Courthouse Steps: Sturgeon v. Frost Oral Arguments

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John Sturgeon has been in litigation with the National Park Service for a decade, including two trips to the Supreme Court, over whether he can use his hovercraft to travel on Alaska’s Nation River through the Yukon-Charley Rivers National Preserve. While Park Service regulations bar the use of hovercraft within the National Park system, Sturgeon argues that a special statute applicable only in Alaska excludes navigable rivers like the Nation from the Service’s regulations. The Supreme Court is reviewing the Ninth Circuit’s most recent decision in the case, which holds that the Park Service can use the implied reserved water rights doctrine of Winters v. U.S., to regulate activities on navigable rivers in and around National Parks, even though the federal government transferred ownership of the bed and bank of those rivers to the applicable state upon statehood. Because it is not limited to Alaska, The Ninth Circuit’s holding opens up a wide opportunity for the federal government to regulate private activity on state owned rivers running through or even near Wilderness Areas and National Parks and Forests across the country.


Tony Francois, Senior Attorney, Pacific Legal Foundation


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Event Transcript

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, November 6, 2018 during a live teleforum conference call held exclusively for Federalist Society members.     


Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a Courthouse Steps on the oral argument yesterday in Sturgeon v. Frost. My name is Micah Wallen, and I'm the Assistant 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 fortunate to have with us Tony Francois, who is a Senior Attorney for the Pacific Legal Foundation. After our speaker gives his remarks, we will then go to audience Q&A. Thank you for sharing with us today. Tony, the floor is yours.


Tony Francois:  Well, thank you, and thank you to The Federalist Society for hosting this teleforum on Sturgeon v. Frost, which was argued yesterday on the Supreme Court, actually in its second appearance in that court as it happens. Thanks very much for asking me to present. My name is Tony Francois. I'm a Senior Attorney with the Pacific Legal Foundation. We’ve been following this case closely for a number of years and submitted friend-of-the-court briefs both times it has been before the Supreme Court.


      Sturgeon is a curious case because on its face, it seems to have little to do with anything outside Alaska, and yet the way it has been litigated and was ultimately decided by the Ninth Circuit below does give it significant, national implications. The facts of it are pretty simple. John Sturgeon is a moose hunter in a remote area of Alaska near the Canada border and very far inland from Alaska's coasts. This is an area with very few roads in which the rivers are the major arteries of transportation and where personal hovercraft are actually a fairly common means of travel on those rivers. If you're not familiar with these crafts, it's probably worth taking a few minutes to Google personal hovercraft and take a look at them. They appear somewhat ungainly and they operate pretty loudly. But in these remote areas they get the job done. And they're far more common in personal use in remote areas of Alaska than folks might at first assume. I'd also imagine that piloting one of these on a river deep in Alaska is not for the faint of heart at any time of year.


      It turns out that Mr. Sturgeon, for him to get to his moose hunting grounds, he has to transit a unit of the National Park system called the Yukon-Charley Rivers National Preserve along a river called the Nation River. And this is what the case is about. As it happens, Park Service has national regulations at 36 CFR 1.2(a) which ban the use of hovercraft nationwide within the boundaries of national parks. And so while he was piloting upriver one day, Mr. Sturgeon had to stop on an island on the Nation River to repair his hovercraft and was accosted by three Park Service staff who told him that he was committing a crime by using the hovercraft within the park boundary. And after debating with them for some time, Mr. Sturgeon retreated and filed this lawsuit. So he's seeking declaratory and injunctive relief over whether the hovercraft bans applies to the navigable rivers in Alaska. And because he's been threatened with prosecution once, he certainly has standing to -- out of fear of future prosecution and the desire to continue using his hovercraft.


      So Mr. Sturgeon's theory in this case is fairly simple. He argues that a provision of the Alaska National Interest Land Conservation Act, known commonly by the acronym ANILCA, modifies otherwise nationally applicable Park Service regulations such as the hovercraft provision, at least in areas within the boundaries of national parks in Alaska that are not themselves federally-owned public lands. So this would include privately-owned inholdings, lands owned by the State of Alaska or by native Alaskan corporations. Mr. Sturgeon also argues that the Nation River itself is basically within this category of what you would call inholdings within the park boundary. Because the river is navigable within this relevant reach, its bed and banks were transferred to Alaska upon statehood. And on this basis, Sturgeon argues that the river itself is not federally owned either, that to the extent anybody owns it, Alaska does.


