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

No. 14-1209

In the

Supreme Court of the Gnited States

o

JOHN STURGEON,

Petitioner,

Vv.

SUE MASICA, in Her Official Capacity as

Alaska Regional] Director of the

National Park Service, et al.,

Respondents.

o-=

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

~—

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONER

+

DAMIEN M. SCHIFF

Counsel of Record

ETHAN W. BLEVINS, of Counsel

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

E-mail: dms@pacificlegal.org

E-mail: ewb@pacificlegal.org

Counsel for Amicus Curiae

Pacific Legal Foundation

i

QUESTION PRESENTED

The Alaska National Interest Lands Conservation

Act (ANILCA) says state, Native, and private lands

within the boundaries of Alaska’s national parks are

not part of the park system. These non-federal lands

are free from regulations applicable “solely” to the

“conservation system unit” in which they sit.

“Conservation system unit” refers to various federally

managed wilderness areas in Alaska, including

national parks. Does ANILCA prohibit the application

of National Park Service regulations to non-federal

lands within Alaska’s national parks?

ss

TABLE OF CONTENTS

QUESTION PRESENTED .. ——

TABLE OF AUTHORITIES ie cae weds

INTEREST OF AMICUS CURIAE ..........

INTRODUCTION AND SUMMARY OF

ARGUMENT cer oe | ke :

I.

Il.

ARGUMENT .....

THE PLAIN LANGUAGE OF ANILCA

PRESERVES ALASKA’S PRIMACY

OVER LAND AND WATER USE BY

LIMITING THE REACH OF NATIONAL

PARK SERVICE REGULATIONS TO

FEDERAL LANDS

CANONS OF STATUTORY

CONSTRUCTION CONFIRM THAT

ANILCA DOES NOT EXPAND

NATIONAL PARK SERVICE

REGULATIONS TO STATE, NATIVE,

AND PRIVATELAND._____........

A. The Context of § 3103(c) Demonstrates

That Congress Intended for Non-

Federal Lands Encased in

Conservation System Units To Remain

Free of Default National Park Service

Ds: oxteeseee ss 606065

B. ANILCA Lacks Any Clear Statement

of Intent To Trespass upon Alaska’s

Supremacy over Management of Non-

Federal Land and Water .........

ill

TABLE OF CONTENTS—Continued

III. EVEN IF ANILCA IS AMBIGUOUS,

THIS COURT SHOULD NOT DEFER TO

THE NATIONAL PARK SERVICE’S

INTERPRETATION -

A. The National Park Service’s

Patchwork Approach To Regulating

Non-Federal Land and Water Is Not a

Permissible Reading of the Statute

B. This Court Should Not Defer to the

National Park Service’s Interpretation

Because Other Federal Agencies Also

Manage Conservation System Units

Under ANILCA....

C. The Agency’s Flip-Flop in Its

Interpretation of ANILCA

Extinguishes Any Remaining

Persuasive Power .

oo Pe eee ee eee

Page

10

11

13

14

17

1V

TABLE OF AUTHORITIES

Page

Cases

Alaska Dep’t of Envt’l Conservation v. E.P.A.,

540 U.S. 461 (2004) . re eam ee 15

Bowen v. American Hosp. Ass'n,

476 U.S. 610 (1986) . ‘ : ey

Chevron, U.S.A., Inc. v. Natural Res.

