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

No. 17-949

IN THE

Supreme Court of the United States

JOHN STURGEON,

Petitioner,

v.

BERT FROST, IN HIS OF FICIAL CAPACITY AS

ALASKA REGIONAL DIRECTOR OF THE NATIONAL

PARK SERVICE, et al.,

Respondents.

On Warr or CERTIORARI TO THE UNrrep STATES

Court or APPEALS FOR THE Nintu Crrcurr

BRIEF OF AMICUS CURIAE SAFARI CLUB

INTERNATIONAL IN SUPPORT

OF PETITIONER

Anna M. SEIDMAN

Counsel of Record

Douc.as S. Burpin

Jeremy E. CLARE

Sarari CLUB INTERNATIONAL

501 Second Street NE

Washington, DC 20002

(202) 543-8733

aseidman@safariclub.org

Counsel for Amicus Curiae

Safari Club International

August 14, 2018

2R2AGO g

(800) 274-3321 + (800) 359 6859

i

TABLE OF CONTENTS

Page

Se GE Koccdéastconcececussesenes i

TABLE OF CITED AUTHORITIES .............. ii

INTEREST OF AMICUS CURIAE .............++- 1

SUMMARY OF THE ARGUMENT................ 3

666 tck cnc cesdncinsssccénscdesscesed 5

A. The Reserved Water Rights Doctrine

is Inapposite to Sturgeon’s Challenge

to the Hovercraft Ban. ................-202.- 5

C. Had Congress Intended to Empower

the NPS to Regulate Activity on

Waterways Within Nationa! Preserves,

It Could Have Done So.............--000055 10

D. The NPS's Exercise of Authority Over Waters

Within CSU Boundaries Deprives Hunters

of Access to Hunting Opportunities .......... 11

ED en dcnevcccecevéeacsocecncusconedsa 21

uw

TABLE OF CITED AUTHORITIES

Page

CASES

v. United States,

Ee ee Se 7, 10

Nevada v. United States,

EE a 6

Safari Club Int'l et al. v. Demientieff et al.,

No. 98—0414 (D. Alaska, HRH) ................ 1-2

State of Alaska v. Zinke et al.,

No. 3:17-cv-00014 (D. Alaska, SLG)............... 2

Sturgeon v. Frost,

CS See 10

United States v. New Mexico,

ES ER 6, 8-9

Winters v. United States,

RR a ee 7

STATUTES AND OTHER AUTHORITIES

I te Ee ll

a a ee ll

BP ee Os ob ceduccnstccoseccccocccccecess 13

Cited Authorities

Page

ee 13

SEEPS ODER Reve Rene 13

| RA SR aS 13

ES ORS RS It l= 1

TE ae eee eS il

NE ci cccunckuantuseceakeecaad 2-3

REINER ens eR NEI Oty 5

I eed og Nes oe oe 13-14

I ede cdgt et ae 15

Eg 12

rede cradiveteais coeoee ee! 15

ETE AES Os 5, 12-13

ae er). | on Ba 14

47 Fed. Reg. 11598 (Mar. 17, 1982) .................. 7

48 Fed. Reg. 30252 (June 30, 1983)................ 7,8

w

Cited Authorities

Alaska Admin. Code tit. 11, § 20.990(7)..........

Internal Revenue Code § 501(e)(4)...............

ALASKA DEPARTMENT OF F'lsH AND GAME, ALASKA

Sport Fisainc Survey, STaTewIpDeE, http://

www.adfg.alaska.gov/sf/sportfishingsurvey/

index.cfm?A DFG =region.home ..............

ALASKA DEPARTMENT OF FISH AND GAME, Bison

HUNTING IN ALASKA, httpy//www.adfg.alaska.gov/

index.cfm?adfg=bisonhunting.main ..........

ALASKA DEPARTMENT OF FISH AND GAME,

Brown/Grizz_yY Bear HUNTING IN ALASKA,

http://www.adfg.alaska.gov/index.cfm?adfg=

brownbearhunting.main ..................+..

ALASKA DEPARTMENT OF F'IsH AND GAME, CARIBOU

HUNTING IN ALASKA, http://www.adfg.alaska.gov/

index.cfm?adfg=caribouhunting.main ........

ALASKA DEPARTMENT OF Fish AND GAME, DALL

SHEEP HunTING IN ALASKA, http://www.adfg.

alaska.gov/index.cfm?adfg=sheephunting.main . . .

ALASKA DEPARTMENT OF FisH AND GAME, Goat

HUNTING IN ALASKA, http://www.adfg.alaska.gov/

index.cfm?adfg=goathunting.main ...........

17

Vv

Cited Authorities

ALASKA DEPARTMENT OF FISH AND GAME,

INTRODUCTION TO ALASKA Bic GAME HUNTING,

http://www.adfg.alaska.gov/index.cfm?adfg=

hunting.biggameintro ...............0se056-

ALASKA DEPARTMENT OF FISH AND GAME, Moose

HUNTING IN ALASKA, http-//www.adfg.alaska.gov/

ALASKA DEPARTMENT OF FISH AND GAME, MUSKOX

HUNTING IN ALASKA, http-//www.adfg.alaska.gov/

index.cfm?adfg=muskoxhunting.main ........

