Amicus Curiae Brief — Sturgeon v. Masica, 136 S. Ct. 27 (2015) (No. 14-1209)

No. 14-1209

—_—_—_—————————— ss

IN THE

Supreme Court of the United States

JOHN STURGEON,

Petitioner,

Vv.

BERT FROST, IN HIS OFFICIAL CAPACITY

AS ALASKA REGIONAL DIRECTOR OF THE

NATIONAL PARK SERVICE, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR UNITED STATES SENATORS

SULLIVAN AND MURKOWSKI AND

REPRESENTATIVE YOUNG AS

AMICUS CURIAE IN SUPPORT OF

PETITIONER JOHN STURGEON

JONATHAN W. KATCHEN

Counsel of Record

KYLE W. PARKER

CROWELL & MORING LLP

1029 W. Third Avenue, Suite 550

Anchorage, Alaska 99501

(907) 865-2600

jkatchen@crowell.com

Counsel for United States Senators

Sullivan and Murkowski and

Representative Young

November 23, 2015

RC TAA

Wicson-Epes PriInTING Co., Inc. — (202) 789-0096 — WASHINGTON, D. C. 20002

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE........................... 1

INTRODUCTION AND SUMMARY OF

IIIT scccttidinistnddinetemnanieteinnnininiieneeonninin 2

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TTI iiisinincnidenepsinenniiiimimaddemmimiaiiniigtiin 6

TTT ii letitiuahiuactpsnaaiascinnaitinitaniiadniatiadianabbesaandiagle 10

Bia eiciiih tine atiitaineah atin elniniiiaitetbesanamaannninils 12

Section 103 of ANILCA..............ccccccesecccsssseeees 16

SEIT ilsiictiisibiniciiisgibensiniieiiiatatditinibeniaineeNiatis 19

I. SECTION 103 OF ANILCA CLEARLY

PROHIBITS PARK SERVICE

REGULATORY JURISDICTION

OVER NON-FEDERAL LANDS AND

Weta nssicccsnsennansacnnsnncsessemnseensssnstossscense 19

A. The Plain Text of Section 103(c)

Does Not Authorize the Park

Service to Regulate State and

ANCSA Lands Within

Conservation System Units..................... 20

B. Nothing in Legislative History

Supports the Ninth Circuit’s

Holding that Section 103(c)

Authorizes the Park Service to

Apply National Regulations to

Ee 23

C. Congressional Silence Regarding

the Scope of Regulatory

Jurisdiction Does Not Entitle

Administrative Agencies To

TET NRRL en aaa ee a 24

(i)

Il. EVEN IF CHEVRON STEP TWO

GOVERNS, THE PARK SERVICE’S

INTERPRETATION IS BASED ON AN

IMPERMISSIBLE CONSTRUCTION

ig 27

A. The Park Service’s Construction of

Section 103(c) Enmcroaches' on

Traditional State Power in

Violation of Congressional Intent. .......... 28

B. The Park Service’s Construction of

Section 103(c) Violates

Commitments Made by Congress

To Native Corporations. ........................+. 31

ESE ee eee ee nS 33

(ii)

TABLE OF AUTHORITIES

Page(s)

Cases

Amoco Prod. Co. v. Village of Gambell,

| EO 5, 6, 16, 21

Andrus v. Utah,

etal 8

Barnhart v. Sigmon Coal Co.,

ae 19, 20

Beecher v. Wetherby,

EEN nee ee nae 8, 29

Chamber of Commerce v. NLRB,

721 F.3d 152 (4th Cir. 2013) ........0....0000...0cc.c eee 25

Chevron U.S.A. Inc. v. Nat. Res. Def.

Council, Inc.,

a ini ccdiccaiinicmtiiciatidians passim

City of Angoon v. Marsh,

749 F.2d 1413 (9th Cir. 1984).................... passim

City of Saint Paul, Alaska v. Evans,

344 F.3d 1029 (9th Cir. 2008) ..............0....0000000 31

Dolan v. U.S. Postal Service,

i alanis 6

TABLE OF AUTHORITIES—Continued

Edmonds v. Compagnie Generale

Transatlantique,

AER a 31

FERC v. Mississippi,

ET I en nn 28

Friends of the Earth v. EPA,

446 F.3d 140 (D.C. Cir. 2006) ......000... ee. 26

Gonzales v. Oregon,

eae 25

Hawaii v. Office of Hawaiian Affairs,

ey BI civhictunisenctecnndnoccnusnnsecs 10, 29, 30

Hess v. Port Auth. Trans-Hudson

Corp.,

ET En 28

John v. United States,

247 F.3d 1032 (9th Cir. 2001) ....00...... ccc eececceeeeee 3

John v. United States,

720 F.3d 1214 (Oth Cir. 2013)...........cccccccccccccccceeee 3

King v. Burwell,

I eel 20

Koniag, Inc. v. Koncor Forest Res.,

39 F.3d 991 (9th Cir. 1994) .................cccccccesseeees 11

(iv)

TABLE OF AUTHORITIES—Continued

La. Pub. Serv. Comm'n v. FCC,

eee a 26

Metlakatla Indian Cmty., Annette

Islands Reserve v. Egan,

SET a Rene 6

NRDC v. EPA,

749 F.3d 1055 (D.C. Cir. 2014) .....................0000 25

PUD No. 1 of Jefferson Cnty. v. Wash.

Dept. of Ecology,

TN iin iciilinciiceininiacietentnninnibendenh 31

Ry. Labor Exec. Ass’n v. Nat

Mediation Bd.,

29 F.3d 655 (D.C. Cir. 1994) ........................ 25, 26

Solid Waste Agency of N. Cook Cty. v.

U.S. Army Corps of Eng’rs,

SEE Ie 28

State of Alaska v. Ahtna, Inc.,

891 F.2d 1401 (9th Cir. 1989)........................000 10

State of Alaska v. Babbitt,

72 F.3G GOS Ct Cir. 1006) ...........ccccscccccsccsersoceees 3

State v. Lewis,

559 P.2d 630 (Alaska 1977)..................c0ccscccesseeees 7

(v)

TABLE OF AUTHORITIES—Continued

Sturgeon v. Masica,

768 F.3d 1066 (9th Cir. 2014) ........................ 5, 23

Tarrant Regi Water Dist. v. Herrmann,

ey Ci IT ciincciccnnstnininicenicinndielnuiiinimaiaal 28

Texas v. United States,

497 F.3d 491 (5th Cir. 2007) ...........................000 25

Trustees for Alaska v. State,

736 P.2d 324 (Alaska 1987).................... 6, 7, 8, 30

United States v. Atl. Richfield Co.,

435 F. Supp. 1009 (D. Alaska 1977) .............. 9,11

United States v. Brown,

No. 94-30019, 1994 WL 16122537

Sy GR GEE Ge, IEE cetticoteovenaenevectenunnssncteiinnis 18

Utah v. Andrus,

486 F. Supp. 995 (D. Utah 1979) ....................... 10

Util. Air Regulatory Grp. v. EPA,

ys Ce CEE cetcsntiticrsistitectisnnnignimmmaiiaaal 26

Watt v. Alaska,

ee IE viiciitcnectintisinetitaiiianiiaiamaiiintiiiiiaiiial 6

Whitman v. Am. Trucking Ass’ns, Inc.,

ee Se Se Se inicncintentnnaismmeneetntaiie 20, 25

Wilderness Soc’y v. Griles,

A 22

(vi)

