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,

V.

SUE MASICA, IN HER OFFICIAL

CAPACITY AS ALASKA REGIONAL DIRECTOR

OF THE NATIONAL PARK SERVICE, et ai.,

Respondents.

°

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

S

BRIEF OF ARCTIC SLOPE REGIONAL

CORPORATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

°

JAHNA M. LINDEMUTH

KATHERINE DEMAREST

Counsel of Record

DorseY & WHITNEY LLP

1031 West 4th Avenue, Suite 600

Anchorage, Alaska 99501

(907) 276-4557

lindemuth.jahna@dorsey.com

demarest.katherine@dorsey.com

Counsel for Amicus Curiae

Arctic Slope Regional Corporation

COCKLE LEGAL BRIEFS (800) 225-6964

WWW COCKLELEGALBRIEFS.COM

Page

TABLE OF AUTHORITIES ..................ccccssesssseeeees ili

INTERESTS OF THE AMICUS CURIAE ............ 1

REASONS FOR GRANTING THE PETITION..... 2

I.

II.

i

TABLE OF CONTENTS

The Ninth Circuit’s Unprecedented Read-

ing of ANILCA Section 103(c) Extends Fed-

eral Regulatory Authority Over Millions of

Acres of Native Corporation Lands.............

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

Ba, | eI isn nsccccnrustiisdtniinindmaieninmamasee

This Case Presents an Important Federal

Question Affecting ASRC and its Share-

holders, Other Native Corporations, and

isc cniincsccnntaiinipinicanannnneen

A. Enforcement of CSU regulations on

ANCSA Corporation inholdings will dra-

matically impact economic development

and day-to-day life on Native Corpora-

i iinciintnceinsiitidanatesisiiaiitiensigiinen

B. Section 103(c) of ANILCA confirms

that federal regulatory authority does

not reach private and State land in-

holdings surrounded by federal conser-

TT iaiintiitatinticnhitiedspiinttlidamansininnss

C. No constitutional basis exists for the

broad regulatory power the Ninth Cir-

cuit found in section 103(c) of ANILCA ...

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13

13

16

20

25

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TABLE OF CONTENTS -— Continued

Page

APPENDIX

Department of the Interior — Alaska Land

EE achinsccccsnmascnnenteesspantinievssintnienmnnntins App. 1

ill

TABLE OF AUTHORITIES

Page

CASES

Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995)........... 22

City of Angoon v. Marsh, 749 F.2d 1413 (9th

Si TIT sctsincinniniteidianeaineshaetibiemeaniiiimamsiidainienin 17, 18

City of Saint Paul v. Evans, 344 F.3d 1029 (9th

8 ERT ee een ae 6

Clark v. Martinez, 543 U.S. 371 (20085) ................. 4, 20

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

rei Bs Ff Lo Be 21

Kansas v. Colorado, 206 U.S. 46 (1907).................0 21

Kleppe v. New Mexico, 426 U.S. 529 (1976)........... 4,21

Nevada v. Watkins, 914 F.2d 1545 (9th Cir.

chaired sititae dain ateecae iii naataciaibiatiiatameanidien 21

New England Power Co. v. New Hampshire,

EE SEIT siireicciisseniehiahinnionianiniiidinaiiabenpended 22

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

TESTES ARID acer Seo LONE one OA 22

Trs. for Alaska v. State, 736 P.2d 324 (Alaska

aah eating alia etti latices iabaaitienintd 5

United States v. Lindsey, 595 F.2d 5 (9th Cir.

