# Amicus Curiae Brief — Sturgeon v. Frost, 139 S. Ct. 304 (2018) (No. 17-949)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

No. 17-949

Su The
Supreme Court of the Gnited States

a
—

JOHN STURGEON,
Petitioner,
v.

BERT FROST, in his Official Capacity as Alaska
Regional Director of the National Park Service, et al.,

Respondents.

,*
¥

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit

»
a

BRIEF OF AMICUS CURIAE
STATE OF ALASKA IN SUPPORT OF
PETITION FOR WRIT OF CERTIORARI

»
v

JAHNA LINDEMUTH
Avvworney General of Alaska

JANELL HAFNER RUTH BOTSTEIN

P.O. Box 110300 Counsel of Record

Juneau, Alaska 99801 KATHRYN R. VOGEL
1031 W. 4th Avenue

i
QUESTION PRESENTED

Whether the Alaska National Interest Lands Con-
servation Act prohibits the National Park Service from
exercising regulatory control over State, Native Corpo-
ration, and private land physically located within the
boundaries of the National Park System in Alaska.

il

TABLE OF CONTENTS

Page
QUESTION PRESENTED......................2....200000+- i
I orcincicccssnsnduniesicinonencedens il
TABLE OF AUTHORITIES ..........................220000 iv
INTEREST OF AMICUS CURIAE...................... 1
SUMMARY OF THE ARGUMENT ..................... 2

REASONS THE PETITION SHOULD BE
EE ecncnnntnatenneniniiidsinnictninntniamidniitanintinnsnne 3

I. Certiorari is warranted because the Ninth
Circuit’s decision contravenes ANILCA
Section 103’s assurances that Alaska would
retain its sovereign right to manage its
lands and waters and because it imposes
exceptional hardships on Alaskans............ 4

A. Rural Alaskans depend on Alaska’s
lands, waters, and resources for many

B. Alaska’s sovereign right to regulate,
use, and manage its lands and waters
is instrumental to Alaska’s statehood
and ANILCA’s purpose........................ 8

C. ANILCA’s requirement that state lands
be treated differently from federal lands
protects Alaska’s sovereign rights ........ 11

sas

TABLE OF CONTENTS — Continued
Page
Il. The Ninth Circuit’s contortion of the federal
reserved water rights doctrine threatens
Alaska’s political and economic sover-
SD cccurtsiddctnnnitnennceeiaceciecniapintapbernsessncesenes 13

A. The Ninth Circuit’s decision on re-
mand disregards this Court’s direction
to construe ANILCA to protect Alaska’s
sovereignty and respect its unique-
iicciicctecnsincdnsentntplidnnienicineninteimapnnesion 13

B. The Ninth Circuit’s redefinition of the
federal reserved water rights doctrine
disregards this Court’s precedents and
tramples on state sovereignty ............. 15
1. The Ninth Circuit’s decision con-

flicts with this Court’s water rights
i esiensctacnincnseinntinaneinseniess 16

2. The Ninth Circuit’s decision con-
flicts with this Court’s clear state-
i catiictieabichitihninbunieniitentiantatinniante 22

C. The Ninth Circuit’s decision threatens
states’ authority under other federal
statutes and in waters outside CSU

iv

TABLE OF AUTHORITIES
Page
CASES
Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995) ........... 17
Cappaert v. United States, 426 U.S. 128 (1976) ......... 18
Coyle v. Smith, 221 U.S. 559 (1911)............... eee 1
Gregory v. Ashcroft, 501 U.S. 452 (1991). ............. 22, 23
Illinois Cent. R. Co. v. Illinois, 146 U.S. 387
Stilichicilnicthsciieeadiasidupenbionehasapbiadad sadicsiutalidahiuidldeidantiiettatesatintsd 21
John v. United States, 720 F.3d 1214 (9th Cir.
SII nipndchadelleddcanstinentabadenaatiniatndinnladagabiimaneasibichessniessesdnss 26
PPL Montana, LLC v. Montana, 565 U.S. 576
UIE schiodninsinateunipnstiacciapagiennlicepddaeniassainiaeadtih eeiiteeberspesineds 21
Rapanos v. United States, 547 U.S. 715 (2006).......... 23
Solid Waste Agency of N. Cook County v. U.S.
Army Corps of Eng’rs, 531 U.S. 159 (2001) ............ 23
Sturgeon v. Frost, 136 S. Ct. 1061 (2016)........... passim
Tarrant Reg’ Water Dist. v. Herrmann, 569 U.S.
SETI aidtalsticnitnsiidaiaitepctnadeniaieedeabinmadiidepatimesbegibonseinses 1
Trustees for Alaska v. State, 736 P.2d 324
I ahaa te cincalaadiad ia ncaa cmaertitat 10
United States v. California, 436 U.S. 32 (1978) ......... 21
United States v. New Mexico, 438 U.S. 696 (1978)........ 18

Utah Div. of State Lands v. United States, 482
Se IE DUE cicecivndnecanedicsdivcnpeccensabientitesntengabateees 20