      Alaska has joined Mr. Sturgeon in this litigation and takes the same view that it has sovereign authority over the navigable rivers within the state, that that is an attribute of statehood, and that in particular, given the unique circumstances of remote, rural Alaska, the ability of federal agencies to regulate use of these navigable rivers poses significant risks and limitations on the ability of normal Alaskans to earn a living, to travel, to do a wide variety of things in these areas where there are few or even no roads.


      So the ANILCA provision that Mr. Sturgeon and the State of Alaska rely on is at 16 U.S.C. § 3103(c) – that's generally referred to in the litigation as § 103(c). And it is similar to a lot of provisions in ANILCA which modify the normal land management regime that's applicable in the lower 48 for national parks, national forests, other federal conservation units, in order to accommodate a lot of the unique circumstances in Alaska.


      The Supreme Court's first decision in this case, which was issued in March of 2016, has a very good summary of the history of Alaska's statehood, the problems attendant on being admitted to statehood, and the disputes that led up to the passage of ANILCA. But I think the short version of that is that ANILCA establishes a variety of Alaska-only modifications to federal land management for parks and forests in order to accommodate the unique needs of the state of Alaska. Some of these include things like the authority to hunt within national parks, mining within federal conservation units that is not normally authorized. And the § 103(c) is another one of these. And what it says -- and unfortunately, its structure is a little bit difficult to construe.


      And what we saw in the oral argument yesterday at the Supreme Court was a lot of difficulty in grappling with how to interpret a phrase in § 103(c). What its purpose is seems fairly clear, which is to say that regardless of how inholdings – non-federal property within park boundaries – in the lower 48 are regulated, in Alaska, agencies like the Park Service may not regulate inholdings, non-federal property, simply because they happen to be within the boundaries of a state park. And this provision also applies to rivers because it uses a definition of public lands that incorporates water and interest in water. And so Mr. Sturgeon's argument is this Alaska-only modification to Park Service management prevents the Park Service from enforcing this otherwise nationally applicable hovercraft prohibition on an Alaska-owned river, even where it transits the National Park, even where the land on either side of the river is indisputably part of the National Park subject to the authority and regulation of the Park Service.


      The confusion in this section derives from its use of the expression of saying that these inholdings, these nonfederal portions within the boundary of the park, are exempt from federal regulations that are solely applicable to federal public lands. And Sturgeon's interpretation of this provision is that it's intended to exempt these inholdings from Park Service regulations but not to exempt them from other generally applicable federal laws like, for example, the Clean Water Act. So even though because this river is navigable, the federal government can regulate certain activities under the Clean Water Act because that does not apply based on whether or not anything is federally owned, managed, or controlled. It just applies universally. So statutes like the Clean Water Act would continue to apply to these navigable rivers in Alaska, but as Sturgeon argues, regulations that are only in effect because they attach to federally owned -- or they arise from federal ownership property, those would not apply on the river.


      Now, the Park Service throughout the litigation has taken -- has advanced two parallel arguments to counter Sturgeon's position in the case. The first argument they make is that their authority to ban the hovercraft derives from a different federal statute, which appears at 54 U.S.C. § 100751(b). And that statute authorizes the Park Service to regulate boating on or relating to water located within the national parks, and that's kind of summation of what that statute authorizes. So the Park Service clearly has the statutory authority to regulate boating on federally-owned waters within the park's boundaries. And then the statute has some, I think, perhaps -- well, probably ambiguous terms that authorize the Park Service to regulate a little more broadly than clearly federally-owned waters.


      The regulation that the Park Service adopted to implement this statutory authority, it's at 36 C.F.R. 1.2(a), is a little more precise in its scope. It says that hovercraft are banned on all waters within the boundaries of national parks, and then it says specifically, "without reference to the ownership of the bed or banks of the river or lake on which the hovercraft are used." And so where the statute is not quite clear on how broadly the Service is authorized to regulate boating in and around national parks, the regulation claims that this ban extends regardless of state ownership of the bed or bank of navigable waters as they exist within inter-transit national park units.


