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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0549%3A11

## Record

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

## Text

No. 14-1209

IN THE

Supreme Court of the United 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 or CERTIORARI TO THE UNITED STATES
Court oF APPEALS FOR THE NINTH CirRcUIT

-_—_——

BRIEF ON THE MERITS OF AMICI CURIAE
DOYON, LIMITED, NANA REGIONAL
CORPORATION, CALISTA CORPORATION,
AHTNA, INCORPORATED, THE ALEUT
CORPORATION, BRISTOL BAY NATIVE
CORPORATION, GANA-A’ YOO, LIMITED,
AND TIHTEET?’ All, INCORPORATED

SEEKING REVERSAL
JosH VAN GORKOM JAMES D. LINXWILER, Esa.
ALLEN WELLMAN McNew Counsel of Record
Harvey, LLP Guess & Rupp P.C.
Five Courthouse Plaza 510 L Street, Suite 700
Greenfield, Indiana 46140 Anchorage, Alaska 99501
(317) 468-9800 (907) 793-2200

jlinxwiler@guessrudd.com
Counsel for Native Corporation Amici

Date: November 23, 2015
262477

i

TABLE OF CONTENTS

Page
TABLE OF CONTENTS. ..........0ccccececeeeess i
TABLE OF CITED AUTHORITIES .............. iii
I. Interest of the Amici Curiae ..............0000.. 1

A. The amici’s ANCSA land rights are
significantly and uniquely affected by
the Ninth Circuit’s decision .................

B. Shortly after grant of certiorari, the
National Park Service issued proposed
regulations that cite the Ninth Circuit’s
decision as rulemaking authority ............

A. The text of §3103(c) unambiguously exempts
ANCSA lands from CSU regulations. ........

B. The history of ANILCA, starting with
ANCSA, supports the conclusion that
Native Corporation lands are exempt

1. ANILCA, including §3103(c), must be
interpreted in light of the economic
development purposes of ANCSA........

it

Table of Contents

2. The legislative history of ANILCA
is consistent with the purposes
of ANCSA, but the Ninth Circuit
offered a selectively edited version to
bolster its interpretation of §3103(@...... 17

C. The location of §3103(c) within ANILCA and
the language of other relevant provisions of
the Act demonstrate Congress’s intent
to exempt ANCSA lands from CSU

SS ceccccccuscccscscocsscaccsesei 27
D. The Ninth Circuit’s interpretation of
§3103(c) would lead to an absurd result ....... 31

E. The amici respectfully urge this Court
to resolve this case in a manner that
does not disturb the Ninth Circuit’s

itt

TABLE OF CITED AUTHORITIES

CASES

Alaska Fish & Wildlife Federation & Outdoor
Council, Inc. v. Alaska,
ey 33

Alaska State Legislature v. Alaska,
EE sccceccesccccsccestescosesed 33

Alaska v. Babbitt,
72 F.3d 698 (9th Cir. 1995) .............. 32, 33, 35

Alaska v. Jewell,
ST ee 33

Alaska v.
Native Village of Venetie Tribal Government,

Village of Gambell, Alaska,
480 U.S. 531 (1987)... .... 2. cece eee eens 12, 13, 27

City of Angoon v. Marsh,
749 F.2d 1413 (9th Cir. 1984).............. 13, 16-17

City of Saint Paul v. Evans,
344 F.3d 1029 (9th Cir. 2003) ..............--5.. 15

Cited Authorities
Page

Dada v. Mukasey,

St ccciencaseeesuneneeosecewssé 27
Dolan v. U.S. Postal Service,

i ccecesudetesaséseseseosed 12
N.S. v. Cardoza-Fonseca,

SE cccnocececescoseseesssoeses 11
John v. U.S.,

247 F.3d 1032 (9th Cir. 2001). ................4-- 32
John v. U.S.,

720 F.3d 1214 (9th Cir. 2013)............. 33, 34, 35
Koniag, Inc. v. Koncor Forest Resource,

39 F.3d 991 (9th Cir. 1994)............. cee eeeeee 15
Stratman v. Leisnoi, Inc.,

545 F.3d 1161 (9th Cir. 2008)................... .29
Sturgeon v. Masica,

768 F.3d 1066 (9th Cir. 2014)..................... 5
Tarrant Regional Water Dist. v. Herrmann,

PES 0 bc ccccesesccesescccocccs 31

TRW Inc. v. Andrews,
ts <1ccngdgoseccnesetosend 11, 35

Vv

Cited Authorities
Page

U.S. Nat'l Bank of Oregon v.

Indep. Ins. Agents of Am., Inc.,

ree 27
United States v. Wilson,

Ec ecnchecsucuserteesecueséen 31
STATUTES
ST ncdeduccaudanéetdetececessed 10
16 U.S.C. §668dd note (ANILCA §304(f)) ........ 30, 31
16 U.S.C. §3101(d) (ANILCA §101@))............... 29
16 U.S.C. §3102(4) (ANILCA §102(4))................ 1
16 U.S.C. §3103 (ANILCA §1038) ...............04-. 28
16 U.S.C. §3108@ (ANILCA §103(0) .......... passim
16 U.S.C. §3114 (ANILCA §804)............... 32, 33
i atetccenepiugunsdiedseasbacessanar 18
A cnc cincesdéesddeesederecsonsads 13
Sp I ccccdcesescscnsoceess passim

SP ED hv cccesccecsccnssccossns 14, 15, 16

vi

Cited Authorities

Page
SEED sipeccccccspscocencceccccse 14, 15, 16
SP EP Sc ccc cdccésesccccsscecsoosassesens 14
SD ED bcdccccccccececcceresesscessaseen 13
GS Ge oo vccccccccecsscccoccescecseoesss 13
Ge I hoc ccccccconsesccsscecceasecscées 13
43 U.S.C. SIGIGGEINEMA) ... ce cccccccccccccccecs 12-13
Se SR ve desdecoscccacccnsceséncnsedsete 14
Gp ee EEE vc cccccccccscccccccccocccescees 18
GPE ES Sd cvcccesescsdvcesascesesedcess 17
GED coc cvcccndccccccteccscescecces 13, 34
43 U.S.C. $1635(0)(2) (ANILCA §906(0)(2)) .......... 30
43 U.S.C. §1636 (ANILCA §907).............-005- 31
43 U.S.C. $1639 (ANILCA §1412)............... 30, 34

REGULATIONS
ks 6 PPPTTTTITITITTTT TTT TTT TTT 33

vit

Cited Authorities
Page
OTHER AUTHORITIES
125 Cong. Rec. 9905 (1979). ...........e ee eeee 3, 13, 23
125 Cong. Rec. 10804 (1979)... ........ccceccscceces 19
125 Cong. Rec. 11158 (1979) ...............0.. passim
126 Cong. Rec. 21882 (1980).................05. 18, 27
61 Fed. Reg. 36134 (1996) ........... cece cecceces 32
By I ES ccc ccevecesccedvccoccsvecs 5
TD cctccnacdedncebeuheceseensesnns 19
H.R. Rep. 92-523, reprinted in 1971
Es sec cvedeseccoccecnccecesece 14
S. Rep. No. 96-413 (1979), reprinted in
1980 U.S.C.C.A.N. 5070. ............ ce eeeee 24, 25