TABLE OF AUTHORITIES—Continued

Statutes and Constitutional Provisions

BO UIC. © GOOG anniscceccecscescccccccsscccecvseceseese 17

a sesamienasenine 17

ETT NE 18

TD 22

16 U.S.C. § 8101(d) ......ccscccscceeecseeseeeseees 14, 17, 22, 23

a 16, 23

0 16

TT EEE 16

0 12

Lie Toe F ” ; | | ac 16

comin 30

16 U.S.C. § 8103(C).......cccscsesscessssessseessesenecen 16, 21, 23

I. eatuseusutscnnsesoneunnsennens 22, 23

CS 23, 30

BB UII.G. 6 BERT RD acca ccccescecescceccecesccccnsceese 23, 30

eee 17

TABLE OF AUTHORITIES—Continued

aE 22

16 U.S.C. § 3142(8)-(b).......ccccsccesssvessessseesssessseseneeen 18

i iaierricnsiceonontacinennnpnstiieatnianiiaiasst 22

| ee 22

I i ctsitalisnnstecacciearesnciintensinenaniasdin 22

ao csenietenonemeeed 17

TE SE 22

nae a 15, 16

TR as CET 31

I I a siicceositesstenintecescsictianicinns 11

ii iviccinicastninttcrsnienenemnadiannadl 11

nt eens 11

I iscnirnicisiicecasesitatieesentnninttinninieniii 11

i onccininincnsindattachaieiniainahendtemanssdiia 12

I i isn cinenecnetneniiaiiamiintadiiaalil 12

Alaska Const. art. VIII, § 1 .......ccssccssssesssessssessseesseeen 9

Alaska Const. art. VIII, § 2 .......cc:sccsssssssssessssesesseesnees 9

(viii)

TABLE OF AUTHORITIES—Continued

Alaska National Interest Lands

Conservation Act (““ANILCA”), Pub.

L. No. 96-487, 94 Stat. 2371 (1980).

Alaska Native Claims Settlement Act,

Pub. L. No. 92-203, 85 Stat. 688

GG Op cxcnenesenssssensnessessosissncsnntocsnensnenees

Alaska Stat. §§ 38.04.005 - .015............

Alaska Stat. § 44.99.100(a) ...................

Alaska Stat. § 44.99.110..............:..cc000.

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

508, 72 Stat. 339 (1958) ...................

Submerged Lands Act of 1953, 67 Stat.

En eee

Regulations

36 C.F.R. § 1.2(a)(3) ...ceccoecceccoesseesseeesveen

General Provisions and Non-Federal

Oil and Gas Rights, 80 Fed. Reg.

65,572 (Oct. 26, 2015)...........ccceceeeee

(ix)

senduneegs passim

TABLE OF AUTHORITIES—Continued

General Regulations for Areas

Administered by the National Park

Service and National Park System

Units in Alaska, 61 Fed. Reg.

a 18

National Park System Units in Alaska,

46 Fed. Reg. 31,836 (June 17, 1981)............ 17, 18

Other Authorities

106 Come, Bec. 12,066 (19GB) ......ccccccccccscscscoscscscsscess 9

125 Cong. Rec. 11,168 (1979) ..............c.cccccccrsecesecees 23

126 Comg. Rec. 11,467 (1297S) .........cccccccossccccccccscocees 13

126 Cong. Rec. 30,498 (1980) ................cccceeeeeees 13, 22

158 Cong. Rec. 15811-15816 (2011)........................ 10

S. Rep. No. 96-413 (1979) ...............ccccccsceeees 13, 23, 24

Eric Todderud, The Alaska Lands Act:

A Delicate Balance Between

Conservation and Development, 8

Pub. Land L. Rev. 143 (1987)..........................0000. 2

James D. Linxwiler & Joseph J.

Perkins, A Primer on Alaska Lands,

61 Rocky Mtn. Min. L. Inst. 7-1

STII lcesitnidinisieitieihiintiadieeiiiiattainiineaaaaes 5, 13, 15, 17

TABLE OF AUTHORITIES—Continued

Statehood for Alaska: Hearings Before

the Subcommittee on Territorial and

Insular Affairs of the House Comm.

on Interior and Insular Affairs, 85th

Cong., Ist Sess. 201-02 (1957) ..................cccccc000es

(xi)

INTEREST OF AMICUS CURIAE!

Amici curiae United States Senators Dan

Sullivan and Lisa Murkowski and Representative

Don Young represent Alaska. Senator Murkowski is

Chairman of the Senate Committee on Energy and

Natural Resources, which has jurisdiction over

federal public lands, including the National Parks.

Senator Sullivan is a member of the Senate

Committee on Environment and Public Works.

Both committees provide legislative oversight of the

Department of the Interior. Representative Young,

the longest serving current member of the Alaska

congressional delegation, served in Congress at the

time of enactment of the Alaska National Interest

Lands Conservation Act (“ANILCA”), Pub. L. No.

96-487, 94 Stat. 2371 (1980), 16 U.S.C. § 3101 et

seq., the statute at issue in this case, and

contributed to the passage of the bill.

Amici curiae thus are positioned to provide the

Court with the background and history which

facilitates the proper interpretation of Section 103(c)

of ANILCA.

Additionally, amici curiae have a solemn and

abiding interest in safeguarding the proper

construction of the three landmark Acts which

define the federal government’s relationship to the

State of Alaska, and the people of Alaska: the

1 No party or counsel for a party authored this brief in

whole or in part. No party, counsel for a party or person other

than amici curiae or their counsel made any monetary

contribution intended to fund the preparation or submission of

this brief. All parties have given their consent to this filing in

letters that have been lodged with the Clerk.

2

Alaska Statehood Act, Alaska Native Claims

Settlement Act, and ANILCA. To this end, amici

curiae are committed to seeing that federal courts

and agencies honor the commitments made in all

three Acts and that federal agencies faithfully

comply with the limits to their power imposed by

Congress.

Finally, recent experience has shown that

federal agencies, with alarming frequency, strain to

find ambiguity in even the plainest words. Agencies

then claim they are entitled to deference under

Chevron? to support their interpretations of those

words. In the end, the result is an expansion of

agency authority far beyond that which Congress

affirmatively delegated. When courts defer to

implausible agency interpretations of statutory

language, they are not only allowing the executive

branch to increase federal authority unilaterally,

they are undermining the separation of powers — the

balance ao carefully struck in the Constitution — and

making it nearly impossible for Congress to

effectively limit executive agency authority. That is

what has happened in this case.

INTRODUCTION AND SUMMARY OF

ARGUMENT

In a series of landmark Acts affecting Alaska

lands, Congress carefully and deliberately balanced

Alaska’s interests with conservation concerns.’ To

2 Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467

U.S. 837 (1984).

3 Eric Todderud, The Alaska Lands Act: A Delicate Balance

Between Conservation and Development, 8 Pub. Land L. Rev.

143 (1987).

