The National Parks Service proposed a rule to revise National Park Service regulations to comply with the decision of the U.S. Supreme Court in Sturgeon v. Frost.
In the Sturgeon decision, the Court held that National Park Service regulations apply exclusively to public lands (meaning federally owned lands and waters) within the external boundaries of National Park System units in Alaska. Lands which are not federally owned, including submerged lands under navigable waters, are not part of the unit subject to the National Park Service's ordinary regulatory authority.
In March 2019, the U.S. Supreme Court in Sturgeon v. Frost (139 S. Ct. 1066, March 26, 2019) unanimously determined the National Park Service's (NPS) ordinary regulatory authority over National Park System units in Alaska only applies to federally owned “public lands” —and not to State, Native, or private lands—irrespective of unit boundaries on a map. Lands not owned by the federal government, including submerged lands beneath navigable waters, are not deemed to be a part of the unit. More specifically, the Court held that the NPS could not enforce a System-wide regulation prohibiting the operation of a hovercraft on part of the Nation River that flows through the Yukon-Charley Rivers National Preserve (Preserve).
The story
Text cited from US Federal Register
The Preserve is a conservation system unit established by the 1980 Alaska National Interest Lands Conservation Act (ANILCA) and administered by the NPS as a unit of the National Park System. The State of Alaska owns the submerged lands underlying the Nation River, a navigable waterway.
In late 2007, John Sturgeon was using his hovercraft on the portion of the Nation River that passes through the Preserve. NPS law enforcement officers encountered him and informed him such use was prohibited within the boundaries of the Preserve under 36 CFR 2.17(e), which states that “[t]he operation or use of a hovercraft is prohibited.” According to NPS regulations at 36 CFR 1.2(a)(3), this rule applies to persons within “[w]aters subject to the jurisdiction of the United States located within the boundaries of the National Park System, including navigable waters” without any regard to ownership of the submerged lands. See 54 U.S.C. 100751(b) (authorizing the Secretary of the Interior to regulate “boating and other activities on or relating to water located within System units”).
Mr. Sturgeon disputed that NPS regulations could apply to his activities on the Nation River, arguing that the river is not public land and is therefore exempt from NPS rules pursuant to ANILCA section 103(c) (16 U.S.C. 3103(c)), which provides that only the public lands within the boundaries of a System unit are part of the unit, and that State-owned lands are exempt from NPS regulations, including the hovercraft rule. Mr. Sturgeon appealed his case through the federal court system.
Charley River overflow in April | National Parks Service
In its March 2019 opinion, the Court agreed with Mr. Sturgeon. The questions before the Court were: (1) Whether the Nation River in the Preserve is public land for the purposes of ANILCA, making it indisputably subject to NPS regulation; and (2) if not, whether NPS has an alternative source of authority to regulate Mr. Sturgeon's activities on that portion of the Nation River. The Court answered “no” to both questions.
Resolution turned upon several definitions in ANILCA section 102 and the aforementioned section 103(c). Under ANILCA, 16 U.S.C. 3102, “land” means “lands, waters, and interests therein”; “Federal land” means “lands the title to which is in the United States”; and “public lands” are “Federal lands,” subject to several statutory exclusions that were not at issue in the Sturgeon case. As such, the Court found “public lands” are “most but not quite all [lands, waters, and interests therein] that the Federal Government owns” (slip op. 10). The Court held that the Nation River did not meet the definition of “public land” because: (1) “running waters cannot be owned”; (2) “Alaska, not the United States, has title to the lands beneath the Nation River”; and, (3) federal reserved water rights (“not the type of property interests to which title can be held”) do not “give the Government plenary authority over the waterway” (slip op 12-14).
Regarding the second question, the Court found no alternative basis to support applying NPS regulations to Mr. Sturgeon's activities on the Nation River, concluding that, pursuant to ANILCA section 103(c), “only the federal property in system units is subject to the Service's authority” (slip op. 19). As stated by the Court, “non-federally owned waters and lands inside system units (on a map) are declared outside them (for the law). So those Start Printed Page 23936areas are no longer subject to the Service's power over `System units' and the `water located within' them” (slip op. 18) (quoting 54 U.S.C. 100751(a), (b)).
There are four additional aspects of the Sturgeon opinion and ANILCA that inform this rulemaking. First, by incorporating the provisions of the Submerged Lands Act of 1953, the Alaska Statehood Act gave the State “title to and ownership of the lands beneath navigable waters” effective as of the date of Statehood. The Court recognized that a State's title to lands beneath navigable waters brings with it regulatory authority over public uses of those waters (slip op. 12-13). While the specific example cited by the Court involved the State of Alaska, the conclusion logically extends to any submerged lands owner. Thus, in cases where the United States holds title to submerged lands within the external boundaries of a System unit, the NPS maintains its ordinary regulatory authority over the waters.
