Sturgeon v. Masica et al

Filing 108

DECISION: The court concludes that 36 C.F.R. § 1.2(a), §§ 2.17(e) and 2.17(a)(3) were properly applied to the respective operations of Sturgeon and the State. Plf's cmplt dism w/prej. Intervenor the State of Alaska's 2nd amended cmplt is dism w/prej. The clerk of court shall enter judgment accordingly. Signed by Judge H. Russel Holland on 10/30/13. (PRR, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

JOHN STURGEON,

)
)
Plaintiff, )
)
and
)
)
STATE OF ALASKA,
)
)
Plaintiff-Intervenor, )
)
vs.
)
)
SUE MASICA, et al.,
)
)
Defendants. )
___________________________________)

No. 3:11-cv-0183-HRH

DECISION
I.

Procedural History.

In this action brought pursuant to

the Administrative Procedure Act, 5 U.S.C. §§ 701-06, plaintiff
John Sturgeon and plaintiff-intervenor the State of Alaska bring
“as-applied” challenges to National Park Service (“NPS”) regulations.

Sturgeon and the State have timely filed their opening

summary judgment briefs,1 to which defendants have responded.2
Sturgeon and the State timely filed their reply briefs3 and defen-

1

Docket Nos. 77 & 81.

2

Docket No. 84.

3

Docket Nos. 97 & 98.

DECISION

- 1 -

dants4 have timely filed their sur-reply5 as contemplated by the
court’s scheduling order.6

Oral argument has been heard.

On September 14, 2011, Sturgeon commenced this action.

In

Count I of his complaint, he seeks a declaration that the application of NPS regulations on lands belonging to the State of Alaska
that are within NPS conservation system units created or expanded
by the Alaska Native Lands Conservation Act (herein “ANILCA”) are
void as applied to him.7

In Count II of his complaint, Sturgeon

seeks a declaration that “any regulations purporting to authorize
the NPS to enforce regulations which are solely applicable to
public lands within conservation units on lands owned by the State
of Alaska, including navigable waters, within NPS conservation
units created or expanded by ANILCA are void.”8

In Count III,

Sturgeon requests an order enjoining defendants “from interfering
with [his] operation of his hovercraft on state-owned navigable
waters within the Yukon-Charley” Rivers National Preserve (herein
“Yukon-Charley”).9
defendants

“from

In Count IV, he requests an order enjoining
enforcing

NPS

regulations,

which

are

solely

applicable to public lands within federal conservation system

4

Defendants are Sue Masica, Greg Dudgeon, Andee Sears,
Jonathan Jarvis, the National Park Service, Sally Jewel, and the
United States Department of the Interior.
5

Docket No. 101.

6

Docket No. 74 at 2.

7

Complaint for Declaratory Judgment and Injunctive Relief at
14-15, ¶ 46, Docket No. 1.
8

Id. at 16, ¶ 51.

9

Id. at 17, ¶ 55.

DECISION

- 2 -

units, on lands belonging to the State of Alaska, including navigable waters, within the boundaries of NPS conservation units in
Alaska that were created or expanded by ANILCA.”10
In its second amended complaint in intervention,11 the State
asserted four claims for relief.

The State’s first claim for

relief was a facial challenge to the regulations in question.12

In

its second claim for relief, the State seeks a declaration that the
application and enforcement of 36 C.F.R § 1.2(a)(3) and § 13.2
violates § 103(c) of ANILCA.13

In its third claim for relief, the

State seeks a declaration that the Secretary’s denial of the
State’s petition for rule-making was arbitrary and capricious.14
In its fourth claim for relief, the State seeks injunctive relief
prohibiting the application and enforcement of the regulations in
question on State-owned lands and waters.15
By order of September 19, 2012,16 the court rejected the
State’s first claim for relief which was a facial challenge to the
NPS regulations at issue here because that claim was time-barred.
Defendants now contend that both Sturgeon and the State are in fact
bringing facial challenges in the guise of an “as-applied” chal-

10

Id. at 18-19, ¶ 60.

