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

No. 14-1209

In the Supreme Court of the Anited States

JOHN STURGEON,

Petitioner,

Vv.

BERT FROST, in His Official Capacity as Alaska

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

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF ARCTIC SLOPE REGIONAL CORPORATION,

COOK INLET REGION, INC., AND SALAMATOF NATIVE

ASSOCIATION, INC. AS AMICI CURIAE

IN SUPPORT OF PETITIONER AND REVERSAL

Jahna M. Lindemuth Timothy J. Droske

Katherine Demarest DORSEY & WHITNEY LLP

Counsel of Record 50 South Sixth Street

DORSEY & WHITNEY LLP Suite 1500

1031 West 4th Avenue Minneapolis, Minnesota 55402

Suite 600 (612) 340-2600

Anchorage, Alaska 99501 droske.tim@dorsey.com

(907) 276-4557

lindemuth.jahna@dorsey.com

demarest.katherine@dorsey.com

Counsel for Amici Curiae

See

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

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................... ii

INTERESTS OF THE AMICI CURIAE .......... 1

SUMMARY OF ARGUMENT .................. 2

SE, Bk vies Khe bb ee une tne sce beensenss 5

IT.

THE NINTH CIRCUITS UNPRECEDENTED

READING OF ANILCA SECTION 103(c)

IMPROPERLY EXTENDS FEDERAL

REGULATORY AUTHORITY OVER

MILLIONS OF ACRES OF NATIVE

CORPORATION LANDS ................ 5

A. Land Ownership in Alaska ............ 5

oi ck bas née seen eeseebes 9

i ee ee eas olde oe 10

D. Effects of the Ninth Circuit’s Ruling ... 10

SECTION 103(c) OF ANILCA DIRECTLY

PROHIBITS NPS FROM EXERCISING

REGULATORY CONTROL OVER NATIVE

CORPORATION, STATE, AND PRIVATE

LAND THAT IS LOCATED WITHIN THE

MAPPED BOUNDARIES OF AN ALASKA

CSU, THUS RENDERING NPS

REGULATIONS INAPPLICABLE ON SUCH

DEY i454 54005440040 400 000 0058 0d0% 15

A. The Plain Text of Section 103(c)

Unambiguously Precludes NPS

Enforcement over Native Corporation,

State, and Private Lands ............ 16

III.

. The Legislative History Confirms this

li

B. The Structure and Context of ANILCA as

a Whole Reinforce the Plain Meaning of

re eae e rege resek 4 21

ee hi cs 6 hehe ee ee es

. The Unambiguously Expressed Intent of

Congress Forecloses NPS Regulation of

Native Corporation, State, and Private

EE THEE cccccccvccceccess 26

NO CONSTITUTIONAL BASIS EXISTS

FOR THE BROAD REGULATORY POWER

THE NINTH CIRCUIT FOUND IN

SECTION 103(c) OF ANILCA ........... 27

SEE ca cecernerksavedsecnencenies

iil

TABLE OF AUTHORITIES

CASES

Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.,

es cite neeukw enn 15, 16

City of Saint Paul v. Evans,

344 F.3d 1029 (9th Cir. 2003) ............... 7

Clark v. Martinez,

CE +. 6 cane obeendeseses 31, 32

FDA v. Brown & Williamson Tobacco Corp.,

Pe WP EPG cece ccccccccvecs 15, 16, 25

Free Enter. Canoe Renters Ass’n of Mo. v. Watt,

711 F.2d 852 (8th Cir. 1983) ............... 29

Gonzales v. Oregon,

EG CED cn vccdevececsccesecess 16

Hawaii v. Office of Hawaiian Affairs,

i ss ad wseececeseeers 16

Kansas v. Colorado,

i ee ed egw ene wee dues 29

King v. Burwell,

eR rrr 16

Kleppe v. New Mexico,

ED voc eeewecceesusecess 29

Loughrin v. United States,

IE 6 ov occa canscunceose das 19

New England Power Co. v. New Hampshire,

Sn a 30

iv

Sosa v. Alvarez-Machain,

a eng eae 19

Sturgeon v. Masica,

768 F.3d 1066 (9th Cir. 2014) ........... 13, 30

Trs. For Alaska v. State,

736 P.2d 324 (Alaska 1987) ................. 6

United States v. Lindsey,

566 F.3d & (Sth Cir. 1978) ......... cc ccnees 29

United States v. Santos,

i Te eee eneneececeees 32

CONSTITUTION AND STATUTES

US. Const. art. 1, $8, cl.3 ........... 4, 28, 30, 32

U.S. Const. art. IV, §3,cl.2 .......... 4, 28, 29, 30

es ep eena een 28

Alaska National Interest Lands Conservation Act of

1980, Pub. L. No. 96-487, 94 Stat. 2371, (codified

at 16 U.S.C. § 310let seq.) ............ passim

CK eee ee re 7, 22

EE oi ccoenncenencctss 2,7, 22

ED ns 4b co ncceerccveseas 2, 7, 22

TTR Tee 2, 7, 22, 23

eS 7, 19, 20

16 U.S.C. § 3102(3) .............. 7, 18, 19, 20

Be CA ED pee ccccscncvesves 8, 18, 20

Se EE 62 ce cceesesaccucees passim

TEE 6 sc bd nds s0 ane sceeweses 2

DPC EEE 5 sce ccewenevens 2, 7, 23, 31

PEED bp been cepesecceanes 2, 7, 23

re 2, 7, 24

i 4 ich ake ckcnkv abe whueend 16

Lice reeeed oe Ceaeeee aus aeks 24

in ¢ nde wd veeceee ne asees 16

EY v-s0. sexe vebeus ets Gsdees 24

nici ds pe kueesseatswaeuads 31

Alaska Native Claims Settlement Act of 1971 , Pub.

L. No. 92-203, 85 Stat. 688 (codified at 43 U.S.C.

RRA ornare arene irae passim

ANCSA § 2(a), 43 U.S.C. § 1601(a) ........... 6

ANCSA § 2(b), 43 U.S.C. § 1601(b) .......... 12

ANCSA § 7, 43 U.S.C. § 1606 ............... 6

re 7,14

Se ED 5 boot <eensnes cones 7,14

ANCSA § 8, 43 U.S.C. § 1607 ............. 6, 7

ANCSA § 12, 43 U.S.C. § 1611 .............. 7

ANCSA § 14, 43 U.S.C. § 1613 .............. 7

vl

Alaska Statehood Act, Pub. L. No. 85-508, 72 Stat.