Diciembre latina aiiaeiianiaramatiel 21

iv

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL PROVISIONS

Property Clause, U.S. Const. art. IV, § 3, cl. 2 ....20, 21

Commerce Clause, U.S. Const. art. I, § 8, cl. 3....20, 23

STATUTES

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.) ............. passim

ANCSA § 2(a), 43 U.S.C. § 1601(a) 000.000... eee eeeeeeeeees 6

ANCSA § 7, 43 U.S.C. § 160G................cccccccssssoceseees 6, 8

es Ge Ge OF TE cinciiticsicninceienstsiiinncenioesnitanninel 6

Se By MD Mes OF I cccincssicssccsncseccnnsnccssionesini 6

ANCSA § 14, 43 U.S.C. § 1613 ................ccccccssseccceeseeees 6

ANCSA § 22(g), 43 U.S.C. § 1621(g) ...........ecc cece cece 9

Alaska National Interest Lands Conservation

Act of 1980 (“ANILCA”), Pub. L. No. 96-487,

94 Stat. 2371 (codified at 16 U.S.C. § 3101, et

SED sincstveianneidasscceminneaciameniniannnnnnieannenmnaniin passim

ANILCA § 102(3), 16 U.S.C. § 3102(3)...................08 18

ANILCA § 103(c), 16 U.S.C. § 3103(c) ............... passim

ANILCA § 303(2), 94 Stat. 2371, 2390... 9

ANILCA § 1002, 16 U.S.C. § 3142 1.0.0.0... ee eeeeeeeeeee 9

ANILCA § 1003, 16 U.S.C. § 3148.0... cceeeeeeeeees 9

v

TABLE OF AUTHORITIES ~ Continued

Page

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

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

refs. & annots., as amended ......................ccceeeeeeeeeees 5

OTHER AUTHORITIES

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

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I neta caida tlncan centile 14, 15

TET ee ne 21

TTT art isicintailaieiinnaninnebinaiagilienddnnnienaasiitin 14

i iirtin enieictiiaindearmninibaiaen tiie 14

ethno insiatinianiaddadaminmneninen 14

ii dincisinhs nserededdinmesibnniiniteseiiebbiebeeniinedtinnaeniaits 14

TT trend tien asinennesnceanbiiainciiiineasiiuiiiiiads 14

STITIITII TTT iniiennesichienintpsietnndanddacnntinianninduaiuneinnientin 14

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vi

TABLE OF AUTHORITIES — Continued

Page

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1

INTERESTS OF THE AMICUS CURIAE

Arctic Slope Regional Corporation (“ASRC”) sub-

mits this brief as amicus curiae in support of John

Sturgeon’s petition for a writ of certiorari in Sturgeon

v. Masica (No. 14-1209).' ASRC is one of twelve pri-

vate, for-profit Alaska Native Regional Corporations

formed in 1971 under the Alaska Native Claims Set-

tlement Act of 1971 (“ANCSA”), Pub. L. No. 92-203,

85 Stat. 688 (codified at 43 U.S.C. § 1601, et seq.).

Alaska’s largest locally owned business, ASRC is

owned by 12,000 Ifupiat Eskimo shareholders. ASRC

and its subsidiaries operate in thirty-six states and

internationally, employing more than 10,000 people

and generating over $2.5 billion in annual revenue.

ASRC holds title to nearly five million acres of

land on Alaska’s North Slope granted to it pursuant

to ANCSA. More than 380,000 of these acres are

“inholdings” situated within the Gates of the Arctic

National Park, the Alaska Maritime National Wildlife

Refuge, and the Arctic National Wildlife Refuge. All of

these are federal conservation system units (“CSUs”)

created or expanded by the Alaska National Interest

Lands Conservation Act of 1980 (‘ANILCA”), Pub. L.

‘ In accord with Supreme Court Rule 37.6, ASRC affirms

that no counsel for a party authored this brief in whole or in

part, and no such counsel or a party made a monetary contribu-

tion intended to fund the preparation or submission of this brief.

Counsel of record for all parties received timely notice of ASRC’s

intention to file this brief, and consent to file was granted by al!

parties. Letters reflecting the parties’ consent to the filing of this

brief have been filed with the Clerk.