ALASKA DEPARTMENT OF F'IsH AND GAME, SITKA BLACK-

TAILED DEER HUNTING IN ALASKA, http://www.adfg.

alaska.gov/index.cfm?adfg=deerhunting.main .. .

ALASKA DEPARTMENT OF F'tsH AND GAME, SMALL GAME

Huntinc In ALasKA, http://www.adfg.alaska.gov/

index.cfm?adfg=smallgamehunting.main. . .. . .

ALASKA DEPARTMENT OF FISH AND GAME,

Sport FIisHeries, http://www.adfg.alaska.

gov/index.cfm?adfg=fishingSport.main .......

ALASKA DEPARTMENT OF FISH AND GAME, WATERFOWL

HUNTING IN ALASKA, http://www.adfg.alaska.gov/

index.cfm?adfg=waterfowlhunting.main ......

ALASKA DEPARTMENT OF FISH AND GAME, WOLF

HUNTING IN ALASKA, http-//www.adfg.alaska.gov/

index.cfm?adfg=wolfhunting.opportunities . . . .

Page

17

vt

Cited Authorities

NATIONAL PARK SERVICE, ALASKA, DIRECTORY

oF COMMERCIAL SERVICE PRovipERs, https://

www.nps.gov/locations/alaska/services-

NATIONAL PARK SERVICE, ALASKA, VISIT,

https://www.nps.gov/locations/alaska/visit.htm . . .

NATIONAL PARK SERVICE, DENALI, GUIDED

AcTIVITIES IN DENALI, https://www.nps.gov/

dena/planyourvisit/business-with-park.htm

NATIONAL PARK SERVICE, GATES OF THE

Arctic, Directions, https://www.nps.gov/

NATIONAL ParRK SERVICE, KATMAI, Sport HuNTING,

https://www.nps.gov/katm/planyourvisit/

Pe Padvisedavessencess 14

Sup. Ct. R. 37(1)

The McDowell Group, The Economic Impacts of

Guided Hunting in Alaska, (February 2014)

http://www.alaskaprohunter.org/Economic__

Impacts of Guided Hunting Final.pdf..... .20, 21

1

INTEREST OF AMICUS CURIAE'

Safari Club International (“Safari Club”) is a

nonprofit corporation incorporated in the State of Arizona,

operating under § 501(c)(4) of the Internal Revenue

Code, with principal offices and places of business in

Washington, D.C. and Tucson, Arizona and a membership

of approximately 50,000. Safari Club’s missions are the

conservation of wildlife, protection of the hunter, and

education of the public concerning hunting and its use as a

conservation tool. Safari Club carries out its conservation

mission in part through its sister organization, Safari Club

International Foundation.

Safari Club has long been involved in litigation and

other advocacy efforts to promote hunting, access to

hunting, and sustainable-use conservation, including

‘unting opportunities on federal and other lands in Alaska.

For almost a decade, Safari Club pursued litigation to

challenge the Federal Subsistence Board’s administration

of subsistence priorities for hunting and wildlife resources

on federal lands in Alaska and the composition of the

federal advisory councils that provided recommendations

on the allocation of those priorities. Safari Club Int’l et

1. The following is provided pursuant to Supreme Court

Rule 37. No counsel for a party authored this brief in whole or in

part, and no counsel for a party and no party made a monetary

contribution intended to fund the preparation or submission of

this brief. No person other than named amicus curiae made

a monetary contribution to this brief. Counsel of Record for

Petitioner consented to the filing of amicus curiae briefs in

support of either or of neither party. Counsel of Record for

Respondents consented to the filing of this brief after receiving

timely written notice from the amicus curiae.

2

al. v. Demientieff et al. No. 98- v4i4 (D. Alaska, HRH).

Currently, Safari Club, together with the State of Alaska

and other non-governmental groups, is pursuing a case

against Respondent, Nationa: Park Service (“NPS”), to

challenge federal regulations that directly conflict with

Alaska state regulations and prohibit forms of hunting on

all National Preserves in Alaska. State of Alaska v. Zinke

et al., No. 3:17-cv-00014 (D. Alaska, SLG). In addition,

Safari Club has participated or is currently participating

in lawsuits involving, among other things, the listing and

delisting of numerous species under the Endangered

Species Act, states’ authority and ability to manage

wildlife populations via hunting, the ability of hunters to

retrieve legally hunted animals from lands within National

Forests, and the ability of hunters to import sport-hunted

trophies into the U.S. from international hunts.

In this amicus brief, Safari Club will “bring[] to

the attention of the Court relevant matter not already

brought to its attention by the parties.” Sup. Ct. R.

37(1). This brief provides information that will “be of

considerable help to the Court.” /d. It includes the view of

both resident and nonresident hunters who enjoy Alaska’s

world-class hunting resources and opportunities and who

require transportation on the waters that exist within

the boundaries of Conservation System Units (“CSUs”)

administered by the Respondent N PS.’ Access to hunting

2. CSUs in Alaska include “any unit in Alaska of the National

Park System, National Wildlife Refuge System, National Wild

and Scenic Rivers Systems, Nationa! Trails System, Nationa!