339 (1958), reprinted in 48 U.S.C. ch. 2, refs. &

I gg. ccc cncescenccccess 6

REGULATIONS

PUT ED gos ve cdccceuicseuee'ss 28

ED vg is Ga eus oe naketeeeedu en 28

ns chase ae wane Weeden da 4, 28, 34

ad Oe Meee ek cakes ou 11

aS sa waeie a us aa 11

I eh er Oh Se ce af 11

AIS ERG NRA FEN reg eed Acme OE 11

ED ss eS ooh bo hk oa eee eae ees 11

ee ee a als ale ae eae 12

EE ag ee rea rae 11,13

NS aioe ke aCe a tien ei ile 29

vei cia SG ieee kebeacat aes wees 11

Ge a Ok ake ogg al a 11

cok acdc Ue ewan Dkk aati b ewes 12

ee a aa ees ee it elas iol 12

A. owes we Poses loses wees 11

ee ee en oo gir aad 11

i ee De i a ae ee te 11

Pe <cleatnbineusGe dv wautebebans 12

sans anak eeeds bed ia whew eee ens 11

ne CCL Shea phe wd eke wet 13

I ded hs kb uke enh eo0 dae «cbs 12

a nnd iy cheek ee ed ed ae OES 12

OTHER AUTHORITIES

80 Fed. Reg. 65572 (Oct. 26, 2015) ............. 13

S. Rep. No. 96-413 (1979), as reprinted in 1980

IS nod oc 6eeuew se newesesces 26

1

INTERESTS OF THE AMICI CURIAE

Arctic Slope Regional Corporation (“ASRC”), Cook

Inlet Region, Inc. (“CIRI”), and Salamatof Native

Association, Inc. (“SNAI”) (collectively, “amici”) submit

this brief as amici curiae in support of Petitioner and

reversal of the Ninth Circuit’s opinion in Sturgeon v.

Masica (No. 14-1209). ASRC and CIRI are two of

Alaska’s twelve private, for-profit, Alaska Native

regional corporations formed under the Alaska Native

Claims Settlement Act of 1971 (“ANCSA”), Pub. L. No.

92-203, 85 Stat. 688 (codified at 43 U.S.C. § 1601 et

seq.). SNAI is an ANCSA village corporation within

the Cook Inlet region.

ASRC, Alaska’s largest locally owned business, is

owned by approximately 13,000 Ifupiat Eskimo

shareholders, most of whom reside in Alaska’s North

Slope region. CIRI, the regional corporation for the

Southcentral region of the State including the city of

Anchorage, is owned by a diverse group of 7,300 Alaska

Native shareholders from more than six different

Native groups. Amici own significant ANCSA lands

within the outer boundaries of federal conservation

system units (“CSUs”).

‘In accord with Supreme Court Rule 37.6, amici affirm that no

counsel for a party authored this brief in whole or in part and no

such counsel or party made any monetary contribution intended to

fund the preparation or submission of this brief. Counsel of record

for all parties received timely notice of amici’s intention to file this

brief, and consent to file was granted by all parties. Letters

reflecting the parties’ consent to the filing of this brief have been

filed with the Clerk.

2

Through the Alaska National Interest Lands

Conservation Act of 1980, (“ANILCA” or the “Act”),

Pub. L. No. 96-487, 94 Stat. 2371 (codified at 16 U.S.C.

§ 3101 et seq.), Congress balanced the conservation

interests of the federal government with the economic

development and subsistence interests of ANCSA

corporations like ASRC and CIRI. The Ninth Circuit

expanded federal regulatory authority over Native

corporations’ lands through a contorted misreading of

the very provision in ANILCA meant to limit that

authority. This ruling dramatically upsets the balance

Congress struck in ANILCA, undermining the purpose

of ANCSA to the great detriment of amici’s

shareholders and those of their fellow Native

corporations.

SUMMARY OF ARGUMENT

Congress, in its passage of ANILCA, made clear

that its purpose was to balance conservation interests

with the preservation of the subsistence way of life for

its rural residents, with a particular focus on Alaska

Natives. See 16 U.S.C. §§ 3101(b)-(c), 3111(1).

Although these interests swept broadly, Congress was

clear that ANILCA would accomplish its goals through

the expansion of, and regulation of, “public lands,” i.e.

federal lands (expressly excluding State and Native

corporation lands). See, e.g., 16 U.S.C. §§ 3101(c)-(d),

3103(c), 3111(4)-(5), 3112. ANILCA was not intended

to regulate Native corporation (or State or private)

property falling within the geographically-drawn

boundaries of CSUs; rather, Congress was explicit that

only “public lands” within such boundaries were

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

ANILCA § 103(c), 16 U.S.C. § 3103(c).

3

Congress’s limitation in ANILCA to regulating only

“public lands” was critical to avoid undermining

ANCSA, enacted nearly ten years earlier in 1971.

Rather than placing lands in trust for Native people (as

was done in the lower 48 states), ANCSA created

Native corporations that would hold title to lands on

which they could maintain a subsistence way of life and

pursue economic development. Native Alaskans’

ability to pursue those interests on lands falling within

the geographically mapped areas of CSUs will be

completely frustrated if ANILCA is interpreted to

instead permit National Park Service (“NPS”)

regulation over their lands.

This case presents a straightforward issue of

statutory interpretation. The Ninth Circuit

misinterpreted ANILCA section 103(c) as an expansion

of federal regulatory authority over millions of acres of

private lands located within the boundaries of CSUs in

Alaska, rather than as the limitation Congress

intended. Section 103(c)’s plain language

unambiguously confirms that NPS’s_ regulatory

authority extends only to “public lands” owned by the

federal government, not to the private inholdings

owned by the Native corporations, the State, or other

private parties. The broader purpose, context, and

structure of ANILCA reinforce the plain meaning of

section 103(c), which is entirely consistent with

Congress’s focus in the rest of the Act upon regulating

the “public lands” in Alaska.

The Ninth Circuit’s interpretation of section 103(c)

unconstitutionally extends broad federal regulatory

authority over millions of acres of private lands without

a source of authority for such regulation under either

4

the Property Clause or the Commerce Clause. Both the

Ninth Circuit and the United States attempt to

sidestep this constitutional problem by focusing on the

particular hovercraft regulation at issue here and

relying on an asserted federal interest in navigable

waters. But the Ninth Circuit’s interpretation extends

far more broadly than navigable rivers. Both the

district court and the Ninth Circuit rejected the United

States’ invitation to decide this case by finding a

federal interest in the waters at issue sufficient to

justify the hovercraft regulation impacting John

Sturgeon. Before the lower courts decided this case,

NPS had never before interpreted its powers to allow

regulation of all State, Native corporation, or other

non-federal lands within the NPS boundaries. And the

NPS regulations themselves expressly state that they

do not generally apply on “non-federally owned lands

and waters or on Indian tribal trust lands located

within National Park System boundaries.” 36 C.F.R.

§ 1.2(b).

The district court and the Ninth Circuit both went

much further than NPS asked. Those courts

interpreted section 103(c) as a broad source of

authority to apply general NPS regulations to State,

Native corporation and private lands within the

boundaries of the CSUs. No constitutional basis

supports this broad, new grant of regulatory authority.

5

ARGUMENT

I. THE NINTH CIRCUIT’S UNPRECEDENTED

READING OF ANILCA SECTION 103(c)

IMPROPERLY EXTENDS FEDERAL

REGULATORY AUTHORITY OVER

MILLIONS OF ACRES OF NATIVE

CORPORATION LANDS.

