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

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No. 14-1209

In The

Supreme Court of the Anited States

°

JOHN STURGEON,

Petitioner,

Vv.

BERT FROST, in his Official Capacity

as Alaska Regional Director of

the National Park Service,

Respondent.

SJ

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

°

BRIEF OF AMICUS CURIAE STATE OF

ALASKA IN SUPPORT OF PETITIONER

°

CRAIG W. RICHARDS

Attorney General of Alaska

JANELL HAFNER RUTH BOTSTEIN

Assistant Attorney General Assistant Attorney General

P.O. Box 110300 Counsel of Record

Juneau, Alaska 99801 1031 W. 4th Avenue

(907) 465-3600 Anchorage, Alaska 99501

janell.hafner@alaska.gov (907) 269-5100

ruth. botstein@alaska.gov

COCKLE LEGAL BRIEFS (800) 225-6964

WWW COCKLELECALBRIEFS.COM

i

QUESTION PRESENTED

Whether Section 103(c) of the Alaska National

Interests Lands Conservation Act of 1980 prohibits

the National Park Service from exercising regulatory

control over State, Native Corporation, and private

Alaska land physically located within the boundaries

of the National Park System.

ss

TABLE OF CONTENTS

Page

QUESTION PRESENTED..............-:cscseccesseseeeeeeeees i

TABLE OF CONTENT S.........2.::cceccecseeceseeseeeeseeseess ii

TABLE OF AUTHORITIES ............ccccscccceseeseeeeeeees iv

INTEREST OF AMICUS CURIAE..........0..0:00000+0+ 1

INTRODUCTION ........:ccccccccscessesesscesesssesesseseesenceees 2

SUMMARY OF ARGUMENT ...............:00s000ese0000000 5

TATE SPE ne OTTER x

I. The Ninth Circuit’s Decision Deprives

Alaska of Its Sovereign Prerogative to

Manage Its Lands and Waters Consistent

With the Needs of Its People....................... 8

A. Alaska’s ownership of its lands and

waters is an essential aspect of its

state sovereignty ................::ccsceeeceeeeeeees 9

B. Loss of Alaska’s sovereign power to

regulate its own lands and waters will

inflict serious harms on ordinary Alas-

BP aceccnsnscncassemnnssctnsscenetnscennsetesmmecsines 14

II. ANILCA §103 Exempts Nonfederal Lands

from Federal Park Management Regula-

FR ncnesacinsanenensedsioanessonsenesnntinnnnniantniivimiamenns 23

A. The plain language of §103(c) exempts

State, Native Corporation, and privately

owned land within CSUs from being

regulated as though they were federal

iil

TABLE OF CONTENTS — Continued

Page

B. ANILCA’s context and structure con-

firm that the Park Service cannot reg-

ulate nonfederal lands within Alaska

Tie sisidiiahicddedbenbiisciiinniniindandinidedinimenieese 28

C. ANILCA’s legislative history confirms

Mr. Sturgeon’s reading of §103(c) ......... 32

D. The Park Service’s interpretation of

§103(c) impinges on Alaska’s right to

regulate its lands absent clear con-

gressional intent, and therefore con-

flicts with the clear statement doctrine

and is not entitled to Chevron defer-

FEATS enone EN omen nT emer ee 35

ETT TE AA a HT a LO 39

APPENDIX

Appendix A: Alaska Department of Natural

Resources Map of Alaska Conservation Sys-

UTI ilisinnntadedgniemibanstenessetininterticesmmencnienees App. 1

iv

TABLE OF AUTHORITIES

Page

CASES

Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995).....13, 14

Alaska v. United States, 201 F.3d 1154 (9th Cir.

Ra LESS ye FSS SORES ST Ao eer ee oe er ee 11

Alaska v. United States, 545 U.S. 75 (2005).............. 12

Amoco Prod. Co. v. Vill. of Gambell, Alaska,

EST TEN a BS ee a 29

Bilski v. Kappos, 561 U.S. 593 (2010)........................ 28

BP America Prod. Co. v. Burton, 549 U.S. 84

SE ene eee oD A EEN 24

Chevron, U.S.A., Inc. v. Natural Resources De-

fense Council, Inc., 467 U.S. 837 (1984).....35, 36, 38

City of Angoon v. Marsh, 749 F.2d 1413 (9th

ERS SRT Peron een oar oe rere ree mene 30

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

I ciel 10

Coyle v. Smith, 221 U.S. 559 (1911).......... eee 1, 12

General Dynamics Land Sys., Inc. v. Cline, 540

el 36

Gregory v. Ashcroft, 501 U.S. 452 (1991)................4 37

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S.

I aia siaeunaneaaiainenennii 13

Illinois Central R.R. Co. v. Illinois, 146 U.S.

IEE AES PRE tener eee 12, 13

Mansell v. Mansell, 490 U.S. 581 (1989) ................... 25

v

TABLE OF AUTHORITIES — Continued

Page

Metlakatla Indian Community v. Egan, 369

EEE RES aren se ener on oe ae koa a 9

Oregon ex rel. State Land Bd. v. Corvallis Sand

& Gravel, 439 UB. BBS (1977) ....ccccccccccccccccscccsccceses 12

Rapanos v. United States, 547 U.S. 715 (2006) .....21, 22

Robinson v. Shell Oil Co., 519 U.S. 337 (1997) ......... 29

Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers, 531 U.S. 159

SEIT niid dilsndennidihinincnidmeninbenaiaipanniapseitibnetinbeiaianel 37, 38

Tarrant Reg’ Water Dist. v. Herrmann, 133

TTT ssc da licictabaniaeianinanneianiidiannedin 1,18

Trustees for Alaska v. State of Alaska, 736 P.2d

I i terete 9

U.S. Nat'l Bank of Oregon v. Indep. Ins. Agents

of Am., Inc., 508 U.S. 439 (1993) ..............:cccceeeeeees 28

United States v. Alaska, 521 U.S. 1 (1997)................ 13

United States v. Gonzales, 520 U.S. 1 (1997) ............ 32

United States v. Lindsey, 595 F.2d 5 (9th Cir.

SEE SRE AeA TE ese eee ea Ae 17

Utility Air Regulatory Grp. v. EPA, 134 S. Ct.

STI siiindiatnsinicinsnciinnnniiatcimrcncnimmaiiianiiiaieneni 29, 36

Will v. Michigan Dep't of State Police, 491 U.S.

