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

No. 14-1209

In the Supreme Court of the Hnited States

JOHN STURGEON,

Petitioner,

Vv.

BERT FROST, in His Official Capacity as Alaska

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

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for te Ninth Circuit

BRIEF OF ALASKA MINERS ASSOCIATION, INC.,

ALASKA OIL AND GAS ASSOCIATION, ALASKA CHAMBER,

ALASKA FOREST ASSOCIATION, ALASKA CONSERVATION

TRUST, ALASKA SUPPORT INDUSTRY ALLIANCE,

ASSOCIATED GENERAL CONTRACTORS OF ALASKA,

COUNCIL OF ALASKA PRODUCERS, AND RESOURCE

DEVELOPMENT COUNCIL FOR ALASKA, INC. AS

AMICI CURIAE IN SUPPORT OF PETITIONER

JOSEPH J. PERKINS, JR. JASON T. MorGan*

Stoet Rives LLP *Counsel of Record

501 L Street, SToe. Rives LLP

Suite 500 600 University Street,

Anchorage, AK 99501 Suite 3600

(907) 277-1900 Seattle, WA 98101

joseph. perkins@stoel.com (206) 624-0900

jason.morgan@stoel.com

Counsel for Amici Curiae

Becker Gallagher Cincinnati,OH Washington, D.C. ~- 800.890.5001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES... .

INTERESTS OF AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

I. The Primary Purpose of ANILCA is to Complete

the Promises Made by the Statehood Act and

ANCSA , :

II. The Ninth Circuit’s Interpretation of Section

103(c) Conflicts with the Plain Language and

Primary Purpose of ANILCA... .. .

A. The plain language of Section 103(c)

precludes the application of all National

Park Service as to eet in

Alaska . 6a '