Def. Council, 467 U.S. 837 (1984) .... 3, 11-12, 14

Coeur Alaska, Inc. v. Se. Alaska Conservation

Council, 557 U.S. 261 (2009) . a a

Decker v. Nw. Envtl. Def. Ctr.,

133 S. Ct. 13826 (2013) . - LBM FT aes: 1

Good Samaritan Hosp. v. Shalala,

508 U.S. 402 (1993) ... ... ars cc sore

Hess v. Port Authority Trans-Hudson Corporation,

513 U.S. 30 (1994) ee Vee waa d ies )

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ... 15

Michigan v. EPA, 135 S. Ct. 2699 (2015) .. 11-12

Mohamad uv. Palestinian Authority,

es a ene a cee wee 6 640 6 4

Moskal v. United States, 498 U.S. 103 (1990) . . 4

Nat? Cable & Telecommunications Ass'n v. Brand

X Internet Services, 545 U.S. 967 (2005) . ... 15

Proffitt v. FDIC, 200 F.3d 855 (D.C. Cir. 2000) ... 13

Pub. Citizen v. United States Dep't of Justice,

491 U.S. 440 (1989) ..... .... b ees <a

v

TABLE OF AUTHORITIES—Continued

Page

Public Citizen Health Res. Grp. v. FDA,

704 F.2d 1280 (D.C. Cir. 1983) cack ee. ae

Rapanos v. United States, 547 U.S. 715 (2006) . .1

Robinson v. Shell Oil Co., 519 U.S. 337 (1997) .. 5

Sackett v. EPA, 132 S. Ct. 1867 (2012) .......... l

Skidmore v. Swift & Co.,

323 U.S. 134 (1944) . ; : 14-15

Solid Waste Agency of N. Cook Cnty. v. U.S. Army

Corps of Eng’rs, 531 U.S. 159 (2001) .......... 1

Sturgeon v. Masica, 768 F.3d 1066

(9th Cir. 2014) ... .. one io iw

United States v. Alaska, 521 U.S. 1 (1997) g

United States v. Bass, 404 U.S. 336 (1971) . . . 8-9

Utility Air Regulatory Grp. v. E.P.A.,

134 S. Ct. 2427(2014)... .. . 6,11

Weinberger v. Hynson, Westcott &

Dunning, Inc., 412 U.S. 609 (1973) : 7

United States Statutes

16 U.S.C. § 3101, et seq. oo mee 4-8, 1114

United States Regulations

96 C.F.R.§1.2(a)(3). . ... ... wee =) 1218

50 C.F.R. § 36.1(b) : , ,

vi

TABLE OF AUTHORITIES—Continued

Page

Miscellaneous

46 Fed. Reg. 31,836 (June 17,1981). . .. 16

48 Fed. Reg. 30,252 (June 30, 1983). ... ... .. 10

52 Fed. Reg. 35,238 (Sept. 18, 1987) ... ... 10,16

61 Fed. Reg. 35,133 (July 5, 1996) ae 10, 16

Hansen, Andrea K., The Alaska National Interest

Lands Conservation Act of 1980, 22 J. Land

Resources & Envtl. L. 435 (2002). ... ... 6, 9

1

INTEREST OF AMICUS CURIAE

Pacific Legal Foundation (PLF) was founded in

1973 and is widely recognized as the most experienced

nonprofit legal foundation of its kind.’ Among other

matters affecting the public interest, PLF defends the

constitutional principle of federalism environmental

law. PLF attorneys have participated as lead counsel

or counsel for amici in several cases before this Court

involving important issues of federal water and land

use law. E.g., Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct.

1326 (2013); Sackett v. EPA, 132 S. Ct. 1367 (2012);

Coeur Alaska, Inc. v. Se. Alaska Conservation Council,

557 U.S. 261 (2009); Rapanos v. United States, 547

U.S. 715 (2006); Solid Waste Agency of N. Cook Cnty.

v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001).

PLF urges the Court to uphold the principles of

federalism honored by ANILCA and vital to our

national structure. PLF also counsels against

deference to the National Park Service because the

statute does not leave room for agency discretion

regarding authority to regulate non-federal lands, and

because the National Park Service’s interpretation

cannot be reconciled with ANILCA’s text.

' Pursuant to this Court’s Rule 37.3(a), all parties have consented

to the filing of this brief. Letters evidencing such consent have

been filed with the Clerk of the Court.

Pursuant to Rule 37.6, PLF affirms that no counsel for any

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

PLF, its members, or its counsel made a monetary contribution to

the brief’s preparation or submission.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

What began as a lone hunting trip has escalated

into a battle over fundamental principles of federalism

and the reach of the federal bureaucracy. In 2007,

John Sturgeon boarded his hovercraft and struck out

into the Alaskan wilderness along the Nation River.

His plan to hunt moose fizzled when he bumped into

three National Park Service officers. They insisted

that national park regulations forbade the use of

hovercrafts on the river. Sturgeon pointed out that the

river ran threugh state land. He then learned that the

National Park Service claims the power to impose its

regulations on non-federal lands within Alaska’s

national parks. Sturgeon v. Masica, 768 F.3d 1066,

1069-70 (9th Cir. 2014).