The Ninth Circuit held that under section 103(c) of

ANILCA, federal CSU regulations of nationwide

applicability extend to State and privately owned

inholdings in Alaska’s national parks and refuges.

Eighteen million acres of land conveyed to Alaska

Native corporutions under ANCSA are profoundly

affected by this ruling.

A. Land Ownership in Alaska

Alaska’s primary resource is its land. At 365.5

million acres, Alaska is more than twice as large as

Texas. This vast terrain serves numerous local and

national interests and goals, including economic

development, energy security, environmental

conservation, and subsistence use. In service of these

goals, Congress has divided Alaska among three

primary landowners: the federal government, the

State itself, and the Alaska Native corporations.

Together they hold over ninety-nine percent of Alaska;

less than one percent of the state is held in traditional

private ownership.”

* A Department of the Interior map showing the State, Native

corporation, and different categories of federal government lands

in Alaska is available at http://www.asrc.com/lands/Pages/alaska

%20maps.aspx.

6

A fundamental purpose of Congress’s land

conveyances to the State and Native corporations was

to ensure their respective economic development and

social well-being, and Alaskans’ subsistence way of life.

The Statehood Act, for its part, was enacted in 1958,

and gave twenty-eight percent of Alaska’s total area to

the new state in order to “ensure [its] economic and

social well-being ... .”’ Trs. For Alaska v. State, 736

P.2d 324, 335 (Alaska 1987). Land owned by the State

of Alaska approximates the State of California in size.

The Statehood Act reserved the issue of aboriginal

land claims of Alaska’s indigenous people. Congress’s

passage of ANCSA in 1971 expressly resolved those

claims. ANCSA addressed the “need for a fair and just

settlement of all claims by Natives and Native groups

of Alaska, based on aboriginal land claims.” ANCSA

§ 2(a}, 43 U.S.C. § 1601(a). The statute created twelve

for-profit regional corporations and more than two

hundred village corporations in the State and made

Alaska’s Native people shareholders in those

corporations. See ANCSA §§ 7-8, 43 U.S.C. §§ 1606-

1607.

ANCSA called for conveyance of approximately 44

million acres of federal land to Alaska Native regional

and village corporations, making the Native

corporations as a group the third-largest landowner in

* Alaska Statehood Act, Pub. L. No. 85-508, 72 Stat. 339 (1958),

reprinted in 48 U.S.C. ch. 2, refs. & annots., as amended; Trs. for

Alaska v. State, 736 P.2d 324, 337 (Alaska 1987) (explaining that

Congress’s debates show it “recognized the financial burden

awaiting the new state” and that “the large statehood land grant

and the grant of the underlying mineral estate were seen as

important means by which the new state could meet that burden”).

7

the State. See ANCSA §§ 12, 14, 43 U.S.C. §§ 1611,

1613. Congress specifically intended the Native

corporations to use their ANCSA lands largely for

economic development benefiting the Native people of

Alaska. See ANCSA § 8, 43 U.S.C. § 1607; City of Saint

Paul v. Evans, 344 F.3d 1029, 1031 (9th Cir. 2003).

And ANCSA provided that Native people statewide

would benefit economically from the wealth-producing

lands conveyed to all Native corporations, specifically

including a structure through which the different

corporations would share their profits. ANCSA § 7(i)-

(j), 43 U.S.C. § 1606(i)-(j).

Nearly ten years after passing ANCSA, Congress

enacted the Alaska National Interest Lands

Conservation Act of 1980. The purpose of ANILCA was

two-fold: to preserve the natural landscapes in Alaska

and its wildlife, while also allowing rural residents to

maintain their subsistence way of life. 16 U.S.C.

§ 3101(b)-(c). Congress was clear that ANILCA was not

intended to impede upon Native corporations’ or the

State’s control of their own lands conveyed under

ANCSA and the Statehood Act. Rather, Congress

repeatedly emphasized in ANILCA that regulation

under that Act was to be limited to “public lands,”

which were by definition specifically limited to “Federal

lands” in Alaska (specifically excluding certain State

and Native corporation lands). See 16 U.S.C. § 3102(2)-

(3) (definitions of “public lands” and “Federal land”); see

also 16 U.S.C. §§ 3101(d), 3103(c), 3111(4)-(5), 3112 (all

making express that federal regulation was to be

limited to “public lands”). ANILCA established “units”

which would be federally regulated as new or expanded

national parks, preserves, monuments or wildlife

refuges. See 16 U.S.C. § 3101(a). These newly

8

expanded areas were to be reflected on maps with

boundaries drawn to “follow hydrographic divides or

embrace other topographic or natural features.” 16

U.S.C. § 3103(b). But Congress made clear that though

mapping the boundaries in this way would encompass

certain Native corporation and State lands, only the

“public lands” within such boundaries would “be

deemed to be included as a portion of such unit.” 16

U.S.C. § 3103(c).

Over 120 million of Alaska’s federally owned acres

are now protected within federal CSUs. These include

fifteen national parks, preserves, and monuments

managed by NPS and sixteen national wildlife refuges

managed by the United States Fish and Wildlife

Service, most of which were created or expanded by

ANILCA. The ANILCA-created federal CSUs

ultimately engulfed over eighteen million acres of

ANCSA corporation-owned land—vast islands of

private land within CSUs.* Eleven of Alaska’s twelve

regional corporations and many of its over 200 village

corporations own inholdings within ANILCA CSUs,

and many Native people live on these lands in rural

villages.

These eighteen million acres of ANCSA inholdings,

over forty percent of all ANCSA lands, may now be

subject to NPS regulations under the Ninth Circuit’s

decision. The Ninth Circuit’s contortion of section

* Many hundred private homestead sites were also engulfed by

federal conservation lands under ANILCA. These private

landowners are unlikely to muster the resources to make

themselves heard in this Court, but their interests are markedly

affected by the Ninth Circuit’s ruling as well.

9

103(c) of ANILCA expanded federal regulatory

authority over Native corporations’ lands through the

very provision meant to limit that authority. This

ruling dramatically upsets the balance Congress struck

in ANILCA, undermining the purpose of ANCSA to the

great detriment of the Native corporations’

shareholders.

B. ASRC Lands

ASRC holds title to nearly five million acres of

ANCSA land in the northernmost part of the state,

known as the “North Slope” of the Brooks Mountain

Range. Its shareholders live primarily in eight

extremely remote arctic villages in one of the most

isolated and challenging environments in the world.

More than 380 thousand of ASRC’s acres are

“inholdings” situated within the Gates of the Arctic

National Park, the Alaska Maritime National Wildlife

Refuge, and the Arctic National Wildlife Refuge

(“ANWR”), all federal CSUs created or expanded by

ANILCA.

ASRC’s inholdings are home to many ASRC

shareholders residing in two villages located on its

inholdings within CSUs—Anaktuvuk Pass within

Gates of the Arctic National Park and Kaktovik on the

coastal plain within ANWR. These inholdings are

necessary to ASRC’s shareholders for subsistence use

and economic development. The health of, and access

to, caribou herds, fish, water fowl, Dall sheep, musk

oxen, marine mammals, ¢nd other subsistence food

populations are critically important to ASRC’s people.

