San Francisco Herring Assoc. v. Usdoi

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SAN FRANCISCO HERRING No. 20-17412
ASSOCIATION,
Plaintiff-Appellant, D.C. No.
4:13-cv-01750-
v. JST

U.S. DEPARTMENT OF THE INTERIOR;
DEB HAALAND, in her official OPINION
capacity as Secretary of the Interior;
UNITED STATES NATIONAL PARK
SERVICE; SHAWN BENGE, in his
official capacity as Deputy Director
of the National Park Service; LAURA
JOSS, in her official capacity as
General Superintendent of the
Golden Gate National Recreation
Area,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding

Argued and Submitted January 25, 2022
Pasadena, California

Filed May 10, 2022
2 SAN FRANCISCO HERRING ASS’N V. USDOI

Before: J. Clifford Wallace and Daniel A. Bress, Circuit
Judges, and Morrison C. England, Jr., * District Judge.

Opinion by Judge Bress

SUMMARY **

Golden Gate National Recreation Area Act

The panel affirmed the district court’s summary
judgment in favor of the government in a lawsuit alleging
that the National Park Service lacked authority to prohibit
commercial herring fishing in the Golden Gate National
Recreation Area.

The panel held that the text and structure of the Golden
Gate National Recreation Area (“GGNRA”) Act confirmed
that Congress has given the Park Service administrative
jurisdiction over the waters in question and authorized the
Park Service to administer the navigable waters within the
Recreation Area’s boundaries one-quarter mile offshore.

The panel rejected appellant’s argument that the Park
Service could only administer the navigable waters of the
GGNRA if the Service acquired a formal property interest in
those waters from the State of California. Nothing in the
GGNRA Act imposed such an unusual (and potentially

The Honorable Morrison C. England, Jr., United States District
*

Judge for the Eastern District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 SAN FRANCISCO HERRING ASS’N V. USDOI 3

unachievable) condition precedent upon the Park Service’s
usual authority over navigable waters within park
boundaries. The language and context of the GGNRA Act
instead reflected the commonsense conclusion that Congress
did not include navigable waters within the boundaries of the
GGNRA and direct their protection, only to severely
hamstring the Park Service in accomplishing that objective.
The Park Service therefore could administer the navigable
waters of San Francisco Bay within the GGNRA, with the
consequence that it may enforce its commercial fishing rules
in those waters.

COUNSEL

Todd R. Gregorian (argued) and Eric B. Young, Fenwick &
West LLP, San Francisco, California; Stuart G. Gross, Gross
& Klein LLP, San Francisco, California; for Plaintiff-
Appellant.

Anna T. Katselas (argued), Andrew C. Mergen, Robert J.
Lundman, and David w. Gehlert, Attorneys; Michael T.
Pyle, Assistant United States Attorney; Todd Kim, Assistant
Attorney General; Environment and Natural Resources
Division, United States Department of Justice, Washington,
D.C.; Gregory Lind, Office of the Solicitor, United States
Department of the Interior, Washington, D.C.; for
Defendants-Appellees.
4 SAN FRANCISCO HERRING ASS’N V. USDOI

OPINION

BRESS, Circuit Judge:

In 1972, Congress created the Golden Gate National
Recreation Area (GGNRA), establishing a portion of San
Francisco Bay as part of the National Park System.
Congress included within the geographic boundaries of the
GGNRA certain navigable waters that were already subject
to the jurisdiction of the United States. The question in this
case is whether the National Park Service may enforce in
these offshore waters a prohibition on commercial fishing
that applies generally in national parks. The answer to that
question turns on whether Congress in the GGNRA’s
enabling act gave the Park Service statutory authority to
administer the disputed waters of San Francisco Bay.