Vv

TABLE OF AUTHORITIES — Continued

Page
CONSTITUTIONAL PROVISIONS
I I, WHITE Biscsscnceccncecescccinssesstocsvenesncsvees 9
Alaska Const. art. VIII, § 14..............0020..cccseseseseeeeeseeees 9
STATUTES
Rs RIED. cncccnsasnceseneeascascemesnencneumienions 1,11
Be EE cociepscecessessmrscneseseccosmenvesountén 2, 11,13
I nn iinstnntirnninciesstnenecctuacsovtnntnetin 12,19
EEE een 19
a sc ssendanenbennetnemenmnbesiesinnetl 19
Tn. sccerrteeunéncosegenntuivanssensenuecinanint 24
I inn ninethincimnnigniemminnabedtonnmnmeines 11
RE Ee 12
Tc icccieestncinenaeinninaneienianinsnielineniiianl 12
IE cterensisrnieiisstenisnuesensensuimmarneneete 1, 12, 15
a aciealiahbdeibllemiinuesiinnld 14
I i cincinnicnusintncdsensansinbemmesnesioniansaniedmnnse 14
SI TTTTTI oss sasnsincecintstepenietneenqnenicnebbeensiusesittnntt 20
I ATT oss. ccic soretenseneinsenibaiieenninntecianeniesibenneniis 14
AS rene 21
le Oe cnnisnncennsneicecsenenpsniimantamntsenenentanints 21

eee 1, 10, 20, 21

vi

TABLE OF AUTHORITIES — Continued

Page
Alaska Statehood Act, 72 Stat. 339 (1958)
UII a. i: occisdadesecinditiedintaanenebaiipaiiidimensiaemnisiamendiall 10
TE —wccssenionsersennistinsssnnanteacsdinedinardiaienninamadiaaa 10
Tei sccinsesccewsscocsbennndiserbimiondestenesosesepeinianmaipsannaialial 10
| ETE ais eens von in AE SEE 1, 10, 20
RULES
me, GOR. B.S BIB eenccevccscrsstesvccsuccinssecisansenntoenetnstanienhii 1
OTHER AUTHORITIES
Gerald A. McBeath, The Alaska State Constitu-
a ES 9

Terrence M. Cole, Blinded by Riches: The Perma-
nent Funding Problem and the Prudhoe Bay
Effect, Inst. of Soc. and Econ. Research, Jan.
SEIS ncccncsccecsnnerscsnscenscsunscinmpipnnniadtieinnisnmmaduenniel 8,9

Victor Fischer, Alaska’s Constitutional Conven-
CRE TD wcccivtcinntcepecvinntainninctsnianaiasanaiainnaiis i)

1

INTEREST OF AMICUS CURIAE'

As the Court has recognized, this case “touch|es|
on vital issues of state sovereignty.” Sturgeon v. Frost,
136 S. Ct. 1061, 1072 (2016). This Court should hear
the case again to safeguard Alaska’s rights as a sover-
eign and to protect the State’s uniquely significant
need for control of state-owned lands and waters.

Alaska owns the riverbed and manages the waters
of the Nation River and other lands and rivers falling
within the boundaries of federal areas, called Conser-
vation System Units (CSUs), that were created by
the Alaska National Interest Lands Conservation
Act (ANILCA). See 16 U.SC. §3101 et seqg.; 43 U.S.C.
§ 1311(a); Alaska Statehood Act, § 6(m), 72 Stat. 343
(1958). Alaska’s “ownership of submerged lands and
the accompanying power to control navigation, fishing,
and other public uses of water is an essential attribute
of sovereignty.” Tarrant Reg'l Water Dist. v. Herrmann,
569 U.S. 614, 631 (2013) (internal quotes omitted);

syle v. Smith, 221 U.S. 559, 573 (1911). ANILCA en-
.orsed Alaska’s sovereign right to manage its lands,
waters, and resources by providing that state, Native,
not be managed as if they were federally owned. 16 U.S.C.
§ 3103(c). This distinction is essential to ANILCA’s
purpose of providing “adequate opportunity for satis-
faction of the economic and social needs of the State of

' In compliance with Supreme Court Rule 37.2(a), Alaska
provided counsel of record with timely notice of its intent to file

2

Alaska and its people.” 16 U.S.C. § 3101(d). Alaska has
a direct and profound interest in maintaining its au-
thority to keep its waterways open, as Congress in-
tended, without broad federal regulatory interference.

Despite the Court’s direction to consider these “vi-
tal issues of state sovereignty,” Sturgeon, 136 S. Ct. at
1072, on remand the Ninth Circuit gave the National
Park Service expanded regulatory control over state-
owned lands and waters. Pet. App. 12a-14a, 19a. The
Ninth Circuit’s decision treats the submerged lands
that Alaska acquired at statehood as federally owned
lands, reading the term “public lands” expansively and
ignoring ANILCA’s admonition not to treat state lands
the same as federal ones. If left uncorrected, the deci-
sion has broad ramifications that extend well beyond
its blow to Alaska’s sovereignty. It ignores the needs
and realities of rural Alaskans, who face unparalleled
challenges in accessing the transportation thorough-
fares they rely upon to provide for their families.
Alaska has compelling interests in preserving its sov-
ereign right to responsibly manage its lands and wa-
ters and in protecting its citizens’ ability to use the
state’s waterways.

°

SUMMARY OF THE ARGUMENT
This case considers the extent to which ANILCA
permits the exercise of federal jurisdiction over state
waters. The right to regulate and manage state-owned
resources is an essential component of Alaska’s

3

sovereignty. And the freedom to use and access naviga-
ble waters is essential to many Alaskans’ way of life.
By granting the National Park Service regulatory
jurisdiction over state waters, the Ninth Circuit’s deci-
sion threatens that way of life. The decision contra-
venes ANILCA’s text and Congress’s intent in enacting
the law, dramatically redefines this Court’s federal re-
served water rights jurisprudence to the detriment of
state sovereignty, and ignores the clear statement
doctrine. If left to stand, the decision invites federal
agencies to wield plenary regulatory control over non-
federal waters and submerged lands. The decision
raises significant sovereignty issues and has broad
practical and economic ramifications, warranting this
Court’s review.

