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

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 of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICI CURIAE ALASKA NATIVE

SUBSISTENCE USERS IN SUPPORT OF

RESPONDENTS

CARTER G. PHILLIPS ROBERT T. ANDERSON*

ERIKA L. MALEY Rryvaz A. KANJI

SIDLEY AUSTIN LLP KANJI & KATZEN, PLLC

1501 K Street, N.W 303 Detroit Street

Washington, D.C. 20005 Suite 400

(202) 736-8000 Ann Arbor, MI 48104

(734) 769-5400

boba@uw.edu

Counsel for Amici Curiae

December 23, 2015 * Counsel of Record

[Additional Counsel on Inside Cover]

aaa eee eerie ee

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

HEATHER R. KENDALL

MILLER

NATIVE AMERICAN RIGHTS

FUND

745 West 4th Avenue

Suite 502

Anchorage, AK 99501

(907) 276-0680

LLOYD B. MILLER

SONOSKY, CHAMBERS,

SACHSE, ENDRESON &

Perry LLP

1425 K Street, N.W.

Suite 600

Washington, D.C. 20005

(202) 682-0240

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................cccsseeseeees

Te

SUMMARY OF ARGUMENT ..................:cccccceees

I.

I.

CONGRESS PROPERLY AUTHORIZED

THE NATIONAL PARK SERVICE TO

REGULATE NAVIGABLE WATERS

WITHIN ALASKA CONSERVATION

A. Congress Validly Exercised Its Broad

Power To Regulate Navigable Waters .....

B. Section 103 of ANILCA Does Not Re-

move Rivers from Park Service Juris-

IF THE COURT DISAGREES WITH THE

COURT OF APPEALS’ INTERPRE-

TATION OF SECTION 103(C) AND WITH

AMICI’S NARROWER CONSTRUCTION,

THE CASE SHOULD BE REMANDED TO

ASSESS WHETHER THE HOVERCRAFT

REGULATION CAN BE UPHELD BASED

UPON THE FEDERAL GOVERNMENT'S

RESERVED WATER RIGHTS......................

A

(i)

13

‘i

TABLE OF AUTHORITIES

CASES Page

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

1995), adhered to sub nom. John v.

United States, 247 F.3d 1032 (9th Cir.

SIE voccsssecensesnensssnenssensennsnegenansesscnmnammiiens 4

Alaska v. United States, 545 U.S. 75

ee cecvesccesasnsqnrentipeasnennmssrmesenmnmmnsegnennns 11

Arizona v. California, 373 U.S. 546 (1963) . 10, 11

Bob Jones Univ. v. United States, 461 U.S.

Tee: See 17

Cappaert v. United States, 426 U.S. 128

Ee enna. Fee 10

John v. Alaska, No. A85-698-CV (D. Alaska

NGS As enon 3

John v. United States, 720 F.3d 1214 (9th

Cir. 2013), cert. denied sub nom. Alaska

v. Jewell, 134 S. Ct. 1759 (2014) ............... 4,16

King v. Burwell, 135 S. Ct. 2480 (2015)...... 14, 15

Kleppe v. New Mexico, 426 U.S. 529 (1976).. 9

PPL Montana, LLC v. Montana, 132 S. Ct.

| es a 12

Tex. Dep't of Hous. & Cmty. Affairs v.

Inclusive Cmties. Project, Inc., 135 S. Ct.

EE Seen 17

United States v. Alexander, 938 F.2d 942

See eee 2

United States v. Appalachian Power Co.,

311 U.S. 377 (1940), superseded by

statute on other grounds, Federal Water

Pollution Control Act, Pub. L. No. 92-500,

86 Stat. 816 (1972), as recognized in

Rapanos v. United States, 547 U.S. 715

ETRE Enon a oe nen Te 12

United States v. Chandler-Dunbar Co., 229

SEE Te eee )

TABLE OF AUTHORITIES — continued

Page

United States v. Rands, 389 U.S. 121

I iain indicates ini cat naar aicinaes 11

United States v. Twin City Power Co., 350

ET Se nee S)

