Supreme Court Considers Meaning of Alaska Land-Use Law

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By Rebecca Wilhelm

Jan. 20 — A ruling that National Park Service (NPS) regulations don't apply to Alaska-owned land and waters wouldn't curtail the general regulatory authority of the Environmental Protection Agency over those same lands and waters, attorneys arguing on behalf of Alaska and an Alaska resident told the U.S. Supreme Court.

The court heard oral arguments Jan. 20 in Sturgeon v. Frost, a lawsuit that involves land-use issues unique to Alaska but also raises general questions of federal regulatory authority, water rights and agency deference (Sturgeon v. Frost, U.S., No. 14-1209, oral arguments, 1/20/16; 12 DEN A-10, 1/20/16).

The question presented asks the court to consider whether Section 103(c) of the Alaska National Interest Lands Conservation Act prohibits the NPS from exercising regulatory control over Alaska land and waters that are located within the physical boundaries of the National Park System but belong to the state, private parties or native corporations.

Specifically, Alaska resident John Sturgeon argues that ANILCA Section 103(c) exempts private, native and state-owned Alaska land and waters from regulations solely applicable to public lands and that an NPS regulation banning the use of hovercraft in all national parks doesn't apply to nonfederal land in Alaska.

Traveling on Navigable Waters

The dispute arose when park officials informed Sturgeon that he couldn't operate his hovercraft on the Nation River in the Yukon-Charley Rivers National Preserve. Sturgeon's hovercraft had broken down during his annual moose-hunting trip when park officials approached him.

He argued that the river isn't under federal control and not subject to the hovercraft ban, but the officials insisted he could face criminal sanctions if he continued his trip through the national preserve.

“Is it conceded by all or is it not that this is navigable—that these are navigable waters?” Justice Anthony Kennedy asked Matthew T. Findley, who argued on behalf of Sturgeon.

Sturgeon was traveling on navigable waters, Findley said.

But the federal government doesn't hold title to those waters, Findley said. Navigable waters and submerged lands are not “public lands” within the meaning of ANILCA Section 103(c), he argued.

Another Agency With Jurisdiction?

Justice Antonin Scalia asked Findley whether another federal agency would have jurisdiction. “If the Park Service can't do it” can somebody else? he asked.

The EPA has authority to issue generally applicable regulations under the Clean Air Act and other environmental statutes, Findley said.

“You have to look at whether this is a regulation that was solely enacted to manage park land,” Findley said. “The hovercraft regulation we have here, crystal clear. That's exactly that type of regulation where the Park Service made a judgment call about what it believed was appropriate or not appropriate to occur on public land.”

“If the EPA says, look, we're concerned about Clean Air Act emissions from fire smoke and we are going to issue a generally applicable regulation across the United States on when you can burn wood and when you can't, that is not the type of regulation that Section 103(c) reaches.”

The U.S. Coast Guard and the U.S. Army Corps of Engineers also have jurisdiction, he said. “There's a laundry list of federal agencies that have plenty of authority here.” and “the Park Service can't throw its hat in the ring.”

‘Look at the Overall Purpose.'

The issue here is the meaning of regulations “solely” applicable to public lands, Justice Elena Kagan said. “I mean, ‘solely' is a very purposive word, you know? I mean, Congress drops lots of words, but you put ‘solely' in a sentence when you mean ‘solely.' And this does not apply solely to public lands.”

That is Sturgeon's objection, Findley said. The hovercraft ban was “promulgated solely to manage park land” but has been extended to nonfederal land.

Without the word “solely,” the statute would exempt nonfederal lands from any regulation applicable to public lands, including the Clean Water Act and the Clean Air Act, Findley said.

“So you're saying that the word ‘solely' distinguishes between statutes like the Clean Air Act and park land statutes?” Kagan asked.

That's exactly what Congress intended, Findley said. “That's what's there to draw that line in the sand.”

Kagan Concerned Over Use of ‘Solely.'

Putting the word “solely” in the statute wasn't the best way for Congress to make that distinction, Kagan said.

That provision makes sense “if you take a step back, and you look at the overall purpose of the statute,” Findley said. This is a statute balancing conservation interests and land ownership issues unique to Alaska, he said.

Ruth Botstein, who argued on behalf of Alaska, an amicus curiae supporting Sturgeon, said the Nation River and submerged lands belong to Alaska and aren't public lands subject to NPS regulation.

But the Nation River runs through a national park, Kagan said, so why is the Park Service the only federal agency that can't issue regulations? “The Coast Guard can do it. The EPA can do. It's only the Park Service that can't do it,” she said.

While “the rivers are an important part of the park,” Botstein said, “the control over the rivers is Alaska's, is Alaska's by sovereign right.”

NPS Not Stripped of ‘Pre-Existing Authorities.'

Rachel P. Kovner, who argued on behalf of the federal government, said ANILCA didn't strip the NPS of “pre-existing authorities” to regulate navigable waters running through national parks.

“When Congress created new park units in Alaska for the express purpose of protecting their waters, their free-flowing rivers and their fish, it didn't simultaneously strip the Park Service of pre-existing authorities to achieve those goals by regulating navigable waters,” she said.

Roberts asked what protections state inholdings (private, native and state-owned lands and waters) have against Park Service regulations.

“[O]ur authority is very narrow and we can only regulate where there is some statute that authorizes us to regulate inholdings,” she said, arguing that the NPS's interpretation of its regulatory authority is entitled to deference.

“[Y]our authority is not limited if you get Chevron deference,” Roberts said.

‘Ridiculous Interpretation.'

Justice Samuel Alito Jr. asked Kovner whether the U.S. Court of Appeals for the Ninth Circuit correctly interpreted Section 103(c) as only prohibiting NPS from applying Alaska-specific regulations and not nationwide regulations, like the hovercraft ban (Sturgeon v. Masica, 768 F.3d 1066, 2014 BL 278223 (9th Cir. 2014)).

Based on the Ninth Circuit's ruling, “The hovercraft rule is not barred because it isn't Alaska-specific . … And why don't you concede that it's wrong? It's a ridiculous interpretation, is it not?”

Justice Sonia Sotomayor agreed. “It's wrong …[w]alk it through, their argument, and tell me why they are wrong.”

Kovner disagreed that the Ninth Circuit misinterpreted ANILCA Section 103(c).

‘Well-Settled Regulatory Regime' in Place

“[W]hen ANILCA was enacted, there was a very well-settled regulatory regime that didn't subject private lands to any kind of plenary authority,” she said. “Congress had every reason to expect that would remain the rule nationwide. And what it was concerned about was that the Park Service would deviate from that approach in Alaska when these new lands were added.”

To contact the reporter on this story: Rebecca Wilhelm in Washington at

To contact the editor responsible for this story: Larry Pearl at