Sturgeon v. Frost

LII note: The U.S. Supreme Court has now decided Sturgeon v. Frost.


Does the National Park Service have the authority to enforce federal regulations banning the use of hovercrafts on navigable waters within, but not a part of, the national park system in Alaska?

Oral argument: 
November 5, 2018

This case asks the Supreme Court to resolve whether the National Park Service (“NPS”) has the authority to regulate activity on navigable waters on non-federal land located within, but not deemed part of, the national park system in Alaska. John Sturgeon contends that Section 103(c) of the Alaska National Interest Lands Conservation Act (“ANILCA”), which defines “public lands” as those to which the United States has title, excludes non-federal lands and waters falling within the boundaries of Alaska’s national parks from NPS regulations. Sturgeon further argues that the NPS does not derive any regulatory authority from any reserved water rights the federal government may own. Bert Frost, in his official capacity as Alaska Regional Director of the NPS, contends that Section 103(c) merely restricts the NPS’s preexisting regulatory authority over navigable waters within national parks, as granted by Congress. According to Frost, the NPS may only enforce water-related rules regarding activities hazardous to the use and management of public lands. The outcome of this case will have implications concerning the balance of power between the state and federal government to regulate non-public lands and waters falling within the national park system in Alaska.

Questions as Framed for the Court by the Parties 

Whether the Alaska National Interest Lands Conservation Act prohibits the National Park Service from exercising regulatory control over state, native corporation and private land physically located within the boundaries of the national park system in Alaska.


In 2011, John Sturgeon was moose hunting in Alaska when the National Park Service (“NPS”) informed him that he could not use his hovercraft on the Nation River within the Yukon-Charley preservation. After the hunting trip, Sturgeon spoke with an NPS agent who reiterated that the use of a hovercraft within Yukon-Charley is a crime and that Sturgeon would be criminally cited if he used the hovercraft within the national park. In 2010, Sturgeon petitioned the NPS to repeal the relevant administrative regulations over navigable waters. Sturgeon received no response. Sturgeon sent a letter in 2011 to the Alaska NPS regional chief ranger requesting permission to use his hovercraft. Once again, Sturgeon received no response. The State of Alaska also petitioned the Secretary of the Interior to repeal or amend regulations regarding access to park areas. Alaska’s petition was denied in 2012. As a result, both Sturgeon and Alaska brought suit against the NPS.

Congress passed the Alaska National Interests Lands Conservation Act (“ANILCA”) in 1980, creating conservation system units (“CSUs”) in the State of Alaska. ANILCA granted the Secretary of the Interior administrative power, along with the NPS authorization, to enforce regulations over public lands within CSUs. The Yukon-Charley National Preserve, composed of 104 million acres and including the Nation River, was created under ANILCA. National Park Service Regulation Section 1.2(a)(3) forbids hovercrafts on waters under the jurisdiction of the United States, which includes waterways within national parks. Alaska, in contrast, allows hovercrafts on state-controlled waterways. Sturgeon filed suit in the federal district court in Alaska, asserting that the Nation River falls under the jurisdiction of Alaska, not the United States, and that Park Service regulations do not grant the Park Service the authority to regulate such waterways. Sturgeon argued that Section 103(c) of ANILCA, which defines public land as land within CSUs, does not grant the NPS authority over State-owned navigable waters.

The district court held that waterways, such as the Nation and Alagnak Rivers, are within Yukon-Charley and Katmai and are classified as public land under ANILCA. The district court concluded that NPS regulations specify that land also includes waters within CSUs. The court dismissed the case with prejudice.

In 2017, the Ninth Circuit Court of Appeals examined the disputed definition of public land pursuant to Section 103(c). ANILCA defines public land as land located in Alaska and federal land as land to which the United States has title. In other words, NPS has the authority to regulate waterways when the United States has an interest over that body of water as public land. Thus, the Ninth Circuit held that bodies of water located in federally designated preservations are public lands, where the United States has an implicit interest in maintaining the purpose of the preservation. Despite Sturgeon’s objection that NPS has no reserved water rights because it has no use for that water, the Ninth Circuit determined that the United States has reserved water rights as long as it could enforce those rights in the future. The Ninth Circuit affirmed and found that Section 103(c) grants the United States implicit reserved water rights to render waterways as public land to effectuate the ban against hovercrafts.

