In today's decision on Sturgeon v. Frost, the Supreme Court has held in favor of an Alaskan moose hunter’s right to traverse a river by hovercraft as it passes through a National Park unit, in a remote and largely roadless area of the state. The National Park Service regulations forbid the use of hovercraft within park units, but Mr. Sturgeon successfully argued that the surface of the river is not subject to Park Service regulation under the Alaska National Interest Lands Conservation Act. Tony Francois, Senior Attorney with the Pacific Legal Foundation, will join us to discuss this decision.
Tony Francois, Senior Attorney, Pacific Legal Foundation
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Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Environmental Law & Property Rights Practice Group, was recorded on Tuesday, March 26, 2019, during a live teleforum conference call held exclusively for Federalist Society members.
Wesley Hodges: Welcome to The Federalist Society's teleforum conference call. This afternoon's subject is a Courthouse Steps Decision Teleforum on Sturgeon v. Frost. My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the expert on today's call.
Today we are very fortunate to have with us Mr. Tony Francois, who is a Senior Attorney with the Pacific Legal Foundation. After our speaker gives his remarks, we will move to an audience Q&A, so please keep in mind what questions you have for this case, for litigation like it, or for our speaker, or the topic in general. Thank you very much for sharing with us today, Tony. The floor is yours.
Tony Francois: Well, thank you, Wes. This case was decided by the Supreme Court this morning. I want to provide a brief background to the controversy in the case by the first line of everybody's favorite old joke, "A man walks into a bar…," only in this case, it's a sandbar that he walks into. He had intended to hover past the sandbar, but when his hovercraft required repairs, he had to walk it onto a sandbar as he happened to be traveling up Alaska's Nation River to his moose hunting grounds in a remote and largely roadless area of Alaska. This, of course, is John Sturgeon, who is the plaintiff in this case, on that sandbar in the middle of the Nation River, which happens to be within the boundaries of the National Park Service's Yukon-Charley Rivers National Preserve. Mr. Sturgeon was greeted by three U.S. Park Service officials who threatened to jail him if he kept hovering on the rivers in their park with his hovercraft.
That's where his ordeal by litigation began with the federal government. This encounter occurred 12 years ago, and the case has been proceeding since then and has included two Supreme Court appearances. And this is all about John Sturgeon's moose hunting and his history for over four decades of hunting in very remote parts of Alaska, frequently getting to his hunting grounds and back through the use of a hovercraft, which in many areas of Alaska that are roadless and very rugged, can be the only practical means of local transportation. And so he would use the hovercraft up and down many of the state's rivers, including those that transit the national parks and national forests that the federal government has carved out of Alaska.
The Park Service, through nationwide regulations, prohibits hovercraft on any waters in the parks and argued to Mr. Sturgeon that this applies in Alaska as well as it does anywhere else in the country. He objected—wisely, I would say—that the navigable rivers that pass through national parks are not actually part of the parks. While this may seem initially counterintuitive, he's correct. Under federal law, the state in which the park is located owns the beds of these navigable rivers and also has sovereignty over the water rights and other uses of those rivers. Federal land use regulations may apply on federal land, Sturgeon argues, but not the state-owned riverbeds or state-controlled rivers.
And under a statute which applies only in Alaska, the Alaska National Interest Conservation Land Act, the Park Service can only regulate public lands. If the Nation River, or at least the surface of it, is not federally regulated public land, then John Sturgeon, and hunters, and others like him are free of Park Service edicts against the use of hovercraft on those rivers. So Sturgeon filed a lawsuit to establish his right to hover on the river, which the Park Service, naturally, contested. The State of Alaska, which, naturally, wants to protect its sovereign interests as the owner of the bed of the Nation River and others like it, as well as its sovereign interests over the river's water rights and use, joined the case in support of Sturgeon. And I'm proud to mention that they got a little help along the way through friend of the court briefs from Pacific Legal Foundation.
