Petition for Writ of Certiorari — Alaska v. United States

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woreme Court, US

92-1885 FILED

_ | MAY 26 1993

tn The | OFFICE OF THE CLERK

Supreme Court of the United States

October Term, 1992

STATE OF ALASKA,

Petitioner,

UNITED STATES OF AMERICA; NATIONAL PARK

SERVICE; BRUCE BABBITT, in his official capacity

as Secretary of the Interior; NATIONAL PARKS AND

CONSERVATION ASSOCIATION; ALASKA CENTER

FOR THE ENVIRONMENT; SIERRA CLUB;

THE WILDERNESS SOCIETY,

Respondents.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

”

PETITION FOR WRIT OF CERTIORARI

Cuartes E. Coe

Attorney General

JOHN P. GriFFIN

Assistant Attorney General

Counsel of Record

State of Alaska

Department of Law

P.O. Box 110300

Juneau, Alaska 99811-0300

(907) 465-3600

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the State of Alaska has standing to bring

suit on behalf of its citizens against the National Park

Service, where the Park Service adopted regulations that

violated rights granted to Alaskans under the Alaska

National Interest Lands Conservation Act.

TABLE OF CONTENTS

Page

6 yy Bg i iy |) rer were re ye i

pec Be Poa ty rrr re iii

eo tg | MPPCCTTT ETT Terr ee 2

FEF ITE sk SN ko <i 000450508 6064508 eee Oe 2

CONSTITUTIONAL PROVISION AND STATUTES

a ink sch na ca bun bene cas ae cher eeeareuaeene 2

SEAT eeeeS SIP TEER CAD occ cceesccccusanesenss 4

REASONS FOR GRANTING THE WRIT ........... 11

69 ae’ | Pr rrererrr rr rrr rere cess. 21

iii

TABLE OF AUTHORITIES

Page

CAsEs

Alaska v. United States Dep't of Transp., 868 F.2d 441

(D.C. Cir. 1989)..........., SEES ee 20

Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel.

Barez, 458 U.S. 592 (1982).................... passim

California v. Federal Power Comm'n, 296 F.2d 348

(D.C. Cir. 1961), rev'd on other grounds, 369 U.S.

08 6555565 6555565c50s0-500........ 19

Chiles v. Thornburgh, 865 F.2d 1197 (11th Cir. 1989) .... 20

Commonwealth of Pennsylvania v. Kleppe, 533 F.2d

668 (D.C. Cir.), cert. denied, 429 US. 977 (1976) ....14

Flast v. Cohen, 392 U.S. 83 MNCAHRX SEAS von Se bes 15

Frothingham v. Mellon, 262 US. 447 | an 15

Georgia v. Pennsylvania R.R., 324 U.S. 439 (1945)... .. 18

Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907)... 16

Guam v. Federal Maritime Comm'n, 329 F.2d 251

Eee 19

Iowa ex rel. Miller v. Block, 771 F.2d 347 (8th Cir.

1985), cert. denied, 478 U.S. 1012 re 20

Maryland v. Louisiana, 451 U.S. 725 ee 18

Massachusetts v. Laird, 400 US. 886 (1970).........., 15

Massachusetts v. Mellon, 262 US. oar Sipae...... passim

Missouri v. Illinois, 180 U.S. 208 Se ee 16

National Motor Freight Traffic Ass'n v. United States,

See SOOO)... s................. 13

Nevada v. Burford, 918 F.2d 854 (9th Cir. 1990)....... 20

New York v. United States, 65 F. Supp. 856

(N.D.N.Y. 1946), aff’d, 331 U.S. 284 So: Sn 14, 19

TABLE OF AUTHORITIES - Continued

Page

New York v. United States, 331 U.S. 284 (1947) ....13, 14

New York v. United States, 112 S.Ct. 2408 (1992) .... 15

Phillips Petroleum v. Wisconsin, 347 U.S. 672 (1953) .14, 19

Public Utilities Comm’n v. Federal Power Comm'n,

8 * &) Bs ge Be rrr reer 19

Puerto Rico v. Federal Maritime Bd., 288 F.2d 419

Ca Ss EIA edo Caner ashlar es oot re note 19

Sierra Club v. Morton, 405 U.S. 727 (1972) ........... 12

Texas v. Mosbacher, 783 F. Supp. 308 (S.D. Tex.

SU cus cae e ce kobe eta aha awakes es 20

United States Dep't of Interior v. Federal Energy Reg-

ulatory Comm'n, 952 F.2d 538 (D.C. Cir. 1992) ..19, 20

United States v. Nevada, 412 U.S. 534 (1973).......... 20

Washington Util. & Transp. Comm'n v. Federal Com-

munications Comm’n, 513 P.2d 1142 (9th Cir.),

cert. denied, 423 U.S. 836 (1975) ................ 14, 19

Wisconsin v. Federal Power Comm’‘n, 205 F.2d 706

es Sees UG ire bas ke ee ea chayoa enc 19

Wyoming ex rel. Sullivan v. Lujan, 969 F.2d 877 (10th

Rk SED akc ba cad waa ha kks ecu aeer oUt aaa 20

UnrteD States Cope

| IGE, CII sos vn aececeadicleeee eee .

SD IDK 0 PGB o.oo oc dv iclbcc kc eeecaccdcneas 5

WO UE. BIE co since pc ccecastics ne 5,7

6 USE 8 he eee 5

TABLE OF AUTHORITIES - Continued

Page

Se Re ED BAA ao 085 <5 0 ee Kn cee cenehs seneees a

Se Res Oe I 6 We bide ecko bedusccndevexdewess 8

Oe a ae So lucas bce bes ours sabe casecwen 8

aH gg eS a eT 6

Oe ee ON EMI, fhe vv es Soak eae danwevecsabbaee 4

ee I doh oh eee oa edd ee eke ees 4

Se NS kena i es esNteiys covaede wee tee ae: 9

APRS ee me ee eer eet eee 9

Cope OF FEDERAL REGULATIONS

Oe ee Ee ipo eek aneeek hu eee cebeees bly ies 7

OTHER AUTHORITIES

13A Charles A. Wright & Arthur R. Miller, Federal

Practice and Procedure § 3531.11 (2d ed. 1984)...... 17

OF Fie SU SOMES OED, vec ic cessed rissccs¥enctavvace 7

ee 8

Case Note, 26 Cath. U.L. Rev. 168 (1976)............ 17

Comment, Federal Jurisdiction: State Parens Patriae

Standing in Suits Against Federal Agencies, 61

a ee yy Sean ee ee 17

TABLE OF AUTHORITIES - Continued

Page

Comment, State Standing to Challenge Federal

Administrative Action: A Re-Examination of the

Parens Patriae Doctrine, 125 U. Pa. L. Rev. 1069

ls eee eee rere rer err ere ery re Tree 17

David P. Currie, Federal Courts 65 (3rd ed. 1982) .... 16

S.R. Rep. No. 96-413, 96th Cong., Ist Sess. 30405,

reprinted in 1980 U.S. Code Cong. & Ad. News

BOS ii0u we vd ema snk <deecenguweeUrs haan eee ess 5

Strausberg, The Standing of a State as Parens Patriae

to Sue the Federal Government, 35 Fed. Bar J. 1

to) Tr rrrerrrr rrr tT yre kyr rere 17

No.

In The

Supreme Court of the United States

October Term, 1992

STATE OF ALASKA,

Petitioner,

UNITED STATES OF AMERICA; NATIONAL PARK

SERVICE; BRUCE BABBITT, in his official capacity

as Secretary of the Interior; NATIONAL PARKS AND

CONSERVATION ASSOCIATION; ALASKA CENTER

FOR THE ENVIRONMENT; SIERRA CLUB:

THE WILDERNESS SOCIETY,

Respondents.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

The petitioner State of Alaska respectfully prays that

a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Ninth Circuit, entered in this case on December 7, 1992.

OPINIONS BELOW

The opinion of the Court of Appeals for the Ninth

Circuit has not been reported. It is reprinted in the

appendix to this petition, App. A, infra, 1a.

The opinion of the United States District Court for

the District of Alaska (von der Heydt, D.J.) has not been

reported. It is reprinted in the appendix to this petition,

App. C, infra, 8a.

JURISDICTION

The judgment of the court of appeals (App. B, infra,

6a) was filed on December 7, 1992. An order denying a

timely petition for rehearing (App. D, infra, 44a) was filed

on February 25, 1993. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION

AND STATUTES INVOLVED

1. Article III, § 2 of the Constitution provides in

pertinent part:

The judicial power shall extend to all cases, in

law or equity, arising under this Constitution,

the laws of the United States, and . . . to contro-

versies to which the United States shall be a

party....

2. The Administrative Procedure Act, 5 US.C.A.

§ 706 (1977), provides in pertinent part:

To the extent necessary to decision and when

presented, the reviewing court shall decide all

relevant questions of law, interpret constitu-

tional and statutory provisions, and determine

the meaning or applicability of the terms of an

agency action. The reviewing court shall -

(1) compel agency action unlawfully with-

held or unreasonably delayed; and

(2) hold unlawful and set aside agency

action, findings, and conclusions found to

be -

(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in accor-

dance with law...

authority, or limitations, or short of

Statutory right;

(D) without observance of procedure

required by law

3. Section 810(a) of the Alaska National Interest

Lands Conservation Act (ANILCA), 16 U.S.C.A. § 3120(a)

(1985), provides:

In determining whether to withdraw, reserve,

lease, or otherwise permit the use, occupancy, or

disposition of public lands under any provision

of law authorizing such actions, the head of the

Federal agency having primary jurisdiction over

such lands or his designee shall evaluate the

effect of such use, occupancy, or disposition on

subsistence uses and needs, the availability of

other lands for the purposes sought to be

achieved, and other alternatives which would

reduce or eliminate the use, occupancy, or dis-

position of public lands needed for subsistence

purposes. No such withdrawal, reservation,

lease, permit or other use, occupancy or disposi-

tion of such lands which would significantly

restrict subsistence uses shall be effected until

the head of such Federal agency -

(1) gives notice to the appropriate State

agency and the appropriate local commit-

tees and regional councils established pur-

suant to section 3115 of this title;

(2) gives notice of, and holds, a hearing in

the vicinity of the area involved; and

(3) determines that (A) such a significant

restriction of subsistence uses is necessary,

consistent with sound management princi-

ples for the utilization of the public lands,

(B) the proposed activity will involve the

minimal amount of public lands necessary

to accomplish the purposes of such use,

occupancy, or other disposition, and (C) rea-

sonable steps will be taken to minimize

adverse impacts upon subsistence uses and

resources resulting from such actions.

STATEMENT OF THE CASE

1. In 1980, Congress enacted the Alaska National

Interest Lands Conservation Act, Pub. L. No. 96-487, 16

U.S.C.A. §§ 3101-3233 (1985 & Supp. 1991) (ANILCA).

The Act expanded the federal conservation lands system,

including refuges, parks, forests, and wilderness areas

throughout the State of Alaska. The Act was a significant

step in settling complex questions about the ownership

and management of public lands in Alaska.

Title VIII of ANILCA addresses subsistence manage-

ment and use on federal public lands.! Congress invoked

“its constitutional authority over Native affairs and its

constitutional authority under the property clause and

the commerce clause to protect and provide the oppor-

tunity for continued subsistence uses on the public lands

by Native and non-Native rural residents ....” ANILCA

§ 801(4), 16 U.S.C.A. § 3111(4) (1985). The purpose of Title

VIII “is to provide the opportunity for rural residents

engaged in a subsistence way of life to [continue to] do so

- ++.” ANILCA § 802(1), 16 U.S.C.A. § 3112(1) (1985).

Congress recognized that a significant aspect of the

subsistence way of life involved use of cabins in remote

areas of Alaska, including cabins built on federal lands.