3

achieve this balance, Congress set out firm limits on

federal authority to safeguard Alaska’s sovereign

right to manage its lands and to enable Alaska’s

Native peoples the opportunity to occupy, use and

develop their aboriginal homeland. Not surprisingly

the executive branch, feeling constrained by the

limits Congress has placed on that authority, has

pushed and tested the boundaries of its authority

during much of Alaska’s history. Agencies, after all,

do what they regard as expedient and necessary,

backing down only when the courts tell them they

have overreached.

In this case, the National Park Service (“Park

Service”) misread Section 103(c) of ANILCA to

expand its authority and promulgate regulations

that ban the use of hovercrafts on State of Alaska

lands located within a National Preserve.‘

The Park Service’s interpretation of Section 103

takes a provision that limits federal authority and

transforms. it into a wellspring of power over

Alaska’s lands and resources. Worse, over the last

several years, the Park Service has improperly

asserted the right to impose restrictions on all

nonfederal lands located within conservation system

units in Alaska.

Unfortunately, rather than limit federal agency

power, two federal courts have endorsed this

‘ Amici are not asking this Court to overturn or revisit the

Ninth Circuit’s “Katie John” subsistence decisions: John v.

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

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

2001) (en banc) (per curiam), or State of Alaska v. Babbitt

(Katie John J), 72 F.3d 698 (9th Cir. 1995).

4

unwarranted expansion of federal jurisdiction. The

Ninth Circuit’s opinion, in particular, will sow

confusion and tempt the executive branch to

continue eroding the line between the federal and

state spheres in contravention of this Court's

federalism jurisprudence.

The Ninth Circuit’s decision should be vacated

because it violates the plain meaning of Section

103(c) and subverts the intent of Congress. The

purpose in Section 103(c) is to insulate nonfederal

lands located within conservation system units from

Park Service regulatory control. This provision

therefore honors the commitments made by

Congress to the State of Alaska and Native

Corporations in prior legislation.

The Ninth Circuit's opinion, however, gives the

Park Service, and other federal land management

agencies, carte blanche to undermine authority

expressly reserved by Congress to Alaska and

Native Corporations. Had Congress intended to

encroach on Alaska’s sovereignty over land use, it

would have said so affirmatively.

In short, the Park Service’s unilateral

expansion of its authority over Alaska’s lands not

only usurps Congress’ legislative authority in

violation of the separation of powers, it also comes

at great expense to the State of Alaska. It is time

for this Court to put to an end the federal

government's long history of wrongfully seizing

power over the State of Alaska’s lands and resources

to the detriment of the State’s citizens, such as Mr.

Sturgeon.

5

BACKGROUND

Contrary to the Park Service’s claim, ANILCA

is not just a statute designed to protect federal

lands.5 See Brief in Opposition (“BIO”) at 5, 17;

Sturgeon v. Masica, 768 F.3d 1066, 1075-76 (9th Cir.

2014). Rather, ANILCA serves as the final Act of

Congress dealing with federal land disposal in

Alaska. See Amoco Prod. Co. v. Village of Gambell,

480 U.S. 531, 549 (1987) (ANILCA’s primary

purpose was to complete the allocation of federal

lands in the State of Alaska, a process begun with

the Statehood Act in 1958 and continued in 1971 in

ANCSA.”); id. at 550 & n.18 (citing H.R. Rep. No.

96-97, pt. 1, p. 135 (1979)). Because ANILCA is a

direct outgrowth of the Alaska Statehood Act

(“Statehood Act”6) and the Alaska Native Claims

5 See James D. Linxwiler & Joseph J. Perkins, A Primer on

Alaska Lands, 61 Rocky Mtn. Min. L. Inst. 7-1-7-3 (2015),

available at: www.rmmlf org/AI61-Ch7.pdf.

It would be a significant misstatement to

describe ANILCA solely as a statute creating

national parks, refuges, wilderness areas, and

the like, without recognizing that perhaps 75%

of its content served its other purposes. ANILCA

embodies significant congressional

compromise. ANILCA’s massive conservation

withdrawals could not be enacted without an

accommodation of Native and state needs. For

these reasons, ANILCA consists of a carefully

crafted political balance between the creation

of new or enlarged conservation system units

(CSU) and the protection of Native, state, and

other land uses on these lands and other lands.

Id. at 7-33-7-34. (emphasis added) (citations omitted).

6 Pub. L. No. 85-508, 72 Stat. 339 (1958).

6

Settlement Act (“ANCSA”’), ANILCA cannot be read

in isolation of the commitments made by Congress

to the State of Alaska (“Alaska”), and to Alaskans,

in these prior Acts. See Amoco, 480 U.S. at 552-55.

The ANILCA provision at the heart of this case,

Section 103(c), must therefore be interpreted in light

of the structure and purposes of the Statehood Act

and ANCSA.

Statehood Act

Alaska’s admission to the Union did not come

easily. After Alaska’s purchase in 1867, it took

almost fifty years before it was organized as a

federal territory, and it was not seriously considered

as a candidate for statehood until after the Second

World War. A desire to control Alaska’s lands and

resources became a coalescing force that motivated

many to support the statehood effort. See Metlakatla

Indian Cmty., Annette Islands Reserve v. Egan, 369

U.S. 45, 47 (1962).

Opponents to statehood raised several major

objections, including Alaska’s small population,

narrow tax base, and the questionable financial

means to govern itself. Trustees for Alaska v. State,

736 P.2d 324, 335-36 (Alaska 1987).

7 Pub. L. No. 92-203, 85 Stat. 688 (1971) (codified as

amended at 43 U.S.C. §§ 1601-1629).

8 Statutes should be interpreted in light of “any precedents

or authorities that inform the analysis.” Dolan v. U.S. Postal

Service, 546 U.S. 481, 486 (2006); Watt v. Alaska, 451 U.S. 259,

266 (1981) (“The circumstances of the enactment of particular

legislation may persuade a court that Congress did not intend

words of common meaning to have their literal effect.”).

7

To overcome these objections, advocates of

statehood argued that Congress should convey

significant lands to the new state in the hope that

the lands would generate enough revenue so the

State could govern itself. This argument won the

day.

That Congress recognized the financial

burden awaiting the new state is clear

from its debates. It is equally clear that

the large statehood land grant and the

grant of the underlying mineral estate

were seen as important means by

which the new state could meet that

burden. Congress, then, granted

Alaska the mineral estate with the

intention that the revenue generated

therefrom would help fund the new

state's government.

Id. at 337.

Congress eventually agreed to admit Alaska

into the Union on particular terms set out in the

Statehood Act. Jd. at 337. The Act’s enactment,

however, did not complete the statehood process;

before Alaska could enter the Union, the Compact

required ratification by the “State and its people.”

Statehood Act, § 8(b), 72 Stat. 344 (1958). Based on

the promises embedded in the Statehood Act,

Alaskans consented to Statehood on August 26,

1958, when they ratified the Compact.9 State v.

Lewis, 559 P.2d 630, 640 (Alaska 1977).

9 The State of Alaska was “admitted into the Union on an

equal footing with the other States,” and its boundaries were

(continued...)