Sturgeon's case dragged on for more than a decade in which the Ninth Circuit Court of Appeals twice rejected his claims, but which court was in turn twice reversed by the Supreme Court, including a final decision in the case this morning. Today's decision fully resolved the case in Sturgeon's favor. The Court held this morning that the Nation River is not public land as defined within the Alaska National Interest Conservation Lands Act, or ANICLA, and is therefore, under a special provision of that act not subject to Park Service regulation as what are called inholdings, private property within park or national forest boundaries in the rest of the country are said to be or claimed to be by the federal government subject to federal regulation by virtue of being surrounded by a federal reservation like a park. So since the Nation River, or at least its surface, is not public land, then in Justice Kagan's very endearing line for the Court in its unanimous opinion, quote, "John Sturgeon can once again drive his hovercraft up that river to Moose Meadows and resume his hunting."
So taking a brief look at the decision itself, I would characterize it as a very positive decision for both private property owners and states in their relation with the federal government in a couple of areas. First of all, the Court did, I think, some very sound statutory construction in determining whether or not in the facts of this case the river itself is public land. A little bit counterintuitively, the statute defines public lands to include interests in water, and so even though it says lands, it could include water resources as public lands. And then the statute limits the Park Service's regulatory authority just to those public lands.
And the Court looked closely at what this interest in water could include and came to the decision, which appears to be a fairly common sense one, that it's not possible for the federal government to own an interest in the water itself—which is what Mr. Sturgeon is operating his hovercraft on, it's the actual water column—and that any interest in that water body would be in the nature of a water right. In this case, that water right would be, if the federal government holds it, for the purpose of preventing pollution or depletion and diversion of that river. And none of those interests are actually impaired by navigating on a river, and so the Court concluded that the federal government doesn't hold the interest that would prevent Mr. Sturgeon from navigating on the surface of the water.
And while this case has the very interesting fact of the use of a hovercraft in it, and it's the hovercraft that's regulated by Park Service regulations, the decision doesn't really turn on whether or not he uses a hovercraft, or a canoe, or a powered boat. It boils down to the federal government does not have an interest in the use of the surface of the river. And this is good because it pushes back on—or good in my opinion—pushes back on the government's far more expansive argument in the case that because it had a statutory interest in conservation and preservation of all the water resources within the national parks, it could basically do whatever it wants, even if it doesn't own the water resources.
Now, the second thing that the Court does is it clarifies a very important bit of -- you can call it federal common law called the Winters doctrine. What the Ninth Circuit had held is that even if the Park Service doesn't have the statutory authority to regulate operation of craft on the river, the federal government has under what's called the Winters doctrine an implied reserved water right in the river that would allow it to regulate it completely separate from the statute, essentially as federal property over which the federal government has plenary authority under the Property Clause of the Constitution.
Very similarly to the way that the Court concluded that the agency did not have an interest in the surface of the water itself that would make that water service public land under the statute, the Court concluded that even if the federal government does have an implied reserve water right under the Winters doctrine, that right is limited by prior Supreme Court decisions to the amount that is strictly necessary to achieve the primary purposes for the park. And since those purposes are achieved by preventing diversion of the waters and preventing pollution of them, the right, if it exists, does not extend to preventing people from actually navigating on the river.
This was important because the Ninth Circuit has taken a very expansive view of the Winters doctrine in a couple of ways. First of all, it has been very generous in essentially allowing federal agencies claiming Winters rights to leave them unquantified and leave their quantification at agency discretion rather than employing the Supreme Court's requirements that the right be strictly quantified and limited to the primary purposes of the reservation.