B. The Ninth Circuit’s interpretation of

Section 103(c) undermines the purpose of

ANILCA

C. The National Park Service reads the purpose

of ANILCA too narrowly

CONCLUSION

ii

12

12

15

21

24

TABLE OF AUTHORITIES

Cases

Almendarez-Torres v. United States,

523 U.S. 224 (1998) ; 6

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

480 U.S. 531 (1987) passim

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001) = 6

Hale v. Norton,

476 F.3d 694 (9th Cir. 2007) 12

Koniag, Inc. v. Koncor Forest Res.,

39 F.3d 991 (9th Cir. 1994) . cies wok ee

Sturgeon v. Masica,

768 F.3d 1066 (9th Cir. 2014) passim

Udall v. Kalerak,

396 F.2d 746 (9th Cir. 1968) 7

United States v. Alaska,

521 U.S. 1 (1997) 23

W. Air Lines, Inc. v. Bd. of Equalization of S.D.,

480 U.S. 123 (1987) 15

Rules

Supreme Court Rule 37(6) 1

Statutes

16 U.S.C. § 410hh-2 14

16 U.S.C. § 410hh-3 17

lil

16 U.S.C.§3101(d)_.. : . . 10,22

16 U.S.C. § 3102(4) a 10

16 U.S.C. § 3103(c) . 4,11, 12, 13

16 U.S.C. § 3170(b) —— se

16 U.S.C. § 3213 —

43 U.S.C. §§ 1611, 1613 9

43 U.S.C. § 1616(d)(2) )

Pub. L. No. 85-508, § 6(a)-(b), 72 Stat. 339 (1958) 7

Pub. L. No. 85-508, § 6(g), (i), 72 Stat. 339 (1958). 7

Pub. L. No. 85-508, § 6(m), 72 Stat. 339 (1958) 22

Pub. L. No. 94-204, § 15, 89 Stat. 1145 (1976) 19

Pub. L. No. 96-487, § 304(a), 94 Stat. 2371 14

Pub. L. No. 96-487, § 402(a), 94 Stat. 2371 14

Pub. L. No. 96-487, § 503(c), 94 Stat. 2371 14

Regulations

36 C.F.R. pt. 6 — ; 16

36 C.F.R. pt. 9, subpt. B 18, 19

36C.F.R.§6.2(a) .. . —

36 C.F.R. § 6.7(d) 16, 17

36 C.F.R. § 9.30(a) 18

36 C.F.R. § 9.36 18

36 C.F.R. § 9.37 18

iv

59 Fed. Reg. 65948, 65950 (Dec. 22, 1994) 16

68 Fed. Reg. 35116, 35117 (June 11, 2003) 22

80 Fed. Reg. 65572, 65572 (Oct. 26, 2015) 18, 19

Other Authorities

Ahtna, http://ahtna-inc.com/lands/resources/ (last

visited Nov. 17, 2015) : -

Alaska Department of Natural Resources, Greens

Creek Mine, http://dnr.alaska.gov/mlw/mining/

largemine/greenscreek/ (last visited Nov. 17,

2015) 19

Alaska Department of Natural Resources, Upper

Yukon Area Plan (February 2003),

http://dnr.alaska.gov/mlw/planning/areaplans/

up_yukon/pdf/uyap_full_plan.pdf (last visited

Nov. 17, 2015) ae ae

Alaska National Interest Lands, Report of the

Committee on Energy and Natural Resources,

U.S. Senate, S. Rep. No. 96-413 (1979), reprinted

in 1980 U.S.C.C.A.N. 5070 13, 14

Camp Denali Lodge, http://campdenali.com/

live/page/about (last visited Nov. 17,2015) . 20

H.R. Rep. No. 85-624 (1957), reprinted in 1958

U.S.C.C.A.N. 2933 7, 8, 15, 23

H.R. Rep. No. 92-523 (1971), reprinted in 1971

U.S.C.C.A.N. 2192 .. 8,9

Vv

North Slope Units Map, http://dog.dnr.alaska.gov/

Units/Documents/UnitMaps/NorthSlope/North

SlopeUnitsMap-201509. pdf (last visited Nov. 17,

2015) 23

McDowell Group, The Economic Impacts of Placer

Mining in Alaska (Oct 2014),

http://alaskaminers.org/placer-mining/ 23

1

INTERESTS OF AMICI CURIAE

Alaska Miners Association, Inc., Alaska Oil and Gas

Association, Alaska Chamber, Alaska Forest

Association, Alaska Conservation Trust, Alaska

Support Industry Alliance, Associated Genera!

Contractors of Alaska, Council of Alaska Producers,

and Resource Development Council for Alaska, Inc.

hereby submit this amici curiae brief in support of the

Petitioner John Sturgeon.’

More than any other state, Alaska’s economy is

dependent on the use and development of the state’s

natural resources. Fisheries, mining, oil and gas

production, forestry, and tourism are the backbone of

Alaska’s economy. Amici curiae represent the

industries that drive Alaska’s economy through the

development and use of Alaska’s natural resources.

Alaska Miners Association, Inc. is a nonprofit

corporation representing the mining industry in

Alaska. It advocates for the development and use of

Alaska’s mineral resources to provide an economic base

for the state. Mining provides jobs for thousands of

Alaskans and millions of dollars of personal income

throughout Alaska. Alaska’s mining industry includes

exploration, mine development, and mineral

production. Alaska’s mines produce gold, zinc, lead,

' Pursuant to Supreme Court Rule 37(6), undersigned counsel

certifies that (A) no party’s counsel authored this brief, in whole or

in part; (B) no party or party’s counsel contributed money that was

intended to fund preparing or submitting this brief; and (C) no

person, other than the amici curiae or their members, contributed

money that was intended to fund preparing or submitting this

brief. The parties have consented to this motion.

2

silver, and coal, as well as construction materials, such

as sand, gravel, and rock.

The Alaska Oil and Gas Association is a

professional trade association whose mission is to

foster the long-term viability of the oil and gas industry

for the benefits of all Alaskans. It represents the

majority of companies that are exploring, developing,

producing, refining, or marketing oil and gas on the

North Slope, in the Cook Inlet, and in the offshore

areas of Alaska. On an annual average, the oil and gas

industry in Alaska provides an average of 110,000 jobs

and about $6 billion in total wages.

The Alaska Chamber is a nonprofit corporation

dedicated to improving the business environment in

Alaska. The Alaska Chamber represents hundreds of

businesses from Ketchikan to Barrow that share a

common goal: to make Alaska a viable and competitive

place to do business. The Alaska Chamber was

founded in 1952 prior to statehood, and has helped

shape the policies impacting the development of the

state’s natural resources.

Alaska Forest Association is an industry trade

association representing the timber industry of Alaska.

Alaska Forest Association is dedicated to advancing the

restoration, promotion and maintenance of a healthy,

viable forest products industry, and contributing to

economic and ecological health in Alaska's forests and

communities. Alaska’s forest products industry

provides hundreds of jobs and contributes millions of

dollars to Alaska’s economy.

The Alaska Conservation Trust is a non-profit

corporation working to ensure equal protection for

3

Alaska’s people, businesses, and the environment. The

Alaska Conservation Trust serves as a watchdog for

Alaska’s economy and environment, and works to foster

strategic alliances to support the economic health of

Alaska communities.

Alaska Support Industry Alliance is a nonprofit

corporation that represents more than 500 members

providing more than 50,000 Alaskan jobs related to the

oil, gas, and mining industries. The Alaska Support

Industry Alliance’s mission is to advocate for safe,

environmentally responsible development of Alaska’s

oil, gas, and mineral resources for the benefit of all

Alaskans.

Associated General Contractors of Alaska is a

nonprofit corporation representing the interests of the

construction industry. Its members build the roads,

bridges, pipelines, facilities, buildings, and other

infrastructure that allow Alaska’s businesses to use

and develop Alaska’s natural resources.

Council of Alaska Producers is a _ nonprofit

corporation representing Alaska’s large metal mining

industry. Its members operate large-scale mining

operations for gold, silver, zinc and lead. Mining is a

growth industry in Alaska, with several promising

projects in development, in addition to strong operating

mines across the state that provide jobs that support

Alaskan families.