11

Docket No. 45.

12

Id. at 15, ¶¶ 56-57.

13

Id. at 15, ¶¶ 58-59.

14

Id. at 15, ¶¶ 60-63.

15

Id. at 15, ¶¶ 64-65.

16

Docket No. 53.

DECISION

- 3 -

lenge.

Sturgeon and the State have pled as-applied challenges.

The facts upon which Sturgeon and the State rely demonstrate application of NPS regulations to the respective activities of Sturgeon
and the State.

The court will address the as-applied claims.

In their briefing to the court, the State and defendants
briefly discuss whether or not the State is challenging 36 C.F.R.
§ 13.2.17

The court finds no evidence in the record that the defen-

dants applied 36 C.F.R. § 13.2 to the State.

As discussed herein-

after, the principal issue here is the applicability of 36 C.F.R.
§ 1.2 (which regulation addresses the applicability of Title 36,
Part 2, as well as 36 C.F.R. Part 13 regulations) to the conduct of
Sturgeon and the State.
II.

Statutory/Regulatory Background.

A.

Alaska Native Claims Settlement Act.

In 1971, Congress

enacted the Alaska Native Claims Settlement Act (“ANCSA”) for purposes of addressing and resolving outstanding aboriginal claims of
Native Alaskans which began to accrue in 1867 when the United
States purchased Russian-America (Alaska).

In addition to a mone-

tary settlement and the conveyance of some 40 million acres of land
to be divided amongst 220 Native villages and 12 regional corporations, ANCSA created the joint Federal-State Land Use Planning
Commission for Alaska18 and, by § 17(d)(2)(A), made provision for
the withdrawal from public domain 80 million acres of unreserved
17

36 C.F.R. § 13.2 addresses the applicability and scope of the
Part 13 regulations which have application to NPS units in Alaska.
18

43 U.S.C. § 1616. For convenience, we refer in the text of
this discussion to ANCSA and ANILCA sections by statutory number,
with parallel United States Code sections in a footnote.
DECISION

- 4 -

public lands in Alaska for potential addition to or creation of new
units of the national parks, forests, wildlife refuges, and wild
and scenic river systems.19
B.

Alaska National Interest Lands Conservation Act.

Based

upon the work of the Commission, Congress in 1980 enacted ANILCA.
In furtherance of the ANCSA § 17(d)(2)(A) withdrawals, Title II of
ANILCA makes provision for the creation of or additions to the NPS.
Section 201 established new “units of the National Park System
[which] shall be administered by the Secretary under the laws governing the administration of such lands and under the provisions of
this Act[.]”20

Included as a new area was Yukon-Charley, “contain-

ing approximately one million seven hundred and thirteen thousand
acres of public lands, as generally depicted on map numbered
YUCH-90, 008[.]” § 201(10).21 Section 201(10) expressly sets forth
the purposes for this withdrawal, one of which was the maintenance
of the environmental integrity of the Charley River Basin in its
undeveloped, natural condition.
Section 202 of ANILCA22 adds to existing NPS units.23

Included

by § 202(2)24 is an addition to the Katmai National Monument25 of

19

43 U.S.C. § 1616(d)(2)(A).

20

16 U.S.C. § 410hh.

21

16 U.S.C. § 410hh(10).

22

16 U.S.C. § 410hh-1.

23

16 U.S.C. § 410hh-1.

24

16 U.S.C. § 410hh-1(2).

25

Renamed Katmai National Park by § 202(2).

DECISION

- 5 -

1,037,000 acres of public land, to be known as Katmai National
Preserve [“Katmai”]. Katmai is to be administered to protect habitat, including fish populations, and to protect scenic geological,
cultural, and recreational features.

§ 202(2).26

Included in Yukon-Charley are the lower reaches of the Nation
Included in Katmai is the Alagnak River.27

River.