»
-

REASONS THE PETITION

SHOULD BE GRANTED
The Court acknowledged this case’s importance
when it granted review the first time, and the case has
ANILCA’s express limits on the federal government's
regulatory authority in Alaska is an issue of excep-
tional importance to the State and its people, and Mr.
Sturgeon’s petition once more presents an appropriate
and timely vehicle for the Court to address it. The
Ninth Circuit’s decision on remand again tramples
Alaska’s sovereignty by effectuating a federal takeover
of Alaska’s navigable waters. The court’s new rationale
fails to properly construe ANILCA and the balance it

4

struck between federal and state authority in Alaska,
and it compounds that problem with an incorrect ex-
pansion of the federal reserved water rights doctrine —
an important federal question of law that the Ninth
Circuit got wrong and that has broad implications in
all public land states.

To the extent that this case arises from ANILCA’s
Alaska-specific text, a circuit split on this issue cannot
tunity for Alaskans to retain their rights to their lands,
waters, and resources, and to meaningfully assure
Alaska’s sovereignty over its waters.

I. Certiorari is warranted because the Ninth
Circuit’s decision contravenes ANILCA Sec-
tion 103’s assurances that Alaska would re-
tain its sovereign right to manage its lands
and waters and because it imposes excep-
tional hardships on Alaskans.

A. Rural Alaskans depend on Alaska’s
lands, waters, and resources for many of
their transportation, economic, and so-
cial needs.

Alaska occupies an area equivalent to one-fifth of
the continental United States’s landmass, and over
60% of all land in Alaska is owned by the federal gov-
ernment. As the largest landowner in the state, the
federal government already manages an area more
than four times the size of Wyoming. By contrast, the
federal government owns only 4% of lands in the

5

non-western states. Colossal and disproportionate fed-
eral land ownership in Alaska makes the State’s free-
dom to manage its lands, waters, and resources crucial
to Alaska’s political independence and economic
health.

Alaska is home to abundant natural resources, in-
cluding over 12,000 rivers and three million lakes — the
largest network of navigable waters in the country. The
State also is home to myriad fish and wildlife, signifi-
cant oil and natural gas reserves, and economically vi-
able subsurface mineral deposits. Alaska’s vast terrain
and wild beauty captivate the national imagination
and its bounty of resources fortifies both the state and
national economies. But Alaska’s massive size, widely
dispersed population, lack of developed infrastructure,
variable topography, and extreme climate also make
it the nation’s most remote state. Over three-quarters
of Alaska’s 300 communities and roughly 20% of its
735,000 residents live in regions unconnected to the
road system. Half of these residents live in the State’s
most remote villages, communities with disproportion-
ately higher levels of poverty and limited infrastruc-
ture, some lacking essential services like water and
sanitation. These rural citizens are acutely reliant on
Alaska’s resources to provide for their families. The
State’s ability to manage these resources in accordance
with unique realities, local needs, and historical cus-
toms is thus critical to its sovereign interests.

Roadless rural Alaskans primarily travel by all-
terrain vehicles; airplanes — generally regional, smal!
bush plane, or private air service; snowmachines; and

6

boats. Alaska’s mountainous northern climate further
shapes the unusual nature of the State’s limited trans-
portation options: severe storm patterns routinely dis-
rupt air service and rivers seasonally evolve into ice
roads.

Alaska’s waters provide essential travel corridors
year round. Many rural citizens, particularly in south-
west Alaska, live in small, isolated villages stretched
along rivers, and depend on these networks of water
the Yukon and Kuskokwim serve as critical arteries for
transporting commercial fuel and goods to much of
western Alaska throughout the summer months. Espe-
cially in more remote areas, Alaskans rely on these wa-
ters to access health care, goods, and services; recreate;
and travel to hunting and fishing grounds. In winter,
Alaska’s rivers freeze into highways for snowmachine,
dogsled, and all-terrain vehicle traffic, remaining a vi-
tal part of the State’s transportation infrastructure
that allows Alaskans to access vital goods and services.
Alaska’s rivers have functioned in this way for hun-
dreds of years.

Because Alaska’s rural villages are so isolated,
residents in these communities also face economic
challenges. Rural residents confront a formidable com-
bination of high costs of living, little or no local tax
Localized resource-based activities — such as local
tourism and recreation-related jobs or small-scale min-
ing, sport fishing, wildlife guiding, or trapping — often

7

provide an essential part of families’ incomes and con-
tribute to the economic activity of the region.

Alaska has an acute interest in retaining its man-
agement authority over water-based access routes and
in crafting management decisions to account for local
needs — needs that might be ignored or eclipsed by fed-
eral land management agencies with singular conser-
vationist priorities and a national constituency. State
regulators understand the unusual realities of life in
Alaska and use that knowledge to design rules that
consider local conditions, practices, and needs. But fed-
eral regulators — who may never even visit Alaska, let
alone develop a nuanced understanding of the unique
aspects of rural Alaskan life — lack this knowledge or
focus. As a result, the nationwide regulations they im-
pose can be ill-fitting for Alaska.