Resource Development Council for Alaska, Inc. is a

nonprofit corporation, comprised of individuals and

companies involved in Alaska’s oil and gas, mining,

timber, tourism, and fisheries industries. Its

membership includes Alaska Native Corporations, local

4

communities, organized labor, individuals, and

industry support firms. The Resource Development

Council’s purpose is to encourage a strong, diversified

private sector in Alaska and to expand the state’s

economic base through the responsible development of

Alaska’s natural resources.

The success of the businesses represented by these

organizations in building Alaska’s economy, and their

ability to continue to do so in the future, is dependent

on a series of promises made by Congress that provide

access to these resources. These promises started with

the Alaska Statehood Act of 1958 (the “Statehood Act”),

continued with the Alaska Native Claims Settlement

Act in 1971 (“ANCSA”), and culminated with the

Alaska National Interest Lands Conservation Act in

1980 (*ANILCA”). These acts collectively allow the

State of Alaska and Native Corporations to identify,

select, and receive lands that provide the resources

necessary to build the state’s economy and serve the

interests of Alaska’s people. More than just confirming

ownership, ANILCA Section 1110 ensures that the

state, Native Corporations, and other private owners

will have adequate and feasible access to their lands

across federal lands. And ANILCA Section 103(c)

ensures that any state, Native Corporation, or other

private lands, including selected lands within reserved

federal “conservation system units” (or “CSUs”), will

not be treated as part of those units and will not “be

subject to the regulations applicable solely to public

lands within such units.” 16 U.S.C. § 3103(c).

In the decision below, Sturgeon v. Masica, 768 F.3d

1066 (9th Cir. 2014), the Ninth Circuit undermines one

of ANILCA’s core protections. According to the Ninth

5

Circuit, the protection in Section 103(c) prohibits only

those regulations that apply solely “in Alaska,” such as

Alaska specific National Park Regulations. Under

Sturgeon, Section 103(c) does not prohibit the National

Park Service from enforcing generally applicable

regulations that apply to all National Parks to

inholdings in Alaska. As a result, Alaska-specific

regulations (like park-specific camping and hunting

regulations) do not apply to inholdings in Alaska, but

general Park regulations (such as those related to

mining or oil and gas development that could prohibit

economic development of the land) would apply to

inholdings is Alaska. This renders the protection of

Section 103(c) meaningless.

The Ninth Circuit’s decision is contrary to the plain

language of ANILCA, ignores the context under which

Section 103(c) was enacted, undermines the

Congressional promises of ANILCA, and will have wide

ranging consequences for business interests that

depend on the development and use of inholdings in

Alaska. The Court should reverse.

SUMMARY OF ARGUMENT

Amici curiae endorse and support the arguments of

the Petitioner demonstrating that the Ninth Circuit in

Sturgeon erred in concluding that National Park

Service regulations of “general applicability maybe

enforced on both public and nonpublic lands alike

within CSUs” in Alaska. 768 F.3d at 1078. This

holding is contrary to the plain language of Section

103(c), which makes no distinction between Alaska-

specific and general regulations, and is contrary to

legislative history demonstrating that the proponents

of Section 103(c) intended that provision to ensure that

6

inholdings would not be governed by the regulations

applicable to the surrounding federal CSU.

Amici curiae complement that analysis by

demonstrating how the Ninth Circuit’s decision in

Sturgeon is also inconsistent with the very purpose of

ANILCA, which is to complete the promises made in

the Statehood Act and ANCSA. Furthermore, amici

curiae demonstrate that the Ninth Circuit’s holding

will have consequences well beyond recreation in the

National Parks by paving the way for federal agencies

to curtail development on inholdings in all CSUs in

Alaska, in direct contravention of the purpose for which

those lands were granted in the first place.

ARGUMENT

I. The Primary Purpose of ANILCA is to

Complete the Promises Made by the Statehood

Act and ANCSA

The Court construes the plain language of a statute

“with reference to the statutory context in which it is

found and in a manner consistent with the [statute’s]

purpose.” Circuit City Stores, Inc. v. Adams, 532 US.

105, 118 (2001). In addition, the Court “look[s] to the

statute’s language, structure, subject matter, context,

and history—factors that typically help courts

determine a statute’s objectives and thereby illuminate

its text.” Almendarez-Torres v. United States, 523 U.S.

224, 228 (1998).

The Court in Amoco Production Co. v. Village of

Gambell, Alaska, 480 U.S. 531 (1987), explained that

“ANILCA’s primary purpose was to complete the

allocation of federal lands in the State of Alaska, a

process begun with the Statehood Act in 1958 and

7

continued in 1971 in ANCSA.” /7d. at 549 (footnote

omitted). Accordingly, the Court in Amoco looked to

these “predecessor statutes” to give context to the plain

language of ANILCA and to interpret the phrases

“public lands” and “in Alaska” as used in Section 810 of

ANILCA. IZd. at 552.

Here too, the Statehood Act and ANCSA provide

critical context to understanding the plain meaning of

ANILCA Section 103(c). The Statehood Act in 1958

was intended to provide Alaska and its people the

opportunity to develop the resources of the state.

