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.