Many of the inholding acres also have high potential

for oil and gas development, other mineral

development, tourism, and other economic uses.

10

C. CIRI Lands

CIRI owns well over a million acres of surface and

subsurface land, both inside and outside CIRI’s

Southcentral Alaska region. Over its history, CIRI has

paid more than one billion dollars in dividends and

distributions to its shareholders, largely due to its rich

land resources. Those lands include nearly sixty

thousand acres of subsurface inholdings within Lake

Clark National Park. The ANCSA village corporations

in CIRI’s region own significant surface acreage in

Lake Clark National Park, lands with significant

potential for tourism development. CIRI also holds

nearly 200 thousand acres of oil and gas producing

subsurface estate within the Kenai National Wildlife

Refuge. Village corporations in the CIRI region

similarly hold surface and subsurface interests in the

Kenai National Wildlife Refuge.*° Due to the relatively

heavy development in its region of the State and other

factors, CIRI has remaining land entitlements to select,

forty-four years after the passage of ANCSA. CIRI is

unique among the ANCSA corporations in this respect,

and the Ninth Circuit’s decision has _ serious

implications for CIRI’s future selections.

D. Effects of the Ninth Circuit’s Ruling

Federal regulatory authority over ANCSA lands is

an issue of tremendous economic and social importance

to Alaska Native corporations, and ASRC and CIRI in

particular. Moreover, given oil and natural gas

* Amicus SNAI is one of the six Village Corporations associated

with Regional Corporation CIRI. It owns significant surface lands

in CSUs to which CIRI owns the subsurface interest.

11

development possibilities on some of the affected State

and Native-owned lands, the decision also has potential

nationwide consequences.

In national parks, human activity is intensely

regulated for the purpose of protecting wildlife and the

scenic wilderness character of the parks. Endless

aspects of the use of the land are covered by the Code

of Federal Regulations. Under the Ninth Circuit’s

reading of ANILCA, forty percent of private ANCSA

lands may now be subject to this vast regulatory

scheme. Innumerable activities integral to economic

and social life on inholdings can fall within the

regulatory ambit of the federal government.

The day-to-day consequences of applying the

general NPS regulations to private inholdings would be

stunning. Buildings may not be constructed in national

parks without advance approval from the federal

government. 36 C.F.R. § 5.7. Hunting and fishing on

park lands are subject to extensive restrictions and

permitting requirements. Id. §§ 2.1(a)(1), 2.2, 2.3.

Camping is limited to designated areas; levelling

ground or altering a site to make it more suitable for

camping is prohibited. Jd. § 2.10. Even gathering

berries requires written findings from a _ park

superintendent. Id. § 2.1(c)(1). Modes of

transportation critical in rural Alaska such as

snowmobiles, ATVs, watercraft, and even bicycles, are

all limited to locations approved by the park service.

Id. §§ 1.4(a) (definitions of “vehicle” and “vessel”), 2.18,

3.8, 4.10, 4.30. Aircraft—another critical aspect of

access to rural Alaska communities—may be used only

in designated locations and by permit. Jd. § 2.17.

12

Commercial activities are circumscribed and

regulated. Id. § 5.3. Research may be conducted only

by specific institutions and agencies and only under the

regulatory watch of the park service. Jd. § 2.5. Public

meetings, demonstrations and distribution of printed

materials all require permits and federal government

oversight. Jd. §§ 2.50, 2.51, 2.52.

The Ninth Circuit’s ruling will impede any efforts

by ANCSA shareholders to develop their Native

corporation lands within the geographical boundaries

of a national park for ecotourism, either in the form of

lodges or even through modest endeavors like providing

basic trails, tent sites, and hiking permits to visitors.

Buildings, trails, or roads of any kind potentially may

not be constructed without permission under NPS

regulations. Businesses in Native villages may be

required to seek permits from federal agencies in order

to do business. The result will fundamentally frustrate

“the real economic and social needs of Natives” which

were of fundamental concern to Congress in ANCSA.

ANCSA § 2(b), 43 U.S.C. § 1601(b).

The Ninth Circuit’s distinction between nationwide

and Alaska-specific regulations, applying the former

but not the latter on inholdings, leads to even more

absurd results. Subsistence use is_ specifically

permitted in many Alaska CSUs, including the use of

subsistence cabins, see, e.g., 36 C.F.R. §§ 13.160,

13.410, but subsistence use is generally not allowed

under the nationwide regulations. Applying

nationwide regulations on the inholdings, as the Ninth

Circuit’s interpretation requires, means that NPS could

forbid Native hunters from using their ATVs or

snowmobiles to carry game back to the village. But on

13

most Alaska National Parks themselves, less

restrictive Alaska-specific park regulations that the

Ninth Circuit has held would be inapplicable to Native

corporation lands within national parks, often permit

such travel. Similarly, under the nationwide

regulations that the Ninth Circuit has applied to

inholdings, camping is generally restricted to

designated areas; in Alaska parks, it is generally

allowed. Compare id. § 2.10, with id. §13.25. Many

more examples exist.

NPS, in an effort to minimize the broad effect of the

Ninth Circuit’s holding, has recharacterized the Ninth

Circuit’s decision, asserting that it does not serve “to

extend the gamut of parks regulations to privately

held, state-held, and Native-held inholdings.” U.S.

Cert. Opp. 22. But the government’s narrow

characterization does not square with the Ninth

Circuit’s decision itself or the broad license NPS has

already taken as a result of that decision. Just two

months after the filing of the Solicitor General’s Brief

in Opposition to a grant of certiorari in this case, NPS

expressly relied on the Ninth Circuit’s decision in a

proposed rule seeking to extend federal oil and gas

permitting regulations to previously exempt Native-

owned lands within the boundaries of CSUs in Alaska.

80 Fed. Reg. 65572, 65572-65573 (Oct. 26, 2015) (“We

also note that because these regulations are generally

applicable to NPS units nationwide and to non-federal

interests in those units, they are not ‘applicable solely

to public lands within [units established under

ANILCA,]’ and thus are not affected by section 103(c)

of ANiLCA. See Sturgeon v. Masica, 768 F.3d 1066,

1077-78 (9th Cir. 2014).”).

14

This proposed rule makes clear that the Ninth

Circuit’s ruling is not limited to hovercraft regulation

of navigable waters over submerged land owned by the

State. Instead, NPS views the ruling as a license to

regulate oil and gas permitting over Native

corporations’ lands within the geographical boundaries

of CSUs, the very sort of economic development that

Congress recognized in ANCSA was vital to Native

corporations. Despite NPS protestations to the

contrary in briefing to this Court, the Ninth Circuit’s

decision grants NPS broad discretion to extend

regulatory authority to millions of acres of Native

corporation, State and private lands.

