State, Native interests also ride on hovercraft case in Supreme Court

U.S. Supreme Court will hear an Alaska-specific case Wednesday. (Photo: Wikimedia)
U.S. Supreme Court will hear an Alaska-specific case Wednesday. (Photo: Wikimedia)

The Sturgeon case to be argued in the U.S. Supreme Court on Wednesday is about hovercraft, and whether the Park Service can ban them from rivers flowing through Alaska’s national parks and preserves. But the case has alarmed a lot of people with no interest in hovercraft, and it splits Alaska Native stakeholders: Some subsistence advocates say a decision for Sturgeon could threaten subsistence rights, while Native corporations say if the Park Service wins, it could cripple their ability to develop their own lands.

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Aside from the actual parties – John Sturgeon and the National Park Service –  ten other groups have written briefs telling the Supreme Court how much they have riding on the case. Chief among them: the State of Alaska, which is backing Sturgeon. Long-standing federal law says states own the land under navigable waters, like the Nation River, where Park rangers confronted Sturgeon. Gov. Bill Walker says the feds shouldn’t

Gov. Bill Walker at a press conference in the Capitol, Oct. 23, 2015. He announced that he was dropping a proposed natural gas reserves tax from the special session agenda. (Photo by Jeremy Hsieh/KTOO)
Gov. Bill Walker (File photo by Jeremy Hsieh/KTOO)

infringe on state sovereignty.

“Our waterways are our waterways,” Walker says. “What’s under our waterways is our land …. So it’s an important case.”

The state’s lawyers argue that because the state owns the riverbed, it also has the right to regulate what happens in the waters above. And the governor says river transportation is vital.

“When … 60 percent of your state is,  we’re having a challenge getting access to, that’s a pretty significant handicap

we have,” the governor says. “So really that has a lot to do with access, to me.”

Two coalitions of Native corporations are also supporting Sturgeon. Some 18 million acres of the land within Alaska’s federal conservation units are Native corporation inholdings. These are islands of private land within the borders of parks, preserves and refuges. Lower court rulings in favor of the feds would allow the Park Service to impose a lot of its regulations on these inholdings.

“This was never part of the deal of ANILCA,” says Doyon President and CEO Aaron Schutt, referring to the landmark 1980 law that created and expanded parks and refuges across Alaska. Schutt says Doyon, the Native corporation of the Interior, has

Aaron Schutt, president/CEO of Doyon (Photo: Doyon)
Aaron Schutt, president/CEO of Doyon (Photo: Doyon)

about 2 million acres within federal conservation units.

“We are inholders only because these conservation units were placed around our lands,” he said. “We are not inholders in our own country, in Interior Alaska, by choice.”

ANILCA is a package of compromises, and Schutt says if the Park Service wins, it would undo the law’s key promise to inholders.

“The deal was we would be able to have economic development, hunting and fishing opportunities, free from

national conservation unit regulations,” he says.

But the way the lower courts interpreted a key paragraph of ANILCA in favor of the Park Service, the agency’s power would spread well beyond rivers, onto Native corporation and state inholdings.

“That’s what’s most problematic and got people very concerned, and frankly alarmed.”

Attorney Jon Katchen filed a brief supporting Sturgeon, on behalf of Alaska’s congressional delegation.

“Right now, they haven’t done this, but the Park Service has the authority to say to a Native corporation, ‘You can’t build a lodge on your lands. You can’t build a trail. You can’t do berry-picking. You can’t land a plane.’ If the Ninth circuit’s decision in Sturgeon doesn’t get overturned they will have that authority.”

The concern that the Park Service could extend its reach is not just hypothetical. Last year the Park Service proposed new national oil and gas regulations. The agency wrote that they’d apply to non-federal land within park boundaries in Alaska, too, because the 9th Circuit’s ruling against Sturgeon allows it.

Most of the friend-of-the-court briefs are stacked up on Sturgeon’s side. But conservation groups wrote one supporting the Park Service. So did attorney Bob Anderson, on behalf of subsistence users. Anderson, who represented elder Katie John in a milestone subsistence case, says if Sturgeon wins, the federal subsistence priority disappears for rivers across the state.

“If those arguments are taken at face value and endorsed by the Supreme Court that could result in the overturning of the Katie John decision, which the Native community has fought for over 25 years.”

Anderson says the court’s decision should only affect rivers, not land, and he doesn’t think the state’s ownership of the riverbed gives it final say in activity above them.

“Yes, absolutely the state has presumptive ownership of submerged land, the actual bed and banks of the river. But that doesn’t mean that they own the water column.”

Sturgeon and his allies say the court can decide this case in favor of Sturgeon without touching the Katie John decision, because subsistence has special significance in ANILCA.