      So the Service then argues that this separate statutory authority to regulate boating essentially trumps the provisions of ANILCA on regulation of inholdings. And what the Service argued yesterday to the Supreme Court is that sure the ANILCA § 103(c) says that we, the Park Service, cannot regulate land, real property within the park boundaries that's privately owned or owned by the State of Alaska or by native Alaskan corporations, but that that doesn’t apply to water resources. And because there's this separate statute authorizing the regulation of boating on water resources, the Service's argument is basically that their statutory authority to regulate boating trumps ANILCA's protection of non-federal property within the parks, at least so far as navigable waters are concerned.


      And this argument yesterday was questioned pretty closely by Justice Gorsuch. And while I think as a basic matter, at least it's a non-trivial attempt at sort of reconciling these two statutes, the Solicitor General did not have very strong answers to Justice Gorsuch's questions on this, and at least Justice Gorsuch, along with the Chief Justice and Justice Alito, seemed fairly critical of the proposition that Park Service had separate independent authority to regulate water use within the national parks based on this other statute.


      The other aspect of this that came up several times in oral argument yesterday is that even if the Park Service has some sort of additional statutory authority to regulate impacts to the waterways within the national parks, was that authority so plenary that they could regulate anything happening in or along the rivers, including banning hovercraft, which, even though they are noisy and odd looking as they go by, don't seem to leave permanent impacts – they don’t take water out, they don’t have pollutants, they don’t divert water. So there were at least three members of the Court who seemed fairly skeptical of the proposition that the Park Service's authority to protect the rivers that go through the parks extend so far that they could basically regulate anything they want relating to the rivers at all.


      And there was a fair amount of back and forth during argument over the term "plenary." The Justices were asking the Solicitor General, "Do you have plenary authority over the rivers?" The Solicitor General fended that off, would not assert that the government has plenary authority, the federal government has plenary authority over here. I think perhaps missed the potential play on words because I think what he could've said was -- what was basically his argument, "We don’t have plenary authority, but we have plenty of authority to regulate the hovercraft. Wherever that line is, it certainly incorporates the hovercraft." But he would not agree that whatever authority they have is plenary.


      The second -- and so that's the way that the government tries to argue that regardless of this special Alaska-only statute dealing with inholdings in the parks, basically the rivers aren't really the same type of inholding. They're not exempt from Park Service regulation in the way that if you owned 80 acres of land surrounded by a park, that would be exempt from regulation.


      The other major argument that the Park Services made in support of its authority to regulate these rivers in Alaska is based on what's called the Winters doctrine, or less wieldy described as the implied federal reserved water rights doctrine. And I'll explain briefly what this means, but the essence of it is that under this doctrine, federal installations are implied to have reserved water rights that are necessary for the fulfillment of that installation's primary purposes when it is reserved from the public domain. And so this applies to Indian reservations; it applies to military installations; it applies in limited circumstances to conservation units like the Park System and the National Forest System. The federal government has been fairly successful in claiming these rights for tribal reservations, but has had mixed success in claiming implied reserved water rights for conservation units. One Supreme Court decision said that, yes, the Devil's Hole National Monument the government had impliedly reserved groundwater rights to maintain the depth of this underwater or this underground pool that contained an endangered fish because maintaining that pool was the reason for the monument designation.


      On the other hand, in the United States v. New Mexico, the Supreme Court said that the Forest Service did not have implied reserved rights for national forests for conservation purposes because those were only secondary purposes to the forest reservations. So the Supreme Court has established this implied reserved water rights doctrine as certainly something the federal government has recourse to, but it's got two very important limitations.


      First, the claimed reserved water rights have to be essential for fulfilling the primary purpose of the reservation. So secondary purposes don’t get reserved water rights under this doctrine, under Supreme Court decisions. And the water rights have to be more than merely useful. They have to be essential.


      Secondly, the claimed implied reserved water rights are limited to the amount necessary to fulfill this primary purpose. And so both their existence and their quantification is subject to fairly exacting standards by the Supreme Court. The Ninth Circuit's original decision in this case ruled for the Park Service on the odd basis that the ANILCA provision that Sturgeon relied on only exempted inholdings within park boundaries in Alaska from Alaska-only park regulations and did nothing to protect any of those inholdings from nationally applicable regulations. The Supreme Court granted cert to review that decision and in a unanimous decision during the Fall 2015 term, issued in March of 2016, the Court rejected the Ninth Circuit's interpretation of ANILCA but left the other issues in the case undecided and remanded the case to the Ninth Circuit for further action.


