits on the

exercise of federal jurisdiction” that forms the prudential

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

Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 3315, 82 L.

Ed. 2d 556 (1984)); see also Sprint Commce’ns Co., L.P. v.

APCC Servs., Inc., 554 U.S. 269, 289-90, 128 S. Ct. 2531,

171 L. Ed. 2d 424 (2008). Because these considerations are

nonconstitutional in nature, they may be deemed waived

if not previously raised before the district court. Cnty. of

Kern, 581 F.3d at 845.

12a

Appendix B

A.

We find that Sturgeon has established standing. The

federal appellees argue that Sturgeon has failed to show

probable or imminent enforcement of the NPS regulations

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

federal appellees’ view, however, cannot be reconciled

with the Supreme Court’s recent decision in Susan B.

Anthony List v. Driehaus, 134 8. Ct. 2334, 189 L. Ed. 2d

246 (2014), where the Court emphasized that threatened

enforcement actions may suffice to create Article III

injuries. “When an individual is subject to such a threat,

an actual arrest, prosecution, or other enforcement action

is not a prerequisite to challenging the law.” Jd. at 2342.

Thus, “a plaintiff satisfies the injury-in-fact requirement

where he alleges ‘an intention to engage in a course of

conduct arguably affected with a constitutional interest,

but proscribed by a statute, and there exists a credible

threat of prosecution thereunder.” Jd. (quoting Babbitt v.

Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S. Ct.

2301, 60 L. Ed. 2d 895 (1979)).

Sturgeon has satisfied the injury-in-fact requirement.

He has alleged an intention to use his hovercraft, and

has contacted both NPS and the Department of the

Interior regarding the applicability and enforcement of

the regulation to his hovercraft use. Sturgeon’s inability

to use his hovercraft for moose-hunting purposes

arguably implicates his right under the Privileges or

Immunities Clause of the Fourteenth Amendment “to

use the navigable waters of the United States, however

they may penetrate the territory of the several States.”

13a

Appendiaz B

The Slaughter-House Cases, 83 U.S. 36, 79, 21 L. Ed. 394

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

(9th Cir. 2013) (interpreting the Privileges or Immunities

Clause to encompass “a right to navigate the navigable

waters of the United States”). Sturgeon thus alleges

“an intention to engage in a course of conduct arguably

affected with a constitutional interest.” Susan B. Anthony

List, 1384S. Ct. at 2342 (quoting Babbitt, 442 U.S. at 298).

Further, there is no dispute that his intended conduct

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

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

prohibited” within NPS-administered lands and waters,

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

a credible threat of prosecution thereunder.” Susan B.

Anthony List, 134 S. Ct. at 2342 (quoting Babbitt, 442

U.S. at 298). The federal appellees concede that Sturgeon

received a verbal warning not to use the hovercraft, that

Special Agent Sears told Sturgeon’s lawyer that Sturgeon

“should remove the hovercraft from the preserve,” and

that Sears later indicated that Sturgeon “[might] be

subject to criminal liability if he operated a hovercraft in

the preserve.”” These facts are sufficient to show a credible

threat of enforcement against Sturgeon.

Next, the federal appellees argue that any injury-

in-fact identified by Sturgeon is not “fairly traceable”

to actions of NPS. We disagree. The regulation was

promulgated by NPS and enforcement has been

2. Indeed, if Sturgeon violated NPS’s hovercraft ban, he

would risk incurring a fine and imprisonment for up to six months.

See 36 C.F.R. § 1.3(a).

l4a

Appendix B

threatened by NPS employees. Therefore, Sturgeon’s

injuries are “fairly traceable” to actions of NPS. Finally,

a favorable decision would redress Sturgeon’s identified

injury-in-fact, and the federal appellees do not contend

otherwise.

In addition to contending that Sturgeon lacks Article

III standing, the federal appellees argue that prudential

considerations of ripeness and adverseness militate against

a finding of standing. However, the federal appellees failed

to raise these arguments before the district court. We thus

find them waived, as prudential standing arguments “can

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

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

845 (quoting Bd. of Natural Res. v. Brown, 992 F.2d 937,

946 (9th Cir. 1993)) (internal quotation marks omitted).

B.

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

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

harm “in the form of increased staff time and expense”

in obtaining and complying with the terms of a scientific

research and collecting permit; (2) injuries to Alaska’s

sovereign right to control its lands and waters; and (8)

the Secretary of the Interior’s denial of its petition for

3. Moreover, it may be that the “Article III standing and

ripeness issues in this case ‘boil down to the same question’””—

namely, whether a sufficient injury-in-fact exists to render the

case ripe. Susan B. Anthony List, 134 S. Ct. at 2341 n.5 (quoting

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 n.8, 127

S. Ct. 764, 166 L. Ed. 2d 604 (2007)).

lda

Appendix B

administrative proceedings that would repeal or amend

the regulations at issue. We address each of the proffered

bases in turn.

With regard to Alaska’s chum and sockeye salmon

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

permit requirement clearly constitute injuries-in-fact.

It is undisputed that NPS employees informed Alaska’s

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

research and collecting permit was required before it

engaged in the study. The scientific research and collecting

permit that DFG actually obtained and the General

Conditions and Park Specific Guidance that accompanied

it—all of which are part of the record—demonstrate that

DFG was forced to comply with numerous obligations

and limitations under the terms of the permit. To name

just a few, DFG was not allowed to destroy research

specimens without NPS’s prior authorization, was

obligated to catalogue collected specimens into NPS’s

Interior Collections Management System and label such

specimens with NPS accession and catalog numbers, and

was required to submit an Investigator’s Annual Report

and copies of other final reports and publications resulting

from the study within a year of publication. The record

thus amply supports Alaska’s allegation of harm in the

form of increased staff time and expense.

But while Alaska may have suffered cognizable

injuries, a favorable ruling would not redress these

injuries. Alaska’s complaint sought a declaration that the

NPS regulations were invalid and void as applied to state-

owned lands and waters and an injunction barring future

16a

Appendix B

enforcement of the regulations on state-owned lands and

waters. Such relief would not remedy injuries relating to

DFG’s chum and sockeye salmon study in 2010, which have

already been incurred and suffered. At oral argument,

Alaska represented that DFG’s chum and sockeye salmon

study is complete, and the record offers no indication that

related studies or efforts are pending or forthcoming. In

the absence of evidence showing how the requested relief

would redress its identified injuries, Alaska may not rely

on activities relating to the 2010 study of chum and sockeye

salmon to establish standing. Cf Lujan, 504 U.S. at 564

(“Past exposure to illegal conduct does not in itself show

a present case or controversy regarding injunctive relief

... if unaccompanied by any continuing, present adverse

effects.” (alteration in original) (quoting Los Angeles v.

Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 75 L. Ed. 2d 675

(1983)) (internal quotation marks omitted).

The second basis proffered by Alaska presents a closer

question. Alaska argues that the NPS regulations violate

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

and waters, and interfere with its “authority and ability

to manage its property in accordance with the Alaska

Constitution and state law.” States certainly possess

sovereign and proprietary interests that may be pursued

via litigation. Alfred L. Snapp & Son, Inc. v. Puerto Rico

ex rel. Barez, 458 U.S. 592, 601-02, 102 S. Ct. 3260, 73 L.

Ed. 2d 995 (1982); see also, Pennsylvania v. New Jersey,

426 U.S. 660, 665, 96 S. Ct. 2333, 49 L. Ed. 2d 124 (1976)

(“It has . . . become settled doctrine that a State has

standing to sue only when its sovereign or quasi-sovereign

interests are implicated .. . .”). However, we conclude

17a

Appendix B

that Alaska’s arguments are unavailing for purposes of

establishing standing under the circumstances of this

case.

