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

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## Record

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

## Text

No. 14-1209

In The
Supreme Court of the 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 ...

IED cncevssscnsersnnsesensunesnvimnnssncsssssesonnsennee

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
ee IIE, Ht icecsonsniniisnsiintcscennsinoenedecessenes 19
| Ta Ne 14
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crated iinidlinnibitiasieaiganiineeniiediighitid 14
Se NITTTTTT icisiiciciide iinet hinieniissniibaaniaiiainnsadaanaibiiin 14
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
I aint ccc itiebinleeaconinies 14
ian imatmatinarinreninmenientias 14
i aici mieaindcninlitastintsiideiil 14

IIE TITIAT cctntnsinnisteicapsenscniansmmnimenenemesianetmatsesssins 14

vi

TABLE OF AUTHORITIES — Continued

Page
I cccissiinicsittiintiiisiieige ae 15
iit ae a 14

i Ges 0) SI co cvcnccccscnsnsecnnnsnsccieninnneneinmnntnniiniie 14

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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13

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0549%3A10. Public record. Not legal advice.