2

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

§ 3101, et seg.). ASRC’s lands, including its inholdings

within federal CSU’s, have high potential for oil and

gas development, other mineral development, tour-

ism, and other economic uses. These acres are also

critically important to ASRC’s shareholder communi-

ties for village use and subsistence fishing and hunt-

ing. Many ASRC shareholders reside in two villages

located on its inholdings within CSUs.

Through ANILCA, Congress balanced the conser-

vation interests of the federal government with the

economic development and subsistence interests of

ANCSA corporations like ASRC. 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 bal-

ance Congress struck in ANILCA, undermining the

purpose of ANCSA to the great detriment of ASRC’s

shareholders and those of its fellow Native corpora-

tions.”

S

REASONS FOR GRANTING THE PETITION

The Ninth Circuit’s decision reaches far beyond

one hunter and one hovercraft on navigable waters

* Other Native corporations and the State of Alaska have

also filed as amici in support of Mr. Sturgeon’s petition. ASRC

fully agrees with the arguments put forth by its fellow amici.

3

of the State. Its reading of ANILCA section 103(c), 16

U.S.C. § 3103(c), affects private land ownership rights

on millions of acres in Alaska. Most importantly to

amicus, the Ninth Circuit’s ruling threatens the eco-

nomic development and subsistence rights of thou-

sands of Alaska Native Corporation shareholders on

their privately-held ANCSA lands within ANILCA-

created federal conservation system units.

The Ninth Circuit found in section 103(c) of

ANILCA a new source of far-reaching federal regula-

tory authority over State and private lands. But

section 103(c) is not a grant of federal regulatory au-

thority. In order to protect the economic and use value

of private and State lands, the statutory provision

plainly limits that authority to “public lands” of the

United States. Congress added the provision to re-

assure the State of Alaska and the Alaska Native

Corporations that their lands, which became inhold-

ings upon the passage of ANILCA, would be free of

federal CSU regulations. The Ninth Circuit’s ruling

invalidates that provision, granting the federal gov-

ernment power to effectively appropriate into the fed-

eral park system private lands granted to ANCSA

corporations for economic purposes.

Section 103(c)’s meaning has not been, but should

be, settled by this Court because of the dramatic

negative impact the Ninth Circuit’s decision will have

on economic development, subsistence and transpor-

tation uses, and, with respect to State lands, the

sovereign rights of Alaska’s people over their land.

Absent this Court’s ruling, no court other than the

4

Ninth Circuit will ever answer this Alaska-specific

statutory question. Certiorari should be granted for

the additional reason that no constitutional source

exists for the plenary regulatory authority the Ninth

Circuit discovered in section 103(c). That court’s read-

ing therefore conflicts with relevant decisions of this

Court, including Kleppe v. New Mexico, 426 U.S. 529

(1976) and Clark v. Martinez, 543 U.S. 371 (2005),

among others. The Ninth Circuit’s contorted reading

leads to extensive unconstitutional results; the plain

meaning of the statute — which the Ninth Circuit

ignored — raises no such constitutional concerns.

I. The Ninth Circuit’s Unprecedented Read-

ing of ANILCA Section 103(c) Extends Fed-

eral 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 Na-

tive Corporations under ANCSA are profoundly af-

fected 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

5

development, energy security, environmental conser-

vation, 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. These three

together hold over 99 percent of the land in Alaska.

Less than one percent of the state is held in tradi-

tional private ownership.”

The State of Alaska itself is its own second-

largest landowner, behind the federal government.

The Alaska Statehood Act granted the new state own-

ership of twenty-eight percent of its total area in

order to “ensure the economic and social well-being of

the new state.” Land owned by the State of Alaska

approximates the State of California in size.*

The Alaska Statehood Act reserved the issue

of aboriginal land claimed by Alaska’s indigenous

people. Congress passed the Alaska Native Claims

* The map at App. 1, prepared by the Department of the In-

terior, shows the State, Native Corporation, and different cate-

gories of federal government lands in Alaska. This map is also

available at http://www.asrc.com/lands/Pages/alaska%20maps.aspx.