8

The centerpiece of the Compact between the

State of Alaska and the United States is Alaska’s

right to select lands and manage these lands for the

public’s benefit.!° See Trustees for Alaska, 736 P.2d

at 336 (“The primary purpose of the statehood land

grants contained in section 6(a) and (b) of the

Statehood Act was to ensure the economic and social

well-being of the new state.”).!! It was left to the

(continued)

defined as “all the territory, together with the territorial

waters appurtenant thereto, now included in the Territory of

Alaska.” Statehood Act §§ 1, 2, 72 Stat. 339. Congress also

made the Submerged Lands Act of 1953, 67 Stat. 29, as

amended, 43 U. S. C. § 1301 et seq. (1982 ed. and Supp. IID,

applicable to the State. Statehood Act § 6(m), 72 Stat. 343.

10 This Court has characterized the land grant provisions of

statehood acts as a “solemn agreement’ which in some ways

may be analogized to a contract between private parties,”

Andrus v. Utah, 446 U.S. 500, 507 (1980), and as “an

unalterable condition of the admission, obligatory upon the

United States.” Beecher v. Wetherby, 95 U.S. 517, 523 (1877).

11 Alaska Territorial Senator William Egan commented on

future development of “known deposits of almost every type of

mineral” as the source of future Alaskan income in response to

Representative Miller's questions on whether Egan could “see

where you would get much income out of this 103 million acres

you might select around, bearing in mind most of the forests

and good land has been set aside by the [federal] Government

now, or by the military? How much income would you derive

from that to begin with?” Statehood for Alaska: Hearings

Before the Subcommittee on Territorial and Insular Affairs of

the House Comm. on Interior and Insular Affairs, 85th Cong.,

lst Sess. 201-02 (1957) (remarks of Rep. Miller and William

Egan, Alaska Territorial Senator and President of the Alaska

Constitutional Convention). See also United States v. Ail.

Richfield Co., 435 F. Supp. 1009, 1016 (D. Alaska 1977) (“The

intent of Congress was, of course, to provide the new state with

a solid economic foundation.”); 104 Cong. Rec. 12,035 (1958)

(continued...)

9

new state to make the most of its selection options

and to fully utilize these lands in order to satisfy the

State’s budgetary obligations and the needs of

Alaskans.

For these reasons, Alaska guards the rights

conferred under the Statehood Act and views the

management of its lands, and access to them, as an

essential aspect of its sovereignty which sustains

Alaska’s economy, culture, and way of life.'2

Fidelity to the commitments made in the Statehood

Act mandate that the State, Alaskans, and Alaska’s

congressional delegation must vigorously contest

(continued)

(statement of Senator Kuchel) (“[T]he State of Alaska will be

able to make maximum use of the property which it will obtain

under the bill from the Federal Government.”).

12 ~=—- See, e.g., Alaska Const. art. VIII, §§ 1, 2, 6; Alaska Stat.

§§ 38.04.0056 - .015 (setting out the State’s land management

policies); Ale "ka Stat. § 44.99.100(a) (declaring that the state

economic dev. lopment policy is to “further the goals of a sound

economy, stable employment, and a desirable quality of life,

the legislature declares that the state has a commitment to

foster the economy of Alaska through purposeful development

of the state’s abundant natural resources and productive

capacity.”);

The legislature, acting under art. VIII, sec. 1 of

the Constitution of the State of Alaska, in an

effort to further the economic development of

the state, to maintain a sound economy and

stable employment, and to encourage

responsible economic development within the

state for the benefit of present and future

generations through the proper conservation

and development of the abundant mineral

resources within the state .. .”

Alaska Stat. § 44.99.110

10

any unwarranted expansion of federal jurisdiction

that interferes with the use of and access to Alaska’s

lands and resources.'? After all, the rights granted

to the State of Alaska in the Statehood Act cannot —

and should not — be unilaterally diminished or

abrogated by a federal agency. See Hawaii v. Office

of Hawaiian Affairs, 556 U.S. 163, 176 (2009)

(“[T]he consequences oof admission are

instantaneous, and it ignores the uniquely sovereign

character of that event to suggest that subsequent

events somehow can diminish what has already

been bestowed’. And that proposition applies a

fortiori where virtually all of the State’s public lands

... are at stake.”) (quoting, in part, Jdaho v. United

States, 533 U.S. 262, 284 (2001) (Rehnquist, J.

dissenting)); see also State of Alaska v. Ahtna, Inc.,

891 F.2d 1401, 1404, 1406 (9th Cir. 1989).'4

ANCSA

In 1964 and 1965 the State selected, and the

Secretary of the Interior tentatively approved,

approximately 1,650,000 acres of land on the Arctic

Slope. The State selected these lands because of

reports of oil deposits. Drilling on state lands

18 ~=6See 158 Cong. Rec. 15811-15816 (2011) (remarks of Sen.

Murkowski).

4 =©6 Courts have also long-recognized that school lands

legislation, which are analogous to statehood compacts, are to

be construed liberally in favor of the recipient state. Utah v.

Andrus, 486 F. Supp. 995, 1001-02 (D. Utah 1979) (citing

Wyoming v. United States, 255 U.S. 489, 508 (1921)). This is

“to place the new states on an ‘equal footing’ with the original

thirteen colonies and to enable the state to [fund the schools].”

Id. at 1002 (citing Lassen v. Arizona Highway Dep't, 385 U.S.

458, 463 (1967)).

11

shortly thereafter confirmed one of the largest oil

fields ever discovered. After this discovery, in 1969,

Alaska auctioned oil and gas leases on the State-

selected Arctic Slope lands. The lease sale was

vigorously protested. Atl. Richfield Co., 435 F. Supp.

at 1017-18.

Partly in response to the mounting protests, the

Secretary of the Interior instituted a freeze,

suspending federal patenting and approval of

Alaska’s selections pending a legislative settlement

of the controversy. Jd. at 1018. Because the

administratively imposed freeze was a serious

threat to Alaska’s economy, Alaska turned to

Congress for a solution. At that time, Native leaders

had also concluded they should petition Congress for

a prompt legislative settlement of their land claims.

Eventually, all interests obtained a legislative

settlement that included substantial grants of land

in addition to monetary compensation for the

extinguishment of Native claims. Koniag, Inc. v.

Koncor Forest Res., 39 F.3d 991, 995-97 (9th Cir.

1994); City of Angoon v. Marsh, 749 F.2d 1413,

1414-15 (9th Cir. 1984). The express purpose of the

Alaska Native Claims Settlement Act was to meet

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). Congress found that a settlement had to

be accomplished “rapidly, with certainty, . . . [and]

without litigation . . .” Jd. at § 1601(b).

Key provisions of ANCSA include Section 4,

which extinguished Native land claims. /d. at

§ 1603. As consideration for the extinguishment,

Section 6 provides for a cash settlement of

$962,500,000 to be paid over a period of years. Id. at

12

§ 1605. In addition to the monetary grant, ANCSA

granted Alaska Natives fee title to more than 40

million acres of lands to be selected by Native

villages and regional corporations from lands in

Alaska withdrawn for that purpose. Jd. at § 1611.

All future revenues to be derived from the land

patented to the Natives are the property of the

Native corporations. Id. at § 1606(i).

ANCSA was unique in the realm of Native

American land claim settlements because it vested

control of the land directly in the elected

representatives of Alaska’s Native peoples, and not

in the federal government as trustee. It was fully

expected that some of this land would be developed

for its vast natural resource potential.