Wilderness Preservation System, or a National Forest Monument

by or under the provisions of [the Alaska National Interest Lands

Conservation Act of 1980], additions to such units, and any such

3

areas and opportunities is of primary concern to Safari

Club, its members, and many other hunters throughout

the United States and the world. In Alaska, hunters often

face significant obstacles to access hunting areas due to

limited road coverage and the isolated nature of many

valued hunting locations. Access to those opportunities

depends upon hunters’ ability to use all means of travel

on rivers and other navigable waters in CSUs in Alaska.

Safari Club and its members, along with the hunting

community generally, seek to protect the full range of

hunting and sustainable-use conservation opportunities

available in Alaska.

SUMMARY OF THE ARGUMENT

Safari Club agrees with the arguments presented in

Petitioner John Sturgeon’s brief. The federal government

does not hold title to the waterways at issue here. In the

absence of title to the waterways that run within the

CSUs, the NPS lacks the authority to regulate the use

of those waterways. That authority lies with the State of

Alaska.

Safari Club also agrees with Sturgeon that the

reserved water rights doctrine provides no justification

for the NPS’s claim of regulatory authority in this case.

Non-consumptive water uses, such as travel via hovercraft

and other modes of transportation used by hunters that

may be affected by the outcome of this case, do not have

unit established, designated, or expanded hereafter.” 16 U.S.C.

§ 3102(4); see also Petitioner Br. at 5-6. For the purposes of

this brief, all references to CSUs include only those CSU lands

administered by the NPS.

4

any demonstrable impact on the volume of water available

to achieve the primary purposes for which the Yukon-

Charley Rivers National Preserve was reserved. The

“sight and sound” reasoning provided by the NPS when

it adopted the restriction was not intended to sustain a

certain volume of water within the Preserve, necessary

to protect the Preserve’s purposes. Further, because the

NPS applies the hovercraft ban across the entire NPS

System, a court cannot find that the ban applies to fulfill

a purpose specific to the Yukon-Charley Rivers National

Preserve, as is required for application of the reserved

water rights doctrine.

The Ninth Circuit’s ruling greatly expands the scope

of the reserved water rights doctrine compared to this

Court’s previous holdings. Unless this Court overturns

the decision below, the United States will have practically

limitless authority over an innumerable number of waters

in this country.

Had Congress wished to incorporate the waters

within the CSUs, as it has done in many instances for other

NPS units, it could have done so. The failure of Congress

to expressly reserve the waters within the CSUs and

place them within NPS authority demonstrates that the

position of the Respondents and the ruling of the Ninth

Circuit do not reflect Congressional intent.

The Court’s ruling in this case will likely have an

impact on whether hunters, guides, and outfitters, many

of whom are Safari Club members, will be able to access

pat ionally- lated tional activiti ‘labl

within and outside the boundaries of federal lands in

Alaska and other states.

5

The ability to access hunting areas is essential to the

hunter. In Alaska, hunting opportunities are often found

in isolated, difficult to reach places, to which there is no

road access. A viable, and often the most viable, means

of access to hunting locations is air travel by float plane.

The NPS’s decision, upheld by the Ninth Circuit, that

the NPS has the authority to regulate activity on waters

that exist within CSU boundaries, poses a severe threat

to all who wish to hunt in these inaccessible locations.

The NPS's interpretation of Section 103(c) triggers the

application of 36 C.F.R. § 2.17(@) and its prohibition against

the use of not only hovercraft but also aircraft on waters

within Alaska’s CSUs. The regulatory ban against float

planes landing on the majority of those waters will make it

impossible for both resident and non-resident hunters and

their guides to reach many hunting locations within and

around CSUs, including many National Preserves. Even

though Congress mandated the authorization of hunting

in Alaska’s National Preserves, the NPS has thwarted

Congress’s directive by applying regulations in a way that

undermines hunters’ abilities to access and use National

Preserves for hunting.

ARGUMENT

A. The Reserved Water Rights Doctrine is Inapposite

to Sturgeon’s Challenge to the Hovercraft Ban.

Although it is a critical aspect to the outcome of Mr.

Sturgeon’s controversy, determining whether the Nation

River and other navigable waters in Alaska’s CSUs are

“public lands” is not necessary for this Court to dispatch

with the Ninth Circuit’s ill-reasoned use of the reserved

water rights doctrine in this case. Sturgeon correctly

6

argues that “the hovercraft ban exceeds the scope of

whatever reserved rights the United States might hold” in

the Nation River. Petitioner Br. at 37. Sturgeon accurately

describes the framework of the reserved water rights

doctrine:

The doctrine is premised on the federal

government’s need for actual use and

withdrawal of a certain volume of water; it

applies where Congress sets aside land for a

federal purpose but that purpose would be

“entirely defeated” without the reserved water.

United States v. New Mexico, 438 U.S. 696, 700

(1978).

