FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN STURGEON, No. 13-36165
Plaintiff-Appellant,
D.C. No.
v. 3:11-cv-00183-
HRH
HERBERT FROST, in his official
capacity as Alaska Regional Director
of the National Park Service; GREG OPINION
DUDGEON; ANDEE SEARS; RYAN
ZINKE, Secretary of the Interior;
MICHAEL REYNOLDS, in his official
capacity as Acting Director of the
National Park Service; THE
NATIONAL PARK SERVICE; THE
UNITED STATES DEPARTMENT OF THE
INTERIOR,
Defendants-Appellees.
On Remand from the United States Supreme Court
Argued and Submitted October 25, 2016
Seattle, Washington
Filed October 2, 2017
2 STURGEON V. FROST
Before: Jerome Farris, Dorothy W. Nelson, and
Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Nguyen;
Concurrence by Judge Nguyen
SUMMARY *
Alaska National Interest Lands Conservation Act
The panel affirmed the district court’s summary
judgment in favor of federal defendants, and held, on remand
from the Supreme Court, that the federal government
properly exercised its authority to regulate hovercraft use on
the rivers within conservation system units in Alaska.
The Yukon-Charley National Preserve conservation
system unit was set aside for preservation purposes by the
Alaska National Interest Lands Conservation Act
(“ANILCA”). Within the borders of Yukon-Charley was a
stretch of the Nation River which plaintiff sought to travel
by hovercraft to get to moose hunting grounds. Plaintiff
contended that the Nation River belonged to Alaska, which
permits hovercraft on its waterways, and that the National
Park Service had no authority to regulate, and prohibit, the
use of hovercraft on that stretch of the river.
The panel held that ANILCA section 103(c) did not limit
the Park Service from applying the hovercraft ban on the
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
STURGEON V. FROST 3
Nation River in the Yukon-Charley preserve. The panel held
that under the Katie John precedent – Alaska v. Babbitt, 72
F.3d 698 (9th Cir. 1995) (Katie John I), John v. United
States, 247 F.3d 1032 (9th Cir. 2001) (en banc) (Katie John
II), and John v. United States, 720 F.3d 1214 (9th Cir. 2013)
(Katie John III) – the United States had an implied
reservation of water rights, rendering the river public lands.
On remand from the United States Supreme Court, the panel
again concluded that the federal government properly
regulated hovercraft use on the Nation River in the Yukon-
Charley preserve.
Judge Nguyen also separately concurred, joined by
Judge D.W. Nelson. Judge Nguyen acknowledged that the
panel was bound by case law to analyze this case under the
reserved water doctrine, but she would conclude that this
case is better analyzed under the Commerce Clause as it is
about the right to regulate navigation on navigable waters
within an Alaska national preserve.
COUNSEL
Matthew Todd Findley (argued) and Eva R. Gardner,
Ashburn & Mason P.C., Anchorage, Alaska; Douglas Pope,
Pope & Katcher, Anchorage, Alaska; for Plaintiff-Appellant.
Elizabeth Ann Peterson (argued), Vivian H.W. Wang, Dean
K. Dunsmore, David C. Shilton, and Andrew C. Mergen,
Attorneys; Environment and Natural Resources Division,
United States Department of Justice, Washington, D.C.; F.
Christopher Bockmon and Joseph P. Darnell, Office of the
Solicitor, United States Department of the Interior,
Anchorage, Alaska; Jason Waanders, Office of the Solicitor,
4 STURGEON V. FROST
United States Department of the Interior, Philadelphia,
Pennsylvania; for Defendants-Appellees.
Ruth Botstein (argued), Assistant Attorney General; Jahna
Lindemuth, Attorney General; State of Alaska Department
of Law, Anchorage, Alaska; Janell M. Hafner, Assistant
Attorney General, State of Alaska Department of Law,
Juneau, Alaska; for Amicus Curiae State of Alaska.
Heather R. Kendall Miller and Matthew N. Newman, Native
American Rights Fund, Anchorage, Alaska; Robert T.
Anderson, University of Washington School of Law, Seattle,
Washington; Lloyd B. Miller, Sonosky Chambers Sachse
Miller & Munson, Anchorage, Alaska; Riyaz A. Kanji, Kanji
& Katzen PLLC, Ann Arbor, Michigan; for Amici Curiae
Mentasta Traditional Council, Village of Dot Lake, Tanana
Chiefs Conference, Kenaitze Indian Tribe, Organized
Village of Saxman, and Chugachmiut and Nora David.