To begin with, Alaska failed to meet the requirement

that its purported injuries be “actual or imminent.” Layjan,

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

149, 155, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990)) (internal

quotation mark omitted). Because Alaska did not identify

any actual conflict between NPS’s regulations and its own

statutes and regulations, we are left with only a vague idea

of how exactly NPS’s permitting requirement infringes

on the state’s sovereign and proprietary interests in its

lands and waters, or how the requirement interferes with

the state’s control over and management of those lands

and waters. In the absence of such a conflict, Alaska’s

purported injuries are too “conjectural or hypothetical”

to constitute injuries-in-fact. Jd. (quoting Whitmore, 495

U.S. at 155) (internal quotation marks omitted).

Alaska has cited no case that finds standing based

simply on purported violations of a state’s sovereign rights.

Rather, evidence of actual injury is still required. For

example, in Massachusetts v. EPA, 549 U.S. 497, 127S. Ct.

1438, 167 L. Ed. 2d 248 (2007), the Supreme Court found

that Massachusetts had standing to challenge the EPA’s

denial of a rulemaking petition requesting regulation

of greenhouse gas emissions under the Clean Air Act.

Id. at 510-11, 526. The Court noted that the state was

due “special solicitude in [the] standing analysis” based

on two factors: (1) Massachusetts sought to vindicate a

procedural right, which eliminated the need under Article

18a

Appendiz B

III to demonstrate redressability and immediacy, and

(2) Massachusetts’s status as a “sovereign State.” Jd. at

517-20; see also Washington Envtl. Council v. Bellon,

732 F.3d 1131, 1144-45 (9th Cir. 2013) (distinguishing

Massachusetts v. EPA). Even in light of this special

solicitude, however, the Court specifically found that

“(because the Commonwealth ‘own{ed] a substantial

portion of the state’s coastal property,’ it ha{d] alleged a

particularized injury in its capacity as a landowner” due

to rising global sea levels. Massachusetts, 549 U.S. at 522

(citation omitted).

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

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

nonprofit corporation established by the United States to

provide federal funds to local legal assistance programs

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

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

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

Oregon’s ability to regulate its legal services program,

and no claim that Oregon’s laws ha[d] been invalidated

as a result of the [corporation’s] restrictions.” Jd. Because

Oregon was able “to regulate its legal service programs

as it desire[d],” there was thus “no judicially cognizable

injury.” /d. at 974.

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

1990), is also illustrative. Nevada challenged the Bureau

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

over state-owned land to the Department of Energy. /d.

at 855. Because Nevada’s complaint was “silent as to how

[the Bureau’s] alleged violations . . . resulted in injury to

Nevada,” in the absence of demonstrated injury, its claim

19a

Appendiz B

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

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

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

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

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

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

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

F.3d 879, 883 (9th Cir. 2001) (finding no injury-in-fact

where twenty Native American tribes challenged a

Master Settlement Agreement between Philip Morris,

Inc. and forty-six states, five territories, and the District

of Columbia because the tribes identified no tribal

regulations or contracts that would be affected by the

Agreement).

Similarly, here, Alaska’s claims regarding its

sovereign and proprietary interests lack grounding in

a demonstrated injury. While Alaska alleges that NPS

regulations “have directly interfered with Alaska’s

ability as a sovereign to manage and regulate its land

and waters,” Alaska identifies no conflict between NPS

regulations and its own state statutes and regulations.‘

4. Alaska also alleges that the NPS regulations have had “a

chilling effect” on Alaskans’ use and enjoyment of state-owned

lands and waters. But “a state does not have standing ‘to protect

her citizens from the operation of federal statutes.” Oregon v.

Legal Servs. Corp., 552 F.3d 965, 971 (9th Cir. 2009) (quoting

Massachusetts v. EPA, 549 U.S. 497, 520 n.17, 127 S. Ct. 1438, 167

L. Ed. 2d 248 (2007)). And “the State must articulate an interest

apart from the interests of particular private parties.” Jd. (quoting

Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458

U.S. 592, 607, 102 S. Ct. 3260, 73 L. Ed. 2d 995 (1982)) (internal

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

20a

Appendix B

Any injury to Alaska’s sovereign and proprietary interest

is pure conjecture and thus insufficient to establish

standing.

The third and final basis upon which Alaska relies

to establish standing is the Secretary of the Interior’s

denial of its petition for new administrative proceedings.

A plaintiff possesses standing to enforce procedural

rights “so long as the procedures in question are designed

to protect some threatened concrete interest of his that

is the ultimate basis of his standing.” Lujan, 504 U.S.

at 573 n.8. As discussed above, Alaska fails to identify

any “threatened concrete interest.” Alaska cannot

rely on the Secretary’s denial of its petition because

“({pjarticipation in agency proceedings is alone insufficient

to satisfy judicial standing requirements.” Gettman v.

Drug Enforcement Admin., 290 F.3d 430, 433, 351 U.S.

App. D.C. 344 (D.C. Cir. 2002) (quoting Fund Democracy,

LLC v. SEC, 278 F.3d 21, 27, 349 U.S. App. D.C. 347

(D.C. Cir. 2002)) (internal quotation marks omitted).

Alaska’s “right to petition the agency does not in turn

‘automaticfally]’ confer Article III standing when that

right is deprived.” Jd. (alteration in original) (quoting

Pet’rs’ Br.).

Therefore, we hold that Alaska has failed to establish

standing to challenge the NPS regulations. We vacate the

district court’s judgment as to Alaska and remand with

instructions that Alaska’s case be dismissed for lack of

jurisdiction.

2la

Appendix B

IV.

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

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

application and enforcement of NPS’s hovercraft ban on

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

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

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

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

Before explaining why we find Sturgeon’s contentions

unpersuasive, we offer a bit of background.

A.

ANILCA, enacted in 1980, offered new “protection(s]

for the national interest in the scenic, natural, cultural

and environmental values on the public lands in Alaska,

and at the same time providel[d] adequate opportunity

for satisfaction of the economic and social needs of the

State of Alaska and its people.” 16 U.S.C. § 3101(d).

Summarized succinctly, “ANILCA is generally concerned

with the designation, disposition, and management of land

for environmental preservation purposes.” Stratman v.

Leisnoi, Inc., 545 F.3d 1161, 1165 (9th Cir. 2008). To this

end, Congress “set aside approximately 105 million acres

5. Many of Sturgeon’s arguments resemble a facial challenge

to NPS’s general regulatory authority over nonfederal land within

conservation system units. However, the district court’s finding

that Sturgeon had pleaded an as-applied challenge, Sturgeon,

2013 U.S. Dist. LEXIS 157078, 2013 WL 5888230, at *1, is not

contested on appeal, and we therefore limit our consideration to

the regulation as applied to Sturgeon.

22a

Appendix B

of federal land in Alaska for protection of natural resource

values by permanent federal ownership and management.”

Nat'l Audubon Soc’y v. Hodel, 606 F. Supp. 825, 827-28

(D. Alaska 1984). Portions of those lands were used to

expand existing units of the National Park System and

create new units, which were to be administered by the

Secretary of the Interior. 16 U.S.C. § 410hh; id. § 410hh-

1. Such units included national parks, preserves, and

monuments. See 16 U.S.C. § 410hh; id. § 410hh-1. ANILCA

refers to units of the National Park System situated in

Alaska as “conservation system unit[s]” (“CSUs”). 16

U.S.C. § 3102(4).