Now, the other interesting aspect of the Ninth Circuit's Winters doctrine jurisprudence which was raised in this case but not ultimately decided by the Court is that the Winters doctrine requires that the act which reserves the land, the statute and any executive action executing that statute, clearly require a reserved water right in order to fulfill the primary purposes of the act. The Ninth Circuit, though, has said that it will employ Chevron deference and defer to an agency's interpretation of its enabling statute to determine whether or not that statute authorizes or creates an implied reserved right. And those who follow the controversy surrounding Chevron deference should spot immediately that Chevron deference is only employed when the statute is ambiguous, and yet, the Supreme Court has frequently said that for an implied water right, the statute has to be clear. And so the Supreme Court's decision today in limiting the scope of any implied right that the Park Service may have in these rivers in Alaska I think implicitly pushes back on the way the Ninth Circuit has employed the analytical factors under the Winters doctrine.
So at the end of the day, after 12 years of litigation, John Sturgeon and others like him are free to, again, as Justice Kagan says, rev up their hovercraft and head out into the wilds in search of moose and other wild game. And the state of Alaska and its citizens have an important protection of their interests in their water resources against federal overreach. I'd be happy to answer any questions about the case and particularly the implications that the case may have outside of Alaska.
Wesley Hodges: Well, thank you so much, Tony, for the commentary. It does look like we do have one question out of the gate. A couple, actually, now. Let's go ahead and go to our first caller.
Helen Goldstein: Hi, good morning. Helen Goldstein down at Snell & Wilmer in Arizona. I wanted to ask you about the impact of the concurrence and how much you think the concurrence attempts to maybe walk back or invade upon the holding of majority, like particularly Jane Smith and her gallon of toxic insecticide. The concurrence specifically says that National Park Service could still ban hovercraft use on that river if needed to protect adjacent public park areas. And then later, Justice Sotomayor says that in her view, the Service likely retains power over navigable rivers that run through Alaska's parks when that power is necessary to protect Alaska's park land. So why can't National Park Service just rewrite their hovercraft regulation to make it specific to protecting Alaska's park lands?
Tony Francois: Great. Thanks for that question. So I'd say that the answer to what the Park Service could do adapt to this decision and maintain its regulation of hovercraft use is that in the context of Alaska, that is probably closed to them, at least under ANICLA and the implementing regulations under ANICLA. The Court goes to extensive lengths in today's decision to lay out the history of federal and state controversy over land allocation in Alaska. And it is out of this history of conflict that ANICLA makes this very clear limit -- places this very clear limit on federal regulation that regulations that are based on the park unit, in other words, regulations of the park unit as such, are not applicable to private inholdings within the boundary of the park. In this particular case, the surface of the river is an inholding as opposed to part of the park.
Now, this question, though, remains an active one in the lower 48, and in fact, the Court specifically declines to address whether the Park Service's assertive authority over non-federal land and water resources within park boundaries in the lower 48 is valid, either under the statute or constitutionally. And so that is, at least in the lower 48, a dispute for another day.
And that is an area that generates a lot of controversy. Most of the -- I probably would comfortably say all of the national parks and national forests in the lower 48 contain fairly extensive inholdings. These are pieces of originally federal property that were homesteaded or otherwise passed into private ownership and out of federal ownership from the public domain under the Homestead Act and other 19th century statutes prior to the designation of either the park or the national forest. And so a lot of these inholdings remain in private ownership. There are roads that access them, there are water rights associated with them, and the scope of either the Park Service or the Forest Service's authority to regulate activity and, particularly, the use of water that is on those inholdings generates a lot of litigation and a lot of controversy, particularly in the western United States. And in today's decision, the Court is saying, "We're not resolving any of that."
Now, I would add, as what I think is an interesting note, when this case was previously before the Supreme Court after the Ninth Circuit's first decision, the tone of the oral argument in that case, in that hearing, really leaned into whether the Park Service really does have statutory authority over private property, including private water resources, inside park boundaries. The outcome of that case might have been a little different than it was. That oral argument happened to be Justice Scalia's last day on the bench, so the resulting opinion was of a fairly narrow, again, unanimous decision that rejected the Ninth Circuit's view in the case, which even the government rejected, and remanded for the Ninth Circuit to take a shot at it. In this decision today, the Court clearly avoids anything that would address how these conflicts would be resolved outside of Alaska.