ANILCA

The final chapter in the federal government's

land allocation process occurred in 1980 when

Congress enacted ANILCA and transferred over 100

million acres of federal lands in Alaska (an area

larger than the State of California) into various

conservation units, which precluded development on

much of these lands.'5 The legislation followed

several years of contentious debate over the proper

use and disposition of federal lands in Alaska.

The most forceful concerns related to proposed

legislation were raised by the Alaska delegation.

Congressman Young objected that without adequate

protections to limit federal jurisdiction over state

15 Under ANILCA, various federal agencies were tasked

with managing national parks, wildlife refuges, wild and

scenic rivers, national trails, and national monuments. 16

U.S.C. § 3102(4).

13

owned lands, the proposed legislation would violate

the promises made by Congress to Alaska and

Alaskans in the Statehood Act and ANCSA.!6

The Alaska delegation was also extremely

concerned that proposed amendments to the

legislation would harm Alaska’s economy and

culture. As Congressman Young queried during one

debate: “Can you imagine having to go out on the

land you have been able to utilize for the last 300

years, you and your ancestors, and have some little

person in a green uniform say, ‘No, you cannot, you

have to have a permit’?”!’

Thus, to enact the legislation, the advocates of

ANILCA had to be willing to accept a balance

between conservation of federal lands and economic

development of State and Native Corporation lands

while also honoring the State of Alaska’s sovereign

right to manage its lands free of intrusive federal

oversight.‘ This goal is reflected in the Act’s

“statement of purpose,” which provides:

1 =6125 «Cong. Rec. 11,457 (1979) (Congressman Young

argued that proposed amendments would deprive Alaskans of

the promises made by Congress); S. Rep. No. 96-413, at 446

(1979) (“The bottom line of this situation is the denial of the

full range of use of [State and Native] lands and hence, the de

facto taking of property rights which have been granted to the

State and to the Native corporations by the Alaska Statehood

Act and by the Alaska Native Claims Settlement Act.”).

17 ~—- 125 Cong. Rec. 11,457 (1979).

18 = =§=©126 Cong. Rec. 30,498 (1980); see generally James D.

Linxwiler & Joseph J. Perkins, A Primer on Alaska Lands, 61

Rocky Mtn. Min. L. Inst. at 7-33-35.

14

This Act provides sufficient protection

for the national interest in the scenic,

natural, cultural and environmental

values on the public lands in Alaska,

and at the same time provides adequate

opportunity for satisfaction of the

economic and social needs of the State

of Alaska and its people; accordingly,

the designation and disposition of the

public lands in Alaska pursuant to this

Act are found to represent a proper

balance between the reservation of

national conservation system units and

those public lands necessary and

appropriate for more intensive use and

disposition[.]

16 U.S.C. § 3101(d)(emphasis added). To carry out

this objective, ANILCA contains provisions designed

to preserve the commitments made to the State of

Alaska and Native Corporations in the Statehood

Act and ANCSA.

For example, ANILCA provided that no further

withdrawals would follow except through heavily

circumscribed formal processes. This condition was

set forth in what is commonly referred to as the “no-

more” clause,'® providing that no federal agency

19 This clause provides that,

No future executive branch action which

withdraws more than five thousand acres, in

the aggregate, of public lands within the State

of Alaska shall be effective except by

compliance with this subsection. To the extent

authorized by existing law, the President or the

Secretary may withdraw public lands in the

(continued...)

15

may take any action that “withdraws” additional

public lands for preservation. 16 U.S.C. § 3213(a).

ANILCA contains many other provisions that

were also intended to limit federal oversight of

Alaska lands and Native Corporation lands and to

ensure that Alaska’s unique needs were honored by

federal agencies. These provisions were deemed

critical by Congress because the conservation

system units created or enlarged by ANILCA -—

covering over 100 million acres of national parks,

refuges, preserves, and monuments — surrounded 40

million acres of State and Native Corporation lands,

which became islands within the federally managed

conservation system units. See James D. Linxwiler

& Joseph J. Perkins, A Primer on Alaska Lands, 61

Rocky Mtn. Min. L. Inst. at 7-33-35.

In addition to these protections, Section 103(c)

is, perhaps, the most important provision in

ANILCA from a federalism perspective because it

(1) protects the nonfederal lands located within

conservation units from federal oversight and (2)

confirms the commitments made by Congress in the

Statehood Act and ANCSA.

(continued)

State of Alaska exceeding five thousand acres

in the aggregate, which withdrawal shall not

become effective until notice is provided in the

Federal Register and to both Houses of

Congress. Such withdrawal shall terminate

unless Congrees passes a joint resolution of

approval within one year after the notice of

such withdrawal has been submitted to

Congress.

16 U.S.C. § 3213(a) (emphasis added).

16

Section 103(c) of ANILCA

In Section 103(c), Congress made clear that

only “public lands” (i.e., federal lands”) within the

boundaries of conservation system units (e.g.,

national parks) “shall be deemed to be included as a

portion of such unit,” and no lands owned by “the

State, [a] Native Corporation, or [a] private party

shall be subject to the regulations applicable solely

to public lands within such units.” 16 U.S.C.

§ 3103(c). Section 103(c) therefore provides that

only federal lands and waters falling within

conservation system unit boundaries are considered

a part of the unit, thus excluding Alaska and Native

Corporation lands from Park Service oversight. 16

U.S.C. §§ 3103(c), 3102(1)-(3), (11).

There are two primary reasons why this

provision was added to ANILCA. First, Congress

wanted to reinforce Alaska’s and Native

Corporations’ right to manage their respective

resources and lands, which necessarily includes

access to lands conveyed under the Statehood Act

and ANCSA.2! Second, Congress understood that

20 Under ANILCA, “the term ‘public lands’ means land

situated in Alaska which .. . are Federal lands.” 16 U.S.C.

§ 3102(3). “The term ‘Federal land’ means lands the title to

which is in the United States.” 16 U.S.C. § 3102(2). And “[t}he

term ‘land’ means lands, waters, and interests therein.” 16

U.S.C. § 3102(1). In short, public lands are lands, waters, and

interests therein, the title to which is in the United States.

Amoco Prod. Co., 480 U.S. at 548 n.15.

21 ANILCA “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). To this end, ANILCA protects

mining operations, see, e.g., 16 U.S.C. § 3170; promotes oil and

(continued...)

17

Alaska is very different from other states and that

its vast landscape, sparse population, subsistence

lifestyles, and lack of infrastructure called for

unique rules that would not apply to federal parks

in the lower-48.22

For many years after ANILCA was enacted, the

federal government, including the Park Service,

understood well the limitations imposed by

Congress in Section 103(c). For example, the Park

Service restricted the applicability of its regulations

to “federally owned’ lands . . . within park area

boundaries.” National Park System Units in Alaska,

46 Fed. Reg. 31,836, 31,843 (June 17, 1981) (citing

126 Cong. Rec. 11,115 (1980) and 126 Cong. Rec.

15,130-31 (1980)). The Park Service elaborated:

“[t]hese regulations would not apply to activities

(continued)

gas development, see, e.g., id. § 3142(a)-(b); and supports the

Alaska timber industry, see, e.g., id. § 539d. See also Marsh,

749 P.2d at 1418.

22 For example, ANILCA grants special authorization for

hunting in ANILCA national preserves, 16 U.S.C. § 410hh-2; it

protects commercial fishing rights and related uses in

designated ANILCA monuments and preserves, id. § 410hh-4;

it allows commercial fishing and related uses within ANILCA

National Wildlife Refuge System units, id.; and it explicitly

permits traditional modes of surface transportation, including

snowmobiles and motorboats, on ANILCA public lands for

subsistence purposes, id. § 3121. In short, ANILCA recognizes

that lands in Alaska must be managed differently from lands

elsewhere, and the statute provides for this by imposing

numerous specific restraints on federal authority over public

and nonpublic lands. See James D. Linxwiler & Joseph J.

