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.