It quite clearly did. The text and structure of the
GGNRA Act confirm that Congress has given the Park
Service administrative jurisdiction over the waters in
question. The contrary position of appellant San Francisco
Herring Association, meanwhile, is untenable. The
Association would have us hold that the Park Service could
only administer the navigable waters of the GGNRA if the
Service acquired a formal property interest in those waters
from the State of California. But nothing in the GGNRA Act
imposes such an unusual (and potentially unachievable)
condition precedent upon the Park Service’s usual authority
over navigable waters within park boundaries. The language
and context of the GGNRA Act instead reflect the
commonsense conclusion that Congress did not include
navigable waters within the boundaries of the GGNRA and
direct their protection, only to severely hamstring the Park
Service in accomplishing that objective. We therefore
affirm the district court’s summary judgment to the Park
Service.
 SAN FRANCISCO HERRING ASS’N V. USDOI 5

I

A

In 1916, Congress enacted the National Park Service
Organic Act (Organic Act), ordering the Secretary of the
Interior, through the Director of the National Park Service,
to administer the National Park System “to conserve the
scenery, natural and historic objects, and wild life in the
System units and to provide for the enjoyment of [the same]
in such manner and by such means as will leave them
unimpaired for the enjoyment of future generations.”
54 U.S.C. § 100101. “The System shall include any area of
land and water administered by the Secretary, acting through
the Director, for park, monument, historic, parkway,
recreational, or other purposes.” Id. § 100501.

To achieve these preservation objectives, the Organic
Act delegated to the Secretary the authority to “prescribe
such regulations as the Secretary considers necessary or
proper for the use and management of System units.” Id.
§ 100751(a). Relevant here, Congress in 1976 amended the
Organic Act to clarify the Secretary’s authority to “prescribe
regulations . . . concerning boating and other activities on or
relating to water located within System units, including
water subject to the jurisdiction of the United States.” Id.
§ 100751(b); see also Pub. L. No. 94-458, sec. 1, 90 Stat.
1939 (1976).

The Park Service has adopted a host of regulations
governing activities within national park units. These Park
Service regulations apply, inter alia, within “[t]he
boundaries of federally owned lands and waters
administered by the National Park Service” and within
“[w]aters subject to the jurisdiction of the United States
6 SAN FRANCISCO HERRING ASS’N V. USDOI

located within the boundaries of the National Park System,
including navigable waters.” 36 C.F.R. §§ 1.2(a)(1), (3).

Park Service regulations generally do not apply to “non-
federally owned lands and waters . . . located within
National Park System boundaries.” Id. § 1.2(b). However,
for waters subject to the jurisdiction of the United States
located within park boundaries, including navigable waters,
the regulations apply “except in Alaska, without regard to
the ownership of submerged lands, tidelands, or lowlands.” 1
Id. § 1.2(a)(3). Under the regulations, and as relevant here,
“boundary” “means the limits of lands or waters
administered by the National Park Service as specified by
Congress.” Id. § 1.4(a).

In 1972, Congress established the GGNRA as part of the
National Park System. Pub. L. No. 92-589, 86 Stat. 1299
(1972) (codified at 16 U.S.C. § 460bb et seq.). Covering
land and waters in San Francisco Bay that Congress deemed
to “possess[] outstanding natural, historic, scenic, and
recreational values,” the GGNRA Act provides that “the
Secretary shall preserve the recreation area, as far as
possible, in its natural setting, and protect it from
development and uses which would destroy the scenic
beauty and natural character of the area.” 16 U.S.C.
§ 460bb. In managing the GGNRA, the Secretary “shall
utilize the resources in a manner which will provide for the
recreation and educational opportunities consistent with
sound principles of land use planning and management.” Id.

1
The “Alaska exception” was added to the regulation after the
Supreme Court’s decision in Sturgeon v. Frost, 139 S. Ct. 1066 (2019),
a case we discuss further below. See 5 Fed. Reg. 72956-01 (Nov. 16,
2020).
 SAN FRANCISCO HERRING ASS’N V. USDOI 7