James D. Linxwiler and Josh Van Gorkom, Guess & Rudd
P.C., Anchorage, Alaska, for Amici Curiae Ahtna, Inc.;
Aleut Corp.; Bristol Bay Native Corp.; Calista Corp.;
Doyon, Ltd.; Nana Regional Corp.; Gana-A’ Yoo, Ltd.; and
Tihteet’ Aii, Inc.
Katherine Strong and Valerie Brown, Trustees for Alaska,
Anchorage, Alaska; Thomas E. Meacham, Anchorage,
Alaska; Donald B. Ayer, Jones Day, Washington, D.C.; for
Amici Curiae National Parks Conservation Association,
Defenders of Wildlife, Wilderness Society, American
Rivers, Center for Biological Diversity, Sierra Club,
Wilderness Watch, Denali Citizens Council, Copper
Country Alliance, Alaska Quiet Rights Coalition, Northern
Alaska Environmental Center, Friends of Alaska National
Wildlife Refuges, and Alaska Wilderness League.
STURGEON V. FROST 5
OPINION
NGUYEN, Circuit Judge:
John Sturgeon would like to use his hovercraft in a
national preserve to reach moose hunting grounds. The State
of Alaska is fine with that; 1 the federal government is not.
Sturgeon’s case turns on which entity—state or federal—
gets to decide the matter. On remand from the Supreme
Court, we again conclude that the federal government
properly exercised its authority to regulate hovercraft use on
the rivers within conservation system units in Alaska.
I.
A.
The Yukon-Charley Rivers National Preserve
conservation system unit (“Yukon-Charley”) is among the
104 million acres of land in Alaska set aside for preservation
purposes by the Alaska National Interest Lands
Conservation Act (“ANILCA”), 16 U.S.C. § 3101 et seq.
(1980). Like other conservation system units created by
1
The State of Alaska was previously a party to the litigation in the
district court and in this court. In our prior opinion, we held that Alaska
lacked standing, vacated the district court’s judgment as to the State, and
remanded with instructions to dismiss the State for lack of jurisdiction.
Sturgeon v. Masica, 768 F.3d 1066, 1075 (9th Cir. 2014). Alaska did
not seek Supreme Court review of that holding, and the district court
amended its judgment to dismiss Alaska for lack of jurisdiction. That
judgment being final, it is unaffected by the Supreme Court’s vacatur of
our prior opinion, Sturgeon v. Frost, 136 S. Ct. 1061 (2016). We have
considered Alaska’s supplemental briefing along with that submitted by
the other amici curiae and the remaining parties.
6 STURGEON V. FROST
ANILCA, Yukon-Charley was drawn around a mix of
federal, state, Native Corporation, and private owners.
Within the boundaries of the Yukon-Charley lies a
stretch of the Nation River. Sturgeon would like to travel by
hovercraft on this part of the river to get to moose hunting
grounds located upstream from the preserve. Park Service
regulations prohibit the use of hovercraft within “[w]aters
subject to the jurisdiction of the United States located within
the boundaries of the National Park System . . . without
regard to the ownership of submerged lands, tidelands, or
lowlands.” 36 C.F.R. § 1.2(a)(3); see id. § 2.17(e). Alaska
permits hovercraft on its waterways. Sturgeon contends that
the Nation River belongs to Alaska and that the Park Service
has no authority to regulate it. He seeks declaratory and
injunctive relief preventing the Park Service from enforcing
its hovercraft ban.
B.
ANILCA balanced the need to protect “the national
interest in the scenic, natural, cultural and environmental
values on the public lands in Alaska” with the need to
provide “adequate opportunity for satisfaction of the
economic and social needs of the State of Alaska and its
people.” 16 U.S.C. § 3101(d). Thus, while ANILCA
provided that conservation system units in Alaska generally
“shall be administered . . . under the laws governing the
administration of [National Park Service system unit]
lands,” id. § 410hh, it “specified that the Park Service could
not prohibit on those lands certain activities of particular
importance to Alaskans.” Sturgeon v. Frost, 136 S. Ct. 1061,
1066 (2016). For example, Park Service regulations
applicable nationwide prohibit hunting and snowmobiling
for the most part, see 36 C.F.R. §§ 2.2, 2.18, whereas
ANILCA permits, subject to reasonable regulations, “the use
STURGEON V. FROST 7
of snowmachines . . . for travel to and from villages and
homesites,” 16 U.S.C. § 3170(a), and “the taking of . . .
wildlife for sport purposes and subsistence uses,” id. § 3201.
II.
“Section 103(c) of ANILCA . . . addresses the scope of
the Park Service’s authority over lands within the boundaries
of conservation system units in Alaska.” Sturgeon, 136 S.
