Hovercraft case among those Scalia’s death leaves in limbo

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The death of Justice Antonin Scalia has shaken up the presidential election and added uncertainty to cases of great national importance. It also may have implications for one Alaska-specific case: Sturgeon v. Frost. It concerns whether the National Park Service can enforce its nationwide ban on hovercraft in Alaska’s federal parks.

The case is seen by conservatives as another example of federal over-reach. The state of Alaska says the Park Service is infringing on its rights, as the owner of the riverbed. Defenders of the Park Service, on the other hand, say the NPS has a duty to protect nature within the boundaries of the parks, on land and water.

The Supreme Court heard the case in January, and as it turns out, it was the final oral argument Scalia heard. It’s impossible, based on the arguments, to say how Scalia would have voted, but he sounded doubtful about the extent of federal authority over a navigable river.

“You’re telling us that the river, that the government holds title to the river? It doesn’t,” he told Assistant Solicitor General Rachel Kovner. “It has usufructuary rights in the river.”

Kovner said she was arguing that the federal government merely “holds title to an interest in the water.”

“That’s different from holding title to the water,” Scalia responded.

With eight justice left, the court could split evenly, 4-4. That would be a toothless ruling, leaving the lower court’s decision in place. But that’s just one possible outcome. In the case of a past vacancy, the Supreme Court called the parties back to re-argue cases, once the court was restored to full strength.  In the Sturgeon case, they may not have to resort to that.  There were hints at oral arguments that the justices might just send the case back to the Ninth Circuit Court of Appeals.

Justice Samuel Alito, a Republican appointee, essentially told the government’s attorney at oral arguments that she shouldn’t even other trying to defend the lower court’s reasoning.

“Why don’t you concede that it’s wrong?” he asked her. “It’s a ridiculous interpretation, is it not?”

Justice Sonia Sotomayor, an appointee of President Obama, also seemed disinclined to accept the Ninth Circuit decision, although her comments were more open to interpretation.

Expert Supreme Court watchers warn against reading too much into what the justices say at oral argument, but even without Scalia, the court may be inclined to send the case back to the Ninth Circuit.