Not all lands that lie within the boundaries of a CSU

are owned by the federal government. Where possible,

Congress drew unit boundaries “to include whole

ecosystems and to follow natural features,” and was thus

cognizant of the fact that state, Native, or private-owned

land could fall within the boundaries of CSUs. Marsh,

749 F.2d at 1417 (quoting 125 Cong. Rec. 9905 (1979)). The

presence of both federal-owned and nonfederal-owned

land lying within CSUs led Congress to clarify two things:

first, what land would actually comprise the CSUs, and

second, more generally, how land falling within a CSU’s

boundaries—whether federally owned or not—could

be regulated. See id. (discussing the House version of

ANILCA and the “Tsongas substitute” in the Senate).

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

text of that subsection reads as follows:

23a

Appendiz B

Only those lands within the boundaries of any

conservation system unit which are public

lands (as such term is defined in this Act)

shall be deemed to be included as a portion of

such unit. No lands which, before, on, or after

December 2, 1980, are conveyed to the State, to

any Native Corporation, or to any private party

shall be subject to the regulations applicable

solely to public lands within such units. If the

State, a Native Corporation, or other owner

desires to convey any such lands, the Secretary

may acquire such lands in accordance with

applicable law (including this Act), and any

such lands shall become part of the unit, and

be administered accordingly.

16 U.S.C. § 3103(©).

Section 103(c) thus contains three separate instructions

regarding the composition and regulation of CSUs. First,

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

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

Id. Under ANILCA, “public lands” are “[f]ederal lands”

(including “lands, waters, and interests therein”) in which

the United States holds title after December 2, 1980. Jd.

§ 3102(1)-(3). The first sentence of § 103(c) makes clear that

the boundaries of CSUs “do[) not in any way change the

status of that State, native, or private land” lying within

those boundaries. 125 Cong. Rec. 11158 (1979).

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

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

24a

Appendiz B

“regulations applicable solely to public lands within such

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

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

be subjected to CSU-specific regulations—nonfederal land

is expressly made exempt from such regulations. As the

1979 Senate Report on ANILCA makes clear, nonfederal

land would not be “subject to the management regulations

which may be adopted to manage and administer any

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

private or non-federal public lands.” S. Rep. No. 96-413,

at 303 (1979), reprinted in 1980 U.S.C.C.A.N. 5070, 5247

(emphasis added). Importantly for purposes of this case, in

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

regulations of general applicability to both private and

public lands” are “unaffected,” and “would be applicable

to private or non-federal public land holdings within

[CSUs].” Id.

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

Secretary of the Interior may acquire nonfederal land

lying within a CSU’s boundaries; such land would then

“become part of the unit” and may “be administered

accordingly.” 16 U.S.C. § 3103(c). Once acquired, what

was previously nonfederal land would no longer be free

from “regulations applicable solely to public lands within

[CSUs].” Id.; see also 126 Cong. Rec. 21882 (1980) (noting

that “if the [Native-]corporations ever decide to dispose

of their property, [it] could become part of the [(CSU]”).

25a

Appendix B

B.

With this background in mind, we easily resolve

Sturgeon’s appeal. Sturgeon argues that the plain

language of ANILCA § 103(c) removes nonfederal lands

‘from the reach of federal regulations promulgated to

‘manage public lands. Thus, his argument goes, NPS may

not enforce the hovercraft ban on the lower portion of the

Nation River that falls within the Yukon-Charley because

the water and submerged land of that river is owned by

the state of Alaska.

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

unambiguous, we find that it unambiguously forecloses

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

nonfederal land from “regulations applicable solely to

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

added). The regulation at issue, banning hovercraft use

in the Yukon-Charley, is not so limited.

In 1976, Congress vested the Secretary of the

Interior with the authority to “[pJromulgate and enforce

regulations concerning boating and other activities on or

relating to waters located within areas of the National

Park System, including waters subject to the jurisdiction

of the United States.” 16 U.S.C. § la-2(h). Pursuant to this

grant of authority, the Secretary promulgated a number of

regulations to “provide for the proper use, management,

government, and protection of persons, property, and

natural and cultural resources within areas under the

jurisdiction of the National Park Service.” 36 C.F.R. § 1.1(a).

Within the chapter of the Code of Federal Regulations

26a

Appendix B

containing those regulations, parts 1 through 5 “apply to

all persons entering, using, visiting, or otherwise within”

federally owned lands and waters administered by NPS

and “({wjaters subject to the jurisdiction of the United

States located within the boundaries of the National Park

System, including navigable waters.” 36 C.F.R. § 1.2(a)

(1), (8). The hovercraft ban is located within part 2 of that

chapter. See 36 C.F.R. § 2.17(e).

In short, then, the hovercraft ban is not one that

“applifes] solely to public lands within [CSUs]” in Alaska.

16 U.S.C. § 3103(©). Rather, this regulation applies to all

federal-owned lands and waters administered by NPS

nationwide, as well as all navigable waters lying within

national parks. Thus, even assuming (without deciding)

that the waters of and lands beneath the Nation River

have been “conveyed to the State” for purposes of § 103(c),

that subsection does not preclude the application and

enforcement of the NPS regulation at issue. Because of

its general applicability, the regulation may be enforced

on both public and nonpublic lands alike within CSUs.

Though Sturgeon might prefer a more robust regulatory

exemption, we “must presume that a legislature says in

a statute what it means and means in a statute what it

says.” Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438,

461-62, 122 S. Ct. 941, 151 L. Ed. 2d 908 (2002) (quoting

Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112

S. Ct. 1146, 117 L. Ed. 2d 391 (1992)).°

6. Because we resolve this case based on the plain text of

the statute, we need not address whether our decisions in John v.

United States (Katie John II1), 720 F.3d 1214 (9th Cir. 2013), John

v. United States (Katie John II), 247 F.3d 1032 (9th Cir. 2001) (en

27a

Appendix B

C.

Sturgeon acknowledges that § 103(c)’s language

exempts nonfederal lands from regulations applicable

“solely” to public lands, but argues that overreliance on

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

legislative purpose of restricting federal authority over

nonfederal land within CSUs. “When confronted with a

statute which is plain and unambiguous on its face, we

ordinarily do not look to legislative history as a guide to

its meaning.” Tennessee Valley Auth. v. Hill, 437 U.S.

153, 184 n. 29, 98 S. Ct. 2279, 57 L. Ed. 2d 117 (1978); see

also Balen v. Holland Am. Line Inc., 583 F.3d 647, 653

(9th Cir. 2009) (quoting North Dakota v. United States,

460 U.S. 300, 312, 103 S. Ct. 1095, 75 L. Ed. 2d 77 (1983))

(internal quotation mark omitted) (stating that when

statutory language is clear, its “language must ordinarily

be regarded as conclusive”). But even if we consider the

legislative history of ANILCA, we find no support for

Sturgeon’s claim. Rather, the legislative records from

the House and Senate contain numerous statements

supporting the plain language of the statute. The

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

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

lands within CSUs would not be “subject to regulations

which are applied to public lands which, in fact, are part

of the unit.” 125 Cong. Rec. 11158 (1979). The primary

sponsor of ANILCA in the House declared that nonfederal

land would not be constrained by “regulations applicable

banc) (per curiam), or State of Alaska v. Babbitt (Katie John I), 72

F.3d 698 (9th Cir. 1995) supply an alternative basis for affirming

the district court.