See S.R. Rep. No. 96-413, 96th Cong., Ist Sess. 30405,

reprinted in 1980 U.S. Code Cong. & Ad. News 5070.2

' ANILCA defines “subsistence uses” as:

the customary and traditional uses by rural Alaska

residents of wild, renewable resources for direct per-

sonal or family consumption as food, shelter, fuel,

clothing, tools, or transportation; for the making and

selling of handicraft articles out of nonedible

byproducts of fish and wildlife resources taken for

personal or family consumption; for barter, or sharing

for personal or family consumption; and for custom-

ary trade.

16 U.S.C. § 3113 (1985).

2 Park Service personnel also recognized the importance of

these cabins for subsistence purposes. For example, in a mem-

orandum to the superintendent of the Yukon-Charley Rivers

National Preserve, the Subsistence Coordinator said:

Yukon-Charley Rivers National Preserve has a long

history of intense human use and occupancy which

continues into the present day. The construction and

Many of these cabins were built long before the complex

disputes over land ownership in Alaska were settled. The

families who use these cabins wish to pursue traditional

subsistence lifestyles. Other cabins on federal lands, of

more recent origin, are not used as part of a subsistence

lifestyle, but rather for recreation or commercial pur-

poses.

In section 1303 of ANILCA, Congress sought to pro-

tect the frontier lifestyle of subsistence cabin users, while

eliminating the recreational and commercial cabins that

had recently been built on park lands. ANILCA required

gradual removal of most nonsubsistence cabins from

National Park System lands through issuance of “non-

transferable, nonrenewable” one-year permits. ANILCA

§ 1303(a), 16 U.S.C.A. § 3193(a) (1985). On the other hand,

Congress allowed subsistence uses of cabins and other

structures to continue by requiring the Secretary to issue

renewable, nontransferable permits for cabins built

before December 18, 1973. Id. In addition, the Secretary

was given discretion to issue permits for building new

cabins, as well as for cabins built after December 18, 1973,

where “necessary to reasonably accommodate subsistence

uses....” ANILCA § 1303(a)(4), 16 U.S.C.A. § 3193(a)(4)

(1985).

Congress further directed the Secretary to manage

federal lands in Alaska in a manner that will “cause the

use of log cabins by subsistence users has been an

integral part of this pattern. The management of

cabins and their use will in large measure determine

the success of subsistence management in the park.

[AR 93]

least adverse impact possible on rural residents who

depend upon subsistence uses of the resources of such

lands ....” 16 U.S.C.A. § 3112(1) (1985). Whenever an

agency considers action affecting the public lands in

Alaska, section 810(a) of ANILCA requires the agency to

evaluate the impacts of its action on subsistence, and

consider alternatives that would minimize such impacts.

16 U.S.C.A. § 3120(a) (1985).

2. On April 3, 1984, the Park Service published draft

regulations, to be codified at 36 C.F.R. § 13.17, concerning

use of cabins and other structures in various park areas in

Alaska, including use of cabins and other structures for

subsistence purposes. 49 Fed. Reg. 13160-13174. The State

provided comments on these regulations, criticizing them

in part on the ground that the Park Service failed to

evaluate their impact on subsistence uses as required by

ANILCA. Moreover, the State viewed the regulations as

unnecessarily burdensome and complex. Because of this

complexity, the people who lived in these remote wilder-

ness areas —- people who by their lifestyle had demon-

strated their desire to avoid governmental bureaucracy -

would not be able to comply with the regulations. The

inevitable result would be that few, if any, subsistence

cabins would remain on park lands, contrary to Con-

gress’s clear intent.

The period for public comment on the regulations

ended January 10, 1985. [AR 818] One year and five

months later, the Park Service made public an “ANILCA

section 810 Evaluation and Finding for Proposed Cabin

Regulations.” [AR 743] The Evaluation incorporated by

reference two documents. The first was a 28-volume envi-

ronmental impact statement prepared approximately

twelve years earlier by the U.S. Department of the Interior

and the U.S. Department of Agriculture for the proposed

National Interest Lands (“1974 EIS”). The second incorpo-

rated document was a preliminary report on subsistence

activities in the proposed Alaskan park lands, prepared nine

years earlier (1977 Preliminary Report). [AR 746] The Evalua-

tion did not discuss the relevance of either the 1974 EIS or

the 1977 Preliminary Report; neither appears in the adminis-

trative record or discusses use of cabins or other structures

on park lands for subsistence.

3. The final regulations were adopted by the Park

Service on September 19, 1986, see 51 Fed. Reg.

33474-33488, without any response to the State’s public

comments or the draft regulations of the Alaska Land Use

Council.? The State of Alaska subsequently filed suit as

parens patriae, on behalf of its citizens, alleging that the

National Park Service failed to follow “procedures

required by law,” in violation of 5 U.S.C. § 706(2)(D), and

acted arbitrarily and capriciously, in violation of 5 U.S.C.

§ 706(2)(A), when it decided under section 810 of

3 Section 1201(i)(2)(A)(i) of ANILCA, 16 U.S.C.A.

§ 3181(i)(2)(A)(i) (1985), required the Alaska Land Use Council

(ALUC) to make recommendations to the Park Service and other

agencies regarding proposed regulations under ANILCA. On

March 1, 1985, ALUC made recommendations on the regula-

tions at issue here. [AR 651-665] The State was in substantial

agreement with these recommendations. Under Section 120i(k),

16 U.S.C.A. § 3181(k) (1985), the Park Service had to respond to

ALUC within 30 days. The Park Service did not respond until

June 17, 1988 [CR 28 (Brief of the State of Alaska, Exhibits A and

B)], more than one and one-half years after the adoption of its

final regulations, and approximately one year after the State

brought suit to challenge the regulations. [CR 1]

ANILCA that its actions would not significantly restrict

the subsistence rights of Alaska’s citizens.4

Alaska alleged the Park Service's failure to adhere to

the requirements of ANILCA threatened the existence of

a unique aspect of the subsistence lifestyle that ANILCA

specifically sought to protect. Various environmental

groups intervened as plaintiffs to challenge specific por-

tions of the regulations, but their legal arguments were

largely antithetical to those of the State. [CR 3; ER 1] The

United States asserted as an affirmative defense that

Alaska lacked standing as parens patriae to sue the federal

government. [CR 18 at 3]

The claims of the State and intervening plaintiffs, and

the defenses of the United States, were presented to the

district court on cross-motions for summary judgment.

On September 17, 1991, the district court held that the

State had standing as parens patriae to challenge the

National «Park Service’s cabin regulations. It found that

those regulations affected the health and welfare of

Alaska’s citizens, and that the impact of those regulations

presented the type of injury “the State, if it could, would

likely attempt to address through its sovereign lawmak-

ing powers.” App. C, infra, 13a-14a (citing Alfred L. Snapp

& Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607

(1982)). The regulations therefore affected Alaska’s quasi-

sovereign interests, interests a State has standing to pro-

tect under the parens patriae doctrine. Id. (citing Snapp,

* Jurisdiction was invoked under 28 U.S.C. §§ 1331 and

1361. [CR 1, 8; ER 2]

458 U.S. at 607). Accordingly, the district court found that

this case was properly before it. Id.

On consideration of the merits, however, the district

court granted the Park Service’s motion for summary judg-

ment on Alaska’s challenges to the regulations, granted in

part and denied in part the relief requested by the inter-

venors, and entered judgment otherwise substantially in

favor of the United States. App. C, infra, 17a-42a. All parties

appealed.

In its cross-appeal, the United States did not chal-

lenge the district court’s conclusion that Alaska had ade-

quately articulated a quasi-sovereign interest under the

holding of Snapp. Instead, it argued only that no quasi-

sovereign interest is sufficient when the defendant is the

United States and the issue is one of federal law. On

December 7, 1992, the court of appeals reversed the dis-

trict court on the ground that Alaska lacked standing as

parens patriae. App. A, infra, 5a. The court acknowledged

that in the past it had “recognized parens patriae standing

under these circumstances .. .. ” App. A, infra, 3a.

However, it found that a recent Ninth Circuit decision,

which relied upon a footnote in Alfred L. Snapp & Son, Inc.

v. Puerto Rico ex rel. Barez, 458 U.S. 592, 610 n.16 (1982),

which in turn relied upon Massachusetts v. Mellon, 262

U.S. 447 (1923), established a bar to parens patriae suits

against the federal government. The court felt bound by

that precedent, “[r]egardless of any purported ambiguity

in Supreme Court law ....” App. A, infra, 3a. On

February 25, 1993, the Ninth Circuit denied Alaska’s

Motion For Rehearing With Suggestion For Rehearing En

Banc. App. D, infra, 44a.

REASONS FOR GRANTING THE WRIT

The State of Alaska has been precluded from assert-

ing, as parens patriae, the rights of its citizens against the

federal government on the basis of a holding of Massa-

chusetts v. Mellon, 262 U.S. 447 (1923). This holding,

although repeated uncritically as dictum in Alfred L.

Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592,

610 n. 16 (1982), is in fact inconsistent with the ultimate

holding of Snapp. Other decisions of this Court also

undercut the Mellon rule. In addition, the rule has been

the object of criticism by legal commentators and the

source of confusion in the lower courts. Mellon’s apparent

bar on parens patriae standing therefore is ripe for recon-

sideration.

1. In Mellon, Massachusetts invoked the original

jurisdiction of the Supreme Court to challenge the consti-

tutionality of the Maternity Act of 1921. The Act appro-

priated funds to the various States - that chose to accept

its terms — for the purposes of reduciiig infant mortality

and protecting the health of mothers and infants. Massa-

chusetts alleged that the Act was unconstitutional

because these purposes were local rather than national,

and that by requiring it to comply with the Act or forgo

its share of the appropriated funds the federal govern-

ment had infringed upon the rights of its citizens. Mellon,

262 U.S. at 479. This Court held that Massachusetts could

not, as parens patriae, attempt to exclude its citizens from

the operation of federal laws:

[T]he citizens of Massachusetts are also citizens

of the United States. It cannot be conceded that

a state, as parens patriae, may institute judicial

proceedings to protect citizens of the United

States from the operation of the statutes thereof.

While the state, under some circumstances, may

sue in that capacity for the protection of its

citizens (Missouri v. Illinois, 180 U.S. 208, 241), it

is no part of its duty or power to enforce their

rights in respect of their relations with the Fed-

eral government. In that field it is the United

States, and not the state, which represents them

as parens patriae....

Mellon, 262 U.S. at 485-86.

a. This holding of Mellon, when applied to preclude

a State from asserting the federal rights of its citizens

against the United States, is at odds with this Court’s

rationale in Snapp, which held that States generally have

standing to protect rights granted their citizens by Con-

gress:

[F]ederal statutes creating benefits or alleviating

hardships create interests that a State will obvi-

ously wish to have accrue to its residents. . . .

[A] State does have an interest, independent of

the benefits that might accrue for any particular

individual, in assuring that the benefits of the

federal system are not denied to its general pop-

ulation.

Snapp, 458 U.S. at 608. There is “no basis either in the

Constitution or in policy for denying a State the oppor-

tunity to vindicate the federal rights of its citizens.”

Snapp, 458 U.S. at 611 (Brennan, J., concurring). “At the

very least, the prerdgative of a State to bring suits in

federal court should be commensurate with the ability of

private organizations.” Id. (emphasis in original) (citing

Sierra Club v. Morton, 405 U.S. 727 (1972) (in suit challeng-

ing decision of the Secretary of the Interior, standing of

oT ne

environmental organization requires allegation that it or

its members were adversely affected by proposed action);

National Motor Freight Traffic Ass'n v. United States, 372

U.S. 246 (1963) (per curiam) (associations had standing to

challenge interstate Commerce Commission order where

they represented individual carriers who allegedly would

be adversely affected)).

