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

No. 14-1209

IN THE

Supreme Court of the United States

JOHN STURGEON,

Petitioner,

Vv.

SUE MASICA, in Her Official Capacity as Alaska

Regional Director of the National Park Service, et ai.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICUS CURIAE

STATE OF ALASKA IN SUPPORT

OF PETITION OF CERTIORARI

CRAIG W. RICHARDS

Attorney General

RUTH BOTSTEIN JANELL HAFNER

STATE OF ALASKA Counsel of Record

1031 W. 4th Avenue STATE OF ALASKA

Suite 200 PO Box 110300

Anchorage, AK 99501-1994 Juneau, AK 99811-0300

(907) 269-5100 (907) 465-3600

ruth. botstein@alaska.gov janell.hafner@alaska.gov

Counsel for State of Alaska

May 4, 2015

_— A a LAAs

WALsOon-Epes PRINTING Co., Inc. — (202) 789-0096 — WAsnHiNGTON, D. C. 20001

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................cc0cecsesese0ees iii

INTEREST OF AMICUS CURIAE.............00000-+- 1

REASONS THE PETITION SHOULD BE

ERR SERRE eee Se eee 2

I. Certiorari is Warranted Because the

Ninth Circuit’s Decision Contravenes

ANILCA § 103’s Assurances That Alaska

Would Retain its Sovereign Right to

Manage its Lands and Waters and

Because it Imposes Exceptional Hard-

ships on the People of Alaska................... 2

A. By Providing that Nonfederal Lands

Inside Park Service Boundaries Will

Not be Regulated as Federal Lands,

ANILCA Protects the State’s Sover-

eign Rights and Alaskans’ Unique

B. Rural Alaskans Depend on Alaska’s

Lands, Waters, and Resources for

Many of Their Transportation, Eco-

nomic, and Social Needs...................... 5

C. Alaska’s Sovereign Right to Regulate,

Use, and Manage its Lands and

Waters is Instrumental to Alaska’s

(i)

II.

PP

TABLE OF CONTENTS—Continued

The Ninth Circuit’s Endorsement of the

Park Service’s Unlimited Regulatory

Jurisdiction Over State Waters—and

by Necessary Implication, State, Native,

and Private Lands—Curtails Alaska’s

Political and Economic Sovereignty and

Raises Significant Federalism Issues ......

The Need for Fidelity to ANILCA’s Guar-

anvees and Freedom from Regulatory

Overreach is Particularly Compelling in

Light of the Exceptional Nature of Rural

APPENDIX

APPENDIX A: Alaska Department of

Natural Resources Map of Alaska

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

12

18

TABLE OF AUTHORITIES

CASES Page(s)

Addington v. Texas,

SN iit iia haiaeieclaals

Alaska v. United States,

201 F.3d 1154 (9th Cir. 2000). .....................

City of Angoon v. Marsh,

749 F.2d 1413 (9th Cir. 1984) ......0000.....00...

City of Saint Paul, Alaska v. Evans,

344 F.3d 1029 (9th Cir. 2003)......................

Coyle v. Smith,

Se ee SED cinesencepsconsotsncnineciiiniamiiais

Gonzales v. Raich,

Ee GS 1b IED cerccccccncasccovenessccssseneniinsnaninton

Gregory v. Ashcroft,

Se ee IED incsncnsecsnnnecunmiiensinsniiabatiids

New York v. U.S.,

I Te che iicinllide aaa

Ninilchik Traditional Council v. Noah,

928 P.2d 1206 (Alaska 1996)........................

Saenz v. Roe,

ATED vniicinincnnnseinninuiigsbeaitiicaiaiiiidin

State v. Lewis,

559 P.2d 630 (Alaska 1977).................000000008

Sturgeon v. Masica,

No. 13-36166 (9th Cir. 2013)...............0...02..

Tarrant Regional Water Dist. v. Herrmann,

Be Ce Be ED sectremrccsnnrsscsnccsnienesensonn

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Trustees for Alaska v. State,

736 P.2d 324 (Alaska 1987).....................00+- 10

U.S. Term Limits, Inc. v. Thornton,

| 14

CONSTITUTION

eT 9, 19

ee 9

I, I TT cscccccrnuneennensensssannenens 19

NR) ee 9

STATUTES AND REGULATIONS

ee 18

sn ccerrraeeneninncemnmenenmmnes 1, 12-13

54 U.S.C. § 100101............... speiamneneunnnnimeniaasene 18

Alaska National Interest Lands Conserva-

tion Act, 16 U.S.C. § 3101, et seg. .............. passim

Ss SN ccccriccncesncanmecsenesneseenenes 1, 12, 19

TT CET 4,11

Sk 11

in rntenenecneminnnemeninnienmenen 11

ee 3

ITE Tins tnsccncenensnnmmiqenennssenmnennnen passim

A es ED exnccececcncssescsssnceveneee 4, 10,11, 14

Ton ince prcreninnnemeneninninnnin 4,12

Bp ely 0 iD ccencccrcccscccscnssverseszencnsscenes 12

Vv

TABLE OF AUTHORITIES—Continued

Page(s)