Under the Statehood Act, Alaska was promised 800,000

acres of public lands “for the purposes of furthering the

development and expansion of communities” and

further promised that it could select another

102,550,000 acres of land that were “vacant,

unappropriated and unreserved.” Pub. L. No. 85-508,

§ 6(a)-(b), 72 Stat. 339, 340 (1958). This land was to be

patented to the state and included all mineral rights.

Id. § 6(g), (i), 72 Stat. at 342. The “purpose of the land

grants under” the Statehood Act is “to serve Alaska’s

overall economic and social well-being.” Udall v.

Kalerak, 396 F.2d 746, 749 (9th Cir. 1968).

The need for these large land grants was driven by

aggressive federal policies setting aside the most

valuable potential development areas in Alaska as

reserves. Prior to statehood, Alaska faced the “peculiar

problem” that “[o]ver 99 percent of the land area of

Alaska is owned by the federal government.” H.R. Rep.

No. 85-624 (1957), reprinted in 1958 U.S.C.C.A.N.

2933, 2937 Although numerous laws existed

authorizing disposition of federal lands to private

individuals, those laws were being thwarted to “a large

8

degree by the federal policies . withdrawing from

public use many of the more valuable resources of the

territory.” Id. These “tremendous federal

reservations” were “for the furtherance of the programs

of the various federal agencies.” Jd. Prior to statehood

these reservations embraced “a preponderance of the

more valuable resources” of the territory, with the

remaining unreserved areas consisting of “glaciers,

mountains, and worthless tundra.” /d. at 2938.

The Statehood Act was intended to “alter the

present distorted landownership pattern in Alaska.”

Id. To achieve that result, Alaska needed the

opportunity to “select lands containing real values

instead of millions of acres of barren tundra.” /d. at

2939. The Statehood Act affords the state the

opportunity to “select lands known or believe[d] to be

mineral in character.” Jd. The intent was to provide

the “valuable resources needed by the new state to

develop flourishing industries with which to support

itself and its people.” Jd. at 2938.

The efforts to implement the promises of the

Statehood Act quickly ran into complications when

Native groups asserted aboriginal rights to lands

selected by the state. See H.R. Rep. No. 92-523 (1971),

renpinted in 1971 U.S.C.C.A.N. 2192, 2193-94.

Congress passed ANCSA “to provide an equitable

solution to the claims made by the Natives of Alaska”

while at the same time protecting the promises of the

Statehood Act for lands “regarded as essential to the

economic viability of the State.” Jd.

ANCSA, like the Statehood Act, used land grants as

the primary mechanism for economic independence.

Native Corporations were authorized to select over 40

9

million acres of land in Alaska. Jd. at 2195. Of those

millions of acres, “most of it will be selected for its

economic potential.” Jd. This land was to serve “as a

form of capital for economic development.” Jd. Thus,

ANCSA, like the Statehood Act, focused on granting

lands to drive Alaska’s economy.

As with the Statehood Act, in passing ANCSA

Congress intended that these lands be patented and

passed out of federal ownership and control. 43 U.S.C.

§§ 1611, 1613. ANCSA recognized the “interest of all of

the people of the Nation in the wise use of the public

lands,” but made “a judgment about how much of the

public lands in Alaska should be transferred to private

ownership, and how much should be retained in the

public domain.” H.R. Rep. No. 92-523, reprinted in

1971 U.S.C.C.A.N. at 2194. The settlement in ANCSA

represented a judgment “of what would be fair to the

Natives, fair to the State of Alaska, and fair to all of

the people of the United States.” Id. at 2195. To that

end ANCSA also authorized the Secretary of the

Interior to set aside up to 80 million acres of

unreserved federal land for public use. 43 U.S.C.

§ 1616(d)(2).

Implementation of these competing selections

continued to prove problematic. See Petitioner’s

Opening Brief at 4-5. By 1979, the land grants under

the Statehood Act were only 30 percent complete and

grants under ANCSA were only one-eighth complete.

Amoco, 480 U.S. at 549 n.18. Meanwhile, federal

withdrawals continued at a rapid pace. Petitioner's

Opening Brief at 4-5.

Congress, through ANILCA, sought to resolve these

competing selections and withdrawal interests.

10

ANILCA designated over 100 million acres as federal

CSUs’ while ensuring “satisfaction of the economic and

social needs of the State of Alaska.” 16 U.S.C.

§ 3101(d). ANILCA concluded that these federal

reservations were sufficient to protect “the national

interest in the scenic, natural, cultural and

environmental values on the public lands in Alaska”

and that the need for future federal withdrawals “has

been obviated.” Id.; see also 16 U.S.C. § 3213 (severely

restricting future executive withdrawals).

To ensure full “satisfaction” of the promises of the

Statehood Act and ANCSA, Congress included Section

103(c) in ANILCA:

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. 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. If the

State, a Native Corporation, or other owner

desires to convey any such lands, the Secretary

may acquire such lands in accordance with

applicable law (including this Act), and any such

* “Conservation system unit” is defined as “any unit in Alaska of

the National Park System, National Wildlife Refuge System,

National Wild and Scenic Rivers Systems, National Trails System,

National Wilderness Preservation System, or a National Forest

Monument.” 16 U.S.C. § 3102(4).