* 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, 335 (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 im-

portant means by which the new state could meet that bur-

den.”).

* The Appendix map shows State lands in dark blue.

6

Settlement Act (‘ANCSA”) in 1971 to address 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). ANCSA

created twelve regional corporations and more than

200 village corporations, and made Alaska’s Native

people shareholders in those corporations. ANCSA

§§ 7-8, 43 U.S.C. §§ 1606-1607. ASRC is the Alaska

Native Regional Corporation for Alaska’s North Slope

region.

ANCSA called for conveyance of approximately

44 million acres of federal land to Alaska Native re-

gional and village corporations, making the Native

Corporations, as a group, the third-largest landowner

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

1613.° Congress intended the Native Corporations to

use their ANCSA lands largely for economic develop-

ment 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).

Even after transferring these extensive lands to

the State and to Native Corporations, the federal

government remains the largest landowner in Alaska.

The federal government’s share is 222 million acres,

over sixty percent of the land in the state. Federal

acreage in Alaska is larger than Texas and Oklahoma

together. It covers more territory than Maine, New

* The Native Corporations’ lands are shown on the Appen-

dix map in brown.

7

Hampshire, Vermont, Massachusetts, Rhode Island,

Connecticut, New York, New Jersey, Pennsylvania,

Ohio, Delaware, Maryland, Virginia, North Carolina,

and South Carolina combined. The regulatory influ-

ence of the federal government and its relationship to

other Alaska landowners thus has extraordinary im-

portance in the state.

Over 120 million of Alaska’s federally owned

acres are protected within federal conservation sys-

tem units, or CSUs. These include 15 national parks,

preserves, and monuments managed by the National

Park Service and 16 national wildlife refuges man-

aged by the United States Fish and Wildlife Service.’

Most of these CSUs were created or expanded by

ANILCA in 1980. By that time, however, the Native

Corporations had received most of the lands promised

to them under ANCSA to ensure their economic

security. Many of these previously conveyed lands fell

within the boundaries of the newly created CSUs. At

least several hundred private homestead sites were

also engulfed by federal conservation lands under

ANILCA.* ANILCA-created federal conservation units

" The various categories of federal government lands are

shown in different colors on the Appendix map. Lands managed

by the National Park Service are light pink; lands in the Na-

tional Wildlife Refuge System (managed by the United States

Fish and Wildlife Service) are light blue.

* These private landowners are unlikely to muster the re-

sources to make themselves heard in this Court, but their in-

terests are markedly affected by the Ninth Circuit’s ruling as

well.

8

ultimately engulfed over eighteen million acres of

ANCSA Corporation-owned land — vast islands of pri-

vate land within CSUs. Eleven of Alaska’s twelve

regional corporations and many of its over 200 village

corporations own inholdings within ANILCA CSUs.

These eighteen million acres of ANCSA inholdings —

over forty percent of all ANCSA lands — are now po-

tentially subject to federal CSU regulations under the

Ninth Circuit’s decision.

B. ASRC’s Lands

ASRC owns 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 chal-

lenging environments in the world. In this harsh and

roadless region, they continue to rely on the same

subsistence food sources as their ancestors. The

health of caribou herds, fish, water fowl, Dall sheep,

musk oxen, marine mammals, and other subsistence

food populations are critically important to ASRC’s

people. ASRC’s land is located around its villages, in

key locations for subsistence hunting and fishing, and

in sites with high potential for oil, gas, and other de-

velopment of subsurface resources. The land wealth

held by ASRC benefits not only its own shareholders,

but Alaska Native people statewide through the rev-

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

43 U.S.C. § 1606(i)-(j).

9

ASRC’s land holdings intersect with three federal

CSUs. Gates of the Arctic National Park, which itself

covers an area larger than Massachusetts, surrounds

the Ifupiat village of Anaktuvuk Pass. ASRC owns

almost 180,000 acres of land within Gates of the

Arctic, including lands around the village itself as

well as a separate parcel at Itkillik Lake ASRC’s

inholdings within Gates of the Arctic are four times

the size of the District of Columbia and over twice the

size of Utah’s Arches National Park. These inholdings

have value for tourism and natural gas development,

in addition to their critical subsistence hunting and

fishing uses.