Because this case concerns the Park Service’s authority
under the GGNRA Act, it is necessary to explain the relevant
provisions in some detail. Section § 460bb-1 defines the
physical boundaries of the GGNRA. Id. § 460bb-1(a). The
Recreation Area is comprised of “the lands, waters, and
submerged lands” within its drawn boundaries, as
specifically identified on certain property records and
referenced maps. Id. Section 460bb-1(a)(1), entitled “Initial
lands,” largely identifies lands and waters that were part of
the GGNRA at the time of the Act’s passage in 1972.
Compare Pub. L. No. 92-589, § 2, 86 Stat. 1299 (1972) with
Pub. L. No. 109-131, sec. 202, § 2(a), 119 Stat. 2566 (2005).
Section § 460bb-1(a)(2), entitled “Additional lands,” lists
various lands and waters that have been added to the
GGNRA over time. See Pub. L. No. 93-544, § 2, 88 Stat.
1741 (1974); Pub. L. No. 95-625, sec. 317(a), § 2, 92 Stat.
3467 (1978); Pub. L. No. 96-199, sec. 103(a), § 2, 94 Stat.
67 (1980); Pub. L. No. 96-344, sec. 4(1), § 2, 94 Stat. 1133
(1980); Pub. L. No. 96-607, sec. 1001(1), § 2, 94 Stat. 3539
(1980); Pub. L. No. 102-299, sec. 2(b), § 2, 106 Stat. 236
(1992); Pub. L. No. 106-350, sec. 2, § 2, 114 Stat. 1361
(2000); Pub. L. No. 109-131, sec. 202, § 2, 119 Stat. 2566
(2005).

As relevant here, the boundaries of the GGNRA extend
one-quarter mile offshore from Sausalito to Bolinas Bay in
Marin County, around Alcatraz Island, and from Fort Mason
to below Ocean Beach in San Francisco County. See
16 U.S.C. § 460bb-1(a)(1). This map in the record shows
the relevant offshore boundaries:
8 SAN FRANCISCO HERRING ASS’N V. USDOI

The majority of these quarter-mile offshore areas were part
of the GGNRA upon its enactment in 1972. See H.R. Rep.
No. 92-1391, at 53–55 (1972) (appended maps of GGNRA’s
original boundaries).

The next section of the Act, codified at 16 U.S.C.
§ 460bb-2, is entitled “Acquisition policy.” This section
provides details on which federal properties would be
transferred to the GGNRA upon enactment and how the
Secretary may acquire additional lands, including non-
federal lands, that lie within the boundaries of the GGNRA.
16 U.S.C. § 460bb-2(a). Specifically, “[e]xcept as
hereinafter provided, Federal property within the boundaries
of the recreation area is hereby transferred without
consideration to the administrative jurisdiction of the
Secretary for the purposes of this subchapter,” subject to
certain agreements between the Secretary and the agency
formerly having jurisdiction over the property. Id. In
considerable detail, § 460bb-2 then discusses the transfer of
 SAN FRANCISCO HERRING ASS’N V. USDOI 9

various military properties, such as former forts and airfield
space, into the GGNRA. Id. §§ 460bb-2(b)–(h).

With respect to future acquisitions, § 460bb-2 provides,
in pertinent part, that “[w]ithin the boundaries of the
recreation area, the Secretary may acquire lands,
improvements, waters, or interests therein, by donation,
purchase, exchange, or transfer.” Id. § 460bb-2(a).
However, “[a]ny lands, or interests therein, owned by the
State of California or any political subdivision thereof, may
be acquired only by donation.” Id. The remainder of
§ 460bb-2 contains extensive provisions spelling out the
mechanics of the Secretary’s future land acquisitions, such
as financing, deferred payments, and so forth. Id. §§ 460bb-
2(m), (o).

The next section of the GGNRA Act, codified at
16 U.S.C. § 460bb-3, is entitled “Administration.” In
relevant part, this section states that:

The Secretary shall administer the lands,
waters, and interests therein acquired for the
recreation area in accordance with the
provisions of the [NPS Organic Act], as
amended and supplemented, and the
Secretary may utilize such statutory authority
available to him for the conservation and
management of wildlife and natural resources
as he deems appropriate to carry out the
purposes of this subchapter.

Id. § 460bb-3(a). As we will see, this provision is central to
the Association’s argument that the Park Service must
acquire a formal property interest in navigable waters before
it may administer them.
10 SAN FRANCISCO HERRING ASS’N V. USDOI

B

The San Francisco Herring Association is a California-
based non-profit group composed of small business owners
who fish in the Bay Area. Suing on behalf of its members,
the Association seeks to prevent the Department of Interior,
the Park Service, and various agency officials (collectively,
the Park Service) from enforcing in the GGNRA a
commercial fishing prohibition that applies generally in
national park units. The regulation at issue, which was
promulgated in 1983, prohibits “[c]ommercial fishing,
except where specifically authorized by Federal statutory
law.” 36 C.F.R. § 2.3(d)(4). Violations of this prohibition
are punishable by fine and up to six months in prison. See
id. § 1.3(a).