11

lands shall become part of the unit, and be

administered accordingly.

16 U.S.C. § 3103(c). These provisions confirm the

promises of the Statehood Act and ANCSA; state and

Native Corporation lands selected would not be

“deemed to be included as a portion” of the National

Park, National Monument, U.S. Forest Service

Monument, Wildlife Refuge, or other CSU, and would

not be regulated as such. Instead, those lands could be

developed to utilize their promised economic potential.

Not only did Congress ensure that these lands

within CSUs could still be developed, but Congress

further guaranteed “adequate and feasible” access to

such lands. Specifically, ANILCA Section 1110(b)

provides:

Notwithstanding any other provisions of this

Act or other law, in any case in which State

owned or privately owned land, including

subsurface rights of such owners underlying

public lands, or a valid mining claim or other

valid occupancy is within or is effectively

surrounded by one or more conservation system

units, national recreation areas, national

conservation areas, or those public lands

designated as wilderness study, the State or

private owner or occupier shall be given by the

Secretary such rights as may be necessary to

assure adequate and feasible access for economic

and other purposes to the concerned land by

such State or private owner or occupier and

their successors in interest. Such rights shall be

subject to reasonable regulations issued by the

12

Secretary to protect the natural and other values

of such lands.

16 U.S.C. § 3170(b). Simply put, “ANILCA provides

access rights for inholders.” Hale v. Norton, 476 F.3d

694, 699 (9th Cir. 2007).

In sum, ANILCA completes the promises made in

the Statehood Act and ANCSA by ensuring that

properties within the expansive CSU will not be subject

to regulation as part of the CSU, and that property

owners will have the access necessary to develop those

lands.

II. The Ninth Circuit’s Interpretation of Section

103(c) Conflicts with the Plain Language and

Primary Purpose of ANILCA

A. The plain language of Section 103(c)

precludes the application of all National

Park Service regulations to inholdings in

Alaska

Notwithstanding the fact that “ANILCA’s primary

purpose was to complete the allocation of federal lands

in the State of Alaska” that began with the Statehood

Act and ANCSA, Amoco, 480 U.S. at 549, the Ninth

Circuit’s decision in Sturgeon never mentions either

predecessor statute.

Instead, the Ninth Circuit read the second sentence

of Section 103(c) in isolation to conclude: “The plain

text of § 103(c) only exempts nonfederal land from

‘regulations applicable solely to public lands within

[CSUs].” Sturgeon, 768 F.3d at 1077 (brackets and

emphasis in original) (quoting 16 U.S.C. § 3103(c)).

The Ninth Circuit reasoned that the word “solely” was

13

used to indicate regulations that applied solely “in

Alaska,” and did not apply to regulations that applied

to CSUs nationwide. Id. Because the regulation at

issue banning hovercraft use applies to all National

Park units, and not solely to the Yukon—Charley CSU

in Alaska, the Ninth Circuit concluded that the

regulation was not barred by Section 103(c). Jd.

Even when read in isolation, this interpretation

cannot possibly stand. Section 103(c) prohibits

“regulations applicable solely to public lands within

such units.” 16 U.S.C. § 3103(c) (emphasis added).

The word “solely” modifies the phrase “public lands.”

Thus the appropriate inquiry is whether the regulation

applies “solely to public lands,” not whether, as the

Ninth Circuit held, the regulation applies solely “in

Alaska.”

The obvious intent of the inclusion of the phrase

“regulations applicable solely to public lands within

such units” was to target all public land regulations

(i.e., National Park Service or U.S. Fish and Wildlife

Service regulations) that would be applicable to that

unit. This language gives effect to the first sentence of

Section 103(c) that only federal lands “within the

boundaries of any conservation system unit _ shall be

deemed to be included as a portion of such unit.” Jd.

At the same time, the language avoids, as Petitioner

explains, any arguments that Congress was trying to

exempt these inholdings from all applicable federal

regulations that would impact development such as the

Clean Water Act or the Clean Air Act. Petitioner’s

Opening Brief at 29 (citing Alaska National Interest

Lands, Report of the Committee on Energy and

14

Natural Resources, U.S. Senate, S. Rep. No. 96-413, at

303 (1979), reprinted in 1980 U.S.C.C.A.N. 5070, 5247).

Moreover, the Ninth Circuit’s conclusion that

Congress intended Section 103(c) to exempt an

inholding from land management regulations

applicable only in Alaska makes little sense. Section

203 of ANILCA instructs the National Park Service to

“administer” CSUs in Alaska as “new areas of the

National Park System,” in accordance with the

National Park Service Organic Act. 16 U.S.C.

§ 410hh-2.° The only Alaska-specific regulations

contemplated in ANILCA for these units are for things

like permitting the continued use of aircraft in some

areas (Section 201(6), (10)), authorizing motorized snow

travel (Section 201(2)), or authorizing hunting (Section

203).