III iictcininittescnecblegitianinnaihntenniigeedaginincebdsneuaibentinl 37

vi

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL PROVISION

Alaska Constitution — Article VIII....................... 10, 13

STATUTES, RULES AND REGULATIONS

I senisdeiiendiiinninieaeietl 2

I a iinaiceciteeceibciteieiniie 2, 16, 30, 32

iia leis ciaiintnaiiaieiinnnligainidaiiell 4

hia ientediicaisieaiiatinitiabldl 2

RN 3

I ahi imtdenetineeeneail passim

i ell 3

TT son eis ntrniiaieenitatlimianinmianniieeaitl 30

I TT cn lite nncisenhieeiteeiansindnheeninndaliiadillaiad 30

eee ema een 31

TT sialic ladaehleiticieieitinaidianinlalbicitintial 3

BI, TIT is cninisiniapasipnendnisiaihbdemnabbinaciiniaiiantniiateien 16

I I cei eatiersiniiniininiiibiainieniatnelie 3, 16

43 U.S.C. §§1301 et BOG. soeeesseressereesseessesesseessensncencensees 12

insti lialeicl a cerretancinarinideninindianipiiinindiil 12

ETA TTT 10

Alaska Stat. §§38.05.127-.128 .......... eee eceeeeeeeeee 13

Alaska Stat. §38.05.126(b) .............csccssssssssesseseseesens 13

Vii

TABLE OF AUTHORITIES — Continued

Page

Alaska Statehood Act, Pub. Law No. 85-508, 72

I a oiaeccinsionibianiindin 12

EG Se RC EE 18

a iuinisainnninanl 20

EET SS ENT cae aera Te 13, 24

ET a ee ea PY 31

TE AE OE TR AT 5

i al 5, 23

atid erties naceicianinndiitibimeanineia 17

TIES TTL nT A Ea eS END 17

I ili in a 17

REEL ITS ee eT ETE EY 20

iii leaden ian

EEL Trane ae car Re ee NT 32

i a cael 32

I ae eemeaslll 32

OTHER AUTHORITIES

80 Fed. Reg. 65571 (proposed Oct. 26, 2015)............. 21

125 Cong. Rec. 11158 (1979)...................00. 7, 26, 33, 35

Alaska Department of Revenue, Revenue Sources

I i sscihemmeill 11

S. Rep. 96-413 reprinted in 1980 U.S.C.C.A.N.

Sra actesteshaciserthsapiehbesepeeilhicinleebainetataindimieiiiieaabiitald 16, 34

1

INTEREST OF AMICUS CURIAE

This case is about who has regulatory authority

over millions of acres of nonfederal lands and waters

within Alaska — the State of Alaska or a federal land

management agency. The Ninth Circuit’s decision be-

low interprets §103(c) of the Alaska National Interest

Lands Conservation Act (‘ANILCA”) to give that au-

thority to the National Park Service. After Native

Corporations, the State owns the second largest area

of nonfederal lands in Alaska’s National Park System

units. It has a uniquely compelling interest in man-

aging those lands, as well as its waters, which are

deeply tied to its sovereignty. Alaska’s “ownership of

[its] submerged lands, and the accompanying power

to control navigation, fishing, and other public uses of

water” — like its right to regulate its navigable waters

— is “an essential attribute of sovereignty.” Tarrant

Reg'l Water Dist. v. Herrmann, 133 S. Ct. 2120, 2132

(2013) (internal quotation marks omitted); Coyle v.

Smith, 221 U.S. 559, 573 (1911).

The Ninth Circuit’s interpretation of §103(c) to

eliminate local control of nonfederal lands in favor of

nationalized land management has broad ramifica-

tions that will adversely impact Alaska and its peo-

ple. The ruling ignores the reality of life throughout

much of rural Alaska, where residents face unparal-

leled access challenges, are acutely reliant on the

State’s resources, and regularly use the State’s wa-

terways as transportation thoroughfares. The State

has a powerful interest in preserving its authority to

manage its lands as Congress intended, freely using

2

its lands and waters for scientific study and other

beneficial uses, and protecting the Alaskans who rely

on access to and use of the State’s lands and waters to

provide for their families.

+

INTRODUCTION

The Alaska National Interest Lands Conserva-

tion Act sought both to “provide[ ] sufficient protection

for the national interest in the scenic, natural, cul-

tural, and environmental values on the public lands

in Alaska, and at the same time provide[ ] adequate

opportunity for satisfaction of the economic and social

needs of the State of Alaska and its people.” 16 U.S.C.

§3101(d). ANILCA dedicated over 100 million acres of

federal land — an area larger than California — for

conservation and protection. 16 U.S.C. §§3101 et seq.

It organized vast swaths of Alaska’s new and ex-

panded national parks, wildlife refuges, wild and

scenic rivers, national trails, wilderness preservation

systems, and national forest monuments into con-

servation system units (“CSUs”) managed by differ-

ent federal land management agencies. Id. §3102(4).

Roughly forty percent of Alaska falls within an

ANILCA CSU. Aiaska’s National Parks now make

up two-thirds of the National Park System’s entire

acreage, and the federal government owns over sixty

' In addition, approximately eighty-six percent of the total

land area administered by the United States Fish and Wildlife

Service and nearly one-third of the land area administered by

(Continued on following page)

3

percent of all land in Alaska — making it the largest

landowner in the state.

Congress understood that many nonfederal lands

fell within CSU boundaries; realized that Congress’s

massive land grant to Alaska at statehood reflected

the State’s unique need to manage and develop its

resources to meet the costs of statehood; that Alas-

kans confront unique geographic, climactic, and eco-

nomic challenges; and that Alaska needed to retain

its authority to manage its own lands to provide for

its people. While ANILCA reserved and placed mas-

sive amounts of public land into conservation status —

significantly constraining Alaska’s future economic

development — it also included multiple provisions

intended to protect Alaska’s sovereign authority over

the land it owns itself. See id. §§3103, 3111-14, 3202,

3207. Most important, Congress balanced federal

conservation goals and the importance of State self-

determination through §3103(c) (“§103(c)”), which pro-

vides:

Only those lands within the boundaries of

any conservation system unit which are pub-

lic 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 the date of enactment of this Act,

are conveyed to the State, to any Native Cor-

poration, or to any private party shall be

the Bureau of Land Management is in Alaska. The attached

appendix shows those lands.

4

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 appli-

cable law (including this Act), and any such

lands shall become part of the unit, and be

administered accordingly.

This section ensured that nonfederal “lands” falling

within newly expanded park boundaries — defined to

include State waters like the Nation River — would

not be treated and managed as if they were federally

owned public lands. Jd. §§3102(1), 3103(c).

Petitioner John Sturgeon was operating a small

personal hovercraft on a State-owned navigable wa-

terway, the Nation River, as Alaska law allows. While

on a gravel bar, he was approached by armed Park

Service officials and threatened with criminal citation

for violating a nationwide Park Service ban on hover-

craft use. In considering Mr. Sturgeon’s challenge to

that regulation below, the Ninth Circuit acknow!l-

edged that the first sentence of §103(c) instructs that

State, Native, and private owned lands are not to

be deemed a part of a CSU. But it refused to give

meaning to the second sentence, which confirms that

because nonfederal lands are not a part of CSUs,

federal land management agencies have no au-

thority to manage them as if they were. Instead, the

court construed the language to mean nonfederal

land within CSUs were exempt from only “[Alaska]

CSU-specific regulations.” Pet. App. 24a. Because the

5

hovercraft ban applied to all Park Service lands and

waters nationwide — including “navigable waters

without regard to the ownership of submerged lands,

tidelands, or lowlands,” 36 C.F.R. §§1.2(a)(1), (3) -—

and not “solely” to Alaska CSU public lands, the court

held the regulation did not violate ANILCA. Pet. App.

25a-26a.

°

SUMMARY OF ARGUMENT

This case asks whether §103(c) of ANILCA explic-

itly authorizes the National Park Service -— or any

other federal land management agency — to usurp the

State of Alaska’s sovereign right to manage state-

owned lands and waters in Alaska, and to similarly

seize management authority over Native Corporation

and privately owned lands. It does not.

In concluding otherwise, the Ninth Circuit ig-

nored Congress’s decision to explicitly exclude non-

federal lands from CSUs and to curtail the Park Ser-

vice’s jurisdiction over those nonfederal lands. Under

the Ninth Circuit’s decision, the Park Service can

seize jurisdiction over Native inholdings, State lands

or riverbeds, or private homesteads lying within a

Park Service boundary even though those lands are

not a part of a CSU, simply by promulgating na-

tionwide regulations. This decision impedes Alaska’s

sovereignty and overhauls ANILCA, to Alaska’s detri-

ment. It also contradicts the language of §103(c), in

6

which Congress endeavored to preserve Alaska’s au-

thority to manage its lands.