Alaska National Interest Lands Conservation
Act (“ANILCA”), Pub. L. 96-487, 94 Stat. 2371

Di Maccencgadekedéachossocedecade sess passim

“Alaska Native Corporations Share Wealth:
ANCSA 7(i) and 7(j) Mandates Redistribution
of Some Profits,” Alaska Business Monthly,

September 2009 .............ccccccceeeeeeeees 16

1
I. Interest of the Amici Curiae.’

A. Theamici’s ANCSA land rights are significantly
and uniquely affected by the Ninth Circuit’s
decision.

This brief is submitted on behalf of amici curiae
Alaska Native Regional Corporations Doyon, Limited,
NANA Regional Corporation, Calista Corporation,
Ahtna, Incorporated, The Aleut Corporation, and Bristol
Bay Native Corporation, and Alaska Native Village
Corporations Gana-A’ Yoo, Limited, and Tihteet’ Aii,
Incorporated. The amici curiae were created pursuant
to the Alaska Native Claims Settlement Act (““ANCSA”),
43 U.S.C. §§1601-1629h and represent the interests of
more than 60,000 Alaska Native shareholders, many of
whom have limited incomes and live in remote locations
in rural Alaska.

This case has extraordinary importance to the Alaska
Native community. The amici curiae alone own over 12
million acres of lands granted to them under ANCSA
that lie within the boundaries of Alaska conservation
system units (“CSUs”) created or expanded by the Alaska
National Interest Lands Conservation Act (“ANILCA”),
Pub. L. 96-487, 94 Stat. 2371 (1980).2 These lands

1. The parties have consented to the filing of this brief. No
counsel for a party authored this brief in whole or in part, and no
counsel or party made a monetary contribution intended to fund the
preparation or submission of this brief. No person other than the
amici curiae, their shareholders, or their counsel made a monetary
contribution to its preparation or submission.

2. Section 102(4) of ANILCA, 16 U.S.C. §3102(4), defines
“conservation system unit” as “...any unit in Alaska of the National

2

constitute an area about 50% larger than Maryland. All
ANCSA Corporations together own approximately 18
million acres within ANILCA CSUs, an area larger than
West Virginia. (See Exhibit 1.)

ANILCA §103(0), 16 U.S.C. §3103(@), applies to these
Native Corporation lands, and while the dispute that
gave rise to this litigation is whether §3103(c) allows
the National Park Service to enforce its regulations
on navigable waters, the Ninth Circuit interpreted the
statute in a way that would allow the National Park Service
(the “NPS”) and other conservation agencies to enforce
their regulations on Native Corporation lands and waters
within CSUs. However, Congress specifically enacted
§3103(c) in order to exempt Native Corporation lands from
CSU regulations. The Native Corporation amici thus are
directly impacted by the Ninth Circuit’s decision.

Passed in 1971, ANCSA granted approximately 44
million acres of federal land to Alaska Native Corporations
in exchange for the complete settlement of the aboriginal
land claims of Alaska Natives. The economic development
of these lands by Native Corporations was a core purpose
underlying this historic settlement, and the Native
Corporations made many of their land selections during
the 1970s based on development potential.

Park System, Nationa] Wildlife Refuge System, National Wild and
Scenic Rivers Systems, National Trails System, National Wilderness
Preservation System, or a National Forest Monument including
existing units, units established, designated, or expanded by or under
the provisions of this Act, additions to such units, and any such unit
established, designated, or expanded hereafter.”

3

Then, in 1980, Congress passed ANILCA, which
placed about 105 million acres of federal land into new or
expanded CSUs. One result of this legislation was that
approximately 18 million acres of Native Corporation land,
as well as some State and private land, became surrounded
by CSU lands. Congress included §3103(c) in ANILCA in
order to clarify that the location of Native Corporation
lands within CSU boundaries would not “restrict use
of such lands by the owning Corporations,” 125 Cong.
Rec. 9905 (1979), or make them “subject to any of the
laws or regulations that pertain to U.S. public lands” or
“controlled by any of the public land laws of the United
States,” id. at 11158 (exaphasis added).

Congress granted ANCSA lands a complete exemption
from CSU regulations in §3103(c), because it very well
understood that such regulation would be incompatible with
the economic development activities that it contemplated
in ANCSA for the benefit of Alaska Natives. Its common
sense conclusion was, Native lands cannot be managed
as part of a CSU, and still be available for the economic
development of ANCSA lands that Congress foresaw as
essential to ANCSA. Such an exemption stil] leaves these
lands subject to an extensive body of generally applicable
regulations.

Whether or not the NPS likes what Congress did,
and whether or not the NPS now wishes to control Native
lands in CSUs notwithstanding §3103(©), the fact remains,
Congress unambiguously exempted Native land from all
CSU regulations 35 years ago, and that remains the law
of the land. It is up to Congress, not the NPS, to change
that law.

4

There are already a number of important ANCSA
land developments on CSUs, and in reliance on the
language of §3103(c) and the assurances of Congress,
several of the Native Corporation amici are pursuing
other resource development projects on lands within CSU
boundaries, including mining and oil and gas projects on
which millions of dollars have already been spent. Now,
however, the Ninth Circuit has issued an opinion that
would cast significant doubt on these and future projects
by turning §3103(c) on its head and exposing these
Native Corporation lands to regulations that could make
meaningful economic development impossible. The Ninth
Circuit’s decision creates two classes of ANCSA lands not
contemplated in either ANCSA or ANILCA—those lands
within CSUs, and those lands that are not.

The Ninth Circuit’s decision, if allowed to stand,
would substantially alter and diminish the Congressional
settlement of Native land rights under ANCSA and harm
the interests of the Native Corporation amici.

B. Shortly after grant of certiorari, the National
Park Service issued proposed regulations that
cite the Ninth Circuit’s decision as rulemaking
authority.

This is no theoretical concern for the amici. In its
brief in opposition to certiorari, at 20-21, the United
States aggressively reassured this Court that the Ninth
Circuit holding would not broadly authorize regulation of
Native owned lands within the boundaries of CSUs, that
to do so would require a dramatic shift in policy “under
the application of stringent criteria that the NPS has
almost never invoked,” and that the Native amici simply

5

“misunderstand[] both the NPS’s regulations and the
decision below....”

However, notwithstanding these statements, the
National Park Service has just published draft oil and gas
regulations doing exactly what the United States claimed
it would not do. See 80 Fed. Reg. 65571 (Oct. 26, 2015).
The preamble to these regulations asserts jurisdiction
and control over oil and gas development on ANCSA
lands within CSUs, citing the Ninth Circuit’s decision as
authority:

We also note that because these regulations are
generally applicable to NPS units nationwide
and to nonfederal interests in those units, they
are not “applicable solely to public lands within
[units established under ANILCAJ],” and thus
are not affected by section 103(c) of ANILCA.
See Sturgeon v. Masica, 768 F.3d 1066, 1077-78
(9th Cir. 2014).

Id. at 65573. These regulations are thus proposed to apply
for the first time to large tracts of Native lands in National
Parks in Alaska.’ Just as Congress foresaw in enacting

3. According to the NPS website, these regulations would now
apply to 534 operations nationwide, 455 of which (85%) are located in
just four units of the NPS system in Tennessee, Kentucky, Ohio and
Texas (Lake Meredith, Cuyahoga Valley, Big South Fork, and Big
Thicket). http://www.nature.nps.gov/geology/oil_and_gas/9b_index.
cfm (then “12 units of the National Park System”).