Sturgeon believed that federal law sheltered these

non-federal areas from the reach of national park

regulations. Although non-federal enclaves within the

park system in other states are subject to such

national regulations, the federal government has taken

a different course with respect to Alaska, out of a

special sensitivity for Alaska’s and its native peoples’

autonomy. ANILCA shields state, Native, and private

land within “conservation system units” from Service

regulations applicable “solely” to such units. 16 U.S.C.

§ 3103(c). The statutory phrase “conservation system

unit” encompasses a variety of federally administered

parks, refuges, and preserves in Alaska. See id. §

3102(3).

Sturgeon sued to establish that, under ANILCA,

national park regulations cannot extend to navigable

waters within conservation units. But the district

court and the Ninth Circuit, indifferent to the unique

3

state-federal balance which ANILCA brokers, held that

all nationwide national park regulations apply to every

pocket of non-federal land within conservation system

units. Sturgeon, 768 F.3d at 1070-71, 1077-78.

That holding reaches far beyond a single

hovercraft traversing the Alaskan wilds. Federal

conservation system units sprawl across a massive

proportion of Alaska’s lands and waters. Many

Alaskans live in and rely upon state, private, and

Native land within these units. Upholding the lower

courts’ authorization of federal power over these non-

federal lands will hurt the livelihoods and recreational

pursuits of all Alaskans.

This Court should reverse. The text and context

of ANILCA protect non-federal enclaves within

conservation units from National Park Service control.

The Service’s contrary position, which no reasonable

construction of ANILCA supports, merits no deference

from this Court.

ARGUMENT

I

THE PLAIN LANGUAGE OF

ANILCA PRESERVES ALASKA’S

PRIMACY OVER LAND AND WATER

USE BY LIMITING THE REACH OF

NATIONAL PARK SERVICE

REGULATIONS TO FEDERAL LANDS

Statutory interpretation begins with the plain

language of the statute. This Court relies on text to

“give effect to the unambiguously expressed intent of

Congress.” Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, 467 U.S. 837, 843 (1984). Judges look to the

4

ordinary meaning of statutory text and do not resort to

legislative history unless the statute is ambiguous.

Mohamad v. Palestinian Authority, 132 S. Ct. 1702,

1709 (2012); Moskal v. United States, 498 U.S. 103, 108

(1990).

ANILCA is not ambiguous. It preserves the land-

use rights of the many state, Native, and private

landowners that reside within the vast reaches of land

and waterways otherwise dedicated as “conservation

system units” by the federal government. ANILCA’s

ordinary meaning exempts non-federal lands within

conservation system units from National Park Service

regulation. ANILCA provides that only federal lands

within the boundaries of such conservation system

units “shall be deemed to be included as a portion of

such unit.” 16 U.S.C. § 3103(c). In contrast, lands that

belong to “the State, to any Native corporation, or to

any private party [are not] subject to the regulations

applicable solely to public lands within such units.”

Id. ANILCA then defines a “conservation system unit”

as “any unit in Alaska of the National Park System,”

as well as certain other federally managed wilderness

areas. See id. § 3102(4).

By its plain terms, Section 3103 of ANILCA

establishes three common sense principles. Foremost,

non-federal land within Alaska’s federal conservation

units are not part of those units. Second, land that is

not part of a conservation system unit is not regulated

as if it were. And third, if the federal government

wants to regulate such non-federal areas as if they

* These inholdings may, however, be conveyed to the federal

government, after which “such lands shall become part” of the

conservation system unit “and be administered accordingly.” 16

U.S.C. § 3103(c).

5

were fully integrated into a conservation unit, then it

must obtain title.

This basic framework protects non-federal land

within these conservation system units from the

normal Service regulatory regime. It also vindicates

ANILCA’s larger purpose of providing a unique,

Alaska-specific framework for national parks. See, e.g.,

16 U.S.C. § 3101(d) (“This Act provides sufficient

protection for . . . scenic, natural, cultural and

environmental values . and at the same time...

adequate opportunity for satisfaction of the economic

and social needs of the State of Alaska and its people”).