There is no logical reason why Congress would want

to exclude private inholdings from the benefit of these

Alaska-specific regulations (which are largely related

to recreation and subsistence), but include private

inholdings within the scope of general regulations that

could preclude the very uses for which these lands were

conveyed by the federal government. This illogical

* The same reasoning applies to other CSUs in Alaska. Under

ANILCA Section 304, the U.S. Fish and Wildlife Service is to

manage Wildlife Refuges “in accordance with the laws governing

the administration of units of the National Wildlife Refuge System,

and this Act.” Pub. L. No. 96-487, § 304(a), 94 Stat. 2371; see also

id. § 402(a) (Bureau of Land Management “shall administer” CSU

“pursuant to the applicable provisions of the Federal Land Policy

and Management Act”); id. § 503(c) (“[T]he National Forest

Monuments _ shall be managed by the Secretary of Agriculture

as units of the National Forest System w

15

result cannot stand. W. Air Lines, Inc. v. Bd. of

Equalization of S.D., 480 U.S. 123, 133 (1987) (“The

illogical results of applying such an interpretation,

however, argue strongly against the conclusion that

Congress intended these results |

B. The Ninth Circuit’s interpretation of

Section 103(c) undermines the purpose of

ANILCA

The context under which ANILCA was passed fully

confirms this commonsense reading that Section 103(c)

exempts nonfederal land inside CSUs from being

subject to the federal land management regulations

applicable to a National Park, Monument, or Wildlife

Refuge. As discussed above, the primary purposes of

the Statehood Act and ANCSA are to provide the state

and the Native Corporations with the lands that could

be developed to support a vital economy. The plain

intent of Section 103(c) is to exempt these selected

lands, which happen to be within a federal CSU, from

public land regulations that might restrict the

development of state and private land. The people of

Alaska were promised that their selections would be for

“valuable resources to develop flourishing

industries” not “worthless tundra.” H.R. Rep. No. 85-

624, reprinted in 1958 U.S.C.C.A.N. at 2938.

But the Ninth Circuit’s decision immediately puts

the decision for the development of any state or Native

selection within the various CSUs right back into the

hands of the National Park Service, the U.S. Fish and

Wildlife Service, the Bureau of Land Management, or

the U.S. Forest Service. Congress sought to exempt

selected land (with exceptions) from the reach of these

federal agencies. Unless the Court reverses, these

16

agencies will get to decide whether a selection within

a CSU is developed for “valuable resources” or remains

“worthless tundra.”

Although this case arises in the context of navigable

waters and recreation, the National Park Service has

not limited its interpretation of Section 103(c) to these

areas. One primary example is the National Park

Service regulations governing solid waste disposal sites

for mines. See 36 C.F.R. pt. 6. Under 36 C.F.R.

§ 6.7(d), no one can “establish or operate a new solid

waste disposal site within a unit” of any National

Park. This restriction applies to “all lands and waters

within the units of the National Park System,

whether federally or nonfederally owned.” 36 C.F.R.

§ 6.2(a).

The preamble to the regulations at 36 C.F.R. part 6

explains, unequivocally, that these regulations will

apply to inholding in CSUs in Alaska:

It is the Service’s opinion that the language of

section 103(c) does not render the final rule at

36 CFR part 6 inapplicable to nonfederal lands

in units of the National Park System in Alaska

because of the presence of the word “solely.”

59 Fed. Reg. 65948, 65950 (Dec. 22, 1994). The

National Park Service reached that result by applying

the same reasoning it put forward in Sturgeon: “neither

the law{] nor its regulations appllies] ‘solely’ to public

lands within the units.” Id.

This regulation, if applied to Alaska under the

reasoning urged by the National Park Service and

endorsed by the Ninth Circuit, effectively forecloses

mining on lands selected by the state c* Native

17

Corporations under the Statehood Act and ANCSA

within National Park Service CSUs. That is so because

almost all large-scale mines must dispose on-site the

overburden, waste rock, tailings, and other solid waste

generated by their mining and mineral recovery and

beneficiation processes. Any other approach is not

practical or economic. Therefore, the prohibition in 36

C.F.R. § 6.7(d) eliminates any new mining operation on

selected lands inside National Park Service CSUs.

These concerns are not theoretical. Ahtna,

Incorporated, a Native regional corporation

incorporated pursuant to ANCSA, has ANCSA selected

lands inside the Wrangell-Saint Elias National Park, a

CSU created by Section 201(9) of ANILCA. Those

selections have significant potential for copper, gold,

and other minerals‘ and could be developed (as

intended by Congress in granting those lands)

consistent with Title XI of ANILCA and laws of general]

applicability to mining.

Indeed, Congress expressly promised in Section 204

of ANILCA that “[vjalid Native Corporation selections

within the boundaries of the Wrangell-Saint Elias

National Park and Preserve _. shall be honored.” 16

U.S.C. § 410hh-3. But the Ninth Circuit’s decision in

Sturgeon authorizes the National Park Service to break

that promise through the application of its nationally

applicable regulations at 36 C.F.R. § 6.7(d). This is

plainly contrary to congressional intent. See Koniag,

Inc. v. Koncor Forest Res., 39 F.3d 991, 997 (9th Cir.

