Federal authority over navigable waters

The U.S. Supreme Court's recent ruling in Sturgeon v. Frost, 2016 DJDAR 2754 (March 22, 2016), prompted a knee-jerk proclamation of victory by some hoping to ultimately curtail the federal government's ability to control what happens on rivers, streams and other waters on public land, including national parks.

But while the Supreme Court vacated the 9th U.S. Circuit Court of Appeals' ruling that the National Park Service has broad authority to prohibit the use of hovercraft on water ways in a national preserve in Alaska, it left unanswered the key question of whether the federal government can regulate navigable waterways that pass over state and private lands. Environmentalists and Park Service officials maintain that authority is clear - indeed, it's essential to the mission of overseeing this massive park system - and now the 9th Circuit judges will have another chance to validate that important concept with a more narrow ruling.

So the door is now wide open for the appeals court to return with a ruling that ultimately does what's needed to protect America's public lands in Alaska and beyond.

On its face, this is a case about a man named John Sturgeon trying to hunt moose in Alaska and use a hovercraft to move across the landscape. But there are obviously some deeper, more important issues at play.

To recap: Sturgeon challenged a 2007 warning by the National Park Service that he could be criminally prosecuted for using a hovercraft prohibited by park rules on the Yukon and Nation rivers during his moose hunting trips to Alaska's Yukon-Charley National Preserve. Hovercraft are noisier than traditional motorboats, and - also unlike boats - can travel over gravel bars, onto wetlands, and over tundra.

Sturgeon fought back, arguing that because the riverbed is state property, the Park Service acted beyond its authority.

The crux of the argument is whether the National Park Service has the authority to regulate activities on navigable waters within park boundaries where the Alaska National Interest Lands Conservation Act (ANILCA) restricted its authority over upland in-holdings within the state's national parks.

For those of us who care deeply about these public lands, it was obvious the Park Service needs to be able to regulate the use of rivers within park boundaries for the sake of protection and conservation.

As I've argued here previously, Congress formed the Yukon Charley Rivers National Preserve specifically to protect those rivers for wildlife, tourism and future generations. While the law guarantees access for hunting and fishing via motorized transportation, the ban on noisy hovercrafts that disturb the tranquility of the park and create unlimited access to remote areas is a reasonable restriction. And ANILCA specifically calls for the regulation of boating by the federal government.

The Alaska district court and 9th Circuit ruled that the National Park Service indeed retains that authority over navigable waters under the ANILCA and the case was ultimately kicked up to the U.S. Supreme Court.

The court's March 22 decision overturns that lower courts' ruling but leaves open the question of federal authority over navigable waters.

There are centuries of law supporting federal authority over navigable waters and other public lands. We are optimistic that the 9th Circuit will clarify the Park Service's authority over navigable waters so that Alaska's national parks are protected as Congress intended.

Matters on remand from the Supreme Court are referred to the panel that previously heard the matter. So the same three-judge panel will be addressing the question of whether navigable waters are "public lands" within private inholdings.

Crucially, the Supreme Court did not decide whether the Park Service has authority to regulate navigable waters within the Alaska's national parks. The court only said that the 9th Circuit's reasoning did not make sense in light of the broader legal landscape in Alaska, and sent the case back to the circuit court to reconsider the legal issues raised by the parties.

The 9th Circuit could and should clarify that provision of ANLICA doesn't apply to navigable waters, that the Nation River is public land, and uphold the Park Service's authority to protect the parks as directed by Congress.

The ultimate decision arising from Sturgeon v. Frost is specific to Alaska, noting as the Supreme Court said that Alaska is different. For anyone who cares about special places like national parks, it's relevant for the Park Service that is charged with protecting fish, wildlife and visitor experiences to be able regulate noisy hovercraft. Otherwise there's a regulatory gap in which Alaska isn't required to protect park values nor funded to do so.

It doesn't have to be that way though. The 9th Circuit has a second chance to do what it should've done the first time around.

Miyoko Sakashita is senior counsel and oceans director at the Center for Biological Diversity in Oakland. She filed an amicus brief in Sturgeon v. Frost with a several other environmental advocacy organizations.