No. 14-1209

In the

Supreme Court of the United States

Ë JOHN STURGEON,

Petitioner,v.

SUE MASICA, in Her Official Capacity as Alaska Regional Director of the

National Park Service, et al.,

Respondents.

Ë On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

Ë BRIEF AMICUS CURIAE OF PACIFIC LEGALFOUNDATION IN SUPPORT OF PETITIONER

Ë DAMIEN M. SCHIFF

Counsel of RecordETHAN W. BLEVINS, of Counsel

Pacific Legal Foundation930 G StreetSacramento, California 95814Telephone: (916) 419-7111Facsimile: (916) 419-7747E-mail: dms@pacificlegal.orgE-mail: ewb@pacificlegal.org

Counsel for Amicus CuriaePacific Legal Foundation

i

QUESTION PRESENTED

The Alaska National Interest Lands ConservationAct (ANILCA) says state, Native, and private landswithin the boundaries of Alaska’s national parks arenot part of the park system. These non-federal landsare free from regulations applicable “solely” to the“conservation system unit” in which they sit.“Conservation system unit” refers to various federallymanaged wilderness areas in Alaska, includingnational parks. Does ANILCA prohibit the applicationof National Park Service regulations to non-federallands within Alaska’s national parks?

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TABLE OF CONTENTSPage

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OFARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. THE PLAIN LANGUAGE OF ANILCAPRESERVES ALASKA’S PRIMACYOVER LAND AND WATER USE BYLIMITING THE REACH OF NATIONALPARK SERVICE REGULATIONS TOFEDERAL LANDS . . . . . . . . . . . . . . . . . . . . . . 3

II. CANONS OF STATUTORYCONSTRUCTION CONFIRM THATANILCA DOES NOT EXPANDNATIONAL PARK SERVICEREGULATIONS TO STATE, NATIVE,AND PRIVATE LAND . . . . . . . . . . . . . . . . . . . 5

A. The Context of § 3103(c) DemonstratesThat Congress Intended for Non-Federal Lands Encased inConservation System Units To RemainFree of Default National Park ServiceRegulations . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. ANILCA Lacks Any Clear Statementof Intent To Trespass upon Alaska’sSupremacy over Management of Non-Federal Land and Water . . . . . . . . . . . . . . 8

TABLE OF CONTENTS—ContinuedPage

iii

III. EVEN IF ANILCA IS AMBIGUOUS,THIS COURT SHOULD NOT DEFER TOTHE NATIONAL PARK SERVICE’SINTERPRETATION . . . . . . . . . . . . . . . . . . . . 10

A. The National Park Service’sPatchwork Approach To RegulatingNon-Federal Land and Water Is Not aPermissible Reading of the Statute . . . . 11

B. This Court Should Not Defer to theNational Park Service’s InterpretationBecause Other Federal Agencies AlsoManage Conservation System UnitsUnder ANILCA . . . . . . . . . . . . . . . . . . . . . 13

C. The Agency’s Flip-Flop in ItsInterpretation of ANILCAExtinguishes Any RemainingPersuasive Power . . . . . . . . . . . . . . . . . . . 14

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

iv

TABLE OF AUTHORITIESPage

Cases

Alaska Dep’t of Envt’l Conservation v. E.P.A., 540 U.S. 461 (2004) . . . . . . . . . . . . . . . . . . . . . . . 15

Bowen v. American Hosp. Ass’n, 476 U.S. 610 (1986) . . . . . . . . . . . . . . . . . . . . . . . 13

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) . . . . 3, 11-12, 14

Coeur Alaska, Inc. v. Se. Alaska ConservationCouncil, 557 U.S. 261 (2009) . . . . . . . . . . . . . . . . 1

Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326 (2013) . . . . . . . . . . . . . . . . . . . . . . 1

Good Samaritan Hosp. v. Shalala, 508 U.S. 402 (1993) . . . . . . . . . . . . . . . . . . . . . . . 15

Hess v. Port Authority Trans-Hudson Corporation,513 U.S. 30 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . 9

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) . . . . 15

Michigan v. EPA, 135 S. Ct. 2699 (2015) . . . . . 11-12

Mohamad v. Palestinian Authority, 132 S. Ct. 1702 (2012) . . . . . . . . . . . . . . . . . . . . . . 4