Utah Div. of State Lands v. United States,

TE 9

STATUTES AND REGULATIONS

2 8 eee )

ae 9

1958 Statehood Act, Pub. L. No. 85-508, 72

ET Naa 2

Pub. L. No. 104-208, 110 Stat 3009 (1996)... 17

| SERS SAE RL Sa ee 7,14

iain aicatedcanasianrraarintiarnmiainis 17, 18

SEE ee sero 13

rere 2

eae 3

ST iceaceibcnnetemaiaiiiniaalaeiaatalaidaiiaiiidnans 1

AEE enenee ne 3

I idiiiciriatiecieeinarieiirinniasipaiatieeaiiaiias 4,17

tain lina deiaeaeaiatilminiaiaas 13

es Pe iiidsnriterninisntatsimeucneimaaians 10

i Eee 13

AE 3

EE een EE i)

la aliases 6,8

61 Fed. Reg. 15014 (Apr. 4, 1996)................. 17

64 Fed. Reg. 1276 (Jan. 8, 1999)................... 16

LEGISLATIVE HISTORY

H.R. Rep. No. 92-746 (1971) (Conf. Rep.)..... 3

iv

TABLE OF AUTHORITIES — continued

SCHOLARLY AUTHORITIES

David S. Case & David A. Voluck, Alaska

Natives and American Laws (3d ed.

eee Cn

Robin Kundis Craig, Treating Offshore

Submerged Lands As Public Lands: A

Historical Perspective, 34 Pub. Land &

Resources L. Rev. 51 (2013).......................

OTHER AUTHORITIES

Cohen’s Handbook of Federal Indian Law

(Neil Jessup Newton ed., 2012).................

Issue Paper and Recommendations of the

Alaska Policy Group (June 15, 1995)........

Dep’t vot Interior, Environmental Assess-

ment, Modification of the Federal Sub-

(June 2, 1997), http://www.doi.gov/

eee

Thompson, Leshy & Abrams, Legal Control

of Water Resources (5th ed. 2013)..............

Page

10

16

INTEREST OF AMICI!

Amici are federally recognized Alaska tribes, inter-

tribal organizations and an individual Alaska Native

who support federal jurisdiction to regulate navigable

waters in conservation system units to protect the

subsistence fishing way of life upon which rural

Alaska Native people vitally depend.? “Subsistence

uses” are defined as “the customary and traditional

uses by rural Alaska residents of wild, renewable

resources” of which fish are the most significant use.

16 U.S.C. 3113. “Approximately 40 million pounds

of fish and wildlife are harvested annually by

subsistence users, of which fish account for 60

percent.” Environmental Assessment, Modification of

the Federal Subsistence Fisheries Management

Program, ch. III-1 (June 2, 1997), http://www.doi.gov/

subsistence/library/ea/upload/EAModFSFMP.PDF.

Petitioner's arguments disclaim any intent to

displace federal protection and management of

subsistence fishing on rivers within federal

conservation system units. But the sweeping nature

of his (and his amici’s) legal theories would directly

jeopardize protective federal regulations which have

been in place since 1999. Over the past 20 years,

Amici tribes and tribal organizations have directly

litigated or otherwise supported efforts to secure

their federally-protected subsistence fishing rights on

1 The parties in this case have consented to the filing of this

brief. No counsel for a party authored this brief in whole or in

part, and no person or entity other than the amici made a

monetary contribution to the preparation or submission of this

brief.

2 Amici are Mentasta Traditional Council, Village of Dot Lake,

Tanana Chiefs Conference, Kenaitze Indian Tribe, The

Organized Village of Saxman, Chugachmiut, and Nora John.

2

navigable waters in Alaska. While Amici agree that

the Ninth Circuit’s decision raises unnecessary issues

regarding the regulation of Alaskan uplands, Amici

support the judgment below because, without federal

regulation of navigable waters within conservation

system units (CSUs), the fishing rights Congress

expressly protected in Title VIII of the Alaska

National Interest Lands Conservation Act (ANILCA),

16 U.S.C. 3111-3126, would become a nullity; and “[i]f

their right to fish is destroyed, so too is their

traditional way of life.” United States v. Alexander,

938 F.2d 942, 945 (9th Cir. 1991) (Kozinski, J.).

Federal regulation of navigable waters under

ANILCA is critical to protecting Native subsistence

fishing rights. Congress conditioned statehood on

Alaska’s agreement not to interfere with Alaska

Native aboriginal hunting and fishing rights. 1958

Statehood Act, Pub. L. No. 85-508, 4, 72 Stat. 339,

339 (1958) (providing the “State and its people do

agree .. . [and] forever disclaim all right and title . . .

to any lands or other property (including fishing

rights)” belonging to Alaska Natives, authority over

which “shall be and remain under the absolute

jurisdiction and control of the United States”); see

generally Cohen’s Handbook of Federal Indian law

4.07[3][b][i] (Neil Jessup Newton ed., 2012).