Taking a vast federal regulatory regime aimed at

public land conservation and enforcing it on private,

ANCSA land undermines the purposes of both ANCSA

and ANILCA, to the detriment of amici and all

Alaskans. ANCSA lands were granted to Alaska’s

Native people so that they may freely live, work, and

engage in subsistence activity and commerce there.

And of course, part of Alaska’s oil and other mineral

wealth was specifically granted to ANCSA corporations

in order to ensure the economic stability of Alaska’s

Native people. The land wealth held by ASRC and

CIRI benefits not only their own shareholders, but

Alaska Native people statewide through the revenue

sharing provisions of ANCSA. ANCSA § 7(i)-(j), 43

U.S.C. § 1606(i)-(j).

15

Il. SECTION 103(c) OF ANILCA DIRECTLY

PROHIBITS NPS FROM EXERCISING

REGULATORY CONTROL OVER NATIVE

CORPORATION, STATE, AND PRIVATE

LAND THAT IS LOCATED WITHIN THE

MAPPED BOUNDARIES OF AN ALASKA

CSU, THUS RENDERING NPS

REGULATIONS INAPPLICABLE ON SUCH

LANDS.

The District Court and Ninth Circuit both erred in

their interpretation of the scope of NPS regulatory

control accorded by ANILCA over Native corporation,

State, and private land. Both courts myopically

focused upon “the second sentence of §103(c) [as]

dispositive in this case,” Pet. App. 56a, and then found

that the meaning of the statute turned upon a single

word in one phrase of that second sentence: “The plain

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

‘regulai ons applicable solely to public lands within

[CSUs].” Pet. App. 25a (quoting 16 U.S.C. § 3103(c)

(emphasis and alteration added by Ninth Circuit)).

This approach blatantly disregards this Court’s

instruction under Chevron to determine “whether

Congress has directly spoken to the precise question at

issue,” in which case the court “must give effect to the

unambiguously expressed intent of Congress.” FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 121,

125 (2000) (quoting Chevron U.S.A. Inc. v. Nat. Res.

Def. Council, Inc., 467 U.S. 837, 842-43 (1984)).°

®° Because the statutory text is unambiguous, NPS’s invitation for

this Court to apply Chevron deference is misplaced. Congress has

“directly spoken to the precise question at issue” in both the

statute itself and in the legislative history as discussed herein.

16

Rather, “[iJn determining whether Congress has

specifically addressed the question at issue, a

reviewing court should not confine itself to examining

a particular statutory provision in isolation. The

meaning—or ambiguity—of certain words or phrases

may only become evident when placed in context.” Id.

at 132; King v. Burwell, 135 S. Ct. 2480, 2489 (2015)

(same). When “deciding whether the language is

plain,” words must be read “in their context and with

a view to their place in the overall statutory scheme.”

Burwell, 135 S. Ct at 2489 (quoting Brown &

Williamson, 529 U.S. at 133). The Ninth Circuit’s

isolation of the word “solely” within the second phrase

of the second sentence of section 103(c) incorrectly

ignored that principle.

A. The Plain Text of Section 103(c)

Unambiguously Precludes NPS

Enforcement over Native Corporation,

State, and Private Lands.

“(Blegin[ning], as always, with the text of the

statute,” Hawaii v. Office of Hawaiian Affairs, 556 U.S.

163, 173 (2009) (internal quotation omitted), section

103(c) of ANILCA provides as follows:

Chevron, 467 U.S. at 842. Further, to receive deference, “the rule

[in question] must be promulgated pursuant to authority Congress

has delegated to [an] official.” Gonzales v. Oregon, 546 U.S. 243,

258 (2006). But ANILCA grants NPS the authority to administer

only “units of the National Park System,” ANILCA §§ 201-203; see

also 16 U.S.C. § 3202, not State, Native corporation, or private

land. Chevron deference cannot be used to expand federal

regulatory authority not found in a statute.

17

(c) Lands included within unit; acquisition

of land by Secretary

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 lands

shall become part of the unit, and be

administered accordingly.

16 U.S.C. § 3103(c). All three sentences, not just the

second clause in the second sentence, bear on the issue

of NPS’s authority over Native Corporation, State, and

private lands.

The first sentence alone draws a clear distinction

between those lands that are, and those lands that are

not, subject to NPS authority under the Act: “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.” 16 U.S.C. § 3103(c) (emphasis

added). In other words, even though Congress directed

that the boundaries of the maps showing “each change

in land management status effected by this Act... .

[wlhenever possible . . . shall follow hydrographic

divides or embrace other topographic or natural

18

features,” 16 U.S.C. § 3103(b), the actual lands

“deemed to be included” as part of the CSUs, and thus

“effected by this Act,” were limited to the “public lands

(as such term is defined in this Act)” that fell within

those boundaries. Jd. § 3103(b)-(c). By necessary

implication, lands falling outside the statutory

definition of “public lands,” but that nonetheless fell

within the mapped boundaries of a CSU, are not part

of that CSU. Those lands thus are not subject to any

NPS regulation—whether of general applicability to

National Parks or the CSUs in particular—because

they are not subject to any “change in land

management status effected by [the] Act.”

The term “public lands (as such term is defined in

this Act),” is expressly defined as follows:

(3) The term “public lands” means land situated

in Alaska which, after December 2, 1980, are

Federal lands, except—

(A) land selections of the State of Alaska

which have been tentatively approved or

validly selected under the Alaska Statehood

Act and lands which have been confirmed to,

validly selected by, or granted to the

Territory of Alaska or the State under any

other provision of Federal law;

(B) land selections of a Native Corporation

made under the Alaska Native Claims

Settlement Act [43 U.S.C. 1601 et seq.] which

have not been conveyed to a Native

Corporation, unless any such selection is

determined to be invalid or is relinquished;

and

19

(C) lands referred to in section 19(b) of the

Alaska Native Claims Settlement Act [43

U.S.C. 1618(b)].

16 U.S.C. § 3102(3). Correspondingly, “[t]he term

‘Federal land’ means lands the title to which is in the

United States after December 2, 1980.” 16 U.S.C.

§ 3102(2). Thus, under the first sentence in section

103(c), the only lands within the mapped boundaries of

CSUs that are actually “deemed to be included as a

portion of such unit,” are lands whose title is in the

United States after December 2, 1980, expressly

excepting certain lands referred to and selected under

ANCSA and certain State of Alaska lands and land

selections.

The second sentence in section 103(c) provides: “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.” A

“cardinal principle of interpretation” requires courts to

“give effect, if possible, to every clause and word of a

statute.” Loughrin v. United States, 134 S. Ct. 2384,

2390 (2014). And it is likewise axiomatic that “when

the legislature uses certain language in one part of the

statute and different language in another, the court

assumes different meanings were intended.” Sosa v.

Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004).

Given these principles, the first clause in section

103(c)’s second sentence requires attention—“|n)o lands

which, before, on, or after December 2, 1980, are

conveyed to the State, to any Native Corporation, or to

any private party”—and cannot simply be glossed over

and ignored as the Ninth Circuit did here. See Pet.