ERR eee oro 4,12

4 SCE a Rn 12

Sk ECO n eae 19

8 EE ee eee 11

Oe 16

Alaska Native Claims Settlement Act,

43 U.S.C. § 1601 et seq. ...............ccccceeeees 10, 11, 20

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

72 Stat. 339:

EEE Se ee 10

SESE SEE SE cen eee 10

ERE IRAL SLES ne Se 10

SETA Es ee on 1

eRe 18

nee 16

SS Eonar 13

I ila 13

| Te 13

ee en 20

electra 20, 21

8 ee 20

iene rscssnsessssessscusnensumenesmnsssenensens 21

OTHER AUTHORITIES

vi

TABLE OF AUTHORITIES—Continued

Terrence M. Cole, Institute of Social and Eco-

nomic Research, Univ. of Alaska Anchor-

age, Blinded by Riches: The Permanent

Funding Problem and the Prudhoe Bay

Effect (2004), available at http://www.iser.

uaa.alaska.edu/Publications/blindedbyrich

Page(s)

Rt APRESS ROLE CGN OR 8, 9, 10

Victor Fischer, Institute of Soc., Econ. and

Gov't Research, Univ. of Alaska, Alaska’s

Constitutional Convention (1975)................

Gerald A. McBeath, The Alaska State

LE ee

Richard L. Neuberger, Gruening of Alaska,

36 Survey Graphic 512 (1947), available

at http://Awww.archive.org/stream/surveygr

aphic36survrich#page5 12/mode/2up ...........

S. Rep. No. 96-413 (1979) .......ce.cccecsocssseessveesees

INTEREST OF AMICUS CURIAE

Alaska owns the riverbed of the Nation River as

well as other lands and rivers falling within Alaska’s

National Park Service boundaries. See 43 U.S.C.

§ 1311(a); Alaska Statehood Act, Pub. Law No. 85-508,

72 Stat. 339, § 6(m) (1958); Alaska v. United States,

201 F.3d 1154, 1163-64 (9th Cir. 2000). Alaska’s “own-

ership 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 Regl Water Dist. v. Herrmann, 133 S. Ct.

2120, 2132 (2013) (internal quotation marks omitted);

Coyle v. Smith, 221 U.S. 559, 573 (1911). Section 103

of the Alaska National Interest Lands Conservation

Act (ANILCA) endorsed Alaska’s sovereign right to

manage its lands, waters, and resources by providing

that state, Native, and private lands inside Alaska’s

park service boundaries would not be managed as if

they were federally owned and by recognizing that this

distinction was essential to providing “adequate

opportunity for satisfaction of the economic and social

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

§ 3101(d). Alaska has a direct and profound interest in

maintaining its authority to keep its waterways open

without federal regulatory interference, as Congress

intended.'

The Ninth Circuit’s decision in this case gives the

National Park Service expanded regulatory control

over state, Native, and privately owned lands and wa-

ters, contrary to Congress’s intent. If left uncorrected,

' Alaska provided counsel of record with timely notice of its

intent to file this amicus brief in compliance with Supreme Court

Rule 37.2(a).

2

the decision has broad ramifications that extend well

beyond the damage to Alaska’s sovereignty. The deci-

sion ignores the needs and realities of rural Alaskans,

who face unparalleled access challenges and rely

upon Alaska’s unusual transportation thoroughfares

to provide for their families. Alaska has a compelling

interest in preserving its right to responsibly manage

its lands and waters and in protecting Alaskans’ rights

to meaningfully and responsibly use state resources.

The State also has an interest in preventing the

decision’s harmful economic consequences to the many

Alaskans who depend on the state’s waterways for

their transportation, subsistence, and economic needs.

REASONS THE PETITION

SHOULD BE GRANTED

I. Certiorari is Warranted Because the Ninth

Circuit’s Decision Contravenes ANILCA

§ 103’s Assurances That Alaska Would

Retain its Sovereign Right to Manage its

Lands and Waters and Because it Imposes

Exceptional Hardships on the People of

Alaska.

This case considers the extent to which ANILCA—a

federal statute of vital importance to Alaska, its

residents, and its Native Corporations—permits the

exercise of federal jurisdiction over nonfederal lands

and waters in Alaska. The right to regulate and

manage Alaska’s abundant resources is an essential

component of its sovereignty. The freedom to use and

access those resources is also essential to many

Alaskans’ way of life. By granting the Park Service

regulatory jurisdiction over state waters within the

boundaries of Alaska’s National Park Service lands,

the Ninth Circuit’s decision threatens that way of life.

3

If left to stand, the decision invites federal agencies to

wield plenary regulatory control over all nonfederal

waters and lands falling within any conservation

system unit, in direct contravention of ANILCA. The

decision raises significant federalism issues and has

broad political, practical, and economic ramifications.

A. By Providing that Nonfederal Lands

Inside Park Service Boundaries Will

Not be Regulated as Federal Lands,

ANILCA Protects the State’s Sovereign

Rights and Alaskans’ Unique Needs.