Recognizing that subsistence hunting and fishing are

essential to the continued physical, economic,

traditional and cultural existence of Alaska Natives,

Congress had long provided statutory protections for

those uses of fish and wildlife. See generally id.

4.07[3]{c] fi.

Following statehood and the transfer of

responsibility for managing fish and game from the

federal government to the State of Alaska, regulatory

restrictions on Native subsistence harvests

3

proliferated. Regulatory bodies strongly influenced

by the views of urban sport and commercial interests

imposed these restrictions. David S. Case & David A.

Voluck, Alaska Natives and American Laws 294-95

(3d ed. 2012) (“Case & Voluck”). For instance, many

traditional upriver subsistence fisheries along the

Copper River were shut down shortly after statehood

in favor of downriver commercial fisheries. See John

v. Alaska, No. A85-698-CV, slip op. at 2 (D. Alaska

Jan. 19, 1990) (Order on Cross Motions for Summary

Judgment). The Alaska Native Claims Settlement

Act, 43 U.S.C. 1601-1629h (ANSCA), failed to solve

this problem, despite congressional expectations to

the contrary. See H.R. Rep. No. 92-746 (1971) (Conf.

Rep.) (expressing expectation that “the Secretary and

the State [would] take any action necessary to protect

the subsistence needs of the Natives”). “Some nine

years [after ANCSA] it was compellingly clear that

neither the state nor the Secretary were likely to

protect subsistence in the manner Congress had

contemplated.” Case & Voluck, supra, at 292. Urban

and sporting interests continued to dominate state

management of fish and wildlife, and state agencies

remained unwilling to protect Native subsistence

uses. Id. at 294-95.

Title VIII of ANILCA was crafted to end this

situation. Congress prefaced Title VIII with a

declaration that “the continuation of the opportunity

for subsistence uses by rural residents of Alaska .. .

is essential to Native physical, economic, traditional,

and cultural existence.” 16 U.S.C. 3111(1). Title VIII

provides that “the taking on public lands of fish and

wildlife for nonwasteful subsistence uses shall be

accorded priority over the taking on such lands of fish

and wildlife for other purposes.” 16 U.S.C. 3114

(emphasis added). The statute directs the Secretary

4

of the Interior to establish an administrative

structure necessary to implement the statute. 16

U.S.C. 3115(a)(c).

This subsistence management regime was

originally conceived to operate within the framework

of cooperative federalism. “Pursuant to 805(d) of

ANILCA, 16 U.S.C. § 3115(d), Congress gave the

state authority to implement the rural subsistence

preference by enacting laws of general applicability

consistent with ANILCA’s operative provisions,” and

the State initially did so. Alaska v. Babbitt, 72 F.3d

698, 700-01 (9th Cir. 1995), adhered to sub nom. John

v. United States, 247 F.3d 1032 (9th Cir. 2001). But

“Congress could not have anticipated the next chain

of events. In 1989, the Alaska Supreme Court struck

down the state act granting the rural subsistence

preference as contrary to the Alaska state

constitution. McDowell v. Alaska, 785 P.2d 1 (Alaska

1989).” Id. After the Alaska legislature failed to take

curative steps, “[iJn 1990, the federal government

withdrew Alaska’s certification and took over

implementation of Title VIII.” Id.

In the long-running “Katie John” litigation, the

Ninth Circuit upheld the United States’

determination, through notice and comment

rulemaking, that certain navigable waters within

CSUs are “public lands” as defined in Title VIII of

ANILCA, because the United States owns federally-

reserved water rights in those waters that are

necessary to carry out the purposes of the CSUs.

John v. United States, 720 F.3d 1214, 1224 (9th Cir.

2013), cert. denied sub nom. Alaska v. Jewell, 134 S.

Ct. 1759 (2014). The Circuit thus upheld federal

subsistence fishing regulations covering those waters.

Id. Accordingly, since 1993, the federal government

has managed subsistence fishing by rural residents

5

on roughly 60 percent of Alaska’s rivers, including

the Nation River. Given Alaska’s inability to

implement the subsistence priority, federal

management over subsistence fishing rights on rivers

in rural areas is essential to fulfilling Congress’s

manifest intent in Title VIII of ANILCA.