20

App. 23a-25a. Notably, this first clause does not

simply refer to “ponpublic lands” but instead sweeps

broadly and expressly delineates those lands that are

to be treated as nonpublic. It does so by being more

expansive as to time than the definitions of “public

land” and “Federal land,” referring to lands “before, on,

or after December 2, 1980,” rather than only lands

“after December 2, 1980.” Compare 16 U.S.C.

§ 3103(c), with § 3102(2)-(3). Viewed in context, section

103(c)’s second sentence makes explicit that lands

“conveyed to the State, to any Native Corporation, or to

any private party” at any time are not “subject to the

regulations applicable solely to public lands within

such units.” These lands fall within the class that,

under section 103(c)’s first sentence, is not “public

land{)” and indeed is not even “deemed to be included

as a portion of such unit.” As such, these lands

underwent no “change in land management status

effected by this Act.” See 16 U.S.C. § 3103(b). They are

not subject to NPS’s regulatory authority.

In this context, the meaning of the word “solely”

becomes clear. “Solely” was included to differentiate

between federal NPS regulations applicable solely on

“public lands”—the only lands deemed to be part of the

newly established units—and federal regulations

applicable to public and private lands alike, such as

those under the Clean Air Act or the Water Pollution

Control Act. If the word “solely” were omitted and

section 103(c) instead provided that no State, Native

Corporation, or private lands “shall be subject to the

regulations applicable to public lands within such

units,” the section would exempt those lands from EPA-

regulated acts like the Clean Air Act and Water

Pollution Control Act. “Solely” was inserted to make

21

clear that although the newfound authority granted to

NPS over “public lands” in CSUs does not extend to

State and private land, other preexisting federal

authority over those lands remained.

Consistent with the first two sentences, the third

sentence of section 103(c) addresses what occurs if such

land is conveyed to the Secretary of the Interior: “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 lands shall become part of the unit,

and be administered accordingly.” This sentence

reinforces the plain meaning of the first two sentences

summarized above. Only upon conveyance to the

Secretary do “such lands . . . become part of the unit,

and be administered accordingly.” But while such

lands are held by a Native Corporation (or the State or

other private owner), they are not part of the CSU, and

are not subject to NPS administrative authority.

B. The Structure and Context of ANILCA

as a Whole Reinforce the Plain Meaning

of Section 103(c).

Examining the broader purpose, context, and

structure of the Act confirms this interpretation—that

only “public lands” are part of CSUs and thus subject

to NPS regulation, while all lands conveyed to Native

Corporations (as well as to the State and private

parties) are not part of CSUs and are thus not subject

to NPS regulation. Congress’s purpose behind the Act

was two-fold. On the one hand, it was “the intent of

Congress in this Act to preserve unrivaled scenic and

geological values associated with natural landscapes,”

as well as maintain wildlife and preserve wilderness

22

resource values and recreational opportunities. 16

U.S.C. § 3101(b). And on the other, it was “further the

intent and purpose of this Act . . . to provide the

opportunity for rural residents engaged in a

subsistence way of life to continue to do so.” 16 U.S.C.

§ 3101(c).

Critically, Congress was clear that it intended to

advance these purposes through the regulation of

“public lands” and establishment of conservation

system “units.” The very first provision in the Act

makes this evident: “In order to preserve for the

benefit, use, education, and inspiration of present and

future generations certain lands and waters in the

State of Alaska .. . the units described in the following

titles are hereby established,” i.e., the CSUs. 16 U.S.C.

§ 3101(a) (emphasis added). Congress’s statement of

purpose also made clear that the Act obviated the need

for future legislation:

This Act provides sufficient protection for the

national interest in the scenic, natural, cultural

and environmental values on the public lands in

Alaska, and at the same time provides adequate

opportunity for satisfaction of the economic and

social needs of the State of Alaska and its

people; accordingly, the designation and

disposition of the public lands in Alaska

pursuant to this Act are found to represent a

proper balance between the reservation of

national conversation system units and those

public lands necessary and appropriate for more

intensive use and disposition, and thus Congress

believes that the need for future legislation

designating new conservation system units, new

23

national conservation areas, or new national

recreation areas, has been obviated thereby.

16 U.S.C. § 3101(d) (emphasis added).

Congress also made apparent its intent to limit

regulation to ‘public lands” through its finding and

declaration regarding subsistence management and

use. There, Congress “invokeld] its constitutional

authority over Native affairs and its constitutional

authority under the property clause and the commerce

clause to protect and provide the opportunity for

continued subsistence uses on the public lands by

Native and non-Native rural residents.” 16 U.S.C.

§ 3111(4). Congress likewise highlighted that the

national interest “require[s] that an administrative

structure be established for the purpose of enabling

rural residents who have personal knowledge of local

conditions and requirements to have a meaningful role

in the management of fish and wildlife and of

subsistence uses on the public lands in Alaska.” 16

U.S.C. § 3111(5) (emphasis added).

Congress’s emphasis upon cooperative agreements

further bolsters its intention that NPS would not have

direct regulatory authority over Native Corporation,

State, or private lands located within the geographical

boundaries of CSUs. The statement of policy in section

802 of the Act, for example, made clear that Congress’s

policy interest concerned “the public lands of Alaska,”

requiring that “Federal land managing agencies .. .

shall cooperate with adjacent landowners and land

managers, including Native Corporations, appropriate

State and Federal agencies, and other nations,” while

making clear that Congress’s emphasis was on “the

24

public lands in Alaska.” 16 U.S.C. § 3112; see also

ANILCA § 304(f)(1) (authorizing Secretary to enter into

cooperative management agreements in national

wildlife refuges).

The purpose, structure, and context of the Act

further confirm that Congress intended section 103(c)

to exclude nonpublic lands from all NPS regulation, not

just regulations specific to Alaska CSUs. Notably, the

next section in ANILCA after section 103(c) established

new “areas” “as units of the National Park System,” to

be administered under both the general laws governing

National Parks, as well as those specific to the CSUs

under ANILCA. ANILCA § 201 (“The following areas

are hereby established as units of the National Park

System and shall be administered by the Secretary

under the laws governing the administration of such

lands and under the provisions of this Act... .”).

Being excepted from inclusion as part of those newly

established units, as is the case for lands conveyed to

Native Corporations, the State, and private parties,

necessarily means that section 201 does not apply to

those lands. Correspondingly, those lands are then

excepted from both general and CSU-specific NPS

regulations. The Ninth Circuit’s contrary conclusion,

that section 103(c) exempts nori-federal land from only

“CSU-specific regulations” promulgated by NPS,

premised upon its narrow focus upon the word “solely,”

see Pet. App. 24a-25a, cannot be squared with the plain

text of section 103(c), particularly when interpreted

against this broader statutory backdrop of the Act as a

whole.

25

C. The Legislative History Confirms this

Plain Meaning.

