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Hovercraft Moose Hunting: Never Mind, It’s Fine.

I previously wrote about the saga of John Sturgeon, the hunter from Alaska who was told to literally pound sand after he attempted to access moose hunting grounds on his hovercraft. You can read that post HERE.

To recap, the saga of John Sturgeon is a fight about who owns and can regulate the Nation River in Alaska under the Alaska National Interest Lands Conservation Act (“ANILCA”). ANILCA is also discussed in depth in my previous post and I cannot promise my summary of it is entirely accurate. Even SCOTUS has difficulty understanding that law.

After the National Park Service ejected John from the Nation River for purportedly violating the National Park Service’s ban on hovercrafts, John began his twelve (12) year legal battle to vindicate the rights of hovercrafting Moose hunters in Alaska. And he won. Sturgeon v. Frost, 587. U.S. ___, 139 S. Ct. 1066 (March 26, 2019).


When we last left John, the Ninth Circuit had determined that the Nation River qualified as a “public land” under ANILCA because the federal government had an “interest” in the running water under the “reserved water rights” doctrine. Sturgeon v. Frost, 872 F.3d 927 (9th Cir. 2017). SCOTUS disagreed.

SCOTUS found that reserved water rights do not give “title” to water rights. Sturgeon, 139 S. Ct. at 1079. Because the reserved water doctrine does not grant the federal government “title,” the federal government does not own an interest in the waters of the Nation River. Id.

Even if it did, SCOTUS pointed out that a reserved water right is a limited right that only allows the federal government to “take or maintain a specific amount of water” necessary to fulfill the purpose for which the government is regulating the adjacent land. Id. It does not give the federal government the right to enact laws regulating the use of that water in general. Id. This means that the federal government can take water from the Nation River to support the adjacent wildlife preserve, but it cannot enforce its general hovercraft ban on the Nation River.

Which means John is now, finally, free to hovercraft to moose-land.


The moral of the saga of John Sturgeon is that if at first you don’t succeed, sue everybody for twelve years.

Just kidding. That is a terrible moral. The actual moral is to never stop fighting for what you believe in, even if it really, really annoys the Ninth Circuit.

Dem Bones: Murray v. BEJ Minerals

In 2006, on a hot day in Hell Creek, Montana, the Dinosaur Cowboy stumbled upon the remains of a theropod (maybe a T. Rex) and a ceratopsian (maybe a triceratops) engaged in mortal combat.  While it cannot be known for certain which may have had the upper hand, both lost as they are now dead and preserved in mortal combat for time immemorial. 

            Aside from being one of the largest scientific discoveries in modern times, the Dueling Dinosaurs also raised an interesting legal question:  Who owns them? According to the Ninth Circuit, whoever owns the mineral rights to the land.  Murray v. BEJ Minerals, LLC, 908 F.3d 437 (9th Cir. 2018). 


The answer to the Dueling Dinosaur’s ownership should be simple because fossils found on private land typically belong to the landowner.  When the Dueling Dinosaurs were discovered, Hell Creek was owned by Lige and Mary Ann Murray.  Id. at 439.

The issue regarding the Dueling Dinosaurs arose because the Murrays had purchased Hell Creek one year earlier from Jerry and Robert Severson.  The Seversons sold the Murrays Hell Creek (a ranch), and one-third of the mineral rights in Hell Creek, but reserved the remaining two-thirds mineral rights in themselves.  Id.

Mineral rights and land rights work like this:  If you own the land, you can do whatever you want with it (within the bounds of the law).  If you find gold on your land, you presumably own that too unless someone else owns the “mineral” rights, i.e., the right to extract and sell gold from your land. 

So, the question of who owns the Dueling Dinosaurs boiled down to one simple question:  Are dinosaur fossils “minerals?”


The district court found that dinosaur fossils are not “minerals” because dinosaurs were once living, breathing animals and their fossils are not mined or subject to traditional methods of extraction as most other traditional minerals.  Id. at 441.  However, the Seversons argued, and the Ninth Circuit agreed, that all minerals are the product of decomposed plant matter.  Id. at 443.  Furthermore, most fossils are sold for economic gain, the same as traditional minerals like gold, silver and oil.  Id. at 443-44.  The Ninth Circuit also found that prior editions of Black’s Law Dictionary defined “minerals” to include fossils.  Id. at 444.

Reasoning that reliance on dictionary definitions, alone, of the phrase “mineral” would be insufficient since everything on the earth could plausibly fall within those definitions, the Ninth Circuit looked to Montana precedent on how Montana defines a mineral.  Id. It found that Montana determines whether something qualifies a “mineral” under Montana law by asking whether it is “rare and exceptional in character or possesses a peculiar property giving it special value.”  Id.  