Alaska occupies an area equivalent to one-fifth of

the continental United States’s landmass. Over 60% of

all land in Alaska is owned by the federal government.

As the largest landowner in the State, the federal

government already manages an area more than

four times the size of Wyoming. By contrast, the fed-

eral government owns a mere 4% of lands in

the continental non-western states. The federal

government’s colossal and disproportionate land

ownership in Alaska makes the State’s freedom to

manage its own lands, waters, and resources crucial to

Alaska’s political independence and economic health.

ANILCA grew the National Park Service in Alaska

and reserved over 100 million acres of federal land

in the state—an area larger than California—for

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

Vast swaths of Alaska’s new and expanded national

parks, wildlife refuges, wild and scenic rivers, national

trails, wilderness preservation systems, and national

forest monuments were organized into conservation

system units managed by different federal land

management agencies. Id. § 3102(4). Roughly 40% of

4

Alaska now falls within an ANILCA conservation

system unit. Alaska’s National Parks now make up

two-thirds of the entire National Park System.’

While ANILCA reserved massive amounts of land

by placing it in a conservation status—significantly

limiting the possibility for Alaska’s future economic

development—Congress also included certain provi-

sions intended to safeguard Alaska’s authority over

nonfederal lands. See id. §§ 3103, 3111-14, 3117-19.

Congress protected Alaska’s ability to direct the use

of its own lands and waters by expressly stating

that nonfederal “lands”—defined to include state

waters as well as lands—falling within the newly

expanded park boundaries would not be treated as if

they were federally owned and thus not be subject to

the legion of federal regulations applied throughout

the National Park System. Id. §§ 3102(1), 3103(c). The

Ninth Circuit failed to reaiize that guarantee, giving

the Park Service—and potentially other federal land

management agencies—broad authority to regulate

state lands and waters as if they were part of federal

conservation system units. This decision overhauls

ANILCA, to Alaska’s detriment.

ANILCA’s limitation on the scope of the federal

government’s regulatory control in Alaska presents

an issue of exceptional importance to the State and

its people, and this petition presents an appropriate

and timely vehicle for the Court to address it. Because

Alaska is the only state entitled to the benefits of

In addition, approximately 86% of the total land area

administered by the United States Fish and Wildlife Service and

nearly one-third of the land area administered by the Bureau of

Land Management is in Alaska. The appendix attached to the

State’s brief shows the extent of Alaska conservation system

units.

5

ANILCA’s § 103 guarantees and the only state whose

sovereignty is imperiled by § 103’s destruction, no cir-

cuit split on this issue will ever be possible. Review on

certiorari provides the only opportunity for Alaskans

to retain their rights to their lands, waters, and

resources within the federal enclaves ANILCA cre-

ated. And only if certiorari is granted will Alaska’s sov-

ereignty over its own land be meaningfully assured.

Without prompt review, the Ninth Circuit’s deci*' »n

endorses further federalization of state resource r in-

agement decisions and subjects Alaskans to federal

regulatory control in a manner that Congress neither

authorized nor intended.

B. Rural Alaskans Depend on Alaska’s

Lands, Waters, and Resources for Their

Transportation, Economic, and Social

Needs.

Alaska is home to bountiful natural resources,

including over 12,000 rivers and three million lakes—

the largest network of navigable waters anywhere in

the country. The state also is home to abundant fish

and wildlife, significant reserves of oil and natural gas,

and economically viable subsurface mineral deposits.

Alaska’s vast terrain and rich resources are the heart

of the state’s cultural identity and the fountainhead of

its political sovereignty. They capture the national

imagination and have fortified the state’s economy.

But Alaska’s massive size, widely dispersed popula-

tion, lack of developed infrastructure, variable topog-

raphy, and climactic extremes also make it the most

remote state in America. Over three-quarters of

Alaska’s roughly 300 communities are unconnected by

road. While many Alaskans live in urban or semi-

urban areas, roughly twenty percent of the state’s

6

736,732 residents live in regions unconnected to

the road system. Half of these residents live in

the state’s most remote villages. These communities

confront disproportionately higher levels of poverty

and have limited infrastructure, some lacking essen-

tial services like water and sanitation. Residents

in these areas are acutely reliant on Alaska’s rich

resources.

The primary means of transportation for rural Alas-

kans are all-terrain vehicles; airplanes—generally

regional, small bush plane, or private air service;

snowmachines; and boats. Alaska’s mountainous

northern climate further shapes the unusual nature

of the state’s limited transportation options: severe

storm patterns routinely disrupt air service and rivers

seasonally evolve into ice roads. The state’s sharply

varied topography, limited service hubs, extreme sea-

sonal variations, and high costs of construction chal-

lenge the state’s ability to develop its transportation

and resource infrastructure.

Alaska’s waters provide essential travel corridors.