28a

Appendix B

to the public lands within the specific conservation system

unit.” 125 Cong. Rec. 9905 (1979). The House Concurrent

Resolution that added § 103(c) to ANILCA specified that

“only public lands (and not State or private lands) are to

be subject to the [CSU] regulations applying to public

lands.” 126 Cong. Rec. 30498 (1980). Finally, the Senate

Report notes that § 103(c) would exempt nonfederal land

from “regulations which may be adopted to manage and

administer any [CSU] which is adjacent to, or surrounds,

the private or non-Federal public lands.” S. Rep. No. 96-

413, at 303 (1979), reprinted in 1980 U.S.C.C.A.N. 5070,

5247.’ Rather than help Sturgeon, the legislative history

confirms that ANILCA § 103(c) did not purport to exempt

nonfederal lands within CSUs from generally applicable

federal laws and regulations like the hovercraft ban.

D.

Next, Sturgeon argues that our decision in City of

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

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

is misplaced. Marsh involved the interaction between

7. Sturgeon also claims that until 1996, NPS did not purport

to have regulatory authority over state-owned lands and waters

within CSUs, but in July 1996, NPS reversed course. Even if so,

NPS’s current view comports with the text of the statute, and

to the extent Sturgeon believes that NPS’s purported change in

position militates against deference, “[a]gency inconsistency is

not a basis for declining to analyze the agency’s interpretation

under the Chevron framework.” Nat'l Cable & Telecomms. Ass’n

v. Brand X Internet Servs., 545 U.S. 967, 981, 125 S. Ct. 2688, 162

L. Ed. 2d 820 (2005).

29a

Appendix B

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

established the Admiralty Island National Monument,

which was composed of 921,000 acres “of public lands.” Jd.

at 1416 (emphasis omitted) (quoting ANILCA, Pub. L. No.

96-487, § 503(b), 94 Stat. 2371 (1980)). The second, § 503(d),

stated that “[w]ithin the Monument{], the Secretary shall

not permit the sale of [sic] harvesting of timber.” /d.

Reading these two subsections in conjunction, we held

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

the boundaries of a National Forest System Monument” —

including private lands—“come within the harvesting

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

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

National Monument, “by definition, consists solely of

public or federally owned lands.” Jd. Thus, § 503(d)’s use

of the phrase “[w]jithin the Monument” was inapplicable

“to private lands which are within the boundaries of a

national forest conservation system unit.” Jd. (emphasis

added and omitted).

Marsh clearly is inapposite to the present dispute.

First, Marsh’s discussion of § 103(c) is largely dicta

because that subsection was inapplicable to the timber

harvesting ban at issue. While ANILCA § 103(c) refers to

“regulations applicable solely to public lands within such

units,” § 503(d) imposes a statutory prohibition against

timber harvesting. At most, Marsh drew inferences

from § 103(c) for the purpose of determining the reach of

§ 503(d). See id. at 1418 (noting that the court examined

sections 102, 103(c), 503(d), and 506(c) “harmoniously”

to determine Congressional intent regarding the ban

30a

Appendix B

on timber harvesting). Second, Marsh offers little

guidance in Sturgeon’s case because, if promulgated

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

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

regulations applying solely to public lands, while NPS’s

hovercraft ban does not. Section 503(d) specifically refers

to activities taking place “[w]ithin the Monument{],” and

thus only limits conduct taking place on public lands

within a specific CSU. For that reason, if promulgated as

an agency regulation, its harvesting ban would qualify

as a “regulation[] applicable solely to public lands within

{[CSuUs],” and would be unenforceable on state, Native, or

private-owned land under ANILCA § 103(c). As we noted

above, NPS’s hovercraft ban is not so constrained, and it

applies to federally owned lands and waters administered

by NPS nationwide, as well as navigable waters within

nationa’ »arks.

V.

We reject two additional arguments asserted by

Sturgeon, that the Secretary of the Interior exceeded her

statutory authority in promulgating the regulation at issue

and that her action raises serious constitutional concerns.

A.

The 1976 Park Service Administration and

Improvement Act (“1976 Act”) grants the Secretary of

the Interior broad authority over boating and water-

related activities within the National Park System. That

authorization provides as follows:

3la

Appendix B

[T)he Secretary of the Interior is authorized

. . . [to] [pJromulgate and enforce regulations

concerning boating and other activities on or

relating to waters located within areas of the

National Park System, including waters subject

to the jurisdiction of the United States: Provided,

That any regulations adopted pursuant to this

subsection shall be complementary to, and not

in derogation of, the authority of the United

States Coast Guard to regulate the use of

waters subject to the jurisdiction of the United

States.

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

portion of this subsection restricts the Secretary’s

regulatory power and does not permit her to regulate any

and all activities on waters within national parks.

However, the plain text of the 1976 Act merely requires

that any regulations promulgated by the Secretary

complement, and not derogate, Coast Guard authority

over waters subject to federal jurisdiction. It does not,

as Sturgeon argues, limit the Secretary’s regulatory

authority to that enjoyed by the Coast Guard. The Oxford

English Dictionary defines “complement” to mean “to

supply what is wanting,” 3 Ozford English Dictionary

610 (2d ed. 1989), and “derogate” to mean to “diminish,”

id, at 504. Thus, under the 1976 Act, the Secretary may

regulate boating and other water-related activities taking

place within the National Park System and its navigable

32a

Appendiz B

waters so long as those regulations supplement and do not

diminish the Coast Guard’s authority.*®

Indeed, the legislative history of the 1976 Act makes

this clear. The concern regarding the regulatory authority

of the Coast Guard was first raised by the Secretary of the

Interior in a letter to the House Committee on Interior

and Insular Affairs.? H.R. Rep. No. 94-1569, at 13 (1976),

reprinted in 1976 U.S.C.C.A.N. 4290, 4299. The Secretary

noted that the Coast Guard possessed existing authority

to “promulgate and enforce regulations for the promotion

of safety of life and property on . . . waters subject to

the jurisdiction of the United States.” Jd. (alteration in

original) (emphasis added) (quoting 14 U.S.C. § 2(8)).

Because many waters within the National Park System

were navigable, the Secretary noted that his agency would

“exercise authority concurrent with the Coast Guard in

8. Moreover, ANILCA § 1319 provides that “(njothing in

[the statute] shall be construed as . . . superseding, modifying, or

repealing, except as specifically set forth in this Act, existing laws

applicable to the various Federal agencies which are authorized to

... exercise licensing or regulatory functions in relation thereto.”

16 U.S.C. § 3207 (emphasis added).

9. The Secretary of Transportation also submitted a letter

to the House Committee “strongly object{ing]” to the fact that

the bill as drafted “would authorize the Secretary of the Interior

to promulgate and enforce boating regulations which relate

to construction, performance, and equipment standards”—

responsibility for which had been previously delegated to

“the Secretary of the department in which the Coast Guard is

operating.” H.R. Rep. No. 94-1569, at 24 (1976), reprinted in 1976

U.S.C.C.A.N. 4290, 4310.

33a

Appendix B

many instances,” and thus recommended an amendment

clarifying that the bill’s grant of regulatory authority

would “not diminish the Coast Guard’s authority under

existing law to regulate boat design and safety.” Jd. The

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

authority “to regulate recreational, commercial and

other uses and activities relating to all waters of the

National Park System.” Jd. (emphasis added).

The statute reflects just such a clarifying amendment.

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

the legislative history of the 1976 Act make clear that

Sturgeon’s argument that the Secretary of the Interior

exceeded her statutory authority is without merit.