Consultation of ANILCA’s legislative history is

hardly necessary to distill Congress’s express intent

that Native Corporation, State, and private party lands

falling within the mapped boundaries of CSUs are not

part of those units, and not subject to any NPS

regulation. But the legislative history fully reinforces

this meaning. See Brown & Williamson Tobacco, 529

U.S. at 146-47 (confirming Congress’s expressed intent

not to have the FDA regulate tobacco by observing that

“there is no evidence in the text of FDCA or its

legislative history that Congress in 1938 even

considered the applicability of the Act to tobacco

products”). To provide just one example, the Senate

Report provides as follows:

Those private lands, and those public lands

owned by the State of Alaska or a subordinate

political entity, 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 private or non-

Federal public lands. Federal laws and

regulations of general applicability to both

private and public lands, such as the Clean Air

Act, the Water Pollution Control Act, U.S. Army

Corps of Engineers wetlands regulations, and

other Federal statutes and regulations of

general applicability would be applicable to

private or non-Federal public land inholdings

within conservations [sic] system units, and to

such lands adjacent to conservation system

26

units, and are thus unaffected by the passage of

this bill.

S. Rep. No. 96-413, at 303 (1979), as reprinted in 1980

U.S.C.C.A.N. 5070, 5247. As this Report makes clear,

it is only those federal laws “unaffected by the passage

of this bill” that apply to non-federal lands within the

mapped boundaries of a CSU. See id. Thus, as

highlighted by the Senate Report, regulation by the

EPA under the Clean Air Act and Water Pollution

Control Act would still apply to those lands, as would

U.S. Army Corps of Engineers regulations over

wetlands. But what would not apply would be any

regulation by NPS, whether general to all National

Parks or specific to Alaska CSUs, because NPS’s

regulatory authority over CSUs is specifically created

by virtue of the Act.

D. The Unambiguously Expressed Intent of

Congress Forecloses NPS Regulation of

Native Corporation, State, and Private

Land Within CSUs.

For the reasons. stated above, Congress

unambiguously expressed its intent that Native

Corporation, State, and private land located within the

mapped boundaries of CSUs are not within such CSUs,

and not subject to any of NPS’s regulations. The NPS

hovercraft regulation at issue here, as well as all other

NPS regulations, are accordingly inapplicable and

unenforceable on lands conveyed to Native

Corporations, the State, or private parties.

27

Ill. NOCONSTITUTIONAL BASIS EXISTS FOR

THE BROAD REGULATORY POWER THE

NINTH CIRCUIT FOUND IN SECTION

103(c) OF ANILCA.

The constitutional avoidance canon of construction

further reinforces the proper construction of section

103(c). NPS argued that its federal interest in

navigable waters supports the hovercraft regulation.

But the Ninth Circuit’s ruling swept much further.

Declining the government’s invitation to rule based on

a federal interest in navigable waters, the Court

affirmed the district court’s reading that section 103(c)

supported regulation even if Alaska held full title to the

navigable rivers within the parks, unencumbered by

any federal interest in those rivers’ waters. Pet. App.

55a-57a. This interpretation of section 103(c) far

exceeds Congress’s constitutional authority in many

applications across most of the inholdings where the

section applies.

As NPS recognizes, the Ninth Circuit opinion does

not “resolve the constitutional avoidance arguments

that might be made concerning construction of [federal]

statutes, if NPS sought to regulate not navigable

waters, but private inholdings.” U.S. Cert. Opp. 22.

The breadth of the Ninth Circuit’s ruling, however,

requires consideration of the constitutional issues

implicated here.

As the United States has recognized, “{aJny such

regulation would have to rest on a grant of regulatory

power.” Jd. The National Park Service Organic Act

gives NPS authority to “[p]jromulgate and enforce

regulations concerning boating and other activities on

or relating to waters located within areas of the

28

National Park System, including waters subject to the

jurisdiction of the United States,” so long as those

regulations do not derogate the authority of the U.S.

Coast Guard. 16 U.S.C. § la-2(h) (emphasis added).

Acting under those authorities, NPS has adopted

regulations that apply to federally owned lands and

waters in the national parks, and to navigable waters

within national parks, but that do not generally apply

to privately held, State-held, or Native-held land

within park boundaries. The NPS regulations apply

within “(t]he boundaries of federally owned lands and

waters acministered by the National Park Service,”

and within the “[wJaters subject to the jurisdiction of

the United States located within the boundaries of the

National Park System, including navigable waters . . .

without regard to the ownership of submerged lands,

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

contrast, the regulations expressly state that they do

not generally apply on “non-federally owned lands and

waters or on Indian tribal trust lands located within

National Park System boundaries.” 36 C.F.R. § 1.2(b).

To put it bluntly, NPS has never before interpreted its

powers to allow NPS regulation of all Native

Corporation, State, or other non-federal lands within

CSU boundaries.

Any newfound regulatory authority in section 103(c)

must have a foundation in Congress’s powers under the

Constitution. Possible sources for such a power are the

Property Clause and the Commerce Clause. But

neither clause confers the breadth of legislative

authority that would be required to support the Ninth

Circuit’s broad grant of regulatory power over private

land.

29

The Property Clause is the source of broad

regulatory power over federal lands, including

conservation system units: “The Congress shall have

Power to dispose of and make all needful Rules and

Regulations respecting the Territory or other Property

belonging to the United States.” U.S. Const. art. IV,

§ 3, cl. 2. Under the Property Clause, “(t]he power over

the public land thus entrusted to Congress is without

limitations.” Kleppe v. New Mexico, 426 U.S. 529, 539

(1976) (alteration in original). This Court has

reiterated the “obvious” point that the “Property Clause

is a grant of power only over federal property’; it does

not generally reach private land. Id. at 537-38.’

Although this Court has not considered the issue,

some circuits have held that the Property Clause

supports limited regulation of non-federal lands to the

extent necessary to protect the federal lands.* But no

” See also Kansas v. Colorado, 206 U.S. 46, 89, 93 (1907) (“But clearly

{the Property Clause] does not grant to Congress any legislative

control over the states, and must, so far as they are concerned, be

limited to authority over the property belonging to the United States

within their limits.”).

® Free Enter. Canoe Renters Ass'n of Mo. v. Watt, 711 F.2d 852, 855-56

(8th Cir. 1983) (upholding permit requirement for canoe rental

business located on state or county lands to regulate how many

canoes were used in Ozark National Scenic Riverways); United States

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

Clause “grants to the United States power to regulate conduct on

non-federal land when reasonably necessary to protect adjacent

federal property or navigable waters,” and may require fire permits

for campfires on State-owned river beds). For an example of such a

regulation, see 36 C.F.R. § 2.13 (applying fire regulations to lands

within park boundaries “regardless of land ownership” so long as the

lands are “under the legislative jurisdiction of the United States”).

30

court has held that the Property Clause supports

general regulation of large swaths of non-federal lands

absent a showing that the specific regulation is

necessary for the protection of federal lands. Congress

has no Constitutional authority under the Property

Clause to extend broad general regulations—or even

narrow regulations unrelated to protection of federal

lands—to millions of acres of State and Native

Corporation lands.

Ducking this constitutional problem, the Ninth

Circuit cited Congress’s “pre-eminent authority” under

the Commerce Clause to regulate “the flow of navigable

waters,” where John Sturgeon operated his hovercraft.