The United States Supreme Court granted Sturgeon’s petition for writ of certiorari on June 18, 2018.



Sturgeon argues that Section 103(c) of ANILCA prohibits the NPS from exercising jurisdiction over—and thus regulating—state, native corporation, and private lands and waters that fall within the boundaries of Alaska’s CSUs. Sturgeon contends that Section 103(c) provides that only “public lands” within a CSU’s boundaries are a part of that CSU and that any non-public lands within a CSU’s boundaries are not subject to regulations applicable solely to public lands within the CSU. Under ANILCA, according to Sturgeon, “public lands” in Alaska are “federal lands”—that is, lands to which the United States retains title. Reading these two definitions together, Sturgeon asserts that the NPS may only regulate the lands and waters within CSUs to which the United States has title. Thus, Sturgeon interprets the plain text of the two provisions as meaning that the United States does not hold title to the navigable waters flowing over non-federal land within CSUs, and, as such, the NPS has no jurisdiction to regulate the portion of the Nation River on which Sturgeon sought to use his hovercraft.

Sturgeon finds further support for this argument in the broader structure of Section 103(c), which provides that if a state, native corporation, or other owner wants to convey their land, the Secretary may acquire it in accordance with applicable law. Sturgeon contends that this provision sets forth the only way non-public land within a CSU may become subject to NPS regulation—by conveyance to the United States. To otherwise allow the NPS to exercise jurisdiction over any land within a CSU regardless of whether it was public land, Sturgeon states, would make the provision superfluous.

Furthermore, Sturgeon asserts that because ANILCA is an Alaska-specific statute—created in recognition of the unique status of Alaska’s lands, waters, and resources—the NPS cannot rely on its general rulemaking authority to subject non-public lands to its regulations. Instead, Sturgeon argues that the NPS must follow ANILCA’s express mandate that non-public lands within Alaskan CSUs are not part of the CSUs, and thus are not subject to NPS jurisdiction. Sturgeon additionally argues that had Congress wanted to displace Alaskan law and subject navigable waters in Alaskan CSUs to NPS regulations, and thus alter the balance between Alaska and the federal government, it would have needed to place a clear statement of that intent in ANILCA. According to Sturgeon, a clear statement of that intent is missing from the statute, which makes no mention of navigable waters or reserved water rights, nor explicitly authorizes the NPS to assert jurisdiction over Alaskan waters.

Sturgeon counters Frost’s argument about Section 103(c)’s placement by arguing that ANILCA is about geographic boundaries and noting that, out of over 100 provisions, the maps provision comes third, and is therefore “front and center in the statutory scheme.” Sturgeon responds to Frost’s clear statement argument by noting that the NPS itself has no traditional authority to regulate navigable waters because an agency has no authority unless conferred by statute. Sturgeon also contends that Frost’s ratification argument fails because Congress never actually enacted positive legislation codifying the Secretary’s position into the statutory text of ANILCA. Lastly, Sturgeon argues that Frost’s plea for Chevron deference must be denied because ANILCA unambiguously forbids the NPS from regulating non-federal lands in Alaskan CSUs, and construction of Section 103(c) to the contrary is unreasonable.

Frost counters that regardless of whether navigable waters within Alaskan CSUs are classified as “public lands” under Section 103(c), the NPS may nonetheless regulate them under the Act of Oct. 7, 1976 (“1976 Act”). The 1976 Act granted the Secretary authority to regulate conduct “on or relating to water located within System units, including water subject to the jurisdiction of the United States,” which, according to Frost, includes navigable waters.