Ct. at 1067. It provides as follows:
Only 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. No lands which, before, on, or
after December 2, 1980, are conveyed to the
State, to any Native Corporation, or to any
private party shall be subject to the
regulations applicable solely to public lands
within such units. If the State, a Native
Corporation, or other owner desires to
convey any such lands, the Secretary may
acquire such lands in accordance with
applicable law (including this Act), and any
such lands shall become part of the unit, and
be administered accordingly.
16 U.S.C. § 3103(c) (emphasis added). The parties dispute
the meaning of section 103(c) and in particular what it means
to “be subject to the regulations applicable solely to public
lands within such units.”
The key to understanding section 103(c) is the difference
between “Federal lands” and “public lands.” ANILCA
defines “public lands” as “land situated in Alaska which,
8 STURGEON V. FROST
after December 2, 1980, are Federal lands” except for land
selected by the State of Alaska or a Native Corporation the
title to which has not yet been conveyed. Id. § 3102(3).
Similarly, “Federal land” is defined as “lands the title to
which is in the United States after December 2, 1980.” Id.
§ 3102(2). Simply put, Federal lands include land selections
made by Alaska and Native Corporations but not yet
transferred to them. Public lands do not. These land
selections, while still formally belonging to the federal
government, are not to be regulated as part of conservation
system units.
The first sentence of section 103(c) establishes that the
land selections by Alaska and Native Corporations are not
“deemed to be included as a portion of such unit[s]” because
that distinction belongs “[o]nly” to “public lands.” Both the
first and third sentences refer to public lands as being “a
portion of” or “part of” the conservation system units in
Alaska. This is distinct from lands that are merely “within
such units,” a phrase used in the second sentence as
shorthand for lands “within the boundaries of” such units but
not necessarily a part of them. Land “within such units”
includes public lands, the land selections, and non-federal
lands. See, e.g., Solid Waste Sites in Units of the National
Park System, 59 Fed. Reg. 65,948, 65,949 (Dec. 22, 1994)
(“[T]he phrase ‘within the boundaries’ is commonly
employed to refer to both Federal land and nonfederally
owned land or interests in land within the outer boundaries
[of] a [National Park System] unit.”).
The confusion in the second sentence stems from the
awkward placement of “within such units.” The phrase is
not modified by “solely.” See Sturgeon, 136 S. Ct. at 1070.
Rather, it modifies “applicable.” Thus, “regulations
applicable solely to public lands within such units” means
STURGEON V. FROST 9
regulations applicable within such units solely to public
lands—as opposed to Federal lands. In other words:
regulations that apply only to lands that are deemed part of
the units themselves. Outside Alaska, all federally owned
lands within conservation system units are deemed part of
the unit. See 54 U.S.C. § 100501. “Alaska is different.”
Sturgeon, 136 S. Ct. at 1070.
The import of the second sentence is that Federal lands
within conservation system units that have been transferred
to a non-federal party—like Federal lands that have been
selected for state or tribal use—are not “subject to”
regulations specific to the conservation system units.2
Regulations applicable solely to public lands include Park
Service regulations applicable nationwide and Alaska-
specific regulations found in ANILCA. 3 These contrast with
regulations of general applicability, such as the Clean Air
2
We previously upheld as reasonable an agency determination that
certain regulations specific to Alaska units applied to land selections as
well as Federal lands. See John v. United States (Katie John III),
720 F.3d 1214, 1244–45 (9th Cir. 2013) (construing 36 C.F.R.
§ 242.4(2)). The basis for this holding was the apparently “inconsistent”
directive in section 906(o)(2) of ANILCA: “Until conveyed, all Federal
lands within the boundaries of a conservation system unit . . . shall be
administered in accordance with the laws applicable to such unit.”
43 U.S.C. § 1635(o)(2). Subsection (o), however, concerns land
withdrawals—not land selections—and it expressly does not apply to
those subsections of § 1635 pertaining to land selections. See id.
§ 1635(o)(1). Regardless, Katie John III acknowledged that “[s]ection
102 of ANILCA expressly excludes selected-but-not-yet-conveyed lands
from the definition of ‘public lands.’” Katie John III, 720 F.3d at 1243.
3
Of course, Park Service regulations applicable to conservation
system units nationwide may be modified by Alaska-specific
regulations. See 36 C.F.R. § 13.2(a).
10 STURGEON V. FROST
Act, that also affect non-public lands located within such
units, such as the land selections and private lands.
