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

Suprerre Court, U.S.

No. 14-1209 FILED

IN THE

Supreme Court of the United State sites —

JOHN STURGEON,

Petitioner,

V

SUE MASICA, IN HER OFFICIAL CAPACITY

AS ALASKA REGIONAL DIRECTOR OF THE

NATIONAL PARK SERVICE et al.,

Respondents.

On PETITION FOR A Writ OF CERTIORARI TO THE UNITED

States Court oF APPEALS FOR THE NINTH CIRCUIT

AMICI CURIAE BRIEF OF AHTNA,

INCORPORATED, ALEUT CORPORATION,

BRISTOL BAY NATIVE CORPORATION, CALISTA

CORPORATION, DOYON, LIMITED, NANA

REGIONAL CORPORATION, GANA-A’ YOO,

LIMITED, AND TIHTEET?’ AII, INCORPORATED

IN SUPPORT OF PETITIONER

JAMES D. LINXWILER, Esq.

Counsel of Record

JosH VAN Gorkom, Esq.

Guess & Rupp PC.

510 L Street, Suite 700

Anchorage, AK 99501

(907) 793-2200

jlinxwiler@guessrudd.com

Attorneys for

Native Corporation Amici

Date: April 29, 2015

‘3 9g

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

1

TABLE OF CONTENTS

Page

TABLE OF CONTENTS.... . ..... «.. «ll

TABLE OF CITED AUTHORITIES ... .. . .. iii

I. Interest of the Amici Curiae... ... .. ..1

II. Summary of the Argument ............ ..... 5

ak ineeeweiedeusehesaveskeseeden 7

A. The interpretation of §3103(c) is

an important question of federal

law that has not been, but should

be, settled by this Court.............. .. 7

B. The Ninth Circuit panel reached its

interpretation of §3103(c) in a way

that conflicts withrelevant decisions

A ncuseecsascasiocneessese 10

1. The Ninth Circuit panel interpreted

§3103(© in a way that renders its first

and third sentences meaningless... .. 11

2. The Ninth Circuit panel failed

to read §3103(c) in light of other

relevant provisions of ANILCA...... 13

3. The Ninth Circuit panel failed

to read §3103(c) in light of

the key purposes of ANCSA......... 16

it

Table of Contents

4. The Ninth Circuit panel

interpreted §3103(c) in a way that

leads to an absurd result............ 18

5. The Ninth Circuit panel offered

a selectively edited version

of the legislative history

of ANILCA to support its

interpretation of §3103(C)............ 19

EV, CMM Sc ccccocccvcsecccesueseueen 24

SENN © cv vcvccecvccvendsesesecaseseeendenes 25

it

TABLE OF CITED AUTHORITIES

Page

Cases

Alaska v.

Native Village of Venetie Tribal Government,

i ccc dencuccesteeseseooses: 3, 8

Amoco Production Co. v.

Village of Gambell, Alaska,

tc cccneccceceseoeess 7, 13, 18

Chugach Natives, Inc. v. Doyon, Ltd.,

588 F.2d 723 (9th Cir. 1978) .............cceeeees 8

City of Angoon v. Marsh,

749 F.2d 1413 (9th Cir. 1984).................. 8, 17

Dada v. Mukasey,

ET 13

Dolan v. U.S. Postal Service,

Ee 16

Koniag, Inc. v. Koncor Forest Resource,

39 F.3d 991 (Sth Cir. 1994). ......... cece cc eeeces 8

Stratman v. Leisnoi, Inc.,

545 F.3d 1161 (9th Cir. 2008)................005- 14

Tarrant Regional Water Dist. v. Herrmann,

cn ccecesoeeceoussoseoes< 18

Ww

TABLE OF CITED AUTHORITIES

Page

TRW Inc. v. Andrews,

ee 11

U.S. Nat'l Bank of Oregon v.

Indep. Ins. Agents of Am., Inc.,

dng cinedcouesenceneeeste 13

United States v. Wilson,

ES hic ccedesecécesncapescouss 18

Other Authorities

125 Cong. Rec. 11158 (1979) ..............+45- passim

125 Cong. Rec. 9905 (1979). ... 2... ceeccecccess 2, 7, 22

136 Cong, Ree. ISEB CIGBD)......cccccccccccecccecs 9

S. Rep. No. 96-413 (1979), reprinted in 1980

PE deccavesedenssdedsoesesi 22, 23

Statutes

16 U.S.C. §3103@ (ANILCA §103(0) .......... passim

16 U.S.C. §3101d) (ANILCA §101@))............... 14

Pt i vcdénscundacedeessnonsentneesecet 4

43 U.S.C. $1601—-1629R. ..... cece ccccccccccccces 1

Cited Authorities

Page

8 a oe .