Two Amici, the Mentasta Traditional Council and

the Village of Dot Lake, are federally recognized

tribes and are the home Villages of the plaintiffs in

the “Katie John” litigation. Nora John is Katie John’s

daughter and representative for the John family who

seek to preserve the Katie John judgment. The

Kenaitze Indian Tribe and the Organized Village of

Saxman are federally recognized tribes that enjoy the

protections that Title VIII accords its traditional

subsistence hunting and fishing activities. The

Tanana Chiefs Conference and Chugachmiut are non-

profit inter-tribal consortia formed to serve 46 tribal

villages located respectively in the Interior and

Prince William Sound regions of Alaska. Most of the

tribal members in these villages are both subsistence

users and also shareholders in Alaska Native

Corporations formed pursuant to ANCSA.

The only issue presented here concerns federal

jurisdiction to enforce hovercraft regulations on

navigable waters within an Alaska CSU. Amici

therefore urge the Court to uphold the judgment of

the Court of Appeals, but on narrow grounds that

leave extraneous isaues regarding the outer reaches

of federal jurisdiction over Native Corporation and

state lands either for administrative rulemaking or

for litigation that actually involves the application of

federal rules to such lands. Alternatively, the Court

should remand this case to the Ninth Circuit to

consider whether the hovercraft regulation should be

6

upheld based upon the federal government’s reserved

water rights in the Nation River.

SUMMARY OF ARGUMENT

This case presents a direct challenge to

indisputable and historic federal authority to

regulate navigable waters under the Commerce and

Property Clauses of the Constitution. The Park

Service regulation at issue, 36 C.F.R. 2.17(e),

precludes the use of hovercraft on lakes and rivers in

National Parks and Preserves. It was authorized in

1976 by an amendment to the Park Service’s organic

act. Contrary to the arguments of several of

Petitioner's amici, this case does not involve federal

regulation of Alaska Native Corporation lands within

National Parks and Preserves, nor the regulation of

the State of Alaska’s lands. Petitioner’s claims

should be rejected without reaching the complex

hypothetical questions presented by Petitioner and

his supporting amici because those questions simply

are not presented under the facts of this case. In

other words, the lower court judgment can be

affirmed without reaching the broad grounds

asserted below, or by Petitioner’s formulation of the

question presented.

Section 103 of ANILCA was intended to carve out

upland inholdings owned by Alaska Native

Corporations and the State of Alaska from at least

some Park Service regulations otherwise applicable

within CSUs. But it was never intended to preclude

federal regulation of navigable rivers and lakes

within National Parks and Preserves. Indeed, it

would be absurd to suppose Congress simultaneously

passed a statute setting aside the Yukon-Charley

Rivers National Preserve, and then wrote its

legislation in a manner that barred the Park Service

7

from regulating uses of those very rivers to protect

the purposes for which the Preserve was set aside in

the first place. After all, Congress created the

Preserve to “maintain the environmental integrity of

the entire Charley River basin, including streams,

lakes and other natural features, in its undeveloped

natural condition for public benefit and scientific

study; to protect habitat for, and populations of, fish

and wildlife.” 16 U.S.C. 410hh(10). Under

Petitioner's reading of ANILCA, however, Congress

established the Preserve, together with 29 other

conservation areas containing navigable rivers, and

yet, in an obscure subsection of a provision captioned

‘Maps,’ Congress intended to quietly nullify all

federal regulations adopted to protect those very

rivers. This Court should reject a reading of section

103 that contravenes its plain text and produces such

untenable results.

Regardless of how one reads section 103, the federal

reserved water rights doctrine provides an

alternative basis for affirming the judgment below

because (as Petitioner concedes) such rights are a

federal “interest” in waters such that the Nation

River is indisputably “public land” as defined in

ANILCA. But because this question was never

reached by the lower courts, this Court should

remand to those courts for further consideration if it

declines to adopt the narrow grounds set forth below

as the basis for affirming the judgment below.

8

ARGUMENT

I. CONGRESS PROPERLY AUTHORIZED

THE NATIONAL PARK SERVICE TO

REGULATE NAVIGABLE WATERS WITHIN

ALASKA CONSERVATION SYSTEM UNITS.

