The U.S. Supreme Court has rejected the National Park Service's authority to regulate rivers in parks in Alaska. In the case at hand, an Alaskan had sued the Park Service after it warned him that he could not use his hovercraft on the Nation River (red circle) in Yukon-Charley Rivers National Preserve.
"Alaska," the U.S. Supreme Court said in a unanimous ruling that stripped the National Park Service of authority to regulate rivers that run through its units in the state, "is different."
That determination Tuesday brought finality to a case that during the past dozen years bounced from a U.S. District Court to the Supreme Court, back down to an appellate court, and finally back to the Supreme Court. The takeaway was that John Sturgeon can use a hovercraft on the Nation River to pass through Yukon-Charley Rivers National Preserve to reach a hunting area above the preserve. At the same time, in a concurring opinion, Justice Sonia Sotomayor recognized the bind the ruling placed the Park Service in -- not being able to regulate activities on rivers in the park system in Alaska -- and suggested Congress more fully and clearly specify the agency's authority over those rivers.
Sturgeon brought his lawsuit against the Park Service in 2007 after rangers had warned him that he could not use his hovercraft on the Nation River in the national preserve. He argued that in passing the Alaska Native Interest Lands Conservation Act, Congress took away the Park Service’s authority over rivers and lakes within Alaska’s national park sites.
After the 9th U.S. Circuit Court of Appeals initially sided with the National Park Service, Sturgeon, joined by the state of Alaska in the matter, appealed the case to the U.S. Supreme Court. That court did not rule on the issue, but sent it back to the 9th Circuit for reconsideration. Again the appellate court rejected Sturgeon's argument, and again he appealed to the Supreme Court.
In ruling for Sturgeon on Tuesday, the high court said that if he had brought his case in any of the other 49 states he would have lost, but Alaska is the exception to the rule because of ANILCA. That act, Justice Elena Kagan said in writing the court's 46-page opinion, essentially placed rivers outside the National Park System even if they flowed through a unit of that system.
Section 103(c), the justice noted, was inserted into ANILCA to protect private property owners, Native corporations, and the state of Alaska. The Park Service boundary lines drawn by ANILCA "followed the area’s 'natural features,' rather than (as customary) the Federal Government’s property holdings. The borders thus took in immense tracts owned by the State, Native Corporations, and private individuals. And as you might imagine, none of those parties was eager to have its lands newly regulated as national parks. To the contrary, all of them wanted to preserve the regulatory status quo—to prevent ANILCA’s maps from subjecting their properties to the Park Service’s rules. Hence arose Section 103(c)."
Section 103(c) specifically placed rivers outside of the parks, at least jurisdictionally, wrote Justice Kagan. And as they are considered to be outside the parks, the Park Service cannot regulate them, she noted.
"Park Service regulations—like the hovercraft rule—do not apply to non-public lands in Alaska even when those lands lie within national parks. Section 103(c) 'deem[s]' those lands outside the parks and in so doing deprives the Service of regulatory authority," Justice Kagan wrote.
While Justice Sotomayor, joined by Justice Ruth Bader Ginsburg, agreed with the decision, she pointed out the regulatory folly created by Section 103(c).
"Many of Alaska’s navigable rivers course directly through the heart of protected parks, monuments, and preserves. A decision that leaves the Service with no authority, or only highly constrained authority, over those rivers would undercut Congress’ clear expectations in enacting ANILCA and could have exceedingly damaging consequences," wrote Justice Sotomayor. "In light of the explicit instructions throughout ANILCA that the Service must regulate and protect rivers in Alaska, I am convinced that Congress intended the Service to possess meaningful authority over those rivers.
"If I am correct, Congress can and should clarify the broad scope of the Service’s authority over Alaska’s navigable waters."
Comments
1. The "submerged lands rule" providing lands under river to state ownership applies to navigable rivers only.
2. To reach her opinion, Justice Kagan had to ignore the plain language of the law in subsection 103(c) of the Alaska Lands Act (ANILCA). That portion of the subsection reads: "No lands which, before, on, or after the date of enactment of this Act, are conveyed to the State, or to any Native Corporation, or to any private party shall be subject to the regulations applicable SOLELY [emphasis added] to public lands within such units."
In other words, if an NPS regulation is intended to apply to additional lands within the boundary that are not "public lands" then the regulation DOES apply. Logically. But Justice Kagan instead said that this word could not mean what it says, giving as evidence that no regulations on the NPS books apply only to public lands. She says, as you do Kurt, that this is part of Alaska being "different." In fact, she is wrong about the regulations never applying only to "public lands." For example concessions rules and the issuing of concessions apply only to park lands. So she is wrong that "solely" does not mean what it says.