| SEO ae Raia ses vine 18

I gn. sssccvdecsescudsdicccdscse: 7

ie ee 3,4

I nos og ccsusevocusesanuces 4

ESOT SC COTS are Lae 3

SNELL DLL 6 OIE AERP EET 3

SRA LM Reo DPCRI PENT 18

ARREST ag eee an AGL oe Pete 3, 18

Eas SO op ane nee tena ene 3

is ose ao ee 3

Ne a 4

43 U.S.C. §1621()...... 20... ccceeceeeceecceceeece 17

43 U.S.C. §1635(0)(2) (ANILCA §906(0)(2)) .......... 15

GR ED Coc eccccccccseccesccccccccocccsss 16

Cited Authorities

Page

Eee CE me Mee eee 16

Alaska National Interest Lands Conservation

TT cod itisieseeuinsseennss passim

Rules

ns ccncgscegesesete. une ca aaa 6

Regulations

61 Fed. Reg. 35134 (1996) .............cccceeeeeees 18

1

I. Interest of the Amici Curiae.'

The amici curiae have an extraordinary interest in

this case because they own over 12 million acres of lands

that lie within the boundaries of Alaska conservation

system units (“CSUs”)—an area about 150% larger than

Maryland. Under the Ninth Circuit panel’s decision,

these lands would be subject to highly restrictive

CSU regulations, likely making meaningful economic

development impossible. Several of the amici curiae

currently are pursuing resource development projects

on these lands, including mining and oil and gas projects

on which millions of dollars have already been spent.

The Ninth Circuit decision casts significant doubt on

these projects and significantly alters and diminishes the

Congressional settlement of Native land rights under the

Alaska Native Claims Settlement Act (““ANCSA”).?

Representative John Seiberling sponsored the

amendment that became §103(c) of the Alaska National

Interest Lands Conservation Act (“ANILCA”), 16

U.S.C, §3103(c). Upon introducing it, and in response to

skeptical questioning concerning its effect, Representative

Seiberling explained to Congress that the provision

1. The parties have consented to the filing of this brief.

Counsel of record for all parties received notice at least 10 days

prior to the due date of the amici curiae’s intention to file this

brief. No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution intended

to fund the preparation or submission of this brief. No person

other than the amici curiae, their shareholders, or their counsel

made a monetary contribution to its preparation or submission.

2. 43 U.S.C. §1601-1629h.

2

would establish “beyond any doubt” that State, Native

or private lands that lie within the external boundaries

of CSUs in Alaska would not be “subject to any of the

laws or regulations that pertain to U.S. public lands” or

“controlled by any of the public land laws of the United

States.” 125 Cong. Rec. 11158 (1979) (emphasis added).

Representative Mo Udall, the House sponsor of ANILCA,

assured Congress the inclusion of Native lands within

CSU boundaries would not “restrict use of such lands by

the owning Corporations.” 125 Cong. Rec. 9905 (1979).

Now, more than 35 years later, a panel of the Ninth Circuit

has ignored these statements, and instead has adopted an

interpretation of §3103(c) that directly contradicts them.

According to the panel, §3103(c) gives federal conservation

agencies, like the National Park Service, virtually

unfettered discretion to regulate these State, Native or

private lands. The Ninth Circuit’s holding contradicts the

purposes of ANCSA and would significantly harm the

interests of the amici curiae.

This brief is submitted on behalf of Alaska Native

Regional Corporations Ahtna, Incorporated, The Aleut

Corporation, Bristol Bay Native Corporation, Calista

Corporation, Doyon, Limited, and NANA Regional

Corporation, and Alaska Native Village Corporations

Gana-A’ Yoo, Limited, and Tihteet’ Aii, Incorporated.

The amici curiae were created pursuant to ANCSA, and

represent the interests of more than 60,000 Alaska Native

shareholders, many of whom have limited incomes and live

in remote locations in rural Alaska.*

3. -The amici also agree with the amicus briefs filed by

Arctic Slope Regional Corporation and the State of Alaska.

3

ANCSA, enacted in 1971, represented a historic

new federal policy for Alaska Natives.‘ ANCSA was an

alternative to the system of reservations and federal

trust supervision that had formed the basis for American

Indian policy since the early 1800s. In ANCSA, Congress

extinguished the aboriginal land claims of Alaska Natives,

and as compensation granted approximately 40 million

acres of land to Alaska Native Corporations, including

the amici curiae.° ANCSA granted these lands to them

for purposes of economic development and other uses,

to allow Alaska Natives to control of their own financial

destiny. The Native Corporations selected many of these

lands based on their economic development potential.

The Regional Corporations’ development of these

lands for the benefit of all Alaska Natives is a fundamental

part of the financial settlement Congress created in

ANCSA. Under ANCSA Section 7(i), 43 U.S.C. §1606(i),

each Regional Corporation is required to share seventy

4. This Court addressed ANCSA‘s purposes in Alaska v.

Native Village of Venetie Tribal Government, 522 U.S. 520, 523-

24 (1998).