Given that States have a legitimate interest in protec-

ting the federal rights of their citizens, Snapp, 458 U.S. at

608, such interests should not become illegitimate when

the federal rights at issue are being violated by the

employees of a federal agency. Moreover, rendering these

interests illegitimate is anomalous where, as here, Con-

gress has waived the United States’ sovereign immunity

for such claims. See 5 U.S.C.A. § 702 (1977) (“An action in

a court of the United States .. . stating a claim that an

agency or an officer or employee thereof acted or failed to

act... shall not be dismissed nor relief therein be denied

on the ground that it is against the United States”). More-

Over, a per se rule that denies States standing under such

circumstances elevates the right of clubs and associations

to protect their members above the right of States to

protect their citizens.

b. Several decisions by this Court, in addition to

Snapp, undercut the holding of Mellon. On at least two

occasions since Mellon, this Court has decided cases

brought by States asserting parens patriae Standing. In

New York v. United States, 331 U.S. 284 (1947), New York

and other States had filed suit in district court asserting

that certain freight rates approved by the Interstate Com-

merce Commission were outside the scope of the Com-

mission’s authority. In the district court, a three-judge

panel rejected the United States’ contention that the

plaintiff States did not have parens patriae standing. New

York v. United States, 65 F. Supp. 856, 872 (N.D.N.Y. 1946)

(States have “standing to sue as parens patriae to pre-

serve or enhance the welfare of their citizens by securing

to them the proper administration of federal laws”). This

Court affirmed without discussion of the standing ques-

tion. 331 U.S. at 351. In Phillips Petroleum v. Wisconsin, 347

U.S. 672 (1953), the state of Wisconsin petitioned for

review of a decision of the Federal Power Commission,

alleging that the Commission had erroneously deter-

mined that Phillips Petroleum Company was not a natu-

ral-gas company under the jurisdiction of the

Commission. Here, too, the plaintiff State had standing

only insofar as it represented the interests of its citizens;

yet this Court again determined the merits of the appeal

without raising the question of standing. Thus, although

neither Phillips nor New York discussed the question of

parens patriae standing, both addressed important ques-

tions raised by States in their parens patriae capacity and

both ignored the Mellon rule. These decisions undermine

the continuing vitality of Mellon and support the conclu-

sion that the cases brought by States acting in their parens

patriae capacity are important and of a kind that this

Court has an interest in hearing.5

5 The inconsistency in the Court's application of the Mellon

rule has been noted by the Ninth and D.C. Circuits. See Washing-

ton Util. & Transp. Comm'n v. Federal Communications Comm'n,

513 P.2d 1142, 1152 n.13 (9th Cir.), cert. denied, 423 U.S. 836 (1975)

(citing Phillips and concluding “standing apparently based on

parens patriae, though standing issue not discussed”); Common-

wealth of Pennsylvania v. Kleppe, 533 F.2d 668, 677 (D.C. Cir.), cert.

Moreover, in Massachusetts v. Laird, 400 U.S. 886

(1970) (Douglas, J., dissenting), Justices Douglas, Harlan,

and Stewart dissented from a denial of leave to file a bill

of complaint in which Massachusetts sought to challenge,

as parens patriae, the constitutionality of the Vietnam War.

The dissenters thought that the question of standing

shou!d be addressed. In a published opinion, Justice Dou-

glas argued that Mellon “did not announce a per se rule to

bar all suits against the Federal Government as parens

patriae, and a closer look at the bases of the Opinion is

necessary to determine the limits of its applicability.” Id.

at 888. Arguing by analogy to Mellon’s companion case,

Frothingham v. Mellon, 262 U.S. 447 (1923), whose ban on

taxpayer standing had been substantially limited by Flast

v. Cohen, 392 U.S. 83 (1942), Justice Douglas concluded

that “Mellon, too, has been eroded by time.” Laird, 400

U.S. at 889. Justice Douglas further recognized the incon-

sistency in allowing States access to federal courts as

parens patriae in some cases, but denying them the right to

vindicate harm of “no less a magnitude” in other cases.

Id. Finally, another aspect of Mellon - the view that State

challenges under the Tenth Amendment to congressional

enactments are not justiciable, Mellon, 262 U.S. at 483 - no

longer prevails. See, e.g., New York v. United States, 112 S.

Ct. 2408 (1992) (addressing a State’s Tenth Amendment

challenges to provisions of Low-Level Radioactive Waste

Policy Amendments of 1985).

denied, 429 U.S. 977 (1976) (citing New York as “the only case in

which the Supreme Court has upheld state parens patriae stand-

ing to sue the Federal Government”).

2.a. The Mellon rule is at odds with the legal and

policy bases for the parens patriae doctrine. This Court has

relied upon an analogy to independent countries to

explain the basis of parens patriae standing, and has estab-

lished that a State as sovereign may sue another State to

protect the health and well-being of its inhabitants. Mis-

souri v. Illinois, 180 U.S. 208, 241 (1901) (“it must surely be

conceded that, if the health and comfort of the inhabi-

tants of a State are threatened, the State is the proper

party to represent and defend them”). See also Georgia v.

Tennessee Copper Co., 206 U.S. 230, 237 (1907) (“the States

by their union . . . did not renounce the possibility of

making reasonable demands on the grounds of their still

remaining quasi-sovereign interests”). This reasoning

supports Alaska’s standing to file suit to protect the

health and welfare of its citizens when federal employees

fail to comply with federal law.

In contrast to the well-developed policies in favor of

parens patriae standing when States sue individuals or

other States, the rationale for prohibiting parens patriae

standing when States sue the federal government has

never been fully articulated. The prohibition does not rest

upon any explicit provision in the Constitution. The

United States’ defense of the rule rests almost entirely

upon the ground that citizens of a State are also citizens

of the United States, and it concludes from this that

where federal law is involved, the United States is the

primary parens. This, however, merely restates the rule

while failing to address “[j)ust why it [is] appropriate to

look to the federal government to protect the citizen from

the federal government... . ” David P. Currie, Federal

Courts 65 (3rd ed. 1982). Indeed, “[t]he argument that the

federal government can be presumed to protect the inter-

ests of all citizens in relation to its own operations is not

persuasive, in light of the regularity with which citizens

prove the contrary in individual litigation.” 13A Charles

A. Wright & Arthur R. Miller, Federal Practice and Pro-

cedure § 3531.11, at 25 (2d ed. 1984).

Moreover, “[a]lthough there is an understandable

reluctance to increase the range of adversary confronta-

tion between states and the federal government, the mere

enforcement of federal statutory requirements against

federal officials does not present a real threat to sound

federalistic concerns.” Id. See also Comment, State Stand-

ing to Challenge Federal Administrative Action: A Re-Exam-

ination of the Parens Patriae Doctrine, 125 U. Pa. L. Rev.

1069 (1977) (the rule that a State may not stand as parens

patriae between its citizens and the federal government

has been outmoded by the changing balance of federal-

ism, at least as to challenges to federal administrative

action); Comment, Federal Jurisdiction: State Parens Patriae

Standing in Suits Against Federal Agencies, 61 Minn. L. Rev.

691 (1977) (standing should be allowed whenever the

State’s claims pass muster under the established quasi-

sovereign interest standard that applies when suit is not

brought against United States); Case Note, 26 Cath. U.L.

Rev. 168 (1976) (changes in the balance of the federal

system warrant reexamination of the parens patriae rule);

Strausberg, The Standing of a State as Parens Patriae to Sue

the Federal Government, 35 Fed. Bar J. 1 (1976) (States

should have standing to challenge the propriety of execu-

tive enforcement of federal statutes).

b. Alaska is not attempting to exclude its citizens

from the operation of federal laws, nor is it attempting

“to protect its citizens against any form of enforcement of

unconstitutional acts of Congress... .” Mellon, 262 US.

at 485. Instead, it is attempting to secure for the benefit of

its citizens federally created rights under an Act of Con-

gress. These rights create interests that Alaska may seek

to protect as parens patriae. Snapp, 458 U.S. at 608.

Alaska’s position in this respect is not distinguishable

from that of Puerto Rico when it sought for its citizens

the protection of federal anti-discrimination laws, Snapp,

or that of Georgia when it sought for its citizens the

protection of the federal antitrust laws, Georgia v. Pennsyl-

vania R.R., 324 U.S. 439 (1945), or that of Maryland when

it sought to secure for its citizens the benefits of the

Natural Gas Act, Maryland v. Louisiana, 451 U.S. 725

(1981). See Snapp, 458 U.S. at 610.

ANILCA represents a unique attempt to address the

special relationship the residents of Alaska have with the

land and its natural resources. The people the Act seeks

to protect do not, as a practical matter, have the ability to

maintain a federal action to protect their interests. These

Alaskans live in remote areas, far removed from main-

stream society, often without electricity or running water

and with little or no means of regular access to estab-

lished communities. Many participate only sporadically,

if at all, in this country’s cash economy. As a result, the

rights and benefits Congress sought to bestow under

ANILCA will go unprotected if the State of Alaska is not

allowed to assert them. Denying Alaska parens patriae

standing will frustrate Congress’s intent under ANILCA,

and threaten genuine hardship to the citizens of the State

who rely upon subsistence as a way of life.

3. The lack of a firm legal basis for the rule in

Mellon has created confusion in the lower courts. Prior to

Snapp, the Ninth Circuit had held Mellon’s rule on parens

patriae standing did not apply where, as here, the State

“relies upon [a] federal statute, and seeks to vindicate the

Congressional will by preventing what it asserts to be a

violation of that statute by the administrative agency

charged with its enforcement.” Washington Util. and

Transp. Comm'n v. F.C.C., 513 F.2d 1142, 1153 (9th Cir.),

cert. denied, 423 U.S. 836 (1975). Washington Utilities relied

on the fact that “States or territories have been permitted

to sue as parens patriae for review of federal regulatory

agency decisions in many cases” subsequent to Mellon.

Washington Utilities, 513 F.2d at 1152 n.13 (citing Phillips

Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S. Ct. 794, 98 L.

Ed. 1035 (1954), aff’g Wisconsin v. Federal Power Comm'n,

205 F2d 706 (D.C. Cir. 1953) (standing apparently based

On parens patriae, though standing issue not discussed);

Guam v. Federal Maritime Comm'n, 117 U.S. App. D.C. 296,

329 F.2d 251, 252-53 & n.7 (1964); California v. Federal

Power Comm'n, 296 F.2d 348 (1961), rev'd on other grounds,

369 U.S. 482, 82 S. Ct. 901, 8 L. Ed. 2d 54 (1962); Puerto

Rico v. Federal Maritime Bd., 110 U.S. App. D.C. 17, 288

F.2d 419 (1961); Public Utilities Comm'n v. Federal Power

Comm'n, 205 F.2d 116, 119 (3d Cir. 1953) (assuming stand-

ing without deciding); New York v. United States, 65 F.

Supp. 856, 872 (N.D.N.Y. 1946), aff’d, 331 U.S. 284, 67 S.

Ct. 1207, 91 L. Ed. 1492 (1947)).

The Snapp footnote has not alleviated this confusion.

For example, in United States Dep't of Interior v. Federal

Energy Regulatory Comm'n, 952 F.2d 538 (D.C. Cir. 1992),

the D.C. Circuit held that Pennsylvania, the Pennsylvania

Fish Commission, West Virginia, and West Virginia’s

Department of Natural Resources had standing, as parens

patriae under Snapp, to challenge a decision by the Fed-

eral Energy Regulatory Commission (FERC) to license

various hydroelectric projects in the Ohio River basin. 952

F.2d at 544 n.4. The State agencies alleged, among other

things, that FERC failed to give adequate weight to envi-

ronmental considerations when it made its decision. 952

F.2d at 544. See also Alaska v. United States Dep't of Transp.,

868 F.2d, 443 n.1 (D.C. Cir. 1989) (parens patriae doctrine

unsettled after Snapp); Chiles v. Thornburgh, 865 F.2d 1197

(11th Cir. 1989) (although footnote 16 in Snapp is mere

dictum, no need to address parens patriae issue until

another day); Texas v. Mosbacher, 783 F. Supp. 308 (S.D.

Tex. 1992) (same). Cf. Nevada v. Burford, 918 F.2d 854 (9th

Cir. 1990) (accepting uncritically Snapp’s dictum), cert.

denied, 111 S. Ct. 2052 (1991); Wyoming ex rel. Sullivan v.

Lujan, 969 F.2d 877, 882-83 (10th Cir. 1992) (same); Iowa ex

rel. Miller v. Block, 771 F.2d 347, 354-55 (8th Cir. 1985), cert.

denied, 478 U.S. 1012 (1986). This confusion will continue,

to the detriment of the States and their citizens, until it is

dispelled by this Court.