The other thing that's important to observe in this is that throughout, both Sturgeon and the State of Alaska have argued that federal statutes that would authorize federal regulation of water resources generally, like the Clean Water Act, and potentially even the Wild and Scenic Rivers Act, which I think one of the authorities that Justice Sotomayor refers to, they are not arguing that the Park Service or EPA or the Army Corps of Engineers is divested of its regulatory authority over these rivers under those statutes. And so the question today is really limited to federal regulation that is adopted for the operation or protection of the park unit, and so Justice Sotomayor refers to the Wild and Scenic Rivers Act. There's certainly other statutes that could regulate activity on navigable rivers. The question is really can the Park Service execute any authority under those acts. Do they have any authority under those other acts? Certainly if they were to try to use the Clean Water Act, they would need to enlist EPA and the Army Corps in that effort.
Wesley Hodges: Thank you so much, caller, for your question. Let's go ahead and go to our second caller, then.
A.J.: Good afternoon. This is A.J. in Oklahoma City calling. I appreciate the last question and, frankly, your answer, Tony, to that because you answered the question I originally had. But not having read the decision yet and just kind of seeing a few scant tweets about it, is there anything to glean about how the Kisor case could come out as a result of anything that's written or inferred in the opinion thus far?
Tony Francois: Well, that's an interesting question. So A.J.'s referring to Kisor v. Wilkie which is going to be argued tomorrow morning in the Supreme Court. The question in that case is whether or not the Supreme Court will abandon its existing rule under Auer v. Robbins. The federal courts are to defer to agency interpretations of their own regulations. And there's really, I mean, I would say there's not a lot a lot in today's decision about deference to the agency interpretation either of statutes or of their regulations. It's not a controversy in the case whether the regulation on its face applies to Sturgeon's hovercraft use. If there wasn't this question about whether Alaska is different, which is the way the Court kind of frames it, as a question of applying the regulation, it would clearly be prohibited.
I do think, though, there's kind of an interesting subtext in the case. One of the things that—and this relates more to Chevron than to Auer—one of the things that the Court observes or employs is the tool of statutory construction of implicit rejection so that if a statute explicitly authorizes one thing, then it implicitly rejects its opposite or its alternative. And this concept is actually employed in the other direction by the Ninth Circuit in applying Chevron. And so the Ninth Circuit will go so far as to say that a statute is silent on a matter allowing you to then engage in Chevron analysis where, for example, the statute explicitly authorizes something and is silent as to whether the opposite can be done also.
So the Supreme Court's approach to this today is the opposite of that. They say if a statute authorizes something, then it implicitly rejects the opposite of it. So I think that shows an increasing bent by the Court away from creative statutory construction. And in today's unanimous decisions -- we also see this in some of the other unanimous decisions this term; the Weyerhaeuser case on what the words "critical habitat" mean in the Endangered Species Act. Where the Court is dealing with a discreet controversy that will more or less only affect that area of law, it's pretty comfortable taking a pretty firm textualist line against broader interpretations that the government offers.
The Auer case, I think, will be much more of a policy-based decision because Auer is not just -- the actual controversy in Auer -- or in Kisor is about retroactive eligibility for veterans' benefits, and if the case were limited to veterans' benefits, I'm fairly comfortable the Court would unanimously say, "Mr. Kisor is entitled to his retroactive benefits." But the Auer doctrine that the Court is revisiting tomorrow morning affects every agency of the federal government and is the mechanism by which agencies regulate or control private activity without changing their regulations. And so field manuals, guidance memoranda, colleague letters, all these sorts of regulatory tools are what's in the balance in tomorrow's argument. I think what I see in today's decision is that where the Court is dealing with an area of law, it's willing to let the chips fall where they will based on how Congress wrote the statute and the fairest reading of the statute.