Kaktovik, another ASRC village, is located on the

coastal plain within the Arctic National Wildlife

Refuge (“ANWR”). At nearly two million acres, ANWR

is twice as large as Maryland and Delaware com-

bined. ASRC owns more than 100,000 acres of inhold-

ings in ANWR, primarily around the coastal village of

Kaktovik but also at Elusive Lake. Elusive Lake has

potential for development as a tourism fishing lodge.

The lands surrounding Kaktovik are used for village

and subsistence purposes and have economic poten-

tial for oil and gas development.”

* As a former wildlife range predating ANILCA, ANWR is a

special case under both ANCSA and ANILCA. See, e.g., ANCSA

§ 22(g), 43 U.S.C. § 1621(g); ANILCA § 303(2), 94 Stat. 2371, 2390.

Oil and gas development on these lands will require Congressional

action. See ANILCA §§ 1002-1003, 16 U.S.C. §§ 3142-3143. Section

103(c) is therefore a single piece of a more complicated statutory

(Continued on following page)

10

The Alaska Maritime National Wildlife Refuge

(“AMNWR”) covers over two thousand islands, head-

lands, and other coastal features around Alaska’s vast

coastline. The two northernmost units of the refuge

are located at Cape Thompson and Cape Lisburne, on

the Chukchi Sea coast near the village of Point Hope.

ASRC holds over 100,000 acres of inholdings in these

two AMNWR units. Point Hope residents use these

lands for subsistence, and they also have coal and

other mineral resource potential.

scheme on ASRC’s inholdings within the refuge. Nevertheless,

ASRC believes the meaning of section 103(c) of ANILCA has

relevance to questions of federal regulatory authority on its

privately owned lands within ANWR.

11

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Il. This Case Presents an Important Federal

Question Affecting ASRC and its Share-

holders, Other Native Corporations, and

the State of Alaska.

This Court should grant certiorari in this case

because federal regulatory authority over State and

privately held inholdings is an issue of tremendous

economic and social importance across Alaska. Given

oil and natural gas development possibilities on some

of the affected State and Native-owned lands, the

decision also has potential nationwide consequences.

In addition, this Court should act because the Ninth

Circuit interpreted section 103(c) in a way that ex-

ceeds Congress’s Constitutional authority in many

applications across most of the inholdings where the

section applies.

A. Enforcement of CSU regulations on

ANCSA Corporation inholdings will dra-

matically impact economic development

and day-to-day life on Native Corpora-

tion lands.

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. According to the Ninth Cir-

cuit’s reading of ANILCA, Congress intended that

forty percent of private ANCSA lands would be sub-

ject to this vast regulatory scheme. Innumerable activi-

ties integral to economic and social life on inholdings

14

would fall within the regulatory ambit of the federal

government.

The day-to-day consequences on private inhold-

ings would be stunning. Buildings may not be con-

structed 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 re-

strictions and permitting requirements. Jd. §§ 2.1(a)(1),

2.2, 2.3. Camping is limited to designated areas; lev-

elling 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. Jd. § 2.1(c)(1).

Modes of transportation critical in rural Alaska,

including 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 crit-

ical aspect of access to rural Alaska communities —

may be used only in designated locations and by

permit. Jd. § 2.17. Commercial activities are circum-

scribed and regulated. Jd. § 5.3. Research may be con-

ducted only by specific institutions and agencies, and

only under the regulatory watch of the park service.

Id. § 2.5. Public meetings, demonstrations and distri-

bution of printed materials all require permits and

federal government oversight. Jd. §§ 2.50, 2.51, 2.52.