A reexamination of Mellon will not burden the fed-

eral courts with excessive litigation. No flood of litigation

occurred in the Ninth Circuit after it adopted, in 1975, the

approach Alaska advocates here. While the docket of the

federal court system is a legitimate concern, that concern

was equally present in Snapp, but was inadequate to

override the States’ interests in securing for their citizens

federally created rights. Nor will overruling Mellon

increase the number of cases this Court will hear under

its original jurisdiction. United States v. Nevada, 412 US.

534, 538 (1973) (no need to take original jurisdiction

where State has another adequate forum in which to

settle claims).

CONCLUSION

The fundamental issue in any parens patriae action

should be whether the State has adequately articulated a

quasi-sovereign interest under Snapp. The lessons of

Snapp are that such determinations are made on a case-

by-case basis, and that States generally may assert the

federal rights of their citizens. The holding of Mellon,

which establishes a per se bar on parens patriae suits by

States against the federal government, is inconsistent

with Snapp and should be reexamined. The petition for a

writ of certiorari should be granted.

Respectfully submitted.

CuHar.es E. Coie

Attorney General

JouN P. GriFFiIn

Assistant Attorney General,

Counsel of Record

Department of Law

P.O. Box 110300

Juneau, Alaska 99811-0300

(907) 465-3600

Counsel for Petitioner

May 1993

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF ALASKA,

Plaintiff-Appellant/

Cross-Appellee,

UNITED STATES OF

AMERICA; NATIONAL

PARK SERVICE; MANUEL

R. LUJAN, in his official

capacity as Secretary of the

Interior,

Defendants-Appellees/

Cross-Appellants,

NATIONAL PARKS AND

CONSERVATION ASSO-

CITATION, INC.; ALASKA

CENTER FOR THE

ENVIRONMENT; SIERRA

CLUB, INC.; THE

WILDERNESS SOCIETY,

Plaintiff-Intervener-

Appellants/

Cross-Appellees.

a a Sar Tar Nae aa a ae ar er te See ee et We ee ee ee te ee

Nos. 91-36297

91-36299

91-36303

D.C. No.

CV-87-00012-JAV

Filed: 12/07/92

MEMORANDUM*

* This disposition is

not appropriate for

publication and may

not be cited to or by

the courts of this cir-

cuit except as pro-

vided by 9th Cir.R.

36-3.

Appeal from the United States District Court

for the District of Alaska

James A. von der Heydt, Senior Judge, Presiding

Argued and Submitted Nov. 5, 1992

Seattle, Washington

Decided Dec. 7, 1992

Appeal from the United States District Court for the

District of Alaska; Nos. 91-36297, 91-36299 and 91-36303,

D. Alaska

REMANDED FOR DISMISSAL.

Before: HUG, POOLE and FERGUSON, Circuit Judges.

The State of Alaska (“Alaska”) appeals the district

court’s summary judgment order denying a challenge to a

set of regulations promulgated by the National Park Ser-

vice (“NPS”) regarding the use and construction of “tres-

pass cabins” on lands governed by the Alaska National

Interest Lands Conservation Act (“ANILCA”). The

National Parks and Conservation Association and other

conservation groups (collectively “conservation groups”),

which entered the litigation as plaintiff-interveners,

appeal the district court’s refusal to invalidate one of the

regulations. NPS, meanwhile, cross-appeals the district

court’s invalidation of one regulation and challenges the

standing of the plaintiff and plaintiff-interveners to main-

tain the action.

We conclude that neither Alaska nor the conservation

groups established standing to sue NPS. We therefore do

not reach the merits in any of these appeals.

Alaska relied upon the doctrine of parens patriae to

establish its standing to sue NPS in the district court. This

de ‘rine will generally grant a state standing to sue

w..re the state has demonstrated injury to a “quasi-

sovereign” interest, apart from the interests of particular

private parties. See Alfred L. Snapp & Son, Inc. v. Puerto

Rico, 458 U.S. 592, 607 (1982). Such an interest may be in

the physical or economic well-being of its residents or the

protection of its rightful status in the federal system. Id.

The district court was persuaded that Alaska had demon-

strated an injury to such an interest because of NPS’

regulations and held that Alaska had standing to main-

tain the suit.

We conclude that the district court’s holding was in

error because it granted a state parens patriae standing to

sue an agency of the federal government. In Snapp, the

Supreme Court clearly stated that “[a] State does not

have standing as parens patriae to bring an action against

the Federal Government.” Id. at 610 n. 16. Though at one

time we recognized parens patriae standing under these

circumstances, see Washington Utils. & Transp. Comm'n v.

FCC, 513 F.2d 1142, 1153 (9th Cir.), cert. denied, 423 U.S.

836 (1975), we have since acknowledged that the view

expressed by the Supreme Court in Snapp is controlling.

Nevada v. Burford, 918 F.2d 854, 858 (9th Cir. 1990), cert.

denied, U.S.___, 111 S. Ct. 2052 (1992).

Alaska attempts to minimize the court’s statement in

Snapp as mere dicta and argue that its case is distinguish-

able from an earlier Supreme Court case upon which the

Snapp court relied, Massachusetts v. Mellon, 262 U.S. 447

(1923). These arguments are of little avail. Regardless of

any purported ambiguity in Supreme Court law, Burford

has established as Circuit law a bar on parens patriae suits

against the federal government. We are now bound by

that precedent.

ell

Alaska also argues, for the first time on appeal, that it

has standing to sue based upon 5 U.S.C. § 702 (1988)

(“Administrative Procedure Act”) and an implicit grant

of standing in ANILCA itself. These arguments also must

fail. “Neither the Administrative Procedure Act, nor any

other congressional enactment, can lower the threshold

requirements of standing under Art. III.” Valley Forge

Christian College v. Americans United for Separation of

Church and State, Inc., 454 U.S. 464, 487 n. 24 (1982); see

also Sierra Club v. Morton, 405 U.S. 727 (1972). Thus,

without satisfying the constitutional requirements for

standing, an asserted right to judicial review under either

of these statutes will not, in and of itself, confer standing

on Alaska.

Il.

The conservation groups entered this litigation as

plaintiff-interveners against NPS. Ordinarily, interveners

need not satisfy the standing requirements of Article III

in order to maintain their appeal. See Portland Audubon

Soc’y v. Hodel, 866 F.2d 302, 308 n.1 (9th Cir.), cert. denied,

492 U.S. 911 (1989). However, “an intervener’s right to

continue a suit in the absence of the party on whose side

intervention was permitted is contingent upon a showing

by the intervener that he fulfills the requirements of Art.

III.” Diamond v. Charles, 476 U.S. 54, 68 (1986); cf. Yniquez

v. Arizona, 939 F.2d 727, 731 (9th Cir.1991) (intervener’s

right to maintain appeal where principal party has acqui-

esced in judgment is contingent on showing of Art. III

standing).

Because we hold that plaintiff Alaska has no standing

to maintain this suit, the conservation groups must dem-

onstrate that they have standing to maintain the underly-

ing action and the appeal. Though the they have asserted

such standing, they have directed us to no evidence

which supports their assertion. The conservation groups,

therefore, have not demonstrated standing to bring this

action.

III.

We conclude that neither Alaska nor the conservation

groups have demonstrated standing to maintain this

action. We therefore remand this case and direct the

district court to dismiss it.

REMANDED FOR DISMISSAL.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 91-36297

CT/AG#: CV-87-00012-JAV

STATE OF ALASKA

Plaintiff - Appellant

Vv.

UNITED STATES OF AMERICA; NATIONAL PARK SER-

VICE; DONALD HODEL, in his official capacity as secre-

tary of the interior

Defendants - Appellees

NATIONAL PARKS AND CONSERVATION ASSOCIA-

TION; ALASKA CENTER FOR THE ENVIRONMENT;

SIERRA CLUB, INC.; THE WILDERNESS SOCIETY

Plaintiff-Interveners

No. 91-36299

CT/AG#: CV-87-00012-J AV

STATE OF ALASKA

Plaintiff - Appellee

ALASKA CENTER FOR THE ENVIRONMENT; SIERRA

CLUB; THE WILDERNESS SOCIETY

Plaintiffs - Interveners - Appellees

Vv.

UNITED STATES OF AMERICA; NATIONAL PARK SER-

VICE; DONALD HODEL, in his official capacity as secre-

tary of the interior; NATIONAL PARKS AND

CONSERVATION ASSOCIATION

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court, that the judgment of

the said District Court in this cause be, and hereby is

REMANDED for DISMISSAL. Costs taxed in the amount

of$160.60 are in favor federal appellees: United States of

America, National Park Service & Donald Hodel.

Filed and entered __12/7/92

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

STATE OF ALASKA,

Plaintiff, Filed: 09/17/92

NATIONAL PARKS AND

CONSERVATION

ASSOCIATION, ET AL.,

Intervener-Plaintiffs,

UNITED STATES OF AMERICA, MEMORANDUM

AND ORDER

ET AL.,

Defendants.

VIGGO THOR

BRANDT-ERICHSEN,

Plaintiff,

UNITED STATES DEPARTMENT

OF INTERIOR, ET AL.,

Defendants.

J87-012 Civil (Consolidated)

ee ee ee ee ee i ee

I. INTRODUCTION.

THIS CAUSE comes before the court on motion to

challenge regulations, filed July 15, 1988 (Docket No. 28),

by plaintiff State of Alaska (“Alaska”); on motion for

summary judgment, filed July 15, 1988 (Docket No. 29),

by intervener-plaintiffs National Parks and Conservation

Association, et al. (“NPCA”)!; and on motion for sum-

mary judgment, filed August 8, 1991 (Docket No. 53), by

defendant, United States of America (hereinafter referred

to as National Park Service, “NPS”). For the reasons

stated below, the court denies Alaska’s challenge to regu-

lations, grants in part NPCA’s motion for summary judg-

ment, and grants NPS’s motion for summary judgment.

Il. BACKGROUND.

In 1980 Congress enacted the Alaska National Inter-

est Lands Conservation Act (“ANILCA”), Public Law No.

96-487, 94 Stat. 2371, 16 U.S.C. § 3101 et seq. Part of the

Act greatly expanded the acreage of the national park

system in Alaska. Within the acreage added were many

“trespass cabins.” These are cabins that were illegally

constructed and occupied in what is now national park

land. Codified at 16 U.S.C. § 3193, the Act made provi-

sions for continued occupancy of cabins located on the

land subsequently withdrawn for national park use.

Based on when the initial occupancy occurred, the statute

created three classes of trespass cabins.

The first class, cabins in existence prior to December

18, 1973, “may be occupied and used by the claimant to

these structures pursuant to a renewable, nontransferable

permit. Such use and occupancy shall be for terms of five

years each....” 16 U.S.C. § 3193(a)(1). Such occupancy

was further conditioned on the following terms:

1 Reference to intervener-plaintiffs include National Parks

and Conservation Association, Alaska Center for the Environ-

ment, Northern Alaska Environmental Center, Southeast Alaska

Conservation Council, Sierra Club and The Wilderness Society.

10a

Provided, That the claimant of the structure by

application:

(A) Reasonably demonstrates by affi-

davit, bill of sale or other documentation,

proof of possessory interest or right of occu-

pancy in the cabin or struciure;

(B) Submits a sketch or photograph of

the cabin or structure and a map showing

its geographic location;

remove all personal property from the cabin

or structure upon expiration of the permit;

and

(D) Acknowledges in the permit that

the applicant has no interest in the real

property on which the cabin or structure is

located.

16 U.S.C. § 3193(a)(1)(A)-(D).

The second class of cabins are those which “the occu-

pancy ...commenced between December 18, 1973, and

December 1, 1978,” and “may be used and occupied by

the claimant to these structures pursuant to a non-

transferable, nonrenewable permit. Such use and occu-

pancy shall be for a maximum term of one year.” This

class of cabins was also subject to the same four condi-

tions found in 16 U.S.C. § 3193(a)(1) as outlined above,

and restated in 16 U.S.C. § 3193 (a)(2)(A)-(D). Further, the

statute provided that for this class of cabins the “Secre-

tary may, on a case by case basis, subject to reasonable

regulations, extend such permit term beyond one year for

such reasons as the Secretary deems equitable and just.”