The United States, under the Property Clause or the Commerce Clause of the Constitution has authority to regulate private and state lands, and does it all the time. The US has criminal laws that apply to private and state land. The US has environmental laws, such as the laws of the US Army Corps of Engineers, that apply to private and state lands. So the plain meaning of the text, distinguishing between regulations deliberately applying to lands the United States has title to and those intended to also include lands the State of Alaska has title to, makes perfect sense.
3. Justice Kagan's narration of the history of section 103 of Public Law 96-487 is wrong, or so generalized as to miss the main point. The Traveler recounts Justice Kagan's history uncritically.
The exclusion in subsection 103(c), "solely" was not to exempt Alaska from normal rules. At the time the Alaskan Congressional Delegation was effective in subcommittee in convincing the subcommittee Chair -- who insisted that no new federal restrictions on private land would be created by his bill, H.R. 39 -- that in the future through inadvertence federal agencies would/could gradually apply some new rules that would compromise this promise that the Federal Government was not creating shadow restrictions. Therefore, the subsection made the point that rules that were intended to apply SOLELY to public lands, only apply to public lands.
Elsewhere in the ANILCA, the Alaska Lands Act, when the Congress was trying to make clear it was making new law, the Congress wrote "notwithstanding any other law." For example, in the same law, in section 1110(b) -- also an access clause, access to inholdings -- the Congress wrote "Notwithstanding any other provisions of this Act or other law, in any case in which State owned or privately owned land. . .the State or owner . . .shall be given such rights as may be necessary. . ." to assure economic access to the land they own. The Congress does not do this for 103(c). In other words, other laws do apply. And those laws include the basic Federal authority as sovereign to make regulations. Even this sweeping access of section 1110(b) is subject to "reasonable regulations" for a landowner. It makes more sense that regulations would apply to recreation users.
4. This is a unanimous decision. At a time of vivid politicizing of the courts. Unlike the times -- at least as difficult as ours but with people of greater character -- during the Warren Court when historically significant decisions like Brown v Board of Education went through, they were Unanimous. Contrast that to Bush v Gore which this radical court split along party lines, not representing the sort of national consensus the proper governing of a nation requires.
But here, the great exception for this Court, we have a Unanimous decision.
My guess is this means Chief Justice Roberts in assigning this case to Kagan, decided with Kagan that if he had let one of the radicals write the Opinion, we would have seen a 5-4 split on a very much more destructive Opinion -- as Justice Sotomayor telegraphs -- than the Opinion Kagan wrote.
In other words, in exchange for the Court not totally undermining the authority of the National Park Service to accomplish the directives elsewhere in this Law, Kagan agreed to swing all the liberal justices her way to this more moderate Opinion, with Sotomayor and Ginsburg explaining that Congress has the authority to retrieve for the NPS the authority the park's require.
Just a guess.
5. The Traveler says subsection 103(c) created regulatory "folly."
This is a stretch.
It is only "folly" if the law in that subsection did NOT turn on the word in plain English : "solely." But 'solely' IS in the law. The folly is the Court irrationally declaring that the clear intent of Congress in Title II to protect "rivers" as it says over and over again can be eliminated by denying the plain meaning of a commonly used word.
6. In this decision, and in the narration being foisted on us by Alaskan politicians and this Administration keeps harping on "Alaska is different." Implying that there are no rules. Implying, for example that exterminating wolf puppies or bear cubs in dens is "sport hunting." But that is wrong. Every difference intended by the Alaska Lands Act can be found IN THE ACT. For example, unlike the lower 48, the opportunity for subsistence hunting and fishing is permitted in all the parklands but one added to the System in this 1980 law. But the Court or this Administration that argued this case on 'behalf' of the National Park Service should not make up additonal 'differences' not part of the carefully balanced provisions of ANILCA.
7. But now Kagan's extraordinary Unanimous Opinion IS the law of the land. We probably should thank Kagan and Roberts for not allowing all federal authority to be consumed whole by the avaricious forces consuming our heritage these days. And, if we understand what Kagan wrote, it does not go as far as the Traveler does, because it only applies to NAVIGABLE rivers (who needs a hovercraft on a Navigable River?).
So we should count our blessings and carefully document damage and threats to the park's by the management vacuum created by this illustrious Court, and make the case, in better times, for the preservation and protection for lands unlike any others.
Basically if you can't even get Ginsburg on your side, there is no case!
This is an asinine ruling. To say that Congress had no intent that the NPS regulate navigable waters within their Alaska units is to ignore the plain language of ANILCA, not to mention the name(s) of the units themselves. If Congress hadn't wanted the NPS to have regulatory and mangement authority over the Yukon and Charley Rivers in the unit, it wouldn't have named the unit "Yukon-Charley Rivers..."