Many rural Alaskans, particularly those in southwest

Alaska, live in small villages stretched along rivers

and depend on these networks of water connections for

their everyday needs. Major rivers like the Yukon and

Kuskokwim serve as critical arteries for transporting

fuel and goods to much of western Alaska throughout

the summer months. Rural Alaskans rely on these

water links to access goods and services, recreate, and

travel to hunting and fishing grounds. Even in winter,

when temperatures drop and rivers evolve into frozen

highways for snowmachine, dogsled, and all-terrain

vehicle traffic, Alaska’s waters continue to form a vital

part of the state’s transportation infrastructure.

7

Residents in Alaska’s rural communities also face

economic challenges. They confront a formidable

combination of high costs of living, little if any local

tax base, fewer job opportunities, and limited earn-

ings. In Alaska’s remote villages, localized resource-

based activities—including local tourism and recrea-

tion related jobs or small-scale mining, sport fishing,

wildlife guiding, or trapping—often provide an essen-

tial part of families’ incomes and contribute to the

economic activity of the region. Alaska Natives in

particular, who comprise nearly 80% of the population

in Alaska’s remote communities, rely on the State’s

waters and lands for their subsistence fishing and

hunting needs.

What is at stake here for Alaska, therefore, is not

just a differing view from the National Park Service

about permissible weekend recreation or the best

method of routing tourists through national parks.

Because unencumbered access to Alaska’s waters

and meaningful use of Alaska’s natural resources is

necessary to sustain life in much of rural Alaska, the

State’s continued management of its waters and lands

is essential.

C. Alaska’s Sovereign Right to Regulate,

Use, and Manage its Lands and Waters

is Instrumental to Alaska’s Statehood.

Perhaps more than in any other state, management

and control of Alaska’s natural resources lies at the

heart of the State’s federalist interests. A central

motivation for Alaskans seeking statehood in 1956

was to allow the resource-rich territory to manage its

own lands and waters. When the delegates gathered

in 1955 to draft the Alaska Constitution, the territory

8

was blessed with a wealth of natural resources, and

the delegates expected an enormous grant of land

and minerals from Congress at statehood that would

sustain the new State. But the territory's history was

one of resource exploitation by outside interests.

Before statehood, Alaska had benefitted little from

the extraction of its minerals or from the fur trade and

fishing industries. Congress, not Alaska’s territorial

government, owned nearly all the land and had most

of the authority over land laws, natural resources

management, and fiscal matters. Terrence M. Cole,

Institute of Social and Economic Research, Univ. of

Alaska Anchorage, Blinded by Riches: The Permanent

Funding Problem and the Prudhoe Bay Effect 30-33

(2004).* Mining taxes were low and thus contributed

little, and “only a tiny fraction of the wealth from

the salmon industry ever directly touched Alaska’s

shores.” Id. at 36, 51-52. Alaska was seen as a “feudal

barony” where “[albsentee corporations took away

millions in fish, gold, and furs and left behind nothing

in the form of social or economic benefits.” Richard L.

Neuberger, Gruening of Alaska, 36 Survey Graphic

512 (1947).* Alaska’s financial problems caused state-

hood opponents to claim that Alaska could not afford

the costs of statehood and was too dependent on

the federal government. Cole, supra, at 63-65, 69-70.

Proponents of statehood, however, argued that it

would provide Alaskans enough land and political

autonomy to regulate the development of their natural

3 Available at http://www.iser.uaa.alaska.edu/Publications/

blindedbyriches. pdf.

* Available at http://www.archive.org/stream/surveygraphic36

survrich#page5 12/mode/2up.

9

resources in the manner most beneficial in the long

run to Alaskans. Jd. at 70-72.

The delegates to Alaska’s constitutional convention

“were uniform in their belief that Alaska’s natural

resources had been ‘locked up’ and devalued by

the negligent actions of the federal government and

absentee owners,” and that the careful development

of Alaska’s resources “spelled the difference between

a future of plenty or of poverty” for the new state.

Gerald A. McBeath, The Alaska State Constitution

159 (2011). Article VIII to the constitution they

drafted recognized the critical importance to the

State of thoughtful, internal management of Alaska’s

resources, commanding that they be reserved to the

people “for maximum use consistent with the public

interest” and providing for free access to Alaska’s

navigable or public waters. Alaska Const. art. VIII,

$§ 1, 14.

Members of the convention’s resources committee

also acknowledged the difficulty of reconciling the

desire to develop Alaska’s resources with the need

to avoid the resource exploitation of the past. Victor

Fischer, Institute of Soc., Econ. and Gov't Research,

Univ. of Alaska, Alaska’s Constitutional Convention

132-33 (1975). The delegates ultimately drafted an

entire article to direct the state to carry out prudent

resource development that would most benefit all

Alaskans. Alaska’s new constitution served as the

basis for subsequent statehood petitions to Congress.

State v. Lewis, 559 P.2d 630, 636 (Alaska 1977).

Congress, concerned that Alaska would not be

able to raise sufficient revenue to carry out the

responsibilities of statehood, gave it the resources to

fund self-governance in the form of 103 million acres

10

of land and mineral rights. Alaska Statehood Act, Pub.