      Now, why did it do that? Well, this case was argued originally in the Supreme Court on January 20, 2016. And that date is significant because it is the last date that the late-Justice Scalia heard oral arguments on the Court. It was the last oral argument session before he died on February 13, 2016. During oral argument the first time this was argued, the argument focused heavily on this question of whether the Park Service had authority to regulate inholdings in the first place. In other words, whether this federal statute, whether this congressional act authorized any regulation of boating, either had a constitutional underpinning for its purported authorization to regulate non-park property, and whether the regulation went beyond the statute and clearly regulating boating and hovercraft on non-park property, even state-owned rivers. And both the Chief Justice and Justice Scalia were particularly aggressive in pursuing this line of questioning back in January of 2016, and observing that argument, I think that that, if Justice Scalia had not passed away, that was shaping up to be a decision that would have potentially limited Park Service authority over inholdings nationally. And so that's the first way in which this case went from being about this nice fellow in the remote wilderness of Alaska who just wants to take his hovercraft upriver to hunt moose, where almost nobody else in the world has never been, to something that had implications for federal land and resource management nationwide. And on Justice Scalia's death, the Court, obviously, was unable to come to more of a decision than that the Ninth Circuit's rather-odd-even-for-the-Ninth-Circuit reading of this statute was incorrect, and essentially punted it back to the Ninth Circuit.


      During the first oral argument, Justice Sotomayor actually asked the Solicitor General almost in as many words, "You're probably going to lose this case. What's the best loss you would like to take in the case? What kind of losing suits the United States interest best?" So it was very clear that there was no support for the Ninth Circuit's reading of ANILCA the first time around. The Park Service did not even defend that reasoning in the Supreme Court. And so even though they were clearly evenly split on the substantive issues in the case, all the Justices agreed that the Ninth Circuit had botched its analysis of this ANILCA provision § 103(c), and unable to do anything more with the case, they were able to remand it to the Ninth Circuit to take another stab at it.


      So it went back down to the Ninth Circuit, and on remand, the Ninth Circuit this time decided the case based on the government's second argument, which is that it has -- and I keep saying government. I mean the federal government because, of course, the State of Alaska is involved in this case on the side of Mr. Sturgeon. So the Ninth Circuit ruled that the federal government has implied federal reserved water rights to the extent necessary to protect the conservation resources associated with the rivers that flow through the parks, in and through the parks. And that as a result of this, the Nation River as it flows through this particular national reserve, even though the bed and banks are owned by the State of Alaska, the river itself in some sense is owned by the federal government through this implied federal reserved water right. On that basis, it is under a definitional provision in ANILCA, public land, and is part of the park. And since it is part of the park, § 103(c) does not prevent the application of Park Service regulation to it, and the Park Service was able to enforce the hovercraft ban.


      The Supreme Court granted cert again in the case, and the parties interestingly enough when they briefed the case a second time in the Supreme Court took a very careful approach to the Court's ruling that the federal government held these implied reserved water rights. There's kind of a complicated backstory to that that I don’t want to take a lot of time getting into, but if there's questions on it, I'd be happy to address that. The short version of it is that the Ninth Circuit has previously held in a separate set of litigation over interior department regulations to protect subsistence hunting and fishing rights within Alaska that the implied reserved water rights doctrine is applicable under ANILCA and was a basis for upholding subsistence regulations that were somewhat controversial when they were adopted.


      In order to arrive at that conclusion, the Ninth Circuit rather dramatically changed Supreme Court precedent—or sort of expanded it, if you will, Supreme Court precedent—on what qualifies as a -- for an implied reserved water right. It first of all never found that water rights were necessary to achieve ANILCA purposes, and instead, basically found that they were useful, which is not adequate under Supreme Court precedent to establish those rights.


      And then, secondly, [it] deferred to the Interior Department under Chevron in the agency's judgment that it held implied federal reserved rights under ANILCA. And there's a very basic problem with that ruling because in order to determine that a federal reservation has implied water rights, the implication has to be clear and unambiguous on the face of the statute that creates the reservation. So for any of the national parks, for example, that were created under ANILCA to have implied reserved rights, you'd have to be able to examine the statute and it would have to be clear on the face of the statute, unambiguous that water rights were necessary to achieve the primary purpose of that reservation. But the Ninth Circuit held that it would defer under Chevron, which is a means of allowing an agency to interpret an ambiguous statute, that the agency was correct in discerning a need for water rights to achieve the purposes of the park reservations in ANILCA.