Id. (emphasis added). The doctrine provides no support

for justifying a hovercraft ban on any water, let alone the

Nation River or other Alaskan CSU waters. As a use of

water that neither consumes nor harms the water, travel

via hovercraft is not a type of use that can be prohibited

in favor of any reserved water rights.

The previous cases to which this Court has applied

the reserved water rights doctrine have involved

appropriation of water such that the appropriated water

is removed from the water system and not usable by

anyone else. In these cases, the United States claimed a

right to water at issue that would otherwise be withdrawn

or diverted from the water system. See e.g., Nevada v.

United States, 463 U.S. 110, 117 (1983) (water at issue

sourced from river used to irrigate Indian reservation and

federal reclamation project); New Mexico 438 U.S. at 697,

n.1 (1978) (controversy began as action to “enjoin alleged

illegal diversions from the Rio Mimbres” for irrigation);

7

Cappaert v. United States, 426 U.S. 128, 133 (1976)

(rancher was pumping groundwater from underground

aquifer connected to Devil’s Hole); Winters v. United

States, 207 U.S. 564, 566 (1908) (water withdrawn from

Milk River for irrigation).

Had Mr. Sturgeon been conducting some activity that

removed or diverted significant volumes of water from the

Nation River, to the detriment of the primary purposes

of the Yukon-Charley Rivers National Preserve, then

the NPS might have had an arguable basis for asserting

a reserved water right to prevent such an

of water. But, those facts do not exist in this case. John

Sturgeon was traveling on the Nation River via his

personal hovercraft, which hovers above the water on a

cushion of air. “Hovercraft’ is defined as a device that

is supported by a fan-generated air cushion.” Genera!

Regulations for Areas Administered by the National Park

Service, 48 Fed. Reg. 30252, 30258 (June 30, 1983). See

also, Alaska Admin. Code tit. 11, § 20.990(7). Sturgeon’s

use of his hovercraft does not remove, appropriate or

divert a demonstrable amount of water from the Nation

River, and any other user can likewise use the water after

Mr. Sturgeon hovers over it. The reserved water rights

doctrine cannot be used to prohibit such non-consumptive

activity

The N PS’s own explanation for its reason to include a

hovercraft prohibition in the regulations applicable to all

NPS units proves that the prohibitions were not intended

by the NPS to preserve a certain volume of water within

any body of water. Although the restriction was not part

of the proposed version of the regulations published in

1982 (47 Fed. Reg. 11598 (Mar. 17, 1982)), the NPS decided

8

to add a hovercraft prohibition to the final version to

address alleged complaints about the “sight and sound”

of the vehicles:

A few commenters recommended that the

Service prohibit the use of hovercraft in park

areas. The National Park Service has adopted

this suggestion. “Hovercraft” is defined as a

device that is supported by a fan-generated

air cushion. The Service has determined that

hovercraft should be prohibited because they

provide virtually unlimited access to park

areas and introduce a mechanical mode of

transportation into locations where the intrusion

of motorized equipment by sight or sound is

generally inappropriate. This is consistent with

the Service's intent to control portable engines

and motors under § 2.12. Hovercraft shall only

be permitted pursuant to special regulations

and only following a thorough analysis of their

effect on park resources.

48 Fed. Reg. at 30258. As the N PS’s decision to include a

hovercraft restriction had nothing to do with any water-

volume concern for fish or other park natural resources,

or to any of the primary purposes of the Preserve, the

reserved water rights doctrine cannot be implied or justify

the restriction.

Additionally, the simple fact that the N PS’s hovercraft

ban applies to all N PS administered lands is determinative

that the reserved water rights doctrine provides no

authority for the ban. “Each time this Court has applied

the ‘implied-reservation-of-water doctrine,’ it has carefully

9

examined both the asserted water right and the specific

purposes for which the land was reserved ... .” New

Mezico, 438 U.S. at 700 (emphasis added). It is impossible

for a court, after a careful and specific examination, to find

a rationale for the application of a regulation to a specific

unit when the regulation applies system-wide. Such an

approach defies the specificity required for the application

of the reserved water rights doctrine. The N PS’s adoption

of the system-wide hovercraft ban cannot satisfy a court’s

careful examination of any specific purpose for which any

land was reserved, let alone a carefu! examination of the

purposes for which the Yukon-Charley Rivers National

Preserve was reserved. Notably, the Ninth Circuit did not

conduct the required careful examination; doing so would

have revealed that the hovercraft ban was not directed

to fulfill a specific purpose of the Yukon-Charley Rivers

National Preserve and consequently did not qualify for

application of the reserved water rights doctrine.

B. The Ninth Circuit’s Ruling Goes Well Beyond

the Scope of Established Caselaw Regarding the

Reserved Water Rights Doctrine.

If the Ninth Circuit’s ruling is upheld, the reserved

water rights doctrine’s scope will be expanded far

beyond this Court’s previous holdings. The amici States

appropriately described the Ninth Circuit’s ruling as

“particularly alarming” because it implies “that the

United States’ reserved water right extends to all water

on all navigable waters within the reservation.” States’

Br. at 14, n.5 (emphasis in original). In fact, by the Ninth

Cireuit’s logic, the United States could likely claim a

reserved water right for any water, inside or outside the

reservation, navigable or non-navigable, so long as the

water is hydrologically connected to the reservation.