The Ninth Circuit found that the Dueling Dinosaurs are unquestionably “minerals” under this definition because they were worth millions, and are among one of the largest scientific fossil finds in recent history.  We all know dinosaurs must have fought, but these are the first fossils to preserve a fight in the fossil record.  Id. at 445-47.

Therefore, according to the Ninth Circuit, the Seversons own 2/3 of the Dueling Dinosaurs and the Murrays own 1/3.   

Now, if we could just find fossil evidence of dinosaur’s skin, because I have not completely ruled out the possibility that they might have been covered in blue hair. 

This Just In: Monkeys Cannot Sue Humans

You might want to sit down for what I am about to write: According to the Ninth Circuit, monkeys cannot sue humans for copyright infringement.  Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018).

A “copyright” protects printed work (photos, books, etc.).  Even though monkeys have opposable thumbs and can, arguably, create printed work capable of being copyrighted, they can’t sue humans for copyright infringement.  Id. at 426.


In 2004, the Ninth Circuit issued the opinion Cetacean Community v. Bush, 386 F.3d 1169, and has regretted it ever since.

In Cetacean, an attorney appointed himself to represent “all of the world’s whales, porpoises, dolphins (the “Cetaceans”)” for injuries they allegedly sustained from the Navy’s sonar systems.  Id. at 1171.  To sue anyone in federal court, you need what we call “Article III” standing.  “Article III” standing comes from the United States Constitution, and requires you to prove that you have actually been injured, either physically, or by having some judicially recognizable right impaired. Because the Cetaceans were, maybe, actually physically injured by sonar systems, the Ninth Circuit reluctantly agreed that these poor dolphins might have Article III standing.  But they still couldn’t sue humans under the statutory scheme their claims were brought under.  Id.


Naruto is monkey who (probably) still lives on a reserve in Indonesia.  He became famous for taking “selfies” of himself on a camera that a wildlife photographer, David Slater, left unattended.  Slater published the Monkey Selfies in a book.

So, obviously, PETA sued Slater.

PETA sued Slater for copyright infringement since Slater admitted that Naruto took the photos.  PETA brought the lawsuit as a “next friend” of Naruto’s, which is fancy legal term for someone who asserts another’s legal rights for them because they cannot assert the rights themselves.  See Coalition of Clergy v. Bush, 310 F.3d 1153, 1159-60 (9th Cir. 2002).


The Ninth Circuit immediately rejected PETA’s attempt to stand as “next friend” to Naruto.  A “next friend” has to show the existence of some “significant relationship” between the two.  Naruto, 888 F.3d at 421.  PETA failed to show that it had even met Naruto, and, even if could have, there is no statute which allows “next friends” to represent animals in federal court.  Id. at 422-23.

But PETA’s failure as a “friend” does not end there.  The Ninth Circuit was not amused by PETA’s attempt to “settle” the case without dismissing Naruto’s claims but still requiring Slater pay a portion of the proceeds from his book to miscellaneous charities:

But now, in the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed ‘friend’ having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests.  Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own.  Puzzlingly, while representing to the world that ‘animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way,’ see PETA, . . . PETA seems to employ Naruto as an unwitting pawn in its ideological goals.

Id. at 421, n.3.

The concurring opinion by Judge Smith further elaborated on the issues inherent with “next friend” representation of animals.  As Judge Smith notes, this would allow various parties “to bring suit on behalf of those animals  or objects with no means or manner to ensure that the animals’ interests are truly being expressed or advanced.”  Animals do not speak our language; therefore, how can a “next friend” truly know “whether animals or objects wish to own copyrights or open bank accounts to hold their royalties from sales of pictures.”  Id.  at 432.

Even more alarming is the natural consequence of allowing animals to sue:  If they can hold humans accountable for civil wrongs, can we hold them accountable for other civil infractions?  “Are animals capable of shouldering the burden of paying taxes? . . . Should animals be liable for intentional torts as well?”  Id. at 432, n.6.


Having disposed of PETA and its “next friend” status, the Ninth Circuit tackled the next possible approach a self-serving animal “friend” could take:  Self-appointing themselves as the lawyer and representing Naruto directly as the “client.”  This is what happened in Cetaceans. The dolphins did not have a “next friend.”  They just had some attorney with too much time on his hands.

Federal jurisdiction is limited, which means that federal courts only get to hear the specific cases from the specific plaintiffs that Congress specifically allows them to consider in a statute.  So, the Ninth Circuit looked to the Copyright Act to see if monkeys can use humans.

Shockingly, Congress has not specifically stated that monkeys can sue humans for copyright infringement.  (I KNOW.  What’s the point of opposable thumbs if you can’t protect what you create with them?!).

Therefore, the Ninth Circuit held that monkeys can’t sue humans for copyright infringement.  Id. at 425-26.