Congress indisputably enjoys the constitutional

power to authorize the Park Service to regulate

navigable waters of the United States within

National Parks and Preserves, and did so through the

1976 amendments to the National Parks’ organic act.

Congress did not curtail that authority in section 103

of ANILCA, which protects Alaska Native

Corporation and State inholdings from at least some

Park Service regulations within CSUs in Alaska.

Amici do not address the question whether general

Park Service regulations, as opposed to Alaska-

specific regulations, are applicable to Native

Corporation and State lands within CSU units

because resolution of that question is not necessary to

affirm the judgment below. Indeed, that question is

not properly presented in the first place, because this

case strictly concerns the application of a federal

regulation to waters, not to lands.

A. Congress Validly Exercised Its Broad

Power To Regulate Navigable Waters.

No party disputes the Nation River’s status as a

navigable river for purposes of federal law.

Petitioner challenges a Park Service regulation that

states “[t]he operation or use of hovercraft [in

National Parks] is prohibited.” 36 C.F.R. 2.17(e).

Congress authorized that regulation in 1976, when it

provided that “[t]he Secretary, under such terms and

conditions as the Secretary considers advisable, may

prescribe regulations . . . concerning boating and

other activities on or relating to water located within

9

System units, including water subject to the

jurisdiction of the United States.” 54 U.S.C. 100751

(emphasis added). Because Congress’s powers over

navigable waters under the Commerce Clause, U.S.

Const. art. I, 8, cl. 3, and the Property Clause, U.S.

Const. art. IV, 3, cl. 2, are extremely broad, there is

no doubt that federal authority to regulate extends to

navigable waters within National Parks and

Preserves. See Kleppe v. New Mexico, 426 U.S. 529

(1976); A. Dan Tarlock, Law of Water Rights and

Resources 9.6 (2015) (“Federal jurisdiction over

waters now extends to all activities subject to the full

Commerce Clause.”).

Contrary to Petitioner's view (Pet. Br. at 36),

navigable waters within the Yukon-Charley Rivers

National Preserve are not “owned” by the State, and

were never “conveyed” to the State. To be sure, the

State owns the submerged lands pursuant to the

equal footing doctrine. Utah Div. of State Lands v.

United States, 482 U.S. 193, 196 (1987) (“Because all

subsequently admitted States enter the Union on an

‘equal footing’ with the original 13 States, they too

hold title to the land under navigable waters within

their boundaries upon entry into the Union.”). But

the actual water is not owned by any private or

governmental entity. United States v. Chandler-

Dunbar Water Power Co., 229 U.S. 53, 69 (1913)

(“Ownership of a private stream wholly upon the

lands of an individual is conceivable; but that the

running water in a great navigable stream is capable

of private ownership is inconceivable.”). See also

United States vy. Twin City Power Co., 350 U.S. 222,

226 (1956) (federal navigational servitude can

preempt any use rights granted by a State to a

private party, so that compensation under the Fifth

Amendment is not required for taking such interests).

10

The fact that the States do not “own” the water

column is illustrated by the federal reserved water

rights doctrine. Federal reserved rights to waters are

established “when the Federal Government

withdraws its land from the public domain and

reserves it for a federal purpose, [and] the

Government, by implication, reserves appurtenant

water then unappropriated to the extent needed to

accomplish the purpose of the reservation.” Cappaert

v. United States, 426 U.S. 128, 138 (1976). In

Arizona v. California, 373 U.S. 546, 597-98 (1963),

this Court rejected the state ownership theory of

navigable waters when it concluded that even after

statehood there is no “doubt about the power of the

United States under [the Commerce Clause and

Property Clause] to reserve water rights for its

reservations and its property.”

Nor does the Submerged Lands Act (SLA) insulate

navigable waters from federal regulation, or

eliminate federal interests in those waters. Pet. Br.

at 3€ Congress enacted the SLA in 1953 to reverse

several decisions of this Court holding that the

United States, and not the States, held title to the

marginal sea. “In the wake of the U.S. Supreme

Court’s decision in United States v. California,

Congress ... ‘correct[ed]’ the Court’s holding by

‘returning the first three miles of ocean submerged

lands to the coastal States.” Robin Kundis Craig,

Treating Offshore Submerged Lands As Public Lands:

A Historical Perspective, 34 Pub. Land & Resources L.