Finally, Sturgeon contends that the Secretary’s

exercise of her regulatory authority under the 1976 Act

implicates “serious constitutional concerns.” Specifically,

he raises the specter of potex:tial violations of the Property

and Commerce Clauses, though without offering any

specifics as to how or why the NPS regulations contravene

those clauses. We therefore decline to invalidate NPS’s

hovercraft ban on constitutional grounds because

“[wjhatever the extent of the State’s proprietary

interest in [its] river[s], the pre-eminent authority to

regulate the flow of navigable waters resides with the

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

Hampshire, 455 U.S. 331, 338 n.6, 102 S. Ct. 1096, 71 L.

Ed. 2d 188 (1982); see also Alaska v. United States, 545

U.S. 75, 116-17, 125 S. Ct. 2137, 162 L. Ed. 2d 57 (2005)

34a

Appendix B

(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.”).

V1.

We hold that even assuming that the waters of and

lands beneath the Nation River have been “conveyed

to the State” for purposes of ANILCA § 103(c), NPS’s

hovercraft ban is not a regulation that applies solely to

public lands within CSUs in Alaska. Therefore, as to

Sturgeon, we affirm the district court’s grant of summary

judgment in favor of the federal appellees. Because Alaska

cannot establish standing on this record, we vacate the

district court’s judgment as to Alaska and remand with

instructions that Alaska’s action be dismissed for lack of

subject matter jurisdiction.

AFFIRMED IN PART, VACATED AND

REMANDED IN PART.

35a

APPENDIX C — DECISION OF THE UNITED

STATES DISTRICT COURT FOR THE DISTRICT

OF ALASKA, FILED OCTOBER 30, 2013

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

JOHN STURGEON,

Plaintiff,

and

STATE OF ALASKA,

Plaintiff-Intervenor,

vs.

SUE MASICA, et al.,

Defendants.

No. 3:11-cv-0183-HRH

DECISION

I. Procedural History.

In this action brought pursuant to the Administrative

Procedure Act, 5 U.S.C. §§ 701-06, plaintiff John Sturgeon

and plaintiff-intervenor the State of Alaska bring “as

applied” challenges to National Park Service (“NPS”)

regulations. Sturgeon and the State have timely filed their

36a

Appendix C

opening summary judgment briefs,’ to which defendants

have responded.’ Sturgeon and the State timely filed their

reply briefs* and defendants‘ have timely filed their sur-

reply’ as contemplated by the court’s scheduling order.*®

Oral argument has been heard.

On September 14, 2011, Sturgeon commenced this

action. In Count I of his complaint, he seeks a declaration

that the application of NPS regulations on lands belonging

to the State of Alaska that are within NPS conservation

system units created or expanded by the Alaska Native

Lands Conservation Act (herein “ANILCA”) are void as

applied to him.’ In Count II of his complaint, Sturgeon

seeks a declaration that “any regulations purporting to

authorize the NPS to enforce regulations which are solely

applicable to public lands within conservation units on

lands owned by the State of Alaska, including navigable

waters, within NPS conservation units created or

1. Docket Nos. 77 & 81.

2. Docket No. 84.

3. Docket Nos. 97 & 98.

4. Defendants are Sue Masica, Greg Dudgeon, Andee Sears,

Jonathan Jarvis, the National Park Service, Sally Jewel, and the

United States Department of the Interior.

5. Docket No. 101.

6. Docket No. 74 at 2.

7. Complaint for Declaratory Judgment and Injunctive Relief

at 14-15, 1 46, Docket No. 1.

37a

Appendia C

expanded by ANILCA are void.”* In Count III, Sturgeon

requests an order enjoining defendants “from interfering

with [his] operation of his hovercraft on state-owned

navigable waters within the Yukon-Charley” Rivers

National Preserve (herein “Yukon-Charley”).’ In Count

IV, he requests an order enjoining defendants “from

enforcing NPS regulations, which are solely applicable to

public lands within federal conservation system units, on

lands belonging to the State of Alaska, including navigable

waters, within the boundaries of NPS conservation units

in Alaska that were created or expanded by ANILCA.””

In its second amended complaint in intervention,"

the State asserted four claims for relief. The State’s first

claim for relief was a facial challenge to the regulations in

question.’ In its second claim for relief, the State seeks a

declaration that the application and enforcement of 36 C.

F. R § 1.2(a)(8) and § 13.2 violates § 103(c) of ANILCA.”

In its third claim for relief, the State seeks a declaration

that the Secretary’s denial of the State’s petition for rule-

making was arbitrary and capricious." In its fourth claim

for relief, the State seeks injunctive relief prohibiting the

8. Id, at 16, 9 51.

9. Id, at 17, 155.

10. Id, at 18-19, 1 60.

11. Docket No. 45.

12. Id, at 15, 19 56-57.

13. Id, at 15, 19 58-59.

14. Id, at 15, 19 60-63.

38a

Appendix C

application and enforcement of the regulations in question

on State-owned lands and waters.”

By order of September 19, 2012,"* the court rejected the

State’s first claim for relief which was a facial challenge to

the NPS regulations at issue here because that claim was

time-barred. Defendants now contend that both Sturgeon

and the State are in fact bringing facial challenges in the

guise of an “as-applied” challenge. Sturgeon and the State

have pled as-applied challenges. The facts upon which

Sturgeon and the State rely demonstrate application of

NPS regulations to the respective activities of Sturgeon

and the State. The court will address the as-applied

claims.

In their briefing to the court, the State and defendants

briefly discuss whether or not the State is challenging

36 C. F. R. § 13.2." The court finds no evidence in the

record that the defendants applied 36 C. F. R. § 13.2 to the

State. As discussed hereinafter, the principal issue here

is the applicability of 36 C. F. R. § 1.2 (which regulation

addresses the applicability of Title 36, Part 2, as well as

36 C. F. R. Part 13 regulations) to the conduct of Sturgeon

and the State.

15. Id, at 15, 19 64-65.

16. Docket No. 53.

17. 36 C. F. R. § 13.2 addresses the applicability and scope

of the Part 13 regulations which have application to NPS units

in Alaska.

39a

Appendix C

II. Statutory/Regulatory Background.

A. Alaska Native Claims Settlement Act.

In 1971, Congress enacted the Alaska Native Claims

Settlement Act (“ANCSA”) for purposes of addressing

and resolving outstanding aboriginal claims of Native

Alaskans which began to accrue in 1867 when the United

States purchased Russian-America (Alaska). In addition

to a monetary settlement and the conveyance of some 40

million acres of land to be divided amongst 220 Native

villages and 12 regional corporations, ANCSA created

the joint Federal-State Land Use Planning Commission

for Alaska’® and, by § 17(d)(2)(A), made provision for

the withdrawal from public domain 80 million acres of

unreserved public lands in Alaska for potential addition

to or creation of new units of the national parks, forests,

wildlife refuges, and wild and scenic river systems."

B. Alaska National Interest Lands Conservation

Act.

Based upon the work of the Commission, Congress

in 1980 enacted ANILCA. In furtherance of the ANCSA

§ 17(d)(2)(A) withdrawals, Title II of ANILCA makes

provision for the creation of or additions to the NPS.

Section 201 established new “units of the National Park

18. 43 U.S.C. § 1616. For convenience, we refer in the text

of this discussion to ANCSA and ANILCA sections by statutory

number, with parallel United States Code sections in a footnote.

19. 43 U.S.C. § 1616(d)(2)(A).

40a

Appendix C

System [which] shall be administered by the Secretary

under the laws governing the administration of such lands

and under the provisions of this Act/.]”*°Included as a

new area was Yukon-Charley, “containing approximately

one million seven hundred and thirteen thousand acres

of public lands, as generally depictec on map numbered

YUCH-90, 008[.]” § 201(10).” Section 201(10) expressly

sets forth the purposes for this withdrawal, one of which

was the maintenance of the environmental integrity of the

Charley River Basin in its undeveloped, natural condition.