Each year from approximately November to March,
herring enter San Francisco Bay to spawn, concentrating
along the shores of Sausalito and Tiburon. Fishermen have
caught herring from the Bay since at least the mid-nineteenth
century, but more specialized fishing did not begin for
herring roe, or eggs, until the 1960s. According to the
Association, the waters at issue in this case are essential to
the roe fishery because fishing is concentrated in discrete
spawning areas near the shore.

The California Department of Fish and Wildlife
(CDFW) has extensively regulated the herring roe fishery
since 1973 to ensure that the fishery is safe and sustainable.
Each year, prior to the beginning of the fishing season,
CDFW issues an information packet to fishermen. Although
the parties dispute when the Park Service began to assert
administrative jurisdiction over the navigable waters in the
GGNRA, by 2007 CDFW was including a formal notice in
its information packet stating that the National Park Service
 SAN FRANCISCO HERRING ASS’N V. USDOI 11

had “exclusive jurisdiction” over the shoreline waters in
question.

In 2013, the Association filed this lawsuit against the
Park Service, alleging that the Service lacked the statutory
authority to prohibit commercial herring fishing in the
GGNRA. The district court disagreed and granted summary
judgment for the government.

In two previous appeals, we held first that the district
court lacked subject matter jurisdiction over the case because
the Association had failed to identify any final agency action
under the Administrative Procedure Act (APA), see San
Francisco Herring Ass’n v. U.S. Dep’t of Interior (Herring
I), 683 F. App’x 579, 580 (9th Cir. 2017), and then that the
Association had later sufficiently alleged final agency action
based on new allegations of specific enforcement efforts
against individual fishermen. See San Francisco Herring
Ass’n v. U.S. Dep’t of Interior (Herring II), 946 F.3d 564,
576–77 (9th Cir. 2019). On remand from Herring II, the
district court then granted summary judgment to the Park
Service, essentially reinstating its original decision that led
to Herring I.

The Association has appealed for a third time. With the
final agency action issue settled, we now confront the merits
of the Association’s statutory argument, reviewing the
district court’s grant of summary judgment de novo. Ctr. for
Biological Diversity v. Esper, 958 F.3d 895, 903 (9th Cir.
2020).

II

Under the APA, a court may set aside final agency action
if it determines that the action is “in excess of statutory
jurisdiction, authority, or limitations, or short of statutory
12 SAN FRANCISCO HERRING ASS’N V. USDOI

right.” 5 U.S.C. § 706(2)(C). In this case, the Association
maintains that, under the GGNRA Act, the Park Service
lacks the authority to enforce its commercial fishing
prohibition on navigable waters within the GGNRA’s
boundaries. “When a party challenges agency action as
inconsistent with the terms of a statute, courts apply the
familiar analytical framework set forth in Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 [] (1984).” Corrigan v. Haaland, 12 F.4th 901, 906–07
(9th Cir. 2021). Under Chevron, “[i]f the intent of Congress
is clear, that is the end of the matter; for the court, as well as
the agency must give effect to the unambiguously expressed
intent of Congress.” Chevron, 467 U.S. at 842–43.

In conducting this inquiry, we employ “traditional tools
of statutory construction.” Id. at 843 n.9. We construe a
statute “in accordance with its ordinary and natural
meaning,” N.L. v. Credit One Bank, N.A., 960 F.3d 1164,
1167 (9th Cir. 2020), recognizing that “[i]t is a fundamental
canon of statutory construction that the words of a statute
must be read in their context and with a view to their place
in the overall statutory scheme,” Davis v. Mich. Dep’t of
Treasury, 489 U.S. 803, 809 (1989). See also Nken v.
Holder, 556 U.S. 418, 426 (2009) (“[S]tatutory
interpretation turns on the language itself, the specific
context in which that language is used, and the broader
context of the statute as a whole.” (quotations omitted)).

