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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0804%3A19

## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0804%3A19. Public record. Not legal advice.