Rev. 51, 69-70 (2013) (footnotes omitted). The

language of the SLA bears out Congress’s recognition

of state ownership of submerged lands, but not of any

water. Compare 43 U.S.C. 1311(a)(1) (confirming title

and ownership of submerged lands), with 43 U.S.C.

1311(a)(2) (confirming state rights to regulate land

11

and water related resources). As demonstrated by

the language of the statute and Arizona v. California,

373 U.S. 546, states do not “own” the water column

by virtue of having regulatory authority (unless

preempted by federal law) over use of the waters. See

U.S. Br. at 27-29.

As Justice Scalia explained in a case involving a

National Park in Alaska, state ownership of

submerged lands has little effect on federal authority

to regulate activities in navigable waters.

If title to submerged lands passed to Alaska, the

Federal Government would still retain

significant authority to regulate activities in the

waters of Glacier Bay by virtue of its dominant

navigational servitude, other aspects of the

Commerce Clause, and even the treaty power.

See, e.g., 43 U.S.C. § 1314(a) (under the

Submerged Lands Act, the United States retains

“powers of regulation and control of ... navigable

waters for the constitutional purposes of

commerce [and] navigation”); * * *United States

v. California, 436 U.S. 32, 41, and n. 18, 98 S.Ct.

1662, 56 L.Ed.2d 94 (1978) (noting that the

United States retained “its navigational

servitude” even when California took the

“proprietary and administrative interests” in

submerged lands surrounding islands in a

national monument); * * * It is thus unsurprising

that States own submerged lands in other

federal water parks, such as the California

Coastal National Monument and the Boundary

Waters Canoe Area in Minnesota.

Alaska vy. United States, 545 U.S. 75, 116-18 (2005)

(Scalia, J., concurring in part and dissenting in part).

See also United States v. Rands, 389 U.S. 121, 127

(1967) (concluding that the SLA “left congressional

12

power over commerce .. . precisely where it found

fit]”).

The Park Service regulation at issue here is a

classic example of the exercise of federal power over

the use of navigable waters. Congress authorized the

Park Service to set the terms for the use of navigable

waterways by private citizens and others in National

Parks and refuges. Such regulation is the bread and

butter of the federal commerce power over navigable

waters. United States v. Appalachian Elec. Power

Co., 311 U.S. 377, 426-27 (1940) (“The point is that

navigable waters are subject to national planning and

control in the broad regulation of commerce granted

the Federal Government.”). By their very nature,

navigable waters are instruments of commerce

subject to federal regulations related to their use.

In sum, a State may have authority to regulate

water use within its boundaries if not preempted by

federal law, but that “power” is not ownership. See

Thompson, Leshy & Abrams, Legal Control of Water

Resources 588 (5th ed. 2013) (“[T]he most distinctive

legal feature of water is its status as a public resource

that cannot be privatized in the ordinary way.”). And

as this Court has noted, whatever the extent of the

State’s power, it is subject to “the paramount power

of the United States to control such waters for

purposes of navigation in interstate and foreign

commerce.” PPL Montana, LLC v. Montana, 132 S.

Ct. 1215, 1228 (2012). Thus, the Nation River itself

is not private property, nor is it owned by the State of

Alaska. It remains fully subject to Congress's

constitutional authority over navigable waters, and

as explained in the next section, nothing in section

103 of ANILCA discloses any congressional intent to

relinquish that authority.

13

B. Section 103 of ANILCA Does Not Remove

Rivers from Park Service Jurisdiction.

No statute, including ANILCA, limits the authority

of the federal government to regulate waters within

National Parks and Preserves. See 16 U.S.C. 3207

(‘Nothing in this Act shall be construed ... as

superseding, modifying, or repealing, except as

specifically set forth in this Act, existing laws

applicable to the various Federal agencies which are

authorized to ... exercise licensing or regulatory

functions in relation thereto.”). See also 43 U.S.C.

1314(a) (under the SLA, the United States retains

“powers of regulation and control of . . navigable

waters for the constitutional purposes of commerce

[and] navigation”).

Petitioner and his amici argue that the first

sentence of section 103(c) precludes applying the

statute and regulation to the waters here in

question — by providing that “only those lands ..

which are public lands ... shall be deemed to be

included as a portion of such unit.” 16 U.S.C. 3103(c).