Section 103(c) directly responds to the controversy that
“Congress . . . stepped in to settle” when it enacted
ANILCA. Sturgeon, 136 S. Ct. at 1066. Many Alaskans
“were concerned that . . . new monuments [designated by
President Carter] would be subject to restrictive federal
regulations.” Id. at 1065–66. By exempting Federal lands
selected for state or tribal use from being regulated as a part
of the unit, ANILCA serves one of its stated goals of
providing “adequate opportunity for satisfaction of the
economic and social needs of the State of Alaska and its
people.” 16 U.S.C. § 3101(d).
Of course, regulation by the Park Service serves
ANILCA’s other goal of providing “sufficient protection for
the national interest in the scenic, natural, cultural and
environmental values.” Id. But that goal is expressly limited
to “public lands” in Alaska. Id. Land that is transferred to
or selected for non-federal entities is generally not subject to
the regulation of conservation system units. However, non-
public land is still subject to such regulation if the United
States retains an interest in it because the land is public to
the extent of the interest. 4 That is clear from ANILCA’s
definition of “land” as “lands, waters, and interests therein.”
Id. § 3102(1) (emphasis added).
4
The parties disagree about the Park Service’s authority to regulate
lands to and in which the United States has no title or interest by enacting
regulations that apply to public and non-public land alike. We need not
decide whether such a regulation would be enforceable on non-public
land on the ground that it is not “applicable solely to public lands.”
16 U.S.C. § 3103(c).
STURGEON V. FROST 11
ANILCA recognizes that the federal government retains
an interest in at least some otherwise non-public lands. It
directs the Secretary of the Interior to “develop and transmit
to . . . Congress a conservation and management plan for
each of the units of the National Park System established or
[expanded] by [ANILCA].” Id. § 3191(a). One component
of the plan is a description of any privately-owned areas
within the unit, their purposes, the actual or anticipated
activities in the privately-owned areas, the effects of such
activities on the unit, and “methods (such as cooperative
agreements and issuance or enforcement of regulations) of
controlling the use of such activities to carry out the policies
of [ANILCA] and the purposes for which such unit is
established or expanded.” Id. § 3191(b)(7)(E) (emphasis
added). Congress plainly expected that the Park Service
could issue regulations governing conservation system units
that would affect privately-owned lands.
III.
The hovercraft ban “do[es] not apply on non-federally
owned lands and waters . . . located within National Park
System boundaries,” 36 C.F.R. § 1.2(b), except, as relevant
here, on “[w]aters subject to the jurisdiction of the United
States,” id. § 1.2(a)(3), and on “[o]ther . . . waters over
which the United States holds a less-than-fee interest, to the
extent necessary to fulfill the purpose of the National Park
Service administered interest and compatible with the
nonfederal interest,” id. § 1.2(a)(5). The question is whether
the Nation River is subject to the jurisdiction or an interest
of the United States such that it is public land that the Park
Service is authorized to regulate.
12 STURGEON V. FROST
A.
Before Alaska gained statehood, the Submerged Lands
Act “release[d] and relinquishe[d] unto [the] States . . . all
right, title, and interest of the United States” to “the lands
beneath navigable waters within the boundaries of the
respective States, and the natural resources within such lands
and waters.” 43 U.S.C. § 1311(a)–(b). The Alaska
Statehood Act secured these rights for Alaska. Pub. L. No.
85-508, § 6(m), 72 Stat. 343 (1958). In addition, Alaska
enjoys similar rights under the equal footing doctrine. See
United States v. Alaska, 521 U.S. 1, 6 (1997). While “the
United States can prevent lands beneath navigable waters
from passing to a State upon admission to the Union by
reserving those lands in federal ownership” for “an
appropriate public purpose,” id. at 33–34; see also 43 U.S.C.
§ 1313(a) (excepting from the Submerged Lands Act “lands
expressly retained by . . . the United States when the State
entered the Union”), we have held that the Nation River was
navigable at statehood and that Alaska took title to the
riverbed at that time. See Alaska v. United States, 201 F.3d
1154, 1160, 1166 (9th Cir. 2000).
But lands submerged beneath inland waterways are
distinct from the waterways themselves. 5 “Ownership [of
5
Sturgeon, suggesting otherwise, quotes the Supreme Court’s
statement that “the Submerged Lands Act transferred ‘title to and
ownership of’ the submerged lands and waters.” United States v.
California, 436 U.S. 32, 40 (1978) (emphasis added) (quoting 43 U.S.C.
§ 1311(a)). We do not understand the Supreme Court to have breezily
adopted an interpretation of the Submerged Lands Act at odds with the
statute’s plain meaning. In contrast to ANILCA, which includes
“waters” within the definition of “lands,” the Submerged Lands Act
distinguishes “lands” from the various “waters” lying above them.