For example, in permitting hovercraft to operate
on state waters, Alaska has prioritized opening its
waters to meet the access and transportation needs of
residents like Mr. Sturgeon, whom the Park Service
apprehended for taking his hovercraft to hunting
grounds. The federal government’s national prohibi-
tion on hovercraft use might be sensible in Lower 48
parks where waters are used only for tourism and wil-
derness activities, but it is overbearing and harmful in
Alaska, where, even in remote wilderness areas, citi-
zens must use rivers for everyday transportation and
to access necessities like food, fuel, and health care.

What is at stake here for Alaska, therefore, is not
just a disagreement with the National Park Service

8

about permissible weekend recreation or the best
method of routing tourists through national parks. Be-
cause “Alaska is different,” Sturgeon, 136 S. Ct. at
1070, the State’s continued management of its waters
and lands is essential to maintain unencumbered ac-
cess and meaningful use of Alaska’s natural resources
by its citizens.

B. Alaska’s sovereign right to regulate,
use, and manage its lands and waters is
instrumental to Alaska’s statehood and
ANILCA’s purpose.

Management and control of Alaska’s natural re-
sources is not only vital to its residents, but also lies at
the heart of the State’s sovereign identity. As this
Court emphasized in its prior decision, a central moti-
vation for Alaskans seeking statehood in 1956 was to
allow the resource-rich territory to manage its own
lands and waters. Sturgeon, 136 S. Ct. at 1064-65.

Before statehood, Alaska benefitted little from the
extraction of its minerals or from the fur trade and
fishing industries. Congress, not Alaska’s territorial
government, owned nearly all the land and had most
of the authority over land laws, natural resources man-
agement, and fiscal matters. Terrence M. Cole, Blinded
by Riches: The Permanent Funding Problem and the
Prudhoe Bay Effect, Inst. of Soc. and Econ. Research,
Jan. 2004. Mining taxes were low and thus contrib-
uted little, and “only a tiny fraction of the wealth from

® Available at http//www.iser.uaa.alaska.edu/Publications/
blindedbyriches. pdf, at 33.

9

the salmon industry ever directly touched Alaska’s
shores.” Id. at 36; see also id. at 50-52.

When delegates gathered in 1955 to draft the
Alaska Constitution, they expected an enormous grant
of land and minerals from Congress at statehood to
sustain the new state. The delegates “were uniform in
their belief that Alaska’s natural resources had been
‘locked up’ and devalued by the negligent actions of the
federal government and absentee owners,” and that
the careful development of Alaska’s resources “spelled
the difference between a future of plenty or of poverty.”
Gerald A. McBeath, The Alaska State Constitution 159
(2011).

Members of the convention’s resources committee
also acknowledged the difficulty of reconciling the de-
sire to develop Alaska’s resources with the need to
avoid the resource exploitation of the past. Victor
Fischer, Alaska’s Constitutional Convention 132-33
(1975). The delegates ultimately drafted an entire con-
stitutional article directing the State to practice pru-
dent resource development that would most benefit
all Alaskans. Article VIII recognized the critical im-
portance to the State of thoughtful, internal manage-
ment of Alaska’s resources, and commanded that
Alaska’s resources be reserved to the people “for max-
imum use consistent with the public interest” and
providing for free access to Alaska’s navigable or public
waters. Alaska Const. art. VIII, §§ 1, 14. Alaska’s new
constitution then served as the basis for subsequent
statehood petitions to Congress.

10

Congress, concerned that Alaska would not other-
wise be able to raise sufficient revenue to carry out the
responsibilities of statehood, gave it 103 million acres
of land and mineral rights to fund self-governance.
Alaska Statehood Act, § 6(a), (b), (i), 72 Stat. 340, 342.
“The primary purpose of the statehood land grants . . .
was to ensure the economic and social well-being of the
new state.” Trustees for Alaska v. State, 736 P.2d 324,
335 (Alaska 1987). Through these land grants, Con-
gress recognized that Alaska stood ready, willing, and
able to manage its resources. It relinquished federal
control of Alaska’s resources to the people who best un-
derstood the State’s needs — Alaskans.

As this Court recognized, under the terms of the
Submerged Lands Act and the constitutional equal
footing doctrine, at statehood Alaska “gained ‘title to
and ownership of the lands beneath navigable waters’
within the State, in addition to ‘the natural resources
within such lands and waters,’ including ‘the right and
power to manage, administer, lease, deve'op, and use
the said lands and natural resources.’” Sturgeon, 136
S. Ct. at 1065 (quoting § 3(a), 67 Stat. 30, 43 U.S.C.
§ 1311(a); § 6(m), 72 Stat. 343)). Only once its ability
to control and manage the Sate’s lands and waters
was assured could Alaska begin its journey toward
self-sufficiency and prosperity.

11

C. ANILCA’s requirement that state lands be
treated differently from federal lands pro-
tects Alaska’s sovereign rights.

Twenty-one years after statehood, Congress
passed ANILCA, reserving over 100 million acres of
federal land in Alaska — an area larger than California
— for the primary purposes of conservation and protec-
tion. 16 U.S.C. § 3101 et seg. Vast swaths of Alaska’s
new and expanded national parks, wildlife refuges,
wild and scenic rivers, national trails, wilderness
preservation systems, and national forest monuments
were organized into CSUs managed by different fed-
eral land management agencies. 16 U.S.C. § 3102(4).
Roughly 40% of Alaska now falls within an ANILCA
conservation system unit, and Alaska’s National Parks
now make up two-thirds of the entire National Park
System.