Ignoring the purpose of the section, they say the next

sentence gives meaning to the first by explicitly

exempting Alaska Native Corporation lands and

State lands from the Units: “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.” Jd. But as

explained above, the navigable waters of the Nation

River have never been “conveyed to” the State, let

alone to a Native Corporation or private party. While

the State holds title to the submerged lands beneath

the River, title was never conveyed to the water

column; those waters remain part of the National

14

Parks and Preserves in Alaska and the United States

retains its constitutional authority over that water.

As Petitioner acknowledges, Congress enacted

section 103(c) to protect State and Native Corporation

lands from some federal regulation, not to exempt

entire federal water bodies from federal regulation.

Pet. Br. at 7. If the navigable waters within the

Yukon-Charley Rivers National Preserve were

deemed immune from such regulation, a primary

purpose of establishing the Park and Preserve would

be defeated. Congress set the Preserve aside in the

following terms.

The preserve shall be managed for the following

purposes, among others: Jo maintain the

environmental integrity of the entire Charley

River basin, including streams, lakes and other

natural features, in its undeveloped natural

condition for public benefit and scientific study;

to protect habitat for, and populations of, fish

and wildlife . . .

16 U.S.C. 410hh(10) (emphasis added). It would be

absurd to read ANILCA as setting aside for

permanent protection an entire river basin to be

managed by the Park Service, and then to deny the

agency any authority to protect the river.

It is particularly inconceivable that Congress would

establish a National Rivers Preserve in one section of

ANILCA, and then (tucked into a section dealing with

maps) exclude that very river from inclusion in the

unit. As this Court reiterated just last term, statutes

must be construed as a whole, and isolated sections

must be considered in their context, with an eye

toward accomplishing the broad objectives of the

statute. King v. Burwell, 135 S. Ct. 2480, 2489

(2015). “[W]hen deciding whether the language is

15

plain, we must read the words ‘in their context and

with a view to their place in the overall statutory

scheme.” Id. (quoting FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 133 (2000)). The Court’s

“duty, after all, is ‘to construe statutes, not isolated

provisions.” Id. (quoting Graham Cty. Soil & Water

Conservation Dist. v. United States ex rel. Wilson, 559

U.S. 280, 290 (2010)).

Regulations concerning navigable rivers do not

affect Native Corporation lands (which of course are

not “public lands” under section 102 of ANILCA).

The regulation of hovercraft on navigable waters

likewise does not implicate state property interests in

submerged lands. In short, the Park Service

regulation at issue here does not touch any of the

areas within Preserve boundaries that are protected

from some or all Park Service regulation by section

103(c)’s carve-out for non-federal inholdings. This is

the most sensible reading of the statute because it

preserves the status of Nation River as a part of the

CSU that was expressly created for the river's

protection, while recognizing that section 103 carves

out for special protection State and Native

Corporation lands. The judgment below can

therefore be affirmed without ever reaching how to

construe section 103 in circumstances, unlike those

presented here, where that section actually applies.

16

Il. IF THE COURT DISAGREES WITH THE

COURT OF APPEALS’ INTERPRETATION

OF SECTION 103(C) AND WITH AMICrS

NARROWER CONSTRUCTION, THE CASE

SHOULD BE REMANDED TO ASSESS

WHETHER THE HOVERCRAFT REGU-

LATION CAN BE UPHELD BASED UPON

THE FEDERAL GOVERNMENT'S’ RE-

SERVED WATER RIGHTS.

In the event this Court disagrees with the Court of

Appeals’ interpretation of section 103 and with

Amici’s alternative argument, the judgment below

should be vacated and the matter remanded for an

assessment of the Secretary's authority to enforce

hovercraft regulations on navigable waters of the

United States in which the government owns

reserved water rights.

The Katie John ruling upheld a comprehensive

1999 federal rule in which the government asserted

reserved water rights in rivers within and adjacent to

each conservation system unit in Alaska. John, 720

F.3d at 1229. In its Rule identifying which waters

are public lands due to the reserved water rights

doctrine, the federal government included the waters

of the Yukon-Charley Rivers National Preserve,

including the Nation River. See 64 Fed. Reg. 1276,

1286-87 (Jan. 8, 1999) (codified at 36 C.F.R.

242.3(c)(28)). The administrative record contains the

specific findings underlying the Secretaries’ legal

determinations. Issue Paper and Recommendations

of the Alaska Policy Group 5 & app. 4 (June 15, 1995).