1994) (“[W]le conclude that Congress did not intend to

* Ahtna, http://ahtna-inc.com/lands/resources/ (last visited Nov. 17,

2015).

18

grant Koncor land [under ANCSA] whose value could

be reduced to zero by fiat.. .”).

The National Park Service has also overreached into

nonfederal lands in Alaska with respect to oil and gas

development. See 36 C.F.R. pt. 9, subpt. B. The

National Park Service has issued a suite of regulations

governing nonfederal oil and gas rights within parks

and has made the regulations applicable to private

lands. See 36 C.F.R. § 9.30(a) (applying requirements

of subpart B where “the land is owned in fee”). Subpart

B of part 9 imposes significant restrictions on oil and

gas operations, requires a National Park Service plan

of operation, and gives the National Park Service broad

discretion to deny oil and gas operations. Id. §§ 9.36,

9.37

Equally troubling, the National Park Service is

currently proposing to amend part 9, subpart B, to

provide even more stringent restrictions on oil and gas

operations. 80 Fed. Reg. 65572, 65572 (Oct. 26, 2015).°

In that proposal, the National Park Service expiains

that it is relying on the Ninth Circuit’s decision in

Sturgeon to extend these restrictions to Alaska: “We

also note that because these regulations are generally

applicable to NPS units nationwide and to non-federal

interests in those units,” the restrictions would apply

in Alaska “and thus are not affected by Section 103(c)

° The existing regulations apply only to nonfederal oil and gas

interests where access across federal lands is required. The

proposed regulations would apply to all oil and gas operations on

private land regardless of whether access across federal lands is

required. 80 Fed. Reg. at 65575.

19

of ANILCA.” Id. at 65573 (citing Sturgeon, 768 F.3d at

1077-78).

These concerns regarding the applicability of

36 C.F.R. part 9, subpart B, to Alaska parks are also

not theoretical. Koniag, Inc., a Native regional

corporation incorporated pursuant to ANCSA, received

conveyance under ANCSA of subsurface estate

potentially valuable for oil and gas® that is now within

the Aniakchak National Monument. Here too, the

Ninth Circuit’s decision in Sturgeon authorizes the

Parks to defeat the development potential of inholdings

in Alaska through the application of general

regulations.

These concerns are also not limited to CSUs under

the National Park Service’s authority. There are

inholdings in many other CSUs that are either

currently being developed or have significant future

development potential. For example, Greens Creek

mine is one of the largest silver mines in the world and

is currently operating on private land in the Admiralty

Island National Monument CSU, under the jurisdiction

of the U.S. Forest Service.’

®° This conveyance was made pursuant to § 15 of the Act of

January 2, 1976, Pub. L. No. 94-204, 89 Stat. 1145, 1154-55.

’ The Green Creek mine comprises patented federal mining claims

(in some of which a full fee simple estate was conveyed, while in

others only a mineral fee estate was conveyed), other fee simple

land, and various unpatented federal mining claims and dependent

mill sites. See Alaska Department of Natural Resources, Greens

Creek Mine, http://dnr.alaska.gov/mlw/mining/largemine/

greenscreek/ (last visited Nov. 17, 2015).

20

There are many other examples. Significant

hardrock mineral exploration is occurring on Native

Corporation land within the Alaska Peninsula National

Wildlife Refuge managed by the U.S. Fish and Wildlife

Service. Numerous active placer mining operations

exist within the Fortymile Wild and Scenic River CSU,

under jurisdiction of the Bureau of Land Management.®

Finally, lodges, camps, and recreational facilities are

operated on private lands within many of the CSUs,

including but not limited to Denali National Park and

Preserve, Wrangell-St. Elias National Park and

Preserve, Kodiak Island National Wildlife Refuge, and

Admiralty Island National Monument.®

The Ninth Circuit in Sturgeon has provided these

federal land managing agencies in Alaska with a road

map to regulate these activities (and those that might

develop in the future) out of existence and thereby

subvert the purposes of ANILCA. Under the Ninth

Circuit’s holding, a federal land management agency

can halt operations on inholdings in Alaska by putting

restrictions on inholdings in a nationwide rule, even if

the real impact is predominantly, if not exclusively, in

Alaska. Even narrower, they could simply produce

regulations that apply to inholdings in Alaska and one

other park unit outside Alaska. In either case, the

* See Alaska Department of Natural Resources, Upper Yukon Area

Plan (February 2003), http://dnr.alaska.gov/mlw/planning/

areaplans/up_yukon/pdf/uyap_full_plan. pdf (last visited Nov. 17,

2015).

® See, e.g., Camp Denali Lodge, http://campdenali.com/live/page/

about (last visited Nov. 17, 2015).

21

regulation would no longer be “solely” applicable to a

CSU in Alaska under Sturgeon.