II

CANONS OF STATUTORY

CONSTRUCTION CONFIRM THAT

ANILCA DOES NOT EXPAND NATIONAL

PARK SERVICE REGULATIONS TO

STATE, NATIVE, AND PRIVATE LAND

A. The Context of § 3103(c) Demonstrates

That Congress Intended for Non-

Federal Lands Encased in

Conservation System Units To

Remain Free of Default National Park

Service Regulations

Context shapes language and_ eliminates

candidate interpretations. Utility Air Regulatory Grp.

v. E.P.A., 134 S. Ct. 2427, 2442 (2014). Context

includes both the statutory section at issue and the

larger enactment. Robinson v. Shell Oil Co., 519 U.S.

337, 341 (1997).

Here, the immediate statutory context shows that,

under ANILCA, the Service’s default national park

6

regulations do not apply to non-federal property within

conservation system units. The definition of

“conservation system unit” is_ instructive. A

“conservation system unit” is “any unit in Alaska of the

National Park System.” 16 U.S.C. § 3102(4) (emphasis

added). Thus, any part of the National Park System is

also part of a conservation system unit. ANILCA says

that State, Native, and private lands are not part of

any conservation system unit: they are not “deemed to

be included as a portion of such unit” and “any such

lands shall become part of the unit” only upon federal

acquisition. 16 U.S.C. § 3103(c). Because non-federal

lands are not part of the unit, they cannot be part of

the national park system. Thus, national park

regulations do not apply to them.

The broader context of the statutory scheme leads

to the same conclusion. ANILCA placed over 100

million acres of Alaska within conservation system

units. Andrea K. Hansen, The Alaska National

Interest Lands Conservation Act of 1980, 22 J. Land

Resources & Envtl. L. 435, 435 (2002). This

unprecedented expansion of federal parks, preserves,

and refuges presented a unique challenge to the

federal-state balance of land management in Alaska.

Because so much of Alaska’s land and water is encased

within these federal conservation areas, the fate of the

state’s many non-federal enclaves implicates the heart

of the state’s sovereignty.

ANILCA therefore remained solicitous of the

interests of the state, Native corporations, and private

property owners. Indeed, the law intended both to

provide for the preservation of treasured landscapes

and to protect Alaska’s economy. ANILCA assures

“adequate opportunity for satisfaction of the economic

7

and social needs of the State of Alaska and its people.”

16 U.S.C. § 3101(d). For rural Alaskans, the Act offers

the right to continue “a subsistence way of life.” Id.

§ 3101(c). Contrary to Congress’s intent, the Ninth

Circuit’s reading hollows out these promises by coating

much of Alaska’s non-federal land in layers of

federal control.

For its part, the Ninth Circuit lost sight of context

when it homed in on the word “solely” in Section

3103(c): “No lands which [belong] 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.” 16 U.S.C. § 3103(c); Sturgeon

v. Masica, 768 F.3d at1077-79. “Solely,” said the Ninth

Circuit, means that non-federal lands are freed only

from the regulations that are specific to the Alaskan

conservation system units. Jd. at 1077-78. Nationwide

national park regulations still hold sway. Jd.

This reading ignores the rest of Section 3103(c).

Non-federal lands inside conservation system units are

not part of the national park system. Under the lower

court’s reading, non-federal lands within a

conservation system unit become an _ uncertain

hybrid—they are not part of the conservation system

unit yet somehow remain within the national park

system. This defies ANILCA’s clear dictate that these

non-federal lands are not part of the conservation

system unit in which they sit. They therefore cannot

be regulated as if they are. Thus, the Ninth Circuit’s

fixation on this single word “solely” violates the canon

that courts should harmonize all parts of a statute.

See Weinberger v. Hynson, Westcott & Dunning, Inc.,

412 U.S. 609, 631-32 (1973).

But another reading of “solely” reconciles the

8

language in Section 3103(c): the word clarifies that

Congress did not intend to exempt these pockets of

non-federal land from all generally applicable federal

laws, such as the Clean Water Act. In other words,

Congress inserted the word “solely” to ensure that non-

federal enclaves within conservation units would still

be subject to the United States’ general legislative

jurisdiction. This reading, unlike the Ninth Circuit’s,

does not elevate a single word over the rest of the text.

The plain language of ANILCA says non-federal

lands inside national parks are not part of the park

system. This includes waters that run through such

lands where non-federal parties own title to the

submerged land. These lands and waters are free from

all national park regulations.*

B. ANILCA Lacks Any Clear Statement

of Intent To Trespass upon Alaska’s

Supremacy over Management of Non-

Federal Land and Water

This Court protects federalism by presuming that

Congress does not intend to alter it absent a plain

statement. “[U]nless Congress conveys its purpose

clearly, it will not be deemed to have significantly

changed the federal-state balance.” United States v.