43 U.S.C. § 1301(a). California involved a dispute over the right to
STURGEON V. FROST 13
submerged lands] may not be necessary for federal
regulation of navigable waters . . . .” Alaska, 521 U.S. at 42.
Under the Submerged Lands Act, “[t]he United States
retains all its navigational servitude and rights in and powers
of regulation and control of [submerged] lands and navigable
waters for the constitutional purposes of commerce,
navigation, national defense, and international affairs.”
43 U.S.C. § 1314(a).
We have held that the navigational servitude “is not
‘public land’ within the meaning of ANILCA” because “the
United States does not hold title to the . . . servitude.” City
of Angoon v. Hodel, 803 F.2d 1016, 1027 n.6 (9th Cir. 1986)
(per curiam) (citing United States v. Va. Elec. & Power Co.,
365 U.S. 624, 627–28 (1961)). We expanded that holding in
Alaska v. Babbitt (Katie John I), deciding that Congress did
not intend “to exercise its Commerce Clause powers over
submerged lands and navigable Alaska waters” when it
enacted ANILCA. 72 F.3d 698, 703 (9th Cir. 1995).
Katie John I analyzed the United States’ interest in
navigable waters in Alaska under the reserved water rights
doctrine. Under this doctrine, when the federal government
“withdraws its land from the public domain and reserves it
for a federal purpose,” the government impliedly “reserves
appurtenant water then unappropriated to the extent needed
to accomplish the purpose of the reservation.” Cappaert v.
United States, 426 U.S. 128, 138 (1976). The United States
thus “acquires a reserved right in unappropriated water
license kelp harvesting, see 436 U.S. at 35 n.8; neither “ownership of”
nor rights to the waters was at issue. Presumably, the Court used
“submerged lands and waters” to refer to submerged lands and water
resources. See 43 U.S.C. § 1301(e) (“The term ‘natural resources’
includes . . . kelp . . . .”).
14 STURGEON V. FROST
which vests on the date of the reservation and is superior to
the rights of future appropriators.” Id.
Whether a federally reserved water right is implicit in a
federal reservation of public land depends on whether the
government intended to reserve unappropriated water. Id. at
139. “Intent is inferred if the previously unappropriated
waters are necessary to accomplish the purposes for which
the reservation was created.” Id.
In Katie John I, we concluded that “[t]he United States
has reserved vast parcels of land in Alaska for federal
purposes through a myriad of statutes,” including ANILCA,
and thereby has “implicitly reserved appurtenant waters,
including appurtenant navigable waters, to the extent needed
to accomplish the purposes of the reservations.” 72 F.3d at
703 & n.10. This reservation of water rights gave the United
States “interests in some navigable waters.” Id. at 703. We
held that ANILCA’s “definition of public lands includes
those navigable waters in which the United States has an
interest by virtue of the reserved water rights doctrine.” Id.
In John v. United States (Katie John II), we decided without
discussion that Katie John I’s holding “should not be
disturbed or altered.” 247 F.3d 1032, 1033 (9th Cir. 2001)
(en banc) (per curiam).
In Katie John III, we considered regulations
implementing Title VIII of ANILCA pertaining to
subsistence management on public lands, 36 C.F.R. pt. 242.
These regulations “included within the definition of ‘public
lands’”—and thus applied to—“all navigable and non-
navigable water within the outer boundaries of . . . 34 listed
land units,” including Yukon-Charley. Katie John III,
720 F.3d at 1232; see 36 C.F.R. § 242.3(c)(28). As here, it
was argued that State- and privately-owned lands located
within a conservation system unit, referred to as
STURGEON V. FROST 15
“inholdings,” were not public lands and thus not subject to
regulation. Id. at 1233.
We upheld the agency’s inclusion of waters that lie on
inholdings in the definition of public lands. Id. We reasoned
that water rights impliedly acquired by the United States are
not forfeited or conveyed to third parties along with the
inholdings. Id. Because the water bodies were “actually
situated within the boundaries of federal reservations,” it
was “reasonable to conclude that the United States ha[d] an
interest in such waters for the primary purposes of the
reservations.” Id.
B.
We are bound under our Katie John precedent to reach a
similar conclusion here. To begin with, ANILCA’s
definition of “public lands” applies throughout the statute. It
would be anomalous if we treated the regulation at issue in
Katie John III regarding the geographic scope of regulations
implementing Title VIII, 36 C.F.R. § 242.3, as employing a
different construction of “public lands” than applicable
elsewhere in ANILCA. The regulation does not define
“public lands.” By merely referencing the term, 6 which is
defined globally in the statute, the regulation implies that
there is but a single definition.