Alaska has a sovereign right to and interest in

managing its lands and waters. It owns the riverbed

of the Nation River and other navigable rivers like it

as a matter of constitutional grace by virtue of the

equal footing doctrine. Alaska’s sovereign ownership

of its submerged lands also includes the right to.

regulate its waters. The Ninth Circuit’s misreading of

§103(c) ignores Alaska’s ownership of its submerged

lands. In so doing, the decision usurps the state’s tra-

ditional authority to control its resources. By permit-

ting the Park Service to control lands and waters it

does not own and holds no title to, this decision

hinders Alaska’s power to assure continued access to

its resources for its people.

The alarming federalism consequences stemming

from this decision have unique and real consequences

for Alaskans. Alaska’s control over its abundant re-

sources has been a central compact of its sovereignty

since statehood, and access to those resources is crit-

ical for many of its residents. For rural Alaskans

living in remote villages unconnected to the road

system, use of and access to the state’s lands and

waters provide a food source, an important means of

travel across a remote territory, and an opportunity

to supplement income through localized resource-

based activities. Alaska’s waters form a unique part

of this way of life and often provide critical access

routes across the vast, varied terrain. The Ninth

Circuit’s decision thus threatens not only the State’s

7

sovereignty — even requiring it to ask for a permit

from a federal agency to access and use its own re-

sources — but also the way of life of ordinary Alaskan

citizens. And the Park Service is actively working to

expand the scope of the Ninth Circuit’s ruling, al-

ready proposing regulations that rely solely on the

court’s ruling to further expand its jurisdiction over

nonfederal lands.

All of these harms are rooted in the Ninth Cir-

cuit’s fundamental misreading of §103(c). Rather than

understanding the plain and precise statutory text

to mean what it says — State, Native, and private

lands are not federal lands, and cannot be managed

as though they were — the Ninth Circuit misread

the statute. The court’s untenable interpretation of

§103(c) creates a distinction between a national and

Alaska-specific management regime that is not part

of the provision’s text. This interpretation not only

misreads the plain text of the statute, but also con-

tradicts the law’s basic purposes, transforming a pro-

vision designed to preserve Alaska’s sovereignty into

one that undermines it. The Ninth Circuit’s ruling

flies in the face of congressional intent that ANILCA’s

inclusion of nonfederal inholdings within CSU bound-

aries “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 (1979) (statement of Rep.

Seiberling). It gives the Park Service more authority

over nonfederal lands than federal ones, and it allows

the Park Service to regulate State, Native, and pri-

vate lands on a nationwide basis, but not on a

8

statewide one — despite the fact Congress crafted

ANILCA to create Alaska-specific rules for land use

and management. Such an unreasonable interpre-

tation, and one that does such damage to Alaska’s

sovereignty, is entitled to no deference and should be

rejected. This Court should reverse the Ninth Cir-

cuit’s decision and give effect to ANILCA’s guarantees

that State, Native, and private landowners would

maintain control over the lands and waters that they

own.

®

ARGUMENT

I. The Ninth Circuit’s Decision Deprives Alaska

Of Its Sovereign Prerogative To Manage Its

Lands And Waters Consistent With The

Needs Of Its People.

The Ninth Circuit’s decision deprives Alaska and

its people of the benefit of the bargain that ANILCA

struck. It transfers state decision-making authority

over how best to responsibly manage Alaska’s lands

to a federal agency. And it blesses the Park Service’s

decision to regulate nonfederal lands in Alaska when-

ever it wants. This decision usurps Alaska’s rightful

authority to manage its own lands, including the

waters flowing over submerged lands to which the

state was granted title at statehood. And it hampers

the State’s ability to meet the exceptional needs of

Alaskans, who face unparalleled transportation, eco-

nomic, and social challenges. The Ninth Circuit’s de-

cision thus strikes at the heart of Alaska’s sovereignty

9

and upsets the usual federal-state balance. In so do-

ing, it inflicts real harms on Alaskans, for whom open

access to and use of Alaska’s rich resources are essen-

tial to their way of life.

A. Alaska’s ownership of its lands and wa-

ters is an essential aspect of its state

sovereignty.

Authority to manage its lands and waters is a

particularly important sovereign interest to the State

of Alaska, inextricably tied to its history and self-

governance. The drive to secure local management of

Alaska’s resources lay at the very genesis of its state-

hood: Alaskans’ interest in controlling the State’s

fisheries without unwarranted federal control was a

principal motivation for statehood. See Metlakatla

Indian Community v. Egan, 369 U.S. 45, 47 (1962).

But the territory’s lack of taxable industry and popu-

lation stood in the way: “(o]ne of the principal objec-

tions to Alaska’s admittance into the Union was the

fear that the territory was economically immature

and would be unable to support a state government.”

Trustees for Alaska v. State of Alaska, 736 P.2d 324,

335 (Alaska 1987). Ultimately, “(t]he congressmen

who favored statehood . . . maintained that the State-

hood Act sufficiently provided for Alaska’s financial

well-being. The land grant of 103,350,000 acres was

perceived by these congressmen as an endowment

which would yield the income that Alaska needed to

meet the costs of statehood.” Jd. at 336. The “unprec-

edented size” of the land grant accourted for the fact

10

that “the federal government had already reserved

the most valuable land and the new state would, in

effect, have second choice” and that lands available

for state selection were “only marginally productive.”

Id. at n.23 (citations omitted). In 1971, when Con-

gress conveyed 44 million acres of federal land and its

subsurface estate to support Alaska’s Native peoples

under the Alaska Native Claims Settlement Act, that

conveyance also had development importance for

Alaskans. See 43 U.S.C. §§1601 et seq.; City of Saint

Paul, Alaska v. Evans, 344 F.3d 1029, 1031 (9th Cir.

2003).

Alaska’s constitutional delegates viewed state

management of the anticipated grant of land and

resources aS a serious sovereign responsibility. They

drafted an entire natural resources article in the

Alaska Constitution — Article VIII — with provisions

designed to preserve and protect the State’s lands,

waters, and other resources while allowing for re-

sponsible access and use, including sections reserving

the State’s resources to the people “for maximum use

consistent with the public interest”; managing the

state’s replenishable resources on the sustained yield

principle; and ensuring free access to Alaska’s navi-

gable and public waters. Alaska Const. art. VIII, §§1-

4, 14. And as anticipated at statehood, Alaskans

have indeed funded their state government — includ-

ing executive agencies that provide public programs

and benefits, a court system, and the state legislature

11

— primarily by using the land and resources the State

holds for this purpose.”

The importance of retaining the State’s authority

to carry out these responsibilities is magnified by the

size of the federal government’s role in Alaska. Alaska

takes up an area one-fifth the size of the lower forty-

eight states, encompassing the largest intact tem-

perate rainforest in the world — equal to the size of

West Virginia — and a northern coastal tundra bigger

than Kansas. The federal government possesses al-

most two-thirds of all land. Alaska’s federal lands are

larger in area than fifteen eastern seaboard states,

from Maine to South Carolina, combined. This ex-

traordinary concentration of federal ownership means

that any nationwide Park Service regulation will

disproportionately affect Alaskans. But it also under-

scores the relevance of continued State management

of state resources.