The NPS says many of these operations occur on the mineral
estate where the NPS owns the surface estate, and that many were
“grandfathered”—i.e., oil and gas operations were inherited by
the NPS when it obtained its interests in the lands, and that NPS
regulations are necessary to control access issues.

6

§3103(c), these regulations can have a significant negative
impact on the achievement of the economic development
purposes of ANCSA.

As but one example, Doyon owns approximately
206,000 acres (320 square miles) of ANCSA lands in the
Kandik Basin area of the Yukon-Charley Rivers National
Preserve (the CSU at issue in this case) that Doyon
selected because of its high potential for the discovery of
oil and gas. Doyon selected and was conveyed this land
before enactment of ANILCA. Under the new regulations
and the Ninth Circuit’s decision, Doyon’s development of
these lands will now be subject to Park Service permission.

The NPS has done precisely what the Native
Corporation amici have been concerned with in this
case—it has adopted so-called “national” regulations
under the cover of the Ninth Circuit ruling that erase the
protections of §3103(c) and in effect manage these large
areas of ANCSA lands as National Park lands. The door
is now open to wholesale regulatory abridgement of the
statutory protections contained in §3103(c) in reliance
upon the Ninth Circuit’s ruling, simply by adopting
“national” regulations. The amici fully expect this will

None of these operations are currently located in Alaska, and
none of the cited conditions apply to ANCSA lands locate within
the boundaries of National Parks in Alaska (generally, ANCSA
Corporations own both the surface and subsurface estates, and
access in CSUs is subject to special provisions in ANILCA). It is
unclear what, if any, expertise the NPS possesses to administer such
a program in Alaska’s unique arctic and sub-arctic environment,
how the NPS would give effect to the land development purposes
of ANCSA, or what the NPS’s motives are in acting 80 quickly, in
light of its emphatic assurances to this Court just three months ago.

7

not be the only such assertion of CSU regulations over
ANCSA lands in reliance on the Ninth Circuit holding, if
it is not reversed.

Congress has unambiguously acted to exempt ANCSA
lands from such NPS regulations and that action should
be honored. Congress acted, because its common sense
appraisal of the likely impact of such NPS regulation of
ANCSA lands is that it would limit and discourage such
activity. The amici have an extraordinary interest in
preserving §3103(c)’s exemption on their 12 million acres
of ANCSA lands within the boundaries of CSUs. The
NPS has already moved to control the use of Native lands
in one regulatory program in the very recent past, after
certiorari was granted herein, and more such efforts are
sure to follow if unchecked by this Court.

For these reasons, the Native Corporation amici
respectfully request that this Court reverse the Ninth
Circuit’s decision and hold that §3103(¢) prohibits the NPS
and other conservation agencies from enforcing any of
their regulations on Native Corporation lands within CSU
boundaries. Even if this Court reaches the same result as
the Ninth Circuit—that is, even if this Court concludes
that §3103(c) does not exempt the navigable river at issue
from NPS regulation—the amici respectfully submit
that the interpretation of the statute should distinguish
navie~ble waters from ANCSA lands and waters and give
effect to the complete regulatory exemption that Congress
intended, thereby avoiding the destructive impact upon
ANCSA lands and waters sanctioned by the Ninth Circuit.

8

II. Summary of the Argument.

Under the plain language of §3103(c), Native
Corporation lands that lie within the boundaries of CSUs
are exempt from CSU regulations. Only by reading the
second sentence of the provision in isolation was the Ninth
Circuit panel able to reach a different conclusion. The
panel also read §3103(c) in a way that would render its first
and third sentences meaningless. The three sentences of
§3103(c) complement and flow logically from one another,
and this Court’s precedent requires that each sentence in
the statute be given effect.

The history of ANCSA and ANILCA demonstrates
Congress’s unambiguous intent to grant approximately
40 million acres of land to Alaska Native Corporations
for purposes including economic development, to assist
Alaska Natives in achieving financial independence and
self-sufficiency, and by enacting §3103(c), to protect the
economic value and development potential of these Native
Corporation lands by shielding them from restrictive CSU
regulations. To avoid this result, the Ninth Circuit panel
completely disregarded ANCSA and then selectively
quoted and inaccurately characterized several key pieces
of ANILCA’s legislative history, to reach an interpretation
of §3103(c) that would break the promise made to Alaska
Natives in ANCSA. In reality, the legislative history of
ANILCA uniformly contradicts the Ninth Circuit panel’s
decision.

The meaning of §3103(c) is further demonstrated
when it is viewed in the context of ANILCA as a whole.
The provision was placed in the “Maps” section to clarify
that an ANILCA map’s depiction of non-public lands

9

within the boundaries of a CSU is of no legal effect. In
addition, numerous other sections of ANILCA support the
conclusion that Native Corporation lands are generally
exempt from CSU regulations.

The Ninth Circuit panel’s holding—that nationwide
CSU regulations are applicable to non-public lands but
Alaska-specific CSU regulations are not—would lead to
an absurd result. As the NPS itself has acknowledged,
Alaska-specific regulations are generally relaxations
of the nationwide regulations, meaning that non-public
lands within the boundaries of a CSU would be regulated
more strictly than the public lands within the same CSU
boundaries.

Finally, the amici respectfully requests that this
Court resolve this case in a manner that does not disturb
the Ninth Circuit’s “Katie John” subsistence decisions. ‘

Ii. Argument.

A. The text of §3103(c) unambiguously exempts
ANCSA lands from CSU regulations.

The plain language of §3103(c) establishes that
ANCSA lands that lie within the external boundaries of
CSUs are not part of the CSUs and are exempt from CSU
regulations. Only by reading the second sentence of the
provision in isolation was the Ninth Circuit panel able to
reach a different conclusion. The panel also read §3103(c)
in a way that would render its first and third sentences

4. The amici also agree with the amicus brief filed by Arctic
Slope Regional Corporation (ASRC) et al.

10

meaningless. Congress wrote the three sentences of
§3103(c) to work together as a comprehensive whole.

The first sentence states: “Only those lands within
the boundaries oi 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.” This
sentence establishes that non-public lands (including
ANCSA lands) lying within the external boundaries of
a CSU are not part of the CSU merely by virtue of that

geographic fact.*

The second sentence states: “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.” (Emphasis added.) This sentence
is a direct complement to the first and means that ANCSA
land that is not part of a CSU will not be subjected to
CSU regulations simply because it lies within the external
boundaries of the unit.

The third sentence states: “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

5. Consistent with this first sentence, the provision of ANILCA
that established the Yukon-Charley Rivers National Preserve, where
the dispute underlying this case arose, states that the Preserve
contains “approximately one million seven hundred and thirteen
thousand acres of public lands.” 16 U.S.C. §410hh(10) (emphasis
added). All of the sections of ANILCA that created or expanded
CSwUs include the same limitation to “public lands.”

11

accordingly.” (Emphasis added.) This sentence explains
how the acquisition of land by the relevant Secretary alters
the state of affairs established by the first two sentences:
the lands “become part of the unit” and are “administered

accordingly.” Until this happens, though, the lands are not
administered as “part of the unit.”