Section 202 of ANILCA” adds to existing NPS units.”

Included by § 202(2)* is an addition to the Katmai National

Monument* of 1, 037, 000 acres of public land, to be known

as Katmai National Preserve [“Katmai”]. Katmai is to be

administered to protect habitat, including fish populations,

and to protect scenic geological, cultural, and recreational

features. § 202(2).”°

20. 16 U.S.C. § 410hh.

21. 16 U.S.C. § 410hh(10).

22. 16 U.S.C. § 410hh-1.

23. 16 U.S.C. § 410hh-1.

24. 16 U.S.C. § 410hh-1(2).

25. Renamed Katmai National Park by § 202(2).

26. 16 U.S.C. § 410hh-1(2).

4la

Appendix C

Included in Yukon-Charley are the lower reaches

of the Nation River. Included in Katmai is the Alagnak

River.”"

For purposes of the implementation of ANILCA, that

act contains definitions which are critical to understanding

the act. The key terms are “land,” “federal land,” and, most

important of all, “public lands.” “Land” means “lands,

waters, and interests therein.” § 102(1).%* “Federal land”

means “lands the title to which is in the United States”

after the date of enactment of ANILCA. § 102(2).” “Public

lands” means “land situated in Alaska which, “after the

date of enactment of ANILCA are Federal lands, except:

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 of the

State under any other provision of Federal Law.

§ 102(8)(A).* Finally, “conservation system unit” is defined

to include the various NPS units addressed by ANILCA.

§ 102(4)." Yukon-Charley and Katmai are conservation

system units for purposes of ANILCA.

27. The Alagnak River is also designated by § 601(25) as

a wild and scenic river within the NPS. 16 U.S.C. § 1274(a)(25).

28. 16 U.S.C. § 3102(1).

29. 16 U.S.C. § 3102(2).

30. 16 U.S.C. § 3102(8)(A).

31. 16 U.S.C. § 3102(4).

42a

Appendix C

Collapsing the foregoing definitions for ease of

discussion of the circumstances in this case, “public lands”

are waters or interests in waters in Alaska owned by the

United States in 1980. Excluded from public lands are

interests in land and/or water confirmed or granted to

the State of Alaska under any federal law.

Somewhat buried in the “maps” section of ANILCA

is § 103(c)* which is at the heart of this litigation:

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.

C. National Park Service Administration

Improvement Act and Regulations.

In order to facilitate the administration of

the national park system, the Secretary of the

32. 16 U.S.C. § 3103(c).

43a

Appendix C

Interior is authorized, under such terms and

conditions as he may deem advisable, to carry

out the following activities:

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: Provided,

That any regulations adopted pursuant to this

subsection shall be complementary to, and not

in derogation of, the authority of the United

States Coast Guard to regulate the use of

waters subject to the jurisdiction of the United

States.

16 U.S.C. § 1a-2(h).

Relying upon and in furtherance of the above act,

the Secretary of the Interior had adopted by 1997 the

following general provision of Title 36 of the Code of

Federal Regulations for areas administered by the NPS.

Section 1.2 provides as follows:

33. The parties have discussed at length the history of 36 C.

F. R. § 1.2. Because this 1997 regulation is clear and unambiguous,

and because the court has before it only as-applied challenges to

the NPS regulations, there is no need to delve into the development

of § 1.2. It is the interplay between § 1.2 and ANILCA § 103(c)

which is critical to a disposition of this case.

44a

Appendix C

4s oplicabili

(a) The regulations contained in this chapter

apply to all persons entering, using, visiting, or

otherwise within:

(1) The boundaries of federally owned land

sand waters administered by the National Park

Service;

(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 low-lands;

(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

45a

Appendix C

do not apply on non-federally 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.

36 C. F. R. § 1.2(a), (b).

Summarizing the foregoing, subsections (a)(1) through

(5) of § 1.2 apply to everyone going within the boundaries

of all NPS administered lands in the United States.

Navigable waters within the boundaries of such lands

are subject to regulation, irrespective of ownership of

submerged lands.™

The Secretary of the Interior has also promulgated

36 C. F. R. Part 13, containing regulations applicable to

the NPS units in Alaska. Section 13.2(a) provides:

The regulations contained in part 13 are

prescribed for the proper use and management

of park areas in Alaska and supplement the

general regulations of this chapter. The general

regulations contained in this chapter are

applicable except as modified by part 13.

36 C. F. R. § 13.2(a). With respect to park areas, § 13.2(b)

provides:

34. For reasons explained hereinafter, the provisions of

§ 1.2(a)(5) do not come into play in this case.

46a

Appendiz C

Subparts A through F contain regulations

applicable to park areas. Such regulations

amend in part the general regulations contained

in this chapter. The regulations in subparts

A through F govern use and management,

including subsistence activities, within the

park areas, except as modified by special park

regulations in subparts H through V.

36 C. F. R. § 13.2(b).

In furtherance of his/her general administrative

duties, the Secretary of the Interior has promulgated

specific regulations which pertain to entries within the

boundaries of NPS administered lands using hovercraft

or helicopters. Title 36, Code of Federal Regulations,

§ 2.17(e), provides that “{tJhe operation or use of hovercraft

is prohibited.” Section 2.17(a)(3) provides that the following

is prohibited:

Delivering or retrieving a person or object

by parachute, helicopter, or other airborne

means, except in emergencies involving public

safety or serious property loss, or pursuant to

the terms and conditions of a permit.

36 C. F. R. § 2.17(a)(8).

Part 2 regulations, including § 2.17(a)(3) and (e), are

expressly subject to § 1.2(a), as provided by § 1.2(b). Part

13 regulations are also subject to § 1.2(a), as provided

by § 1.2(b), except to the extent that Part 13 regulations

47a

Appendix C

modify or amend the general regulations. Sturgeon and

the State have not pointed to, and the court does not

perceive there to be any amendment of the subparts A

through F, Alaska-specific regulations with respect to

park areas.* Therefore, the regulations specific to the

use of helicopters and hovercraft have application within

the boundaries of Yukon-Charley and Katmai, including

the navigable waters of those NPS administered areas,

unless Sturgeon and the State are correct in arguing that

36 C. F. R. § 1.2 (and therefore§§ 2.17(a)(3) and (e) and

Part 13 as well) does not apply within the boundaries of

Yukon-Charley and Katmai because of the provisions of

ANILCA § 103(¢).*

III. Factual Background.

Sturgeon’s complaint and the State’s second amended

complaint in intervention focus upon their respective use

of the Nation River and the Alagnak River. The lower

reaches of the Nation River are within the boundaries of

Yukon-Charley. The upper reaches of the Alagnak River

are within the boundaries of Katmai. Both Yukon-Charley

and Katmai are national parks created or expanded by

ANILCA §§ 201 and 202. The Nation River arises in the

35. There are, in subparts H and O, special regulations

applicable to the Alagnak River as a wild river and to Katmai

National Park and reserve. The Alagnak regulation has to do

with bear viewing. 36 C. F. R. § 13.550. The subpart O regulations

contain general provisions with respect to fishing, wildlife viewing,

firearms, and the use of Lake Camp and Brooks Camp Developed

Area. 36 C. F. R. §§ 13.1202-1242.

36. 16 U.S.C. § 3103(©).