In addition to the State’s interest in its vast

lands, Alaska has a sovereign interest in its navigable

waters. Alaska owns the riverbed of the Nation River,

where Mr. Sturgeon was approached by armed fed-

eral officials. See Alaska v. United States, 201 F.3d

1154, 1164-66 (9th Cir. 2000). Alaska, like all states,

took title to the lands underlying its inland navigable

waters as a matter of constitutional grace by virtue of

* See Alaska Department of Revenue, Revenue Sources Book

(2015 Spring), http://Atax.alaska.gov/ programs/documentviewer.aspx

1143r/.

12

the equal footing doctrine, codified by the Submerged

Lands Act. Alaska v. United States, 545 U.S. 75, 79

(2005) (citing 43 U.S.C. §§1301 et seg., §1311(a); Alas-

ka Statehood Act, Pub. Law No. 85-508, 72 Stat. 339

§6(m) (1958) (incorporating Submerged Lands Act));

Oregon ex rel. State Land Bd. v. Corvallis Sand &

Gravel, 429 U.S. 363, 374 (1977) (“[T]he state’s title to

lands underlying navigable waters within its bounda-

ries is conferred not by Congress but by the Constitu-

tion itself.”).’

Alaska’s ownership of its submerged lands in-

cludes the right to regulate the waters for its people.

Indeed, that is the entire purpose of state ownership

of submerged lands. A State’s title to land underlying

navigable waters gives it “the right to control and

regulate navigable streams.” Coyle v. Smith, 221 U.S.

559, 573 (1911); see also 43 U.S.C. §1311(a) (defining

the rights of states to include “ownership of the nat-

ural resources within such lands and waters” and the

“right and power to manage, administer, lease, devel-

op, and use said lands and natural resources all in

accordance with applicable State law.”). States hold

the lands in trust for the public to use the waterways

for commerce, navigation, and fishing. Illinois Cen-

tral R.R. Co. v. Illinois, 146 U.S. 387, 452 (1892)

(holding state’s title to lands under navigable waters

* The State agrees with and joins in petitioner’s argument

that when title to its submerged lands passed from the United

States to Alaska at Statehood, it was “conveyed to the State” for

purposes of §103(c). See Pet. Br. at 33-35.

13

“necessarily carries with it control over the wa-

ters above them”). The Alaska Constitution protects

Alaskans’ rights to access and use the State’s waters,

Alaska Const., art. VIII $§1, 3, 6, 14, and state stat-

utes further provide that Alaska “holds and controls

all navigable or public water in trust for the use of

the people of the state.” Alaska Stat. §38.05.126(b);

see also Alaska Stat. §§38.05.127-.128.

Allowing the Park Service to broadly usurp the

State’s control over its navigable waters, regardless of

Alaska’s ownership of its submerged lands, therefore

would impede the State’s sovereignty. Idaho v. Coeur

d’Alene Tribe of Idaho, 521 U.S. 261, 284 (1997)

(acknowledging “navigable waters uniquely implicate

sovereign interests”); United States v. Alaska, 521

U.S. 1, 5 (1997) (holding that ownership of submerged

lands “is an essential attribute of sovereignty”). Such

a federal takeover would thwart the public trust doc-

trine and hinder Alaska’s sovereign power to ensure

open access to its waters for purposes of navigation,

fishing, and commerce. See Illinois Central R.R. Co.,

146 U.S. at 452. And given Alaska’s ownership of

its submerged lands under these principles, there

can be no reasonable claim that they, or the waters

above them, are “public lands” within the meaning

of ANILCA.* Sections 102(2)-(3) of ANILCA defines

* The Ninth Circuit’s analysis in Alaska v. Babbitt, 72 F.3d

698 (9th Cir. 1995) (“Katie John”), would not require a different

outcome in this case even if it were a part of the question pre-

sented, and even if this Court were bound by a circuit court's

(Continued on following page)

14

“public land” as lands to which the United States

holds title after December 2, 1980, excluding lands

selected by Alaska or Native Corporations or other

nonfederal lands under the Alaska Native Claims

Settlement Act. Alaska’s lands and waters do not fall

into this category.

B. Loss of Alaska’s Sovereign Power to

Regulate its Own Lands and Waters

Will Inflict Serious Harms on Ordinary

Alaskans.

Alaska’s sovereign interests in its lands and

waters are not merely academic. The loss of State

management authority inflicts real and unique harms

on not just the State, but on ordinary Alaskans.

The state’s vast territory is sparsely populated, with

more caribou than people. Roughly twenty percent of

Alaskans live in regions unconnected to the road

system; half of these residents live in Alaska’s most

decision — which of course it is not. In Katie John, the Ninth

Circuit held that “public lands include some specific navigable

waters” as a result of the reserved water rights doctrine for the

sole purpose of administering ANILCA’s rural subsistence pri-

ority. Id. at 704. But the court explicitly cautioned that its hold-

ing was limited to those portions of ANILCA “necessary to give

meaning to [ANILCA’s] purpose of providing an opportunity for

a subsistence way of life.” Id. at 702 n.9. This case does not con-

cern subsistence or the subsistence-related portions of ANILCA,

so Katie John is inapplicable. The Katie John court remained

convinced that “ANILCA does not support [] a complete as-

sertion of federal control” over Alaska’s navigable waters. Jd. at

704.

15

remote villages. For these rural Alaskans, daily life

means dealing with limited infrastructure, few trans-

portation options, harsh weather, limited services,

and scarce job opportunities. Residents confront dis-

proportionately higher levels of poverty; some lack

essential services like water and sanitation. Localized

resource-based activities such as local tourism and

recreation related jobs or small-scale sport fishing,

wildlife guiding, and trapping often provide a vital

part of families’ incomes and significantly contribute

to the economic activity of remote regions.

In addition, the State’s waters — including over

12,000 rivers and three million lakes — provide essen-

tial travel corridors for many Alaskans who use per-

sonal skiffs and other small craft. Major rivers like

the Yukon and Kuskokwim serve as critical arteries

for transporting fuel and other essential daily goods

to residents in western Alaska throughout warmer

months. In winter, rivers become frozen highways

and remain part of Alaska’s transportation infra-

structure, allowing travel by all-terrain vehicle, snow-

machine, pick-up truck, and dogsled. For the State’s

most rural residents in particular, the ability to ac-

cess and use Alaska’s resources is critical.

ANILCA reflects this unique reality. Considered

in proper context, §103 is best viewed as an attempt

to reconcile and balance potentially conflicting vi-

sions: the advantages of increased federal govern-

ment ownership of nationally significant public land,

on one hand, and the need for continued State man-

agement of nonfederal lands to allow for State growth

16

and prosperity, on the other. Congress believed that

ANILCA was “both a fair and equitable resolution

of competing claims for protection and development”

of Alaska’s lands and cautioned that “the delicate

balance between competing interests which is struck

in the present bill should not be upset in any signifi-

cant way.” S. Rep. 96-413, 135, reprinted in 1980

U.S.C.C.A.N. 5070, 5080. As a result of this balancing

of interests, ANILCA preserves Alaska’s sovereign

ability to manage its lands and waters for the benefit

of its people in several ways.

First, Congress assured in the statement of pur-

pose that the Act would provide “adequate opportuni-

ty for satisfaction of the economic and social needs of

the State of Alaska and its people.” §3101(d). Second,

§103(c) imposes boundary limitations and a corre-

sponding restraint on federal regulatory authority.