We hold that based on its language and structure, the
GGNRA Act authorizes the Park Service to administer the
navigable waters within the Recreation Area’s boundaries
one-quarter mile offshore. The Park Service may therefore
enforce its generally applicable commercial fishing
prohibition in the disputed waters of the GGNRA.
 SAN FRANCISCO HERRING ASS’N V. USDOI 13

A

Based on the statutory provisions as we set them out
above, one might naturally assume that the Park Service of
course has the statutory authority to administer navigable
waters within the GGRNA’s drawn geographic boundaries.
But the Association argues otherwise, pointing specifically
to § 460bb-3(a). That provision states in pertinent that “[t]he
Secretary shall administer the lands, waters and interests
therein acquired for the recreation area.” 16 U.S.C.
§ 460bb-3(a) (emphasis added). The Association argues that
for the Park Service to be able to “administer” the waters in
question, it must first have “acquired” a formal property
interest in them. Any such interest, the Association
contends, is held by the State of California based on its
alleged ownership of the submerged lands beneath the
waters. Because the Park Service has not acquired from
California any formal property interest in the disputed
waters, the Association maintains that the Park Service lacks
the power to administer these waters, with the result that it
may not enforce its commercial fishing prohibition.

We do not think the Association’s argument reflects the
best reading of the statutory text. It is not disputed that the
navigable waters at issue here are already within the
jurisdiction of the United States, i.e., subject to federal
regulation. See, e.g., United States v. Rands, 389 U.S. 121,
122–23 (1967) (discussing congressional power over
navigable waters); see also Utah Div. of State Lands v.
United States, 482 U.S. 193, 202 (1987) (“[E]ven if the land
under navigable water passes to the State, the Federal
Government may still control, develop, and use the waters
for its own purposes.”). And the Organic Act specifically
gives the Secretary authority to “prescribe regulations . . .
concerning boating and other activities on or relating to
14 SAN FRANCISCO HERRING ASS’N V. USDOI

water located within System units, including water subject
to the jurisdiction of the United States.” 54 U.S.C.
§ 100751(b) (emphasis added). As the Supreme Court has
explained, the Organic Act’s “statutory grants of power
make no distinctions based on the ownership of either lands
or waters (or lands beneath waters)” within park boundaries.
Sturgeon v. Frost, 139 S. Ct. 1066, 1076 (2019); see also
36 C.F.R. § 1.2(a)(3). The Park Service’s general rules and
regulations apply unless a park-specific law is “in conflict”
with the Organic Act. 54 U.S.C. § 100755(a).

There is no such conflict here. Congress in the GGNRA
Act squarely placed the navigable waters at issue here within
the boundary lines of the Recreation Area. See 16 U.S.C.
§ 460bb-1(a) (referenced maps). Indeed, Congress
intentionally incorporated maps that extended a defined
quarter-mile-deep zone into the navigable waters of San
Francisco Bay specifically to ensure that those waters would
be regarded as part of the GGNRA. Id. Congress then
expressly provided that in “carrying out the provisions of
this subchapter, the Secretary shall preserve the recreation
area, as far as possible, in its natural setting, and protect it
from development and uses which would destroy the scenic
beauty and natural character of the area.” Id. § 460bb
(emphasis added). Congress further directed the Secretary
to “utilize such statutory authority available to him for the
conservation and management of wildlife and natural
resources as he deems appropriate to carry out the purposes
of this subchapter.” Id. § 460bb-3(a).

Read together, these provisions show that Congress
granted the Secretary the authority to administer navigable
waters within the Recreation Area’s boundaries that were
already subject to federal jurisdiction. To “acquire” means
“[t]o gain possession or control of.” Acquire, Black’s Law
 SAN FRANCISCO HERRING ASS’N V. USDOI 15

Dictionary (8th ed. 2004). It is well established that
“running waters cannot be owned—whether by a
government or by a private party.” Sturgeon, 139 S. Ct. at
1078 (citing Fed. Power Comm’n v. Mohawk Power Corp.,
347 U.S. 239, 247 n.10 (1954)). With that legal backdrop,
of which Congress is presumed to be aware, see, e.g.,
Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184–85
(1988), when Congress placed the disputed navigable waters
within the boundaries of the GGNRA and directed their
protection, the Park Service necessarily gained control over
them, which is to say that it sufficiently “acquired” them for
the purpose of administering them. 16 U.S.C. § 460bb-3(a).
There was quite clearly a transfer of authority over these
waters to the Park Service. See id. §§ 460bb, -2(a). Thus,
there was no requirement for the Park Service to further
“acquire” some formal property interest in navigable waters
that are already subject to the jurisdiction of the United
States; that are specifically delineated as part of the
GGNRA; and that cannot even be “owned” in the traditional
sense. Sturgeon, 139 S. Ct. at 1078.

