and Submitted October 25, 2016 Seattle, Washington
Remand from the United States Supreme Court D.C. No.
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
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.
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,
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
Before: Jerome Farris, Dorothy W. Nelson, and Jacqueline H.
Nguyen, Circuit Judges.
National Interest Lands Conservation Act
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.
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.
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
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
NGUYEN, Circuit Judge:
Sturgeon would like to use his hovercraft in a national
preserve to reach moose hunting grounds. The State of Alaska
is fine with that; 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.
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.
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.
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. §§ 2.2, 2.18, whereas ANILCA
permits, subject to reasonable regulations, "the use of