“It is a cardinal principle of statutory construction
that a statute ought, upon the whole, to be so construed
that, if it can be prevented, no clause, sentence, or word
shall be superfluous, void, or insignificant.” TRW Inc. v.
Andrews, 534 U.S. 19, 31 (2001) (citations and quotations
omitted). The Ninth Circuit panel violated this “cardinal
principle” by giving undue attention to the second
sentence of §3103(c), not only distorting its meaning but
also rendering the first and third sentences meaningless.
That is, if the second sentence subjects non-public land to
regulations governing a CSU, then the land is, for practical
purposes, “a portion of” the CSU (contrary to the first
sentence), and it can be “administered accordingly” even
if it is never acquired by the federal government (contrary
to the third sentence). Giving effect to all three sentences,
the provision’s meaning is unmistakable: non-public lands
within the boundaries of a CSU are not part of the unit
and will not be subject to CSU regulations unless they
are acquired by the federal government.®

6. Even if this Court were to agree with the Ninth Circuit’s
novel reading of the plain language of §3103(c)—a reading that
creates a distinction between nationwide and Alaska-specific
CSU regulations—the legislative history of ANILCA, discussed
below, unequivocally demonstrates a “clearly expressed legislative
intention” contrary to that reading of the language. See /.N_S. v.
Cardoza-Fonseca, 480 U.S. 421, 433 n.12 (1987).

12

B. The history of ANILCA, starting with
ANCSA, supports the conclusion that Native
Corporation lands are exempt from CSU
regulations.

A review of the history of ANILCA, beginning in
1971 with ANCSA and continuing through the legislative
wrangling that led to the enactment of ANILCA, leads
inexorably to the conclusion that ANCSA lands are to
remain exempt from CSU regulations.

1. ANILCA, including §3103(c), must be
interpreted in light of the economic
development purposes of ANCSA.

This Court has held that a statute should be interpreted
in light of “any precedents or authorities that inform the
analysis.” Dolan v. U.S. Postal Service, 546 U.S. 481,
486 (2006). None of ANILCA’s provisions—particularly
those, like §3103(c), that address the land rights of Alaska
Native Corporations—can be fully understood without
an appreciation for the purposes of ANCSA. Indeed, this
Court has only interpreted one section of ANILCA, and,
when it did, it looked to three closely related sections of
ANCSA. See Amoco Production Co. v. Village of Gambell,
Alaska, 480 U.S. 531, 552 (1987).

ANCSA was, quite literally, the precursor to
ANILCA. In Section 17(d)(2) of ANCSA, Congress
directed the Secretary of the Interior to withdraw up
to eighty (80° million acres of unreserved federal land
“which the Secretary deems are suitable for addition to
or creation as units of the National Park, Forest, Wildlife
Refuge, and Wild and Scenic Rivers Systems.” 43 U.S.C.

13

§1616(d)(2)(A); see also Amoco, 480 U.S. at 549 (““ANILCA’s
primary purpose was to complete the allocation of federal
lands in the State of Alaska, a process begun with the
Statehood Act in 1958 and continued in 1971 in ANCSA.”).
ANILCA was a “direct outgrowth” of ANCSA, 125 Cong.
Rec. 9905 (1979), and it should be interpreted as such. It
is remarkable, then, that the Ninth Circuit did not even
mention ANCSA in its opinion.

“Congress enacted ANCSA in 1971 to settle the
aboriginal claims of Alaskan Natives.” City of Angoon
v. Marsh, 749 F.2d 1413, 1414 (9th Cir. 1984). Congress
intended the settlement to be accomplished “in conformity
with the real economic and social needs of Natives” and
“with maximum participation by Natives in decisions
affecting their rights and property.” 43 U.S.C. §1601(b).
Thus, as compensation for the complete settlement of the
aboriginal claims, Congress authorized the payment of
almost $1 billion cash and the conveyance of approximately
40 million acres of land to Alaskan Natives “to assist them
in achieving financial independence and self-sufficiency.”
City of Angoon, 749 F.2d at 1414 (emphasis added).’

7. The land provisions of ANCSA are complex, but can be
summarized as follows: ANCSA granted up to 22 million acres of
surface estate to Village Corporations. ANCSA granted to Regional
Corporations the subsurface (mineral) estate beneath those Village
surface lands, and approximately 18 million acres of additional
surface and subsurface estate. See 43 U.S.C. §§1610, 1611 and 1613.
Pursuant to 43 U.S.C. §1631 (a)(1) and (2), all ANCSA land grants
include title to lands beneath all water courses and water bodies
within or adjacent to their land selections, except where such title
was previously vested in the State of Alaska. This is important
because up to 50% of the surface area of lands in Alaska is occupied
by such waters, depending upon the location. In addition, ANCSA

14

Obviously, ANCSA was a revolutionary development
in American law. “Congress sought to end the sort of
federal supervision over Indian affairs that had previously
marked federal Indian policy.” Alaska v. Native Village of
Venetie Tribal Government, 522 U.S. 520, 523-24 (1998).
As opposed to the lower 48 system of reservations, Alaska
Natives would own lands and be tasked with developing
them for their own benefit. In Alaska, Natives would be
in control of their own financial destiny.

Accordingly, the Ninth Circuit stated that the most
significant purpose of the ANCSA land grant was
economic development:

ANCSA’s legislative history makes clear that
Congress contemplated that land granted
under ANCSA would be put primarily to
three uses—village expansion, subsistence,
and capital for economic development. See
H.R. Rep. 92-523 at 5, 1971 U.S.C.C.A.N. at
2195. Of these potential uses, Congress clearly
expected economic development would be the
most significant....

granted about 4 million acres of surface and subsurface estate to
Village Corporations on revoked Indian reservations that opted not
to accept any further benefits of ANCSA. 43 U.S.C. §1619. As further
compensation, ANCSA also provided for the grant of $962.5 million
to Native Corporations in payments terminating in 1981. 43 U.S.C.
§1609. ANCSA also required each Regional corporation to share 70%
of its proceeds from subsurface and timber resource development
of its ANCSA lands with other land-owning Regional Corporations,
and in turn with all Village Corporations. 43 U.S.C. §1606(i) and (j).
(See discussion infra.)

15

** *

[W]e have no doubt that Congress intended, at
least, that those Native corporations that did
select land for its economic potential would
be able to develop that land and to realize that
potential.

Koniag, Inc. v. Koncor Forest Resource, 39 F.3d 991,
996-997 (9th Cir. 1994) (emphasis added). See also City of
Saint Paul v. Evans, 344 F.3d 1029, 1031 (9th Cir. 2003)
(ANCSA corporations “receive land from the federal
government for the purpose of economic development
in Native communities”). In short, Congress knew that
Alaska Native Corporations would select most of their
lands based on economic potential and that the freedom to
develop these lands was absolutely essential to the success
of the settlement embodied by ANCSA.