The GGNRA’s differential treatment of land and
navigable waters confirms our reading of the statute. In
setting the boundaries of the GGNRA, Congress transferred
existing federal lands into the GGNRA but also included
within the boundaries of the Recreation Area nonfederal
lands over which the Park Service otherwise lacked
jurisdiction. See 16 U.S.C. §§ 460bb-1, -2. Congress then
included extensive provisions for how the Secretary may
acquire land but said nothing about how the Secretary might
acquire navigable waters. For example, with respect to
property held by California, § 460bb-2(a) provides that
“[a]ny lands, or interests therein, owned by the State of
California or any political subdivision thereof, may be
acquired only by donation,” without making any mention of
16 SAN FRANCISCO HERRING ASS’N V. USDOI

the Secretary acquiring interests in navigable waters from
the State. Id. § 460bb-2(a).

Other provisions are to similar effect. Section 460bb-
2(m), for example, provides detailed provisions for how the
Secretary may finance land acquisitions but provides no
guidance for acquiring rights in navigable waters. Similarly,
§ 460bb-2(o), entitled “Payment deferral; scheduling;
interest rate,” explains that “[i]n acquiring those lands
authorized by the Ninety-fifth Congress for the purposes of
this subchapter, the Secretary may, when agreed upon by the
landowner involved, defer payment or schedule payments.”
Id. § 460bb-2(o) (emphasis added). Notably absent is any
comparable provision addressing payment deferral and
scheduling of acquisitions of navigable waters—for waters
that Congress specifically included in the GGNRA, no less.
Taken together, these provisions lend additional support to
the Park Service’s basic point that Congress did not envision
the Secretary having to further acquire from California
formal property rights in navigable waters that were already
subject to federal jurisdiction and specifically included in
park boundaries.

Finally, the Association’s position is not only an inferior
reading of the statutory text but could result in a significant
implausibility. The GGNRA Act prevents the Secretary
from acquiring property through eminent domain. Id.
§ 460bb-2(a). And within the GGNRA the Secretary may
only acquire land interests from California by donation. Id.
Under the California Constitution, however, the State may
not alienate property rights held in the public trust for
purposes of fishing and navigation. See Cal. Const. Art. I,
§ 25, Art. X, § 4. The Association’s position thus leads to
the apparent outcome that Congress included the waters at
issue within the boundaries of the Recreation Area, directed
 SAN FRANCISCO HERRING ASS’N V. USDOI 17

the Secretary to “preserve the recreation area, as far as
possible,” 16 U.S.C. § 460-bb (emphasis added), and then
made it potentially impossible for the Secretary to do so. In
its first amended complaint, the Association in fact
affirmatively alleged that “the State of California could not
have granted Defendants the right to prohibit fishing in the
waters in question.”

The Association now suggests in its briefing that there is
“some conveyance” that would allow the Service to
“administer the waters generally” “without offending public
trust rights, and thus give the GGNRA Act meaning and
effect.” But the Association has not sufficiently
demonstrated how such a transaction with the State would
work or whether it could even be accomplished when the
waters themselves cannot be owned. The principal case the
Association cites concerned an action “by the state of
California to quiet its title to certain lands.” People v. Cal.
Fish Co., 138 P. 79, 81 (Cal. 1913) (emphasis added). And
even if the Association’s contemplated conveyance were
possible, the lack of any provision in the GGNRA for such a
novel “acquisition” convinces us that this is not what
Congress had in mind when it included the disputed waters
within park boundaries and ordered the Park Service to
protect the area to the fullest extent possible.