5. The land provisions of ANCSA are complex, but can be

summarized as follows: ANCSA granted up to 22 million acres of

surface estate to Village Corporations. ANCSA also granted to

Regional Corporations the subsurface (mineral) estate beneath

those Village surface lands, and approximately 18 million acres

of additional surface and subsurface estate. See 43 U.S.C. §§1610,

1611, and 1613. In addition, ANCSA granted about 4 million acres

of surface and subsurface estate to Village Corporations on

revoked Indian reservations that opted not to accept any further

benefits of ANCSA. 43 U.S.C. §1619. As further compensation,

ANCSA also provided for the grant of $962.5 million to Native

Corporations in payments terminating in 1981. 43 U.S.C. §1609.

4

percent (70%) of the revenues from resource extraction

with the other land-owning Regional Corporations. Under

Section 7(j), 43 U.S.C. §1606(j), one-half of the revenues

that are received by a Regional Corporation under Section

7(i) is distributed to the Village Corporations located

within its regional boundaries, and to its “at large”

shareholders (those not enrolled to a Village Corporation).

Thus, resource revenues from ANCSA lands flow directly

or indirectly to all Natives.

The ability to develop these ANCSA lands and to

share the revenues with all Natives under 43 U.S.C.

§1606(i) and (j) is integral to the success of ANCSA.

Well over $1 billion derived from resource development

of ANCSA lands has been distributed under 43 U.S.C.

§1606(i) and (j) since 1971.

In 1980, nine years after the enactment of ANCSA,

Congress enacted ANILCA,* which placed about 105

million acres of federal lands in new or expanded CSUs.

Congress sought to include entire ecosystems in CSUs.

Thus many of the CSUs completely surrounded ANCSA

lands. The amount of ANCSA lands that fell within these

CSUs is staggering: the amici curiae alone own about

12 million acres within ANILCA CSUs,’ comprising

about 30% of all ANCSA lands; all ANCSA Corporations

6. Pub. L. 96-487, 94 Stat. 2371 (1980).

7. Some of the amici curiae’s land holdings in CSUs are

surface estate only, some are subsurface only, and some are both

surface and subsurface. The ANCSA lands within CSUs represent

from about 20% to 100% of the total ANCSA entitlements of the

individual amici. The small portion of CSU lands within pre-

ANCSA Wildlife Refuges is also subject to federal regulation

pursuant to 43 U.S.C. §1621(g), and 16 U.S.C. §3143.

5

together own approximately 18 million acres within

ANILCA CSUs, or about 40% of all ANCSA lands—an

area larger than 10 of the states.*®

Placing these CSUs over existing ANCSA lands

would directly threaten the success of the ANCSA land

settlement. Thus, the ANCSA Corporations sought

inclusion of a provision in ANILCA to protect their lands

from being affected by the CSUs. The result was §3103(c),

in which Congress excluded ANCSA and State lands from

the CSUs surrounding them and exempted them from the

regulations written to govern the CSUs.® By reaching

this solution, Congress recognized and accommodated

its purposes in enacting both ANCSA and ANILCA, and

granted a priority to the uses of ANCSA lands where

ANCSA and ANILCA lands coincide.

However, without even mentioning ANCSA, the Ninth

Circuit panel reached an interpretation of §3103(c) that

would subject up to 40% of all ANCSA lands to restrictive

CSU regulations. That holding breaks the promise made

in ANCSA to Alaska Natives. It directly conflicts with the

important Congressional purposes underlying ANCSA,

and with the language, structure, and policy of §3103(c).

II. Summary of the Argument

A writ of certiorari is appropriate because the

interpretation of §3103(c) is “an important question of

federal law that has not been, but should be, settled by this

8. See map, Exhibit 1.

9. Although this case arises in relation to the State’s

ownership of the bed and banks of a navigable river, §3103(c) also

applies to Native owned uplands.

6

Court.” Sup. Ct. R. 10(c). Section 3103(c) resolves conflicts

in land ownership and land use arising under ANCSA and

ANILCA, two statutes of national significance. ANILCA

was a direct outgrowth of ANCSA. ANCSA extinguished

the aboriginal land claims of Alaska Natives. In exchange,

Congress conveyed approximately 40 million acres of

land and $962.5 million to Alaska Native Corporations to

assist Alaska Natives in achieving financial independence

and self-sufficiency. The interpretation of §3103(c) could

significantly impair the accomplishment of this critical

federal purpose. Therefore, this Court should decide the

question.

This Court should also grant certiorari because the

Ninth Circuit panel reached its interpretation of §3103(c)

in a way that conflicts with relevant decisions of this Court

regarding the interpretation of statutes. See Sup. Ct. R.

10(c). Specifically, the panel (1) read §3103(c) in a way that

would render the first and third sentences meaningless,

(2) failed to read §3103(¢) in light of ANILCA as a whole,

(3) failed to consider ANCSA, the historic settlement that

laid the groundwork for the passage of ANILCA, and (4)

read §3103(c) in a way that leads to an absurd result. In

addition, the panel selectively quoted and inaccurately

characterized several key pieces of legislative history in

a way to suggest they support its interpretation of the

statute. In reality, the legislative history of ANILCA

uniformly contradicts the panel’s decision.