For purposes of the implementation of ANILCA, that act contains definitions which are critical to understanding the act. The
key terms are “land,” “federal land,” and, most important of all,
“public

lands.”

therein.”

“Land”

§ 102(1).28

means

“lands,

waters,

and

interests

“Federal land” means “lands the title to

which is in the United States” after the date of enactment of
ANILCA.

§ 102(2).29

“Public lands” means “land situated in Alaska

which,” after the date of enactment of ANILCA are Federal lands,
except:
land selections of the State of Alaska which
have been tentatively approved or validly selected under the Alaska Statehood Act and
lands which have been confirmed to, validly
selected by, or granted to the Territory of
Alaska of the State under any other provision
of Federal Law.

26

16 U.S.C. § 410hh-1(2).

27

The Alagnak River is also designated by § 601(25) as a wild
and scenic river within the NPS. 16 U.S.C. § 1274(a)(25).
28

16 U.S.C. § 3102(1).

29

16 U.S.C. § 3102(2).

DECISION

- 6 -

§ 102(3)(A).30

Finally, “conservation system unit” is defined to

include the various NPS units addressed by ANILCA.

§ 102(4).31

Yukon-Charley and Katmai are conservation system units for purposes
of ANILCA.
Collapsing the foregoing definitions for ease of discussion of
the circumstances in this case, “public lands” are waters or
interests in waters in Alaska owned by the United States in 1980.
Excluded from public lands are interests in land and/or water
confirmed or granted to the State of Alaska under any federal law.
Somewhat buried in the “maps” section of ANILCA is § 103(c)32
which is at the heart of this litigation:
Only those lands within the boundaries of
any conservation system unit which are public
lands (as such term is defined in this Act)
shall be deemed to be included as a portion of
such unit.
No lands which, before, on, or
after December 2, 1980, are conveyed to the
State, to any Native Corporation, or to any
private party shall be subject to the regulations applicable solely to public lands within
such units. If the State, a Native Corporation or other owner desires to convey any such
lands, the Secretary may acquire such lands in
accordance with applicable law (including this
Act), and any such lands shall become part of
the unit, and be administered accordingly.
C.

National Park Service Administration Improvement Act and

Regulations.
In order to facilitate the administration
of the national park system, the Secretary of
the Interior is authorized, under such terms

30

16 U.S.C. § 3102(3)(A).

31

16 U.S.C. § 3102(4).

32

16 U.S.C. § 3103(c).

DECISION

- 7 -

and conditions as he may deem advisable, to
carry out the following activities:
....
Promulgate and enforce regulations concerning boating and other activities on or
relating to waters located within areas of the
National Park System, including waters subject
to the jurisdiction of the United States:
Provided, That any regulations adopted pursuant to this subsection shall be complementary
to, and not in derogation of, the authority of
the United States Coast Guard to regulate the
use of waters subject to the jurisdiction of
the United States.
16 U.S.C. § 1a-2(h).
Relying

upon

and

in

furtherance

of

the

above

act,

the

Secretary of the Interior had adopted by 1997 the following general
provision of Title 36 of the Code of Federal Regulations for areas
administered by the NPS.

Section 1.233 provides as follows:

Applicability and scope.
(a) The regulations contained in this chapter apply to all persons entering, using,
visiting, or otherwise within:
(1) The boundaries of federally owned lands
and waters administered by the National Park
Service;
....
(3) Waters subject to the jurisdiction of
the United States located within the boundaries of the National Park System, including
navigable waters and areas within their ordinary reach (up to the mean high water line in

33

The parties have discussed at length the history of 36 C.F.R.
§ 1.2. Because this 1997 regulation is clear and unambiguous, and
because the court has before it only as-applied challenges to the
NPS regulations, there is no need to delve into the development of
§ 1.2. It is the interplay between § 1.2 and ANILCA § 103(c) which
is critical to a disposition of this case.
DECISION