48a

Appendix C

Ogilvie Mountains of Yukon Territory, Canada, near the

U. S. border, and flows in a southerly direction into Alaska

and then into the northeastern quadrant of Yukon-Charley

where it ultimately joins the Yukon River. The Alagnak

River arises in the Aleutian Range south of Lake Iliamna

and flows in a westerly direction through Katmai National

Preserve. The Alagnak empties into Kvichak Bay, then

into Bristol Bay.

It is undisputed that those portions of the Nation and

Alagnak Rivers which are the subject of this litigation are

within a conservation system unit as defined by § 102(4)

and that both rivers have been determined to be navigable.

Because the Nation and Alagnak Rivers are navigable, the

State holds title to the lands under the navigable waters

in trust for the people of Alaska, “that they may enjoy

the navigation of the waters, carry on commerce over

them, and have liberty of fishing therein, freed from the

obstruction or interference of private parties.” Il]. Cent.

R. Co, v. State of Ill., 146 U.S. 387, 452, 13 S. Ct. 110, 36

L. Ed. 1018 (1892); Alaska v. United States, 545 U. S. 75,

78-79, 125 S. Ct. 2137, 162 L. Ed. 2d 57 (2005).*"

Sturgeon alleges that while he was on a moose hunting

trip in 2007, the NPS informed him that he could not use

37. “The common-law public trust doctrine has been

incorporated into the constitution and statutes of Alaska.” State,

Dep’t of Natural Resources v, Alaska Riverways, Inc., 232 P.

3d 1203, 1211 (Alaska 2010). “The people of the state have a

constitutional right to free access to and use of the navigable or

public water of the state” and “[tJhe state has full power and control

of all of the navigable or public water of the state, both meandered

and unmeandered[. ]” AS § 38. 05. 126(a), (b).

49a

Appendiaz C

his small personal hovercraft on the Nation River within

the boundaries of the Yukon-Charley. Sturgeon alleges

that upon returning from his hunting trip, he had phone

conversations and met with Andee Sears, a special agent

for the NPS, who “reaffirmed the NPS’s position that

use of a hovercraft within the boundaries of the Yukon-

Charley is a crime . . . and warned plaintiff that he would

be criminally cited if he ever again operated the hovercraft

within the Yukon-Charley”.* In October 2010, Sturgeon

petitioned the NPS “to engage in rule-making to repeal or

amend NPS regulations so that the NPS would no longer

assert the authority to restrict access on navigable waters

located within the boundaries of park areas in Alaska.”*

Sturgeon received no response to his petition.“ On July 26,

2011, Sturgeon sent a letter to the regional chief ranger of

the Alaska district of the NPS, requesting that the chief

ranger “confirm in writing whether I will be able to launch

in the Yukon or the lower reaches of the Nation with my

hovercraft so I can access that part of the Nation upriver

from the Yukon-Charley boundary.™ Sturgeon received

no response to this letter.

38. Complaint for Declaratory Judgment and Injunctive

Relief at 11, 136, Docket No. 1.

39. Id, at 12, 7 40; see also, Exhibit A, Complaint for

Declaratory Judgment and Injunctive Relief, Docket No. 1.

40. Id, at 13.

41. Exhibit B at 2, Complaint for Declaratory Judgment and

Injunctive Relief, Docket No. 1.

42. Complaint for Declaratory Judgment and Injunctive

Relief at 13, 1 41, Docket No. 1.

50a

Appendiaz C

In 2010, the Alaska Department of Fish and Game was

required to apply to defendants for a scientific research

and collecting permit to conduct genetic sampling on chum

salmon in the Alagnak River.“ “Access to State lands was

to be by helicopter. . . .“*

On September 30, 2010, the State petitioned the

Secretary of the Interior to repeal or amend § 1.2(a)(3)

to make it in applicable to Alaska, with a corresponding

repeal of the revisions to 36 C. F. R. § 13.2. The petition

was denied on January 13, 2012.“

LV. Jurisdiction.

The parties disagree as to whether Sturgeon and the

State have standing to bring their as-applied regulatory

claims with respect to the Kobuk and Yukon Rivers.“

Sturgeon mentions the Yukon River in his complaint, but

he has not asserted any separate claim based upon the

Yukon River; and the NPS regulations that Sturgeon is

challenging were applied to him with respect to his use of

43. Second Amended Complaint in Intervention [etc. ] at 12,

41 2b, Docket No. 45.

44. Jd, at 13.

45. Id, at 11,144.

46. Id, at 11, 7 46.

47. Defendants concede that this court has jurisdiction over

Sturgeon’s claims based on the Nation River and the State’s claims

based on the Alagnak River. Defendants’ Sur-Reply on Motions

for Summary Judgment at 4, Docket No. 101.

5la

Appendix C

a hover-craft on the Nation River within Yukon-Charley.

Similarly, the State never pled any factual allegations

relating to its access to the Kobuk National Park. The

court therefore concludes that it is defendants’ application

of 36 C. F. R. § 1.2 and the related Part 2 regulations to

Sturgeon and the State with respect to their operations on

the Nation and Alagnak Rivers which is before the court.

Claims as to the Kobuk and Yukon Rivers have not been

put before the court.

V. Standard of Review.

“Summary judgment is a suitable vehicle for resolution

of a challenge to agency action under the Administrative

Procedure Act. .

” Western Watersheds Project v.

+ F. Supp. 2a 1095, _ (D. Mont. yy (citing

P 3d 1468, 1471-72 Oth Cir. 1994). —— — the

typical civil summary judgment resolution, the [cJourt

does not make findings of fact or determine the existence

of genuine issues of material fact.” Id, “The [clourt must

instead review the Administrative Record that was

before the federal agency at the time it made its decision

to determine whether the record supports the agency’s

decision. . . .” Id,

“*‘Because this case involves an administrative

agency’s construction of a statute that it administers, [the

court’s] analysis is governed by Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc,, 467 U. S. 837,

1048S. Ct. 2778, 81 L. Ed. 2d 694. .. .”” Rodriguez v. Smith,

541 F.3d 1180, 1183 (9th Cir. 2008) (quoting Mujahid v.

52a

Appendix C

Daniels, 413 F.3d 991, 997 (9th Cir. 2005)). “Under the

Chevron framework” the court “must ‘first determine[]

if Congress has directly spoken to the precise question at

issue, in such a way that the intent of Congress is clear.”

Id, at 1184 (quoting Mujahid, 413 F. 3d at 997). “If the

intent of Congress is clear, that is the end of the matter;

for the court, as well as the agency, must give effect t«

the unambiguously expressed intent of Congress.” I

(quoting Chevron, 467 U. S. at 842-43). “{I]f the statute

is silent or ambiguous with respect to the specific issue,

the court moves to step two of the Chevron inquiry, and

considers ‘whether the agency’s answer is based on a

permissible construction of the statute.”” Blandino-Medina

v. Holder, 712 F. 3d 1338, 1343 (9th Cir. 2013) (quoting

Chevron, 467 U. S. at 843).

VI. Discussion.

Sturgeon and the State argue that the NPS general

regulations may not be applied to them because of § 103(c)

of ANILCA. They point out that 36 C. F. R. § 1.2 purports

to grant the NPS regulatory authority over state-owned

navigable waters within the boundaries of Yukon-Charley

and Katmai. They contend that § 103(c) of ANILCA forbids

the NPS from exercising its regulatory authority over

state-owned navigable waters within park boundaries in

Alaska.

48. 16 U.S.C § 3103(c).

53a

Appendix C

The first sentence of § 103(c) provides:

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.”