Third, other provisions of the Act reinforce Alaska’s

reservation of its traditional land management au-

thority: §3202(a) provides that “[nJothing in this Act

is intended to . . . diminish the responsibility and au-

thority of the State of Alaska for management of fish

and wildlife on the public lands,” and §3207 ensures

that “[nJothing in this Act shall be construed as ...

expanding or diminishing Federal or State juris-

diction, responsibility, interests, or rights in water

resources development or control.” 16 U.S.C. §3207.

These provisions were intended to allow Alaska

to make policy choices and to help assure access to

the State’s lands and waters free from unwarranted

federal interference — even in ways that appear odd

17

in other areas of the country.’ Prohibiting all-terrain

vehicle traffic in small national parks throughout

much of the country might create a quieter experi-

ence for an afternoon snowshoeing enthusiast or min-

imize safety concerns to other park visitors on

recreational trails. See 36 C.F.R. §§1.4(a), 4.10. But in

Alaska, barring such use on frozen rivers could pre-

vent families from restocking essential fuel supplies

or bartering for important winter provisions in near-

by villages. Limiting commercial activity might safe-

guard the pristine character of most national parks,

but applying those restrictions on major Alaska nav-

igable waters like the Yukon or Kuskokwim rivers

would cripple local industries like commercial fishing

or tourism in and around Native villages. See 36

C.F.R. §5.3. Nationwide access restrictions applied to

Alaska would impede winter ice road traffic, threaten

the flow of goods and services to remote communities

along the State’s rivers, exacerbate the high cost of

* Although ANILCA does not authorize the Park Service or

any other federal agency to unilaterally seize control over State,

Native, and privately owned lands and waters, Congress itself

might have the authority to do that, if it did so consistent

with the Property and Commerce Clauses. See United States v.

Lindsey, 595 F.2d 5, 6 (9th Cir. 1979) (holding that the Property

Clause “grants to the United States power to regulate conduct

on non-federal land when reasonably necessary to protect ad-

jacent federal property or navigable waters”). But neither clause

gives the Park Service the wide-ranging plenary authority over

nonfederal lands endorsed under the Ninth Circuit’s decision, in

the absence of Congress’s explicit command.

18

living in rural Alaska, and chill Native corporations’

ability to develop their land.

Even the hovercraft ban exposes a pitfall of ap-

plying a nationalized land management scheme:

while using a small, low-draft personal craft to travel

is a far cry from the reality of many Americans, in

Alaska it provides a realistic means of water access

in rugged, isolated regions of the State. In fact, Con-

gress acknowledged Alaska’s unusual need for atypi-

cal access options, including hovercraft use. Title XI

of ANILCA, which provides for a consolidated appli-

cation process for transportation and utility systems

in and across CSUs, anticipates accommodation of

“air cushion vehicles” — hovercraft. §1102(4)(B)(vi).

It makes little sense for Congress to acknowledge

Alaska’s exceptional challenges — including the State’s

nascent infrastructure, unusual transportation reali-

ties, and unparalleled resource needs — yet simulta-

neously shoehorn vast tracts of nonfederal land into a

monolithic regulatory scheme ill-suited to Alaska’s

individuality. But the Ninth Circuit’s interpretation

of §103(c) does exactly that. By wresting land man-

agement decisions away from the State despite con-

gressional intent to respect Alaska’s uniqueness, the

Ninth Circuit bypassed the “well-established prin-

ciple that States do not easily cede their sovereign

powers, including their control over waters within

their own territories.” Tarrant Reg’l Water Dist. v.

Herrmann, 133 S. Ct. 2120, 2123 (2013).

19

The impact of the loss of these principles in

Alaska extends well beyond Mr. Sturgeon. The Park

Service’s own actions, many of which were brought to

light in the State’s companion case below, further il-

lustrate the initial wave of overreach this decision

allows. In 2010, the State of Alaska was forced to

obtain a scientific research and collecting permit to

conduct genetic sampling on chum salmon in the

Alagnak River, a State-owned navigable river, even

though the State’s activities occurred on its own lands

and waters. The permit terms also declared — despite

the State’s ownership of its submerged lands and

ownership of resources in its navigable waters — that

all samples collected and the results of the research

using those samples were the property of the federal

government. In 2009, the Alaska Department of Fish

and Game was forced to obtain a permit to continue a

decades-long study of the Western Arctic caribou

herd, despite the fact that the collaring and tissue

collection were conducted entirely from the navigable,

State-owned Kobuk River. Requiring the State to ask

for permission from the federal government before ac-

cessing its lands to carry out beneficial scientific

study unduly interferes with Alaska’s ability to make

use of its resources. Yet the Park Service mandates

that Alaska sacrifice its sovereign dignity and beg,

hat in hand, to conduct scientific research on State

land.

In opposing the petition for certiorari, the Solici-

tor General sought to minimize these harms, framing

the Ninth Circuit’s decision as concerning “limited

20

regulations in effect on navigable waters in national

parks within Alaska.” BIO 22. The Park Service

claimed that the scope of the Ninth Circuit’s decision

concerned only navigable waters and “did not hold

that the Secretary may enforce nationwide parks

regulations on such privately-held, state-held, or

Native-held lands in the future” because “[a]ny such

regulation would need to be based on an independent

grant of regulatory power.” BIO 21-22. And it assured

that expanding the Park Service’s regulatory reach

in Alaska would require “dramatic{ | shifts [in] its

regulatory approach.” BIO 22. But the Solicitor

General is wrong. There is nothing “limited” about

the Ninth Circuit’s decision or its impacts. And the

Park Service is now attempting to augment its au-

thority on the basis of the decision, even while down-

playing the ruling’s broad reach.

The Park Service is in the process of expanding

the scope of its Sturgeon jurisdiction in Alaska be-

yond the State’s waters. It has already proposed

regulations that extend its reach onto private, State,

and Native owned lands within the borders of Alaska

CSUs, publishing proposed revised national regula-

tions governing nonfederal oil and gas activities

within Park Service units (36 C.F.R. §9(b)) in the

federal register on October 26, 2015. Under current

regulations, Alaska is exempted from oil and gas

regulations on the basis that ANILCA §1110(b) gov-

erns access to inholdings. But the new proposed reg-

ulations eliminate the Alaska exemption, extending

Park Service regulatory jurisdiction over oil and gas

21

to all lands within CSUs regardless of ownership. In

support of this jurisdictional expansion, the Park Ser-

vice bases its newly claimed authority on nothing

more than the Ninth Circuit’s decision below:

We also note that because these regulations

are generally applicable to NPS units na-

tionwide and to non-federal interests in

those units, they are not “applicable solely to

public lands within [units established under

ANILCA],” and thus are not affected by

section 103(c) of ANILCA. See Sturgeon v.

Masica, 768 F.3d 1066, 1077-78 (9th Cir.

2014).

80 Fed. Reg. 65571, 65573 (proposed Oct. 26, 2015).

This action reveals the breadth and ongoing impact of

the Ninth’s Circuit’s decision.