That document identifies each class of “conservation

system units” under ANILCA and the legislation

17

relied upon to support the Secretaries’ determination

that federal reserved water rights exist.3

For the past 16 years the Secretaries of Interior

and Agriculture have administered the ANILCA Title

VIII federal subsistence priority for Amici and other

rural residents on waters within and adjacent to

CSUs. Petitioner agrees that the Nation River is

“public land” under the foregoing precedents, but

asserts this is only the case for purposes of Title VIII

of ANILCA. Pet. Br. at 38. Petitioner’s amici likewise

agree with the Katie John rulings. See Br. of United

States Senators Sullivan and Murkowski and

Representative Young as Amicus Curiae in Support

of Petitioner Sturgeon at 3 n.4 (‘Amici are not asking

this Court to overturn or revisit the Ninth Circuit's

“Katie John” decisions.”); Br. of Doyon, Ltd., et al., at

32-35 (same); Br. of State of Alaska at 13-14 n.4

(Katie John rule not implicated in this case). Given

3 Congress expressly acquiesced in the federal agencies’

regulations. After the Secretaries issued a 1996 Advance Notice

of Proposed Rulemaking announcing their intent to develop

subsistence fishing regulations based upon the government's

ownership of reserved waters in the Alaska CSUs, see 61 Fed.

Reg. 15014 (Apr. 4, 1996), Congress imposed a series of

moratoria on the effective date of the proposed rules. Congress

did so to give Alaska time and incentive to amend its laws and

thus regain authority to manage subsistence uses on all lands

and waters in Alaska, as originally anticipated by 16 U.S.C.

1315(d). See, e.g., Pub. L. No. 104-208, § 317, 110 Stat 3009,

3009-222 (1996). After the State repeatedly failed to act, in late

1999 Congress permitted the rules to take effect. See 16 U.S.C.

3102 (historical note); Tex. Dep't of Hous. & Cmty. Affairs v.

Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2519-20

(2015) (congressional awareness of uniform interpretation of

statute is proof of ratification of interpretation); Bob Jones Univ.

v. United States, 461 U.S. 574, 600-01 (1983) (‘It is hardly

conceivable that Congress—and in this setting, any Member of

Congress—was not abundantly aware of what was going on.”).

18

ANILCA’s structure, it is difficult to conceive how the

Court of Appeals’ prior interpretation of Title I's

definition of “public lands” would not apply equally to

all titles of ANILCA. After all, the opening sentence

to ANILCA’s definitional section declares that, but

for Titles IX and XIV, ANILCA’s Title I definitions

apply to the entire Act. 16 U.S.C. 1302. See U.S. Br.

at 31-32. Nonetheless, this is an issue which neither

the Court of Appeals nor the District Court below had

any opportunity to consider.

Amici therefore respectfully suggest that in the

event this Court disagrees with both the argument

made in section I of this Brief regarding navigable

waters, and the Court of Appeals’ interpretation of

section 103(c) of ANILCA, the Court should remand

this case for an assessment of whether the

Secretarys hovercraft regulations nonetheless

lawfully apply to Petitioner’s activities on the Nation

River as a result of the status of that river as federal

“public lands” under Title I of ANILCA.

19

CONCLUSION

If the Court does not affirm the judgment below on

the basis of the Court of Appeals’ decision, it should

either affirm the judgment because section 103 of

ANILCA does not protect activities on navigable

waters within CSUs from Park Service regulations,

or remand the case for resolution of the question

whether the Nativn River is “public land” because of

the United States’ interest in the river under the

reserved rights doctrine.

Respectfully submitted,

CARTER G. PHILLIPS ROBERT T. ANDERSON*

ERIKA L. MALEY RIYAZ A. KANJI

SIDLEY AUSTIN LLP KANJI & KATZEN, PLLC

1501 K Street, N.W. 303 Detroit Street

Washington, D.C. 20005 Suite 400

(202) 736-8000 Ann Arbor, MI 48104

(734) 769-5406

HEATHER R. KENDALL boba@uw.edu

MILLER

NATIVE AMERICAN RIGHTS LLOYD B. MILLER

FUND SONOSKY, CHAMBERS,

745 West 4th Avenue SACHSE, ENDRESON &

Suite 502 PERRY LLP

Anchorage, AK 99501 1425 K Street, N.W

(907) 276-0680 Suite 600

Washington, D.C. 20005

(202) 682-0240

Counsel for Amici Curiae

December 23, 2015 * Counsel of Record