Moskal v. United States, 498 U.S. 103 (1990) . . . . . 4

Nat’l Cable & Telecommunications Ass’n v. BrandX Internet Services, 545 U.S. 967 (2005) . . . . . . 15

Proffitt v. FDIC, 200 F.3d 855 (D.C. Cir. 2000) . . . 13

Pub. Citizen v. United States Dep’t of Justice, 491 U.S. 440 (1989) . . . . . . . . . . . . . . . . . . . . . . . 15

TABLE OF AUTHORITIES—ContinuedPage

v

Public Citizen Health Res. Grp. v. FDA, 704 F.2d 1280 (D.C. Cir. 1983) . . . . . . . . . . . . . . 13

Rapanos v. United States, 547 U.S. 715 (2006) . . . . 1

Robinson v. Shell Oil Co., 519 U.S. 337 (1997) . . . . 5

Sackett v. EPA, 132 S. Ct. 1367 (2012) . . . . . . . . . . . 1

Skidmore v. Swift & Co., 323 U.S. 134 (1944) . . . . . . . . . . . . . . . . . . . . 14-15

Solid Waste Agency of N. Cook Cnty. v. U.S. ArmyCorps of Eng’rs, 531 U.S. 159 (2001) . . . . . . . . . . 1

Sturgeon v. Masica, 768 F.3d 1066 (9th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . 2-3, 7

United States v. Alaska, 521 U.S. 1 (1997) . . . . . . . 9

United States v. Bass, 404 U.S. 336 (1971) . . . . . 8-9

Utility Air Regulatory Grp. v. E.P.A., 134 S. Ct. 2427 (2014) . . . . . . . . . . . . . . . . . . . 5, 11

Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609 (1973) . . . . . . . . . . . 7

United States Statutes

16 U.S.C. § 3101, et seq. . . . . . . . . . . . . . . . 4-8, 11-14

United States Regulations

36 C.F.R. § 1.2(a)(3) . . . . . . . . . . . . . . . . . . . . . . 12-13

50 C.F.R. § 36.1(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 14

TABLE OF AUTHORITIES—ContinuedPage

vi

Miscellaneous

46 Fed. Reg. 31,836 (June 17, 1981) . . . . . . . . . . . . 16

48 Fed. Reg. 30,252 (June 30, 1983) . . . . . . . . . . . . 10

52 Fed. Reg. 35,238 (Sept. 18, 1987) . . . . . . . . 10, 16

61 Fed. Reg. 35,133 (July 5, 1996) . . . . . . . . . . 10, 16

Hansen, Andrea K., The Alaska National InterestLands Conservation Act of 1980, 22 J. LandResources & Envtl. L. 435 (2002) . . . . . . . . . . . 6, 9

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INTEREST OF AMICUS CURIAE

Pacific Legal Foundation (PLF) was founded in1973 and is widely recognized as the most experiencednonprofit legal foundation of its kind.1 Among othermatters affecting the public interest, PLF defends theconstitutional principle of federalism environmentallaw. PLF attorneys have participated as lead counselor counsel for amici in several cases before this Courtinvolving important issues of federal water and landuse law. E.g., Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct.1326 (2013); Sackett v. EPA, 132 S. Ct. 1367 (2012);Coeur Alaska, Inc. v. Se. Alaska Conservation Council,557 U.S. 261 (2009); Rapanos v. United States, 547U.S. 715 (2006); Solid Waste Agency of N. Cook Cnty.v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001).

PLF urges the Court to uphold the principles offederalism honored by ANILCA and vital to ournational structure. PLF also counsels againstdeference to the National Park Service because thestatute does not leave room for agency discretionregarding authority to regulate non-federal lands, andbecause the National Park Service’s interpretationcannot be reconciled with ANILCA’s text.

1 Pursuant to this Court’s Rule 37.3(a), all parties have consentedto the filing of this brief. Letters evidencing such consent havebeen filed with the Clerk of the Court.

Pursuant to Rule 37.6, PLF affirms that no counsel for anyparty authored this brief in whole or in part, and no counsel orparty made a monetary contribution intended to fund thepreparation or submission of this brief. No person other thanPLF, its members, or its counsel made a monetary contribution tothe brief’s preparation or submission.