      And so the basic conflict here is that by definition if you are applying Chevron, you're talking about an ambiguous statute as a court. But if you're faced with an ambiguous statute under the Supreme Court's precedents, especially in United States v. New Mexico, you cannot find an implied federal reserved right. Nonetheless, this Ninth Circuit interpretation has endured within the Ninth Circuit as a much laxer means for the federal government to claim implied reserved water rights. It was implicated in a recent Ninth Circuit decision finding an implied reservation of groundwater rights for a tribal reservation many years ago. The Supreme Court denied cert in that case. And in this case the parties, even though whether or not the Park Service has these implied reserved rights is central to whether the Nation River is part of the park or as an inholding, the parties tread very softly on it. And I think the obvious reason is that neither the State of Alaska nor Mr. Sturgeon wants to ask the Supreme Court to either directly, or even by implication, undermine an older Ninth Circuit decision, which even though it uses this very undisciplined and, frankly, unsupportable by the precedent, the Supreme Court precedent, reserved water rights analysis, nonetheless, is the underpinning for the validity of these very important subsistence regulations in Alaska. There's probably political as well as legal implications to challenging the validity of those regulations.


      And so the parties – Mr. Sturgeon and Alaska – argued to the Supreme Court that even if the federal government does have these reserved rights, there's no such thing as a reserved right to ban hovercraft. There are reserved rights to divert water. There may be reserved rights to leave water in stream. But there's no such thing as a water right to prevent boating or prevent the operation of hovercraft. And they're correct in that, but it's kind of a high-risk strategy, I would say, to leave the underlying conclusion that the Park Service owns water rights under the Ninth Circuit's more lax view of it when you're trying to establish that the Park Service lacks the authority to regulate the use of the rivers for boating and hovercraft.


      So this is the other aspect of the case. So the first time around, the aspect of the case that made it of national importance had to do with the Supreme Court's interest in whether or not the Park Service really had authority, not just in Alaska, but anywhere to regulate boating on non-federally owned waterways, on navigable waterways. This time around, the national issue in this case is whether the Supreme Court will let stand, even by implication, the Ninth Circuit's very lax application of the reserved water rights doctrine because far beyond Mr. Sturgeon and his moose that's now safe upstream of the National Preserve because he cannot get to it on his hovercraft through the National Park, the implied reserved water rights doctrine is applicable nationwide. And under the Ninth Circuit's much relaxed view of that standard, almost any federal installation can claim water rights that would interfere with fully developed, beneficially used, vested water rights upstream of that federal installation, potentially even downstream of them. I imagine there could be context in which that would be true. And could do so far more easily than under the much more restrictive Supreme Court precedents.


      And the reason that poses significant disruption to natural resource development and economic vitality and really even stability is that an implied reserved right can be claimed decades after a particular national park or national forest or monument was established. And if it exists, it's inchoate up until the time that the government claims it and then a court recognizes it. In that intervening period of time, which again could be decades—many decades—you'll have economic activity, water development upstream, downstream of the park, potentially even within national forests and other types of reservations where water development and right to wade for water are allowed that would nonetheless, because it's got later priority dates than the establishment of the park or forest, would be trumped by this later claimed federal reserved right.


      And so this potential for disruption is one of the key reasons behind the Supreme Court taking a very narrow view of what can be claimed. So that in a certain sense, the fact that water is essential for a federal reservation—but the reservation's purposes will go unfulfilled, be frustrated without water—serves as kind of notice, if you will, to later-comers who develop water resources. You know, there's this federal reservation here; it's probably going to need water. Under the Ninth Circuit's view, the later claimed need for water for the federal reservation could be entirely a surprise based on second, or even third, order purposes for the reservation, and in particular, in undetermined amounts and with deference to the agency's self-interested opinion of whether an ambiguous statute allocates water rights to it. So this is the significant national issue that the Ninth Circuit's second decision in this case raises.


      Now, interestingly enough during oral argument yesterday, the question of reserved rights hardly came up at all, which surprised me because, from at least my perspective of observing the case, that's really the issue in the case now. And yet, at one point Chief Justice Roberts noted without really asking a question that it appears that the parties don’t challenge whether the Park Service has reserved rights. Justice Kavanaugh pressed -- I should check my notes. I think it was the State of Alaska on whether or not the State of Alaska contested the Ninth Circuit's finding that -- yeah, this was Justice Kavanaugh to the State of Alaska, really pressing for an answer, "Does the State of Alaska agree that the Ninth Circuit used the proper way of determining the existence of implied reserved rights?" And Alaska's answer was a little cagey. Their attorney said that, "Yeah, that methodology was okay for upholding the subsistence rights for native Alaskans, but should not be applied beyond that case," but did not, then, get into why that methodology was inadequate, why it conflicted with Supreme Court precedent, really did not argue the point very much.