* Below, the Service argued that all navigable waters within

conservation units are themselves public lands subject to full

Service regulation under ANILCA because of federal reserved

water rights in Alaska waters. However, ANILCA’s definition of

“public lands” excludes waters in which the federal government

does not hold title. See 16 U.S.C. § 3102. And for the reasons

stated in the Petitioner's brief on the merits, no federal interest in

any of those waters is sufficient to qualify them as federal lands

under ANILCA.

9

Bass, 404 U.S. 336, 349 (1971). Primary jurisdiction

over land and water belongs to the sovereign states.

See e.g., Hess v. Port Authority Trans-Hudson

Corporation, 513 U.S. 30, 44 (1994); United States v.

Alaska, 521 U.S. 1, 5 (1997). Although national park

regulations often apply to inholdings in other states,

Alaska’s sovereignty faces unique peril because of the

staggering size of regions tagged as federal

conservation areas. See Hansen, supra at 435

(ANILCA added “more than 100 million acres of

conservation system units’ . more than doubling the

size of the national park system, almost tripling the

size of the wildlife refuge system, and nearly

quadrupling the size of the national wilderness

preservation system.”). Congress would not commit

matters of such political significance to agency hands

with winks and nods.

Courts should presume that Congress does not

intend to meddle with Alaska’s sovereign interests in

land and water regulation unless it speaks clearly.

Under the Ninth Circuit’s counter-intuitive reasoning,

language that appears to preserve the federal-state

balance brokered by ANILCA in fact tilts the scale

toward federal control.

In fact, the Ninth Circuit beats ANILCA’s

ploughshare back into a sword by refashioning

language designed to preserve a balanced federalism

into a weapon that assaults the federalism embodied

by the statute’s compromise. “[{I}n the absence of a

clearer direction from Congress,” this Court should

read ANILCA as a modest recognition of Alaska’s

sovereignty over land and water. Bass, 404 U.S. at

339.

10

Ill

EVEN IF ANILCA IS AMBIGUOUS,

THIS COURT SHOULD NOT DEFER TO

THE NATIONAL PARK SERVICE’S

INTERPRETATION

The National Park Service’s interpretation of

ANILCA subjecting non-federal lands and waters to

federal control contradicts the statute and does not

deserve this Court’s deference. The National Park

Service’s views on its authority over non-federal

enclaves have vacillated. In 1983, soon after

ANILCA’s passage, the National Park Service said that

its regulations did not reach “privately owned lands

and waters (including Indian lands and waters .. .)

within the boundaries of a park area.” 48 Fed. Reg.

30,252, 30,261 (June 30, 1983). This rule admitted of

one exception for “regulations relating specifically to

privately owned lands and waters under the legislative

jurisdiction of the United States.” Jd. A 1987 revision

affirmed and clarified the agency’s position. The

revision that said park regulations “do not apply on

non-federally owned lands and waters or on Indian

lands and waters owned individually or tribally within

the boundaries of a park area.” 52 Fed. Reg. 35,238,

35,239 (Sept. 18, 1987).

The National Park Service switched positions a

decade later. A 1996 amendment extended national

park regulations tc “waters subject to the jurisdiction

of the United States located within the boundaries of

the National Park System, including navigable waters

and the areas within their ordinary reach .. and

without regard to the ownership of submerged lands,

tidelands, or lowlands.” 61 Fed. Reg. 35,133, 35,136

(July 5, 1996). The Service’s interpretation differs

11

from the Ninth Circuit’s. Whereas the Ninth Circuit

held here that national park regulations apply across

all non-federal inholdings, the Service’s interpretation

applies its regulations only to navigable waters within

pockets of non-federal land.

Although the Service’s interpretation is not as

onerous as the Ninth Circuit’s, it does not mer

deference. ANILCA unambiguously shields Sturgeon

and all Alaskans on all non-federal lands and waters

from the reach of default national park regulations.

Even without ANILCA’s straightforward language, the

regulation is an unreasonable interpretation.