The revenues derived from development of these
ANCSA lands are fundamental to the innovative
settlement Congress devised. Under ANCSA §7(i), 43
U.S.C. §1606(i), each Regional Corporation is required to
share seventy percent (70%) of its revenues from natural
resource development (including timber, minerals, and oil
and gas) on its ANCSA lands with the other land-owning
Regional Corporations. Under §7(j), 43 U.S.C. §1606(j),
one-half of the revenues that are received by a Regional
Corporation under §7(i) are distributed to the Village
Corporations located within its regional boundaries, and
to its “at large” shareholders (those not enrolled to a
Village Corporation). Thus, a share of resource revenues
from ANCSA lands flow directly or indirectly to nearly all
Alaska Natives. Well over $1 billion derived from oil and

16

gas, mineral, and timber resource development of ANCSA
lands has been distributed to ANCSA Corporations and to
Alaska Natives under 43 U.S.C. §1606(i) and (j) since 1971.°

In summary, ANCSA served two critical national
purposes, one of which—extinguishment of Alaska
Native aboriginal title—has already been accomplished.
The accomplishment of the second purpose—securing
the economic futures of Alaska Natives—is an ongoing
concern that hinges significantly on the meaning of
§3103(c). Yet, without even acknowledging the existence
of ANCSA, the Ninth Circuit panel interpreted §3103(c)
in a way that would subject up to 40% of all ANCSA
lands to restrictive CSU regulations, rendering them
undevelopable and essentially valueless. In effect, the
Ninth Circuit panel eviscerates a large portion of the
ANCSA land settlement. If that holding is allowed to
stand, then ANILCA took back much of what ANCSA
promised to Alaska Natives in return for giving up their
aboriginal rights.

But surely the Ninth Circuit’s interpretation cannot
stand. As another panel of that court said in a slightly
different context just a few years after ANILCA was
passed, “[I]t is inconceivable that Congress would have
extinguished [Alaska Natives’) aboriginal claims and
insured their economic well-being by forbidding the
only real economic use of the lands so conveyed.” City .

8. ASRC, one of the ANCSA Regional Corporations, alone
has distributed in excess of $1 billion pursuant to §7(i). See http://
www.asre.com (“About Us,” then “We Are ASRC”); see also
“Alaska Native Corporations Share Wealth: ANCSA 7(i) and 7(j)
Mandates Redistribution of Some Profits,” Alaska Business Monthly,

September 2009 (available at http://www.,thefreelibrary.com).

17

of Angoon, 749 F.2d at 1418.9 When read against the
backdrop of ANCSA, one critical intention of §3103(c)
becomes abundantly clear: to preserve the economic value
of lands conveyed to Native Corporations by exempting
them from regulations written to govern CSUs.

2. The legislative history of ANILCA is
consistent with the purposes of ANCSA,
but the Ninth Circuit offered a selectively
edited version to bolster its interpretation
of §3103(c).

Having interpreted the text of §3103(c) without even
one mention of ANCSA, the Ninth Circuit panel went on
to suggest that its strained reading of the provision is
supported by the legislative history of ANILCA. This is
absolutely, unequivocally incorrect. Every single piece of
legislative history cited by the panel, quoted accurately
and fully, actually demonstrates that Congress intended
to exempt ANCSA lands from all CSU regulations.
There is no legislative history whatsoever supporting the

9. The Ninth Circuit panel that decided City of Angoon relied
heavily on ANCSA in concluding that Native Corporation lands
within the external boundaries of a National Monument created
by ANILCA are not “within” the Monument and therefore are not
subject to a timber harvesting ban applicable to the Monument. See,
e.g., 749 F.2d at 1416 (citing ANCSA §22(i) (43 U.S.C. §1621(i)) in
support of its conclusion that “Congress has made it clear that the
Secretary cannot manage private lands which have been conveyed
to a Native Corporation”). That panel also cited §3103(c) as support
for its conclusion that “the drafters of ANILCA never intended the
mere location of boundary lines on maps delineating the overall
conservation system to indicate that private lands conveyed to Native
Corporations were to be treated as public lands.” /d. at 1417-18.

18

panel’s artificial distinction between Alaska-specific and
nationwide regulations. Only through extensive editing
was it able to paint a different picture.

Congress began considering legislation that
would become ANILCA in the late 1970s. Alaska
Native Corporations, having already made their land
selections, were greatly concerned. ANILCA would place
approximately 105 million acres of federal lands in new or
expanded CSUs, and Congress sought to include entire
ecosystems within the units. As a result, many ANCSA
lands would be completely surrounded by CSU lands:
the Native Corporation amici alone own about 12 million
acres within ANILCA CSUs, comprising about 30% of
all ANCSA lands; all ANCSA Corporations together own
approximately 18 million acres within ANILCA CSUs, or
about 40% of all ANCSA lands.” The Native Corporations
knew that this development would directly threaten their
rights under the ANCSA land settlement, and they fought
vigorously for the inclusion of provisions in ANILCA that
would preserve the economic potential of their lands and
prevent them from being affected by the CSUs, and to
preserve the promise made to Alaska Natives in ANCSA
that they would be able to economically develop their
ANCSA lands. See, e.g., 126 Cong. Rec. 21882 (1980)
(referencing concerns of Doyon, Limited president Tim

10. See Exhibit 1 attached hereto (Map of ANCSA Lands
Within CSUs). Some of the Native Corporation amici’s land holdings
in CSUs are surface estate only, some are subsurface only, and some
are both surface and subsurface. The ANCSA lands within CSUs
represent from about 20% to 100% of the total ANCSA entitlements
of the individual amici. The small portion of CSU lands within pre-
ANCSA Wildlife Refuges is subject to additional federal refuge
regulation pursuant to 43 U.S.C. §1621(g), and 16 U.S.C. §3143.

19

Wallis). These efforts, and those of the State of Alaska,
resulted in the enactment of §3103(c).

Section 3103(c) (ANILCA §103(c)) began as an
amendment offered by Representative John Seiberling.”
On May 15, 1979, Rep. Seiberling took to the House floor
and described in detail the purpose of the amendment:

The other amendment is an amendment to
respond to a point that I think has been beaten
to death by the gentleman from Alaska (Mr.
YOUNG) but I think it needs to be clarified

because some people may not understand.

The Udall-Anderson bill...includes certain
State-selected lands and certain State-owned
lands on which they already have patent (as
well as some Native or private lands) within
the borders of some of the conservation system
units in Alaska.... [TJhere is no question in
my mind that the present text of the Udall-
Anderson bill does not alter in any way the
ability of the State or Natives to do what it will
with those lands...."”

11. Rep. Seiberling’s amendment was in the form of a new
subsection (c) of §810 of H.R. 3651, the Udall-Anderson bill that
eventually became ANILCA. Section 810 later was renumbered
as §103, and the subsection 810(c) proposed by Seiberling precisely
duplicates the enacted version of §103(c), with the minor exception
of an internal cross-reference at the end to account for the different
numbering. See 125 Cong. Rec. 10304-05 (1979).

12. Here, Rep. Seiberling was referencing numerous provisions
of ANILCA other than §3103(c) that establish that Native lands are
not to be administered as part of CSUs. See Section C, below.

20

All this amendment does is restate and make
clear beyond any doubt that any State, Native
or private lands, which may lie within the
outer boundaries of the conservation system
unit are not parts of that unit and are not
subject to regulations which are applied to
public lands which, in fact, are part of the unit.

[T]his amendment reinforces the already
ample protections accorded to such lands that
are within the boundaries of such a park or
refuge or other conservation area.

