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It is unlikely that Ammon Bundy and friends, currently illegally occupying the Malheur National Wildlife Refuge in Oregon, planned their protest against federal land management policies in the West to coincide with the upcoming Supreme Court argument in Sturgeon v. Frost, but the standoff in Oregon and the issues in this case spring from the same well.

The big-picture issue in both cases is the extent of federal power over lands in the West. To those of us living east of the 100th Meridian, which runs roughly down the eastern border of Colorado in Figure 1, the issue is not significant, but to those who live west of that line, it is of paramount concern. The federal government owns less than two percent of land in my home state of Illinois, but nearly eighty-five percent of Nevada and, for purposes of this case, about sixty-nine percent of Alaska (amounting to over several hundred million acres). These numbers matter to perceptions. For the typical Easterner, the idea of federal power to conserve lands is likely unobjectionable and agency power (whether it is the National Park Service or Bureau of Land Management) is likely perceived as benign and socially regarding. But for the typical Westerner, who has to live with federal land management policies on a daily basis, the warts and shortcomings of federal policies often implicate economic survival.


Figure 1: Federal Land Ownership in the United States (Source: Bureau of Land Management)

It is against the backdrop of federal domination of western land and land policy that the dispute in this case arises. The case is not, however, about federal land, but rather state, private, or native-owned land within the boundaries of certain federal preserves. The issue about the authority of the National Park Service to promulgate rules governing non-federal lands within these areas is unique to Alaska, which makes this case of even less interest to us non-Alaskans. But, the case raises potentially interesting questions of federalism, statutory interpretation, and administrative law, not to mention the potentially significant impacts it will have on the use and enjoyment of vast tracts of Alaska. Perhaps most interestingly, the issue in the case also pits the federal government against various native peoples, and various native peoples against other native peoples. The legislative bargain that created Alaska and carved up its land for the benefit of the citizens of the state,the natives, and the federal government is at stake in the interpretation of just a few lines of a federal statute.

The issue in this case isn’t exactly scintillating. The question presented is:

Whether Section 103(c) of the Alaska National Interest Lands Conservation Act of 1980 prohibits the National Park Service from exercising regulatory control over State, Native Corporation, and private Alaska land physically located within the boundaries of the National Park System.

To make any sense of this requires some background on the unique relations between the federal government, the state of Alaska, and the native peoples who pre-existed them.

The statute admitting Alaska to the Union in 1958 authorized the new state to take about 100 million acres of federal land for state use. Much of the land in the new state was not valuable in economic terms; therefore, to ensure economic viability of the state, the stakes in this process were high. In the course of choosing these lands, disputes arose with the natives, who claimed title to some of them. To resolve these disputes, Congress passed the Alaska Native Claims Settlement Act in 1971. The ANCSA extinguished native title, but established a process whereby the state, newly created native corporations, and the Secretary of the Interior could divide up the lands into state land, land to benefit natives, and national parks and preserves. Importantly, ANCSA’s creation of native corporations was an important innovation in federal Indian policy. Traditionally the federal government had served as trustee for the various tribes, owning land and managing resources on behalf of the tribes. The ANCSA approach was to end this for native Alaskans, instead giving them the land to manage on their own to create economic prosperity.

Unfortunately, the ANCSA process for choosing failed. Congress was supposed to approve any withdrawals of land by the federal government for new parks within five years, but it did not. In that case, the lands were supposed to reverrt to the state and the native corporations. President Jimmy Carter tried to use executive authority under other statutes to prevent this, which led to litigation. In 1980, Congress tried to resolve this dispute by passing the Alaska National Interest Lands Conservation Act. In addition to resolving the disputes about state and native selection of lands, ANILCA permitted additional federal parks to be created out of the reserved lands. These parks would be called “conservation system units” and would be drawn according to natural boundaries and ecosystems without regard to ownership of the land in new “conservation system units” (CSUs). In other words, the new federal parks or preserves would include within their boundaries lands owned by private parties, the state of Alaska, and/or native corporations. This patchwork can be seen in Figure 2, which is the map of the territory in dispute in this case. (The Nation River, which is the area of particular dispute, is in the upper right corner of the Yukon-Charley Rivers National Preserve.)


Figure 2: The Yukon-Charley Rivers National Preserve, the Conservation Service Unit at issue in Sturgeon v. Frost. (Source: National Park Service)

ANILCA had many purposes, including to preserve “lands and waters” and to “provide the opportunity for rural residents engaged in a subsistence way of life to continue to do so.” To achieve these aims, it directed the Secretary of the Interior to “administer the lands, waters, and interests” in the new reserves or parks.

The statutory provision at issue in this case was added after passage but before enrollment in a section about “Maps.” The government – but not petitioner John Sturgeon – views this fact as relevant to the interpretation of Section 103(c).

