Holding raises interesting questions for public-lands law

At the end of March, the U.S. Supreme Court reminded us that Alaska is special. Not just for its resplendent beauty and bountiful resources, but also with respect to what the federal government can and cannot do within its borders. In Sturgeon v. Frost, 2019 DJDAR 2419 (Mar. 26, 2019), the court unanimously holds that the Park Service lacks the authority to regulate "nonpublic lands" within national parks in Alaska. That holding is modest, but it raises interesting questions for public-lands law in Alaska and, to some extent, outside it.

Sturgeon is but the latest battle in the tug-of-war between the federal government, the state of Alaska, Alaska Natives, and private individuals over who manages Alaska's lands and waters and how. That conflict began when Alaska joined the Union in 1849. Since then, Congress has adopted multiple laws aimed at compromise, including, most recently in 1980, the Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. Section 3101 et seq. In an effort to balance conservation with economic and social development, ANILCA set aside 104 million federally owned acres for preservation, including 44 million acres in the National Park System, and vast other areas for state or Native use or ownership.

As with every law, the courts have been asked to define ANILCA's contours -- that is, to resolve how ANILCA applies to different areas and uses in Alaska. In the 9th Circuit's Katie John cases, for example, the court was asked to determine which areas were subject to ANILCA's priority for subsistence uses. See, e.g., John v. United States, 720 F.3d 1214, (9th Cir. 2013). In Sturgeon, the question from the start has been 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." 138 S. Ct. 2648 (2018). That is, whether the Park Service could apply a nationwide regulation to prohibit John Sturgeon from piloting his hovercraft on that part of the Nation River that flows through the 1.7-million-acre Yukon-Charley Rivers National Preserve, a unit of the Park System.

The road to the Supreme Court's final answer to that question -- "no" -- has been a long one. My Oct. 3, 2018, article in this paper describes in detail the many twists and turns. Suffice it to say here that the Supreme Court, in remanding Sturgeon to the 9th Circuit in the first round, opened the door to the case being either a narrow statement on ANILCA or the thin edge of a jurisprudential shift in public-lands law. The question for public-lands lawyers was which it would turn out to be.

Sturgeon emerges as the former -- mostly. Alaska, the Supreme Court reminds us, is "often the exception, not the rule," and ANILCA is an exceptional public-lands statute. As part of its "grand bargain" among the federal government, the state, and Alaska Natives, ANILCA created "conservation system units" drawn not by jurisdictional boundaries but around natural features. The result is that those units, the Yukon Preserve included, often contain federal "public lands" and nonpublic state, Native and private "lands," which term ANILCA defines to include "waters." See Sturgeon, 2019 DJDAR at 2422, 2426; 16 U.S.C. Sections 3102(1)-(3). Hence the unusual scenario of having a state-owned river (the Nation) running through a federal preserve (the Yukon). And ANILCA specifically exempts nonpublic lands from "regulations applicable solely to public lands within such units." 16 U.S.C. Section 3103(c).

The 9th Circuit, in its decision on remand, held that the Nation River was a "public land" by virtue of the federal reserved water rights doctrine, which (simplifying) says that the federal government is entitled to water to serve the purposes of federal land reservations, including the Yukon Preserve. Entitlement is not always the same thing as "title," of course, and because the federal government cannot hold "title" to running water, the reserved water rights doctrine seemed the best fit for upholding the Park Service's hovercraft ban. The 9th Circuit had, after all, used that very doctrine to apply ANILCA to subsistence uses in its Katie John decisions. See generally Sturgeon v. Frost, 872 F.3d 927 (9th Cir. 2017); John, 720 F.3d at 1223-27, 1229-32.

The Supreme Court was not convinced. In its latest decision -- the final one for John Sturgeon but perhaps the first of many challenging the federal government's authority in Alaska -- the court explains that if the government has an interest in the Nation River (a big "if"), it's simply an interest to a specific amount of water. Thus, unless hovercraft threaten to divert or pollute that water, the reserved water rights doctrine can't support the Park Service's ban on them. Sturgeon, 2019 DJDAR at 2424. Nor can the Park Service's enabling legislation, the Organic Act, 16 U.S.C. Section 1 et seq., or the general statements in ANILCA about the federal government's duty to, for example, "protect and preserve rivers," 16 U.S.C. Section 3101(b). ANILCA's specific exemption of nonpublic lands from Park Service regulation controls, making those "geographic inholdings" "regulatory outholdings." Sturgeon, 2019 DJDAR at 2425-26.

All of this is to say, as the Supreme Court does many times, that "Alaska is different." But Sturgeon will still be an important public-lands case. More than 10 percent of our nation's largest state lies within ANILCA's conservation system units, and Sturgeon is likely to encourage disputes over what, and under what authority, the federal government is doing in many of them. The Supreme Court is careful in Sturgeon to avoid casting doubt on other sources of federal authority -- namely environmental statutes like the Endangered Species Act, the Clean Water Act, and the Wild and Scenic Rivers Act -- but it also doesn't champion them, either.

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, filed a concurrence that tries to do so. Justice Sotomayor emphasizes that ANILCA gives the Park Service a clear conservation mandate -- ergo, the Park Service must have the authority to protect public parklands, ergo, the Park Service must have the authority to regulate activities that threaten parklands but happen on nonpublic lands. Justice Sotomayor finds her Patronus in the agency's Organic Act and the Wild and Scenic Rivers Act, with a footnoted nod to the navigational servitude, a sweeping, sleeping power rooted in the Commerce Clause.

Which, if any, of these authorities the Park Service asserts to regulate "conservation system units" in Alaska has been consequential for John Sturgeon and will be for other Alaskans. And it may influence how the Park Service regulates parks in the other 49 states. Sturgeon may yet hold something in store for all of us.