Sturgeon v. Frost

DETERMINING CONGRESSIONAL INTENT

Sturgeon argues that Section 103(c) of ANILCA prohibits the NPS from exercising jurisdiction over—and thus regulating—state, native corporation, and private lands and waters that fall within the boundaries of Alaska’s CSUs. Sturgeon contends that Section 103(c) provides that only “public lands” within a CSU’s boundaries are a part of that CSU and that any non-public lands within a CSU’s boundaries are not subject to regulations applicable solely to public lands within the CSU. Under ANILCA, according to Sturgeon, “public lands” in Alaska are “federal lands”—that is, lands to which the United States retains title. Reading these two definitions together, Sturgeon asserts that the NPS may only regulate the lands and waters within CSUs to which the United States has title. Thus, Sturgeon interprets the plain text of the two provisions as meaning that the United States does not hold title to the navigable waters flowing over non-federal land within CSUs, and, as such, the NPS has no jurisdiction to regulate the portion of the Nation River on which Sturgeon sought to use his hovercraft.

Sturgeon finds further support for this argument in the broader structure of Section 103(c), which provides that if a state, native corporation, or other owner wants to convey their land, the Secretary may acquire it in accordance with applicable law. Sturgeon contends that this provision sets forth the only way non-public land within a CSU may become subject to NPS regulation—by conveyance to the United States. To otherwise allow the NPS to exercise jurisdiction over any land within a CSU regardless of whether it was public land, Sturgeon states, would make the provision superfluous.

Furthermore, Sturgeon asserts that because ANILCA is an Alaska-specific statute—created in recognition of the unique status of Alaska’s lands, waters, and resources—the NPS cannot rely on its general rulemaking authority to subject non-public lands to its regulations. Instead, Sturgeon argues that the NPS must follow ANILCA’s express mandate that non-public lands within Alaskan CSUs are not part of the CSUs, and thus are not subject to NPS jurisdiction. Sturgeon additionally argues that had Congress wanted to displace Alaskan law and subject navigable waters in Alaskan CSUs to NPS regulations, and thus alter the balance between Alaska and the federal government, it would have needed to place a clear statement of that intent in ANILCA. According to Sturgeon, a clear statement of that intent is missing from the statute, which makes no mention of navigable waters or reserved water rights, nor explicitly authorizes the NPS to assert jurisdiction over Alaskan waters.

Sturgeon counters Frost’s argument about Section 103(c)’s placement by arguing that ANILCA is about geographic boundaries and noting that, out of over 100 provisions, the maps provision comes third, and is therefore “front and center in the statutory scheme.” Sturgeon responds to Frost’s clear statement argument by noting that the NPS itself has no traditional authority to regulate navigable waters because an agency has no authority unless conferred by statute. Sturgeon also contends that Frost’s ratification argument fails because Congress never actually enacted positive legislation codifying the Secretary’s position into the statutory text of ANILCA. Lastly, Sturgeon argues that Frost’s plea for Chevron deference must be denied because ANILCA unambiguously forbids the NPS from regulating non-federal lands in Alaskan CSUs, and construction of Section 103(c) to the contrary is unreasonable.

Frost counters that regardless of whether navigable waters within Alaskan CSUs are classified as “public lands” under Section 103(c), the NPS may nonetheless regulate them under the Act of Oct. 7, 1976 (“1976 Act”). The 1976 Act granted the Secretary authority to regulate conduct “on or relating to water located within System units, including water subject to the jurisdiction of the United States,” which, according to Frost, includes navigable waters.

Frost contends that the 1976 Act is significant for two reasons. First, Frost maintains, even if navigable waters within a CSU are not a portion of that CSU under Section 103(c), they still qualify as within a CSU for purposes of the 1976 Act, therefore rendering them expressly subject to regulation by the NPS. As such, Frost contends that the 1976 Act is the most specific statute on whether navigable waters within Alaskan CSUs are subject to NPS regulations. Second, Frost argues that the 1976 Act alternatively allows NPS regulation of navigable waters within Alaskan CSUs because they are related to non-navigable stretches of water on federally owned lands. As Frost contends, navigable and non-navigable stretches of water are interconnected, and the regulation of navigable stretches relates to interconnected non-navigable stretches by protecting the integrity and enjoyment of both.