The dispute before the Court next week involves the use of a hovercraft on a navigable river on non-federal land within the boundary of the Yukon-Charley CSU. The National Park Service (NPS) has a nationwide rule that bans hovercraft from public lands, and it sought to enforce this against Sturgeon. Sturgeon argued before the district court that Section 103(c) limits the jurisdictional reach of the NPS rule to the federal or “public lands” within the CSU boundary. Sturgeon’s view was that of the NPS in rules it promulgated in 1981, 1983, and 1988, but contrary to the view it took in 1996, when it extended its rules to cover navigable waters within CSU boundaries.

Sturgeon sought a declaratory judgment to enjoin the NPS from banning his use of a hovercraft. Sturgeon based his case on Section 103(c), which provides:

Only those lands within the boundaries of any conservation system unit which are public lands (as such term is defined in this Act) shall be deemed to be included as a portion of such unit. No lands which . . . 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. If the State, a Native Corporation, or other owner desires to convey any such lands, the Secretary may acquire such lands in accordance with applicable law (including this Act), and any such lands shall become part of the unit, and be administered accordingly.

Sturgeon reads this statutory language as doing three related things, each in a respective sentence. The first sentence defines the unit of control of the NPS as only those lands within the boundaries of the CSU that are public lands. To Sturgeon, this means that private, state, or native-corporation land within the boundaries are not subject to the federal control authorized under the act. The second sentence, Sturgeon claims, then provides that non-federal or non-public lands within CSU boundaries are subject only to generally applicable federal law, not to federal law that pertains solely to federal lands. Finally, the third sentence says that if the Secretary of the Interior wants to change this, he or she can buy the lands for the federal government, if offered.

The district court granted summary judgment to the NPS. It held that Sturgeon’s interpretation of Section 103(c) was incorrect, because the statute gave the NPS (through the Secretary) authority to regulate non-federal land – or, at least, the navigable waters on non-federal land. Focusing on the second sentence, the district court read “regulations applicable solely to public lands” as suggesting that non-federal land inside CSU boundaries were exempt from only Alaska-specific regulations, not nationwide NPS rules. Since the hovercraft ban is a national rule, Sturgeon’s claim failed. The Ninth Circuit affirmed on this ground.

In his brief to the Supreme Court, Sturgeon argues that the Ninth Circuit erred as a matter of basic statutory interpretation. He also argues that the navigable waters on non-federal lands are not “public lands” within the meaning given to that term by ANILCA, suggesting that the NPS does not have jurisdiction over these waters as a matter of course under the statute.

Sturgeon is supported by eight amici, including the state of Alaska, both its U.S. senators, a variety of native corporations, a bunch of natural-resources trade associations, an organization of hunters and sportsmen, and two public-interest foundations. These amici proffer numerous additional arguments related to their particular interests in the case. The line-up is suggestive. The native corporations and the natural-resource business interests worry that giving the NPS more power over non-federal lands within CSUs may interfere with their ability to exploit such non-federal land. For instance, the submerged lands under navigable waters are clearly non-federal land and important for economic viability of much of Alaska’s land; if the NPS can ban hovercraft, float planes, or floating mining equipment, the land may become unviable. To Sturgeon and the amici, giving this power to the NPS would upset the very careful (and complex!) legislative bargain struck in the various acts going back to the Statehood Act that admitted Alaska. The idea of native corporations being created and being self-sufficient was tied to the ability to exploit the land in various ways, and this could be threatened by administrative rules under the Ninth Circuit’s interpretation.

The United States defends the Ninth Circuit largely on different grounds than those on which the lower court’s holding rested. The government argues that navigable waters are subject to federal jurisdiction, and therefore are public lands not subject to the limitation in Section 103(c). To make its argument, the government points to parallel litigation involving another part of ANILCA – the part that encourages subsistence fishing for Alaskan natives. In so-called Katie John litigation, the Ninth Circuit held that navigable waters on non-federal lands within CSU boundaries were public lands for purposes of the subsistence-fishing provisions of the act. The dispute there involved upstream versus downstream uses of rivers, which generated conflicts between (roughly) sportsmen and natives. The state, which would regulate the waters in the absence of federal authority, generally favored the former, and the plaintiffs in Katie John, argued that this frustrated the purposes of the act. To the government in this case, this means that public lands can mean something broader than mere ownership, especially when it involves navigable waters. Moreover, the government argues, defined terms should be given a single, harmonious reading in a particular statute.

The government also makes a half-hearted attempt to defend the district court and Ninth Circuit, before ultimately arguing that the statutory provision is ambiguous and the NPS is entitled to Chevron deference in its interpretation. The 1996 rule change went through the required notice-and-comment rulemaking required by the Administrative Procedure Act, and there is nothing about the change that makes it less worthy of deference than other administrative judgments.