125 Cong. Rec. 11158 (emphasis added).

In suggesting that the legislative history supports its
reading of §3103(c), the Ninth Circuit panel cited just a few
words of this statement, noting only that Rep. Seiberling
“offered the view that his amendment ‘restate[d] and
ma{de] clear’ that nonfederal lands within CSUs would
not be ‘subject to regulations which are applied to
public lands which, in fact, are part of the unit.”” Op. 24
(citing 125 Cong. Rec. 11158). The panel omitted Rep.
Seiberling’s contemporaneous explanation that he offered
his amendment to reinforce the existing text of the bill,
which, he believed, “does not alter in any way the ability
of the State or Natives to do what it will with those lands.”
125 Cong. Rec. 11158 (emphasis added).

After providing the summary quoted above, Rep.
Seiberling responded to skeptical questioning from Alaska
Rep. Don Young:

21

Mr. YOUNG of Alaska. Are there any catch
words in the gentleman’s amendment that say
there is compatibility with the unit or anything
like this that will preclude us because of some
nice little sharp lawyer sitting down in one of
the coalition areas?

** *

Mr. SEIBERLING. Mr. Chairman, what it does
is say that the fact that it is within the boundaries
drawn on the map for that conservation unit
does not in any way change the status of that
State, native, or private land or make it subject
to any of the laws or regulations that pertain
to U.S. public lands, so that those inholdings
are clearly not controlled by any of the public
land laws of the United States.

Id. (emphasis added).

Citing part of Rep. Seiberling’s answer, the Ninth
Circuit panel observed that “[tJhe first sentence of §3103(c)
makes clear that the boundaries of CSUs ‘do[...} not in any
way change the status of that State, native, or private land’
lying within those boundaries.” Op. 21 (quoting 125 Cong.
Rec. 11158 (1979)). The panel’s reliance on this passage is
puzzling. Before ANILCA, the “status” of these lands was
that they did not lie within CSUs and therefore were not
subject to regulations governing CSUs. Rep. Seiberling’s
clarification—that he offered §3103(c) to ensure that this
status would not change—conflicts starkly with the panel's
interpretation of the provision.

22.

More troubling is the fact that the Ninth Circuit panel
chose to cut Rep. Seiberling’s one-sentence answer in half
and omit the portion that directly contradicts its holding:
the statement that the location of non-public land within
CSU boundaries does not “make it subject to any of the
laws or regulations that pertain to U.S. public lands, so
that those inholdings are clearly not controlled by any
of the public land laws of the United States.” 125 Cong.
Rec. 11158 (emphasis added). The panel also ignored Rep.
Seiberling’s declaration, from the same floor session,
that his amendment “makes it clear that any lands,
State, native or private lands, which lie within the outer
boundaries of the conservation unit in the Udall bill are
not subjected to regulations which are applied to public
lands.” Id. at 11156 (emphasis added).

ANILCA’s exemption of ANCSA lands from CSU
regulations was also confirmed by the primary sponsor
of ANILCA in the House, Representative Morris “Mo”
Udall, who stated:

It is important to remember, when considering
the conservation and other provisions of the
Udall-Anderson substitute, that this bill, like
all other proposals for legislation on this topic
...48 @ direct out-growth of the Alaska Native
Claims Settlement Act of 1971.... Thus, it is
important to recall the relationship between
the conservation system units...and the lands
which the Native peoples of Alaska have
received and will receive pursuant to the Alaska
Native Claims Settlement Act in return for
the extinguishment of their claims based on
aboriginal title.

23

We recognize that there are certain lands which
have been selected by Native Corporations
and which are within the exterior boundaries
of some of the conservation system units. This
situation occurs because of the location of Native
villages along stream courses and because
unit boundaries have been drawn, wherever
possible, to include whole ecosystems and to
follow natural features, and thus also include
some Native Corporation lands. / want to make
clear that inclusion of these Native lands
within the boundaries of conservation system
units is not intended to affect any rights which
the Corporations may have under this act, the
Alaska Native Claims Settlement Act, or any
other law, or to restrict use of such lands by
the owning Corporations nor to subject the
Native lands to regulations applicable to the
public lands within the specific conservation
system unit.

125 Cong. Rec. 9905 (1979) (emphasis added).

In its opinion, the Ninth Circuit panel merely observed
that Rep. Udall “declared that nonfederal land would not
be constrained by ‘regulations applicable to the public
lands within the specific conservation system unit.” Op.
24 (citing 125 Cong. Rec. 9905 (1979)). It made no mention
whatsoever of Rep. Udall’s explanation, in the same
sentence, that “inclusion of these Native lands within the
boundaries of conservation system units is not intended to
affect any rights which the corporations may have under
this act, the Alaska Native Claims Settlement Act, or any
other law, or to restrict use of such lands by the owning
corporations{.]” 125 Cong. Rec. 9905 (emphasis added).

24

The Senate Committee on Energy and Natural
Resources shed further light on the scope of the exemption.
In a 1979 report, the Committee explained:

Those private lands, and those public lands
owned by the State of Alaska [located within
the external boundaries of CSUs] 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
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. The Committee’s intent, then,
was that non-public lands within the external boundaries
of CSUs would be exempt from CSU regulations but would
remain subject to “Federal laws and regulations of general
applicability to both private and public lands,” such as the
Clean Air Act and the Clean Water Act.

The Committee’s report also reveals why the word
“solely” was included in the second sentence of §3103(c)—a

25

reason quite different than the Ninth Circuit panel
asserted. Without that word, the second sentence would
exempt non-public lands within the external boundaries
of CSUs from all “regulations applicable [ ] to public lands
within [CSUs].” See 16 U.S.C. §3103(c). Such language
could be read to exempt these non-public lands from not
only CSU regulations but also regulations promulgated
under environmental statutes like the Clean Air Act
and the Clean Water Act. As such, the word “solely”
was included to distinguish between these two classes of
regulations.

The Ninth Circuit panel acknowledged only a handful
of the Committee’s. words, stating that the report “notes
that §[3]103(c) would exempt non-Federal land from
‘regulations which may be adopted to manage and
administer any [CSU] which is adjacent to, or surrounds,
the private or non-Federal public lands.’”” Op. 24-25
(citing S. Rep. No. 96-413, at 303 (1979), reprinted in
1980 U.S.C.C.A.N. 5070, 5247). The panel said nothing
about the second sentence quoted above, which shows
that the Committee did not intend to distinguish between
nationwide and Alaska-specific regulations, but rather,
between CSU regulations and laws—like the Clean Air
Act and the Clean Water Act—that apply to all land in
the United States, whether public or private. Only by
ignoring the actual words of the Senate Report could the
Ninth Circuit avoid the Committee’s true intent.

Finally, just before the final vote on ANILCA, a
question by the president of Doyon, Limited (one of the
Native Corporations filing this brief) prompted Alaska
Senator Ted Stevens (joined by Senator Henry “Scoop”
Jackson, Chairman of the Senate Committee on Energy

26

and Natural Resources) to offer one last assurance to
Alaska Native Corporations that the use and development
of their lands would not be affected by the Act:

If I may ask it of the chairman, there has been
a question raised by Tim Wall{is], president of
Doyon, Ltd., one of the Alaska Native regional
corporations. I wish to make certain that the
record is clear with regard to the question he
raised.