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places subject to the ebb and flow of the tide
and up to the ordinary high water mark in
other places) and without regard to the ownership of submerged lands, tidelands, or lowlands;
....
(5) Other lands and waters over which the
United States holds a less-than-fee interest,
to the extent necessary to fulfill the purpose
of the National Park Service administered
interest and compatible with the nonfederal
interest.
(b) The regulations contained in parts 1
through 5, part 7, and part 13 of this chapter
do not apply on non-federally owned lands and
waters or on Indian tribal trust lands located
within National Park System boundaries, except
as provided in paragraph (a) or in regulations
specifically written to be applicable on such
lands and waters.
36 C.F.R. § 1.2(a), (b).
Summarizing the foregoing, subsections (a)(1) through (5) of
§ 1.2 apply to everyone going within the boundaries of all NPS
administered lands in the United States.

Navigable waters within

the boundaries of such lands are subject to regulation, irrespective of ownership of submerged lands.34
The Secretary of the Interior has also promulgated 36 C.F.R.
Part 13, containing regulations applicable to the NPS units in
Alaska.

Section 13.2(a) provides:
The regulations contained in part 13 are
prescribed for the proper use and management
of park areas in Alaska and supplement the
general regulations of this chapter. The general regulations contained in this chapter are
applicable except as modified by part 13.

34

For reasons explained hereinafter, the
§ 1.2(a)(5) do not come into play in this case.
DECISION

provisions

of

- 9 -

36 C.F.R. § 13.2(a).

With respect to park areas, § 13.2(b) pro-

vides:
Subparts A through F contain regulations
applicable to park areas.
Such regulations
amend in part the general regulations contained in this chapter.
The regulations in
subparts A through F govern use and management, including subsistence activities, within
the park areas, except as modified by special
park regulations in subparts H through V.
36 C.F.R. § 13.2(b).
In furtherance of his/her general administrative duties, the
Secretary of the Interior has promulgated specific regulations
which pertain to entries within the boundaries of NPS administered
lands using hovercraft or helicopters.

Title 36, Code of Federal

Regulations, § 2.17(e), provides that “[t]he operation or use of
hovercraft is prohibited.”

Section 2.17(a)(3) provides that the

following is prohibited:
Delivering or retrieving a person or object
by parachute, helicopter, or other airborne
means, except in emergencies involving public
safety or serious property loss, or pursuant
to the terms and conditions of a permit.
36 C.F.R. § 2.17(a)(3).
Part 2 regulations, including § 2.17(a)(3) and (e), are expressly subject to § 1.2(a), as provided by § 1.2(b).
regulations are also subject to § 1.2(a), as provided by

Part 13
§ 1.2(b),

except to the extent that Part 13 regulations modify or amend the
general regulations. Sturgeon and the State have not pointed to,
and the court does not perceive there to be any amendment of the
subparts A through F, Alaska-specific regulations with respect to

DECISION

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park areas.35

Therefore, the regulations specific to the use of

helicopters and hovercraft have application within the boundaries
of Yukon-Charley and Katmai, including the navigable waters of
those NPS administered areas, unless Sturgeon and the State are
correct

in

arguing

that

36

C.F.R.

§

1.2

(and

therefore

§§ 2.17(a)(3) and (e) and Part 13 as well) does not apply within
the boundaries of Yukon-Charley and Katmai because of the provisions of ANILCA § 103(c).36
III. Factual Background. Sturgeon’s complaint and the State’s
second amended complaint in intervention focus upon their respective use of the Nation River and the Alagnak River.

The lower

reaches of the Nation River are within the boundaries of YukonCharley.

The upper reaches of the Alagnak River are within the

boundaries of Katmai.

Both Yukon-Charley and Katmai are national

parks created or expanded by ANILCA §§ 201 and 202.