A. The National Park Service’s

Patchwork Approach To Regulating

Non-Federal Land and Water Is Not a

Permissible Reading of the Statute

Chevron deference applies to “an agency’s

reasonable interpretation of an ambiguity in a statute

that the agency administers.” Michigan v. EPA, 135

S. Ct. 2699, 2701 (2015). A Chevron analysis poses two

questions: (1) is the agency interpreting an ambiguous

text?; and if so, (2) is the agency’s interpretation

reasonable? Utility Air Regulatory Grp., 134 S. Ct. at

2439.

As discussed above, ANILCA’s plain language is

unambiguous. Non-federal lands shall not “be subject

to the regulations applicable solely to public lands

within such units.” 16 U.S.C. § 3103(c). This phrase

leaves no room for interpretive legerdemain.

Assuming arguendo that the language were

ambiguous, the National Park Service’s interpretation

of ANILCA could not fit into any fair reading of the

statute. Even under the deferential standard of

12

Chevron, courts must reject an unreasonable agency

interpretation. See Michigan v. EPA, 135 S. Ct. at

2707.

The National Park Service’s interpretation is

unreasonable because it applies a non-uniform rule to

a statute establishing a uniform standard for non-

federal enclaves. Under the agency’s interpretation,

national park regulations apply to navigable waters

within park boundaries “without regard to the

ownership of submerged lands, tidelands, or lowlands.”

36 C.F.R. § 1.2(a)(3). Otherwise, the agency recognizes

that its regulations only reach “federally owned lands

and waters administered by the National Park

Service.” Jd. at § 1.2(a)(1). This means that some

parts of non-federal enclaves are subject to park

regulation and other parts are not.

The statute does not support this checkerboard

interpretation. Rather, ANILCA contemplates uniform

treatment of all non-federal lands and waters within

conservation system units. Non-federal lands, which

are not part of the surrounding conservation system

unit, are exempt from regulations “applicable solely to

public lands within such units.” 16 U.S.C. § 3103.

ANILCA explicitly defines “land” to mean both lands

and waters. Id. § 3102(1). Thus, Congress intended

that this exemption should apply to land and water

within non-federal enclaves.

Even if Section 3103 were ambiguous regarding

what regulations apply to non-federal lands and

waters, the statute still would unambiguously apply

the same rule to both non-federal lands and waters. In

other words, nationwide park regulations either apply

to all non-federal lands and waters within conservation

units (as the Ninth Circuit held), or to none of them (as

13

Sturgeon contends). The lands and waters stand or fall

together.

Yet the Service’s interpretation treats land and

water differently. See 36 C.F.R. § 1.2(a). The Service

applies nationwide park regulations to water on non-

federal land, but not to the rest of the enclave. The

National Park Service’s regulation that claims

authority to regulate waters within conservation

system units regardless of ownership of the submerged

and surrounding land cannot be squared with any

permissible reading of ANILCA.

B. This Court Should Not Defer to the

National Park Service’s

Interpretation Because Other Federal

Agencies Also Manage Conservation

System Units Under ANILCA

Where multiple agencies share in administration

of a statute, this Court should not defer to a single

agency’s interpretation. See Bowen v. American Hosp.

Ass'n, 476 U.S. 610, 642 n.30 (1986); see also Proffitt v.

FDIC, 200 F.3d 855, 860 (D.C. Cir. 2000). “Any other

conclusion would produce an intolerable situation in

which different agencies could adopt inconsistent

interpretations of [a statute] and substantially

complicate the administration of the Act.” Public

Citizen Health Res. Grp. v. FDA, 704 F.2d 1280, 1287

(D.C. Cir. 1983).

The National Park Service interpretation does not

merit deference because other agencies also administer

conservation system units in Alaska, and interpret

Section 3103 differently. For example, the United

States Fish and Wildlife Service manages National

Wildlife Refuges in Alaska, which are included within

14

the definition of “conservation system unit.” See 50

C.F.R. § 36.1; 16 U.S.C. § 3102(4). The Department of

Agriculture and Forest Service also have imposed

subsistence management regulations pursuant to

ANILCA with regard to Alaska’s conservation system

units. See 36 C.F.R §§ 242.1-242.28.