Law No. 85-508, 72 Stat. 339, §§ 6 (a), (b), (i) (1958);

Cole, supra, at 77-78. “The primary purpose of the

statehood land grants . . . was to ensure the economic

and social well-being of the new state.” Trustees for

Alaska v. State, 736 P.2d 324, 335 (Alaska 1987). The

grants were to be “an endowment which would yield

the income that Alaska needed to meet the costs of

statehood.” Id. at 336. Through these land grants,

Congress recognized that Alaska stood ready, willing,

and able to manage its resources. It relinquished

federal contro] to the people who best understood the

State’s needs and were most prepared to govern its

abundant natural bounty—Alaskans.

The next major piece of federal legislation to address

Alaska’s lands was 1971’s Alaska Native Claims

Settlement Act (ANCSA). 43 U.S.C. § 1601 et seq.

ANCSA implemented “a fair and just settlement” of

aboriginal Native Alaskan land claims by creating

twelve regional corporations and more than 200

village corporations owned by Alaska Natives and

conveying to these new entities approximately 44

million acres of federal land in Alaska, together with

its subsurface estate. The lands were intended largely

for development to sustain and support Alaska’s

Native peoples. See 43 U.S.C. § 1601 et seq.; City of

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

Cir. 2003).

Twenty-one years after statehood, Congress passed

ANILCA. While ANILCA’s primary purpose was to

create federal conservation areas, Congress also

reinforced its commitment to preserving Alaska’s right

to manage its own resources. Section 103(c) assures

Alaska’s sovereign authority to do so by providing

11

that only federal lands and waters falling within

conservation system unit boundaries are considered a

part of the unit, thus excluding state and ANCSA

Native Corporation lands. 16 U.S.C. § 3103(c); see also

id. § 3102(1)-(3), (11). The Senate Report regarding the

statutory predecessor to § 103 explained that “[t]hose

private lands, and those public lands owned by the

State of Alaska . . . are not to be construed as subject

to the management regulations which may be adopted

to manage and administer any national conservation

system unit which is adjacent to, or surrounds, the pri-

vate or non-Federal public lands.” S. Rep. No. 96-413,

at 303 (1979). By contrast, the Senate explained that

state, Native, or private lands and waters would not

be exempt from federal laws and regulations applica-

ble to private and public lands nationwide—like the

Clean Air Act—commenting that such universally

applicable laws would be “unaffected by the passage

of this bill.” Jd. Section 103 then quarantines federal

jurisdiction by removing those nonfederal lands

and waters from the reach of the extensive regulatory

regime applicable to federally owned parklands

nationwide. 16 U.S.C. § 3103(c) (providing that non-

federal lands are not “subject to the regulations

applicable solely to [federal lands] within such units”).

The language of § 103(c) thus provides a check on the

risk of abuse of federal regulatory power.

ANILCA also acknowledged, to a limited extent,

that Alaskans confront unusual challenges. In partic-

ular, it did so by providing select access protections

and authorizing the use of snowmachines, motorboats,

and airplanes on federal conservation system unit

lands in Alaska for traditional activities and travel to

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

Congress further recognized that Alaskans had unique

economic and subsistence needs and that the states’s

12

resources were the foundation of its economy. /d.

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

acknowledged that ANILCA protected the national in-

terest in scenic, natural, cultural, and environmental

values on public lands in Alaska but also “provided

adequate opportunity 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). In this way,

ANILCA preserves a healthy balance of power and

prevents federal usurpation of state land management

decisions. That balance, and Alaska’s longstanding

sovereign right to manage its lands and resources, now

lies in peril.

Il. The Ninth Circuit’s Endorsement of the

Park Service’s Unlimited Regulatory

Jurisdiction Over State Waters—and by

Necessary Implication, State, Native, and

Private Lands—Curtails Alaska’s Political

and Economic Sovereignty and Raises

Significant Federalism Issues.

The Ninth Circuit’s decision in this case turns a

blind eye to these historical and practical realities.

It diminishes Alaska’s sovereignty and thwarts its

ability to address the needs of its citizens. This Court

should grant certiorari and carry out Congress’s intent

to protect Alaska’s authority over its own lands and

waters.

On a superficial level, the Ninth Circuit’s decision

held that the National Park Service had regulatory

jurisdiction to impose and enforce a type of access

ban on the Nation River, a navigable tributary of

Alaska’s Yukon River. [Pet. App. B at 25a-28a; see also

13

43 U.S.C. § 1311(a)] It ostensibly tethered that

determination, at least in part, to the 1976 Park

Service Administration Improvement Act, which

authorizes the Park Service to regulate “boating and

other activities on or relating to waters located within

areas of the National Park System, including waters

subject to the jurisdiction of the United States.” [Pet.