When it comes to Kisor tomorrow, I think we'll see much more of the traditional left/right split in the Court as we saw, for example, earlier this year in Gundy which deals with the nondelegation doctrine. They're not so much worried about what it means for the outcome of the present case, but what it means much more broadly for the administrative state and the ability of agencies to adapt to changing circumstances or, if you will, to carry out political agendas that would be difficult to do using notice-and-comment rulemaking. And that's a whole, maybe, field of other question, A.J., but I think that's where that's headed.
Wesley Hodges: Thank you, A.J., for your question. Let's go ahead and go to our next audience caller.
Roger Candelaria: Hi, this is Roger Candelaria from Colorado, and first I want to thank you for really an illuminating presentation. My question is let's imagine, for example, that you were a lawyer with somebody like Pacific Legal Foundation or somebody, and you're looking for cases that would really extend the holding of this in the direction of limited government, extend this holding in that direction in the lower 48. What would a case like that look like factually?
Tony Francois: I think it's going to wind up being something fairly similar, which is somebody who's using -- so there's two basic types of disputes that lead to these sorts of cases. One is, as in the Sturgeon case, it's transit. So it's roads that cross national parks or national forests that the government is trying to limit the use of, whether just for transport or for recreation. So there've been things like Forest Service trail closures for recreational vehicles and snowmobiling, but there have also been increasing numbers of instances where the Forest Service will try to limit access to roads for which there are public easements which are established as public roads under what's called R.S. 2477 in which the public has a right to use.
There's another category of cases that involve stationary inholdings, the homestead that somebody got in the 1900s before the park was established at a later date. Increasingly, people find themselves being told if they want to do something like build a home or operate a business in their inholding that the Forest Service is telling them they need a conditional use permit from the Forest Service for that activity because in the Forest Service's view, it has an impact on forest resources, or sometimes simply because that activity is inconsistent with the local forest management plan. And the experience of a lot of people who live or have to work in inholdings is that they're regarded with a lot of suspicion and sometimes hostility by some of the local Forest Service staff.
I think the thing for people to do who are looking for these kinds of cases is to find ways to communicate with the communities of people who have to live and work in and around these inholdings so that they know their legal resources for them. The other thing to be aware of, obviously, is that most people are going to try to figure out how to make it work, if you will, and don't want to engage in 12 years of litigation with the federal government. To a certain extent, cases like this are driven by the fact that an individual, or a family, or a business does not want to give in, does not want to back down. They want to pursue their principle. The task is really to make sure that they're connected with good counsel, good attorneys who can help them along the way.
Roger Candelaria: Okay, thank you. There are cases like that, I'm sure of. How would they get those to the attention of foundations like Pacific Legal Foundation?
Tony Francois: Us and other organizations like us -- our website, www.pacificlegal.org, has a feature on it where you can enquire about potential cases, and we respond to a lot of those. Another thing that I've always encouraged people to do is to be active in whatever their appropriate local organization is, be that Farm Bureau, or timber group, or ranching group, or even like a recreational group that has some kind of -- that's got a mature enough and sophisticated enough group, they're able to give them some initial advice and connect them with the people.
Wesley Hodges: We do have another question in the queue. Let's go ahead and go to our next caller.
Caller 4: Why doesn't the government want people to use hovercraft?
Tony Francois: The question is why the government bans hovercraft. They ban hovercraft in the national parks because they're noisy, and in their view, unsightly. Hovercraft are allowed, I mean, there's no doubt about that. In fact, that purpose of the regulation is one of the things that the Supreme Court focused on today in comparing for the purpose of the regulation with whatever the interest in any potential water rights that the government might have and finding a mismatch there. The purpose of the water right, if it exists, is not to prevent noise and scenic impacts on the park. It's to protect the water body from pollution and depletion. So that's the basic reason is in the Park Service's judgement, other people at the park don't want to see hovercraft going by or hear them.