10

This Court has held that the United States can hold

an implied reserved water right in non-navigable, off-

reservation water. Cappaert, 426 U.S. at 142—43 (NPS can

restrict pumping of ground water underneath privately

held land). The Ninth Circuit’s extension of the doctrine

gives the United States authority over “all the bodies of

water on which the United States’ reserved rights could

at some point be enforced—+.e., those waters that are or

may become necessary to fulfill the primary purposes of

the federal reservation at issue.” Sturgeon v. F'rost, 872

F.3d 927, 936 (9th Cir. 2017) (emphasis original; citation

omitted). Combined with this Court’s precedent that

includes private and ground waters within the ambit of

the doctrine, the scope of the Ninth Circuit’s expanded

interpretation is virtually limitless. Because the Ninth

Circuit seemingly requires no proof that the United

States actually needs the water to achieve the alleged

purpose of the reservation, the real-world implications of

the Ninth Circuit’s holding push the doctrine beyond the

constraints that this Court has consistently applied. Any

water hydrologically connected to a federal reservation

could be comprehensively regulated with little more than

the United States’ assertation that it may, at some point

in the nonspecific future, be necessary to fulfill a purpose

of a federal reservation.

C. Had Congress Intended to Empower the NPS to

Regulate Activity on Waterways Within National

Preserves, It Could Have Done So.

As explained in Petitioner John Sturgeon’s brief,

Congress is well aware of how to include in legislation

an express statement of its wishes to bring waters or

submerged lands within the scope of NPS jurisdiction.

11

See Petitioner Br. at 32 (providing example of the statute

establishing Olympic National Park in which Congress

explicitly identified that the Park would include “all

submerged lands and waters of Lake Ozette, Washington

and the Ozette River, Washington.”). The establishing

language of several other NPS-administered lands

similarly demonstrates that whenever Congress wants to

give the NPS authority over submerged lands or waters

in or near a National Park unit, it has done so expressly.

See, e.g., 16 U.S.C. § 398c (Virgin Islands National Park);

16 U.S.C. § 460ce (Gateway National Recreation Area);

16 U.S.C. § 410ff (Channel Islands National Park); and 16

U.S.C. § 459e-1 (Point Reyes National Seashore). Congress

could have included a similar express authorization for

waters or submerged lands within the National Preserves

at issue in this litigation in order to place them under the

regulatory authority of the NPS, but it did not.

D. The NPS’s Exercise of Authority Over Waters

Within CSU Boundaries Deprives Hunters of

Access to Hunting Opportunities.

Petitioner John Sturgeon filed suit in federal district

court in Alaska to challenge the N PS’s exercise of authority

to prohibit Sturgeon from operating his hovercraft on

navigable waters flowing within the boundaries of the

Yukon-Charley Rivers National Preserve. Sturgeon, a

hunter, used his hovercraft to travel to favored moose

hunting locations in Alaska. The authority that Sturgeon

challenges impacts far more than his ability to visit

a moose hunting area or even the ability of hunters

generally to use hovercrafts within the boundaries of

CSUs in Alaska. This authority threatens the ability of

hunters and guides generally throughout Alaska to access

12

hunting opportunities located both inside and outside the

boundaries of CSUs managed by the NPS. Unless this

Court rejects the Ninth Circuit’s interpretation of the

NPS's authority to regulate activity on waters within CSU

boundaries, hunters will be deprived of essential means

of transportation to the remote hunting opportunities in

and near many of the lands administered by the NPS in

Alaska.

Float planes, because they can land on water, provide

an essential means of transportation for hunters in Alaska.

The use of float planes in CSUs is at risk because the Ninth

Circuit upheld the N PS’s asserted authority, to regulate

activities on

navigable waters and areas within their

ordinary reach (up to the mean high water line

in places subject to the ebb and flow of the tide

and up to the ordinary high water mark in other

places) and without regard to the ownership of

submerged lands, tidelands, or lowlands

36 C.F.R. § 1.2(a)@). Not only would that authority enable

the NPS to prohibit the use of hovercrafts on such waters

within the boundaries of CSUs administered by the NPS,

but pursuant to 36 C.F_R. § 2.17(a), it would also result in

the prohibition against the use of most types of aircraft

on those waters:

(a) The following are prohibited:

(1) Operating or using aircraft on lands or

waters other than at locations designated

pursuant to special regulations.

13

Id. § 2.17(a).*

A prohibition on aircraft use of waters within CSU

boundaries has a major impact on hunter access to

hunting opportunities in Alaska. The NPS administers

approximately 43,522,000 acres of CSU lands in the State.