App. B at 25a] But the Ninth Circuit went further,

wielding ANILCA to sanitize the Park Service's

amplification of its jurisdiction over Alaska’s waters—

and, by necessary implication, state, Native, and

private lands. [Pet. App. B at 25a-26a]

The Ninth Circuit contorted the text of § 103 into

‘an independent grant, rather than a restriction, of

regulatory authority. It reasoned that because the

hovercraft ban applies to all National Park Service

lands and waters nationwide—even “navigable waters

and areas within their ordinary reach . . . without

regard to the ownership of submerged lands,

tidelands, or lowlands”—the ban did not apply “solely”

to Park Service lands in Alaska and thus did not

violate ANILCA. [Pet. App. B at 25a-26a (citing 36

C.F.R. § 1.2(aX1), (3))] In essence, the Ninth Circuit

endorsed the Park Service’s self-granted authority to

regulate nonfederal lands in Alaska so long as the

regulation it crafted was “specifically written to be

applicable on such lands.” 36 C.F.R. § 1.2(b). It

approved a federal agency’s jurisdictional leap because

the agency’s own regulation provided the springboard.

As a result, although the Ninth Circuit purported to

“limit [its] consideration to the regulation as applied

to Sturgeon,” its holding—that any Park Service

regulation of general applicability may be enforced on

nonfederal lands within Alaskan conservation system

units—operates far beyond the facts of Sturgeon’s

14

challenge. [Pet. App. B at 21a n.5, 26a] This decision

Federalism is the “genius . . . that our citizens

would have two political capacities, one state and one

federal, each protected from incursion by the other.”

Saenz v. Roe, 526 U.S. 489, 504 n.17 (1999) (quoting

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838

(1995) (Kennedy, J., concurring)). Federalism serves

to “protect historic spheres of state sovereignty

from excessive federal encroachment and thereby to

maintain the distribution of power fundamental to our

federalist system of government.” Gonzales v. Raich,

545 U.S. 1, 42 (2005) (O’Connor, J., dissenting).

The Ninth Circuit’s reasoning scorns Alaska’s con-

stitutional and statutory right to control its resources

by ignoring the textual boundaries within § 103(c)

that rightfully cabin the Park Service’s jurisdiction.

The Ninth Circuit apparently believes that the Park

Service can assert control over state, Native, or

private inholdings in Alaska simply by promulgating

a nationwide regulation. This decision not only fails

to honor ANILCA’s framework, but it also violates

§ 103’s intent, perversely transforming a provision

designed to respect and promote Alaska’s sovereignty

into a tool for undermining it. The decision also

contradicts the Ninth Circuit’s previously expressed

understanding that ANILCA’s drafters “never in-

tended the mere location of boundary lines on maps

delineating the overall conservation system to indicate

that private lands . . . were to be treated as public

lands.” City of Angoon v. Marsh, 749 F.2d 1413, 1417

(9th Cir. 1984). The combination of these errors led

to an endorsement of federal regulatory control based

on an executive agency's burgeoning jurisdictional

interest, not an act of Congress.

15

It would make little sense for Congress to explicitly

state that nonfederal lands are not to be considered

a part of a conservation system unit under § 103

and simultaneously cede authority to subject those

lands to federal regulation anytime a federal agency

deemed it appropriate. But under the court’s rationale,

anytime the Park Service—and potentially any other

federal land management agency—wants to impose

restrictions on nonfederal lands falling within Alaska

conservation system unit boundaries, it need only

adopt a nationwide regulation. Section 103’s limita-

tions are now toothless; Congressional intent is subor-

dinated to the Park Service’s evolving regulatory

whims.

The fallout from the court’s decision will be immedi-

ately felt in Alaska. Because over 60% of all National

Park Service-administered lands are in Alaska, the

State will be disproportionately affected by any regu-

lation of professed “general applicability.” At the same

time, however, by exempting state, Native, or private

lands from Alaska-specific Park Service regulations,

the Ninth Circuit has incentivized the Park Service to

nationalize its land management strategy. After all,

regulating with broad strokes is now the means by

which the Park Service can exert federal control over

nonfederal lands in Alaska. But the Park Service

cannot sensibly manage the entire nation with one

set of regulations: just as imposing a nationwide

prohibition on all-terrain vehicle use in Alaska would

unacceptably alter how many Alaskans travel to

meet their everyday needs, for example, a national

regulation allowing unrestricted all-terrain vehicle

use in Yellowstone, Yosemite, or the Grand Canyon

might be equally harmful to those areas and disrupt

their peaceful wilderness character. Yet this is exactly

16

the type of one-size-fits-all regulation that the Ninth

Circuit’s decision encourages.

Accepting the court’s view that the Park Service has

unbridled authority to regulate private land within

conservation system unit boundaries also leads to

potentially absurd results. ANILCA places some limits

on the Park Service’s ability to limit Alaskans’ trans-

portation across federal conservation system units. On

those federal lands, the Park Service cannot prohibit

travel by plane or snowmachine “for traditional activ-

ities” 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 private, Native, and state

lands within conservation system units through a self-

granted regulatory authority—and without making

those findings. Congress intended § 103 to preserve,

not diminish, state and Native land ownership rights.