In the substitute, many parcels of land selected
by Native corporations are included within
the exterior boundaries of the proposed
conservation system units. This situation occurs
because the unit boundaries have been drawn,
whenever possible, to encompass natural areas
or to follow natural features, and thus also to
include Native lands which, if the corporations
ever decide to dispose of their property, could
become part of the conservation system unit.
The fact that Native lands lie within the
boundaries of conservation system units is
not intended to affect any rights which the
corporations have under this act, the Alaska
Native Claims Settlement Act, or any other
law.... The Native organizations have been
given repeated assurances that including
their lands within conservation units will
not affect the implementation of the Native
Claims Settlement Act. We intend to have
these assurances translated into practice by
the administrative agencies.

27

Does the Chairman of our Committee agree
with that statement?

MR. JACKSON: Mr. President, I agree with
the Senator from Alaska on this matter.

126 Cong. Rec. 21882 (1980) (emphasis added). The Ninth
Circuit panel did not acknowledge Senator Stevens’
unambiguous pledge in its opinion.

Based upon these emphatic declarations, Alaska
Native Corporations had good reason to believe that
Congress intended to stand by the promise it made in
ANCSA and that Native Corporation lands would be
exempt from CSU regulations. Only by heavily editing
and mischaracterizing this legislative history was the
Ninth Circuit panel able to justify a different conclusion.

C. The location of §3103(c) within ANILCA and
the language of other relevant provisions of the
Act demonstrate Congress’s intent to exempt
ANCSA lands from CSU regulations.

This Court has held that provisions of ANILCA “must
be viewed in the context of the Act as a whole.” Amoco,
480 U.S. at 549; see also Dada v. Mukasey, 554 U.S. 1, 16
(2008); U.S. Nat'l Bank of Oregon v. Indep. Ins. Agents
of Am., Inc., 508 U.S. 438, 455 (1993). Viewing §3103(c) in
the context of ANILCA as a whole, any lingering doubts
about its meaning are resolved.

First, the placement of §3103(c) within ANILCA is
telling. In its brief in opposition to certiorari, the United
States suggested that §3103(c) must be inconsequential

28

because it is “buried” in the “Maps” section, §3103.
However, §3103 is actually a critical part of ANILCA. In
ANILCA, Congress described the 105 million acres of
CSUs it was creating or expanding by reference to the
maps incorporated into the Act, rather than using legal
descriptions. By including subsection (c), Congress sought
to eliminate the possibility that a person would look at an
ANILCA map, see that non-public land falls within the
boundaries of a CSU, and assume that it is part of the
CSU or subject to CSU regulations. As discussed above,
Representative Seiberling, the sponsor of the amendment
that became §3103(c), explained on the House floor that
this was the precise purpose of the provision:

Mr. Chairman, what (§3103(c)] does is say that
the fact that (State, native, or private land] is
within the boundaries drawn on the map for
that conservation unit does not in any way
change the status of that State, native, or
private land or make it subject to any of the
laws or regulations that pertain to U.S. public
lands, so that those inholdings are clearly not
controlled by any of the public land laws of the
United States.

125 Cong. Rec. 11158 (1979) (emphasis added). Far
from creating a distinction between Alaska-specific and
nationwide regulations, as the Ninth Circuit held, §3103(©)
clarified that non-public lands would not be subject to any
CSU regulations, notwithstanding their location on an
ANILCA map.

This reading of §3103(c) is also consistent with
other relevant provisions of ANILCA, none of which

29

were given any weight by the Ninth Circuit. The first
section of ANILCA explains that the Act serves both
environmental and economic purposes, in that it “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|.}”
16 U.S.C. §3101(d) (ANILCA §101(d)) (emphasis added).
The Ninth Circuit panel cited this provision but then
immediately mischaracterized a passage from an earlier
Ninth Circuit decision to suggest that ANILCA is a
strictly conservational measure: “Summarized succinctly,
ANILCA is generally concerned with the designation,
disposition, and management of land for environmental
preservation purposes.’ Stratman v. Leisnoi, Inc., 545
F.3d 1161, 1165 (9th Cir. 2008).” Op. 19.

What the Ninth Circuit actually said in Stratman
was this: “Although ANILCA is generally concerned
with the designation, disposition, and management of
land for environmental preservation purposes, part of
ANILCA is devoted to the implementation and cleanup
of ANCSA.” 545 F.3d at 1165 (emphasis added; citation
omitted). The panel’s careful avoidance of the ANCSA
reference is telling. Of ANILCA’s 180 pages, only about
45 related to the creation or expansion of CSUs (see Titles
II-VII), while most of the remaining 135 were made up
of compromise provisions addressing various ANCSA
and State concerns (see, e.g., Titles VIII-XIV and parts
of Title I). Contrary to the panel’s suggestion, ANILCA
was not only directed at environmental protection—it was
also directed at implementing ANCSA.

30

Further evidence of the overriding importance of
ANCSA can be found in §1412 of ANILCA (43 U.S.C.
§1639), which provides, “Except as specifically provided
in this Act, (i) the provisions of the Alaska Native Claims
Settlement Act are fully applicable to this Act, and (ii)
nothing in this Act shall be construed to alter or amend
any of such provisions.” Needless to say, the Ninth
Circuit’s interpretation of §3103(c) would “alter or amend”
the very promise at the heart of ANCSA, that ANCSA
lands would be available for economic development and
other purposes, for the benefit of Alaska Natives.

Several more-specific provisions of ANILCA
demonstrate that non-public lands within the external
boundaries of CSUs are generally exempt from CSU
regulations. Most notably, 43 U.S.C. §1635(0)(2) (ANILCA
§906(0)(2)) provides, “Until conveyed [to a Native
Corporation or the State], all Federal lands within the
boundaries of a conservation system unit...shall be
administered in accordance with the laws applicable to
such unit.” (Emphasis added.) The obvious corollary to this
requirement is that once lands within the boundaries of a
CSU are conveyed to a Native Corporation or the State,
they shall not “be administered in accordance with the
laws applicable to such: unit.” If this were not the case, 43
U.S.C. §1635(0)(2) would be entirely superfluous.

Another provision, Section 304(f) (16 U.S.C. §668dd
note), provides that owners of non-federal lands within any
National Wildlife Refuge (including ANCSA corporations)
may enter into cooperative management agreements
with the Secretary of the Interior, and “the land subject
to the agreement shall be managed by the owner...in a
manner compatible with the major purposes of the refuge.”

31

(Emphasis added.) If a landowner does not enter into a
cooperative management agreement, the lands are not
subject to management compatible with the CSU. If this
were not the case, ANILCA §304(f) would be unnecessary.

Also, 43 U.S.C. §1636 (ANILCA §907), which
established the Alaska Land Bank Program, provides
in subsections (a)(2) and (b)(8) for a private landowner
(including ANCSA corporations) whose lands adjoin
federal land to “consent” to coordinated management
by the federal government. If the federal government
already had the power to manage such private lands, no
such consent would be necessary.

These are the type of provisions to which
Representative Seiberling was referring when he said,
“{TJhere is no question in my mind that the present [pre-
§3103(c)] text of the Udall-Anderson bill does not alter in
any way the ability of the State or Natives to do what it
will with those lands.” 125 Cong. Rec. 11158 (emphasis
added). His proposal of the language that would become
§3103(c) was intended to eliminate any possible remaining
doubt in this regard.

