This is the first in a series of articles about a Supreme Court decision that muddies the waters for agencies managing the use of navigable rivers and streams on federal lands like national parks in Alaska. You can find part 2 of the series here: Dunleavy’s bogus “Unlock Alaska” initiative.
By Lauren Sherman, legal fellow; and Katie Strong, senior staff attorney
You might have heard Governor Dunleavy recently announce the “Unlock Alaska” initiative. Through it, he basically dares federal agencies to regulate any waterway running through federal lands, and encourages Alaska citizens to flout federal regulations.
This is political posturing, for sure, a flawed interpretation of the State’s authority, and a bizarre attempt at a power grab certain to lead to extensive litigation.
We’ll talk more about the initiative’s flaws next month and what it may mean for our work, but first we need to pause and reflect back on a case Trustees worked on for years–a case that is part of the undercurrent of Dunleavy’s initiative. Unfortunately, the story doesn’t end well: we lost, and the full impact of that loss is only starting to become clear.
Paddle, hike, hunt, enjoy, but please no hovercrafts
The story starts with National Park Service enforcement officers citing John Sturgeon for taking his hovercraft into the Yukon-Charley Rivers National Preserve. Hovercraft make a lot of noise. They disturb wildlife. They can go where traditional boats cannot, and do harm to river life and health. Park Service prohibits hovercraft within parks and preserves throughout the country.
Sturgeon sued the Park Service, arguing that the agency in charge of overseeing the preserve had no authority on navigable waters within the preserve. Part of his argument rests on the ownership of submerged lands: upon entering the United States, all states gain title to the lands underneath navigable waters to hold in trust.
Courts across the country have uniformly held that federal land management agencies like the Park Service could regulate activities on navigable waters regardless of ownership of submerged lands. The courts have repeatedly determined that the agencies must have the authority to regulate navigable waters in order to achieve Congress’ purposes in setting aside those lands in the first place. Given this precedent and the compelling underlying reasoning, Sturgeon’s case seemed unlikely to succeed.
Things are about to get messy
Then the U.S. Supreme Court bought into Sturgeon’s argument that a provision of the Alaska National Interest Lands Conservation Act—added at the last moment and intended only to offer assurances that the Park Service would not regulate inholdings as if they were park lands—demonstrated congressional intent to prevent the Park Service (and other federal agencies) from regulating activities on navigable waters where the state owns the submerged lands.
We think this decision was poorly made and fundamentally wrong, but it is—currently–the law. We also think that the decision raised more questions than it answered.
For example, the Court specifically said that it was not addressing either the management of subsistence fishing or Wild and Scenic Rivers, and that—on those issues—the Court might reach a different conclusion. But the legal reasoning underlying the Court’s decision regarding the hovercraft regulation make it difficult to understand how the Court actually would make such distinctions and how the agency should proceed.
And this tension is already playing out: last summer, the Park Service enacted regulations implementing the Sturgeon decision that lessen protections for Wild and Scenic Rivers. That seems to be outside the scope of the Court’s ruling, so it is unclear what the full ramifications will be of the Sturgeon decision. What is clear is that the case will continue to have far reaching consequences for all national parks and preserves, national wildlife refuges, designated Wilderness areas, Wild and Scenic Rivers, and other Alaska landscapes.
Next month, we’ll explain the Governor’s new initiative and how the Court’s Sturgeon decision does — and doesn’t — support the State’s posturing.