      And so in the Solicitor General's argument, I don't believe that the question of the implied reserved water rights even came up, except in a couple of questions from Justice Alito who pressed the Solicitor General on whether or not the Ninth Circuit had used an adequate standard. And the Solicitor General even sidestepped the question by arguing that even if the Ninth Circuit's methodology was inadequate on reserved water rights, there were still its other primary argument for its authority to enforce the hovercraft ban and the Court need not even get into the reserved water rights issue.


      I'll wrap up just with the observation that it seems a little odd, to me at least, that the Ninth Circuit's holding is—in the decision under review now at the Supreme Court—the Ninth Circuit's holding is the Park Service has implied reserved water rights that make the river part of the park, and therefore can enforce the hovercraft ban. And for the parties to then be telling the Supreme Court, "That's not really a big issue. There's other ways to resolve the case." And yet, even Sturgeon's arguments turn—stand or fall—on whether or not, I guess, the surface of the Nation River is part of the park or not. And if the Ninth Circuit is correct that the federal government has reserved rights to protect the surface of the water, then the parties seem to need and the Supreme Court seems to need to deal with this question of whether or not the Ninth Circuit is properly analyzing the question of the existence of reserved rights. And yet, that does not really seem to be central in -- certainly it was not central in the questioning yesterday, and we'll see if the Court's ultimate decision in this case really even gets into it very much.


      So with that, it's a fairly lengthy overview of the case and the issues in it, and yesterday's argument. I'll turn it over for questions if there are any.


Micah Wallen:  Thank you, Tony, for those enlightening opening remarks. And, Tony, while we're waiting for any questions to come in, what can you tell us about how the outlook for this case has changed given the fact that previously it was heard by an eight-member Court after Scalia's passing and now you not only have Scalia replaced with Gorsuch, but you also have Kavanaugh replacing Kennedy, and what the effect that those two Justices might have.


Tony Francois:  Well, thanks. That's a good question. I was struck by, yesterday, Justice Kavanaugh's pressing the issue of whether Alaska basically concedes the Ninth Circuit's implied water rights analysis. That suggests to me that he's concerned about it and wants to see if the parties are really prepared to argue that issue.


      So then the other new Justice is Justice Gorsuch. He seemed to actually have a similar degree of concern that Justice Scalia had shown when this was argued two and a half years ago, almost three years ago, which is that the Park Service is claiming the authority to -- setting aside Alaska and just thinking of this nationally under the generally applicable regulations, that the Park Service argues that it has the authority to regulate hovercraft activity on inholdings, on state-owned rivers. And in Justice Gorsuch's view, this did not seemed to be supported by the statute authorizing regulation of boating.


      One key way to think about this is you can have a fairly large inholding within the boundary of a park, say, 160- or 320-acre private property that was originally a homestead, for example. That might be big enough that it's got, for example, a private pond on it. And that pond would not be navigable, but it would also -- there would be no federal ownership of it all because it's entirely contained on private property. And yet, the Park Service's regulations assert regulatory authority over the use of that pond for boating, regardless of its private status. And that fact was very troubling to Justice Scalia at the original oral argument in January of 2016. But there, though, the difference was actually pretty stark in terms of approach to it.


      Yesterday, Justice Gorsuch had a few questions about this but seemed satisfied to be unsatisfied with the Solicitor General's answer to it, and the argument moved on. When this case was first argued in January of 2016, the first time it was before the Court, the Chief Justice and Justice Scalia were pretty relentless in questioning the Solicitor General on this exact issue. And so I think one of the main differences in the approach of the Court is that presuming that Justices Kennedy, Alito, and Thomas would've followed the Chief Justice and Justice Scalia, the view of the Court seemed to be shaping up in the direction of we’re not sure that the Park Service has the authority to regulate these inholdings in the first place; that the national regulation is invalid to that extent and Alaska's got nothing to do with this.