While ANILCA reserved massive amounts of land
— significantly limiting the possibility for Alaska’s fu-
ture economic development — it also included provi-
sions meant to protect Alaska’s authority. Congress’s
statement of purpose acknowledges ANILCA’s twin
goals: to protect the national interest in scenic, natu-
ral, cultural, and environmental values on public lands
in Alaska, but also to continue to “provide[ | adequate
opportunity for satisfaction of the economic and social
needs of the State of Alaska and its people.” 16 U.S.C.
§ 3101(d).

Congress protected Alaska’s ability to direct the
use of its own lands and waters by expressly stating

12

that non-federal “lands” — defined to include state wa-
ters as well as uplands — falling within newly ex-
panded park boundaries would not be regulated as if
they were federally owned. 16 US.C. §§ 3102(1),
3103(c) (providing non-federal lands are not “subject to
the regulations applicable solely to {federal lands]
within such units”). By the time ANILCA was passed,
the State, private landowners, and Alaska Native Cor-
porations had existing ownership interests in lands
and waters across Alaska, so the federal areas ANILCA
created encapsulated these non-federal areas into is-
lands located within CSUs. Section 103(c) assures
Alaska’s sovereign authority to manage its waters and
lands by excluding from CSUs those non-federal lands
that happen to be located within unit boundaries. 16
US.C. §§ 3103(c), 3102(1), (3)(b){c), (11). This subsec-
tion further provides that, should the federal govern-
ment wish to regulate non-public lands as part of a
system unit, it must first acquire them; only then may
the new lands become part of the unit and “be admin-
istered accordingly.” 16 U.S.C. § 3103(c). By removing
these non-federal lands and waters from the reach of
the extensive regulatory regime applicable to federally
owned parklands nationwide and drawing hard bound-
aries between how the different categories of lands
should be treated, Section 103(c) limits federal juris-
diction and protects against abuse of federal regula-
tory power.

Now, for the second time, the Ninth Circuit nulli-
fied that guarantee, awarding the Park Service — and
presumably other federal land management agencies

13

— broad authority to regulate state waters as federal
lands. The Ninth Circuit’s decision endorses further
federalization of state-owned resources and subjects
Alaskans to federal regulatory control in a manner
that Congress neither authorized nor intended. Con-
gress’s careful balance between its dual goals of con-
servation and local control, and Alaska’s longstanding
sovereign right to manage its lands and resources, now
lie in peril.

Ill. The Ninth Circuit’s contortion of the federal
reserved water rights doctrine threatens
Alaska’s political and economic sover-
eignty.

A. The Ninth Circuit’s decision on remand
disregards this Court’s direction to
construe ANILCA to protect Alaska’s
sovereignty and respect its uniqueness.

In 2016, this Court articulated governing princi-
ples for how to evaluate ANILCA and the Park Ser-
vice’s attempt to exercise management and control
within CSUs. This Court reviewed Alaska’s history,
stressing that the Alaska Statehood Act, Alaska Native
Claims Settlement Act, and ANILCA all reflect Con-
gressional recognition that the proper state-federal
balance was crucial to Alaska’s economic health and
prosperity. Sturgeon, 136 S. Ct. at 1064-66, 1070-71.
The Court explained how ANILCA balanced the goals
of conservation and local control. Jd. at 1066 (quot-
ing 16 U.S.C. § 3101(d)). And it discussed the “numer-
ous Alaska-specific exceptions to the Park Service’s

14

general authority over federally managed preservation
areas” that are “woven throughout ANILCA,” reflect-
ing Congress’s delicate balance. Jd. at 1070-71. As this
Court recognized, numerous aspects of ANILCA rein-
force the importance of Alaska’s difference and sover-
eignty — specifying, for example, that the Park Service
cannot prohibit, even on federal lands, “certain activi-
ties of particular importance to Alaskans.” Sturgeon,
136 S. Ct. at 1066 (citing 16 U.S.C. §§ 3170(a), 3201);
see also id. at 1070-71 (citing 94 Stat. 2393, 16 U.S.C.
§§ 3121(b), 3201).

Although the Court did not reach the question
that the Ninth Circuit now has decided — whether the
Nation River qualifies as “public lands” within the
meaning of ANILCA, allowing broad federal manage-
ment and regulation — its opinion stressed that
“ANILCA repeatedly recognizes that Alaska is differ-
ent” from other states, because of its majestic terrain
and remoteness, the importance of Native Alaskan and
subsistence values to the state, and its heightened
need for state-managed resource development and use.
Id. at 1070. ANILCA reflects “the simple truth that
Alaska is often the exception, not the rule,” and the law
“contemplates the possibility that all the land within
the boundaries of conservation system units in Alaska
may be treated differently from federally managed
preservation areas across the country, and that ‘non-
public’ lands within the boundaries of those units may
be treated differently from ‘public’ lands within the
unit.” Id. Applying these principles, this Court re-
versed the Ninth Circuit’s initial reading of the

15

statute, calling it a “contorted and counterintuitive”
reading of the statute because it was inconsistent with
Congress’s special solicitude for local control. Jd. at
1071-72.

But on remand the Ninth Circuit again read
ANILCA to erase distinctions between public and non-
public lands and to eliminate state control in favor of
national oversight. By holding that ANILCA trans-
forms countless Alaskan navigable waters into federal
lands, the Ninth Circuit once again endorsed a legal
theory that subjects Alaska to plenary federal control.
The Ninth Circuit’s opinion lacks this Court’s attention
to principles of sovereignty and local control. It also
contravenes this Court’s legal precedents, ANILCA’s
text, and Congress’s intent.