Nothing.  This case will probably never have any relevancy to your life, unless you have a habit of encountering litigious wildlife.

However, the Ninth Circuit is desperately hoping that someone, somewhere, will take the issue of animal standing to sue humans up to the Supreme Court so that they can finally stop having to admit that, yes, they issued Cetaceans, yes, the “plaintiff” was every whale and dolphin in the entire world, and yes, maybe they did, sort of, somewhat say that every whale and dolphin has Article III standing to possibly sue a human.


Hovercraft Moose Hunting: Apparently, It’s Not Okay.

This is the saga of John Sturgeon, the empty-handed moose hunter from Alaska.  He wanted to use his hovercraft on the Nation River to reach “moose meadows.” The State of Alaska was totally cool with it, but the National Park Service rangers told John to literally pound sand and get his hovercraft off the river.   Can the rangers do that?  According to the Ninth Circuit, absolutely.

Sometimes You Own the River, Sometimes You Just Own the Riverbed

The Saga of John Sturgeon is a fight about who owns and can regulate the Nation River in Alaska.  In 1953, Congress passed the Submerged Lands Act, which gave title to the “lands” beneath “navigable waters” to the state in which the waterway was located.  43 U.S. 1301 et seq.  “Navigable waters” are waterways that can be used for interstate or foreign commerce, or national defense (i.e., rivers, big lakes, oceans, etc.).   The “lands” underneath the navigable waters are, obviously, the river and lakebeds. Alaska took title to the Nation River’s riverbed when it was admitted as a state.  Alaska v. United States, 201 F.3d 1154, 1160 (9th Cir. 2000).

Owning a riverbed is not the same as owning a river.  Although the Submerged Lands Act gave the riverbed to Alaska, the federal government kept its “navigational servitude” rights in the river water itself.  43 U.S.C. 1314(a).  “Navigational servitude” is a fancy way of saying that the federal government kept the right to regulate navigable waters for commerce, national defense, etc.

President Carter Made a Bunch of Alaskans Really Mad

The debate over ownership of the Nation River exists because of the Alaska National Interest Lands Conservation Act (“ANILCA”).  In the 1970’s, President Carter got mad at Congress for refusing to approve conservation areas in Alaska.  I do not know why Congress refused to approve the conservation areas.  It probably had something to do with money or taxes.  Anyway, since Congress would not approve conservation areas, President Carter issued a presidential proclamation (i.e., an executive order similar to the ones Trump has issued on travel, discussed here) that set aside 56 million acres of Alaska land as federal monuments.  One of Carter’s reasons for creating the federal monuments was to protect the natural habitats of wild Alaskan animals like, you guessed it, the moose.

One of the monuments he created was what is now known as the Yukon-Charley Preserve, in which the Nation River is located.  Carter’s proclamation specifically reserved the water necessary to protect the Yukon-Charley basin in its natural, undeveloped condition to benefit the moose and other wildlife on the basin.

He may have meant to help the moose, but what Carter actually did was make a bunch of Alaskans really mad.  His proclamation resulted in the Great Denali-McKinley Trespass protest.  Over 2,500 Alaskans showed up at national parks to shoot guns, light stuff on fire, set their dogs amok and break as many other National Park Service regulations as possible within 48 hours.

To ease tensions, Congress passed ANILCA which ended Carter’s proclamations but still set aside about 104 million acres of land in Alaska for preservation.  16 U.S.C. 3101, et seq. Congress allowed Alaskans to use the land set aside for activities which have been historically important to Alaska – i.e., activities like snowmobiling, hunting and fishing.  Everybody won.  Carter got his conservation areas, Alaskans got to keep doing what Alaskans do, and Congress did not have to worry about the PR nightmare created by angry Alaskans with guns showing up at national parks and lighting stuff on fire.

One of the areas of land set aside under ANILCA was the Yukon-Charley river basin. The Nation River is a tributary that feeds into the basin.

A Very Simple and Probably Incomplete Explanation of How ANILCA Works 

The Great Denali-McKinley Trespass sent a clear message to Congress:  Alaska was not like other states and could not be regulated the same.   Rather than draw strict boundary lines for what would be federal land under ANILCA, Congress created “conservation units.”  16 U.S.C.  3102(4). The conservation unit boundaries are not determined by land ownership, but by geographical areas containing complete ecosystems, habitats or waterways.  This resulted in privately owned land being placed into ANILCA’s conservation units.

Under ANILCA, National Park Service regulations only apply to “public lands” within the conservation units.  16 U.S.C. 3103(c). “Public lands” are defined as “land” the United States owns.  “Land” is defined to include waters and interests in waters.  16 U.S.C. 3102(1).  So, under ANILCA, National Park Service Regulations do not apply to privately owned land.