The Ninth Circuit’s ruling. would prevent ANCSA

shareholders from developing their lands for ecotour-

ism, either in the form of lodges or even through

15

modest endeavors like providing basic trails, tent

sites, and hiking permits to visitors. Indeed, build-

ings, trails, or roads of any kind could not be con-

structed on ANCSA inholdings, even in the villages

themselves. Businesses in Native villages could be re-

quired to seek permits from federal agencies in order

to do business.

The court’s distinction between nationwide and

Alaska-specific regulations, applying the former but

not the latter on inholdings, leads to even more ab-

surd results. Subsistence use is specifically permitted

in many Alaska CSUs, including the use of sub-

sistence cabins, see, e.g., id. §§ 13.160, 13.410, but

subsistence use is generally not allowed under the

nationwide regulations. Applying the nationwide

regulations on the inholdings, the National Park

Service could forbid Native hunters from using their

ATVs or snowmobiles to carry game back to the vil-

lage. But on most Alaska National Parks themselves,

less restrictive Alaska-specific park regulations often

permit such travel. Under the nationwide regulations

that the Ninth Circuit has applied on 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.

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

16

Native people. Taking a vast federal regulatory re-

gime aimed at public land conservation and enforcing

it on private, ANCSA land undermines the purpose of

ANCSA.

The government may argue that the National

Park Service has no intention of stepp:ng in to pro-

hibit public meetings or commercial activity in vil-

lages like Anaktuvuk Pass. But the Ninth Circuit has

ruled that in ANILCA, Congress granted federal

agencies the authority to control all this and more on

private land. The court’s perversion of section 103(c)

has wide ranging economic and social consequences

for ASRC’s shareholders, other ANCSA shareholders,

and the rest of Alaska’s people as well.

B. Section 103(c) of ANILCA confirms that

federal regulatory authority does not

reach private and State land inholdings

surrounded by federal conservation

units.

The legal issue in this case is straightforward:

did section 103(c) of ANILCA extend federal conserva-

tion regulations to State and private inholdings? The

statutory text and the legislative history both unam-

biguously confirm that the Ninth Circuit answered

this question incorrectly.

In enacting ANILCA in 1980, Congress was well

aware of the pre-existing land ownership rights of the

State, ANCSA Corporations, and private landowners.

The Ninth Circuit recognized thirty years ago that

17

“after the [1971] passage of ANCSA, Congress became

aware of the need for a legislative means of maintain-

ing the proper balance between the designation of

national conservation areas and the necessary dispo-

sition of public lands for more intensive private use.”

City of Angoon v. Marsh, 749 F.2d 1413, 1415-16 (9th

Cir. 1984). Congress carefully balanced the conserva-

tion goals underlying the creation of new parks and

refuges under ANILCA against the critical “economic

and social needs of the people of Alaska.” Jd. Section

103(c) confirmed that State, Native Corporation, and

other private lands would not be subject to the federal

regulations applicable to the federal conservation

lands:

Only those lands within the boundaries of

any conservation system unit which are pub-

lic 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 ap-

plicable 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 accord-

ingly.

16 U.S.C. § 3103(c) (emphasis added). The definition

of “public lands” under the statute further clarifies

18

that CSUs include only “Federal lands,” not State

or Native Corporation lands. ANILCA § 102(3), 16

U.S.C. § 3102(3).

The Ninth Circuit misinterpreted ANILCA sec-

tion 103(c) as a statutory expansion of federal power

over private inholdings owned by the State and Na-

tive Corporations. Such power would not exist absent

section 103(c). The statutory text makes clear that

Congress instead intended the provision to confirm

the limit on federal power.

The operative section 103(c) language states that

“[nJo lands which ... are conveyed to the State, to

any Native Corporation, or to any private party shall

be subject to the regulations applicable solely to pub-

lic lands (“Federal lands”) within such units.” The

Ninth Circuit read this sentence to mean that State,

Native Corporation, and private lands are exempt

“solely” from regulations “within such units,” mean-

ing Alaska CSU-specific regulations. And thus, by

finding inholdings exempt from Alaska regulations

but not nationwide regulations, the Ninth Circuit

converted a power limiting statute into a new source

of general federal regulatory authority over private

land.