It is clear beyond any room for discussion that the river

beds and waters of the Alagnak and Nation Rivers

are lands within the boundaries of Yukon-Charley and

Katmai, both of which are ANILCA conservation system

units. The first sentence of § 103(c) provides that only

“public lands” are part of the respective conservation

units (Yukon-Charley and Katmai). The State’s submerged

lands — the beds of the Nation River and the Alagnak

River — are owned by the State, not the United States.

The river beds are not included in — are not part of —

conservation units Yukon-Charley or Katmai.

The State’s submerged lands — the beds of the

Nation River and the Alagnak River — are not the only

interests to be addressed. For purposes of ANILCA,

“land” means land or water or interests in them. The

State owns “the natural resources within such lands and

waters.” 43 U.S.C. § 1311(a). The United States is entitled

to regulate and improve navigation on navigable waters

in furtherance of commerce. United States v, 32.42 Acres

of Land in San Diego County, 683 F.3d 1030, 1037 (9th

Cir. 2012). However, the federal government’s rights as

49. 16U.S.C § 3103(c).

54a

Appendix C

regards navigation is not an interest inland for purposes

of ANILCA. Alaska v. Babbitt, 72 F. 3d 698, 702-03 (9th

Cir. 1995) (“Katie John I”). The Katie John I decision

stands for the further proposition that the United States

may have reserved water rights with respect to navigable

waters within ANILCA conservation units; and where

such reserved water rights exist, the United States does

own public land for purposes of ANILCA. Id. at 703-04.

The State claims to “own” the waters of the Nation and

Alagnak Rivers. Defendants contend that the United

States owns reserved water rights in the Nation and

Alagnak Rivers, thereby making the rivers “public lands”

for purposes of ANILCA.

Each of the United States and the State have

correlative rights with respect to navigable waters. But we

need not decide here which if any of the correlative rights

with respect to the navigable waters (as distinguished

from submerged lands) of the Nation and Alagnak Rivers

are owned by the State or the United States, or whether

such interests are or are not public land. The principal

issue in this case is whether or not 36 C. F. R. § 1.2(a)

(and therefore also § 2.17 and Part 13) applies to the

respective operations of Sturgeon and the State within

the boundaries of Yukon-Charley and Katmai. The first

sentence of § 103(c) does not address that issue.

The second sentence of § 103(c) does address the

application of Title 36 regulations. It reads:

50. Katie John ] “remains controlling law” despite Katie

John IL. John v. United States, 720 F.3d 1214, 1226 (9th Cir. 2013).

55a

Appendix C

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 suchunits.”

The parties disagree as to whether the beds of the

Nation and Alagnak Rivers, and such other rights as the

State may own, were “conveyed to the State.” The river

beds were not transferred to the State by means of a

deed or patent such as the federal government routinely

uses in transferring selected lands from public domain to

the State. Here, there is no evidence of a conveyance of

river beds to the State. However, § 102(3)(A) of ANILCA

expressly provides that “lands which have been confirmed

to... or granted to the Territory of Alaska or the State

under any other provision of Federal law” are excluded

from “public lands.”™ The State acquired title to the beds

of the Nation and Alagnak Rivers under the Statehood

Act, Pub. L. No. 85-508, 72 Stat. 339 (1958), and the

Submerged Lands Act, 43 U.S.C. §§ 1311-15. Because of

the State ownership of the river beds, those river beds

are not “public lands” for purposes of ANILCA. § 102(8).*

However, the fact that the beds of the Nation and Alagnak

Rivers are not public lands does not answer the question:

“Does 36 C. F. R. § 1.2 and the underlying specific

regulations of 36 C. F. R. Part 2 or Part 13 nevertheless

51. 16 U.S.C. § 3103(c).

52. 16 U.S. C. § 3102(8)(A).

53. 16 U.S.C. § 3102(3).

56a

Appendix C

have application to the activities of Sturgeon and the State

within the boundaries of Yukon-Charley and Katmai?”

On its face, § 1.2 has application to them because, on the

facts of this case, both Sturgeon and the State entered

and carried on activities “within. . . [t]he boundaries of

federally owned lands and waters administered by the

National Park Service. . . .” 36 C. F. R. § 1.2(a). Again,

subsection (a) is applicable by the terms of 36 C. F. R.

§ 1.2(b), and application of § 1.2(a) does not depend upon

ANILCA or the State’s rights as to navigable waters.

Assuming for the sake of discussion that the beds of

the Nation and Alagnak Rivers which the State owns by

virtue of the Submerged Lands Act are deemed to have

been “conveyed” to the State for purposes of § 103(c) of

ANILCA,"™ the second sentence of § 103(c) is dispositive

in this case. The regulations which § 103(c) excludes from

application to State lands are those “regulations applicable

solely to public lands within such units.” Title 36, C. F. R.

§ 1.2, and Part II of Title 36 (including § 2.17)were enacted

by the Department of the Interior pursuant to its general

authority to adopt regulations for all NPS administered

lands and waters. None of those regulations was adopted

“solely” to address entry upon or use of various equipment

on public lands within ANILCA-created conservation

units such as Yukon-Charley and Katmai.

There are regulations contained within Title 36 which

have been adopted and are “applicable solely to public

54. 16 U.S.C. § 3103(c).

55. 16 U.S.C. § 3103(c).

57a

Appendix C

lands within [ANILCA units].” 36 C. F- R. § 103(¢).© Part

13 of Title 36 contains the regulations which are applicable

to NPS units in Alaska, including Yukon-Charley and

Katmai. The Part 13 regulations “supplement the general

regulations. . . .” 36 C. F. R. § 13.2(a). Part 13 regulations

might “modify” or “amend” general regulations applicable

to park areas. 36 C. F. R. § 13.2(a) and (b). But Part 13

regulations have not altered or amended the helicopter or

hovercraft regulations of § 2.17.

It is arguable that Part 13 regulations do not apply to

state-owned submerged lands within Yukon-Charley and

Katmai because of § 103(c).” But the regulations which

expressly proscribe the use of hovercraft and helicopters

within the boundaries of NPS administered lands are

contained in Part 2 of Title 36, not Part 13. The regulations

contained in Part 2, and in particular §§ 2.17(e) and

2.17(a)(3) are not regulations applicable solely to public

lands within conservation system units. They are

regulations of general application across the entirety of

the NPS.

The foregoing disposes of Sturgeon’s and the State’s

claims based upon NPS regulations. There remains the

State’s third claim for relief by which the State seeks

review of the defendants’ denial of its petition for rule-

making. The State did not present any argument with

respect to its third claim in its opening brief. Defendants

contend that the claim has been abandoned. The State

56. 16 U.S.C. § 3103(c).

57. 16 U.S.C. § 3103(c).

58a

Appendiz C

contends that it addressed this claim because, if the

challenged regulations are invalid, then it was arbitrary

and capricious of the defendants to deny the State’s

petition for rule-making. Inasmuch as defendants have

prevailed with respect to the application of 36 C. F. R.

§ 1.2, it follows that the denial of the State’s petition for

rule-making was not arbitrary or capricious.

VII. Conclusion

The court concludes that 36 C. F. R. § 1.2(a), §§ 2.17(@)

and 2.17(a)(3) were properly applied to the respective

operations of Sturgeon and the State.

Sturgeon’s complaint®™ is dismissed with prejudice.

Intervenor the State of Alaska’s second amended

complaint is dismissed with prejudice. The clerk of court

shall enter judgment accordingly.

DATED at Anchorage, Alaska, this 30th day of

October, 2013.

/s/ H, Russel Holland

United States District Judge

58. Docket No. 1.

59. Docket No. 45.