Authority over public lands and resources in (and out of) Alaska

OT18

When you spend time in Alaska, you come to understand that everything feels personal. It's a surprising feeling given the sheer, breathtaking magnitude of the state and its landscapes. A lost dog on the Matanuska Glacier is a topic of conversation in Fairbanks, 320 miles to the north. The Anchorage Daily News is filled with as many stories from the Kenai Peninsula (three hours by car) as from the northwest Arctic city of Kotzebue (not reachable by car). On a five-day trek across the Denali "Highway" in the shadow of the sweeping Alaska Range in 2005, my friend and I were greeted three times ("Güttentag!") by the same 80-year-old Swiss backpacker.

So it is no surprise that John Sturgeon, the named plaintiff in a case to be argued in the U.S. Supreme Court this November, is making waves in his home state. In 2007, rangers from the National Park Service found Sturgeon piloting his hovercraft in the waters of the Nation River, an offshoot of the mighty Yukon River near Alaska's eastern border with Canada. When the rangers found him, Sturgeon was on the part of the Nation River that flows through the 1.7-million-acre Yukon-Charley Rivers National Preserve, a unit of the National Park System. When the rangers told Sturgeon that hovercraft were prohibited by regulation within the entire National Park System, Sturgeon sued, arguing that the Park Service had no authority over the Nation River because the state of Alaska owned it.

Like rivers, legal cases are more enthralling when they wind their way up and down and back again. They are especially captivating when they lead us somewhere unexpected. Sturgeon v. Frost does not disappoint on either count. The district court granted summary judgment to the Park Service, and the 9th U.S. Circuit Court of Appeals affirmed. The legal issue in both courts' decisions -- whether the Park Service could enforce its nationwide hovercraft ban within the Yukon Preserve -- turned on Section 103(c) of the Alaska National Interest Lands Conservation Act, 16 U.S.C. Section 3103(c). ANILCA, passed in 1980 and codified at 16 U.S.C. Sections 3101-3233, created "conservation system units" (including the Yukon Preserve) to preserve wild areas, protect subsistence uses by Alaska Natives, and promote natural resource development by the state. Section 103(c) limited the authority of the Park Service to "public lands" within the units (defined as "lands, waters, and interests therein") to which the United States had "title," and exempted "non-public lands" (defined as certain state, Native, and private lands) from "regulations applicable solely to public lands within such units."

To lawyers outside Alaska, at this point the case was headed nowhere interesting. The 9th Circuit's decision, 768 F.3d 1066 (9th Cir. 2014), and the Supreme Court's subsequent reversal, 136 S. Ct. 1061 (2016), concerned only the narrow words of Section 103(c) itself. But the Supreme Court hinted that there might be more to come. Specifically, the court wrote that the parties' arguments about the underlying question in the case -- whether the Nation River is a "public land" under ANILCA -- "touch on vital issues of state sovereignty, on the one hand, and federal authority, on the other." 136 S. Ct. at 1072. This single sentence whisked us far away from Sturgeon's headwaters; the court was signaling that what had been a little case about a hovercraft might yet become a big one about federalism and the protection of public lands and resources generally.

When Sturgeon returned to the 9th Circuit, the court considered whether the Park Service could regulate hovercraft on the Nation River, not under Section 103(c), but by virtue of the river being a "public land" under ANILCA more generally. To answer that question, the court looked to its precedent in another set of Alaska cases known as Katie John. In those cases, the 9th Circuit had reluctantly employed the "federal reserved waters rights doctrine" to determine whether, for purposes of "subsistence uses" by Alaska Natives, waters within Alaska's conservation system units were "public lands" under ANILCA. That doctrine stems from a long line of Supreme Court decisions holding that, when the United States reserves land for particular purposes, it also reserves the water necessary to meet those purposes. See, e.g., Cappaert v. United States, 426 U.S. 128, 138-39 (1976); see also John v. United States, 720 F.3d 1214, 1223-27, 1229-32 (9th Cir. 2013) (discussing doctrine and its limits). When President Jimmy Carter created the Yukon Preserve in 1977, he expressly "reserved all water necessary to the proper care and management of" the objects within the preserve.

If the reserved water rights doctrine seems an odd fit for classifying a river as "public" or "non-public," it is; many of the 9th Circuit's judges have expressed their dissatisfaction countless times, including in each of the three Katie John decisions and on remand in Sturgeon v. Frost, 872 F.3d 927 (9th Cir. 2017). Nonetheless, applying the doctrine to the Nation River in Sturgeon, the 9th Circuit concluded that the river was a "public land" under ANILCA, reasoning that banning over-water motorized vehicles like hovercraft served the purposes of the Yukon Preserve. See 16 U.S.C. Section 410hh(10) (purpose is to protect various natural resources, including the Charley River basin "in its undeveloped natural condition"); Sturgeon, 872 F.3d at 934-35.

