H. RUSSEL HOLLAND, District Judge.
I. Procedural History. In this action brought pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-06, plaintiff John Sturgeon and plaintiff-intervenor the State of Alaska bring "as-applied" challenges to National Park Service ("NPS") regulations. Sturgeon and the State have timely filed their opening summary judgment briefs,  to which defendants have responded. Sturgeon and the State timely filed their reply briefs and defendants have timely filed their sur-reply as contemplated by the court's scheduling order. Oral argument has been heard.
On September 14, 2011, Sturgeon commenced this action. In Count I of his complaint, he seeks a declaration that the application of NPS regulations on lands belonging to the State of Alaska that are within NPS conservation system units created or expanded by the Alaska Native Lands Conservation Act (herein "ANILCA") are void as applied to him. In Count II of his complaint, Sturgeon seeks a declaration that "any regulations purporting to authorize the NPS to enforce regulations which are solely applicable to public lands within conservation units on lands owned by the State of Alaska, including navigable waters, within NPS conservation units created or expanded by ANILCA are void." In Count III, Sturgeon requests an order enjoining defendants "from interfering with [his] operation of his hovercraft on state-owned navigable waters within the Yukon-Charley" Rivers National Preserve (herein "Yukon-Charley"). In Count IV, he requests an order enjoining defendants "from enforcing NPS regulations, which are solely applicable to public lands within federal conservation system units, on lands belonging to the State of Alaska, including navigable waters, within the boundaries of NPS conservation units in Alaska that were created or expanded by ANILCA."
In its second amended complaint in intervention,  the State asserted four claims for relief. The State's first claim for relief was a facial challenge to the regulations in question. In its second claim for relief, the State seeks a declaration that the application and enforcement of 36 C.F.R § 1.2(a)(3) and § 13.2 violates § 103(c) of ANILCA. In its third claim for relief, the State seeks a declaration that the Secretary's denial of the State's petition for rule-making was arbitrary and capricious. In its fourth claim for relief, the State seeks injunctive relief prohibiting the application and enforcement of the regulations in question on State-owned lands and waters.
By order of September 19, 2012,  the court rejected the State's first claim for relief which was a facial challenge to the NPS regulations at issue here because that claim was time-barred. Defendants now contend that both Sturgeon and the State are in fact bringing facial challenges in the guise of an "as-applied" challenge. Sturgeon and the State have pled as-applied challenges. The facts upon which Sturgeon and the State rely demonstrate application of NPS regulations to the respective activities of Sturgeon and the State. The court will address the as-applied claims.
In their briefing to the court, the State and defendants briefly discuss whether or not the State is challenging 36 C.F.R. § 13.2. The court finds no evidence in the record that the defendants applied 36 C.F.R. § 13.2 to the State. As discussed hereinafter, the principal issue here is the applicability of 36 C.F.R. § 1.2 (which regulation addresses the applicability of Title 36, Part 2, as well as 36 C.F.R. Part 13 regulations) to the conduct of Sturgeon and the State.
II. Statutory/Regulatory Background.
A. Alaska Native Claims Settlement Act. In 1971, Congress enacted the Alaska Native Claims Settlement Act ("ANCSA") for purposes of addressing and resolving outstanding aboriginal claims of Native Alaskans which began to accrue in 1867 when the United States purchased Russian-America (Alaska). In addition to a monetary settlement and the conveyance of some 40 million acres of land to be divided amongst 220 Native villages and 12 regional corporations, ANCSA created the joint Federal-State Land Use Planning Commission for Alaska and, by § 17(d)(2)(A), made provision for the withdrawal from public domain 80 million acres of unreserved public lands in Alaska for potential addition to or creation of new units of the national parks, forests, wildlife refuges, and wild and scenic river systems.
B. Alaska National Interest Lands Conservation Act. Based upon the work of the Commission, Congress in 1980 enacted ANILCA. In furtherance of the ANCSA § 17(d)(2)(A) withdrawals, Title II of ANILCA makes provision for the creation of or additions to the NPS. Section 201 established new "units of the National Park System [which] shall be administered by the Secretary under the laws governing the administration of such lands and under the provisions of this Act[.]" Included as a new area was Yukon-Charley, "containing approximately one million seven hundred and thirteen thousand acres of public lands, as generally depicted on map numbered YUCH-90, 008[.]" § 201(10). Section 201(10) expressly sets forth the purposes for this withdrawal, one of which was the maintenance of the environmental integrity of the Charley River Basin in its undeveloped, natural condition.
Section 202 of ANILCA adds to existing NPS units. Included by § 202(2) is an addition to the Katmai National Monument of 1, 037, 000 acres of public land, to be known as Katmai National Preserve ["Katmai"]. Katmai is to be administered to protect habitat, including fish populations, and to protect scenic geological, cultural, and recreational features. § 202(2).
Included in Yukon-Charley are the lower reaches of the Nation River. Included in Katmai is the Alagnak River.
For purposes of the implementation of ANILCA, that act contains definitions which are critical to understanding the act. The key terms are "land, " "federal land, " and, most important of all, "public lands." "Land" means "lands, waters, and interests therein." § 102(1). "Federal land" means "lands the title to which is in the United States" after the date of enactment of ANILCA. § 102(2). "Public lands" means "land situated in Alaska which, " after the date of enactment of ANILCA are Federal lands, except:
land selections of the State of Alaska which have been tentatively approved or validly selected under the Alaska Statehood Act and lands which have been confirmed to, validly selected by, or granted to the Territory of Alaska of the State under any other provision of Federal Law.
§ 102(3)(A). Finally, "conservation system unit" is defined to include the various NPS units addressed by ANILCA. § 102(4). Yukon-Charley and Katmai are conservation system units for purposes of ANILCA.
Collapsing the foregoing definitions for ease of discussion of the circumstances in this case, "public lands" are waters or interests in waters in Alaska owned by the United States in 1980. Excluded from public lands are interests in land and/or water confirmed or granted to the State of Alaska under any federal law.
Somewhat buried in the "maps" section of ANILCA is § 103(c) which is at the heart of this litigation:
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, before, on, or after December 2, 1980, 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.
C. National Park Service Administration Improvement Act and Regulations.
In order to facilitate the administration of the national park system, the Secretary of the Interior is authorized, under such terms and conditions as he may deem ...