Frost contends that the 1976 Act is significant for two reasons. First, Frost maintains, even if navigable waters within a CSU are not a portion of that CSU under Section 103(c), they still qualify as within a CSU for purposes of the 1976 Act, therefore rendering them expressly subject to regulation by the NPS. As such, Frost contends that the 1976 Act is the most specific statute on whether navigable waters within Alaskan CSUs are subject to NPS regulations. Second, Frost argues that the 1976 Act alternatively allows NPS regulation of navigable waters within Alaskan CSUs because they are related to non-navigable stretches of water on federally owned lands. As Frost contends, navigable and non-navigable stretches of water are interconnected, and the regulation of navigable stretches relates to interconnected non-navigable stretches by protecting the integrity and enjoyment of both.

Frost also contends that Sturgeon’s reading of Section 103(c) is inaccurate because the sentence excluding non-public lands within a CSU from regulations applicable solely to public lands would be superfluous if it meant that non-public lands were exempted from all NPS regulations. Frost argues that there would be no reason for that sentence if the definition of “public lands” itself excluded non-public lands from all NPS regulations, as Sturgeon contends it does. Instead, Frost understands that provision to mean that non-public lands are not subject to one type of regulation—those applicable solely to public lands—not all NPS regulations. Frost further asserts that non-public lands need not be conveyed to the United States to subject them to NPS regulations, as evidenced by an ANILCA provision directing the NPS to consider regulating privately owned areas within Alaskan national parks when needed to serve the purposes of the CSUs. Despite this, Frost contends that Section 103(c) is not rendered meaningless; rather, according to Frost, the provision substantially restricts the NPS’s regulatory authority under the 1976 Act to imposing on non-public lands only water-related rules regarding activities hazardous to public lands.

Frost offers numerous additional arguments regarding Congress’s intent to allow the NPS to regulate public lands in Alaskan CSUs. First, Frost argues that Congress’s placement of Section 103(c) in a provision focused on maps, rather than in one focused on the Secretary’s substantive authority to regulate, shows that Congress did not intend it to implicitly revoke the NPS’s longstanding authority to regulate navigable waters within CSUs. Frost also asserts that there is no basis for the clear statement rule here because the usual constitutional balance concerning navigable waters has always given the United States authority to control them. Moreover, Frost contends that Congress expressed its intent that the NPS be able to regulate navigable waters by ratifying regulations of the Secretary doing just that. Ultimately, Frost maintains that any ambiguity on the issue must be resolved by entitling the Secretary’s reasonable interpretation of the NPS’s regulatory authority—that the NPS may regulate navigable waters within Alaskan CSUs—to Chevron deference.


Sturgeon argues that the Ninth Circuit incorrectly concluded that the “reserved water rights” doctrine, despite the text of Section 103(c), gives rise to an implied federal interest in the navigable waters within Alaskan CSUs which affords the NPS regulatory authority over those waters. When the federal government reserves land for a federal purpose, according to Sturgeon, the reserved water rights doctrine operates to retain for the federal government an amount of water appurtenant to the reserved land needed to accomplish the federal purpose. Sturgeon maintains, however, that the doctrine merely grants the federal government a non-possessory use right, and not title, as required under his reading of Section 103(c). Thus, Sturgeon claims that even if the United States held reserved water rights in all of Alaska’s navigable waters, the federal government’s lack of title would restrict it from regulating those waters as it does public land. Sturgeon further asserts that even if the United States holds a reserved water right to the navigable waters of the Nation River, the hovercraft ban exceeds the scope of that right. According to Sturgeon, the doctrine does not give the federal government plenary regulatory power over the body of water, but instead simply reserves for the federal government the amount of water necessary to fulfill the federal purpose. Here, Sturgeon argues that the Ninth Circuit erred in upholding the hovercraft ban based on the conclusion that one of ANILCA’s statutory purposes—the protection of fish—would be impacted by any diminution of water within the Yukon-Charley, because operating hovercrafts has no effect on the volume of water in a river.

