Justices wrestle how to set hovercraft case apart from subsistence

Photo by Liz Ruskin / Alaska Public Media

Last week, the U.S Supreme Court again heard arguments in a case that pits the mission of the National Park Service against the sovereignty of the state of Alaska. It’s the second time the Supreme Court has heard the case of John Sturgeon, an Alaska moose hunter who was traveling by hovercraft inside Yukon-Charley Rivers National Preserve when the Park Service stopped him.

The Park Service has a hovercraft ban for all national parks. But Sturgeon, backed by the state of Alaska, says it’s up to the state to decide what kind of transportation is OK on Alaska rivers, even when they flow through national parks, because that’s what Congress intended when it passed ANILCA, the Alaska National Interest Lands Conservation Act, in 1980.

“Congress had good reasons for treating Alaska differently than other states,” Alaska Assistant Attorney General Ruth Botstein argued.

In rural Alaska, she said, rivers serve as roads.

“This is not a situation where we’re talking about tourists who might be disturbing a wilderness area,” she said. “This is a situation where people are living and working along these rivers and using them for transportation, for commerce, for fishing.”

On the other hand, the Park Service has a duty to protect rivers within park units, argued Deputy Solicitor General Edwin Kneedler, representing the Park Service.

“And when you look at the purposes for which these units were established, it’s clear that water was a central purpose of them,” he said. “In fact, the one we have here is the Yukon-Charley Rivers National Preserve, and it specifically defines as one of the purposes to preserve the entire Charley River basin, including streams and lakes.”

Kneedler said hovercraft are loud and unsightly. Chief Justice John Roberts suggested more than appearances are at stake.

“While you may think a hovercraft is unsightly, I mean, if you’re trying to get from point A to point B, it’s pretty beautiful,” Roberts said.

Justice Neil Gorsuch started by accepting the state’s premise, that the river is not really part of the park unit. He wondered if a hovercraft had any impact beyond the river.

“Do we know from the record that the hovercraft could be heard within the system unit itself?” he asked. “Let alone seen?”

“Well, there were federal lands on both sides of the the water,” Kneedler said. “So when operating, I think it could surely be heard on the lands.”

Some of the justices seemed to struggle with how the case might affect the Katie John decisions. That case, named for an Athabaskan elder, established that the federal government can have authority over Alaska rivers to protect subsistence fishing, because the government implicitly reserves water rights when it sets land aside for a particular purpose.

No one at the hearing said a word against Katie John.

“You agree with the Katie John decisions, correct?” the newest justice, Brett Kavanaugh, asked Botstein.

Alaskan John Sturgeon on the steps of the U.S. Supreme Court in 2016. Photo: Liz Ruskin

“Your Honor, the reasoning of those decisions may be appropriate for the limited purpose of effectuating Title 8,” Botstein said, referring to Title 8 of ANILCA, the section that protects subsistence. “But (it) should not be expanded to change the federal reserved water rights doctrine throughout the (Ninth) Circuit for all purposes.”

Justice Sonia Sotomayor seemed skeptical of the state’s argument.

“I’m having a hard time accepting your position in this case with your position that the Katie John decisions should be retained,” she told Botstein.

According to Sotomayor’s reasoning, if ANILCA gives the feds authority to enforce subsistence rights on rivers that run through national parks, it also grants them the power to enforce a hovercraft ban on those rivers.

A decision in the case is expected in May or June.