      Here, I think Justice Gorsuch's interest was much more on, well, what's really the interplay of these two statutes – ANILCA on the one hand, this general authority to regulate boating on the other – and which of the two actually provides the rule of law for this case? And so I don’t really see that same level of aggressive pursuit of the idea, at least as it came out in oral argument yesterday, that the Park Service's authority may not even extend to these inholdings in the first place.


Micah Wallen:  all right. And we have a questioned lined up now, so without further ado, we'll go to our first question.


Helen Goldstein:  Hi, this is Helen Goldstein down in Phoenix. So when the Supreme Court originally had the case, the opinion kind of seemed to emphasize that Alaska has kind of unique conditions, and they called it that Alaska was often the exception, not the rule. Do you think there's a way in which SCOTUS might overrule the Ninth Circuit but in some way kind of limit its holding to make the case Alaska-specific? And if so, how would it do that?


Tony Francois:  Well, so I think that's probably where the Chief Justice is leaning. Justices Kagan and Sotomayor yesterday both seemed to lean heavily in favor of the Park Service, and they spent a lot of time arguing over what this solely applicable provision in § 103 of ANILCA really means. You know, what does it mean to say that a regulation is solely applicable to public lands? I think it's a little difficult for -- well first of all, I should say I think that the Court could decide this in an Alaska-only way if it did two things. First, it could say without regard to whether or not the Park Service has implied reserved water rights, such a right does not include regulating the use of the service of the water by boats or hovercraft. There is no such water right. And so we'll set the whole implied water rights question to the side, and then we'll say that the way that § 103(c) works, it works the way Mr. Sturgeon says it does. That would then be an Alaska-only decision that didn't say anything about the Ninth Circuit's implied water rights analysis, but would effectively leave that way of finding reserved water rights intact throughout the Ninth Circuit. And so certainly in Arizona.


      And so even though that would result the case in an Alaska-specific way, it would leave this, at least Ninth Circuit wide, very lax reserved water rights theory in effect and certainly give the Ninth Circuit no pause to continue applying it that way.


      Now, the other thing they could do is directly take on the implied reserved water rights analysis that the Ninth Circuit engaged in, overturn that, say that without a reserved water right, the rivers – the navigable rivers – that transit the parks in Alaska are not part of the park unit, and therefore under § 103(c) of ANILCA, the hovercraft ban doesn't apply.


      So I think the only way to get to a really Alaska-only impacts of the case is for them to directly deal with the Ninth Circuit's reserved water rights analysis and reject it. I don't really see a lot of interest, at least from the questioning, of them doing that, though. I think there's a couple of Justices that are interested in that issue – Justice Kavanaugh, Justice Alito – but the Chief Justice clearly seemed to think, well, look, Alaska and Sturgeon, neither of you really contest that the Service doesn't have this water right. And Alaska made a little bit of an effort to say, well, we think they don’t in this case or that it's inappropriately applied in this case. Sturgeon's attorney did not contest it all to my recollection.


Micah Wallen:  Tony, not seeing any more questions lined up, did you have any closing remarks?


Tony Francois:  Well, just to say that I think this'll be very interesting to see how the -- where the new Justices will go with this case. It's basically before the Court on fairly different terms than it was the last time. And it'll be important to watch exactly how the Court resolves this case to determine what its national impacts are, which I think unless they directly deal with and reject the Ninth Circuit's reserved water rights analysis, the effect of the case will be to significantly broaden federal regulatory control associated with parks and national forests nationwide.


Micah Wallen:  And actually one question jumped in while you were closing up, so let's -- we have a few minutes left, so let's hop to that question now.


Caller 2:  [Inaudible 50.48] under the CEI. Is it my understanding, then, that if the Court does not overturn the Ninth Circuit reserved water reserved analysis, then it's likely that all small landowners across the West, small farmers and ranchers with water rights for irrigation and watering livestock and so on, would have -- be subject to having those taken by either an adjacent park or an adjacent national forest?


Tony Francois:  I think that's certainly a risk, adjacent or downstream of them.


Caller 2:  Right. Either upstream or downstream because you could reserve it for the unit or claim that they weren't getting enough to the unit.


Tony Francois:  Yeah. Absolutely.


Caller 2:  Okay. Well, that's pretty frightening.


Micah Wallen:  And on that note, is there any other closing remarks that you would like to add, Tony?


Tony Francois:  No, I think that's a pretty good note to close it on.


Micah Wallen:  All right. Well, on behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at Thank you all for joining us. We are adjourned.


Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at