Perkins, A Primer on Alaska Lands, 61 Rocky Mtn. Min. L.

Inst. at 7-4, 7-33-35.

18

occurring on State lands. Similarly, these

regulations would not apply to activities occurring

on Native or any other non-federally owned land

interests located inside park area boundaries.” Id.

Given this history, it is not surprising that the

Justice Department admitted that it could not

prosecute an individual who had taken a seal from

Alaskan waters for a ceremonial potlatch. See Brief

of the United States, United States v. Brown, No.

94-30019, 1994 WL 16122537, at *5-6 (9th Cir. May

17, 1994) (Justice Department moved for dismissal

because it concluded that the federal government

neither “ownfed] the submerged land” nor had

“legislative jurisdiction” over such lands).

Not satisfied with this limitation on its

authority, the Park Service eventually circumvented

ANILCA’s restrictions on federal authority by

issuing 36 C.F.R. § 1.2(a)(3), which is the regulation

at the heart of this case. The Park Service declared

“that NPS regulations otherwise applicable within

the boundaries of a National Park System unit

apply on and within waters subject to the

jurisdiction of the United States located within that

unit, including navigable waters and areas within

their ordinary reach .. . irrespective of ownership of

submerged lands, tidelands or lowlands, and

jurisdictional etatus.” General Regulations for Areas

Administered by the National Park Service and

National Park System Units in Alaska, 61 Fed. Reg.

35,133, 35,136 (July 5, 1996) (quoting 36 C.F.R.

§ 1.2(a(3)). In so doing, the Park Service’s power

grab expanded its jurisdiction over Alaska lands and

resources in blatant disregard of the “balance”

Congress struck in ANILCA.

19

ARGUMENT

The Park Service’s regulation of nonfederal

lands within conservation system units in Alaska

violates the plain meaning of Section 103(c),

disregards Congress’ intent in ANILCA, ANCSA,

and the Statehood Act, and offends a hallmark of

federalism: State control over land use decision-

making.

I. SECTION 103 OF ANILCA CLEARLY

PROHIBITS PARK SERVICE

REGULATORY JURISDICTION OVER

NON-FEDERAL LANDS AND WATERS

According to the Park Service, the case should

be resolved based on Chevron deference. To

determine if an agency is entitled to deference,

Chevron step one requires courts to examine “the

language of the statute,” and “[t]he inquiry ceases if

the statutory language is unambiguous and the

statutory scheme is coherent and consistent.”

Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450

(2002) (quotations omitted). When determining the

meaning, the Court must look at how the words are

used in the entire statutory scheme:

[O]ftentimes the meaning—or

ambiguity—oi certain words or phrases

may only become evident when placed

in context. So when deciding whether

the language is plain, the Court must

read the words in their context and

with a view to their place in the overall

statutory scheme . . . Our duty, after

all, is to construe statutes, not isolated

provisions.

20

King v. Burwell, 135 S. Ct. 2480, 2483, 2489 (2015)

(quotations and citations omitted)

Thus, the proper Chevron step one inquiry

centers on whether Section 103(c), when construed

in the context of ANILCA, grants the Park Service

the authority to trample on Alaska’s sovereignty

and diminish the property rights of Native

Corporations. Cf., Barnhart, 534 U.S. at 442 (“The

question presented is whether the Coal Act permits

the Commissioner to [take specified action]”);

Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457,

468 (2001) (“[Rlespondents must show a textual

commitment of authority to the EPA[.]”).

As explained by Sturgeon, ANILCA’s text,

purpose, structure, and legislative history conveys

Congress’ unmistakable intent to preclude the

application of federal conservation regulations to

State and private inholdings within conservation

system units — i.e., Congress specified in ANILCA

that nonfederal lands within conservation system

units are not subject to regulation as though they

are part of the National Park System. Petitioner's

Opening Brief at 21-30.

A. The Plain Text of Section 103(c) Does

Not Authorize the Park Service to

Regulate State and ANCSA Lands Within

Conservation System Units.

Section 103(c) is clear and concise. It provides:

Only those lands within the boundaries

of any conservation system unit which

are public lands (as such term is defined

in this Act) shall be deemed to be

included as a portion of such unit. No

lands which, before, on, or after

21

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).

The statute thus provides that: (1) only “public

lands”25 are part of conservation system units in

Alaska; (2) federal land management agencies have

no authority to exercise regulatory control over

State, Native Corporation, and private lands located

within those conservation system units; (3) the only

lands that may be administered as part of the

National Park System are those that have been

conveyed to the United States; and (4) while the

Park Service cannot regulate nonfederal lands

within conservation system units, federal laws of

general applicability, like the Clean Air Act or Clean

Water Act, do apply to nonfederal lands because

those general laws are not “applicable solely to

public lands.”

23 Public lands are lands, waters, and interests therein, the

title to which is in the United States. Amoco Prod. Co., 480

U.S.at 548 n.15.

22

This construction of Section 103(c) is supported

by the purpose of ANILCA, which delegated certain

responsibilities to federal land management

agencies to conserve and protect federal lands while

ensuring that nonfederal lands within conservation

system units would not be managed by these same

federal agencies as if they were federally owned.”

Marsh, 749 F.2d at 1417 (observing that “the

drafters of ANILCA never intended the mere

location of boundary lines on maps delineating the

overall conservation system to indicate that private

lands . . . were to be treated as public lands”).

The structure of ANILCA also supports this

plain reading, as demonstrated by the fact that (1)

ANILCA is a direct outgrowth of the Statehood Act

and ANCSA; and (2) in ANILCA Congress sought to

honor the commitments made to the State of Alaska

and Native Corporations in the Statehood Act and

ANCSA. See, eg., 16 U.S.C. §§ 3101(c)-(d); 3111,

3126, 3148, 3150, 3161, 3207(2); cf., Wilderness

Soc’y v. Griles, 824 F.2d 4, 7 (D.C. Cir. 1987)

(observing that Alaska’s “[njavigable waters and

their submerged lands are subject to state control in

all cases”). In addition, to implement this

commitment, numerous statutory provisions in

ANILCA expressly prohibited federal agencies like

the Park Service from adopting regulations that

would interfere with Alaska’s sovereign right to

manage State lands for the economic and social

needs of the State, and by expressly safeguarding

% = See 126 Cong. Rec. 30,498 (1980) (amending the bill to

“(s]pecify[] that only public lands (and not State or private

lands) are to be subject to the conservation system unit

regulations applying to public lands”).

23

Alaska’s sovereign authority over nonfederal lands.