16 U.S.C. § 3193(a)(2).

lla

The third class of cabins are those constructed after

December 1, 1978 which “shall be used only for official

government business.” 16 U.S.C. § 3193(a)(3). The statute

further provides that a permit “may [be] issue[d]

. under such conditions as [the Secretary] may pre-

scribe for the temporary use, occupancy, construction and

maintenance of new cabins or other structures if he deter-

mines that the use is necessary to reasonably accommo-

date subsistence uses or is otherwise authorized by law.”

16 U.S.C. § 3193(a)(4).

To implement certain provisions of the Act governing

the cabins at issue in this case, NPS published interim

final regulations on June 17, 1981 concerning the uses that

would be permitted and the type of uses for which the

cabins could be utilized in various park areas managed

by NPS. 46 Fed. Reg. 31836 (1981). New rules were pro-

posed by the Department of Interior and were published

in the Federal Register April 3, 1984. 49 Fed. Reg. 13160

(1984). After soliciting public comment and holding pub-

lic hearings, final regulations were promulgated on Sep-

tember 19, 1986. 51 Fed. Reg. 33474 (1986), codified at 36

C.F.R. Part 13.

On April 27, 1987 Alaska filed suit against NPS and

the Secretary of Interior challenging the legality of the

regulations. Alaska seeks declaratory and injunctive

relief. Alaska alleges that NPS failed to comply with

procedural requirements for adopting regulations objec-

ted to by Alaska and the Alaska Land Use Council

(“ALUC”). Alaska also alleges the 1986 regulations

improperly restricted cabin use and subsistence use in the

national parks in violation of Congress’ intent in

ANILCA. Alaska further alleges the Secretary failed to

12a

provide a proper evaluation of the effect the regulations

will have on subsistence uses under § 810 of ANILCA. See

State of Alaska Complaint (Docket No. 1).

On July 22, 1987 (Docket No. 3), NPCA sought to

intervene to oppose Alaska’s position with regard to the

1986 regulations and to make further challenges to the

legality of several regulations. The Court granted the

motion to intervene on December 17, 1987. NPCA chal-

lenges three sections of the regulations, arguing the regu-

lations are contrary to Congress’ intent in ANILCA.

NPCA claims the regulations are unlawful because: (1)

they extend occupancy privileges to three “old” national

parks contrary to Congress’ intent; (2) they extend occu-

pancy to those who occupied cabins between 1973 and

1978 all the way through to 1999 contrary to Congress’

directive; and (3) they allow permit renewals after 1986

for occupants who reside in cabins four months of the

year.

III. DISCUSSION.

A. Standing

NPS asserts in its opposition to Alaska’s brief that

this court lacks jurisdiction over this action because

Alaska lacks standing to bring this action. Alaska coun-

ters that this court has already addressed the standing

issue and denied NPS’s motion to dismiss on the basis of

standing. See Memorandum and Order, filed July 29, 1987

(Docket No. 12) and Memorandum and Order, filed

December 21, 1987 (Docket No. 16). Alaska further argues

that because NPS did not seek reconsideration of those

13a

Orders, NPS’s argument is untimely pursuant to Local

General Rule 5(J) and thus must be denied.

NPS subsequently filed August 19, 1991 (Docket No.

56) a notice of supplemental authority on the standing

issue. The supplemental authority is a recent ninth circuit

case, Nevada v. Burford, 918 F.2d 854 (9th Cir. 1990), cert.

denied, sub nom., Nevada v. Jamison, 114 L. Ed. 2d 458

(1991) (Nevada). NPS submits that, pursuant to the new

authority, this court must conclude that Alaska lacks

standing to bring its action.

In the case relied upon by NPS, Nevada was chal-

lenging the Bureau of Land Management's grant of right-

of-way to the Department of Energy to conduct a site

characterization study of a proposed nuclear waste repos-

itory. The appellate court affirmed the district court’s

dismissal of the action for failure of Nevada to show that

it would suffer concrete and immediate injury and for

lack of standing to challenge the grant. Nevada alleged

that it had standing in its parens patriae capacity to bring

suit against the federal government.

Relying on Alfred L. Snapp & Son, Inc. v. Puerto Rico,

458 U.S. 592, 601, 102 S. Ct. 3260, 3265 (1982), the ninth

circuit recognized in Nevada that a state, acting in a quasi-

sovereign capacity, can bring suit against the federal gov-

ernment through a parens patriae action. The injury that

must be alleged by the state must affect “a sufficiently

substantial segment” of the state’s population. Snapp, 458

U.S. at 607, 102 S. Ct. at 3269. “One helpful indication in

determining whether an alleged injury to the health and

welfare of its citizens suffices to give the State standing to

sue as parens patriae is whether the injury is one that the

14a

state, if it could, would likely attempt to address through

its sovereign lawmaking powers” (but not through “’pri-

vate bills’ ”). Id. The Supreme Court in Snapp also stated

that, in general, a state dues not have parens patriae stand-

ing to bring an action against the federal government. Id.

at 610 n. 16, 102 S. Ct. at 3270 n. 16.

This court, in its Memorandum and Order filed

December 21, 1987, relied on the Snapp case to determine

that Alaska had standing under the holding of Snapp to

bring a parens patriae action. This court found strong

evidence that the injury at issue is one the state would

address, if it could, by means of general laws. The court,

therefore, found that the state has a quasi-sovereign inter-

est, which is required for standing, in the NPS cabin

regulations.

The supplemental authority provided by NPS does

not change the above outcome. This court has already

determined that Alaska has a quasi-sovereign interest in

the cabin regulations. The Nevada case does not limit that

interest. Although the ninth circuit recognized in Nevada

that its prior case, Washington Utilities & Transportation

Commission v. FCC, 513 F.2d 1142, cert. denied, 423 US.

836, 96 S. Ct. 62 (1975) must give way to the Supreme

Court’s clear statement in Snapp, this court directly relied

on Snapp in its December 21, 1987 order. Because nothing

in Nevada changes the reliance on Snapp, and in fact

establishes this circuit’s reliance on that case, this court’s

determination that Alaska has standing to bring a parens

patriae action remains unchanged.

15a

B. Standards Of Review

1. ADMINISTRATIVE PROCEDURE ACT

Judicial review is sought pursuant to the Administra-

tive Procedure Act (“APA”), 5 U.S.C. §§ 701-706. This

review is limited to the administrative record. Friends of

Earth v. Hintz, 800 F.2d 822 (9th Cir. 1986). The Supreme

Court in Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 91 S. Ct. 814 (1971) stated that under 5 U.S.C.

§ 706(2) of the APA, a reviewing court would set aside an

agency action or find it unlawful if it was “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.” Id. at 414, 91 S. Ct. at 822. When

applying the arbitrary and capricious standard, the court

is to engage in a substantial inquiry but does not substi-

tute its judgment for that of the agency. Id. at 415-16, 91 S.

Ct. at 824.

An agency’s interpretation of a statute which it

administers is not binding on the court but is entitled to

substantial deference. Department of Education v. Bell, 770

F.2d 1409, 1413 (9th Cir. 1977). A court’s review of an

agency’s statutory construction is limited and deferential.

Washington State Dep't of Game v. Interstate Commerce Com.,

829 F.2d 877 (9th Cir. 1987). However, courts are the “final

authority on issues of statutory construction and must

reject administrative constructions which are contrary to

clear congressional intent.” Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 843 n.9, 104 S.

Ct. 2778, 2781, n.9 (1984).

The court must address two questions when review-

ing administrative statutory construction. Id. First, the

16a

court must determine whether Congress has directly

addressed the question at issue. If the intent of Congress

is clear, the second question need not be reached. If,

however, the court determines that Congress has not

addressed the issue, the question becomes whether the

agency’s interpretation is based on a permissible con-

struction of the statute. Id. The agency’s interpretation

need not be the only one it could have adopted or even

the one the court would have adopted. Id. at 843, n.11,

104 S. Ct. at 2782, n.11 (citations omitted). An interpreta-

tion need only be reasonable. Id. at 844, 104 S. Ct. at 2782.

Moreover, “an initial agency interpretation is not carved

in stone.” Id. at 863-64, 104 S. Ct. at 2792. An agency must

wisely consider, on a continuing basis, varying inter-

pretations. Id. However, considerably less deference is

due when an agency’s interpretation conflicts with an

earlier interpretation of a consistently held agency view.

INS v. Cardoza-Fonseca, 480 U.S. 421, 446, 107 S. Ct. 1207,

1221 (1987) (citations omitted).

2. SUMMARY JUDGMENT.

Summary judgment is appropriate when there are no

genuine issues of material fact and the movant is entitled

to judgment as a matter of law. Fed. R.Civ. P. 56(c).

Judicial review of administrative proceedings does not

generally involve decision on issues of fact. Occidental

Engineering Co. v. Immigration & Naturalization Service, 753

F.2d 766, 769-70 (9th Cir. 1985); See also, Overton Park, 401

U.S. at 415, 91 S. Ct. at 823.

17a

C. Alaska’s and NPCA’s Challenge to Regulations.

As noted above, Alaska filed a brief which challenges

the validity of regulations passed by NPS regarding tres-

pass cabins. Seeking declaratory and injunctive relief,

Alaska maintains that: (1) NPS failed to comply with

‘procedural requirements for adopting regulations objec-

ted to by the state and ALUC; (2) the 1986 regulations

improperly restricted cabin use and subsistence use in the

national parks in violation of Congress’ intent in

ANILCA; and (3) the Secretary failed to provide a proper

evaluation of the effect the regulations will have on sub-

sistence uses under § 810 of ANILCA.

1. ADOPTION OF ALASKA LAND USE

COUNCIL’S RECOMMENDATIONS.

Alaska contends that NPS violated 16 U.S.C.

§ 3181(k)? in that NPS failed to expressly reject the recom-

mendations of ALUC and thus the statute should be

interpreted to require the Secretary of Interior to accept

the recommendations. NPS suggests that no dispute

exists that ALUC proposed recommendations and that

NPS failed to respond within the thirty days required by

Statute. NPS submits that a response is required only if

recommendations are not accepted. Further, NPS argues

that the ALUC recommendations were essentially

2 That statute reads:

If any Federal or State agency does not accept a rec-

ommendation made by the [Alaska Land Use] Coun-

cil... such agency, within thirty days of receipt of the

recommendation, shall inform the Council, in writ-

ing, Of its reason for such action.

18a

adopted. NPS also urges that even if a violation of the

statute exists, it is a technical violation remedied by a late

response.

Recommendations were submitted by ALUC on

November 24, 1984. A response by NPS was made June

17, 1988, a time well past the thirty days required by

statute. The statute requires, however, that a response be

given within thirty days if the agency does not accept a

recommendation made by the ALUC. NPS submits that it

essentially adopted all the ALUC recommendations and

therefore no response was necessary. The court agrees

with NPS. In addition, even if a violation exists, Alaska

does not assert that the state was prejudiced or that such

a violation renders the regulations invalid. The only

action required of NPS by the statute is to provide a

written response why certain recommendations were not

accepted. NPS has taken that step. Thus, absent a show-

ing of prejudice or a showing that a late response renders

the regulations invalid, the error, if any, committed by

NPS is harmless. Therefore, Alaska’s argument that NPS

violated 16 U.S.C. § 3181(k) must fail.

2. ALASKA’S PETITION PURSUANT TO 43

C.ER. § 14.3.

Pursuant to 43 C.F.R. § 14.2,3 Alaska exercised its

right to petition to seek a change to the regulations

3 43 C.F.R. § 14.2 provides:

Under the Administrative Procedure Act, any

person may petition for the issuance, amendment, or

repeal of a rule (5 U.S.C. § 553 (e)). . . . It [the petition]

19a

adopted by NPS found at 36 C.F.R. § 13.17. Alaska asserts

the Secretary of Interior violated 43 C.F.R. § 14.34 by

failing promptly to consider and act on Alaska’s petition.