In City of Angoon v. Marsh, the Ninth Circuit had

recognized that the language in section 103(c) “spe-

cifically indicat{es] that private lands are not to be

restricted by virtue of their location within the bound-

aries of a conservation system unit.” 749 F.2d at 1418

n.5. Section 103(c) was not included in ANILCA as a

19

clandestine extension of nationwide federal park reg-

ulations across State and Native Corporation lands.

Instead, Congress included the word “solely” in sec-

tion 103(c) to make clear that State and private

inholdings are not exempt from federal statutes and

regulations applicable to private and public lands

everywhere. As ANILCA’s legislative history makes

clear, these include the Clean Air Act or the Clean

Water Act and similar generally applicable legisla-

tion:

Federal laws and regulations of general ap-

plicability to both private and public lands,

such as the Clean Air Act, the Water Pollu-

tion Control Act, U.S. Army Corps of Engi-

neers wetland regulations and other Federal

statutes of general applicability would be

applicable to private or non-Federal public

land in holdings within conservations [sic]

system units, and to such lands adjacent to

conservation system units, and thus are un-

affected by the passage of the bill.

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

U.S.C.C.A.N. 5070, 5247.

In short, Mr. Sturgeon’s reading of section 103(c)

is correct. The plain meaning of the text, the legisla-

tive history, canons of statutory construction, and

common sense all support his reading.

20

C. No constitutional basis exists for the

broad regulatory power the Ninth Cir-

cuit found in section 103(c) of ANILCA.

The Ninth Circuit read the operative language in

ANILCA section 103(c) to expand the National Park

Service’s general regulatory power over lands owned

by the State and Alaska Native Corporations. This

interpretation exceeds Congress’s Constitutional au-

thority in many applications across most of the in-

holdings where the section applies. The holding thus

squarely conflicts with this Court’s statutory inter-

pretation directive in Clark v. Martinez, 543 U.S. 371

(2005) and United States v. Santos, 553 U.S. 507

(2008).

The newfound regulatory authority must have a

foundation in Congress’s powers under the Constitu-

tion. Possible sources for such a power are the Prop-

erty Clause and the Commerce Clause. But neither

clause confers the breadth of legislative authority

that would be required under the Ninth Circuit’s in-

terpretation.

The Property Clause is the source of broad regu-

latory power over federal lands, including conserva-

tion system units: “The Congress shall have Power to

dispose of and make all needful Rules and Regula-

tions respecting the Territory or other property be-

longing 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

21

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

(1976) (internal quotation marks omitted).

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. Jd. at 538-39.” 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 court has held that the

Property Clause supports general regulation of non-

® Accord Nevada v. Watkins, 914 F.2d 1545, 1553 (9th Cir.

1990) (noting “that the Property Clause was inapplicable [to

State-owned waterways], because that clause was limited to au-

thority over the property belonging to the United States within

{the States’) limits and did not apply to state-owned river beds.”

(citing Kansas v. Colorado, 206 U.S. 46, 89, 93 (1907) (“But

clearly [the Property Clause] does not grant to Congress any leg-

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

concerned, be limited to authority over the property belonging to

the United States with their limits.”))).

" United States v. 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 wa-

ters,” and may require fire permits for campfires on State-owned

riverbeds); 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). For an example of such a regulation, see 36 C.F.R.

§ 2.13 (applying fire regulations to lands within park boundaries

of land ownorship” so long as the lands are “under

the legislative jurisdiction of the United States.”).

22

federal lands absent a showing that the 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 State and Native Corporation lands.