Ill. Argument

A. The interpretation of §3103(c) is an important

question of federal law that has not been, but

should be, settled by this Court

Section 3103(c) establishes a statutory priority to

resolve conflicts in land ownership and land use arising

under ANCSA and ANILCA, two enactments of national

significance. The interpretation of §3103(c) is a question

that should be settled by this Court because of the

substantial impact that it could have on the nationally

important Native settlement embodied in ANCSA. Under

the Ninth Circuit panel’s interpretation, up to 18 million

acres of lands conveyed to Alaska Natives pursuant to

ANCSA could become undevelopable, thus defeating

the Congressional purpose of ANCSA and breaking

the promise of ANCSA to Natives. If this is the proper

interpretation of §3103(c), then this Court should be the

judicial body that says so.

ANILCA was a “direct outgrowth” of ANCSA. 125

Cong. Rec. 9905 (1979) (comment by Representative Mo

Udall, the primary sponsor of ANILCA in the House); see

also Amoco Production Co. v. Village of Gambell, Alaska,

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.”). In ANCSA,

Congress extinguished the aboriginal land claims of

Alaska Natives. See 43 U.S.C. $1603. To compensate

Alaska Natives for the loss of these claims, Congress

authorized the conveyance of approximately 40 million

acres of land and payment of $962.5 million to newly-

8

formed Alaska Native Corporations. City of Angoon v.

Marsh, 749 F.2d 1413, 1414 (9th Cir. 1984). Congress knew

that the overwhelming majority of this land would “be

selected for its economic potential.” Koniag, Inc. v. Koncor

Forest Resource, 39 F.3d 991, 996 (9th Cir. 1994) (quoting

H.R. Rep. 92-523 at 5, 1971 U.S.C.C.A.N. at 2195). Most

importantly for purposes of this case, Congress intended

“that those Native corporations that did select land for its

economic potential would be able to develop that land and

to realize that potential.” Jd. at 997. An integral part of

the settlement was the requirement to share 70% of the

proceeds of subsurface and timber resource development

with other land-owning Regional Corporations, and

in turn with all Village Corporations, under 43 U.S.C.

§1606(i) and (j). These revenue sharing requirements

“achieve a rough equality of assets among all the Natives.”

Chugach Natives, Inc. v. Doyon, Ltd., 588 F.2d 723, 732

(9th Cir. 1978) (citations and quotations omitted).

This approach constituted a significant departure from

lower forty-eight Indian policy. In §2 of ANCSA, Congress

explained that its intent was to resolve aboriginal land

claims “in conformity with the real economic and social

needs of Natives,...with maximum participation by

Natives in decisions affecting their rights and property,...

without creating a reservation system or lengthy wardship

or trusteeship.” 43 U.S.C. §1601(b). As this Court has

recognized, ANCSA was an effort by Congress to “end

the sort of federal supervision over Indian affairs that had

previously marked federal Indian policy.” Alaska v. Native

Village of Venetie Tribal Government, 522 U.S. 520,

523-24 (1998). Instead, ANCSA tasked Alaska Natives

themselves “to develop that land and to realize that

[economic] potential.” Koniag, 39 F.3d at 997. Accordingly,

9

the ability of Alaska Native Corporations to develop the

lands conveyed to them was absolutely essential to the

promise of ANCSA.

With this promise in place, Alaska Native Corporations

were greatly concerned when it became apparent nine

years later that much of their ANCSA land would fall

within the boundaries of the CSUs that were to be created

or expanded by ANILCA. They fought vigorously for the

inclusion in ANILCA of provisions that would preserve

the economic potential of these lands. See, e.g., 126 Cong.

Rec. 21882 (1980) (referencing concerns of Doyon, Limited

president Tim Wallis). These efforts, and those of the

State of Alaska, were the genesis of §3103(c). See, e.g., 125

Cong. Rec. 11158 (1979) (Representative John Seiberling,

the sponsor of the amendment that became §3103(c),

explaining that he offered the provision to make clear that

non-public lands within the external boundaries of new or

expanded CSUs would not be “subject to any of the laws

or regulations that pertain to U.S. public lands.”).

The Ninth Circuit panel’s decision that millions of

acres of ANCSA lands—40% of all ANCSA lands—are

subject to highly-restrictive conservation regulations

would decimate the economic value of those lands. Such

a result would fundamentally alter the tradeoff at the

heart of ANCSA: the grant of approximately 40 million

acres of land to Alaska Natives as compensation for the

total extinguishment of their aboriginal land claims. This

historic compromise served two critical national purposes,

one of which—extinguishment of Alaska Native aboriginal

title—has already been accomplished. The accomplishment

of the second purpose—securing the economic futures of

Alaska Natives—is an ongoing concern that, as the Ninth

Circuit panel’s decision demonstrates, will be significantly

10

impacted by the interpretation of §3103(c). As such, this

case presents an important question of federal law that

should be decided by this Court.