B. The Ninth Circuit’s redefinition of the
federal reserved water rights doctrine
disregards this Court’s precedents and
tramples on state sovereignty.

Whether the Nation River qualifies as “public
lands” in ANILCA is a legal issue that “touch/es] on
vital issues of state sovereignty.” Jd. at 1072. ANILCA
Section 103(c) imposes hard limits on the federal gov-
ernment’s ability to regulate non-public lands, specify-
ing that “lolnly those lands within the boundaries of
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.” 16 U.S.C.
§ 3103(c). The Ninth Circuit concluded that the Nation

16

River — a navigable waterway owned and traditionally
regulated by the State — qualifies as “public lands” be-
cause Congress implicitly reserved an undefined and
unquantified level of instream flow when it created the
Yukon-Charley preserve. This stretches the federal re-
served water rights doctrine beyond all recognition. It
also ignores Congress’s decision to craft ANILCA to
protect Alaska’s sovereignty. Neither Congress’s direc-
tion nor this Court’s cases support the Ninth Circuit's
conclusion.

1. The Ninth Circuit’s decision con-
flicts with this Court’s water rights

jurisprudence.

The Ninth Circuit held that the United States has
an “implied reservation of water rights [in the Nation
River], rendering the river public lands.” Pet. App. 19a.
The court determined that “non-public land is still sub-
ject to [regulations applicable only to public lands] if
the United States retains an interest in it because the
land is public to the extent of the interest.” Pet. App.
8a. It acknowledged that the State holds title to the
submerged lands at issue, but held that the United
States retained a reserved interest in the waters flow-
ing above the submerged lands, such that the waters
are public lands under ANILCA. That holding pro-
foundly distorts the reserved water rights doctrine and
the equal footing doctrine.

To reach its conclusion, the Ninth Circuit relied on
a muddled and distinguishable circuit precedent. The

17

Ninth Circuit’s “Katie John” decisions concerned only
subsistence activities under ANILCA’s Title VIII,
which are not now and have never been at issue in this
case." In Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995)
|Katie John I\, the Ninth Circuit held that “public
lands include some specific navigable waters as a re-
sult of reserved water rights” — but only for the sole
purpose of administering ANILCA’s rural subsistence
priority under a unique statutory title. Jd. at 704. In-
deed, the court explicitly cautioned that its holding
was limited to those portions of ANILCA “necessary to
give meaning to [|ANILCA’s] purpose of providing an
opportunity for a subsistence way of life.” Id. at 702
n.9. The Katie John I court remained convinced that
“ANILCA does not support || a complete assertion of
federal control” over Alaska’s navigable waters. Jd. at
704. In broadening Katie John well beyond the subsist-
ence context, the Ninth Circuit now has embraced that
federal takeover. It was wrong to do so.

Under this Court’s jurisprudence, a federal re-
served water right is a limited, non-ownership right to
use or preserve a specific volume of water. When the
federal government withdraws and reserves lands for
a public purpose, such as creating a national park, it
“by implication, reserves appurtenant water then un-
appropriated to the extent needed to accomplish the

* Nor has any party to this case challenged the federal sub-
sistence regulations that effectuate Title VIII's subsistence prior-
ity. Alaska supports the subsistence regulations — but this does
not and need not require the State to cede control of its navigable
waters to the federal government for all purposes.

18

purpose of the reservation.” Cappaert v. United States,
426 U.S. 128, 138 (1976). This Court has strictly limited
the scope of this doctrine: it applies only to “that
amount of water necessary to fulfill the purpose of the
reservation, no more.” Jd. (emphasis added).

Thus, in Cappaert, this Court examined the extent
of the federal government’s reserved water rights in
the Devil’s Hole National Monument, a deep limestone
cavern in Nevada containing a subterranean pool
home to a rare and endangered pupfish. In establish-
ing the national monument, Congress’s direction to
give special protection to the pool and the fish living in
it established a federal reserved water right — but the
government's interest extended only to preserve the
exact amount of water necessary to keep the fish alive.
Id. at 141. To ensure that the doctrine remains limited
to the amount of water absolutely necessary to fulfill
the government’s purposes — a crucial check on federal
authority — courts applying the doctrine “carefully ex-
amine| | both the asserted water right and the specific
purposes for which the land was reserved, and [|must!
conclude|[ | that without the water the purposes of the
reservation would be entirely defeated.” United States
v. New Mexico, 438 U.S. 696, 700 (1978).

The Ninth Circuit did not adhere to this limiting
principle. It made no attempt to constrain the National
Park Service’s reserved water rights interest to the
minimum amount of water necessary to prevent the
purposes of the Yukon-Charley reservation from being
entirely defeated. Instead, the court decided that
the Park Service’s reserved water right extended to

19

prevent any water use that would merely impact the
purposes of the reservation. Pet. App. 17a-18a. This
novel redefinition of federal reserved water rights
vastly expands the doctrine and completely defeats
Alaska’s rights in its waters just because there may be
some federal interest in some use of the water. And the
Ninth Circuit’s analysis no longer treats the reserved
water rights doctrine as concerning use of a particular
amount of water, as this Court has required. Instead,
the Ninth Circuit has invoked the doctrine to justify a
wholesale grant of federal management authority over
Alaska’s navigable waters. This is a startling expan-
sion of the doctrine, and one with no foundation in this
Court’s jurisprudence.