The Supreme Court has once again granted certiorari, on the same narrow question as in the first round -- whether ANILCA "prohibits the National Park Service from exercising regulatory control over State, Native Corporation, and private land physically located within the boundaries of the National Park System in Alaska." But given the court's prior decision and the 9th Circuit's decision on remand, Sturgeon now has the potential to cover much more ground.

In this round, the case brings into question the 9th Circuit's longstanding use of the federal reserved water rights doctrine to define "public lands" under ANILCA. Sitting en banc 17 years ago in Katie John, some 9th Circuit judges stuck with the reserved water rights doctrine, under which some Alaskan waters are subject to federal control; others concluded that the commerce clause of the Constitution, through the navigational servitude, gives the federal government plenary authority over all navigable Alaskan waters; and still others opined that without "title" to Alaskan waters, as ANILCA requires, the federal government has authority over none of them. See John v. United States, 247 F.3d 1032, 1034-50 (9th Cir. 2001) (en banc) (per curiam). In the Supreme Court, the parties' briefs, as well as the nine amici curiae briefs, present equally divergent options.

Sturgeon, moreover, has the potential to raise questions about not only the federal reserved water rights doctrine, but also the Submerged Lands Act, the Equal-Footing Doctrine, the Clear-Statement Doctrine, and yes, even Chevron deference. Like ANILCA, these statutes and doctrines seek or have been used to resolve questions of federal-state sovereignty, and they inform many of the parties' arguments and court decisions in this case and the Katie John cases. Thus, stepping from one stone to another, the Supreme Court could use Sturgeon to address questions central to many public-land and natural-resource cases: Who should regulate public lands and resources and to what extent? In interpreting a statute that applies narrowly to Alaska, the Supreme Court may choose to reshape federalism as it applies to public-land and resource management across the United States.

That possibility is concerning, for three reasons. First, Sturgeon is, actually, a narrow case. It concerns whether the Park Service's regulations for managing navigable waters throughout the National Park System apply to certain waters in certain places under a narrow, Alaska-specific statute. Second, the federal government's position -- that it has authority to regulate the use of hovercraft on the Nation River -- is well supported, whether by way of the federal reserved water rights doctrine or ANILCA's language itself. (That position also finds support in history; the federal government stepped in to implement relevant parts of ANILCA only after the state did not.) Third, a Supreme Court decision predicated on an expansive view of federalism could undermine federal authority to address significant environmental issues in other cases. Local or state sovereignty over public lands and resources makes sense until it doesn't; strong federal oversight can be better, even necessary, when it comes to resources like rivers and climate, which do not observe the political subdivisions we assign them. Federal oversight may not be critical for regulating hovercraft on the Nation River, but it is (and will be) in other contexts.

At the same time, I recognize and respect the localism motivating John Sturgeon's lawsuit. In true Alaskan fashion, he personally wrote me, a lawyer living 3,000 miles away, after reading another article I wrote about his case. For Sturgeon and many Alaskans, and for many Americans living among public lands in the West, the federal government's paternalism is unwanted, unnecessary, and outside the authority that Congress delegated to the Executive in our public-land-management statutes. Arguments over the source and scope of authority over public lands are interesting to lawyers, but they can irk when you're just trying to get to your favorite hunting grounds.

Finally, the legal issues that Sturgeon implicates are especially nettlesome and consequential for Alaska Natives, whose "subsistence uses" of public lands are at the heart of ANILCA. We see from the amicus briefs in this case that some Alaska Natives do not view Sturgeon, a case about the non-subsistence use of a hovercraft, as implicating the 9th Circuit's Katie John precedent, cases that sought to preserve Alaska Natives' intimate relationship with the lands and waters they have occupied for over 5,000 years. In their view, the federal reserved water rights doctrine supports implementing ANILCA's subsistence-use priority, but not regulating other uses in conservation system units. For other Alaska Natives, ANILCA does not sustain this distinction, and they embrace broad federal regulatory authority under both ANILCA's language and the federal reserved water rights doctrine. Whatever their differences, Alaska Natives do not want the Supreme Court's decision in Sturgeon to upset the hard-fought and delicate balance achieved in Katie John.

After all is said and done, Sturgeon may remain a case about Alaska. "[T]he simple truth," the Supreme Court observed in the first round, is that "Alaska is often the exception, not the rule." 136 S. Ct. at 1071. However, given the high probability that a strong federalist will replace Justice Anthony Kennedy, some curtailment of federal authority over public lands is likely; the only question is how wide and deep it will run. Given the many legal and policy issues lurking beneath its surface, Sturgeon v. Frost has vast potential to take us somewhere unexpected. I, for one, wouldn't mind if it didn't.