B. The Ninth Circuit panel reached its

interpretation of §3103(c) in a way that conflicts

with relevant decisions of this Court

A grant of certiorari is also appropriate because the

Ninth Circuit panel interpreted §3103(c) in a way that

conflicts with relevant decisions of this Court regarding the

construction of statutes. Focusing entirely on nine words

in the second sentence—“regulations applicable solely

to public lands within such units”—the panel concluded

that §3103(c) exempts non-public lands (including ANCSA

lands) from Alaska-specific CSU regulations but leaves

them subject to nationwide CSU regulations. In reaching

this strained and artificial interpretation, the panel

ignored four basic principles of statutory construction

established by this Court.

First, the panel failed to read §3103(c) in a way

that gives effect to every word in the statute. Under its

interpretation, the first and third sentences of §3103(c)

would be rendered meaningless.

Second, the panel failed to interpret §3103(c) in light

of ANILCA as a whole. Other provisions of ANILCA

demonstrate that Congress exerhpted non-public lands

(including ANCSA lands) from all CSU regulations, not

just Alaska-specific regulations.

Third, the panel failed to consider an important

precedent that would have greatly informed its analysis.

11

In reaching a conclusion that would significantly impact

the land rights of Alaska Natives, the panel made no

mention whatsoever of ANCSA, the historic legislation

that granted those rights.

Fourth, the panel interpreted §3103(c) in a way that

would lead to an absurd result. Specifically, its holding

would leave non-public Alaska lands subject to nationwide

CSU regulations while exempting them from Alaska-

specific CSU regulations, which are generally more

permissive than nationwide regulations.

Fifth, compounding these errors, the panel suggested

that its strained reading of the statute is supported by

the legislative history of ANILCA. This is absolutely,

unequivocally incorrect. Every single piece of legislative

history cited by the panel actually demonstrates that

Congress intended to exempt non-public lands from all

CSU regulations. There is no legislative history supporting

the panel’s holding. Only through selective editing was the

panel able to reach a different conclusion.

1. The Ninth Circuit panel interpreted

§3103(c) in a way that renders its first and

third sentences meaningless

“It is a cardinal principle of statutory construction

that a statute ought, upon the whole, to be so construed

that, if it can be prevented, no clause, sentence, or

word shall be superfluous, void, or insignificant.” 7RW

Inc. v. Andrews, 534 U.S. 19, 31 (2001) (citations and

quotations omitted). The Ninth Circuit panel violated

this “cardinal principle” by fixing its attention entirely on

the second sentence of §3103(c), rendering the first and

12

third sentences meaningless. Congress wrote the three

sentences of §3103(c) to work together as a comprehensive

whole.

The first sentence states: “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.” This

sentence establishes that non-public lands (including

ANCSA lands) lying within the external boundaries of

a CSU are not part of the CS! merely by virtue of that

geographic fact.

The second sentence states: “No lands which, before,

on, or after December 2, 1980, are conveyed to the State,

to any Native Corporation, or to any private party shall be

subject to the regulations applicable solely to public lands

within such units.” This sentence is a direct complement

to the first and means that ANCSA land that is not part

of a CSU will not be regulated as such simply because it

lies within the external boundaries of the CSU.

The third sentence states: “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.” This sentence explains how the acquisition

of land by the relevant Secretary alters the state of affairs

established by the first two sentences: the lands “become

part of the unit” and are “administered accordingly.”

Logically, until such lands are acquired, they are not

administered as “part of the unit.”

13

Giving effect to all three sentences, as this Court’s

precedents require, the meaning of §3103(c) becomes clear:

non-public lands within the boundaries of a CSU are not

part of the CSU and will not be regulated as though they

are, unless they are acquired by the federal government.

However, the Ninth Circuit panel gave undue attention to

the second sentence, not only distorting its meaning but

also rendering the first and third sentences meaningless.

That is, if the second sentence subjects non-public land to

regulations governing a CSU, then the land is, for practical

purposes, “a portion of” the CSU (contrary to the first

sentence), and it can be “administered accordingly” even if

it is never acquired by the Federal Government (contrary

to the third sentence). The panel’s interpretation thus

renders first and third sentences of §3103(c) superfluous

or void.

2. The Ninth Circuit panel failed to read

§3103(c) in light of other relevant provisions

of ANILCA

The Ninth Circuit panel failed to comply with this

Court’s admonition that provisions of ANILCA “must

be viewed in the context of the Act as a whole.” Amoco,

480 U.S. at 549; see also U.S. Nat'l Bank of Oregon v.

Indep. Ins. Agents of Am., Inc., 508 U.S. 438, 455 (1993)

(“In expounding a statute, we must not be guided by a

single sentence or member of a sentence, but look to the

provisions of the whole law, and to its object and policy.”);

Dada v. Mukasey, 554 U.S. 1, 16 (2008) (“In reading a

statute we must not look merely to a particular clause, but

consider in connection with it the whole statute.”). When

viewed in the context of ANILCA as a whole, §3103(c)

exempts ANCSA lands from all CSU regulations.