Alaska argues the belated and litigation prompted

response of NPS failed to cure the error committed.

Alaska seeks an award of costs associated with the litiga-

tion necessary to force the Secretary to follow his own

regulations.

NPS submits that Alaska’s claim is now moot. NPS

further asserts that no violation of the regulation

occurred and that the court should not establish a pre-

sumption of time in which an agency must act. NPS also

contends costs under the Equal Access to Justice Act

(“EAJA”), 28 U.S.C. § 2412(d), are unavailable to Alaska

but that Alaska could obtain an award of costs provided

for in 28 U.S.C. § 1920.

The regulations at issue were promulgated on Sep-

tember 19, 1986. Alaska petitioned the Secretary of Inte-

rior to amend the regulations on October 17, 1986. Alaska

filed a complaint April 27, 1987 in which it pleaded that

the Secretary failed to act promptly as required under 43

C.F.R. § 14.3. An amended complaint was filed by Alaska

July 13, 1987 in which Alaska, in 7 11, repeated the

allegation that the Secretary failed to act promptly.

will identify the rule requested to be repealed or provide the

text to a proposed rule or amendment and include reasons in

support of the petition.

4 43 C.F.R. § 14.3 provides:

The petition will be given prompt consideration

and the petitioner wil! be notified promptly of action

taken.

20a

The index to the administrative record filed with the

court indicates the Secretary of Interior acknowledged

receipt of the petition November 20, 1986 and referred the

petition to NPS. Index to the Record at 6A, Document No.

74B. The administrative record also indicates a draft

response was prepared by NPS November 25, 1986. A

response denying Alaska’s petition was dated June 15,

1988.

In this court’s Memorandum and Order filed Decem-

ber 21, 1987, NPS’s motion to dismiss 7 11 of the

amended complaint was denied. The court stated that

“Absent special circumstances, any delay exceeding six

months is plainly a violation of § 14.3.” Alaska v. United

States, J87-012 Civ. (D. Alaska, December 21, 1987). The

court also recognized that Alaska did not seek invalida-

tion of the regulations but sought only to require the

Department of Interior to consider and respond to the

petition.

Alaska’s claim that the Department of Interior vio-

lated 43 C.FR. § 14.3 is moot. NPS has filed a response.

Alaska suggests the belated response by NPS failed to

cure the error committed. Alaska does not challenge,

however, the merits of the decision to deny the petition

for amendment of the regulations. Nor does Alaska sug-

gest how the alleged error can be cured. Even if the court

were to find a prompt response was not given by NPS,

there appears no further remedy available to Alaska.

Alaska seeks an award of costs of litigation incurred in

forcing the Department of Interior to abide by its own

regulations. An award of costs is not available to Alaska

under the EAJA. Further, an award of costs under 28

U.S.C. § 1920 does not provide for an award of costs of

21a

litigation as characterized by Alaska. Therefore, Alaska’s

argument that NPS failed promptly to respond to its

petition pursuant to 43 C.FR. § 14.3 must fail.

3. ANILCA SECTION 810 ANALYSIS

Alaska contends that NPS committed procedural

error when it improperly prepared and submitted an

ANILCA Section 810 subsistence analysis a year and a

half after the last opportunity for public comment on the

regulations had ended. Alaska also contends that even if

opportunity for public comment had been available, the

subsistence analysis is inadequate and not in conformity

with the requirements of law. Alaska concludes the Sec-

tion 810 subsistence analysis is arbitrary and capricious.

NPS submits it timely completed the Section 810 subsis-

tence analysis and that its compliance with Section 810(a)

was adequate.

ANILCA § 810(a) requires federal agencies contem-

plating the “use, occupancy, or disposition of public

lands” in Alaska to “evaluate the effect of such use,

occupancy, or disposition on subsistence uses and needs,

the availability of other lands for the purposes sought to

be achieved, and other alternatives which would reduce

or eliminate the use, occupancy, or disposition of public

lands needed for subsistence purposes.” 16 U.S.C.

§ 3120(a). Section 810(a) further directs an agency to

make a determination whether the action “would signifi-

cantly restrict subsistence uses.” Id. This determination is

the first of two steps Congress intended in the statute. It

is referred to as a “tier-I” evaluation. Kunaknana v. Clark,

| cei neil

22a

742 F.2d 1145, 1150-51 (9th Cir. 1984). If the agency deter-

mines that the contemplated action may significantly

restrict subsistence use, only then does the agency pro-

ceed to the second step of the process, known as a “tier-

II” evaluation. Id. at 1151. The “tier-II” evaluation

requires the agency to notify and hold hearings for the

affected communities. Id. Therefore, the “tier-II” require-

ments of notification and hearing need not be imple-

mented when an agency makes a finding of no significant

restriction.

In regard to the proposed action at issue in the pre-

sent case, NPS made a deteymination that the promulga-

tion of regulations related to trespass cabins would not

result in a significant restriction of subsistence uses.

Administrative Record (“AR”), p. 749. NPS relied on the

1974 environmental impact statement for the proposed

national interest lands and a 1977 “Preliminary Report:

Subsistence Activities in Proposed Alaskan Parklands,”

by Richard K. Nelson, for a description of the specific

subsistence environments. Id. at 746.5 Upon a finding of

no significant restriction, NPS satisfied the first pro-

cedural step required under § 810 (a). Based on a finding

of no significant restriction in this case, the requirement

to proceed with the second step under § 810(a), which

requires notification and hearings procedures, need not

5 Included in the administrative record, AR at 415-451, is a

determination that the proposed federal action of promulgating

regulations related to trespass cabin use would not significantly

affect the quality of human environment under the National

Environmental Policy Act, 42 U.S.C. § 4321 et seq, § 102(2){c),

and therefore an environmental impact statement was not

required.

23a

be implemented. Therefore, to the extent that Alaska

argues that NPS failed to follow the notification and

hearing requirements under “tier-II” of ANILCA § 810(a),

that argument must fail.

Final comment on the draft regulations ended Janu-

ary 10, 1985. NPS completed a draft of the Section 810

analysis on June 16, 1986. The regulations were signed

August 17, 1986. Alaska contends that it was improper to

prepare and submit a Section 810 analysis almost a year

and a half after the opportunity for public comment

ended on the proposed regulations. Therefore, Alaska

submits that NPS committed a procedural error in not

providing the opportunity to comment on the Section 810

analysis during the comment period allowed for the draft

regulations. NPS counters with the argument that the

Section 810 evaluation simply assessed the regulation’s

impact on subsistence and did not serve as technical data

upon which the regulations themselves were based.

Suppression of meaningful comment is similar to the

rejection of comment altogether. United States v. Nova

Scotia Food Products Corp., 568 F.2d 240, 252 (2d Cir. 1977).

The purpose of rule-making procedures is to promulgate

rules using adequate data. Portland Cement Association v.

Ruckelshaus, 486 F.2d 375, 393 (D.C. Cir. 1973), cert. denied,

417 U.S. 921i, 94 S. Ct. 2628 (1974). The “provision for

public comment can effectuate Congress’s goals only if

the public is able to make intelligent, informed, meaning-

ful comments.” Washington Trollers Ass'n v. Kreps, 645 F.2d

684, 686 (9th Cir. 1981).

The subsistence evaluation was prepared to fulfill the

procedural requirements contained in Section 810(a). A

24a

finding of no significant restriction in the evaluation

means that no public input is required. Therefore, the

opportunity to comment on the subsistence evaluation

was not suppressed; under Section 810(a) it was not

required. Further, the Section 810 analysis does not con-

tain specific data which was directly used in formulating

the terms of the regulations. The evaluation assessed the

impact of the regulations upon subsistence and did not

serve as a data base for the promulgation of regulations

on cabin use. Therefore, Alaska’s argument must fail.

Alaska further submits the analysis was inadequate

and does not contain information to support the conclu-

sion that the proposed action will result in no significant

impact. Alaska contends that the information relied upon

by NPS to make its conclusion should have been updated.

NPS argues the agency has simply promulgated regula-

tions establishing a permit process which does not trigger

the requirements of Section 810(a). NPS further maintains

that if a subsistence evaluation was required, the court

should apply a reasonable test in determining whether

the evaluation in this case was adequate. Plaintiff-inter-

venors, hereinafter NPCA, make the same arguments as

NPS.

Section 810(a) requires that when an agency is con-

sidering whether to “permit use [or] occupancy . . . of

public lands,” the agency “shall evaluate the effect[s] of

such use [or] occupancy . . . on subsistence needs.” 16

U.S.C. § 3120(a). Use or occupancy of trespass cabins was

provided for in ANILCA. The agency was required to

promulgate further regulations managing the use or

occupancy regarding the trespass cabins. In Sierra Club v.

Penfold, No. A86-083 Civ. (D. Alaska, Memorandum and

25a

Order at 14-15, Jan. 29, 1987) the court determined that

the Bureau of Land Management's processing of Notices

did not trigger a requirement for federal action under

NEPA, nor a requirement for a subsistence evaluation

pursuant to § 810 of ANILCA.

Neither NPCA nor NPS points to an analogous notice

process in this case similar to that found in Penfold.

Reliance on Penfold is misplaced. The argument by NPS

and NPCA that the only time a Section 810(a) analysis

need be conducted is at the time of an individual permit

application, therefore, must fail.

A reasonable test is applied to determine whether the

evaluation in this case is adequate. See Kunaknana v. Watt,

- No. A83-337 Civ. (D. Alaska, Decision of Record at 42,

Dec. 20, 1983), aff'd sub nom., Kunaknana v. Clark, 742 F. 2d

1145 (9th Cir. 1984). Alaska has not shown how more up-

to-date information than relied upon to make the subsis-

tence evaluation would support a significantly different

evaluation outcome. The court is not to substitute its

judgment for that of an agency. Citizens to Preserve Over-

ton Park, Inc., 401 U.S. at 416, 91 S. Ct. at 824. The

subsistence evaluation made in this case was based on

reliable information and was reasonable. It evaluated the

effect of the regulations on “subsistence uses and needs,

the availability of other lands for the purposes sought to

be achieved, and other alternatives which would reduce

or eliminate the use occupancy, or disposition of public

lands needed for subsistence purposes.” 16 U.S.C.

§ 3120(a). Therefore, Alaska’s argument regarding the

Section 810 analysis must fail.

26a

4. RESIDENCY REQUIREMENT.

Alaska contends that NPS exceeded its statutory

authority by adding the requirement established in 36

C.F.R. § 13.17(c). Alaska asserts the conditions listed in

Sections 1303(a)(1) and (2), 16 U.S.C. § 3193(a)(1) and (2),

describe the only conditions a claimant must fulfill to be

granted a permit for use and occupancy of a trespass

cabin, and that the requirements in the regulations

related to “claimant” and “substantial portion of time”

are additional requirements which were beyond the scope

of NPS’s authority to enact.

The definition of “ ‘claimant’ means a person who

has occupied and used a cabin or other structure as a

primary, permanent residence for a substantial portion of

time, and who, when absent, has the intention of return-

ing to it as his/her primary, permanent residence.” 36

C.F.R. § 13.17(c). The section also defines “substantial

portion of time” to mean residency “at least 50 percent of

the time since beginning occupancy and at least 4 (four)

consecutive months of continuous occupancy in every

calendar year after 1986.” Id.

NPCA argues the regulation definition of “substan-

tial portion of time” requires too short an annual resi-

dency requirement as a basis for continuing to qualify for

an occupancy permit. NPCA concludes that a four-

month-a-year approach is inadequate to ensure

ANILCA’s residence requirement for cabin permit use.

NPS submits, in response to Alaska’s argument, the

four provisions listed in Section 1303(a)(1) and (2) are

discretionary, and thus the agency is not precluded from

27a

imposing other reasonable conditions as a prerequisite

for a cabin use permit. NPS asserts that NPCA’s argument

is whether a four-month-a-year occupancy is reasonable

to establish residency, or whether the Secretary should

have chosen a longer residency requirement. Reduced as

such, NPS contends that NPCA has not shown the Secre-

tary’s choice unreasonable.