The Saga of John Sturgeon is, therefore, a fight about whether the Nation River is a public land subject to ANILCA.

Along Comes Katie John

The question of whether the Nation River is subject to ANILCA was first addressed by the Ninth Circuit in a series of three related appeals – the Katie John cases.

In Katie John I, (Alaska v. Babbitt), the Ninth Circuit held that the “navigational servitude” I talked about above did not render river water a public land under ANILCA because the United States did not own the water.  72 F.3d 698 (1995).  However, river water could still be a public land under ANILCA if the United States reserved an interest in the water on the land it pulled into the conservation units.  Applying the reserved water rights doctrine, the Ninth Circuit found that the United States did retain an interest in these waters.

Whenever the federal government preserves land that has water on it, the reserved water rights doctrine kicks in.  Under the doctrine, all water necessary to accomplish the purpose for which the land is being preserved is impliedly reserved for the federal government (except for the water which already belongs to a private party).  Thus, the Ninth Circuit held that the definition of public lands under ANILCA includes the navigable waters that the United States has an interest in under the reserved water rights doctrine.  Katie John II upheld this decision.  247 F.3d 1032 (9th Cir. 2001).

In Katie John III, the Ninth Circuit addressed the question of whether waterways located on private land in the conservation units are subject to ANILCA.  720 F.3d 1214 (9th Cir. 2013).    The Ninth Circuit held that they were.  Water does not tend to stay in one location, and the Ninth Circuit reasoned that the purposes underlying ANILCA could only be served if the phrase “public lands” was interpreted to include waters which flowed into private property adjacent to federal land.  Furthermore, under the reserved water rights doctrine, the United States’ interest in the water was not tied to any one physical location.  Although the riverbeds may have been granted to a private party, the United States still retained an interest in the waters themselves and could properly regulate them under ANILCA.

The Saga of John Sturgeon

The Saga of John Sturgeon is the latest debate over whether federal regulations apply to the Nation River under ANILCA.

John Sturgeon is a guy who really likes to hunt moose in the Yukon-Charley Preserve area of Alaska.  Since 1990, he had been using a hovercraft to get up the Nation River, a tributary to the Yukon River, to hunt moose in “Moose Meadows.”

One fateful day in 2007, John’s hovercraft ran aground on a sand bar.  Adding insult to injury, John was then approached by three National Park Service Rangers who informed him that he could not use a hovercraft on the Nation River.  Hovercrafts are banned on all waterways regulated by the National Park Service, nationwide.  36 C.F.R. 1.2(b).  I do not know how John got back down the Nation River, but I’m pretty sure it was not by hovercraft.

John sued the National Park Service and argued that the federal regulations prohibiting hovercrafts did not apply to the Nation River because the river was on land owned by Alaska.  Thus, the Nation River was not public land subject to ANILCA’s and the National Park Service’s regulations.  Sturgeon v. Masica, 768 F.3d 1066 (9th Cir. 2014).

The Ninth Circuit disagreed.  Without reaching the issue of whether the Nation River was a public land subject to ANILCA, the Ninth Circuit found that Nation River is a navigable waterway subject to federal law generally.  Because the National Park Service can regulate all navigable waterways in the United States, the Ninth Circuit held that the nationwide hovercraft ban applied to the Nation River regardless of who owned the riverbed.

Two years later, the United States Supreme Court overturned the Ninth Circuit decision.  Sturgeon v. Frost, 138 S. Ct. 1061, 194 L.Ed.2d 108 (2016).  The Supreme Court not-so-gently reminded the Ninth Circuit that “Alaska is different.”   The Alaskans who protested for the right to hunt, fish and snowmobile on federal preserve land are the reason why ANILCA exists.  When the land at issue falls in an ANILCA conservation unit, a determination of what federal regulations apply to the land must be decided under ANILCA and not under general federal law.  Because ANILCA regulations only apply to navigable waters that are also “public lands,” the Supreme Court sent the case back to the Ninth Circuit to determine whether the Nation River is a “public land” under ANILCA.

Unfortunately for John Sturgeon, the Ninth Circuit found that that Nation River is a public land under ANILCA.  Sturgeon v. Frost, 872 F.3d 927 (9th Cir. 2017).  Relying on the Katie John cases, the Ninth Circuit found that the United States had reserved water rights in the Nation River.  Because ANILCA applies to both land and interests in land, and “land” includes “water,” the Ninth Circuit found that the Nation River was a “public land” subject to ANILCA.  Therefore, the hovercraft ban applies to the Nation River.

The Saga of John Sturgeon is not over yet.   On January 5, 2018, John filed a writ with the United States Supreme Court challenging the Ninth Circuit’s decision.  Only time and nine Supreme Court Justices will be able to answer the question of whether hovercraft moose hunting really is okay.