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State urges high court to overturn waterways decision

February 9th 7:14 pm | Shady Grove Oliver Print this article   Email this article  

The state is urging the U.S. Supreme Court to once again hear a case, the outcome of which could have widespread ramifications for land use across Alaska.

The case in question pits an Alaska resident against the National Park Service over the ownership and use of waterways in the state. The resident in question is John Sturgeon, who was cited more than 10 years ago by the park service for using a hovercraft to go moose hunting in the Yukon-Charley Rivers National Preserve. At the time, Sturgeon hired a legal team and took the service to court over the citation, claiming the organization had overstepped its bounds in an area it didn't oversee.

Initially, the lower court ruled in favor of the park service. Sturgeon and his supporters took the case before the high court. They heard it and sent it back to the 9th U.S. Circuit Court of Appeals for further review, calling into question the initial decision but not making a ruling themselves. The appeals court reviewed it over and once again, sided with the park service. That brings the case to this year.

On Feb. 5, the state filed an amicus brief, or "friend of the court" brief (reserved for entities not party to the actual lawsuit) in support of Sturgeon. It called on the Supreme Court to review the most recent decision issued by the appeals court.

"Last time Mr. Sturgeon went before the U.S. Supreme Court, the Court sent a very clear message to the Ninth Circuit - you must take Alaska's unique statutes and history into account," said Alaska Attorney General Jahna Lindemuth in a release. "Instead, the Ninth Circuit completely ignored the Supreme Court's guidance and expanded a federal doctrine on reserved water rights far beyond its ordinary and reasonable meaning."

The case has been on the radar of Native corporations, interest groups and local leadership across the state for many years.

As the Sounder previously reported in 2016, Arctic Slope Regional Corp., like the state, took a stand in support of Sturgeon, citing concerns about federal overreach and provisions outlined in the Alaska National Interest Lands Conservation Act (ANILCA).

"This case clearly shines the spotlight on a promise from the federal government that wasn't kept," said ASRC President and CEO Rex Rock Sr. at the time. The corporation did not respond to a recent query about the state's brief by deadline.

The Sturgeon case is a multifaceted story that delves into the very heart of land rights in Alaska, which is a complicated subject at the best of times.

When Sturgeon was issued the citation by park service employees so many years ago, he was repairing his hovercraft on a gravel bar in the Nation River. Hovercraft use is banned by the park service both in-state and in the Lower 48.

State law allows hovercraft in its waterways, however, which is the crux of the issue.

The place in which he was cited is located within a Conservation System Unit (CSU), one of many comprising more than 100 million acres across the state. CSUs were set aside as federal reserve lands in 1980 under ANILCA.

"The problem with that was, in drafting the boundaries of the CSUs, the boundaries encapsulated 18 million acres of private and state land," ASRC Senior Corporate Counsel Chun Jang told the Sounder in 2016. "Congress went out of its way to establish in ANILCA that these lands that were encapsulated by the CSUs that belonged to the Native corporations and the state were not part of the CSUs and not part of the regulations of the CSUs and it said that over and over again."

Sturgeon's supporters argue that all riverbeds fall under the ownership of the state of Alaska, making them part of that "private and state land" Jang refers to.

So, while Sturgeon was on the Nation River, within the boundaries of a national preserve (which is federal) and a CSU area that also typically would fall under federal management and law, the fact that he was on a riverbed (under state control) "encapsulated" by a CSU should mean the area would not fall under federal regulations, his supporters say. They believe state regulations should take precedence, meaning hovercraft use would be allowed.

Under section 103(c) of ANILCA, the park service has oversight of solely "public lands" within Alaska's CSUs. "Non-public lands" are not beholden to regulations "applicable solely to public lands within such units."

When the 9th Circuit Court put forward its first decision siding with the park service, it claimed the hovercraft ban could be enforced in the preserve because it was a national ban, therefore not "solely" applicable to the Alaska park itself.

The Supreme Court questioned what they called the appeals court's "topsy-turvy approach" to the case, saying the court failed to take into consideration the intended purpose of ANILCA — to highlight the ways in which Alaska is the exception to the rule.

In October, the appeals court stayed true to its first decision, maintaining waterways within Alaska's CSUs are "public lands" as defined by ANILCA and therefore under federal control. In its decision, the court cited the federal reserved water rights doctrine.

It states that the U.S. may set aside lands for federal use and when it does, waters within are reserved for that use. By that logic, the court implied the Yukon-Charley preserve and its CSUs, being lands reserved by the U.S. for conservation, include their waterways, like the Nation River in question. That would put management in federal hands.

"Time and again we see that big cases often begin with little disputes. On its face, Sturgeon v. Frost is a simple case about whether the National Park Service may prohibit John Sturgeon from using his hovercraft on waters within the Yukon-Charley Rivers National Preserve in Alaska," wrote Matthew J. Sanders in coverage of the case for the American Bar Association's Trends newsletter on environment, energy and resources. "But following the Ninth Circuit's latest decision in the case, issued in October 2017 after a remand from the Supreme Court, Sturgeon may come to define the nature and reach of the federal government's authority over waters in and beyond Alaska."

If the Supreme Court agrees to hear the case again and upholds the current appeals court decision in favor of the park service, it could call into question state management of hundreds of miles of waterways across Alaska, along with the strength of ANILCA's provisions, which make up the foundation of state and Native corporation land use in Alaska.

In a nutshell, that's why a simple boating citation has become the land rights timebomb it is now.

The high court has not yet made a decision whether or not it will consider the case once again.

 

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