The Nation

River arises in the Ogilvie Mountains of Yukon Territory, Canada,
near the U.S. border, and flows in a southerly direction into
Alaska and then into the northeastern quadrant of Yukon-Charley
where it ultimately joins the Yukon River. The Alagnak River arises
in the Aleutian Range south of Lake Iliamna and flows in a westerly

35

There are, in subparts H and O, special regulations applicable to the Alagnak River as a wild river and to Katmai National
Park and Preserve.
The Alagnak regulation has to do with bear
viewing. 36 C.F.R. § 13-550. The subpart O regulations contain
general provisions with respect to fishing, wildlife viewing, firearms, and the use of Lake Camp and Brooks Camp Developed Area.
36 C.F.R. §§ 13.1202-1242.
36

16 U.S.C. § 3103(c).

DECISION

- 11 -

direction through Katmai National Preserve.

The Alagnak empties

into Kvichak Bay, then into Bristol Bay.
It is undisputed that those portions of the Nation and Alagnak
Rivers which are the subject of this litigation are within a conservation system unit as defined by § 102(4) and that both rivers
have been determined to be navigable.

Because the Nation and

Alagnak Rivers are navigable, the State holds title to the lands
under the navigable waters in trust for the people of Alaska, “that
they may enjoy the navigation of the waters, carry on commerce over
them, and have liberty of fishing therein, freed from the obstruction or interference of private parties.”

Ill. Cent. R. Co. v.

State of Ill., 146 U.S. 387, 452 (1892); Alaska v. United States,
545 U.S. 75, 78-79 (2005).37
Sturgeon alleges that while he was on a moose hunting trip in
2007, the NPS informed him that he could not use his small personal
hovercraft on the Nation River within the boundaries of the YukonCharley.

Sturgeon alleges that upon returning from his hunting

trip, he had phone conversations and met with Andee Sears, a special agent for the NPS, who “reaffirmed the NPS’s position that use
of a hovercraft within the boundaries of the Yukon-Charley is a
crime ... and warned plaintiff that he would be criminally cited if

37

“The common-law public trust doctrine has been incorporated
into the constitution and statutes of Alaska.” State, Dep’t of
Natural Resources v. Alaska Riverways, Inc., 232 P.3d 1203, 1211
(Alaska 2010).
“The people of the state have a constitutional
right to free access to and use of the navigable or public water of
the state” and “[t]he state has full power and control of all of
the navigable or public water of the state, both meandered and
unmeandered[.]” AS § 38.05.126(a), (b).
DECISION

- 12 -

he ever again operated the hovercraft within the Yukon-Charley”.38
In October 2010, Sturgeon petitioned the NPS “to engage in rulemaking to repeal or amend NPS regulations so that the NPS would no
longer assert the authority to restrict access on navigable waters
located within the boundaries of park areas in Alaska.”39
received no response to his petition.40

Sturgeon

On July 26, 2011, Sturgeon

sent a letter to the regional chief ranger of the Alaska district
of the NPS, requesting that the chief ranger “confirm in writing
whether I will be able to launch in the Yukon or the lower reaches
of the Nation with my hovercraft so I can access that part of the
Nation upriver from the Yukon-Charley boundary.”41 Sturgeon received
no response to this letter.42
In 2010, the Alaska Department of Fish and Game was required
to apply to defendants for a scientific research and collecting
permit to conduct genetic sampling on chum salmon in the Alagnak
River.43

“Access to State lands was to be by helicopter....”44

38

Complaint for Declaratory Judgment and Injunctive Relief at
11, ¶ 36, Docket No. 1.
39

Id. at 12, ¶ 40; see also, Exhibit A, Complaint
Declaratory Judgment and Injunctive Relief, Docket No. 1.
40

for

Id. at 13.

41

Exhibit B at 2, Complaint for Declaratory Judgment and
Injunctive Relief, Docket No. 1.
42

Complaint for Declaratory Judgment and Injunctive Relief at
13, ¶ 41, Docket No. 1.
43

Second Amended Complaint in Intervention [etc.] at 12, ¶ 52b,
Docket No. 45.
44

Id. at 13.