See 16 U.S.C. §§ 3101(d), 3102(1), 3103(c), 3111-14,

3117-19.

B. Nothing in Legislative History

Supports the Ninth Circuit’s Holding that

Section 103(c) Authorizes the Park Service

to Apply National Regulations to

Nonfederal Lands.

The Park Service, like the Ninth Circuit, may

attempt to misrepresent legislative history to distort

the plain meaning of the Section 103(c). Sturgeon,

768 F.3d at 1078-79. The Court should reject such

an attempt because the legislative history is

unequivocal: Congress’ primary objective in

adopting Section 103(c) was to prevent nonfederal

lands newly-surrounded by conservation system

units from Park Service oversight and regulation.

See Marsh, 749 F.2d at 1417-18 (“section 103(c) was

added to ANILCA .. . for the express purpose of

‘specifying that only public lands (and not State

owned or private lands) are to be subject to the

conservation system unit regulations applying to

public lands”) (quoting, in part, 126 Cong. Rec.

30,498) (emphasis added).

Section 103(c)’s House sponsor stated that he

wanted 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.

11,158 (1979); see also S. Rep. No. 96-413, at 303

(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

24

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.”).

And while nonfederal lands located within

conservation system units would not be subjected to

any Park Service regulations, Congress also wanted

to make clear that laws of general applicability

would apply to such lands. S. Rep. No. 96-413, at

303 (1979) (suggesting that Section 103(c)’s use of

“solely” was to clarify that “Federal laws and

regulations of general applicability to both private

and public lands, such as the Clean Air Act ...

would be applicable to private or non-Federal public

land in holdings within [CSUs] . . . and thus are

unaffected by the passage of the bill”).

Accordingly, Congress did not grant the Park

Service the authority to transform Section 103 (c)

into a potent source of far-reaching regulatory

authority over 40 millions of acres of State, Native,

and private lands and resources located within

conservation system units.

C. Congressional Silence Regarding the

Scope of Regulatory Jurisdiction Does Not

Entitle Administrative Agencies To

Deference.

In its opposition to Sturgeon’s Petition for

Certiorari, the Park Service claims that the Court

should disregard the plain meaning of Section 103(c)

and grant it deference because Congress did not

expressly forbid Park Service regulation of

nonfederal lands within conservation units. BIO at

19.

25

By asserting authority to do whatever Congress

did not explicitly forbid, the Park Service turns

Chevron on its head. Were this Court to accept such

a formulation and “presume a delegation of power

absent an express withholding of such power,

agencies would enjoy virtually limitless hegemony, a

result plainly out of keeping with Chevron and quite

likely with the Constitution as well.” Ry. Labor

Exec. Ass'n v. Natl Mediation Bd., 29 F.3d 655, 671

(D.C. Cir. 1994) (en banc); Chamber of Commerce v.

NLRB, 721 F.3d 152, 160 (4th Cir. 2013) (“we do not

find that Chevron’s second step is implicated any

time a statute does not expressly negate the

existence of a claimed administrative power.”)

(emphasis in original) (quotation and citation

omitted); Texas v. United States, 497 F.3d 491, 502

(5th Cir. 2007) (rejecting the federal appellees’

argument that “congressional ‘silence’ creates an

implicit delegation under Chevron”).

Yet the Park Service blithely contends that “the

Secretary is entitled to deference to reasonable

interpretations of the scope of her authority under

ANILCA.” BIO at 19. But, again, agencies do not

possess authorities beyond those conferred in the

substantive provisions enacted by Congress. See

Gonzales v. Oregon, 546 U.S. 243, 264-65 (2006) (“It

would go . . . against the plain language of the text

to treat a delegation for the ‘execution’ of [the

Attorney General's} functions as a further

delegation to define other functions well beyond the

[statute’s] specific grants of authority.”); Am.

Trucking Ass‘ns, 531 U.S. at 468 (finding it

“implausible that Congress would give to the EPA

through . . . modest words the power to determine

whether implementation costs should moderate

national air quality standards.”); NRDC v. EPA, 749

26

F.3d 1055, 1063 (D.C. Cir. 2014) (“we have

consistently held that EPA’s authority to issue

ancillary regulations is not open-ended, particularly

when there is statutory language on point.”).

Further, to assert, as the Park Service does,

that it has broad power to define the scope of its

authority under ANILCA “is both flatly unfaithful to

the principles of administrative law . . . and refuted

by precedent.” Ry. Labor Exec. Ass'n, 29 F.3d at 671.

There should be no dispute that the Park Service

“literally has no power to act . . . unless and until

Congress confers power upon it.” La. Pub. Serv.

Comm'n v. FCC, 476 U.S. 355, 374 (1986); see also

Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427,

2446 (2014) (“We reaffirm the core administrative-

law principle that an agency may not rewrite clear

statutory terms to suit its own sense of how the

statute should operate.”); Friends of the Earth v.

EPA, 446 F.3d 140, 145 (D.C. Cir. 2006) “(EPA may

not avoid the Congressional intent clearly expressed

in the text simply by asserting that its preferred

approach would be better policy.”) (citation and

quotation omitted).

Deference is a powerful thing, and

unsurprisingly the executive branch often seeks to

create ambiguity where none exists, the better to

effectuate its own policies rather than those of the

Congress. Left unchecked, this dynamic undermines

Congress’ legislative function, ceding it instead to

the federal executive. That is how the balance of

power between the branches of the federal

government is distorted. No meaningful system of

checks and balances can exist where the executive

branch can vest itself with legislative powers. Nor

can the system of checks and balances work if the

27

judicial branch does not stop unwarranted power

grabs. And while agencies would prefer to have the

leeway to interpret statutes according to their policy

preferences, the Constitution does not provide them

such authority. This is particularly true when, as

here, the plain meaning of Section 103(c) prohibits

the Park Service from regulating nonfederal lands

in Alaska that are located within conservation

system units.

eee

In sum, Chevron honors the bedrock principle

that statutes control agency action. In step one,

courts examine the words of the statute to

determine whether they resolve the dispute. When

a particular agency power is absent from the

governing statute there is no ambiguity and no need

to proceed to Chevron step two. The controlling

words in this case are clear: Congress did not

authorize the Park Service to apply regulations to

State of Alaska, Native, and private lands within

conservation system units. Accordingly, the Park

Service’s promulgation and enforcement of 36 C.F.R.

§ 1.2(a)(3) clearly exceeded its statutory authority.

Il EVEN IF CHEVRON STEP TWO

GOVERNS, THE PARK SERVICE’S

INTERPRETATION IS BASED ON AN

IMPERMISSIBLE CONSTRUCTION OF

THE STATUTE.

The text of Section 103(c), the overall structure

and purpose of ANILCA, and legislative history

plainly show that Congress prohibited the Park

Service from regulating nonfederal lands within

conservation system units as though such lands are

part of the National Park System. But even if this

28

Court finds ambiguity in the statute, the Park

Service’s expansive interpretation of Section 103(c)

should be rejected because it is based on a

construction of ANILCA that impairs the State of

Alaska’s sovereign right to manage state lands and

unduly interferes with Native Corporations’

statutory right to access and develop Native owned

lands.

A. The Park Service’s Construction of

Section 103(c) Encroaches on Traditional

State Power in Violation of Congressional

Intent.