D. The Ninth Circuit’s interpretation of §3103(c)
would lead to an absurd result.

This Court has instructed that an interpretation of a
statute that leads to an absurd result should be avoided
if there is a reasonable alternative interpretation. See,
e.g., Tarrant Regional Water Dist. v. Herrmann, 133
S. Ct. 2120, 2131 (2013); United States v. Wilson, 503
U.S. 329, 334 (1992). Under the Ninth Circuit panel’s
strained interpretation of §3103(c), non-public lands

32

(including ANCSA lands) that are situated within the
external boundaries of Alaska CSUs would be subject to
nationwide CSU regulations but would be exempt from
Alaska-specific CSU regulations. However, the National
Park Service has itself recognized that Alaska-specific
regulations “generally are relaxations of prohibitions
contained in the general regulations.” See 61 Fed. Reg.
35134 (1996). It would be patently absurd for ANCSA
lands to be subject to greater use restrictions than the
surrounding CSUs, and this Court should avoid such a
result.

E. The amici respectfully urge this Court to
resolve this case in a manner that does not
disturb the Ninth Circuit’s “Katie John”
subsistence decisions.

While the primary objective of the Native Corporation
amici in filing this brief is to have this Court reverse
the Ninth Circuit’s erroneous interpretation of §3103(0),
they also want to stress the critical importance of this
Court doing so in a way that leaves undisturbed the Ninth
Circuit’s 1995 holding that certain navigable waters in
Alaska are “public lands” for purposes of §804 of ANILCA
(16 U.S.C. §3114) and are therefore subject to the rural
subsistence priority established by that provision. Alaska
v. Babbitt, 72 F.3d 698 (9th Cir. 1995), cert. denied, 517
U.S. 1187 (1996); see also John v. U.S., 247 F.3d 1032 (9th
Cir. 2001) (en banc).

It appears likely that the United States will argue
that even if the Ninth Circuit’s interpretation of §3103(c)
is overbroad, the navigable river at issue still constitutes
“public lands” for purposes of that statute under the

33

Babbitt holding, and thus is subject to NPS regulation.
See “Brief for the Respondents in Opposition,” at pp. 15-16.

However, the matter is not presently before this
Court, nor should it be. The Ninth Circuit did not address
§3103(c) in its subsistence-specific decision in Babbitt, and
while the parties in the instant case debated the scope of
the Babbitt holding in their lower court briefing, neither
the district court nor the Ninth Circuit reached that issue.
It is clear that Babbitt was decided in a manner that does
not apply to the instant case.

The holding in Babbitt resolved a decades-long cycle of
litigation and intense political division about subsistence
rights, and this Court has rejected several invitations to
review it. See Alaska State Legislature v. Alaska, 516
U.S. 815 (1995); Alaska Fish & Wildlife Federation &
Outdoor Council, Inc. v. Alaska, 516 U.S. 906 (1995);
Alaska v. Babbitt, supra; John v. U.S., 720 F.3d 1214 (9th
Cir. 2013), cert. denied sub nom. Alaska v. Jewell, 134 S.
Ct. 1759 (2014).

The Ninth Circuit’s 2013 decision in John v. U.S. upheld
the federal subsistence regulations adopted pursuant to
ANILCA Title VIII. See 16 C.F.R. Part 242. In part,
this decision upheld the application of these subsistence
regulations to waters on ANCSA lands within CSUs, by
upholding their definition of “public lands” and “inland
waters” for subsistence purposes based upon federally
reserved water rights in such Native-owned waters. Jd.
at 1232-1233. It thereby extended to such Native-owned
waters the subsistence priority under ANILCA §804. The
decision in effect used federally reserved water rights
to transform these Native-owned waters into “public

34

lands” for the limited purposes of the subsistence priority,
resolving this difficult issue in a manner that the Native
community strongly supports. This decision includes a
lengthy and detailed history of the subsistence issue and
its resolution by the courts, as well as a recognition of the
difficulties encountered by the courts in resolving this
dispute and the limitations of the novel “reserved water
rights” solution eventually reached. John, 720 F.3d at
1226, 1245.

Federal reserved water rights arising in connection
with provisions of ANILCA cannot be applied so as to
amend ANCSA or frustrate the fundamental purposes
of its land conveyances. As discussed above, §1412 of
ANILCA (43 U.S.C. §1639).provides, “...(i) the provisions
of the Alaska Native Claims Settlement Act are fully
applicable to this Act, and (ii) nothing in this Act shall be
construed to alter or amend any of such provisions.”

Nor can this doctrine be applied in a way that renders
§3103(c) inoperative. If this unique subsistence rationale
were extended to matters of land use regulation arising
under §3103(c), the result would simply be to swallow
and eviscerate §3103(c) as it relates to ANCSA lands in
CSUs, because such lands contain large amounts of water
acreage, which could be subject to federal reserved water
rights.’* Such a result would render §3103(c) superfluous,
and thus would be contrary to this Court’s precedents.

13. Pursuant to 43 U.S.C. §1631(a)(1) and (2), Alaska Native
Corporations receive title to the lands beneath nearly all waters
within or adjacent to their ANCSA land selections. This is important
because Alaska contains so many lakes (3 million) and rivers (12,000),
and because up to 50% or more of the surface area of lands in Alaska
can be occupied by waters, depending upon the location.

35

See, e.g., TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001).
Accordingly, any reasonable application of the regulatory
exemption under §3103(c) to Native lands in CSUs must
include a clear extension of this exemption to such waters
for it to be effective.

The 2013 decision in John v. U.S., and this Court’s
subsequent denial of certiorari, appear to have finally
put to rest further direct challenges relating to the
subsistence issue. However, in light of the Ninth Circuit’s
recognition of the difficulties and limitations of its original
Babbitt holding, the 2013 decision should not be applied to
this case concerning the application of §3103(c) to ANCSA
lands and waters.

Today, nearly 20 years after the Ninth Circuit
announced its decision, the Babbitt holding is a well-
settled fact of life for rural Alaskans who rely heavily
on subsiste: 2e hunting and fishing. Thus, in seeking to
have this Court reverse the Ninth Circuit’s erroneous
interpretation of §3103(c), the Native Corporation amici
also wish to express their firm support for the Babbitt
holding as applied to the ANILCA subsistence preference,
and they strongly urge this Court to resolve the instant
case in a manner that leaves that holding intact as the
solution to subsistence.

IV. Conclusion.

For the foregoing reasons, this Court should reverse
the Ninth Circuit’s holding in this matter and hold instead
that §3103(c) exempts Native Corporation lands within the
boundaries of CSUs from all CSU regulations, whether
those regulations are applicable nationwide or only in
Alaska, and whether those regulations apply to public
lands or to private lands within such CSUs.

Respectfully submitted,
JosH VAN GORKOM JAMES D. LINXWILER, Ese.
ALLEN WELLMAN McNeEw Counsel of Record
Harvey, LLP Guess & Rupp P.C.

Five Courthouse Plaza 510 L Street, Suite 700

Greenfield, Indiana 46140 Anchorage, Alaska 99501

(317) 468-9800 (907) 793-2200
jlinxwiler@guessrudd.com

Counsel for Native Corporation Amici

37

EXHIBIT 1

MAP OF ANCSA LANDS WITHIN ALASKA
FEDERAL CONSERVATION SYSTEM UNITS

seLePUNOY NSD Urn
suonDes Boum UOdN peseg
_ SOY ZL1'094'8t

Arepuriog N$> jwepes [7]
Asepunog spur) ¥SONV (_]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0549%3A11. Public record. Not legal advice.