Sections 1303(a)(1) and (2), 16 U.S.C. § 3193(a)(1) and

(2), establish four conditions a claimant must meet in

order to receive a permit for use and occupancy of a

trespass cabin. (See page 3 in which the four statutory

provisions are set forth.) The above two statutory sections

refer to conditions a “claimant” must meet in order to

qualify for occupancy of a trespass cabin. The statute

does not define “claimant.” To implement the above stat-

utory provisions, NPS promulgated regulations, part of

which define “claimant.” 36 C.F.R. § 13.17(c). That defini-

tion is set forth above. Part of the definition of “claimant”

establishes that the claimant must reside as a permanent

resident for a “substantial portion of time.”

Whether Congress intended the agency to be limited

to the four conditions listed in the statute or whether the

statute allows the agency to enact additional conditions

requires a review of the statutory construction. Alaska

submits the doctrine of expressio unius est exclusio alterius®

is applicable in this action. Because Congress identified

very specific requirements that a claimant must fulfill in

6 The expression of one thing is the exclusion of another.

28a

order to be eligible to continue cabin occupancy for resi-

dential purposes, Alaska argues that NPS had no author-

ity to impose other conditions.

NPS examines the language of the statute and the use

of the words “may” and “shall” as they are used through-

out ANILCA. Generally, when the word “may” is used in

a statute, discretionary action is allowed, and the word

“shall” allows mandatory action. United States v. Rodgers,

461 U.S. 677, 706 (1983); Edmonds v. United States Dept. of

Labor, 749 F.2d 1419, 1421 (9th Cir. 1984). In 16 U.S.C.

§ 3193(a)(1) and (2), the statute reads that cabins or

structures “may be occupied and used by a claimant... . ”

NPS asserts that the use of the word “may” in the statute

allows the agency to use its discretion to establish addi-

tional requirements which a claimant must meet beyond

the four listed in the statute.

The use of the “may” in the statute elates to occu-

pancy and use by a claimant of the cabin. The statute

reads that cabins and structures “may be occupied and

used by the claimant.” 16 U.S.C. § 3193(a)(1) and (2). The

word “claimant” was not defined in the statute. It was

not unreasonable for NPS to define who qualifies as a

“claimant.” In making a determination of who may

occupy and use a cabin, NPS determined that a claimant

is one who permanently resides in the cabin. Recognizing

that the trespass cabins were not used on a year around

basis, NPS further qualified a claimant’s occupancy and

use of the cabin to be for a “substantial portion of time.”

NPS defined “substantial portion of time” to mean at

least 50 percent of the time since beginning occupancy

and at least four consecutive months of continuous occu-

pancy in every calendar year after 1986. Not only was it

29a

permissible for NPS to establish guidelines of who is a

claimant and how long occupancy must occur, but the

legislative history supports such an application. Alaska’s

argument that the four conditions listed in the statute

represent exclusive conditions must fail. The doctrine

relied upon by Alaska, while a recognized doctrine of

statutory construction, should not be rigidly applied to

defeat the purpose and intent of the statute.

Each of the three parties rely on identical language in

the legislative history to support its view that Congress

did or did not intend further conditions to be imposed by

the agency. In allowing continued use of the trespass

cabins, Congress wanted to “permit the continuation of

this lifestyle wherever possible. .. . ” Senate Report No.

96-413 at page 304. NPS claims that Congress did not

want to disrupt the lives of those who were actually

living on the land where the trespass cabins were located.

NPS submits that the regulation meets this intent of Con-

gress by requiring the claimant have resided on or contin-

ued to reside on the land for a substantial period of time.

NPCA does not dispute that primary residency at the

cabin site is a prerequisite for qualifying for continuing

renewals of occupancy permits. Instead, NPCA relies on

the same legislative language to support its argument

that Congress did not intend that a four month residency

is sufficient to establish primary residency. Alaska uses

the same language to argue that Congress intended to

allow the continuation of the unique lifestyle whenever

possible, and that by imposing the requirement estab-

lished by NPS in the regulations, the legislative intent

will be frustrated.

30a

Congress clearly intended to provide for the continu-

ation of the unique lifestyle of those occupying trespass

cabins. To carry out that intent Congress enacted Section

1303(a)(1) and (2). The statute states in part that cabins

“may be occupied and used by claimant” provided the

claimant comply with the four conditions further stated

in the statute. Language in the legislative history indi-

cates that Congress intended that permits be granted to

those who established continued residency in the cabins.

In Senate Report No. 413 at 315 it is stated that:

In some cases, the residents of Alaska have lived

on these site [sic] of occupancy for a number of

years but were unaware of the legal require-

ments of filing under the various land laws. The

Committee intends that the Secretary utilize his

permitting system to permit the continuation of

this life style whenever possible.

The language suggests that Congress did not intend

to extend permits to those who casually use cabins for

recreational purposes. The language does suggest that

Congress intended those residents who carry on a unique

lifestyle be allowed to continue such use and occupancy.

Therefore, the definitions established in the regulations

by NPS are valid. NPS did not exceed its statutory

authority in defining “claimant” and “substantial portion

of time.” Nor was the choice by NPS to require a mini-

mum of four consecutive months residency unreasonable.

5. AUTHORITY TO ISSUE AND EXTEND

PERMITS.

NPCA contends the authority of NPS to issue one

year cabin occupancy permits under Section 1303(a)(2),

eg ee eee ee a es ee Te ee

3la

16 U.S.C. § 3193(a)(2), has expired. NPCA also maintains

that NPS has no authority to extend expired permits.

NPCA finally asserts that extension of permits until 1999

is unlawful.

NPS recognizes that the initial one year permitting

authority pursuant to 16 U.S. C. § 3193(a)(2) has expired.

The permitting authority includes the authority to issue

permits and the authority to extend permits that have

been issued. However, NPS submits that the Secretary

has provided for possible extension of permits on a case

by case basis. NPS further argues that the regulations do

not grant the extension of all permits but leave that to a

case by case determination. Finally, NPS submits that the

regulations do not illegally extend expired permits.”

Congress established three classes of trespass cabins

based on when occupancy commenced. At issue here are

those cabins occupied between December 18, 1973 and

December 1, 1978. Cabins occupied between those dates

are subject to a permit system established in 16 U.S.C.

§ 3193(a)(2). The statute provides that a claimant whose

use Or occupancy commenced between the above dates

may use such structure pursuant to a nontransferable,

nonrenewable permit, and that such use and occupancy

shall be for a maximum term of one year. The statute

further provides that the Secretary may, on a case by case

basis, subject to reasonable regulations, extend the permit

term beyond one year for equitable and just reasons.

Thus, the Secretary was given authority to issue permits

7 Alaska adopts NPS’s argument on the issue presented in

this section.

32a

for a maximum period of one year and also to extend the

permit term beyond one year for equitable and just rea-

sons.

The statute became effective December 2, 1980.

Interim regulations were adopted June 17, 1981 imple-

menting the statute. The interim regulations allowed for

additional time to issue one year permits, extending the

time at the outside until the end of 1982. This date is

determined by calculating a time one year from the date

the statute was initially passed and then adding an addi-

tional year to allow for time for the enacted regulations to

become effective. In regard to the extensions allowed, the

interim regulations stated that permits may be extended

“for a period not to exceed one year for such reasons as

the Superintendent deems equitable and just.” 46 Fed.

Reg. 31836, 31858 (1981). In 1986, final regulations were

adopted. The final regulations authorize the Superinten-

dent to “issue and extend such permit for a term not to

exceed December 1, 1999 for such reasons as are deemed

by the Superintendent to be equitable and just.” 36 C.F.R.

§ 13.17(e)(2)(ii). The regulations also provide a cut-off

date of October 20, 1987, for which an applicant must

apply for an initial one year permit.

There is agreement that Congress intended to elimi-

nate cabins occupied between 1973-1978 from the

national parks. See NPCA’s Motion for Summary Judg-

ment, pp. 17-19; NPS’s Brief in Support of Cabin Regula-

tions, p. 82. There is also agreement that the authority of

NPS to issue one year cabin occupancy permits has

expired. NPCA’s Motion, pp. 20-22; NPS’s Brief, pp. 83,

84. If NPS’s permitting authority to issue and extend

cabin occupancy permits has expired, the question

33a

becomes when did that authority expire. Another ques-

tion is whether the reasserted authority in the final regu-

lations of NPS to allow the filing of an initial application

for the issuance of a one year permit until October 20,

1987 was valid. Further, it must be determined whether

NPS may grant extension of permits that are not expired,

if any, through 1999.

The statute provides that the 1973-1978 cabins may

be used and occupied pursuant to a nonrenewable, non-

transferable permit, and that such occupancy shall be for

a maximum period of one year. 16 U.S.C. § 3193(a)(2).

NPS admits that its permitting authority has expired. It

made that admission at the time the final regulations

were published in the federal register at 51 Federal Regis-

ter at 33476, 33481 on September 19, 1986. The interim

regulations, published June 17, 1981 provided for an

extension of the one year maximum period for the Secre-

tary to issue a permit established in the statute. 46 Fed.

Reg. 31836, 31845, 31858.

The authority to issue the one year permit expired

sometime between June 17, 1981 when the interim regula- .

tions were published, and September 19, 1986 when the

Secretary admitted that its authority to issue one year

permits had expired. NPS submits that to fill this gap, the

Secretary promulgated regulations which afforded a per-

mit applicant to file an application no later than October

20, 1987. However, the authority to issue permits under

the 1986 regulations contradicts the assertion by NPS that

those same regulations provided only for the extension of

a permit and not the issuance of a permit. NPS’s Brief,

pp. 84-85. It also contradicts the assertion by NPS that its

authority to issue permits had expired.

34a

The Secretary’s authority to issue one year permits

expired two years after the passage of ANILCA, or

December 2, 1982. An applicant seeking a permit on the

latest date NPS could have issued a one year permit,

which was December 2, 1982, would have had a permit

that expired one year later on December 2, 1983. As

already noted, NPS admits its permitting authority

expired sometime prior to the promulgation of the 1986

regulations. This permitting authority includes not only

the issuance of permits but the extension of permits

already granted. The 1981 regulations allowed an exten-

sion only for a maximum of a one year term. Because the

Secretary’s authority to extend permits also expired in

December of 1982, any permit issued or extended as of

that date would have expired by December, 1983. NPS

had no authority after that date to issue or extend any

permit. Thus, any permit issued or extended under the

1981 interim regulations would have expired prior to the

date the final regulations were published in 1986.

Pursuant to the language of the statute, the Secretary

has authority to extend the one year permit, subject to

reasonable regulations. This authority is limited to the

grant of extensions, and by the language of the regula-

tions and NPS’s admission, does not include the author-

ity to issue new permits. NPS admits that its authority,

under the 1986 final regulations, is limited to the grant of

extensions of permits only and does not include the

authority to issue new permits. NPS’s Brief, pp. 84-85.

The court agrees with this assertion by NPS. The final

regulation allowing the “issuance” of a permit for a term

not to exceed December 1, 1999 is invalid. The statute

provided only for the issuance of a one year permit. The

Perth allt Me Te et

35a

final regulations allow for the issuance of a permit to

- exceed one year. This plainly contradicts the authority

Congress granted in the statute. Further, the permitting

authority of NPS to issue permits expired prior to 1986.

The reassertion of authority by NPS to allow an applicant

until October 20, 1987 to file for a one year permit pur-

suant to 36 C.F.R. § 13.17(e)(2)(iv) is invalid.

The statute provides that the “Secretary may, on a

case by case basis, subject to reasonable regulations,

extend such permit term beyond one year for such rea-

sons as the Secretary deems equitable and just.” 16 U.S.C.

§ 3193(a)(2). The 1981 interim regulations allowed the

Superintendent to extend the permit issued for the

1973-1978 cabins “for a period not to exceed one year.” 46

Fed. Reg. at 31845, 31858. In the 1986 final regulations,

the Secretary provided that the “Superintendent may

issue and extend such permit for a term not to exceed

December 1, 1999 for such reasons as are deemed by the

Superintendent to be equitable and just.” 36 C.F.R.