Wesley Hodges: Great question. Thank you so much, caller. While we wait for any additional audience questions, I do have a couple of our own. So Tony, the Supreme Court stated in today's opinion that the federal government does not own title to its implied reserved water rights under the Winters doctrine. Does this have broader implication for water rights generally? Many states regard water rights as private property and even real property. Is the Supreme Court saying that nobody holds title to water rights by their very nature, or is this opinion limited in some way to Winters rights?
Tony Francois: Well, that's actually -- that is a great question, Wes. A key piece of the Court's analysis, because it is a factor in considering whether or not the Nation River is public land under the statutory definition of that, is whether or not the federal government has an interest in it. But the Supreme Court and the Ninth Circuit expounded that term and interest in it as something to which you can title under principles of property law. And the Supreme Court concluded today that the federal government does not hold title to the water, the actual water. And that is consistent with most of the basic principles of at least western water law. You have what's called a usufructuary right to use the water as it goes by, but nobody has an ownership interest in the actual water.
But it's an interesting element of the case which I don't think drew the kind of attention that it should have because if the Court is saying that in the universal sense, water rights are not something that anyone holds title to, that's going to be a significant surprise to every water lawyer, at least in the western United States. I mean, in private practice, I've written title opinion letters on water rights. I certainly think it's the common view that the appropriative water rights in the western United States are real property, that they're pertinent to the real property on which they're used, that they can be acquired and sold as real property, and that the owner holds title to them. So it's not clear to me that there's an easy distinction in this decision between what an implied reserved water right is in the hands of the federal government and what your average irrigation water right to divert 50 cubic feet per second from the Colorado River and use it on Smith's farm is.
Certainly, the case doesn't address for all purposes and all types of water rights whether or not they're the kind of property in which one can hold title, but it does really raise a question about that. I would have expected more attention to this question from water attorneys in the western United States, and I'm not aware of anybody having filed friend of the court briefs that really address that question at all. Our friend of the court briefing addressed the scope of the Winters doctrine and how the Ninth Circuit has, in our view, improperly expanded that doctrine. I can see those whose kind of view of water rights is skeptical of the idea of private ownership of water rights using that part of this decision to say, "Well, actually, no. Nobody owns title to water rights of any kind." And that's going to be a question that's going to have to get figured out going forward.
Wesley Hodges: Well, thank you, Tony. I really do appreciate that answer. We do have another question, Tony, and it's, "Does this decision resolve whether the Park Service or other federal agencies can regulate activity on private property within park boundaries in the lower 48?"
Tony Francois: No, it doesn't. In fact, the decision explicitly disclaims any opinion on that question. Along the lines of some of the prior questions we've been discussing, that continues to be a question. The Park Service certainly asserts the authority. The statute may purport to give them that authority to regulate all kinds of land and water uses on private property within the boundaries of national parks. The first time that this case was argued at the Supreme Court, the Solicitor General argued that that authority extends outside the boundaries of the parks where those uses would have impacts within the park. So that's very much an open question, and it's going to be an important one to resolve going forward.
Wesley Hodges: Thank you, Tony. Seeing no immediate questions, Tony, I turn the mic back to you. Do you have any closing thoughts for us today?
Tony Francois: Well, just again that this is obviously, I think, a welcome relief to Mr. Sturgeon who has been at this a long time. And that the principles in the decision have this outcome under Alaska's somewhat unique federal regulatory balance, but that many of the underlying questions will require answers in the lower 48, and those answers will need to come in future cases.
Wesley Hodges: Very good. So in case you're not in Alaska, be careful buying hovercraft.
Tony Francois: [Laughter]
Wesley Hodges: Well, Tony, thank you so much for being here. On behalf of The Federalist Society, I'd like to thank you for the benefit of your very valuable time and expertise today. We welcome all listener feedback by email at email@example.com. Thank you all for joining today. This call is now adjourned.
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