Second, the Court noted but expressly declined to address Ninth Circuit precedent finding that “public lands” in ANILCA's subsistence fishing provisions include navigable waters with a reserved water right held by the federal government. The NPS participates in regulating subsistence fisheries as part of the Federal Subsistence Management Program, a joint effort between the Departments of the Interior and Agriculture implementing Title VIII of ANILCA. Applicable regulations can be found at 36 CFR part 242 and 50 CFR part 100 and are unaffected by the Sturgeon decision.
Third, the Court acknowledged that NPS maintains its authority to acquire lands, enter into cooperative agreements, and propose needed regulatory action to agencies with jurisdiction over non-federal lands (slip op. 20, 28). Cooperative agreements with the State, for example, could stipulate that certain NPS regulations would apply to activities on the waters and that NPS would have authority to enforce those regulations under the terms of the agreement.
Fourth, ANILCA section 906 (o)(2) contains an administrative exception relative to State and Native corporation land selections, which are excluded from the definition of “public land” in section 102. This exemption did not feature in the Sturgeon case and would not be affected by this rulemaking.
Proposed Rule
This rule would modify NPS regulations at 36 CFR parts 1 and 13 to conform to the U.S. Supreme Court's decision in Sturgeon. In the interest of making the regulations unambiguous, and in response to a petition for rulemaking filed by the State of Alaska, the NPS is proposing a set of targeted amendments to ensure its regulations accurately reflect the outcome of the Sturgeon case and provide fair notice of where regulations in 36 CFR Chapter I apply and where they do not in System units in Alaska.
Regulations at 36 CFR 1.2 address the “Applicability and Scope” of regulations found in 36 CFR Chapter I, which “provide for the proper use, management, government, and protection of persons, property, and natural and cultural resources within areas under the jurisdiction of the National Park Service” (36 CFR 1.1(a)). Section 1.2(a) identifies where the regulations apply unless otherwise stated. In order to reflect the Court's holding in Sturgeon, the NPS proposes to amend 36 CFR 1.2(a)(3) to add the words “except in Alaska” before “without regard to the ownership of submerged lands, tidelands, or lowlands.” This ensures that, consistent with the Court's holding, NPS regulations “will apply exclusively to public lands (meaning federally owned lands and waters) within system units” (slip op. 19).
The NPS proposes to add a new 36 CFR 1.2(f) to clarify that, under ANILCA, “`[o]nly the `public lands' (essentially, the federally owned lands)” within unit boundaries in Alaska are “`deemed' a part of that unit,” and non-public lands (including waters) “may not be regulated as part of the park” (slip op. 16-17). As stated by the Court, “[g]eographic inholdings thus become regulatory outholdings, impervious to the Service's ordinary authority” (slip op. 19). The proposed addition states that, except as otherwise provided, the boundaries of National Park System units in Alaska do not include non-federally owned lands, including submerged lands, irrespective of external unit boundaries. The definition of “boundary” in 36 CFR 1.4 has limited operation in Alaska, as NPS published legal descriptions for each unit boundary in 1992 and modifications must be consistent with ANILCA sections 103(b) and 1302(c) and (h).
NPS also proposes changes to its regulations at 36 CFR part 13, which “are prescribed for the proper use and management of park areas in Alaska” and as a “supplement” to general NPS regulations found elsewhere in Chapter I (36 CFR 13.2(a), (b)). In section 13.1, “park areas” is currently defined as “lands and waters administered by the National Park Service within the State of Alaska.” NPS proposes to modify this definition, and to add a definition of “federally owned lands” (incorporating and relocating the description at 36 CFR 13.2(f)), to reflect ANILCA's limitations on the lands and waters that are administered by the NPS in Alaska, as outlined in the Sturgeon decision. As stated above, this would not affect NPS administration under a valid cooperative agreement, which would be governed by the terms of the agreement.
The term “federally owned lands” is used instead of “public lands” to account for the authority granted by ANILCA section 906(o)(2) over validly selected lands, an exception to the definition of “public lands” in ANILCA (16 U.S.C. 3102(3)). As before, selected lands are not considered “federally owned lands” once they are subject to a tentative approval or an interim conveyance; title has been transferred although it is not recordable until the lands are surveyed.
Alaska Wildlife Alliance Joint Comment on the Rule
Thanks to sustained legal representation and preparation by Trustees for Alaska, a coalition of organizations submitted a joint comment on the proposed rule.