DECISION

- 13 -

On September 30, 2010, the State petitioned the Secretary of
the Interior to repeal or amend § 1.2(a)(3) to make it inapplicable
to

Alaska,

with

36 C.F.R. § 13.2.45
IV.

a

corresponding

repeal

of

the

revisions

to

The petition was denied on January 13, 2012.46

Jurisdiction.

The parties disagree as to whether Sturgeon and the State have
standing to bring their as-applied regulatory claims with respect
to the Kobuk and Yukon Rivers.47

Sturgeon mentions the Yukon River

in his complaint, but he has not asserted any separate claim based
upon the Yukon River; and the NPS regulations that Sturgeon is
challenging were applied to him with respect to his use of a hovercraft on the Nation River within Yukon-Charley.

Similarly, the

State never pled any factual allegations relating to its access to
the Kobuk National Park.

The court therefore concludes that it is

defendants’ application of 36 C.F.R. § 1.2 and the related Part 2
regulations to Sturgeon and the State with respect to their operations on the Nation and Alagnak Rivers which is before the court.
Claims as to the Kobuk and Yukon Rivers have not been put before
the court.
V.

Standard of Review.

“Summary judgment is a suitable vehicle for resolution of a
challenge to agency action under the Administrative Procedure
45

Id. at 11, ¶ 44.

46

Id. at 11, ¶ 46.

47

Defendants concede that this court has jurisdiction over
Sturgeon’s claims based on the Nation River and the State’s claims
based on the Alagnak River. Defendants’ Sur-Reply on Motions for
Summary Judgment at 4, Docket No. 101.
DECISION

- 14 -

Act....”

Western Watersheds Project v. Salazar, 766 F. Supp. 2d

1095, 1104 (D. Mont. 2011) (citing Nw. Motorcycle Ass’n v. United
States Dep’t of Agric., 18 F.3d 1468, 1471–72 (9th Cir. 1994)).
“However, unlike the typical civil summary judgment resolution, the
[c]ourt does not make findings of fact or determine the existence
of genuine issues of material fact.”

Id.

“The [c]ourt must

instead review the Administrative Record that was before the federal agency at the time it made its decision to determine whether
the record supports the agency’s decision....”

Id.

“‘Because this case involves an administrative agency’s construction of a statute that it administers, [the court’s] analysis
is governed by Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837....’”

Rodriguez v. Smith, 541 F.3d

1180, 1183 (9th Cir. 2008) (quoting Mujahid v. Daniels, 413 F.3d
991, 997 (9th Cir. 2005)). “Under the Chevron framework” the court
“must ‘first determine[] if Congress has directly spoken to the
precise question at issue, in such a way that the intent of Congress is clear.’”

Id. at 1184 (quoting Mujahid, 413 F.3d at 997).

“‘If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to
the unambiguously expressed intent of Congress.’”
Chevron, 467 U.S. at 842–43).

Id. (quoting

“‘[I]f the statute is silent or am-

biguous with respect to the specific issue,’ the court moves to
step two

of

the Chevron

inquiry,

and

considers

‘whether

the

agency’s answer is based on a permissible construction of the

DECISION

- 15 -

statute.’”

Blandino-Medina v. Holder, 712 F.3d 1338, 1343 (9th

Cir. 2013) (quoting Chevron, 467 U.S. at 843).
VI.

Discussion.

Sturgeon and the State argue that the NPS general regulations
may not be applied to them because of § 103(c) of ANILCA.48

They

point out that 36 C.F.R. § 1.2 purports to grant the NPS regulatory
authority over state-owned navigable waters within the boundaries
of Yukon-Charley and Katmai.

They contend that § 103(c) of ANILCA

forbids the NPS from exercising its regulatory authority over
state-owned navigable waters within park boundaries in Alaska.
The first sentence of § 103(c) provides:
Only those lands within the boundaries of
any conservation system unit which are public
lands (as such term is defined in this Act)
shall be deemed to be included as a portion of
such unit.[49]
It is clear beyond any room for discussion that the river beds and
waters of the Alagnak and Nation Rivers are lands within the boundaries of Yukon-Charley and Katmai, both of which are ANILCA conservation system units.