Frost also contends that Sturgeon’s reading of Section 103(c) is inaccurate because the sentence excluding non-public lands within a CSU from regulations applicable solely to public lands would be superfluous if it meant that non-public lands were exempted from all NPS regulations. Frost argues that there would be no reason for that sentence if the definition of “public lands” itself excluded non-public lands from all NPS regulations, as Sturgeon contends it does. Instead, Frost understands that provision to mean that non-public lands are not subject to one type of regulation—those applicable solely to public lands—not all NPS regulations. Frost further asserts that non-public lands need not be conveyed to the United States to subject them to NPS regulations, as evidenced by an ANILCA provision directing the NPS to consider regulating privately owned areas within Alaskan national parks when needed to serve the purposes of the CSUs. Despite this, Frost contends that Section 103(c) is not rendered meaningless; rather, according to Frost, the provision substantially restricts the NPS’s regulatory authority under the 1976 Act to imposing on non-public lands only water-related rules regarding activities hazardous to public lands.

Frost offers numerous additional arguments regarding Congress’s intent to allow the NPS to regulate public lands in Alaskan CSUs. First, Frost argues that Congress’s placement of Section 103(c) in a provision focused on maps, rather than in one focused on the Secretary’s substantive authority to regulate, shows that Congress did not intend it to implicitly revoke the NPS’s longstanding authority to regulate navigable waters within CSUs. Frost also asserts that there is no basis for the clear statement rule here because the usual constitutional balance concerning navigable waters has always given the United States authority to control them. Moreover, Frost contends that Congress expressed its intent that the NPS be able to regulate navigable waters by ratifying regulations of the Secretary doing just that. Ultimately, Frost maintains that any ambiguity on the issue must be resolved by entitling the Secretary’s reasonable interpretation of the NPS’s regulatory authority—that the NPS may regulate navigable waters within Alaskan CSUs—to Chevron deference.

RESERVED RIGHTS TO REGULATE

Sturgeon argues that the Ninth Circuit incorrectly concluded that the “reserved water rights” doctrine, despite the text of Section 103(c), gives rise to an implied federal interest in the navigable waters within Alaskan CSUs which affords the NPS regulatory authority over those waters. When the federal government reserves land for a federal purpose, according to Sturgeon, the reserved water rights doctrine operates to retain for the federal government an amount of water appurtenant to the reserved land needed to accomplish the federal purpose. Sturgeon maintains, however, that the doctrine merely grants the federal government a non-possessory use right, and not title, as required under his reading of Section 103(c). Thus, Sturgeon claims that even if the United States held reserved water rights in all of Alaska’s navigable waters, the federal government’s lack of title would restrict it from regulating those waters as it does public land. Sturgeon further asserts that even if the United States holds a reserved water right to the navigable waters of the Nation River, the hovercraft ban exceeds the scope of that right. According to Sturgeon, the doctrine does not give the federal government plenary regulatory power over the body of water, but instead simply reserves for the federal government the amount of water necessary to fulfill the federal purpose. Here, Sturgeon argues that the Ninth Circuit erred in upholding the hovercraft ban based on the conclusion that one of ANILCA’s statutory purposes—the protection of fish—would be impacted by any diminution of water within the Yukon-Charley, because operating hovercrafts has no effect on the volume of water in a river.

Frost responds that the reserved water rights doctrine does authorize the NPS to regulate navigable waters within Alaskan CSUs. Frost notes that “ANILCA defines ‘public lands’ as lands, waters, and ‘interests therein’ to which the United States holds title.” As Frost articulates, that ANILCA includes interests in water as part of this definition is important in the context of navigable waters because only interests in navigable waters may be owned, rather than the waters themselves. Frost further contends that reserved water rights to withdraw or maintain flows of waters, which Frost affirmatively argues the federal government has, are property rights to which owners hold title. Moreover, Frost asserts that the United States holds these property rights as an incident of the land to which it has title. Frost also claims that Sturgeon’s argument that the NPS’s regulations exceed federal reserved water rights misunderstands the relevance of those rights under ANILCA. According to Frost, the NPS does not derive regulatory power from those reserved water rights; rather, the regulatory power is derived from the 1976 Act. The relevance of the reserved water rights is instead, as Frost concludes, that they confer on the federal government the authority to regulate navigable waters within Alaskan CSUs as “public lands” under Section 103(c).