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INTRODUCTION AND SUMMARY OF ARGUMENT

What began as a lone hunting trip has escalatedinto a battle over fundamental principles of federalismand the reach of the federal bureaucracy. In 2007,John Sturgeon boarded his hovercraft and struck outinto the Alaskan wilderness along the Nation River.His plan to hunt moose fizzled when he bumped intothree National Park Service officers. They insistedthat national park regulations forbade the use ofhovercrafts on the river. Sturgeon pointed out that theriver ran through state land. He then learned that theNational Park Service claims the power to impose itsregulations on non-federal lands within Alaska’snational parks. Sturgeon v. Masica, 768 F.3d 1066,1069-70 (9th Cir. 2014).

Sturgeon believed that federal law sheltered thesenon-federal areas from the reach of national parkregulations. Although non-federal enclaves within thepark system in other states are subject to suchnational regulations, the federal government has takena different course with respect to Alaska, out of aspecial sensitivity for Alaska’s and its native peoples’autonomy. ANILCA shields state, Native, and privateland within “conservation system units” from Serviceregulations applicable “solely” to such units. 16 U.S.C.§ 3103(c). The statutory phrase “conservation systemunit” encompasses a variety of federally administeredparks, refuges, and preserves in Alaska. See id. §3102(3).

Sturgeon sued to establish that, under ANILCA,national park regulations cannot extend to navigablewaters within conservation units. But the districtcourt and the Ninth Circuit, indifferent to the unique

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state-federal balance which ANILCA brokers, held thatall nationwide national park regulations apply to everypocket of non-federal land within conservation systemunits. Sturgeon, 768 F.3d at 1070-71, 1077-78.

That holding reaches far beyond a singlehovercraft traversing the Alaskan wilds. Federalconservation system units sprawl across a massiveproportion of Alaska’s lands and waters. ManyAlaskans live in and rely upon state, private, andNative land within these units. Upholding the lowercourts’ authorization of federal power over these non-federal lands will hurt the livelihoods and recreationalpursuits of all Alaskans.

This Court should reverse. The text and contextof ANILCA protect non-federal enclaves withinconservation units from National Park Service control.The Service’s contrary position, which no reasonableconstruction of ANILCA supports, merits no deferencefrom this Court.

ARGUMENT

I

THE PLAIN LANGUAGE OF ANILCA PRESERVES ALASKA’S

PRIMACY OVER LAND AND WATERUSE BY LIMITING THE REACH OF

NATIONAL PARK SERVICEREGULATIONS TO FEDERAL LANDS

Statutory interpretation begins with the plainlanguage of the statute. This Court relies on text to“give effect to the unambiguously expressed intent ofCongress.” Chevron, U.S.A., Inc. v. Natural Res. Def.Council, 467 U.S. 837, 843 (1984). Judges look to the

4

ordinary meaning of statutory text and do not resort tolegislative history unless the statute is ambiguous.Mohamad v. Palestinian Authority, 132 S. Ct. 1702,1709 (2012); Moskal v. United States, 498 U.S. 103, 108(1990).

ANILCA is not ambiguous. It preserves the land-use rights of the many state, Native, and privatelandowners that reside within the vast reaches of landand waterways otherwise dedicated as “conservationsystem units” by the federal government. ANILCA’sordinary meaning exempts non-federal lands withinconservation system units from National Park Serviceregulation. ANILCA provides that only federal landswithin the boundaries of such conservation systemunits “shall be deemed to be included as a portion ofsuch unit.” 16 U.S.C. § 3103(c). In contrast, lands thatbelong to “the State, to any Native corporation, or toany private party [are not] subject to the regulationsapplicable solely to public lands within such units.”2 Id. ANILCA then defines a “conservation system unit”as “any unit in Alaska of the National Park System,”as well as certain other federally managed wildernessareas. See id. § 3102(4).

By its plain terms, Section 3103 of ANILCAestablishes three common sense principles. Foremost,non-federal land within Alaska’s federal conservationunits are not part of those units. Second, land that isnot part of a conservation system unit is not regulatedas if it were. And third, if the federal governmentwants to regulate such non-federal areas as if they

2 These inholdings may, however, be conveyed to the federalgovernment, after which “such lands shall become part” of theconservation system unit “and be administered accordingly.” 16U.S.C. § 3103(c).

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were fully integrated into a conservation unit, then itmust obtain title.