Sturgeon v. Masica, 768 F.3d 1066, 1081 (9th Cir. 2014)

(quoting New England Power Co. v. New Hampshire,

455 U.S. 331, 338 n.6 (1982)). Similarly, NPS argues

only that “the United States retain[s] ‘a dominant

servitude’ in navigable waters, grounded in the

Commerce Clause,” and “has reserved water rights in

many navigable rivers within parks—including the

waters at issue here.” U.S. Cert. Opp. at 15.

But the Ninth Circuit’s decision is not limited to

federal interests in navigable waters. Rather, section

103(c) and NPS regulation of Native Corporation,

State, and private party land implicate the

constitutional issues expressly recognized by the

United States. See U.S. Cert. Opp. 22. These concerns

cannot be ignored (as the Ninth Circuit did, and the

United States urges the Court to do here) simply

because this suit addresses a hovercraft regulation that

could implicate some undefined and nonspecific federal

interest in navigable waters.

31

Rather, as this Court has emphasized, “when

deciding which of two plausible statutory constructions

to adopt,® a court must consider the necessary

consequences of its choice. If one of them would raise

a multitude of constitutional problems, the other

should prevail—whether or not those constitutional

problems pertain to the particular litigant before the

Court.” Clark v. Martinez, 543 U.S. 371, 380-81 (2005)

(footnote added). In other words, “(t]he lowest common

denominator, as it were, must govern.” Id. at 380.

Here, “the lowest common denominator” dictates that

section 103(c) must be construed as foreclosing any

regulation (whether general or specific to the CPU)

applicable to the “public lands” within a CSU by virtue

of ANILCA’s enactment, from being applied to Native

corporation, State, or private lands.

Congress expressly confirmed the constitutional

source of its power in its “Congressional declaration of

findings” regarding “Subsistence Management and

Use” in section 801 of ANILCA, recognizing that “it is

necessary for the Congress to invoke its constitutional

authority over Native affairs and its constitutional

authority under the property clause and the commerce

clause to protect and provide the opportunity for

continued subsistence uses on the public lands by

Native and non-Native rural residents.” 16 U.S.C.

§ 3111(4) (emphasis added). Critically, however,

Congress invoked its authority over Native affairs, and

* For the reasons stated above, the statute is unambiguous and can

be read only as a limit of federal power as argued by Petitioner and

amict. Although this canon of construction is generally invoked

when choosing between two plausible readings of an ambiguous

statute, the principle also reinforces the plain meaning here.

32

under the Property and Commerce clauses, only with

respect to regulations “on the public lands.” And by the

very terms of the Act, the “public lands” excluded lands

conveyed to Native Corporations and to the State. It

would thus be incongruous with the Act itself and

Congress’s constitutional powers for section 103(c) to be

interpreted to expand the government’s regulatory

reach over inholdings owned by Native corporations or

the State, which ANILCA makes clear are not “deemed

to be included as a portion of such [conservation

system] unit.”

This constitutional problem with the Ninth Circuit’s

interpretation cannot be simply brushed aside by

finding a Commerce Clause basis for reading the

statute as applied to Sturgeon or the facts of this case.

As this Court made clear in Clark, 543 U.S. at 381,

interpreting a statute differently in a facial versus an

as-applied constitutional challenge “misconceives—and

fundamentally so—the role played by the canon of

constitutional avoidance in statutory interpretation.”

This Court has emphasized that “the meaning of words

in a statute cannot change with the statute’s

application.” United States v. Santos, 553 U.S. 507,

522 (2008) (citing Clark, 543 U.S. at 378).

Even if hovercraft could constitutionally be excluded

from the State’s navigable waters, the Ninth Circuit

was required to consider the absence of any

constitutional basis for enforcing many general

regulations across inholdings. For example, NPS

regulates a broad array of activities including public

assembly and meetings, the leashing of pets, and many

others where regulation on private land would be

unsupportable by Congress’s commerce power.

33

To avoid this obvious issue with the Ninth Circuit’s

ruling, NPS attempts to recharacterize the Ninth

Circuit’s ruling as far more limited than it is. But both

the district court and Ninth Circuit rejected the federal

government’s alternative arguments based on a federal

interest in navigable waters sufficient to affirm the

application of the hovercraft regulation at issue in

Petitioner’s case. At the district court level, the federal

government failed to articulate any relationship

between a federal interest in the subject waters and the

hovercraft regulation at issue here. To avoid the

thorny and difficult legal issue of the competing and

conflicting state and federal interests in navigable

waters, the district court adopted an untenable

interpretation of section 103(c). Though that

interpretation is both unconstitutional and contrary to

long-standing agency understanding of agency power,

the Ninth Circuit affirmed it. The decision cannot

stand.

Section 103(c)’s language unambiguously clarifies

that Congress had no intent to grant broad, general

regulatory authority over inholdings. The Ninth

Circuit ignored this Court’s direction that it must

consider the wide array of unconstitutional results

flowing from its preferred interpretation of section

103(c). Interpreting the statute in accordance with its

plain meaning raises no constitutional concerns. The

doctrine of constitutional avoidance reinforces what the

plain text of section 103(c) and its surrounding

structure and purpose make clear—NPS regulations

(whether of general applicability or specific to Alaska

CSUs) do not apply to any Native corporation lands in

Alaska.

34

CONCLUSION

The Ninth Circuit incorrectly interpreted the plain

language in section 103(c) of ANILCA to expand federal

authority over non-federal inholdings, including

millions of acres of lands owned by Native corporation

amici. But the plain language unambiguously limits

federal authority to public lands, consistent with the

constitutional authority underpinning ANILCA. This

reading is confirmed by long-standing NPS regulations

confirming that such regulations generally do not apply

on “non-federally owned lands and waters or on Indian

tribal trust lands located within National Park System

boundaries.” 36 C.F.R. § 1.2(b). The Ninth Circuit’s

decision must be reversed so that Native corporations

and their shareholders remain free to pursue economic

development and subsistence activity—as well as

ordinary day-to-day life in Native villages—without

pervasive federal government regulatory intervention.

Amici ASRC, CIRI, and SNAI, join John Sturgeon, the

State of Alaska, and the other Alaska Native

Corporation amici in urging this Court to reverse the

Ninth Circuit’s decision.

November 23, 2015

35

Respectfully submitted,

Jahna M. Lindemuth

Katherine Demarest

Counsel of Record

DORSEY & WHITNEY LLP

1031 W. 4" Avenue, Suite 600

Anchorage, Alaska 99501

(907) 276-4557

lindemuth.jahna@dorsey.com

demarest.katherine@dorsey.com

Timothy J. Droske

DORSEY & WHITNEY LLP

50 South Sixth Street

Suite 1500

Minneapolis, Minnesota 55402

(612) 340-2600

droske.tim@dorsey.com

Counsel for Amici Curiae Arctic

Slope Regional Corporation, Cook

Inlet Region, Inc., and Salamatof

Native Association, Inc.