6
The Title VIII regulations “apply on all public lands” within some
conservation system units, id. § 242.3(b), but “exclud[e] marine waters”
within others, id. § 242.3(c). Outside of the enumerated conservation
system units, Title VIII regulations “apply on all other public lands, other
than to the military, U.S. Coast Guard, and Federal Aviation
Administration lands that are closed to access by the general public.” Id.
§ 242.3(d).
16 STURGEON V. FROST
While Katie John III involved ANILCA’s rural
subsistence priority, that was only one of the purposes for
which ANILCA reserved lands as conservation system units.
Katie John III recognized that “water rights may be essential
to a purpose of the reservation other than subsistence.”
720 F.3d at 1240. Just as important was ANILCA’s purpose
of “provid[ing] sufficient protection for the national interest
in the scenic, natural, cultural and environmental values on
the public lands in Alaska.” 16 U.S.C. § 3101(d).
Three years before the statute’s enactment, President
Carter withdrew and reserved the land for Yukon-Charley
“for the protection of . . . historical, archeological,
biological, [and] geological . . . phenomena” including
habitat for “isolated wild populations of Dall sheep, moose,
bear, wolf, and other large mammals.” Proclamation No.
4626, 43 Fed. Reg. 57,113 (Dec. 5, 1978). In particular, he
“reserved all water necessary to the proper care and
management of those objects protected by [Yukon-Charley]
and for [Yukon-Charley’s] proper administration.” Id. at
57,114. In that vein, Congress specified in section 201 of
ANILCA that Yukon-Charley “shall be managed for the
following purposes, among others”:
To maintain the environmental integrity of
the entire Charley River basin, including
streams, lakes and other natural features, in
its undeveloped natural condition for public
benefit and scientific study; to protect habitat
for, and populations of, fish and wildlife,
including but not limited to the peregrine
falcons and other raptorial birds, caribou,
STURGEON V. FROST 17
moose, Dall sheep, grizzly bears, and wolves
....
16 U.S.C. § 410hh(10) (emphasis added).
Consistent with this intent, Congress has authorized the
Secretary of the Interior 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.” 54 U.S.C.
§ 100751(b). The Park Service’s hovercraft ban, applicable
to federally managed conservation areas nationwide, “was
adopted pursuant to [§] 100751(b).” Sturgeon, 136 S. Ct. at
1067. To be more precise, the hovercraft ban was adopted
pursuant to § 100751(b)’s statutory predecessor, which
similarly provided the Secretary of the Interior with the
authority to “[p]romulgate and enforce regulations
concerning boating and other activities on or relating to
waters located within areas of the National Park System,
including waters subject to the jurisdiction of the United
States.” 16 U.S.C. § 1a-2(h) (1982). 7 This earlier version
was enacted four years before ANILCA. Act to Amend the
Administration of the National Park System, Pub. L. No. 94-
458, 90 Stat. 1939 (1976). ANILCA specified that it did not
in any way affect “any law governing appropriation or use
of, or Federal right to, water on lands within the State of
Alaska,” and did not supersede, modify, or repeal “existing
laws applicable to the various Federal agencies which are
7
The hovercraft ban was implemented in 1983. See General
Regulations for Areas Administered by the National Park Service,
48 Fed. Reg. 30,252, 30,258 (June 30, 1983). Section 100751(b) took
effect in 2014 when Congress added Title 54 to consolidate “provisions
relating to the National Park Service and related programs” in “one
distinct place.” H.R. Rep. No. 113-44, at 2 (2013).
18 STURGEON V. FROST
authorized to develop or participate in the development of
water resources or to exercise licensing or regulatory
functions in relation thereto.” 16 U.S.C. § 3207(1), (3).
The hovercraft ban is also consistent with Congressional
intent. Hovercraft were prohibited “because they provide
virtually unlimited access to park areas and introduce a
mechanical mode of transportation into locations where the
intrusion of motorized equipment by sight or sound is
generally inappropriate.” General Regulations for Areas
Administered by the National Park Service, 48 Fed. Reg.
30,252, 30,258 (June 30, 1983). The hovercraft ban thus
serves the purpose of keeping waterways in their
“undeveloped natural condition . . . to protect [wildlife]
habitat.” 16 U.S.C. § 410hh(10).
C.
