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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2015

## Text

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 ho

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0549%3A01. Public record. Not legal advice.