Interpreting the statute to potentially allow the Park

Service to provide less access, and less process, on

nonfederal lands than on federal ones contravenes the

provision’s intent and further diminishes Alaska’s

sovereign rights to its land.

“The essence of federalism is that states must be

free to develop a variety of solutions to problems

and not be forced into a common, uniform mold.”

Addington v. Texas, 441 U.S. 418, 431 (1979). But

the Ninth Circuit decision here does precisely that.

By wresting control away from the State in favor of

federal management, the court’s decision undercuts

Alaska’s sovereign authority to manage its own lands

and waters consistent with state and local conditions,

17

practicalities, and priorities. See Gregory v. Ashcroft,

501 U.S. 452, 458 (1991) (recognizing that the

federalist structure of joint sovereigns “assures a de-

centralized government will be more sensitive to the

diverse needs of a heterogeneous society”). The Ninth

Circuit approved of a regime in which Alaska may not

access its own land and resources to implement state

policy choices about how to best provide for Alaskans

unless it first obtains permission from federal agency

bureaucrats.

This case provides a salient example: recognizing

the particular social needs and transportation chal-

lenges in its rural areas, Alaska permits hovercraft

use on state waters. The National Park Service,

guided by nationwide rather than local concerns, made

a different choice. The Ninth Circuit’s decision over-

rides Alaska’s decision-making and forces Alaska into

the same common mold as the other forty-nine states,

notwithstanding its exceptional geography and

challenges.

The facts of No. 13-36166, Alaska’s companion case

decided together with Sturgeon’s in a consolidated

opinion, similarly reflect how the Ninth Circuit's

interpretation of § 103 operates in practice to under-

mine Alaska’s sovereignty. Park Service regulations

required Alaska state officials to obtain federal per-

mission, in the form of a permit, to access state-owned

land and conduct scientific research on salmon. By

requiring the State to ask for advance permission

before accessing its own lands to conduct beneficial

scientific research, the federal government unduly

interferes with Alaska’s ability to make use of its re-

sources. Although Alaska’s case is not an ideal vehicle

for this Court’s review because it presents a threshold

standing issue, its facts nevertheless illustrate how

18

nationwide Park Service regulations infringe on

Alaska’s sovereignty.

The Park Service has also required Alaska to ask

permission from the federal government to conduct

research on caribou migrations on state land, and

then to provide the resulting data to the Park Service.

The Park Service mandates that Alaska sacrifice

its sovereign dignity and beg, hat in hand, to conduct

scientific research on state land. The principles of fed-

eralism on which our nation is based—and upon which

Alaska was granted its resource-rich lands at state-

hood—should bar these results. This Court should

grant the petition to ensure that federal overreach

does not swallow Alaska’s right to self-determination.

Ill. The Need for Fidelity to ANILCA’s

Guarantees and Freedom from

Regulatory Overreach is Particularly

Compelling in Light of the Exceptional

Nature of Rural Alaskans’ Needs.

The damage to Alaska’s federalism is not theoreti-

cal; there are real-world harms here. The court’s

unchecked deference to a federal agency’s desire to

define its own authority—in violation of a Congres-

sional provision meant to curtail it—jeopardizes the

transportation, social, and economic interests of

Alaska’s rural residents. This failure has far-reaching

consequences that extend beyond this case.

National parklands across the country are broadly

regulated by the federal government for conservation

and environmental purposes. See generally 54 U.S.C.

§ 100101 (formerly 16 U.S.C. § 1); 36 C.F.R. §§ chap. 1.

Alaska shares a longstanding commitment to protect-

ing the value of its bountiful resources: the Alaska

19

Constitution explicitly provides for the conservation of

the state’s natural resources for the maximum benefit

of its people. Alaska Const. art. VIII, § 2.° But unlike

the Park Service, Alaska’s obligations and its public

trust responsibilities are necessarily balanced with

the responsibility to grow its economy, satisfy evolving

infrastructure demands, and provide for Alaskans.

Congress was cognizant of the state’s need to

balance those goals when it passed ANILCA. In

acknowledging the integral role Alaska’s resources

play in driving the state’s economy, Congress—like

the framers of Alaska’s constitution—endeavored to

strike a balance between the economic and environ-

mental interests in Alaska’s resources. See 16 U.S.C.

§ 3101(d). Congress also recognized Alaska’s infra-

structure and service delivery challenges. ANILCA

observes that Alaska’s transportation and utility

network is “largely undeveloped” and provides a single

statutory authority for applications for transportation

and utility systems through public lands. The statute

implicitly recognizes that given the breadth of public

lands across the state, Alaska requires access to those

areas to grow its infrastructure. See id. § 3161. But the

end result of the Ninth Circuit’s decision is to ignore

ANILCA’s protections and shoehorn all states into a

monolithic scheme of nationwide regulation.

Erosion of Alaska’s sovereign right to manage its

waters is an initial but impactful step toward unwar-

ranted comprehensive federal land management

5The Alaska Constitution expresses a policy of promoting

e resource development. See Ninilchik Traditional

Council v. Noah, 928 P.2d 1206, 1212 n.11 (Alaska 1996)

(discussing Article VIII of the Alaska Constitution).