The Park Service’s eagerness to utilize the

Ninth’s Circuit’s ruling — rather than congressional

authorization — as a basis for further federalization of

nonfederal lands brings to mind this Court’s caution

against accepting an agency's “expansive theory” of

jurisdiction that “rather than preserv(ing] the pri-

mary rights and responsibilities of the States, would

[bring] virtually all plan{ning of] the development

and use . . . of land and water resources by the States

under federal control.” Rapanos v. United States, 547

U.S. 715, 737 (2006) (internal quotation marks omit-

ted; alterations and omissions in original). This Court

has disallowed “extensive federal jurisdiction urged

by the Government [that] would authorize the [agency]

to function as a de facto regulator of immense

22

stretches of intrastate land — an authority the agency

has shown its willingness to exercise with the scope

of discretion that would befit a local zoning board.”

Id. at 738. It should likewise prevent that overreach

here. .

The Ninth Circuit encouraged nationalized land

management decisions and handed a federal land

management agency unprecedented control over lands

that, unlike the vast majority of lands in Alaska, do

not belong to the federal government. Regardless of

how broadly the Park Service extends its regulatory

arm, §103(c) no longer cabins federal jurisdiction or

assures any meaningful balance of federal and State

land management authority. State, Native, and pri-

vate property owners are now subjected to unwar-

ranted federal control. Because Alaska contains

nearly two-thirds of the Park Service’s lands as part

of the State’s complex patchwork of land ownership,

any regulation of purported nationwide applicability

will disproportionately impact Alaska. Any time a

federal land management agency disagrees with

Alaska’s approach to managing its own lands, it need

only pass a nationwide regulation to usurp the State’s

regulatory scheme. Be it in effect or by design, the

result of this decision is to dramatically enhance

the federal administrative state’s power. This Court

should reverse the Ninth Circuit’s ruling to reinstate

ANILCA’s careful balance between State and federal

control.

23

Ii. ANILCA §103 Exempts Nonfederal Lands

from Federal Park Management Regulation.

The harms flowing from the Ninth Circuit’s deci-

sion and the loss of the State’s sovereignty all stem

from the Ninth Circuit’s flawed reading of 3103(c).

The Ninth Circuit interpreted §103(c) to mean that

“only public land lying within a CSU’s boundaries

may be subjected to CSU-specific regulations,” but

that Park Service regulations of general applicability

— those that apply both inside and outside of Alaska —

properly governs all nonfederal lands within Alaska

CSUs. Pet. App. 24a (emphasis in original). It then

held that because the Park Service’s hovercraft ban

applies to all Park Service lands and waters nation-

wide — even “navigable waters and areas within their

ordinary reach .. . without regard to the ownership of

submerged lands, tidelands, or lowlands” (citing 36

C.F.R. §1.2(a3)) — the ban did not apply “solely” to

Park Service lands in Alaska and thus did not violate

ANILCA. Pet. App. 25a-26a. The Ninth Circuit was

wrong, and application of traditional statutory inter-

pretation tools show why.

The court misread §103(c)’s plain language and

disregarded its context, while simultaneously ig-

noring legislative history. But the text, context, and

congressional intent surrounding §103(c) are clear:

nonfederal lands are not to be regulated as if they

were a part of a CSU and are not to be subject to the

innumerable federal regulations that apply nation-

wide. Even if §103(c) were ambiguous, however, the

Park Service’s interpretation of that provision is not

24

entitled to any deference. The Park Service’s view of

§103 intrudes upon Alaska’s sovereignty in the ab-

sence of clear congressional intent to alter the tradi-

tional federal-state balance of land management, and

it should be rejected.

A. The plain language of §103(c) exempts

State, Native Corporation, and privately

owned land within CSUs from being

regulated as though they were federal

lands.

Interpreting a statute begins with its text. BP

America Prod. Co. v. Burton, 549 U.S. 84, 91 (2006).

The Ninth Circuit’s interpretation of §103(c) contra-

venes the plain meaning of the statute, which, prop-

erly read, is straightforward and sensible.

Section 103(c) has three sentences, which work in

tandem. The first states that CSUs, by definition,

include only federal lands: “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.” ANILCA §§102(2)-(3) define “public land” as

lands to which the United States holds title after De-

cember 2, 1980, and expressly excludes lands selected

by Alaska or Native Corporations or other nonfederal

lands under the Alaska Native Claims Settlement

Act. Thus, the first sentence of §103(c) makes clear

that nonfederal lands physically located within CSU

boundaries are not considered to be part of any CSU.

25

Section 103(c)’s second sentence then limits the

federal agencies’ ability to regulate nonfederal lands

within a CSU: “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.” The third sentence rein-

forces this limitation, providing that nonfederal lands

can become public — and thus subject to plenary

federal regulation — only if they are conveyed to the

federal government: “If the State, a Native Corpora-

tion, 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 adminis-

tered accordingly.”

The “plain and precise language,” Mansell v.

Mansell, 490 U.S. 581, 589 (1989), of the three sen-

tences of §103(c) work together: the first defines

which lands are part of Alaska CSUs and which —

specifically State, Native, and privately owned lands

— are not. The second confirms that federal land

management agencies have no authority to manage

those nonfederal lands that are not a part of the CSU.

The third provides that the government can acquire

management authority over those nonfederal lands,

but only if they first become “public [federal] lands”

through conveyance or operation of law. Section 103(c)

thus operates as a cohesive whole, sensibly main-

taining traditional private property ownership and

State management rights and limiting the federal

26

government’s power over private, State, and Native-

owned lands.

The Ninth Circuit’s interpretation of the law

turns this provision on its head. The court correctly

understood the first sentence of §103(c), recognizing

that the exclusion of nonfederal lands from ANILCA’s

definition of “public lands” “does not in any way

change the status of that State, native, or private

land” within the CSU boundaries. Pet. App. 23a

(quoting 125 Cong. Rec. 11158 (1979)). But its inter-

pretation of the second sentence undermined that

very principle by misreading the language of the pro-

vision.

In considering the second sentence of §103(c), the

Ninth Circuit focused on the word “solely.” In the

court’s view, the word “solely” modified “public lands

within [Alaska CSUs],” rather than “public lands”

generally. Pet. App. 25a-26a. Under the Ninth Cir-

cuit’s interpretation, nonfederal lands could then be

subjected to the regulations in 36 C.F.R. Part 2 — like

the hovercraft ban — because they applied nationwide,

not only to Alaska CSUs. The court concluded that

“[blecause of its general applicability, the regulation

may be enforced on both public and nonpublic [non-

federal) lands alike within CSUs.” Pet. App. 26a.

The Ninth Circuit’s interpretation makes little

sense. As used in §103(c), “solely” properly modifies

“public lands.” Following the lead of the first sen-

tence, which directs that nonfederal lands are not

a part of CSUs, the second sentence confirms the

27

federal government cannot regulate them as if they

were. Read this way, the second sentence restricts the

application of federal land management regulations

“[exclusively] to public lands” inside the CSUs. It

quarantines federal regulatory jurisdiction to only

those lands deemed to be part of a CSU, meaning

public, federally owned lands. But by misinterpreting

“solely,” the Ninth Circuit conflated the meaningful

distinction between federal and nonfederal lands and

construed the second sentence to give the Park Ser-

vice expansive power over lands that are neither a

part of a CSU nor federally owned.

