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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0549%3A09

## Record

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

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0549%3A09. Public record. Not legal advice.