20

regulation in Alaska. The Park Service impeded

Mr. Sturgeon’s right to freely access a state-owned

navigable river, a right that he, like other Alaskans,

historically exercised without federal interference.

Yet the impact of the case goes well beyond one man.

Alaska’s Native Corporations, whose rights to develop

their lands as contemplated under ANCSA are now in

jeopardy, may feel the impact of the court’s decision

most immediately. But by shifting decision-making

for state resource management to the federal govern-

ment, the decision also imperils the everyday liberties

of ordinary Alaskans. See New York v. U.S., 505 U.S.

144, 181 (1992) (“[T]he Constitution divides authority

between federal and state governments for the protec-

tion of individuals. State sovereignty is not just an end

in itself: Rather, federalism secures to citizens the

liberties that derive from the diffusion of sovereign

power.” (internal quotation marks omitted)).

Because Alaskans routinely use the state’s waters

and lands in ways that are crucial yet uncommon in

the rest of the country, the potential harm created by

the Ninth Circuit’s holdings is vastly magnified.

Access bans or restrictions on the use of all-terrain

vehicles, for example, may be prompted by reasonable

agency concern for noise disruption or the safety of

park visitors on busy mixed-use trials in the lower

48 states; but in Alaska, where ATVs are a common

daily mode of transportation on summer trails and

on Alaska’s frozen winter ice highways, those same

restrictions would threaten not thrill-seeking

weekend tourists, but everyday travelers. See 36

C.F.R. §§ 1.4(a), 4.10. A ban on the use of helicopters

might seem like a reasonable and even desirable limi-

tation to preserve the wilderness character of most

national parks and refuges; but applied in Alaska it

would prohibit state officials from reaching remote

21

state, Native, or privately owned lands to conduct

scientific studies on water quality. See id. § 2.17(a).

Commercial activity regulations, already widely

applied throughout the park system, might make

sense in most parks; but in Alaska, applying the same

commercial access or use restrictions on major state

navigable waters like the Yukon or Kuskokwim rivers

would cripple local industries like commercial fishing,

hunting, or tourism in and around Native villages.

See id. § 5.3.

In short, because of Alaska’s differences, unthinking

application of a nationwide regulatory scheme would

harm rural Alaska. It would interfere with the ability

of residents to meaningfully and responsibly harness

state resources to supplement family income. It would

impede the State’s sovereign ability to carry out scien-

tific research. And it would impede summer barge and

winter ice road traffic along Alaska’s waterways,

threatening the flow of goods and services to remote

communities stretched along the state’s rivers, further

exacerbating the high cost of living in bush Alaska.

Even if enforcement of such regulations is not

a Park Service priority, ordinary Alaskans should not

need to fear criminal prosecution, civil fines, or other

sanctions—as did Mr. Sturgeon—for simply going

about their daily lives.

The court’s decision to subject state, Native, and pri-

vate lands and resources to the self-imposed regula-

tory jurisdiction of federal agencies—whose missions

differ from and do not account for the Alaskan experi-

ence—could also impede Alaska’s wider efforts to meet

the needs of its residents. Dwindling state revenues

have already hampered Alaska’s ability to grow the

state’s infrastructure. For example, the Ambler Road,

a high-profile state project intended to facilitate

22

Alaska’s ability to responsibly develop its resources, is

now on hold in light of a state budget shortfall. Yet

projects like the road often provide important job

opportunities, vital means of access, and facilitate the

flow of more affordable goods and services to remote

communities. And given Alaska’s many logistical chal-

lenges, access to and use of state resources like gravel

bars and minerals on the state’s submerged lands and

in the beds of Alaska’s navigable rivers offers an

affordable, often essential, building block for these

projects. Alaska’s right to responsibly harness its

resources remains as crucial now as at statehood and

only if the State retains that right can it meaningfully

sustain its sovereignty.

* * *

Section 103 of ANILCA pledges that Alaska will

retain its sovereign right to manage and regulate its

lands and resources to help meet the unique needs

of its people. The Ninth Circuit’s decision revokes

that pledge, leaving Alaska subject to increasing

federal regulation in a manner that Congress neither

intended nor authorized. This Court should grant the

petition to protect the many Alaskans who rely on the

state’s resources for their daily needs, to preserve

Alaska’s sovereignty, and to reinstate ANILCA’s

carefully negotiated balance between state and federal

regulatory control.

23

CONCLUSION

This Court should grant the petition for a writ of

Respectfully submitted,

CRAIG W. RICHARDS

Attorney General

RUTH BOTSTEIN JANELL HAFNER

STATE OF ALASKA Counsel of Record

1031 W. 4th Avenue STATE OF ALASKA

Suite 200 PO Box 110300

Anchorage, AK 99501-1994 Juneau, AK 99811-0300

(907) 269-5100 (907) 465-3600

ruth. botstein@alaska.gov janell.hafner@alaska.gov

Counsel for State of Alaska

May 4, 2015

APPENDIX

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