The court’s fixation on the second sentence of

§103(c) fails to give proper meaning to §103(c)’s first

sentence, which exempts nonfederal lands from even

being deemed a part of a CSU. It would make no

sense for Congress to explicitly instruct that non-

federal lands are not a part of a CSU - regardless of

their location — but then subject those lands to na-

tionwide public lands management regulations as if

they were. Similarly, the Ninth Circuit’s myopic focus

on the second sentence of §103(c) largely negates the

meaning of the third sentence, which provides that

nonfederal lands can “become part of the unit, and be

administered accordingly” only upon formal transfer

to the United States. (Emphasis added.) While the

first sentence states that nonfederal lands within

CSU boundaries are not part of the CSUs, the third

sentence forbids those nonfederal lands from being

administered like CSU lands unless and until they

are conveyed to the United States. It is difficult, if not

28

impossible, to harmonize these commands with the

Ninth Circuit’s view of the middle sentence — which

would allow the Park Service to exert management

control over lands that are: (1) not public lands; and

(2) have not been conveyed to the United States.

The Ninth Circuit failed to offer any explanation

for this anomaly, or to explain how its interpretation

squares with the third sentence. Under the Ninth’s

Circuit’s interpretation, the Park Service is free to

administer Alaska’s nonfederal lands whether or not

they have been conveyed to the United States as long

as it promulgates a nationwide regulation. This in-

terpretation undermines the meaning and manner in

which each sentence of §103(c) work toward the same

goal and violates the “canon against interpreting any

statutory provision in a manner that would render

another provision superfluous.” Bilski v. Kappos, 561

U.S. 593, 607-08 (2010).

B. ANILCA’s context and structure con-

firm that the Park Service cannot reg-

ulate nonfederal lands within Alaska

CSUs.

The Ninth Circuit’s interpretation of §103(c) not

only misreads the plain meaning of its text. It also

contravenes the canon that statutory construction is

a “holistic endeavor” requiring the statute to be read

as a whole. E.g., U.S. Nat'l Bank of Oregon v. Indep.

Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993)

(citations omitted). This Court has emphasized that

29

“[ijn 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.” Jd. at 455 (citing numerous cases). Instead,

“reasonable statutory interpretation must account

for both the specific context in which .. . language is

used and the broader context of the statute as a

whole.” Utility Air Regulatory Grp. v. EPA, 134 S. Ct.

2427, 2442 (2014) (quoting Robinson v. Shell Oil Co.,

519 U.S. 337, 341 (1997)) (internal quotation marks

omitted). These principles are fatal to the Ninth Cir-

cuit’s interpretation of §103(c).

The Ninth Circuit’s reading violates the whole-

text canon not only because it focuses on the second

sentence of §103(c) without meaningfully considering

the first and third. On a broader level, the Ninth

Circuit’s reading fundamentally ignores ANILCA’s

context: it is an Alaska-specific law rooted in Alaska’s

uniqueness and the need for specialized manage-

ment of its public lands. Viewing the second sentence

of §103(c) in isolation, the court permits the Park

Service to exert regulatory control over nonfederal

lands within Alaska CSUs, so long as it does so

through regulations of general applicability and dis-

counts Alaska’s specific needs and circumstances. But

ANILCA’s very existence is grounded in Alaska’s

specific needs and circumstances. This law and its

“predecessor statutes, the [Alaska] Statehood Act

and ANCSA,” are, by definition, state-specific. Amoco

Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531,

552 (1987). ANILCA acknowledged that Alaskans

30

confront unusual challenges due to the State’s geog-

raphy, climate, diffuse population, and largely rural

character. It did so by providing select access pro-

tections and authorizing the use of snowmachines,

motorboats, and airplanes on federal CSU lands in

Alaska for traditional activities and travel to and

from villages and homesites. 16 U.S.C. §3170.

Congress also recognized that Alaskans had

unique economic and subsistence needs, and that the

State’s resources were its economic foundation. Jd.

§§3101(d), 3111-26. Thus, Congress’s statement of

purpose acknowledges that ANILCA furthered con-

servationist goals but also “provided adequate oppor-

tunity for satisfaction of the economic and social

needs of the State of Alaska and its people.” Id.

§3101(d); see also City of Angoon v. Marsh, 749 F.2d

1413, 1415-16 (9th Cir. 1984) (“Congress became

aware of the need for a legislative means of maintain-

ing the proper balance between the designation of

national conservation areas and the necessary dispo-

sition of public lands for more intensive private use.

Thus, ANILCA was passed. . . .”).

Accepting the Ninth Circuit’s interpretation of

§103(c) and adopting its view that the Park Service

has unbridled authority to regulate private land also

leads to a peculiar friction with ANILCA’s other pro-

visions. In some cases, it would mean that the Park

Service has greater authority to regulate nonfederal

lands than public ones. For example, ANILCA re-

stricts the Park Service’s ability to limit Alaskans’

transportation across federal conservation system

31

units. On those federal lands, the Park Service can-

not prohibit travel by plane or snowmachine “for tra-

ditional activities” or “travel to and from villages and

homesites” without making findings that the access is

damaging to the unit, and providing notice and a

hearing. 16 U.S.C. §3170(a). But the Park Service

now claims the authority to go much further: under

the Ninth Circuit’s view of 36 C.F.R. §1.2, the Park

Service could ban such travel on nonfederal lands

within CSUs through a self-granted regulatory au-

thority — and without making those findings. The

impact of the Ninth Circuit’s ruling thus unreason-

ably allows the Park Service to provide less access,

and less process, on nonfederal lands than on federal

ones. But Congress intended §103(c) to preserve, not

diminish, State and Native land ownership rights.

Ar ther anomalous effect of the Ninth Circuit’s

decision is that nonfederal land located within Alaska

CSUs would not only be subject to nationwide Park

Service regulations — they would also be exempt from

Alaska-specific regulations. After all, under the Ninth

Circuit’s reading of §103(c), regulations designed spe-

cifically for, and applicable “solely” to, Alaska CSUs

are inapplicable to nonfederal CSU lands. But Alaska-

CSU specific regulations generally provide freedom

from the more rigid national land management reg-

ulations, in recognition of Alaska’s unique cultural and

geographic features. They implement ANILCA’s pro-

tections for hunting, trapping, and motorized access

within national parklands by presumptively allowing

various activities the Park Service’s nationwide

32

regulations would otherwise restrict, like the use of

bear spray, carrying of firearms, storage and caching

of fuel, and use of temporary campsites. See 36 C.F.R.

§§13.25, 13.30, 13.45, 13.182. It makes no sense to

read §103(c) in a manner that subjects state, Native,

or privately-owned land to nationwide regulation but

permits only federal land to stand under the umbrella

of an Alaska-specific regulatory regime.

The Park Service’s interpretation of §103(c) thus

not only allows the Park Service to subject nonfederal

Alaska lands to nationwide rules that do not account

for Alaska’s unique terrain, climate, rural character,

and social and economic needs. It also prevents the

nonfederal lands from obtaining the benefit the

Alaska-specific regulations provide. The Ninth Cir-

cuit did not and could not explain how this result

squares with ANILCA’s explicit goal of considering

and providing for “the economic and social needs of

the State of Alaska and its people.” 16 U.S.C.

§3101(d). The Ninth Circuit’s reading of §103(c) is dis-

sonant with ANILCA as a whole, and for that reason

this Court should reject it.

C. ANILCA’s legislative history confirms

Mr. Sturgeon’s reading of §103(c).

Section 103(c)’s text is clear, and the context of

the provision confirms its plain purpose, so this

Court’s statutory analysis can stop there. “Given the

straightforward statutory command, there is no rea-

son to resort to legislative history.” United States v.

33

Gonzales, 520 U.S. 1, 6 (1997). Even so, legislative his-

tory confirms that Congress never intended ANILCA

to allow the Park Service or other land management

agencies the authority to regulate nonfederal lands —

under ANILCA itself, under the National Park Ser-

vice’s Organic Act, under the 1976 Park Service Im-

provement Act, or under any other pre-existing public

lands legislation. To the contrary, during the drafting

process ANILCA was clarified 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. 11158 (1979) (statement of Rep.