B

In its reply brief, the Association for the first time argued
that the Supreme Court’s decision in Sturgeon supports its
interpretation of the GGNRA. We disagree. Sturgeon is
distinguishable. In fact, if anything, Sturgeon confirms that
the Park Service’s position here is the better one.

The dispute in Sturgeon arose from the Park Service’s
attempt to apply its regulation banning hovercrafts,
18 SAN FRANCISCO HERRING ASS’N V. USDOI

36 C.F.R. § 2.17(e), to a portion of the Nation River in the
Yukon-Charley Rivers National Preserve, a park system unit
in Alaska. Sturgeon, 139 S. Ct. at 1072. Sturgeon, a
hovercraft-traveling moose hunter, argued that under the
Alaska National Interest Lands Conversation Act
(ANILCA), 16 U.S.C. § 3101 et seq., the Park Service could
not enforce its hovercraft ban in the disputed waters because
in Alaska, “the Park Service has no power to regulate lands
or waters that the Federal Government does not own.”
139 S. Ct. at 1073.

National Park system units in Alaska—comprising
nearly 44 million acres—are drawn based on geographical
boundaries that include land held by the State, Indian tribes,
and private landowners. Id. at 1076–77. In the usual course,
“inholdings” such as these would typically be subject to Park
Service regulations because under the Organic Act and
implementing regulations, the Park Service is authorized to
regulate within park boundaries without regard to ownership
of the lands or waters. Id. at 1076 (citing 54 U.S.C.
§§ 100751(a), 100751(b); 36 C.F.R. §§ 1.2(a)(3), 6.2). But
the Supreme Court held that the Park Service could not apply
its hovercraft ban to the disputed waters within park
boundaries in Alaska because of statutory language unique
to ANILCA, which was itself borne out of Alaska’s unique
history and geography. Id. at 1073–77.

The unique statutory language is found in Section 103(c)
of ANILCA, which provides, in pertinent part, that “[o]nly
those lands within the boundaries of any conservation
system unit which are public lands (as such term is defined
in this Act) shall be deemed to be included as a portion of
such unit.” 16 U.S.C. § 3103(c) (emphasis added).
“[C]rucially,” the Supreme Court explained in Sturgeon,
139 S. Ct. at 1076, the term “land” in ANILCA is defined to
 SAN FRANCISCO HERRING ASS’N V. USDOI 19

mean “lands, waters, and interests therein.” 16 U.S.C.
§ 3102(1) (emphasis added). And “public lands” means
“lands the title to which is in the United States.” Id.
§ 3102(2) (emphasis added); see also id. § 3102(3).

Based on this language, Sturgeon held, “[a]s a matter of
geography, both public and non-public lands fall inside those
parks’ boundaries,” but “as a matter of law, only public lands
would be viewed as doing so.” Sturgeon, 139 S. Ct. at 1081.
Sturgeon thus held that the Park Service could not regulate
the waters within the Yukon-Charley Rivers National
Preserve. The United States did not own “title” to the Nation
River because, as we have noted, “running waters cannot be
owned—whether by a government or by a private party.” Id.
at 1078. And Alaska owned title to the lands beneath the
river. Id. 2

The Association argues that § 460bb-3 in the GGNRA,
which contains the alleged property interest acquisition
requirement, is equivalent to Section 103(c) of ANILCA.
But, in fact, § 460bb-3 differs meaningfully from Section
103(c). The latter is explicit that “[o]nly” the “public lands”
within any system unit’s boundaries would be “deemed” a
part of that unit. 16 U.S.C. § 3103(c). And unlike the

2
We need not resolve the complex dispute between the parties over
who owns the submerged lands under the waters at issue here.
Resolution of that disagreement would not answer the ultimate question
of whether Congress specified that the Secretary had to further acquire a
formal property interest in the navigable waters of San Francisco Bay
before it could regulate them. And if, as we hold today, Congress did
give the Secretary authority to administer the navigable waters without
requiring the Park Service to acquire a formal property interest from
California, under the Organic Act and Park Service regulations formal
ownership of the land beneath the waters is irrelevant. See Sturgeon,
139 S. Ct. at 1076; 36 C.F.R. § 1.2(a)(3).
20 SAN FRANCISCO HERRING ASS’N V. USDOI

GGNRA Act, ANILCA expressly defines “lands” to include
water. Id. § 3102(1). ANILCA is also clear that determining
whether lands (or waters) are “public lands” depends on
whether the United States has “the title” to them. Id.
§ 3102(2).

