Alaska wades back in, as Sturgeon case navigates back to US Supreme Court

John Sturgeon discusses his U.S. Supreme Court case with the Alaska Senate Resources Committee, Feb. 17, 2016. Sturgeon is the plaintiff in in Sturgeon v. Frost, a case involving a dispute over federal control over navigable waters. (Photo by Skip Gray/360 North)

The State of Alaska is weighing in again on a lawsuit over management rights of navigable waterways, known as the Sturgeon case, which is back before the U.S. Supreme Court.

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It started more than a decade ago, when federal officials told Anchorage resident John Sturgeon he couldn’t operate his hovercraft on a river in Yukon-Charly Rivers National Preserve.

Sturgeon sued, and the disagreement about whether the state or federal government had regulatory authority has gone back and forth between the courts.

But In June, the Supreme Court agreed to again take up the Sturgeon case.

On Tuesday, the state of Alaska filed a brief with the court offering its take in an amicus brief. Alaska Attorney General Jahna Lindemuth joined Alaska Public Media’s Casey Grove to talk about that and why the state has continued to pursue the issue all these years.

LINDEMUTH: The state is very committed to always defending its sovereign interests. And so, you know, we’ll fight the battle as long as it’s out there. But I wasn’t surprised that the United States Supreme Court only answered the question right before it. They’re usually careful to just do that, but they, I would be surprised if they don’t finally resolve the case this second time. I mean, I think it’s unusual for them to take and review a case a second time. And that they’ll not do so in a way that leaves additional open issues for the 9th Circuit or any other court.

This is not just about one hovercraft. This is about who gets to manage the state’s navigable waters, whether the federal government has broad regulatory authority, as they assert in this case, or whether the state actually gets to manage those waterways that are part of the state’s sovereign rights.

GROVE: How do we get here? And what is really new about this filing?

LINDEMUTH: The first time that it went through the court system all the way up to the United States Supreme Court, it was a statutory interpretation case about the proper meeting of 103C in ANILCA. And that, the federal government was interpreting that provision to grant it the ability to broadly regulate private and state lands and waters that were in-holdings within conservation system units.

The state’s position was, no, it actually means the opposite of that, and the United States Supreme Court agreed. The Supreme Court did not go further in addressing the other alternative arguments the federal government was making and remanded back to the 9th Circuit. That’s where we’re at now.

So, the 9th Circuit accepted the federal government’s argument that it actually had broad regulatory authority under a doctrine called the Federal Reserved Water Rights Doctrine. And that’s the issue that’s now going back up to the United States Supreme Court, is whether this alternative basis provides the federal government broad regulatory authority.

It’s the state’s position that absolutely it does not. The interesting thing is that that doctrine was used by the 9th Circuit in the Katie John line of cases in the 1990s to find that there was the power to go forward and move forward with the subsistence priorities that are explicitly set forth in ANILCA Title 8. And the 9th Circuit in this particular case greatly expanded that holding and says now that it’s not just limited to subsistence activities and priorities that are explicitly set forth in ANILCA, but now the federal government has broad regulatory authority for all purposes over the state’s waterways.

GROVE: Does it run the risk of changing the subsistence rights that are in place now, arguing this case on that same basis?

LINDEMUTH: Well, we’re arguing that it doesn’t have to, and usually courts are very careful to just be answering the question before them. But because the doctrine that the 9th Circuit relied on is the very same doctrine that was in the Katy John line of cases, there is the danger that the United States Supreme Court could rule in such a way that it implicates the holding of those cases as well. But we’re arguing that that should be distinguished and that the court need not reach those issues and should not reach those issues.