Seiberling). There was “no question” that ANILCA’s

inclusion of nonfederal inholdings within CSU bound-

aries “does not alter in any way the ability of the

State or Natives to do what it will with those lands.”

Id.

Congress did draw a distinction between the

types of laws and regulations that would apply on

inholdings and those that would not. But it was not

the Ninth Circuit’s newly-created distinction between

Alaska CSU-specific regulations and nationwide reg-

ulations. Congress drew a different line. ANILCA

defined and preserved inholdings as private lands

outside of and not subject to the United States’ public

lands management and control. These nonfederal in-

holdings were not to be subject to public lands man-

agement laws and regulations, but would continue to

34

be governed by generally-applicable laws outside the

public lands arena. Thus, a 1979 Senate Report ex-

plains that inholdings within CSU boundaries — like

nonfederal lands outside those boundaries — would

remain subject to non-public lands laws like the

Clean Water Act, the Clean Air Act, the Civil Rights

Act, and any other generally-applicable federal legis-

lation:

Those private lands, and those public lands

owned by the state of Alaska or a subordi-

nate political entity, are not to be construed

as subject to the management regulations

which may be adopted to manage and admin-

ister any national conservation system unit

which is adjacent to, or surrounds, the pri-

vate 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 conservation[ ] system

units, and to such lands adjacent to conser-

vation system units, and are thus unaffected

by the passage of this bill.

S. Rep. 96-413, 303, reprinted in 1980 U.S.C.C.A.N.

5070, 5247. ANILCA’s congressional advocates ex-

plained that “the boundaries drawn on the map for

that conservation unit do[ ] not in any way change the

status of that State, native, or private land or make it

35

subject to the any of the laws and regulations that

pertain to U.S. public lands, so that these inholdings

are clearly not controlled by any of the public land

laws of the United States” but, at the same time,

reassured Congress that §103(c) “is not an effort to

amend the Clean Air Act or any of the other acts that

are not public lands laws.” 125 Cong. Rec. 11158

(1979) (emphases added). Taken together, this history

reinforces the plain meaning of §103(c): ANILCA does

not give the Park Service augmented authority to

regulate nonfederal lands within CSU boundaries,

but generally applicable laws retain their force and

effect. Thus, when Congress wrote in §103(c) that no

nonfederal lands “shall be subject to the regulations

applicable solely to public lands,” it used “solely” to

distinguish between public land regulations — which

do not apply on nonfederal land — and other types of

generally applicable regulations — which do.

D. The Park Service’s interpretation of

§103(c) impinges on Alaska’s right to

regulate its lands absent clear congres-

sional intent, and therefore conflicts

with the clear statement doctrine and is

not entitled to Chevron deference.

The Park Service may suggest that the expansive

interpretation of §103(c) adopted by the Ninth Circuit

is entitled to deference under Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837

(1984). This Court should reject any such claim. As an

initial matter, where “the intent of Congress is clear,

36

that is the end of the matter; for the court, as well as

the agency, must give effect to the unambiguously ex-

pressed intent of Congress.” Jd. at 842-43. This Court

should give effect to the provision’s plain meaning:

State, Native, and privately owned lands and waters

within the boundaries of CSUs are not federal public

lands, and the Park Service may not regulate them as

if they were. See General Dynamics Land Sys., Inc. v.

Cline, 540 U.S. 581, 600 (2004) (explaining that

“deference to [an agency’s] statutory interpretation

is called for only when the devices of judicial con-

struction have been tried and found to yield no clear

sense of congressional intent” and relying on “text,

structure, purpose, and history” of ADEA to foreclose

agency’s interpretation). But even if ANILCA §103(c)

were ambiguous or Congress’s intent unclear, the

Park Service’s interpretation of the provision would

not be entitled to deference. “[A]n agency interpre-

tation that is inconsisten[t] with the design and

structure of the statute as a whole” or otherwise

unreasonable “does not merit deference.” Util. Air

Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2442 (2014)

(citation and internal quotation marks omitted).

Because the Park Service’s analysis of the second sen-

tence of §103(c) fails to take into account the lan-

guage of the rest of the subsection or context of

ANILCA as a whole, the Park Service’s interpretation

falls into that category.

The significant and unwarranted encroachment

onto Alaska’s sovereignty discussed in Part I supra is

another reason that this reading of the statute is not

37

entitled to any deference. The Ninth Circuit’s reading

of the statute significantly intrudes upon Alaska’s

sovereignty in the absence of clear Congressional

intent to alter the traditional federal-state balance of

land management. It therefore is not entitled to def-

erence because it conflicts with the clear statement

doctrine.

The clear statement doctrine is rooted in the

assumption that “Congress does not exercise lightly”

the “extraordinary power” to “legislate in areas tradi-

tionally regulated by the States.” Gregory v. Ashcroft,

501 U.S. 452, 460 (1991). This Court therefore will

not interpret a statute to “alter the usual constitu-

tional balance between the States and the Federal

Government,” unless Congress has made “its inten-

tion to do so unmistakably clear in the language of

the statute.” Id. (quoting Will v. Michigan Dep’t of

State Police, 491 U.S. 58, 65 (1989)) (internal quota-

tion marks omitted). Any interpretation of a statute

that infringes on state sovereignty must be “plain to

anyone reading [it].” Gregory, 501 U.S. at 467. This

rule is an “acknowledgement that the States retain

substantial sovereign powers under our constitutional

scheme, powers with which Congress does not readily

interfere.” Id. at 461.

Because the Park Service seeks to override

Alaska’s traditional regulation of its own lands and

navigable waters for the benefit of its citizens, there

can be no question that the clear statement doctrine

applies to this case. This Court confirmed the doc-

trine’s application and vitality in Solid Waste Agency

38

of Northern Cook County v. U.S. Army Corps of En-

gineers, holding that the clear statement doctrine

applied where federal regulation “would result in a

significant impingement of the States’ traditional and

primary power over land and water use.” 531 U.S.

159, 174 (2001). In Solid Waste, the Court held that

the clear statement doctrine foreclosed the use of

Chevron deference to authorize federal regulation of

State waters where the proposed regulation was not

clearly authorized by statute, would usurp traditional

State sovereignty, and raised significant constitu-

tional questions about the extent of federal authority.

Id. at 172-73.

Contrary to the interpretation the Park Service

advocates, §103(c) does not clearly allow it to regulate

nonfederal lands within CSUs. Nothing in its text,

context, or history suggests that Congress intended to

transfer the State’s “traditional and primary power

over land and water use,” id. at 174, to a federal land

management agency. The Ninth Circuit erred in its

interpretation of this law, and the Park Service is not

entitled to Chevron’s shelter in defending it.

¢

39

CONCLUSION

This Court should reverse the judgment of the

Ninth Circuit.

Respectfully submitted,

CRAIG W. RICHARDS

Attorney General of Alaska

JANELL HAFNER RUTH BOTSTEIN

Assistant Attorney General Assistant Attorney General

P.O. Box 110300 Counsel of Record

Juneau, Alaska 99801 1031 W. 4th Avenue

(907) 465-3600 Anchorage, Alaska 99501

janell.hafner@alaska.gov (907) 269-5100

ruth.botstein@alaska.gov

Dated: NOVEMBER 23, 2015

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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