§ 13.17(e)(2)(ii).

As noted above, and as admitted by NPS, no author-

ity exists under the regulations for the issuance of a

permit. Further, the Secretary has exceeded his authority

under the statute by allowing an extension under the

final regulations for a term not to exceed December 1,

1999. The 1986 interpretation given to the statute by NPS

contradicts the interpretation given to the statute in 1981.

Such an interpretation is given little deference. Cardoza-

Fonseca, 480 U.S. at 446, 107 U.S. at 1221. Further, Con-

gress intended that the class of trespass cabins occupied

between 1973-1978 be eliminated. The extension of a per-

mit until 1999 does not meet with Congressional intent

36a

nor does it correspond with NPS’s earlier interpretation

of the statute. Therefore, NPS exceeded its authority in

promulgating 36 C.F.R. § 13.17(e)(2)(ii), and as such the

regulation is unlawful.

6. CABIN PERMITS IN ALASKA’S THREE

OLD PARKS.

NPCA submits that Section 1303(a), 16 U.S.C.

§ 3193(a), does not apply to three parks administered by

the park service. The three parks are Glacier Bay National

Monument, Katmai National Monument and Mount

McKinley National Park. NPCA reasons that because tres-

pass cabins never were tolerated in the three parks, Sec-

tion 1303(a) of ANILCA is inapposite to the cabins within

the pre-ANILCA park areas. NPCA further argues that

the plain language of the statute does not lead to the

conclusion of NPS that Section 1303 applies to the three

old parks especially in light of the fact that NPS had

earlier held strong views that Section 1303 did not apply

to the three old parks. Therefore, NPCA concludes that

the regulation found at 36 C.FR. § 13.17(b) applying

Section 1303 to the three old park areas is invalid.

NPS contends that the plain language of the statute

did not allow the three old parks to be excluded from

application of the regulations. NPS also asserts that

because the park service did not know of any trespass

8 Alaska adopts the argument of NPS related to the issues

in this section.

37a

cabins within the three park areas, and because no per-

mits requests were filed within the time allowed, the

issue is moot.

A court must consider two questions when presented

with an agency’s construction of a statute. First, the court

must look at whether Congress has addressed the ques-

tion presented. Chevron, U.S.A., Inc., 467 U.S. at 842, 104

S. Ct. at 2781. If Congress’ intent is clear, the second

question need not be reached. However, where the intent

of Congress is not clear, the second question the court

needs to address is whether the agency’s interpretation is

based on a permissible construction of the statute. Id. at

843, 104 S. Ct. at 2782.

In the case before this court, the first question must

be answered in the affirmative. Congress has directly

addressed the question whether Section 1303 applies to

the three old parks. The statute reads in part:

On public lands within the boundaries of any

unit of the National Park System created or

enlarged by this Act... .

16 U.S.C. § 3193(a).

The statute applies to any public land within the

boundaries of a park “enlarged” by the Act. The statute

does not read that only the enlarged portion would be

affected by the Act. Rather any unit that was enlarged

would be covered by the Act. This would include not just

the area added on to the existing park but it would

include the entire park area. Therefore, Congress’ intent

is clear on the face of the statute. There is no need to

reach the second question. Because the court finds that

38a

the statute is clear on its face, the regulation found at 36

C.F.R. § 13.17(b) is not invalid.

7. 36 C.ER. § 13.17(EX(7) AND ANILCA SEC-

TION 1316.

Alaska asserts the provisions of 36 C.F.R.

§ 13.17(e)(7)° are in violation of Section 1316 of ANILCA,

16 U.S.C. § 3204.19 Alaska contends the regulation is

invalid because it permits the construction and use of

temporary facilities only in national preserves, and not in

national parks or national park system monuments.

NPS and NPCA submit the statute provides for the

use and construction of temporary facilities only for the

taking of fish and wildlife on public lands. Public lands in

9 The regulation states in part:

(i) In a national preserve where the taking of fish

and wildlife is permitted, the construction, mainte-

nance or use of a temporary campsite, tent platform,

shelter or other temporary facility or equipment

directly or necessarily related to such activities is pro-

hibited except pursuant to the terms of a permit

issued by the Superintendent. This requirement

applies only to a temporary facility that will remain in

place for a period longer than 14 days.

10 The statute reads in part:

On all public lands where the taking of fish and

wildlife is permitted in accordance with the provi-

sions of the Act or other applicable State and Federal

law the Secretary shall permit, subject to reasonable

regulation . . . the establishment and use, of tempor-

ary campsites, tent platforms, shelters and other tem-

porary facilities and equipment directly and

necessarily related to such activities.

39a

this instance are only national preserves, and do not

include national parks and national monuments.

Subsistence fishing and taking of wildlife is allowed

in national preserves. In 16 U.S.C. § 3202(c), Congress

Stated that “areas designated as national parks . . . shall

be closed to the taking of fish and wildlife.” (Emphasis

added.) Some national parks and national monuments are

open for subsistence use. However, because the taking of

wildlife is allowed only in the national preserve and the

language of the statute allows for temporary campsites in

those areas where fish and wildlife are allowed to be

taken, it is reasonable for the regulation to limit the

permit to those uses on a national preserve. Thus, the

limitation of 36 C.F.R. § 13.17(e)(7) tracks and implements

the limitations created by the statute. Therefore, Alaska’s

assertion that the regulation is invalid is incorrect.

8. GUIDE USE OF WILDERNESS CABINS.

Alaska submits that NPS has exceeded its statutory

authority in adopting 36 C.F.R. § 13.17(e)(6)(iii).™ Alaska

refers to a Senate Energy Committee Report to support its

argument but does not cite what statutory authority NPS

has exceeded in promulgating the regulation. Alaska con-

tends that the regulation will frustrate the rights of

"' The regulation states in part:

(iii) A cabin or other structure located in a desig-

nated wilderness area may not be designated,

assigned or used for commercial purposes, except

that designated public use cabins may be used in

conjunction with commercial guided visitor services,

but not to the exclusion of the general public.

40a

guides to continue to pursue their livelihood in the wil-

derness areas of Alaska.

Section 1315 of ANILCA, 16 U.S.C. § 3203(c)

addresses management of existing cabins. That statute

provides that “existing public use cabins within wilder-

ness designated by the Act, may be permitted to continue

and may be maintained or replaced subject to such

restrictions as the Secretary deems necessary to preserve

the wilderness character of the area.” Id. Nothing in the

regulation prohibits the use of public use cabins by com-

mercial guides. The regulation provides that designated

public use cabins may be used in conjunction with com-

mercial guided services. Therefore, Alaska’s argument

that NPS exceeded its statutory authority in promulgat-

ing 36 C.FR. § 13.17(e)(6)(iii) is incorrect.

D. NPS’S Renewed Motion For Summary Judg-

ment.

NPS seeks summary judgment of the second cause of

action filed in case number A89-183 by plaintiff Viggo

Thor Brandt-Erichsen (“Brandt-Erichsen”). Brandt-

Erichsen had filed suit on his own behalf challenging, in

part, the regulations at issue in this case. By Judgment

filed May 30, 1991 in Viggo Thor Brandt-Erichsen v. United

States Department of Justice, No. A89-183 Civ. (D. Alaska),

Judge Kleinfeld dismissed plaintiff’s first and third

claims in that action. It was further ordered that plain-

tiff’s second claim be consolidated with this case, J87-012.

In his second cause of action in A89-183, which is

now consolidated with this case, Brandt-Erichsen seeks in

his individual capacity judicial review of the regulations

ple ba el ala ttre

4la

promulgated by NPS on September 19, 1986 found at 51

Fed. Reg. 33474, codified at 36 C.FR. §§ 13.17, 13.21.

Alaska, in a parens patriae capacity on behalf of the citi-

zens of the State of Alaska, seeks judicial review in this

case of the same regulations.

NPS filed a motion for summary judgment in

A89-183, seeking dismissal of Brandt-Erichsen’s second

cause of action because that claim was already before the

court in this action. NPS thus filed August 2, 1991

(Docket No. 53) a renewal of that motion for summary

judgment.'? Because Judge Kleinfeld severed that cause

of action and consolidated it with this case, NPS’s motion

for summary judgment on the second cause of action is

pending before the court, and is ready for decision.

Brandt-Erichsen opposes NPS’s renewed motion for

summary judgment, arguing that the consolidation elimi-

nated any risk of an inconsistent result, and thus NPS’s

argument is no longer valid. An examination of Brandt-

Erichsen’s second cause of action, however, makes it clear

that the claim is a challenge to NPS’s regulations. It is the

same challenge brought by Alaska. Therefore, Brandt-

Erichsen’s claim is identical to that brought by the state in

a parens patriae capacity.

Because the court has determined above that Alaska

has standing to challenge NPS’s regulations in its parens

patriae capacity, and because the court has disposed of

Alaska’s challenges to the regulations at issue in both

12 NPCA filed August 14, 1991 (Docket No. 54) a non-oppo-

sition to NPS’s renewed motion for summary judgment on the

Brandt-Erichsen claim.

Alaska’s brief and Brandt-Erichsen’s complaint, the sec-

ond cause of action of Brandt-Erichsen must be dis-

missed. Brandt-Erichsen’s second cause of action is an

impermissible second suit on the same subject matter.

Therefore, summary judgment for NPS is appropriate.

All claims for relief having been decided, the above

case is dismissed in its entirety, with the exception as

discussed in part III-C-5 above, which is remanded to the

42a

agency for regulation redraft.

IV. ORDER.

Accordingly, IT IS ORDERED:

(1)

(2)

(3)

(4)

(5)

(6)

THAT the State of Alaska’s challenge to

regulations is DENIED;

THAT NPCA’s motion for summary judg-

ment is GRANTED IN PART as outlined

above in part III-C-5;

THAT NPS regulation found at 36 C.FR.

13.17 (e)(2)(iv) is declared invalid;

THAT NPS is enjoined from enforcing said

regulation;

THAT said regulation is remanded to NPS

for redraft; and

THAT NPS’s motion for summary judg-

ment on the second cause of action in con-

solidated case number A89-183 Civ. is

GRANTED.

eC Moku 2

43a

DATED at Anchorage, Alaska, this 11th day of Sep-

tember, 1991.

James A. von der Heydt

United States District Judge

cc: Gary Amendola

Lauri Adams

Christine S. Schleuss

Dean Dunsmore

O & J V-28

44a

APPENDIX D

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF ALASKA,

Plaintiff-Appellant/

Cross-Appellee,

Vv.

UNITED STATES OF AMERICA;

NATIONAL PARK SERVICE;

MANUEL R. LUJAN, in his

official capacity as

Secretary of the Interior,

Defendants-

Appellees/Cross-

Appellants,

NATIONAL PARKS AND

CONSERVATION

ASSOCIATION, INC.;

ALASKA CENTER FOR THE

ENVIRONMENT;

SIERRA CLUB, INC.;

THE WILDERNESS SOCIETY,

Plaintiff-Intervenor-

Appellants /

Cross-Appellees.

)

Nos. 91-36297

91-36299

91-36303

D.C. No.

CV-87-00012-JAV

Filed: 02/25/93

ORDER

45a

Appeal from the United States District Court

for the District of Alaska

Before: HUG, POOLE, and FERGUSON, Circuit Judges.

ARE Rasen thls bt Bi aut

The panel, as constituted in the above case, has voted

to deny the petition for rehearing. Judges Hug and Poole

have voted to reject the suggestion for rehearing en banc,

and Judge Ferguson has recommended rejection of the

suggestion for rehearing en banc.

The full court has been advised of the en banc sug-

gestion and no active judge of the court has requested a

vote on whether to rehear the matter en banc. Fed. R.

App. P. 35(b).

The petition for rehearing is DENIED and the sug-

gestion for rehearing en banc is REJECTED.

Dated this ___ day of __, 1993.

Ninth Circuit Court Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.