Sturgeon argues that “[r]eserved water rights are not a
‘title’ interest.” While that is true in a narrow, technical
sense, see Fed. Power Comm’n v. Niagara Mohawk Power
Corp., 347 U.S. 239, 247 n.10 (1954) (“Neither sovereign
nor subject can acquire anything more than a mere
usufructuary right [in the water itself] . . . .”), by the same
logic the State also lacks a “title” interest in the waters above
its riverbeds. Water cannot be owned, see, e.g., 2 Amy K.
Kelley, Waters and Water Rights § 36.02 (3d ed. 2017)
(observing the Supreme Court’s impatience “with claims of
absolute ‘ownership’ by either [state or federal]
government”), but “the right of [water’s] use, as it flows
along in a body, may become a property right.” Niagara
Mohawk Power Corp., 347 U.S. at 247 n.10.
The word “title” has many meanings. Equitable title, for
example, is a beneficial interest in property. See, e.g., R.T.
Vanderbilt Co. v. Babbitt, 113 F.3d 1061, 1067 n.6 (9th Cir.
STURGEON V. FROST 19
1997) (using the phrases “vested interest” and “equitable
title” interchangeably). Thus, “title” to an “interest” in water
almost certainly means a vested interest in the water, such as
a reserved water right. But even if we were uncertain, Katie
John I already decided the matter when it held that
ANILCA’s “definition of public lands includes those
navigable waters in which the United States has an interest
by virtue of the reserved water rights doctrine.” 72 F.3d at
704. That could not be so unless title to an interest in
Alaska’s navigable waters is in the United States. See
16 U.S.C. § 3102(1)–(3).
Sturgeon also argues that “[t]he reserved water rights
doctrine is premised on the need for actual use and
withdrawal of water” and that the Park Service has shown no
need for a specific quantity of water because the water in
conservation system units is not scarce. Katie John III
forecloses that argument. There was similarly “no
suggestion that any federal reservation along any Alaskan
waters risks being turned into a ‘barren waste’ . . . , or a
substantially diminished pool . . . , or is in any way short of
water.” 720 F.3d at 1238. For that reason, in determining
the geographic scope of the United States’ reserved water
rights, Katie John III “include[d] . . . all the bodies of water
on which the United States’ reserved rights could at some
point be enforced—i.e., those waters that are or may become
necessary to fulfill the primary purposes of the federal
reservation at issue.” Id. at 1231 (emphasis added). Here,
one of the reservation’s primary purposes is to protect fish.
The diminution of water in any of the navigable waters
within Yukon-Charley’s boundaries would necessarily
impact this purpose, giving rise to a reserved water right.
Sturgeon points out that some 18 million acres within
ANILCA-established conservation system units,
20 STURGEON V. FROST
approximately one-sixth of the total, are land selections for
Native Corporations. He worries that federal regulation of
navigable waters within the units will result in “economic
catastrophe” to native shareholders by “impeding any efforts
. . . to productively utilize their lands.” Even if true, that is
not at issue in this case. Sturgeon lacks standing to assert
hypothetical claims on the Native Corporations’ behalf. In
any event, “Congress clearly did not state in ANILCA that
subsistence uses are always more important than . . . other
uses of federal lands; rather, it expressly declared that
preservation of subsistence resources is a public interest and
established a framework for reconciliation, where possible,
of competing public interests.” Amoco Prod. Co. v. Village
of Gambell, 480 U.S. 531, 545–46 (1987). Should
Sturgeon’s concerns materialize, they can be resolved in an
appropriate case.
IV.
ANILCA section 103(c) does not limit the Park Service
from applying the hovercraft ban on the Nation River in
Yukon-Charley because, under our Katie John precedent,
the United States has an implied reservation of water rights,
rendering the river public lands. Therefore, the district
court’s order granting summary judgment to defendants is
AFFIRMED.
NGUYEN, Circuit Judge, with whom Circuit Judge
NELSON joins, concurring:
We are bound by our Katie John decisions to analyze this
case under the reserved water doctrine. That is unfortunate.
A reserved water right is the right to a sufficient volume of
STURGEON V. FROST 21
water for use in an appropriate federal purpose. See John v.
United States (Katie John III), 720 F.3d 1214, 1226 (9th Cir.
2013) (“[A]pplications of the federal reserved water rights
doctrine have focused on the amount of water needed for a
specific federal reservation, rather than the locations of
water sources that might generally be needed . . . .”). This
case has nothing to do with that. Rather, it is about the right
to regulate navigation on navigable waters within an Alaska
national preserve. That is a Commerce Clause interest and
should be analyzed as such.
Alaska v. Babbitt (Katie John I), 72 F.3d 698 (9th Cir.
