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Sturgeon v. Frost

United States Court of Appeals, Ninth Circuit

October 2, 2017

John Sturgeon, Plaintiff-Appellant,
v.
Herbert Frost, in his official capacity as Alaska Regional Director of the National Park Service; Greg Dudgeon; Andee Sears; Ryan Zinke, Secretary of the Interior; Michael Reynolds, in his official capacity as Acting Director of the National Park Service; The National Park Service; The United States Department of the Interior, Defendants-Appellees.

          Argued and Submitted October 25, 2016 Seattle, Washington

         On Remand from the United States Supreme Court D.C. No. 3:11-cv-00183-HRH

         COUNSEL

          Matthew Todd Findley (argued) and Eva R. Gardner, Ashburn & Mason P.C., Anchorage, Alaska; Douglas Pope, Pope & Katcher, Anchorage, Alaska; for Plaintiff-Appellant.

          Elizabeth Ann Peterson (argued), Vivian H.W. Wang, Dean K. Dunsmore, David C. Shilton, and Andrew C. Mergen, Attorneys; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; F. Christopher Bockmon and Joseph P. Darnell, Office of the Solicitor, United States Department of the Interior, Anchorage, Alaska; Jason Waanders, Office of the Solicitor, United States Department of the Interior, Philadelphia, Pennsylvania; for Defendants-Appellees.

          Ruth Botstein (argued), Assistant Attorney General; Jahna Lindemuth, Attorney General; State of Alaska Department of Law, Anchorage, Alaska; Janell M. Hafner, Assistant Attorney General, State of Alaska Department of Law, Juneau, Alaska; for Amicus Curiae State of Alaska.

          Heather R. Kendall Miller and Matthew N. Newman, Native American Rights Fund, Anchorage, Alaska; Robert T. Anderson, University of Washington School of Law, Seattle, Washington; Lloyd B. Miller, Sonosky Chambers Sachse Miller & Munson, Anchorage, Alaska; Riyaz A. Kanji, Kanji & Katzen PLLC, Ann Arbor, Michigan; for Amici Curiae Mentasta Traditional Council, Village of Dot Lake, Tanana Chiefs Conference, Kenaitze Indian Tribe, Organized Village of Saxman, and Chugachmiut and Nora David.

          James D. Linxwiler and Josh Van Gorkom, Guess & Rudd P.C., Anchorage, Alaska, for Amici Curiae Ahtna, Inc.; Aleut Corp.; Bristol Bay Native Corp.; Calista Corp.; Doyon, Ltd.; Nana Regional Corp.; Gana-A' Yoo, Ltd.; and Tihteet' Aii, Inc.

          Katherine Strong and Valerie Brown, Trustees for Alaska, Anchorage, Alaska; Thomas E. Meacham, Anchorage, Alaska; Donald B. Ayer, Jones Day, Washington, D.C.; for Amici Curiae National Parks Conservation Association, Defenders of Wildlife, Wilderness Society, American Rivers, Center for Biological Diversity, Sierra Club, Wilderness Watch, Denali Citizens Council, Copper Country Alliance, Alaska Quiet Rights Coalition, Northern Alaska Environmental Center, Friends of Alaska National Wildlife Refuges, and Alaska Wilderness League.

          Before: Jerome Farris, Dorothy W. Nelson, and Jacqueline H. Nguyen, Circuit Judges.

         SUMMARY[*]

         Alaska National Interest Lands Conservation Act

         The panel affirmed the district court's summary judgment in favor of federal defendants, and held, on remand from the Supreme Court, that the federal government properly exercised its authority to regulate hovercraft use on the rivers within conservation system units in Alaska.

         The Yukon-Charley National Preserve conservation system unit was set aside for preservation purposes by the Alaska National Interest Lands Conservation Act ("ANILCA"). Within the borders of Yukon-Charley was a stretch of the Nation River which plaintiff sought to travel by hovercraft to get to moose hunting grounds. Plaintiff contended that the Nation River belonged to Alaska, which permits hovercraft on its waterways, and that the National Park Service had no authority to regulate, and prohibit, the use of hovercraft on that stretch of the river.

         The panel held that ANILCA section 103(c) did not limit the Park Service from applying the hovercraft ban on the Nation River in the Yukon-Charley preserve. The panel held that under the Katie John precedent - Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995) (Katie John I), John v. United States, 247 F.3d 1032 (9th Cir. 2001) (en banc) (Katie John II), and John v. United States, 720 F.3d 1214 (9th Cir. 2013) (Katie John III) - the United States had an implied reservation of water rights, rendering the river public lands. On remand from the United States Supreme Court, the panel again concluded that the federal government properly regulated hovercraft use on the Nation River in the Yukon-Charley preserve.

         Judge Nguyen also separately concurred, joined by Judge D.W. Nelson. Judge Nguyen acknowledged that the panel was bound by case law to analyze this case under the reserved water doctrine, but she would conclude that this case is better analyzed under the Commerce Clause as it is about the right to regulate navigation on navigable waters within an Alaska national preserve.

          OPINION

          NGUYEN, Circuit Judge:

         John Sturgeon would like to use his hovercraft in a national preserve to reach moose hunting grounds. The State of Alaska is fine with that;[1] the federal government is not. Sturgeon's case turns on which entity-state or federal- gets to decide the matter. On remand from the Supreme Court, we again conclude that the federal government properly exercised its authority to regulate hovercraft use on the rivers within conservation system units in Alaska.

         I.

         A.

         The Yukon-Charley Rivers National Preserve conservation system unit ("Yukon-Charley") is among the 104 million acres of land in Alaska set aside for preservation purposes by the Alaska National Interest Lands Conservation Act ("ANILCA"), 16 U.S.C. § 3101 et seq. (1980). Like other conservation system units created by ANILCA, Yukon-Charley was drawn around a mix of federal, state, Native Corporation, and private owners.

         Within the boundaries of the Yukon-Charley lies a stretch of the Nation River. Sturgeon would like to travel by hovercraft on this part of the river to get to moose hunting grounds located upstream from the preserve. Park Service regulations prohibit the use of hovercraft within "[w]aters subject to the jurisdiction of the United States located within the boundaries of the National Park System . . . without regard to the ownership of submerged lands, tidelands, or lowlands." 36 C.F.R. § 1.2(a)(3); see id. § 2.17(e). Alaska permits hovercraft on its waterways. Sturgeon contends that the Nation River belongs to Alaska and that the Park Service has no authority to regulate it. He seeks declaratory and injunctive relief preventing the Park Service from enforcing its hovercraft ban.

         B.

         ANILCA balanced the need to protect "the national interest in the scenic, natural, cultural and environmental values on the public lands in Alaska" with the need to provide "adequate opportunity for satisfaction of the economic and social needs of the State of Alaska and its people." 16 U.S.C. § 3101(d). Thus, while ANILCA provided that conservation system units in Alaska generally "shall be administered . . . under the laws governing the administration of [National Park Service system unit] lands, " id. § 410hh, it "specified that the Park Service could not prohibit on those lands certain activities of particular importance to Alaskans." Sturgeon v. Frost, 136 S.Ct. 1061, 1066 (2016). For example, Park Service regulations applicable nationwide prohibit hunting and snowmobiling for the most part, see 36 C.F.R. ยงยง 2.2, 2.18, whereas ANILCA permits, subject to reasonable regulations, "the use of ...


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