14

The Ninth Circuit panel began its analysis of §3103(c)

by citing the first section of ANILCA, which explains

that the Act serves both environmental and economic

purposes, in that it “provides sufficient protection for

the national interest in the scenic, natural, cultural and

environmental] values on the public lands in Alaska,

and at the same time provides adequate opportunity

for satisfaction of the economic and social needs of

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

(ANILCA §101(d)) (emphasis added). However, the pane]

then immediately mischaracterized a passage from an

earlier Ninth Circuit decision to suggest that ANILCA is

a predominantly conservational measure: “Summarized

succinctly, ‘ANILCA is generally concerned with the

designation, disposition, and management of land for

environmental preservation purposes.’ Stratman v.

Leisnoi, Inc., 545 F.3d 1161, 1165 (9th Cir. 2008).” Op. 19.

What the Ninth Circuit actually said in Stratman

was this: “Although ANILCA is generally concerned

with the designation, disposition, and management of

land for environmental preservation purposes, part of

ANILCA is devoted to the implementation and cleanup

of ANCSA.” 545 F.3d at 1165 (emphasis added; citation

omitted). The panel's careful avoidance of the ANCSA

reference is telling. Of ANILCA’s 180 pages, only about

45 related to the creation or expansion of CSUs (see Titles

II-VII), while most of the remaining 135 were made up of

compromise provisions addressing various ANCSA and

State concerns (see, e.g., Titles VIII-XIV and parts of Title

I). Contrary to the panel’s suggestion, ANILCA was not

only directed at environmental protection—it was also

directed at implementing ANCSA.

15

Several provisions of ANILCA demonstrate that non-

public lands within the external boundaries of Alaska CSUs

are generally exempt from CSU regulations. Most notably,

43 U.S.C. §1635(0)(2) (ANILCA §906(0)(2)) provides,

“Until conveyed [to a Native Corporation or the State],

all Federal lands within the boundaries of a conservation

system unit...shal] be administered in accordance with

the laws applicable to such unit.” (Emphasis added.) The

obvious corollary to this requirement is that once lands

within the boundaries of a CSU are conveyed to a Native

Corporation or the State, they shall not “be administered

in accordance with the laws applicable to such unit.” If this

were not the case, 43 U.S.C. §1635(0)(2) would be entirely

superfluous.

Congress included §3103(c) in addition to §1635(0)(2)

because all CSUs were described in ANILCA by reference

to maps, and not legal descriptions. Section 3103 is titled

“Maps,” and subsection (c) was added to clarify that non-

public lands that lie within the boundaries of a CSU as

depicted on an ANILCA map are not part of the CSU,

or subject to the regulations governing the CSU. The

Congressman who introduced the language that became

§3103(c), John Seiberling, explained on the House floor

that this was the precise purpose of the provision:

Mr. Chairman, what [§3103(c)] does is say that

the fact that (State, native, or private land] is

within the boundaries drawn on the map for

that conservation unit does not in any way

change the status of that State, native, or

private land or make it subject to any of the

laws or regulations that pertain to U.S. public

lands, so that those inholdings are clearly not

16

controlled by any of the public land laws of the

United States.

125 Cong. Rec. 11158 (1979) (emphasis added). Far

from creating a distinction between Alaska-specific and

nationwide regulations, §3103(c) clarified that non-public

lands would not be subject to any CSU regulations,

notwithstanding their location on an ANILCA map. Only

by reading the second sentence of §3103(c) in isolation

was the Ninth Circuit panel able to reach a different

conclusion.

Two other provisions of ANILCA that make clear

that non-public lands within the boundaries of CSUs

are generally exempt from CSU regulations are §304(f)

(94 Stat. 2394) and §907(a) (43 U.S.C. $1636(a)). Those

sections provide that non-public land becomes subject

to federal management if the owner agrees in writing

to such management. If this land were already subject

to federal management, as the Ninth Circuit panel held,

these provisions would be unnecessary.

3. The Ninth Circuit panel failed to read

§3103(c) in light of the key purposes of

ANCSA

Despite the fact that §3103(¢) expressly applies to

lands owned by Alaska Native Corporations, and despite

its decision’s dramatic effect on ANCSA lands and Alaska

Natives, the Ninth Circuit panel did not even mention

ANCSA in its opinion. This Court has held that a statute

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). If ANCSA, the historic

17

precursor to ANILCA, does not “inform the analysis” of

§3103(c), then ANILCA took back what ANCSA promised

to Alaska Natives in return for giving up their aboriginal

rights.

No provision of ANILCA that addresses the rights and

interests of Alaska Natives, particularly §3103(c), can be

fully understood without also understanding the purposes

of ANCSA. As discussed in detail in section III.A, above,

Congress, in ANCSA, granted approximately “40 million

acres of land to Alaska Natives as compensation for

extinguishment of their claims and to assist them in

achieving financial independence and self-sufficiency.”

City of Angoon, 749 F.2d at 1414 (emphasis added). The

Ninth Circuit panel’s interpretation of §3103(c) rendered

millions of those acres essentially valueless without so

much as noting this vital purpose.'® When read against

the backdrop of ANCSA, one critical intention of §3103(c)

becomes abundantly clear: to preserve the economic value

of lands conveyed to Native Corporations by exempting

them from regulations written to govern CSUs.