The result of that interpretation is that the value of

Congress’s promises to the state, Native Corporations,

and other private land owners made in the Statehood

Act, ANCSA and ANILCA for land and access to that

land “could be reduced to zero by fiat.” Koniag, 39 F.3d

at 997. This result cannot be squared with the

language and intent of ANILCA and its predecessor

statutes.

C. The National Park Service reads the

purpose of ANILCA too narrowly

The National Park Service’s brief in opposition to

certiorari attempts to justify the Ninth Circuit’s

decision by explaining that its ability to regulate state-

owned rivers and lakes that are within its CSUs is

essential. The National Park Service points to the

purposes of individual CSUs that address the

environmental integrity of streams and lakes, and

argues that denying it the right to regulate those

waters is “completely dissonant with the statute’s

stated purpose.” Brief For The Respondents In

Opposition at 17 This argument has a number of

flaws.

Initially, at least one other federal agency that has

addressed this issue has disagreed. The Secretary of

Agriculture, under ANILCA, manages National Forest

units of the National Wild and Scenic Rivers System,

National Trails System, and National Wilderness

Preservation System, and National Forest Monuments.

In issuing regulations in 2003, the Secretary expressly

agreed with comments from the State of Alaska that

22

pursuant to ANILCA Section 103(c) the new

“regulations would not apply to State-owned lands and

waters, including navigable waters, shore lands,

tidelands, and submerged lands within the boundaries

of national forests in Alaska,” and the State of Alaska

would continue to manage these waters. 68 Fed. Reg.

35116, 35117 (June 11, 2003). This is in direct contrast

to the National Park Service’s claim that it must

manage the waters within a unit to fulfill the intent of

ANILCA.

Equally important, the National Park Service’s

identified values in protecting “the national interest in

the scenic, natural, cultural and environmental values

on the public lands in Alaska” are only one part of

ANILCA’s purpose. 16 U.S.C. § 3101(d). The other

purpose of ANILCA is _ ensuring “satisfaction of the

economic and social needs of the State of Alaska.” Id.

As this Court explained, completing the selections of

the Statehood Act and ANCSA is the “primary purpose”

of ANILCA. Amoco, 480 U.S. at 549.

The state’s ownership of the bed and banks of

navigable waters is an express and important part of

the promise of the Statehood Act. Pub. L. No. 85-508,

§ 6(m), 72 Stat. at 343 (granting title to the state

through the Submerged Lands Act). The bed and

banks on state waters are an important source of

Alaska’s economic development. Placer mining in

streams and rivers and along portions of Alaska’s coast,

fueled Alaska’s gold rushes and continues to be a

multimillion-dollar industry in Alaska, with over 600

23

permitted mines.’ Some of these placer mines occur in

CSUs including, significantly, in various components of

the Fortymile Wild and Scenic River CSU designated

by Section 603 of ANILCA.

Likewise, the bed and banks of navigable waters

(including not only lands underlying inland navigable

waters but also tidelands and submerged lands along

the coasts of Alaska) are important for oil and gas

leasing, and an important source of state revenue. The

state has leased submerged lands for oil and gas

throughout Alaska."

When Alaska achieved statehood, some of these

important submerged lands areas had already been

expressly reserved by unilateral executive action,

including key submerged lands in the National

Petroleum Reserve. See United States v. Alaska, 521

U.S. 1, 36 (1997) (reservation included submerged

lands). The Statehood Act was intended to halt this

policy of creating “tremendous federal reservations” to

serve “the programs of the various federal agencies,”

and give the state the properties, including submerged

lands, necessary for it to build an economic base. H.R.

Rep. No. 85-624, reprinted in 1958 U.S.C.C.A.N. at

2937 Excluding the remaining submerged lands from

the reach of federal land managers is therefore entirely

'° See McDowell Group, The Economic Impacts of Placer Mining in

Alaska (Oct. 2014), http://alaskaminers.org/placer-mining/.

'' See, eg., North Slope Units Map (showing state owned

submerged oil and gas leases on the North Slope,

http://dog.dnr.alaska.gov/Units/Documents/UnitMaps/NorthSlope/

NorthSlopeUnitsMap-201509.pdf (last visited Nov. 17, 2015).

24

consistent with purpose of ANILCA, and the National

Park Service’s arguments must fail.

CONCLUSION

The decisivn of the Ninth Circuit is contrary to the

plain language and purpose of ANILCA and the Court

should reverse.

25

Respectfully submitted,

JASON T. MORGAN*

*Counsel of Record

STOEL RIVES LLP

600 University Street,

Suite 3600

Seattle, WA 98101

(206) 624-0900

jason.morgan@stoel.com

JOSEPH J. PERKINS, JR.

STOEL RIVES LLP

501 L Street,

Suite 500

Anchorage, AK 99501

(907) 277-1900

joseph.perkins@stoel.com

Counsel for Amici Curiae

Alaska Miners Association, Inc.,

Alaska Oil and Gas Association,

Alaska Chamber, Alaska Forest

Association, Alaska

Conservation Trust, Alaska

Support Industry Alliance,

Associated General Contracters

of Alaska, Council of Alaska

Producers, and Resource

Development Council for

Alaska, Inc.