Supreme Court Holds the Ninth Circuit Misinterpreted the Alaska National Interest Lands Conservation Act

by Perkins Coie


In 2007, National Park Service rangers stopped John Sturgeon from travelling by hovercraft on the Nation River within the boundaries of Yukon-Charley Rivers National Preserve.  Park Service regulations ban the use of hovercrafts.  The State of Alaska does not.  At issue here is whether the Park Service’s regulations apply to the Nation River while within the boundaries of the Yukon-Charley preserve.  More broadly, this case is about the scope of the Park Service’s regulatory authority in Alaska. 

That the U.S. Supreme Court granted certiorari to John Sturgeon was surprising.  In general, the Supreme Court accepts cases of national importance, with national implications.  Sturgeon’s case deals with Alaska-centric concerns.  Specifically, it examines whether § 103(c) of the Alaska National Interest Lands Conservation Act (ANILCA) abrogates the Park Service’s authority to regulate non-public lands within the boundaries of Park Service conservation system units.  These conservation system units are National Parks, National Wildlife Refuges, National Wild and Scenic Rivers, National Trails, National Wilderness Preserves and National Forest Monuments.  Yukon-Charley is one such unit.  Some commentators thought that the Court granted certiorari to push back on federal overreach.  Others observed that the case has significant implications in Alaska, especially as it relates to Native Corporation lands, which are often located in close proximity to federal conservation system units.  Although we will never know exactly why the Court chose to accept the case, we do know that the Court barely touched the surface of the case before sending it back down to the U.S. Court of Appeals for the Ninth Circuit.

A unanimous Court vacated the Ninth Circuit’s interpretation of § 103(c) of ANILCA.  Importantly, the Court did not hold that Sturgeon can continue to use his hovercraft or that the Park Service can regulate waters within the boundaries of its units, nor did it limit or affirm the Park Service’s authority to regulate state, private and Native Corporation inholdings within conservation system units.  It simply held that the Ninth Circuit’s interpretation was wrong.

ANILCA § 103(c)

This case hinges on how to interpret § 103(c).  The National Park Service believes it has general statutory power to regulate waters within its jurisdiction.  The question is whether § 103(c) of ANILCA chips away at some of that power.  Section 103(c) defines the regulatory scope of the Park Service’s authority over its conservation system units in Alaska.  In pertinent part, it provides:

Only those lands within the boundaries of any conservation system unit which are public lands . . . shall be deemed to be included as a portion of such unit.  No lands which, before, on, or after December 2, 1980, are conveyed to the State, to any Native Corporation, or to any private party shall be subject to the regulations applicable solely to public lands within such units.

According to the statute, “public lands” are lands and waters to which the United States has title.  So, only lands and waters to which the United States has title are included as a portion of a conservation system unit in Alaska.  In contrast, non-public lands are lands and waters conveyed to the state, any Native Corporation or to any private party.  Although what is considered public and non-public is a difficult issue that has been litigated in other cases, the main issue before the Court was what is meant by the phrase “regulations applicable solely to public lands” in § 103(c)?

Three Separate Interpretations of § 103(c)

The Ninth Circuit, Park Service and Sturgeon have voiced three unique interpretations of § 103(c).  The Ninth Circuit ignored whether the waters at issue were public or non-public.  Rather, it focused on whether the hovercraft regulation was one of general applicability or one that applied solely in Alaska.  According to the Ninth Circuit, if a Park Service regulation applies nationwide, then it can apply to both public lands (lands and waters to which the United States has title) and non-public lands (lands and waters owned by the state, Native Corporations or private individuals).  Conversely, if a Park Service regulation applies solely to Alaska, then that regulation applies to public lands only.  The Supreme Court held that this reading made no sense.

The Park Service espoused a different interpretation.  First, the Park Service argued that the Nation River is public lands and part of the Yukon-Charley unit, because the waters appurtenant to Yukon-Charley were impliedly reserved when Yukon-Charley was created.  Second, even if the waters are not “public,” the Service argued that it is only limited in that it may not enforce on non-public lands regulations that apply specifically to public lands.  The Service contended that its hovercraft regulation applies to lands within boundaries of conservation system units regardless of who owns them.  The Park Service has acknowledged that its regulatory authority over inholdings in Alaska is narrow.  But, it contends, it can nonetheless regulate them.  At oral argument, several justices asked the Park Service to define the limitation on its regulatory authority over Alaskan inholdings.  After all, Alaska is, as Chief Justice Roberts has noted, “unique” and “often the exception, not the rule.”  The Park Service has yet to define such a limit.

Sturgeon, joined by the State of Alaska, took a different tack.  He argued that the Nation River is not public land, because the Alaska Statehood Act granted the state ownership of submerged lands beneath the navigable waters in Alaska and because the Submerged Lands Act transferred title and ownership of submerged lands and waters to states.  Second, Sturgeon argued, the Park Service is prohibited from regulating non-public land in Alaska.  In doing so, Sturgeon interprets § 103(c) as prohibiting enforcement on non-public land of regulations that apply to Park Service conservation units (i.e., Park Service regulations), while allowing enforcement on non-public land of regulations of general applicability (like the Clean Water Act and Clean Air Act).  Sturgeon’s interpretation of § 103(c) is that ANILCA abrogated the Park Service’s authority to regulate state, Native Corporation and private inholdings within Park Service lands.

What Now?

The questions raised at the Supreme Court remain unresolved and will presumably be addressed on remand in the Sturgeon case.  These questions include the following: 

  • Regardless of the state’s ownership of the bed of a navigable water, may the federal government nevertheless regulate that land and those waters? 
  • May the federal government regulate other state, private and Native Corporation inholdings?  If it can, what are the limits on this authority?  
  • To what extend may the federal government regulate or prohibit building lodges, trails or roads on non-public land and activities on navigable waters? 

These concerns are very real as both the Park Service and U.S. Fish and Wildlife Service have recently proposed new oil and gas regulations that would apply to non-federal oil and gas rights exercised in National Parks and National Wildlife Refuges, respectively.  In Alaska, an estimated 40 percent of Native Corporation land is within federal conservation units.  

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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