The GGNRA Act does not use similar language, nor does
it explicitly “deem” waters inside the Recreation Area’s
boundaries as outside the National Park System entirely. See
Sturgeon, 139 S. Ct. at 1081 (“The key word here is
‘deemed.’”). Instead, the GGNRA reflects the opposite
approach: the disputed navigable waters of San Francisco
Bay are affirmatively part of the park, with no further
requirement that anything more be done to make them so.
That makes some sense considering that whereas ANILCA
drew national park boundaries around 44 million acres in
Alaska—of which 18 million were not owned by the federal
government, id. at 1075—we are considering here a
drastically smaller quarter-mile offshore zone that was
specifically included as part of the GGNRA’s boundaries.
Congress did not draw a massive circle around San
Francisco Bay that happened to include these waters; it
instead intentionally identified specific quarter-mile
offshore areas for designated inclusion in the park.

Moreover, while the GGNRA Act reflects an analogous
approach to ANILCA when it comes to non-federal land, the
GGNRA Act differs from ANILCA when it comes to
navigable waters: it does not equate “land” with “navigable
waters” for legal purposes. Cf. id. at 1086 (“ANILCA does
not readily allow the decoupling of navigable waters from
other non-federally owned areas in Alaskan national parks
for regulatory . . . purposes.”). Although “we must read
ANILCA as treating identically solid ground and flowing
water,” id., the text of the GGNRA Act does not reflect that
 SAN FRANCISCO HERRING ASS’N V. USDOI 21

same approach. That is because, as we explained above, the
GGNRA Act makes extensive provision for the acquisition
of non-federal lands and discusses at length particular
properties for inclusion, but says nothing about acquiring
property interests in navigable waters.

In short, Sturgeon shows that when Congress wants to
disallow the Park Service from exercising its usual authority
over navigable waters falling within the drawn boundaries of
a national park system unit, Congress makes that intention
clear. As the Supreme Court noted, “[i]f Sturgeon lived in
any other State, his suit would not have a prayer of success.”
Id. at 1080; see also id. at 1075 (explaining that in ANILCA,
“Congress set aside extensive land for national parks and
preserves—but on terms different from those governing such
areas in the rest of the country”); id. at 1087 (“ANILCA
recognized that when it came to navigable waters—just as to
non-federal lands—in the new parks, Alaska should be the
exception, not the rule.” (quotations omitted)).

The Supreme Court in Sturgeon also made clear that its
construction of ANILCA still “le[ft] the Park Service with
multiple tools to ‘protect’ rivers in Alaskan national parks,”
including purchasing the submerged lands from Alaska. Id.
at 1086–87 (citing 16 U.S.C. § 3103(c)). But as discussed
above, the GGRNA Act disallows such purchases from
California, 16 U.S.C. § 460bb-2(a), and the Association
maintains that California law would impose its own set of
restrictions on the alienation of rights held in the public trust,
Cal. Const. Art. I, § 25, Art. X, § 4. Unlike in Sturgeon, the
Association’s argument, if accepted, would make the Park
Service’s ability to protect the navigable waters in the
GGNRA far more doubtful.

The substantial textual differences between ANILCA
and the GGNRA Act thus confirm that Sturgeon does not
22 SAN FRANCISCO HERRING ASS’N V. USDOI

assist the Association, but instead supports the government.
While Congress in ANILCA “created an Alaska-specific
exception” to the Park Service’s usual authority, id. at 1072,
we conclude it did not create such an exception for the
disputed navigable waters in San Francisco Bay. We
therefore hold that the Park Service may administer the
navigable waters of San Francisco Bay within the GGNRA,
with the consequence that it may enforce its commercial
fishing rules in those waters. 3

AFFIRMED.

3
Because we agree reviewing de novo that the Park Service prevails
under the GGNRA Act, we do not address whether the Service’s
interpretation would be entitled to Chevron deference. And because we
do not locate the Service’s authority over the disputed waters in the
National Park System Organic Act, we do not reach the Association’s
arguments regarding the canon against implied repeals.