1995), expressed two concerns with analyzing regulatory
issues under the navigational servitude or, more generally,
the Commerce Clause. One concern was that by treating the
federal government’s power to regulate under the Commerce
Clause as an interest in water, we render ANILCA’s
definition of Federal lands meaningless because the United
States cannot have “title to” such an interest. 72 F.3d at 704.
But that is no less true of the United States’ ability to have
“title to” a reserved water right. See John v. United States
(Katie John II), 247 F.3d 1032, 1047 (9th Cir. 2001)
(Kozinski, J., dissenting) (“[A] usufructuary right does not
give the United States title to the waters or the lands beneath
those waters.”). And treating either interest—a navigational
servitude or a reserved water right—as a property interest to
which the United States holds title is a reasonable
interpretation of the statute. The Supreme Court has referred
to navigable waters as “the public property of the nation”
insofar as “[t]he power to regulate commerce comprehends
[federal] control for that purpose, and to the extent
necessary.” United States v. Rands, 389 U.S. 121, 123
(1967) (quoting Gilman v. City of Philadelphia, 70 U.S. 713,
724–25 (1865)).
22 STURGEON V. FROST
Katie John I’s textual concern misses a larger point: even
if the federal interest in navigable waters under the
Commerce Clause is not a property right at all, it is a power
“paramount to . . . proprietary rights of ownership, or the
rights of management, administration, leasing, use, and
development of the lands and natural resources [of] the
respective States.” 43 U.S.C. § 1314(a); see also New Eng.
Power Co. v. New Hampshire, 455 U.S. 331, 338 n.6 (1982)
(“Whatever the extent of the State’s proprietary interest in
the river, the pre-eminent authority to regulate . . . resides
with the Federal Government.”). The proper exercise of the
Commerce Clause power is “not an invasion of any private
property rights in the stream or the lands underlying it.”
United States v. Cherokee Nation of Okla., 480 U.S. 700, 708
(1987) (quoting Rands, 389 U.S. at 123). Thus, whether the
navigational servitude is “public land” or not is irrelevant.
ANILCA expressly left in place federal jurisdiction to
regulate the navigable waters. See 16 U.S.C. § 3207
(“Nothing in this Act shall be construed as limiting or
restricting the power and authority of the United States or
. . . as expanding or diminishing Federal or State jurisdiction,
responsibility, interests, or rights in water resources
development or control . . . .”).
Katie John I’s other concern was that reliance on the
Commerce Clause would allow “a complete assertion of
federal control” over “all [navigable] waters in Alaska.”
72 F.3d at 704. But the United States’ power to regulate
activity within the sphere of federal interests on navigable
waters is not an exclusive right. States may regulate their
waterways to the extent their regulations do not conflict with
federal ones. See Barber v. Hawai‘i, 42 F.3d 1185, 1191
(9th Cir. 1994) (“The purpose of [the Submerged Lands Act]
was not for the Federal Government to retain exclusive
jurisdiction over navigation of the waters above the
STURGEON V. FROST 23
submerged lands, but for the Federal Government to retain
concurrent jurisdiction over those waters.”); see also
Courtney v. Goltz, 736 F.3d 1152, 1160 (9th Cir. 2013)
(holding that states may regulate business franchises on
navigable waters so long as they do not “encroach on the
federal commerce power”).
Although Katie John I purported to eschew the
Commerce Clause as a source of federal regulatory power, it
conceded that the reserved water rights doctrine originates
in part in the Commerce Clause. 72 F.3d at 703 (citing
Cappaert v. United States, 426 U.S. 128, 138 (1976)). In
fact, the doctrine arises solely from the Commerce Clause
insofar as Alaska’s navigable waters are concerned. The
doctrine’s other source, the Property Clause, merely
“permits federal regulation of federal lands.” Cappaert,
426 U.S. at 138 (citing U.S. Const. art. IV, § 3). Alaska’s
navigable waters are not federal lands in the usual (non-
ANILCA) sense because the riverbeds by default now
belong to Alaska. It is the Commerce Clause that “permits
federal regulation of navigable streams” regardless of who
owns the land beneath. Id. (citing U.S. Const. art. I, § 8).
Katie John I described its own holding as “inherently
unsatisfactory.” 72 F.3d at 704. We have since criticized it
as a “problematic solution to a complex problem, in that it
sanctioned the use of a doctrine ill-fitted to determining
which Alaskan waters are ‘public lands.’” Katie John III,
720 F.3d at 1245. I could not agree more.
I would adopt the well-reasoned approach set forth in
Judge Tallman’s concurrence to Katie John II. Rather than
continuing to shove a square peg into a hole we acknowledge
is round, we should embrace a Commerce Clause rationale
for federal regulation of Alaska’s navigable waters.