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

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## Record

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

## Text

No. 14-1209
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0549%3A07. Public record. Not legal advice.