The concurrent management of conservation

system units in Alaska allows for diverging and even

contradictory interpretations of ANILCA. Indeed, the

United States Fish and Wildlife Service employs a

different interpretation of its authority over non-

federal land within conservation system units under its

domain. That agency interprets its authority to extend

only to “federally-owned lands within the boundaries

of any Alaska National Wildlife Refuge.” 50 C.F.R. §

36.1(b). The Fish and Wildlife Service thus leaves non-

federal islands within wildlife refuges alone, while the

National Park Service seeks to expand its authority to

navigable waters on non-federal lands. Under such

circumstances, a court should not favor any one agency

and instead lean on its own judgment.

C. The Agency’s Flip-Flop in Its

Interpretation of ANILCA

Extinguishes Any Remaining

Persuasive Power

If Chevron does not apply, an agency regulation

may sometimes enjoy persuasive power under the

Skidmore deference: “We consider that the rulings,

interpretations and opinions of [an agency], while not

controlling upon the courts by reason of their

authority, do constitute a body of experience and

informed judgment to which courts and litigants may

properly resort for guidance.” Skidmore v. Swift & Co.,

323 U.S. 134, 139 (1944). However, the agency’s

15

shifting interpretation weakens its persuasive grip.

The space afforded under Chevron’s discretion

theory allows for changes in policy if the agency

remains within the confines of its discretion. Nat7

Cable & Telecommunications Ass’n v. Brand X Internet

Services, 545 U.S. 967, 980-81 (2005). But, under

Skidmore, policy changes undermine the level of

deference due to the agency’s interpretation.

This Court has frequently applied more scrutiny

to agency interpretations because of policy shifts.

Respect for agency interpretations under Skidmore

depends upon whether the agency’s position represents

a “longstanding, consistently maintained

interpretation.” Alaska Dep't of Envt’ Conservation v.

E.P.A., 540 U.S. 461, 487 (2004). “An agency

interpretation of a relevant provision which conflicts

with the agency’s earlier interpretation is entitled to

considerably less deference than a consistently held

agency view.” INS v. Cardoza-Fonseca, 480 U.S. 421,

446 n.30 (1987) (internal quotation marks omitted); see

also Good Samaritan Hosp. v. Shalala, 508 U.S. 402,

417 (1993). Moreover, deference diminishes with the

span of time between the statute’s enactment and the

subsequent agency interpretation. Pub. Citizen v.

United States Dep’t of Justice, 491 U.S. 440, 463 n.12

(1989); see also Good Samaritan, 508 U.S. at 414.

Here, the National Park Service has changed its

position regarding the reach of national park

regulations. The agency’s 1981 interim guidance

provided that national park regulations “would not

apply to activities occurring on State lands [or]

activities occurring on Native or any other non-

federally owned land interests located within park area

16

boundaries.” 46 Fed. Reg. 31,836, 31,843 (June 17,

1981). The Service clarified again in 1987 that its

regulations “do not apply on non-federally owned lands

and waters or on Indian lands and waters owned

individually or tribally within the boundaries of a park

area.” 52 Fed. Reg. at 35,239.

The agency then upgraded its own regulatory

power in 1996. The new policy extended national park

regulations to waters inside park boundaries “without

regard to the ownership of submerged lands, tidelands,

or lowlands.” 61 Fed. Reg. at 35,136.

This shift in position blunts the agency’s

persuasive power. If any agency interpretation ought

to persuade this Court, it is the interpretation closest

in time to enactment. That interpretation said that the

National Park Service cannot impose its regulations on

non-federal lands within Alaska’s national parks. This

earlier policy also accords with ANILCA’s plain

language.

17

+

CONCLUSION

ANILCA offers a balance between federal

conservation and Alaskans’ autonomy. This

compromise acknowledges the great national interest

in Alaska’s natural treasures, while also

acknowledging the special solicitude that should

accompany such national interest. The National Park

Service seeks to disrupt that balance by subjecting the

many islands of non-federal land within Alaska’s

national parks to its full regulatory jurisdiction. But

ANILCA dictates that such lands should remain just

as free of federal control as lands far from any national

park boundary. The National Park Service cannot

unilaterally deem it otherwise.

DATED: November, 2015.

Respectfully submitted,

DAMIEN M. SCHIFF

Counsel of Record

ETHAN W. BLEVINS, of Counsel

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

E-mail: dms@pacificlegal.org

E-mail: ewb@pacificlegal.org

Counsel for Amicus Curiae

Pacific Legal Foundation