10. Notably, the Ninth Circuit panel that decided City of

Angoon v. Marsh relied heavily on ANCSA in concluding that

Native Corporation lands within the external boundaries of

the Admiralty Island National Monument are nut “within” the

Monument and therefore are not subject to a timber harvesting

ban applicable to the Monument. See, e.g., 749 F.2d at 1416 (citing

ANCSA §22(i) (43 U.S.C. §1621(i)) in support of its conclusion that

“Congress has made it clear that the Secretary cannot manage

private lands which have been conveyed to a Native Corporation”).

That panel also cited ANILCA §103(c) as support for its conclusion

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 conveyed to Native

Corporations were to be treated as public lands.” /d. at 1417-18.

18

This Court has only interpreted one section of

ANILCA, and when it did, it relied in part on related

sections of ANCSA. In Amoco, this Court addressed

whether ANILCA §810, a subsistence rights provision,

applies to the outer continental shelf. In deciding that

it does not, this Court cited three pertinent sections of

ANCSA. See 480 U.S. at 552 (citing 43 U.S.C. §§1602(e),

1610(a), and 1611). Amoco demonstrates that considering

the history and purposes of ANCSA is absolutely critical

to a full understanding of any provision of ANILCA that

concerns Alaska Native rights. In this case, the Ninth

Circuit panel did not say a word about ANCSA.

4. The Ninth Circuit panel interpreted

§3103(c) in a way that leads to an absurd

result

This Court has instructed that an interpretation of a

statute that leads to an absurd result should be avoided if

there is a reasonable alternative interpretation. See, e.g.,

Tarrant Regional Water Dist. v. Herrmann, 133 S. Ct.

2120, 2131 (2013); United States v. Wilson, 503 U.S. 329,

334 (1992). The panel’s strained interpretation leads to an

absurd result that was readily avoidable.

Under the panel’s interpretation of §3103(c), non-public

lands (including ANCSA lands) that are situated within

the external boundaries of Alaska CSUs would be subject

to nationwide CSU regulations but would be exempt from

Alaska-specific CSU regulations. However, the National

Park Service has itself recognized that Alaska-specific

regulations “generally are relaxations of prohibitions

contained in the general regulations.” See 61 Fed. Reg.

35134 (1996). It is an absurd result for non-public lands to

19

be subject to greater use restrictions than the surrounding

CSUs.

5. The Ninth Circuit panel offered aselectively

edited version of the legislative history of

ANILCA to support its interpretation of

§3103(c)

Compounding the serious interpretive errors

discussed above, the Ninth Circuit panel suggested that

the legislative history of ANILCA confirms its reading of

§3103(c). Nothing could be further from the truth. None

of the materials cited by the panel indicate that Congress

ever contemplated a distinction between Alaska-specific

' regulations and nationwide regulations. Rather, they

uniformly support the conclusion that §3103(c) exempts

non-public lands within the boundaries of CSUs from all

CSU regulations. The panel was able to reach a different

result only by selective quotation to omit the language

that directly contradicts its holding.

The panel began by quoting part of a statement made

by Representative Seiberling in support of his proposed

addition of §3103(c). Specifically, the panel observed that

“(t]he first sentence of §3103(c) makes clear that the

boundaries of CSUs ‘do[...] not in any way change the

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

those boundaries.” Op. 21 (quoting 125 Cong. Rec. 11158

(1979)). The panel’s reliance on this passage is puzzling.

Before ANILCA, the “status” of these lands was that they

did not lie within CSUs and therefore were not subject to

regulations governing CSUs. Representative Seiberling’s

explanation—that he offered §3103(c) to ensure that this

status would not change—conflicts starkly with the panel’s

interpretation of the provision.

20

The Ninth Circuit panel chose to omit the remainder of

the sentence in which the above-quoted passage appeared.

The omitted portion directly contradicts the Ninth

Circuit’s holding. Representative Seiberling stated, in full:

Mr. Chairman, what [§3103(c)] does is say that

the fact that [State, native, or private land] is

within the boundaries drawn on the map for

that conservation unit does not in any way

change the status of that State, native, or

private land or make it subject to any of the

laws or regulations that pertain to U.S. public

lands, so that those inholdings are clearly not

controlled by any of the public land laws of the

United States.

125 Cong. Rec. 11158 (emphasis added). Representative

Seiberling’s actual words establish that under §3103(c)

non-public lands that fall within the external boundaries

of CSUs as a result of ANILCA would not be subject

to “any of the laws or regulations that pertain to”

the CSUs, regardless of whether the regulations are

applicable nationwide or only in Alaska. See also id. at

11156 (Representative Seiberling explaining that his

amendment “makes it clear that any lands, State, native

or private lands, which lie within the outer boundaries of

the conservation unit in the Udall bill are not swhjected to

regulations which are applied to public lands.”) (emphasis

added). By citing only part of this passage, the Ninth

Circuit altered its meaning to be the opposite of what

Representative Seiberling actually said.