The first sentence of § 103(c) provides

that only “public lands” are part of the respective conservation
units (Yukon-Charley and Katmai).

The State’s submerged lands –

the beds of the Nation River and the Alagnak River – are owned by
the State, not the United States.

The river beds are not included

in – are not part of – conservation units Yukon-Charley or Katmai.

48

16 U.S.C § 3103(c).

49

16 U.S.C § 3103(c).

DECISION

- 16 -

The State’s submerged lands – the beds of the Nation River and
the Alagnak River – are not the only interests to be addressed.
For purposes of ANILCA, “land” means land or water or interests in
them.

The State owns “the natural resources within such lands and

waters.”

43 U.S.C. § 1311(a).

The United States is entitled to

regulate and improve navigation on navigable waters in furtherance
of commerce.

United States v. 32.42 Acres of Land in San Diego

County, 683 F.3d 1030, 1037 (9th Cir. 2012).

However, the federal

government’s rights as regards navigation is not an interest in
land for purposes of ANILCA.

Alaska v. Babbitt, 72 F.3d 698, 702-

03 (9th Cir. 1995) (“Katie John I”).50

The Katie John I decision

stands for the further proposition that the United States may have
reserved water rights with respect to navigable waters within
ANILCA conservation units; and where such reserved water rights
exist, the United States does own public land for purposes of
ANILCA.

Id. at 703-04.

The State claims to “own” the waters of

the Nation and Alagnak Rivers.

Defendants contend that the United

States owns reserved water rights in the Nation and Alagnak Rivers,
thereby making the rivers “public lands” for purposes of ANILCA.
Each of the United States and the State have correlative
rights with respect to navigable waters.

But we need not decide

here which if any of the correlative rights with respect to the
navigable waters (as distinguished from submerged lands) of the
Nation and Alagnak Rivers are owned by the State or the United

50

Katie John I “remains controlling law” despite Katie John II.
John v. United States, 720 F.3d 1214, 1226 (9th Cir. 2013).
DECISION

- 17 -

States, or whether such interests are or are not public land.

The

principal issue in this case is whether or not 36 C.F.R. § 1.2(a)
(and therefore also § 2.17 and Part 13) applies to the respective
operations of Sturgeon and the State within the boundaries of
Yukon-Charley and Katmai.

The first sentence of § 103(c) does not

address that issue.
The second sentence of § 103(c) does address the application
of Title 36 regulations.

It reads:

No
lands
which,
before, on,
or after
December 2, 1980, are conveyed to the State,
to any Native Corporation, or to any private
party shall be subject to the regulations
applicable solely to public lands within such
units.[51]
The parties disagree as to whether the beds of the Nation and
Alagnak Rivers, and such other rights as the State may own, were
“conveyed to the State.”

The river beds were not transferred to

the State by means of a deed or patent such as the federal government routinely uses in transferring selected lands from public
domain to the State.

Here, there is no evidence of a conveyance of

river beds to the State.

However, § 102(3)(A) of ANILCA expressly

provides that “lands which have been confirmed to ... or granted to
the Territory of Alaska or the State under any other provision of
Federal law” are excluded from “public lands.”52 The State acquired
title to the beds of the Nation and Alagnak Rivers under the Statehood Act, Pub. L. No. 85-508, 72 Stat. 339 (1958), and the Submerged Lands Act, 43 U.S.C. §§ 1311-15.
51

16 U.S.C. § 3103(c).

52

Because of the State

16 U.S.C. § 3102(3)(A).

DECISION

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ownership of the river beds, those river beds are not “public
lands” for purposes of ANILCA.

§ 102(3).53

However, the fact that

the beds of the Nation and Alagnak Rivers are not public lands does
not answer the question: “Does 36 C.F.R. § 1.2 and the underlying
specific regulations of 36 C.F.R. Part 2 or Part 13 nevertheless
have application to the activities of Sturgeon and the State within
the boundaries of Yukon-Charley and Katmai?”