On the merits, the Ninth Circuit’s reasoning does not seem to justify the outcome it reached. As Sturgeon and several amici on his side explain, the Ninth Circuit’s reading would lead to an absurd result. For instance, as one amicus points out, there are nationwide park rules forbidding certain fishing practices and then a special Alaska-specific rule that permit them. Under the Ninth Circuit’s reading, the non-federal land within the Yukon-Charley would be subject to the nationwide ban, but not the Alaska exemption. In other words, federal fishing regulations would be stricter on non-federal land than federal land.

Sturgeon offers a more persuasive reading of the statute: the second sentence was meant to ensure that non-federal land within a CSU remained subject to federal laws of general applicability – such as the Clean Water Act – and to ensure that federal law targeted solely to federal land did not apply. For instance, if Congress declared murder on federal land to be a crime, it would not be a federal crime to murder someone on non-federal land within the CSU.

Both sides offer various snippets from the legislative history and arguments about the significance of the placement of various provisions and the timing and method of their adoption. I don’t find these particularly persuasive when considered compared to the language and overall legislative bargain of this and other related acts, but others may and so may the Court ultimately. It remains to be seen.

But the shortcomings of the Ninth Circuit’s reasoning do not necessarily mean that Sturgeon should or will prevail. No one in this litigation or elsewhere denies that Congress has plenary authority to regulate the navigable waters of the United States. This is found in the Constitution in multiple locations (for example, the Commerce and Property Clauses) and is a several-hundred-year tradition backed by iron-clad Supreme Court precedent. So, if Congress wanted to ban hovercraft on the Nation River in the Yukon-Charley Preserve, it could do so, just as it could on any navigable waterway in the nation. Congress has clearly not done this directly, and it seems like a stretch to think it has done so indirectly by delegating this authority to the NPS through ANICLA.

But perhaps ANICLA did something less crazy – maybe it gave the NPS authority to regulate on non-federal land within CSUs when there would be spillovers into federal land. It may be sensible to give a regulator (like the NPS or a state, for that matter) power to regulate or have its laws have effect beyond the jurisdictional lines in which it is typically constrained. Waters from non-federal land may flow into federal land and do harm there that the Secretary of the Interior is tasked with preventing. In that case, it might make sense for the Secretary’s power to extend beyond a particular boundary. One can imagine empowering the NPS to regulate land uses that directly abut the Grand Canyon, for instance, to ensure that giant factories that would spew smoke or chemicals into the park are not built too close by. Of course, if that is the case, the argument has really nothing to do with whether the non-federal land in question is within or without CSU boundaries, since land that abuts the preserve on all sides poses this potential risk.

This is arguably the story of Katie John. In that case, users on non-federal land were engaged in conduct that was harming users that were protected under the statute. To analogize to this case, one might argue that the use of hovercraft (or float planes or mining equipment) upstream on the Nation River might have spillovers onto federal lands – say by noise pollution – that was damaging things the Secretary was told to protect.

The Katie John story also demonstrates why this case is potentially interesting for those beyond Alaska. Remember that the battle lines here put the state and some native corporations on one side and the federal government and other native corporations on the other side. The native corporations arguing for NPS authority are those interested in subsistence fishing, which may be imperiled by a broad ruling narrowing the definition of “public lands,” thus upsetting the Katie John precedent. In contrast, the native corporations interested in mineral or other resource extraction are arguing to limit the power of the NPS, which they believe is (at least for now) on an anti-economic-growth mission. The story then is one not only about national park and preserve policy, but also about the entire model of Alaskan native corporations and tribes in general as economically self-sufficient entities. (Although one could imagine a narrow ruling by the Court that serves the interests of both types of native corporations.)

To see the stakes, we should step back to principles and theories of administrative law. In the typical administrative agency matter, we think Congress has delegated the dirty work of finding a workable approach to a complex matter to an expert agency. In that case, we might believe the agency’s views should be entitled to deference. But here, in a series of statutes from 1958 to 1980, Congress did the hard work of crafting a complex bargain among the state, at least two types of native corporations, private landowners, and the federal government’s conservation agencies, by designating who owns what and exactly what rights those are. To give the NPS the authority to broadly interpret its mandate in a way that risks upsetting that congressionally fixed bargain raises significant non-delegation concerns, and may suggest that the Court should scrutinize those decisions more carefully than the typical agency determination. The native corporation was, until the decision to permit gaming in Indian Country, the most ambitious congressional innovation in our relation with native tribes. It seems like permitting the NPS to risk upsetting the bargain with the tribes by virtue of sub-congressional action, in the absence of a clear mandate to do so on this particular issue, may be a reason why the Court decided to intervene in this case.

Posted in Sturgeon v. Frost, Analysis, Featured, Merits Cases

Recommended Citation: Todd Henderson, Argument preview: A broken-down hovercraft tees up federal land-management policies in the West for the Supreme Court, SCOTUSblog (Jan. 13, 2016, 11:12 AM),