16 U.S.C. §§ 410hh, 410hh-1. Almost half of those lands

were established under ANILCA as National Preserves,

including the Anakchak (~ 367,000 acres), Bering Land

Bridge (~ 2,457,000 acres), Denali (~ 1,330,000 acres),

Gates of the Arctic (~ 900,000 acres), Glacier Bay

(~ 57,000 acres), Katmai (~ 308,000 acres), Lake Clark

(~ 1,214,000 acres), Noatak (~ 6,460,000 acres), Wrangell-

St. Elias (~ 4,117,000 acres), and Yukon-Charley

Rivers National Preserves (~ 1,713,000 acres) (totaling

~ 18,923,000 acres). Jd. National Preserves are a major

component of the lands in Alaska open to hunting.

Alaska’s National Preserves, like many lands in the

State, are actively hunted. Congr’ss specifically mandated

that the N PS authorize hunting va National Preserves in

Alaska.

A National Preserve in Alaska shall be

administered and managed as a unit of the

3. ANILCA expressly grants the NPS authority to limit

aircraft landings on only two portions of the waterways within

the CSUs. For Kobuk Valley National Park, Congress directed

“(e]xcept at such times when, and locations where, to do so would

be inconsistent with the purposes of the park, the Secretary shal!

permit aircraft to continue to land at sites in the upper Salmon River

watershed.” 16 U.S.C. § 410hh(6). ANILCA grants similar authority

to the NPS for limiting aircraft landings in the Upper Charley River

watershed. /d. at § 410hh(10).

14

National Park System in the same manner as

a national park except as otherwise provided

in this Act and except that the taking of fish

and wildlife for sport purposes and subsistence

uses, and trapping shall be allowed in a

national preserve under applicable State and

Federal law and regulation.

16 U.S.C. § 3201 (emphasis added); see also 36 C.F.R.

§ 1340(d).

Although Alaska’s National Preserves are open to

hunting, access to that hunting can be difficult. Few roads

run through or access all areas of those Preserves. As

acknowledged by the National Park Service itself, several!

of the National Preserves cannot be reached by road at all.

“While some of Alaska’s national parklands are accessible

by road, many can only be reached by boat, plane, or

non-motorized transportation.” NATIONAL PARK SERVICE,

ALASKA, Visit, https://www.nps.gov/locations/alaska/visit.

htm (last visited Aug. 11, 2018). For example, boats and

aircraft provide the only access to Katmai National Park

and Preserve. “Hunting and trapping within Katmai

National Preserve requires extensive planning. Access

in most cases will involve air taxi service via float plane

from King Salmon or one of the other surrounding

villages.” NATIONAL PARK SERVICE, KATMAI, Sport HUNTING,

https://www.nps.gov/katm/planyourvisit/hunting.htm

(last visited Aug. 11, 2018). Similarly, no roads lead into

Gates of the Arctic National Park. “Most visitors access

the park by air taxi, in small aircraft equipped with

floats or tundra tires.” NATIONAL Park Service, GATES

or THE Arctic, Directions, https://www.nps.gov/gaar/

planyourvisit/directions.htm (last visited Aug. 11, 2018).

15

Hunters need to be able to land float planes on the

waters running through National Preserves to reach the

bear, moose, caribou, sheep, goat and other species that

Congress directed the NPS to make available for hunting.

The NPS's regulation, 36 C.F.R. § 2.17, if broadly extended

to all non-federal waters running through National

Preserves by 36 C.F.R. § 1.2, could largely prohibit the

use of aircraft on those waters. With diminished ability to

reach those hunting opportunities by float plane, hunters

will lose the access they require to participate in hunting

on National Preserves that Congress mandated.

The world-class hunting opportunities in Alaska are

not only important to Alaska residents, but to the residents

of all the states (and other countries). Nonresidents flock

to Alaska to experience some of the best hunting in the

world.‘ As the Alaska Department of Fish and Game

(“Department”) explains:

4. While amicus curiae Safari Club is a hunting/conservation

organization, many of its members also enjoy or make their

livelihoods from fishing. Like hunting, fishing is extremely popular

in Alaska. The estimated number of anglers in Alaska in 2016 was

464,624 and the number of angler-days fished in Alaska in 2016

was 1,982,300. ALaska DePpaARTMENT oF Fisn AND Game, ALASKA

Sport Fisninc Survey, Srarewipe, http://www.adfg.alaska.gov/sf/

sportfishingsurvey/index.cfm?A DFG =region. home (last visited Aug.

12, 2018). As the Department states, “Alaska is a world-renowned

sport fishing destination. In fact, in this land of 3,000 rivers, 3

million lakes and 6,640 miles of coastline, a sport angler’s greatest

challenge can just be deciding where to go.” ALAska DEPARTMENT OF

F isu anp Game, Sport Fisuertes, http://www.adfg.alaska.gov/index.

efm?adfg=fishingSport.main (last visited Aug. 12, 2018).

16

Alaska’s hunting reputation is justly deserved.

One-fifth the size of the entire United States,

Alaska offers wilderness hunting opportunities

found in few other locations in the world. It is

true that huge moose occur here and that vast

caribou herds dominate the landscape in some

areas and seasons. Numerous mountain ranges

support populations of Dall sheep and mountai::

goats, and Sitka black-tailed deer thrive in the

coastal forests. Once extirpated from the state,

muskox now range over the western and arctic

coastal wilderness. Large numbers of black

and brown bear also exist here. And wolves,

which are found across most of the state, are

also abundant in some areas.