Even that holding would not have been enough, on
its own, to entitle the federal government to regulate
navigable waters that flow through CSUs. But the
Ninth Circuit took another remarkable step and ruled
that the United States has “title” to the water that is
subject to reserved water rights. This was necessary in
order to transform state waters into federal lands un-
der ANILCA’s definition section. ANILCA authorizes
the federal government to regulate “public lands,”
which it defines as “(flederal lands.” 16 U.S.C.
§ 3102(3). “Federal land” in turn is defined as “lands
the title to which is in the United States.” Jd. § 3102(2)
(emphasis added). And “land” includes “lands, waters,
and interests therein.” Jd. § 3102(1). But the United
States does not hold “title” to navigable waters as to
which it has reserved water rights, let alone to the
lands underlying Alaska’s navigable waters. The Ninth

20

Circuit conceded that “reserved water rights are not a
‘title’ interest ... in a narrow, technical sense,” Pet.
App. 16a (internal quotes omitted), but found “a vested
interest in the water” to be good enough. /d. at 17a. It
is not. If Congress intended that a non-title “interest”
in water could make a river “public lands” that are
fully subject to the power of federal regulation, it would
have written the statute to say that.

Other provisions of ANILCA confirm that Con-
gress did not intend that a federal usufructuary right
— an interest far less than title — would transform en-
tire lands and rivers into “public land,” enabling broad
federal regulation for all purposes. One example is that
Section 103(c) limits the ability of the Secretary to
regulate state, private, or other non-federal lands un-
less it purchases or otherwise acquires them. Yet the
Ninth Circuit now gives the Park Service this right to
regulate state waters without any purchase, compen-
sation, or acquiescence from the State. Cf 16 U.S.C.
§ 3192a.

The Ninth Circuit’s ruling subverts not only
ANILCA, but also the constitutional equal footing doc-
trine, the Submerged Lands Act, and the Alaska State-
hood Act. At statehood, Alaska took title to its
submerged lands as an “essential attribute” of state
sovereignty, Utah Div. of State Lands v. United States,
482 U.S. 193, 195 (1987), which Congress formally rec-
ognized in the Submerged Lands Act and the State-
hood Act, see 43 U.S.C. § 1311(a) (incorporated into the
Alaska Statehood Act, 72 Stat. 343 § 6(m) (1958)).
Along with title to the submerged lands, the State

21

received management power over the navigable waters
themselves, 16 U.S.C. § 3210(b), and over the fish lo-
cated in the waters. See 43 U.S.C. § 1311(a) (confirming
and establishing state ownership and management of
“the natural resources within such lands and waters”);
43 U.S.C. § 1301(e) (defining “natural resources” to in-
clude fish). Title to the lands underlying navigable wa-
ters is important to a state’s sovereign authority and
obligation to regulate waters in trust for the people for
navigation, commerce, and fishing. Illinois Cent. R. Co.
v. Illinois, 146 U.S. 387, 452 (1892). That is particularly
true here given Alaska’s unique history and the reali-
ties of life for many of its residents.

Although navigable waters themselves are not
usually considered subject to traditional title owner-
ship, they run together with the submerged lands they
overlie; title to the bed of navigable waters “necessarily
carries with it control over the waters above them.”
Id. Thus, the Submerged Lands Act recognized state
assumption of both “submerged lands and waters.”
United States v. California, 436 U.S. 32, 37 (1978). Ever
since statehood, then, Alaska has had sovereign con-
trol and management authority over its waters. See
also PPL Montana, LLC v. Montana, 565 U.S. 576, 591
(2012) (explaining that under equal footing doctrine,
“[ulpon statehood, the State gains title within its bor-
ders to the beds of waters then navigable” as a matter
of constitutiona! grace, and may “allocate and govern
those lands according to state law” as sovereign).

The Ninth Circuit did not and could not explain
how a federal reserved water right eclipses the State’s

22

sovereign interests in managing its waters. Had Con-
gress meant to grant the Park Service broad regula-
tory power over Alaska’s navigable waters superseding
Alaska’s sovereign ownership and control, it would
have done so clearly and directly. Indeed, this Court’s
cases require that such interference with state control
must be unambiguous and plain — another fundamen-
tal legal principle that the Ninth Circuit ignored.

2. The Ninth Circuit’s decision con-
flicts with this Court’s clear state-
ment cases.

The Ninth Circuit not only distorted this Court’s
water rights jurisprudence, it also ignored the legal
doctrine that functions as a crucial check on the pre-
cise power transfer that the Ninth Circuit endorsed:
the clear statement doctrine.

“Congress does not exercise lightly” the “extra-
ordinary power” to “legislate in areas traditionally
regulated by the States.” Gregory v. Ashcroft, 501 U.S.
452, 460 (1991). The clear statement doctrine effectu-
ates this principle, serving as a necessary safeguard
against unwarranted federal assumption of power. Un-
der the doctrine, courts will not interpret a statute to
“alter the usual constitutional balance between the
States and the Federal Government” unless Congress
has made “its intention to do so unmistakably clear in
the language of the statute.” Congressional intent to

infringe on state sovereignty must be “plain to anyone
reading [it]” through a “clear and manifest statement.”

