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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

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
TT ne 5
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0549%3A04. Public record. Not legal advice.