ALASKA DEPARTMENT OF F'IsH AND GAME, INTRODUCTION TO

ALASKA Bic GAME HunT1NG, http://www.adfg.alaska.gov/

index.cfm?adfg=hunting.biggameintro (last visited Aug.

12, 2018). Because of its climate and terrain, Alaska offers

some of the most challenging hunting in the United States.

Id. The Department describes some of the animals that

Alaska residents and nonresidents hunt:

* “Hunting is used to manage the size of these

herds, and bison hunts are among the most popular

drawing hunts in Alaska. For example, with the

Delta bison hunt, each year roughly 15,000 hunters

apply for about 100 permits, and on average about

74 animals are harvested there. Statewide, the

harvest of plains bison averages 92 animals/year.”

ALASKA DEPARTMENT OF FISH AND GAME, BISON

HuNTING IN ALASKA, http://www.adfg.alaska.gov/

index.cfm?adfg=bisonhunting.main (last visited

Aug. 11, 2018).

17

* “Alaska has an estimated 30,000 brown bears

statewide. In 2007, about 1,900 brown bears were

harvested in Alaska. Of that figure, about 700 were

taken by Alaska residents and roughly 1,200 (or

67 percent) were taken by nonresidents.” ALASKA

DEPARTMENT OF Fish AND GAME, Brown/GrizzLy

Bear HuntIinc IN ALASKA, http://www.adfg.alaska.

gov/index.cfm?adfg=brownbearhunting.main (last

visited Aug. 11, 2018).

* “On average, people harvest about 22,000 caribou

in Alaska each year.” ALASKA DEPARTMENT OF F'Isu

AND GAME, CarrBou HuNTING IN ALASKA, http://www.

adfg.alaska.gov/index.cfm?adfg=caribouhunting.

main (last visited Aug. 11, 2018).

* “Alaska’s Dall sheep are popular with nonresident

hunters, and the harvest is split fairly evenly

between residents and nonresidents. In 2007,

for example, nonresidents took 403 sheep, while

resident hunters took 513, or about 57 percent.”

ALASKA DEPARTMENT OF F'IsH AND GAME, DALL SHEEP

HUNTING IN ALASKA, http://www.adfg.alaska.gov/

index.cfm?adfg=sheephunting.main (last visited

Aug. 11, 2018).

* “In Southeast Alaska, the Sitka black-tailed deer

is the most frequently pursued species of big game.

Between 1987 and 2007, an average annual harvest

of about 12,330 deer has occurred in Alaska.”

ALASKA DEPARTMENT OF FisH AND GAME, SITKA

BLACK-TAILED DEER HUNTING IN ALASKA, http://

www.adfg.alaska.gov/index.cfm?adfg=deerhunting.

main (last visited Aug. 11, 2018).

18

* “Alaskans and nonresidents annually harvest 6,000

to 8,000 moose, which translates into about 3.5 million

pounds of usable meat.” ALASKA DEPARTMENT OF F isu

AND GAME, Moose HunTINc In ALASKA, http://www.

adfg.alaska.gov/index.cfm?adfg=moosehunting.

main (last visited Aug. 11, 2018).

* “In 2007, 518 mountain goats were harvested in

Alaska, 158 by nonresidents (about 30 percent) and

360 by resident hunters.” ALASKA DEPARTMENT OF

Fiso AND GAME, Goat HunTING tN ALASKA, http://

www.adfg.alaska.gov/index.cfm?adfg=goathunting.

main (last visited Aug. 11, 2018).

* “Migratory bird hunters in Alaska have numerous

opportunities to harvest waterfowl, sandhill cranes,

and snipe. Whether decoying brant over eel grass

beds at Cold Bay, jump-shooting dabblers on Minto

F lats, or waiting in a pit blind for a crack at speckle

bellies in Delta, the variety of bird species hunted

and the diversity of hunting venues are unique to

the state. Alaska’s marine and freshwater wetlands

produce a fall flight of about 12 million ducks and

over one million geese to all four North American

flyways and neighboring countries. They also

provide vital staging habitat for migrants that

breed in Canada and Rssia. Approximately 8,800

waterfowl hunters in Alaska can expect to harvest

close to 70,000 ducks and 7,000 geese per hunting

season.” ALASKA DEPARTMENT OF F'IsH AND GAME,

WATERFOWL HuNTING IN ALASKA, http://www.adfg.

alaska.gov/index.cfm?adfg=waterfowlhunting.main

(last visited Aug. 11, 2018).

19

* “Wolves are classified as big game (in the hunting

regulations) and as furbearers (in the trapping

regulations). Wolves may be harvested with a hunting

license and/ora trapping license.” ALASKA DEPARTMENT

oF Fish AND GAME, WoLF HuNTING IN ALASKA, http://

www.adfg.alaska.gov/index.cfm?adfg=wolfhunting.

opportunities (last visited Aug. 11, 2018).