On its face, § 1.2

has application to them because, on the facts of this case, both
Sturgeon and the State entered and carried on activities “within
... [t]he boundaries of federally owned lands and waters administered by the National Park Service....”

36 C.F.R. § 1.2(a).

Again, subsection (a) is applicable by the terms of 36 C.F.R.
§ 1.2(b), and application of § 1.2(a) does not depend upon ANILCA
or the State’s rights as to navigable waters.
Assuming for the sake of discussion that the beds of the
Nation and Alagnak Rivers which the State owns by virtue of the
Submerged Lands Act are deemed to have been “conveyed” to the State
for purposes of § 103(c) of ANILCA,54 the second sentence of
§ 103(c) is dispositive in this case.
§

103(c)

excludes

from

application

to

The regulations which
State

lands

are

those

“regulations applicable solely to public lands within such units.”55
Title 36, C.F.R. § 1.2, and Part II of Title 36 (including § 2.17)
were enacted by the Department of the Interior pursuant to its

53

16 U.S.C. § 3102(3).

54

16 U.S.C. § 3103(c).

55

16 U.S.C. § 3103(c).

DECISION

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general authority to adopt regulations for all NPS administered
lands and waters.

None of those regulations was adopted “solely”

to address entry upon or use of various equipment on public lands
within ANILCA-created conservation units such as Yukon-Charley and
Katmai.
There are regulations contained within Title 36 which have
been adopted and are “applicable solely to public lands within
[ANILCA units].”

36 C.F.R. § 103(c).56

Part 13 of Title 36 con-

tains the regulations which are applicable to NPS units in Alaska,
including Yukon-Charley and Katmai.

The Part 13 regulations

“supplement the general regulations....”

36 C.F.R. § 13.2(a).

Part 13 regulations might “modify” or “amend” general regulations
applicable to park areas.

36 C.F.R. § 13.2(a) and (b).

But

Part 13 regulations have not altered or amended the helicopter or
hovercraft regulations of § 2.17.
It is arguable that Part 13 regulations do not apply to stateowned submerged lands within Yukon-Charley and Katmai because of
§ 103(c).57

But the regulations which expressly proscribe the use

of hovercraft and helicopters within the boundaries of NPS administered lands are contained in Part 2 of Title 36, not Part 13.

The

regulations contained in Part 2, and in particular §§ 2.17(e) and
2.17(a)(3) are not regulations applicable solely to public lands
within conservation system units.

They are regulations of general

application across the entirety of the NPS.

56

16 U.S.C. § 3103(c).

57

16 U.S.C. § 3103(c).

DECISION

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The foregoing disposes of Sturgeon’s and the State’s claims
based upon NPS regulations.

There remains the State’s third claim

for relief by which the State seeks review of the defendants’
denial of its petition for rule-making.

The State did not present

any argument with respect to its third claim in its opening brief.
Defendants contend that the claim has been abandoned.

The State

contends that it addressed this claim because, if the challenged
regulations are invalid, then it was arbitrary and capricious of
the defendants to deny the State’s petition for rule-making. Inasmuch as defendants have prevailed with respect to the application
of 36 C.F.R. § 1.2, it follows that the denial of the State’s
petition for rule-making was not arbitrary or capricious.
VII. Conclusion
The court concludes that 36 C.F.R. § 1.2(a), §§ 2.17(e) and
2.17(a)(3) were properly applied to the respective operations of
Sturgeon and the State.
Sturgeon’s complaint58 is dismissed with prejudice. Intervenor
the State of Alaska’s second amended complaint59 is dismissed with
prejudice.

The clerk of court shall enter judgment accordingly.

DATED at Anchorage, Alaska, this 30th day of October, 2013.

/s/ H. Russel Holland
United States District Judge

58

Docket No. 1.

59

Docket No. 45.

DECISION

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