The panel also noted that Representative Seiberling

“offered the view that his amendment ‘restate[d] and

21

malde] clear’ that nonfederal lands within CSUs would

not be ‘subject to regulations which are applied to public

lands which, in fact, are part of the unit.” Op. 24 (citing

125 Cong. Rec. 11158). This statement does not support

the panel’s reading of §3103(c). Representative Seiberling

was emphasizing, again, that non-public lands would

not be subject to any regulations written to govern the

CSUs, whether Alaska-specific or nationwide. The Ninth

Circuit panel did not mention Representative Seiberling’s

explanation on the same page of the Congressional Record

that he offered his amendment to reinforce the existing

text of the bill, which, he believed, “does not alter in any

way the ability of the State or Natives to do what it will

with those lands.” 125 Cong. Rec. 11158 (emphasis added).

This also plainly contradicts the panel’s holding.

Next, the panel observed that Representative Mo

Udall, the primary sponsor of ANILCA in the House,

“declared that nonfederal land would not be constrained

by ‘regulations applicable to the public lands within the

specific conservation system unit.” Op. 24 (citing 125

Cong. Rec. 9905 (1979)). The panel did not explain how

this statement supports its interpretation of §3103(c).

Presumably, the panel would say that Representative

Udall used the phrase “the specific conservation system

unit” in order to create a distinction between regulations

applicable nationwide and regulations applicable only in

Alaska CSUs. This is incorrect. Representative Udall’s

full statement, which the Ninth Circuit panel omitted

from its opinion, demonstrates an intent identical to

Representative Seiberling’s. He said:

I want to make clear that inclusion of these

Native lands within the boundaries of

22

conservation system units is not intended to

affect any rights which the corporations may

have under this act, the Alaska Native Claims

Settlement Act, or any other law, or to restrict

use of such lands by the owning corporations

nor to subject the Native lands to regulations

applicable to the public lands within the specific

conservation system unit.

125 Cong. Rec. 9905 (emphasis added). Apparently, the

panel chose to exclude the full text because Representative

Udall’s language directly contradicts its reading of

§3103(c). By quoting only a few words from this sentence,

the panel altered its meaning to be the opposite of what

Congressman Udall actually said.

The panel also stated that a 1979 report by the Senate

Committee on Energy and Natural Resources “notes that

§103(c) would exempt non-Federal land from ‘regulations

which may be adopted to manage and administer any

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

non-Federal public lands.” Op. 24-25 (citing S. Rep. No.

96-413, at 303 (1979), reprinted in 1980 U.S.C.C.A.N.

5070, 5247). However, the panel extracted this language

from a longer passage, the full text of which demonstrates

that the Committee did not draw a distinction between

nationwide and Alaska-specific CSU regulations:

Those private lands, and those public lands

owned by the State of Alaska or a subordinate

political entity, are not to be construed as subject

to the management regulations which may be

adopted to manage and administer any national

conservation system unit which is adjacent

23

to, or surrounds, the private or non-Federal

public lands. Federal laws and regulations

of general applicability to both private and

public lands, such as the Clean Air Act, the

Water Pollution Control Act, U.S. Army Corps

of Engineers wetlands regulations, and other

Federal statutes and regulations of general

applicability would be applicable to private

or non-Federal public land inholdings within

conservations [sic] system units, and to such

lands adjacent to conservation system units,

and are thus unaffected by the passage of this

bill.

S. Rep. No. 96-413, at 303 (1979), reprinted in 1980

U.S.C.C.A.N. 5070, 5247 (emphasis added). The second

sentence of this paragraph shows that the Committee’s

purpose was to establish that “private or non-Federal

public lands” (including ANCSA and State lands) within

CSUs, while not subject to regulations written specifically

to govern CSUs, would still be subject to federal statutes

and regulations that apply to al/ land in the United States,

whether public or private.

The Committee’s report also reveals why the word

“solely” was included in the second sentence of §3103(c)—a

reason quite different than the panel asserts. Without

that word, the second sentence would exempt non-public

lands within the external boundaries of CSUs from all

“regulations applicable [...] to public lands within [CSUs].”

See 16 U.S.C. §3103(@). Such language could be read to

exempt these non-federal lands from “Federal laws and

regulations of general applicability”—laws tinat apply to

all lands in the United States—like those environmental

24

statutes the Committee used as examples: the Clean

Air Act and the Water Pollution Control Act (the Clean

Water Act). Tellingly, the Ninth Circuit panel omitted the

Committee’s second sentence in its opinion.

IV. Conclusion

For the foregoing reasons, this Court should grant

certiorari.

Respectfully submitted,

JAMES D. LINXWILER, Esq.

Counsel of Record

JOSH VAN GorKoM, Esq.

Guess & Rupp P.C.

510 L Street, Suite 700

Anchorage, AK 99501

(907) 793-2200

jlinxwiler@guessrudd.com

Attorneys for

Native Corporation Amici

Date: April 29, 2015

EXHIBIT 1

MAP OF ANCSA LANDS WITHIN ALASKA

FEDERAL CONSERVATION SYSTEM UNITS

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