Ducking this problem, the Ninth Circuit cited

Congress’s “pre-eminent authority” under the Com-

merce Clause to regulate “the flow of navigable wa-

ters,” 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)). But the Ninth Circuit

had already rejected the argument that Congress

exercised its commerce power in ANILCA to grant the

federal government general regulatory authority over

navigable waters in Alaska. Alaska v. Babbitt, 72 F.3d

698, 703 (9th Cir. 1995). And in any event, the Ninth

Circuit’s interpretation of ANILCA section 103(c) is

not limited to navigable waters.

The Ninth Circuit interprets section 103(c) to

grant federal regulatory power over all State, Native

Corporation, and private lands and waters (both

navigable and unnavigable) within the boundaries of

CSU’s in Alaska. The court ignored the unconstitu-

tional results its reading of the statute creates. The

ruling therefore ran afoul of this Court’s clear direc-

tion: statutes must be interpreted to avoid unconsti-

tutional results, and the same statutory text cannot

mean one thing on navigable waters and something

else entirely on other lands.

23

Mr. Sturgeon’s constitutional arguments cannot

be simply brushed aside by finding a Commerce

Clause basis for reading the statute solely as applied

to him. This Court made very clear in Clark, 543

U.S. at 381, that interpreting a statute differently

in a facial versus an as-applied constitutional chal-

lenge “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.” Santos, 553

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

Congress’s use of the word “solely” in section

103(c) was not ambiguous. That word served to clarify

that State and private inholdings are not exempt

from broad federal regulations that apply to private

lands everywhere. But to the extent ambiguity exists

in section 103(c), the Ninth Circuit should have given

“solely” “a limiting construction called for by one of

the statute’s applications, even though the other of

the statute’s applications, standing alone, would not

support the same limitation.” Jd. In other words, 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 National Park

Service regulations across inholdings. For example,

the National Park Service regulates a broad array of

activities including camping, gathering berries, public

assembly and meetings, the leashing of pets, the con-

struction of walking trails, and many others where

24

regulatory limitations would be unsupportable by

Congress’s commerce power.

To be clear, Congress potentially could extend

certain categories of regulations related to interstate

commerce to private inholdings. The issue before the

Ninth Circuit in this case, however, was whether

Congress actually intended to grant broad, general

regulatory authority over inholdings. Section 103(c)’s

language unambiguously clarifies that Congress had

no such intent. And when it found ambiguity in the

word “solely,” 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 stat-

ute in accordance with its plain meaning raises no

constitutional concerns.

There is no reason for this Court to await an-

other case involving federal government enforcement

regulation on private inholdings, rather than State-

owned navigable waters. Delaying decision of this is-

sue would have important consequences for the

people of Alaska. Because this is a statutory interpre-

tation case, the Ninth Circuit’s reading of section

103(c) now controls, and will have a powerful chilling

effect on development and other activity on Native

Corporations’ inholdings. ASRC urges this Court to

grant Mr. Sturgeon’s petition and answer this im-

portant and straightforward statutory interpretation

question now.

25

ASRC joins John Sturgeon, the State of Alaska,

and other Alaska Native Corporation amici in urging

this Court to grant Mr. Sturgeon’s petition. Section

103(c) of ANILCA limits federal authority on non-

federal inholdings, and there is no reason to wait to

answer the question. No circuit split will ever arise

on this issue. ANILCA affects only Alaska CSUs, and

absent this Court’s intervention, the Ninth Circuit

will have the only word. This Court must step in to

clarify that Native Corporations remain free to pur-

sue development and subsistence activity — as well as

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

pervasive federal government regulatory intervention.

¢

CONCLUSION

For the foregoing reasons, ASRC urges this Court

to grant the petition for a writ of certiorari.

Respectfully submitted,

JAHNA M. LINDEMUTH

KATHERINE DEMAREST

Counsel of Record

DorsEY & WHITNEY LLP

1031 West 4th Avenue, Suite 600

Anchorage, Alaska 99501

(907) 276-4557

lindemuth.jahna@dorsey.com

demarest.katherine@dorsey.com

Counsel for Amicus Curiae

Arctic Slope Regional Corporation

May 4, 2015

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