23

Gregory, 501 U.S. at 467; Rapanos v. United “ates, 547
U.S. 715, 738 (2006) (internal quotation marks omit-
ted). This rule “acknowledgel|s| that the States retain
substantial sovereign powers under our constitutional
scheme, powers with which Congress does not readily
interfere.” Gregory, 501 U.S. at 461. In violation of
these principles, the Ninth Circuit’s reading of
ANILCA significantly intrudes upon Alaska’s sover-
eignty without clear Congressional intent to alter the
traditional federal-state balance over management of
navigable waters.

The clear statement doctrine applies wherever
federal regulation “would result in a significant im-
pingement of the States’ traditional and primary
power over land and water use.” Solid Waste Agency of
N. Cook County v. U.S. Army Corps of Eng’rs, 531 U.S.
159, 174 (2001) (SWANCC). This is unquestionably
true here, for the expansive regulatory jurisdiction the
Ninth Circuit appears to have created will be used to
significantly impair Alaska’s “traditional and primary
power over land and water use” by forcibly removing
Alaska’s control of its submerged lands and navigable
waters. Rapanos, 547 U.S. at 738; see also SWANCC,
531 U.S. at 172-73 (noting that clear statement re-
quirement is especially crucial “where the administra-
tive interpretation alters the federal-state framework
by permitting federal encroachment upon a traditional
state power”). But the Ninth Circuit made no effort to
apply the doctrine.

Had the Ninth Circuit applied these principles, it
could not have reached the result it did, for ANILCA

24

does not contain any statement, much less the required
clear statement, of Congressional intent to force
Alaska to cede control over its waters to the federal
government. Indeed, the text of ANILCA, hundreds of
pages long, does not mention navigable waters or re-
served water rights at all. Nor does its definition of
“pubic lands” as “lands, waters, and interests therein”
the “title to which is in the United States,” clearly and
manifestly include navigable waters, because the gov-
ernment does not hold “title” either to a non-
possessory right to preserve instream flows or to the

underlying submerged lands. In fact, Congress ex-
pressed the intent to exclude navigable waters from
the definition of “public lands,” by explicitly exempting
all “lands . . . granted to the Territory of Alaska or the
State under any other provision of Federal law.” 16
U.S.C. § 3102(3)(A).

The Ninth Circuit’s failures to correctly apply ei-
ther the reserved water rights doctrine or the clear
statement doctrine combine to create a particularly
damaging legal landscape for states. In one blow, the
Ninth Circuit has dramatically expanded the scope of
federal regulatory authority and overridden local con-
trol of state waters, while simultaneously sweeping
away the clear statement rule’s protections against
federal usurpation of state authority.

25

C. The Ninth Circuit’s decision threatens
states’ authority under other federal
statutes and in waters outside CSU
boundaries.

Alaska is not the only sovereign whose control
over its waters is threatened by the Ninth Circuit’s de-
cision. It also threatens other states and Native Tribes
within the Circuit because ANILCA’s definition of
“public lands” appears verbatim in numerous other
public lands statutes, and because the Ninth Circuit’s
decision appears to permit federal regulation of state-
owned waters appurtenant to federal lands and wa-
ters.

When this Court last considered this case, it con-
sidered a statutory construction question applicable
only to Alaska. But the Ninth Circuit’s reserved water
rights rationale is not limited to waters lying within
the boundaries of ANILCA units in Alaska. The federal
reserved water rights doctrine is judicially created and
applies across the nation. And as Mr. Sturgeon points
out, ANILCA’s definition section — which the Ninth
Circuit relied on to hold that Alaska’s navigable waters
are “public lands” — appears verbatim in numerous
other public lands statutes across the west. Pet. 26-27
& n.1. The Ninth Circuit’s rationale therefore invites
the federal government to usurp control of navigable
waters in parks and federal areas throughout the Cir-
cuit. This Court should not allow the Circuit’s legal er-
rors to compromise the sovereign interests of states
across the west.

26

Making matters worse, the federal government’s
newly granted management authority also may extend
well beyond the geographic scope of waters physically
running through federal areas. Under the Ninth Cir-
cuit’s “immensely broad” concept of appurtenance, the
government’s reserved water right gives it control of
not just the portions of the navigable waterway that lie
inside CSU boundaries, but also other waters appurte-
nant to the reserved federal land. John v. United
States, 720 F.3d 1214, 1229-31 (9th Cir. 2013). The
potential scope of the government management au-
thority over what were previously clearly Alaska’s wa-
ters now includes “all the bodies of water on which the
United States’ reserved rights could at some point be
enforced — i.e., those waters that are or may become
necessary to fulfill the primary purposes of the federal
reservation.” Id. The scope of this holding is breathtak-
ing, possibly including most or all of Alaska’s waters —
and without any clear congressional intent to deprive
Alaska over those submerged lands and waters.

If allowed to stand, the Ninth Circuit’s opinion
could thus result in a federal takeover of state waters
across the west — including waters that are not located
inside the boundary of federal areas. This Court should
not permit this to happen. It should grant Mr. Stur-
geon’s petition and ensure that state sovereignty is
respected in the Ninth Circuit as this Court and Con-
gress have directed.

°

27

CONCLUSION

For all these reasons, this Court should grant the
petition.

Respectfully submitted,
JAHNA LINDEMUTH
Attorney General of Alaska

JANELL HAFNER RUTH BOTSTEIN

P.O. Box 110300 Counsel of Record

Juneau, Alaska 99801 KATHRYN R. VOGEL
1031 W. 4th Avenue

Alaska 99501

(907) 269-5100

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0804%3A06. Public record. Not legal advice.