Frost responds that the reserved water rights doctrine does authorize the NPS to regulate navigable waters within Alaskan CSUs. Frost notes that “ANILCA defines ‘public lands’ as lands, waters, and ‘interests therein’ to which the United States holds title.” As Frost articulates, that ANILCA includes interests in water as part of this definition is important in the context of navigable waters because only interests in navigable waters may be owned, rather than the waters themselves. Frost further contends that reserved water rights to withdraw or maintain flows of waters, which Frost affirmatively argues the federal government has, are property rights to which owners hold title. Moreover, Frost asserts that the United States holds these property rights as an incident of the land to which it has title. Frost also claims that Sturgeon’s argument that the NPS’s regulations exceed federal reserved water rights misunderstands the relevance of those rights under ANILCA. According to Frost, the NPS does not derive regulatory power from those reserved water rights; rather, the regulatory power is derived from the 1976 Act. The relevance of the reserved water rights is instead, as Frost concludes, that they confer on the federal government the authority to regulate navigable waters within Alaskan CSUs as “public lands” under Section 103(c).



Eight States and Idaho (“States”), in support of Sturgeon, argue that the Ninth Circuit did not follow the clear statement doctrine, where courts would presume that Congress did not intend to supersede areas traditionally reserved to states without clear indication. As such, the States warn that the United States would have power to preempt state authority over navigable waters through the reserved water rights doctrine as an infringement upon State sovereignty. Most troubling, the States assert is that the Ninth Circuit did not specify the amount of water necessary to evoke the reserved water rights doctrine, where the United States could claim title to supersede State authority based on a few inches of water. Safari Club International, in support of Sturgeon, claims that the United States can invoke reserved water right to any water connected to a national park preservation. As a result, Safari Club articulates that hunters would be prohibited to travel on waterways in order to reach remote hunting grounds.

Native Alaska tribes, organizations, and subsistence users (“Tribes”), in support of Frost, assert that federal regulation over navigable waters in Alaska is necessary otherwise native tribes would lose their right to fish and way of life. When Congress enacted ANILCA, according to the Tribes, it provided the Park Service the authority to regulate water for the conservation of nature and wildlife. The Tribes contend that conservation also includes protecting aquatic wildlife and acts of fishing that provide subsistence for native peoples. . The Tribes point out that the ANILCA contains language that seeks to protect subsistence users, which requires the Park Service to have control over navigable waters in order to fulfill the purpose of the ANILCA. With this mind, the Tribes caution that a ruling to remove federal reserved water rights would harm native peoples and subsistence users, who depend on fishing and aquatic wildlife for consumption.


Pacific Legal Foundation (“PLF”), in support of Sturgeon, articulates that the Ninth Circuit’s holding would give the federal government jurisdiction over all waterways, which have been traditionally regulated at the state-level. PLF explains that ANILCA regulation banning hovercrafts cannot be enforced because Congress has historically preserved State authority over waterways and courts also should not interpret federal statutes as to undermine State sovereignty. As a result, PLF claims that ANILCA regulations prevent Alaskans from traveling through non-federal land on waterways that should not be treated as under the jurisdiction of the United States. The Citizens Equal Rights Foundation and Central New York Fair Business Association (“CERF et al.”), in support of Sturgeon, assert that the federal government’s exercise of reserved water rights violates the anti-commandeering doctrine, where the federal government cannot exercise authority over a State as an agent of the United States. Specifically, CERF et al. claims that reserved water rights would diminish the independence of States, where the federal government could dictate how State land should be used despite state legislative intent.

The National Parks Conservation Association and other conservation nonprofit organizations (“NPCA et al.”), in support of Frost, assert that Congress intended the Park Service to have the authority to regulate navigable waters in order to promote the purpose of national parks such as fishing and recreation. . NPCA et al. contend that if the Park Service is no longer able to enforce regulation over navigable waters, the Park Service would be unable to protect rivers, implement seasonal closure, prevent trash dumping, and regulate hunting. Moreover, NPCA et al. insist that the prohibition of hovercrafts within national parks is necessary to protect the park and visitor experience because hovercrafts can travel anywhere in the park not accessible to boats as well as cause unwanted damage. Thus, without the authority to enforce regulations over navigable waters, the Park Service would be unable to protect CSUs as mandated by Congress.

Edited by 

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