Courts must reject an agency's statutory

interpretation that “alters the federal-state

framework by permitting federal encroachment

upon a traditional state power” without a “clear

indication that Congress intended that result.” Solid

Waste Agency of N. Cook Cty. v. U.S. Army Corps of

Eng’rs (““SWANCC”), 531 U.S. 159, 172-73 (2001).

Indeed, it is well established that deference should

not be afforded to a federal agency that seeks to

strip power properly vested with states. Id. at 174

(courts should disregard an agency's interpretation

if it “would result in a significant impingement of

the States’ traditional and primary power over land

and water use.”).

Here, it cannot be disputed that Alaska’s

ownership of its submerged lands is an “essential

attribute of sovereignty.” Tarrant Regl Water Dist.

v. Herrmann, 133 S. Ct. 2120, 2132 (2013)

(quotation omitted). Nor can it be disputed that

land use regulation is “perhaps the quintessential

state activity,” FERC v. Mississippi, 456 U.S. 742,

768 n.30 (1982), and has been “traditionally

performed” by state and local governments. Hess v.

29

Port Auth. Trans-Hudson Corp., 513 U.S. 30, 44

(1994). The right to regulate and manage State

lands and resources is, therefore, an essential

component of Alaska’s sovereignty.

This is especially true given the commitments

made by Congress in the Statehood Act, which is not

a typical piece of legislation. Instead, it is a

Compact between sovereigns and has attributes of a

contractual relationship. See, e.g., Beecher, 95 U.S.

at 523. For this reason, the executive branch does

not have the right to unilaterally amend central

commitments made by Congress to induce Alaskans

to accept statehood, such as the management and

control of Alaska’s natural resources, which lie at

the heart of the State’s sovereign interests. Cf,

Hawaii, 556 U.S. at 176.

But by applying federal regulations designed to

control the use of federal lands located in park

systems across the United States to lands owned by

the State of Alaska, the Park Service is diminishing

Alaska’s land use decision-making authority. In

addition to restricting the use of hovercrafts on state

waters, the Park Service is now requiring Alaska to

seek federal permission to conduct scientific

research on caribou and salmon on state-owned

lands.*5 Brief Amicus Curiae of Alaska at 17.

2% And the Park Service recently published a notice of

proposed rulemaking to abrogate an Alaska-specific exemption

from certain nationwide oil and gas rules, making the rules

enforceable to State lands. See General Provisions and Non-

Federal Oil and Gas Rights, 80 Fed. Reg. 65,572 (Oct. 26,

2015). The rulemaking explained “that because these

regulations are generally applicable to NPS units nationwide

and to non-federal interests in those units, they are not

(continued...)

30

The Ninth Circuit has therefore approved a

regime in which Alaska may not access its own

lands and resources unless it first obtains

permission from a federal agency. This grant of

plenary power to the Park Service nullifies the strict

limitations on federal jurisdiction over nonfederal

lands imposed by Congress in ANILCA. It also

upsets the compromise achieved in ANILCA, which

balanced the federal government’s desire to protect

public lands with the State of Alaska’s need for

economic development and meaningful access and

control of its resources. See 16 U.S.C. §§ 3103, 3111-

14, 3117-19; see also Marsh, 749 P.2d at 1416-18 &

1418 n.5 (observing that Section 103 “specifically

indicat[es] that [State of Alaska and native lands]

are not to be restricted by virtue of their location

within the boundaries of a conservation system

unit”). And it violates the Statehood Act’s central

commitment to Alaska, which granted the state the

right to make land use decisions for the benefit of its

people. Trustees for Alaska, 736 P.2d at 335.

Sovereignty demands no less. Hawaii, 556 U.S. at

176.

In short, the Park Service’s interpretation of

Section 103(c) takes a provision that limits federal

authority and transforms it into an unchecked

source of power (because of deference) over State of

Alaska lands. While ANILCA assigns many duties

to various federal agencies, it does not follow that

(continued)

‘applicable solely to public lands within [units established

under ANILCA],’ and thus are not affected by section 103(c) of

ANILCA.” Id. at 65,573 (quoting Sturgeon v. Masica, 768 F.3d

1066, 1077-78 (9th Cir. 2014)).

31

the Park Service can override the _ specific

assignment of powers reserved to Alaska concerning

land use decisions on Alaska’s lands. Such a drastic

change in the amount of control exercised by the

federal government over all nonfederal lands within

conservation system units in Alaska can only come

from Congress. Cf., Edmonds v. Compagnie

Generale Transatlantique, 443 U.S. 256, 266-67

(1979) (requiring clear evidence of congressional

intent to change the status quo). After all, a “her v

regulatory burden on the States” simply canno »de

attributed to Congress absent solid “textual

support” and a “clear statement” from Congress.

PUD No. 1 of Jefferson Cnty. v. Wash. Dept. of

Ecology, 511 U.S. 700, 718 (1994). No such textual

support exists in ANILCA. The Park Service

therefore cannot rely on Section 103(c), which limits

federal power. Nor can it transform a general grant

of power to diminish Alaska’s sovereignty by

circumventing commitments made by Congress to

Alaska in the Statehood Act.

B. The Park Service’s Construction of

Section 103(c) Violates Commitments

Made by Congress To Native Corporations.

Enforcing regulations designed for the National

Park System on Native Corporations inholdings will

disrupt, or even forestall, economic development and

daily activities on Native Corporation lands, which

were intended to sustain and support Alaska’s

Native peoples. See 43 U.S.C. § 1601 et seq.; see also

City of Saint Paul, Alaska v. Evans, 344 F.3d 1029,

1031 (9th Cir. 2003).

Yet, because of the Ninth Circuit’s holding,

which makes a mockery of ANILCA’s explicit

restrictions on the exercise of federal jurisdiction

32

over nonfederal lands, federal agencies now have

the power to promulgate regulations that require

Native Corporations to secure approval from the

federal government before landing a plane, building

a lodge, going for a hike, picking berries, altering a

camping site, or even hunting and fishing on Native

owned lands located within conservation system

units. Brief Amicus Curiae of Arctic Slope Regional

Corp. at 14-15. Consequently, the Ninth Circuit’s

holding is in direct contravention of the unequivocal

commitments made to Native Corporations in

ANILCA and ANCSA. See Marsh, 749 P.2d at 1418

(holding that “Congress intended that the private

status of the lands conveyed to ([Native

Corporations] is to remain unaffected by their

inclusion within the exterior boundaries of the

conservation system unit”).

wees

In short, even if Chevron’s step-2 applies, the

Park Service’s interpretation of the statute is not

“based on a permissible construction of the statute.”

Chevron, 467 U.S. at 843.

33

CONCLUSION

For the foregoing reasons, and those in

Sturgeon’s brief and the supporting amici briefs, the

Ninth Circuit's decision should be vacated.

Respectfully submitted,

Jonathan W. Katchen

Counsel of Record

Kyle W. Parker

Crowell & Moring LLP

1029 W. Third Avenue, Suite 550

Anchorage, Alaska 99501

(907) 865-2600

jkatchen@crowell.com

Counsel for Amici Curiae

United States Senators Sullivan

and Murkowski and Representative

Young

November 23, 2015