« “The harvest of muskox in Alaska has increased

steadily in recent years. For example, 98 animals

were harvested in 2003, and 258 were harvested

in 2007.” ALASKA DEPARTMENT OF F'IsH AND GAME,

MUSKOX HUNTING IN ALASKA, http://www.adfg.alaska.

gov/index.cfm?adfg=muskoxhunting.main (last

visited Aug. 11, 2018).

* “Small game hunting provides a wonderful

opportunity to introduce young and new hunters

to the heritage of hunting. It offers an easy, cost

effective, and accessible opportunity to begin a

friendship, tradition, and outdoor activity that

can last a lifetime. Small game hunting tends

to be much more casual than big game hunting,

does not require special permits, tags, or stamps,

and a group can enjoy a midday hunt and be

home for dinner. A child introduced to hunting

through flushing hares out of a local willow draw

or walking a gravel road for spruce grouse will

become hooked on the tradition and friendship that

going outdoors with friends and family provides.”

ALASKA DEPARTMENT OF Fish AnD GAME, SMALL

GAME HuntInc IN ALASKA, http://www.adfg.alaska.

gov/index.cfm?adfg=smallgamehunting.main (last

visited Aug. 11, 2018).

20

In addition to being extremely popular, hunting

supports Alaska’s economy and provides a living to many

guides and outfitters, who mainly cater to nonresidents.

Hunting also benefits others who provide services to the

out-of-state visitors. As described in one report:

In 2012, guides contracted with 3,207 hunters,

3,055 of them nonresidents. In total, hunters

spent $51 million on guided hunts. Of the

total, nonresident hunters spent an estimated

$48 million. In addition to hunting packages,

non-resident hunters and their companions

spent another $3.5 million on lodging, food

and beverage, clothing, souvenirs, and outdoor

equipment, among other purchases while

in Alaska. Dollars spent in Alaska by non-

residents provides new dollars that help support

the state’s economy.

Including $29.5 million in direct and indirect

(multiplier effects) associated with this

spending, guided hunting in Alaska accounted

for $78 million in total economic activity in

2012. [Page 1]

The McDowell Group, The Economic Impacts

of Guided Hunting in Alaska, (February 2014),

http://www.alaskaprohunter.org/Economic Impacts of -

Guided Hunting Final.pdf (last visited Aug. 12, 2018).

The report also noted that a significant percentage of the

guided hunting occurs on federal lands, including NPS

lands:

Contracting guides reported that ... [a]lmost

half of revenue was earned hunting on federal

21

lands, including US Fish and Wildlife Service

(22 percent), US Forest Service (11 percent),

NPS (9 percent), and BLM (4 percent).

Eight percent was derived from private land

(including Alaska Native Corporation land).”

| Page 9, emphasis added]

Id. (emphasis added). As examples of some of the

opportunities availaLle in NPS lands in Alaska, several!

outfitters offer guided hunts for desirable big game species

on National Preserve lands. On the websites for some of

the National Preserves, the NPS itself directs visitors

to outfitters providing these services. For example, the

website for Denali National Park and Preserve refers

visitors to many different businesses that provide services

within the Park and Preserve, including two listed as

“Sport Hunting Guides/Outfitters.” Nationa Park

Service, Denaui, Guipep Activities IN DENALI, https://

www.nps.gov/dena/planyourvisit/business-with-park.

htm (last visited Aug. 12, 2018). Another website lists

ten different companies that provide hunting guide and

outfitter services for Wrangell-St. Elias National Park

and Preserve. NATIONAL Park Service, ALASKA, Direcrory

or CoMMERCIAL Service Provipers, https://www.nps.

gov/locations/alaska/services-wrangell-st-elias.htm (last

visited Aug. 12, 2018). The outcome of this case will affect

innumerable world-class hunting and fishing opportunities

and directly impact companies and individuals that rely

on those opportunities.

CONCLUSION

Safari Club asks this Court to reverse the Ninth

Circuit’s ruling, invalidate the illegal restrictions that

the NPS has imposed on activities on waterways within

22

National Preserves in Alaska and resolve all issues related

to John Sturgeon’s challenge. Safari Club seeks a ruling

from this Court that will prevent the NPS from having

the ability to exercise authority over the use of these

waterways in ways that will make it more difficult, if not

impossible, for hunters to travel to valued hunting sites

and enjoy Alaska’s wildlife resources. Safari Club asks

this court to resolve this matter, not only to clarify that

John Sturgeon has the right to access his favored moose

hunting areas in the Yukon-Charley Rivers National

Preserve, but to establish that activities on the waterways

that run through National Preserves in Alaska are under

the authority of the State of Alaska, not the National Park

Service. This Court's reversal of the Ninth Circuit’s ruling

and invalidation of the N PS’s illegal interpretation of its

regulatory authority will make certain that all hunters

and anglers will continue to be able to access valuable

hunting and fishing activities via the waters that run

within the CSUs in Alaska.

Respectfully submitted,

Anna M. SEIDMAN

Counsel of Record

Doue.as S. Burpin

Jeremy E. CLARE

Sarari CLuB INTERNATIONAL

501 Second Street NF

Washington, DC 20002

August 14, 2018