This basic framework protects non-federal landwithin these conservation system units from thenormal Service regulatory regime. It also vindicatesANILCA’s larger purpose of providing a unique,Alaska-specific framework for national parks. See, e.g.,16 U.S.C. § 3101(d) (“This Act provides sufficientprotection for . . . scenic, natural, cultural andenvironmental values . . . and at the same time . . .adequate opportunity for satisfaction of the economicand social needs of the State of Alaska and its people”).

II

CANONS OF STATUTORYCONSTRUCTION CONFIRM THAT

ANILCA DOES NOT EXPAND NATIONALPARK SERVICE REGULATIONS TO

STATE, NATIVE, AND PRIVATE LAND

A. The Context of § 3103(c) DemonstratesThat Congress Intended for Non-Federal Lands Encased inConservation System Units ToRemain Free of Default National ParkService Regulations

Context shapes language and eliminatescandidate interpretations. Utility Air Regulatory Grp.v. E.P.A., 134 S. Ct. 2427, 2442 (2014). Contextincludes both the statutory section at issue and thelarger enactment. Robinson v. Shell Oil Co., 519 U.S.337, 341 (1997).

Here, the immediate statutory context shows that,under ANILCA, the Service’s default national park

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regulations do not apply to non-federal property withinconservation system units. The definition of“conservation system unit” is instructive. A“conservation system unit” is “any unit in Alaska of theNational Park System.” 16 U.S.C. § 3102(4) (emphasisadded). Thus, any part of the National Park System isalso part of a conservation system unit. ANILCA saysthat State, Native, and private lands are not part ofany conservation system unit: they are not “deemed tobe included as a portion of such unit” and “any suchlands shall become part of the unit” only upon federalacquisition. 16 U.S.C. § 3103(c). Because non-federallands are not part of the unit, they cannot be part ofthe national park system. Thus, national parkregulations do not apply to them.

The broader context of the statutory scheme leadsto the same conclusion. ANILCA placed over 100million acres of Alaska within conservation systemunits. Andrea K. Hansen, The Alaska NationalInterest Lands Conservation Act of 1980, 22 J. LandResources & Envtl. L. 435, 435 (2002). Thisunprecedented expansion of federal parks, preserves,and refuges presented a unique challenge to thefederal-state balance of land management in Alaska.Because so much of Alaska’s land and water is encasedwithin these federal conservation areas, the fate of thestate’s many non-federal enclaves implicates the heartof the state’s sovereignty.

ANILCA therefore remained solicitous of theinterests of the state, Native corporations, and privateproperty owners. Indeed, the law intended both toprovide for the preservation of treasured landscapesand to protect Alaska’s economy. ANILCA assures“adequate opportunity for satisfaction of the economic

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and social needs of the State of Alaska and its people.” 16 U.S.C. § 3101(d). For rural Alaskans, the Act offersthe right to continue “a subsistence way of life.” Id.§ 3101(c). Contrary to Congress’s intent, the NinthCircuit’s reading hollows out these promises by coatingmuch of Alaska’s non-federal land in layers offederal control.

For its part, the Ninth Circuit lost sight of contextwhen it homed in on the word “solely” in Section3103(c): “No lands which [belong] to the State, to anyNative Corporation, or to any private party shall besubject to the regulations applicable solely to publiclands within such units.” 16 U.S.C. § 3103(c); Sturgeonv. Masica, 768 F.3d at1077-79. “Solely,” said the NinthCircuit, means that non-federal lands are freed onlyfrom the regulations that are specific to the Alaskanconservation system units. Id. at 1077-78. Nationwidenational park regulations still hold sway. Id.

This reading ignores the rest of Section 3103(c).Non-federal lands inside conservation system units arenot part of the national park system. Under the lowercourt’s reading, non-federal lands within aconservation system unit become an uncertainhybrid—they are not part of the conservation systemunit yet somehow remain within the national parksystem. This defies ANILCA’s clear dictate that thesenon-federal lands are not part of the conservationsystem unit in which they sit. They therefore cannotbe regulated as if they are. Thus, the Ninth Circuit’sfixation on this single word “solely” violates the canonthat courts should harmonize all parts of a statute. See Weinberger v. Hynson, Westcott & Dunning, Inc.,412 U.S. 609, 631-32 (1973).

But another reading of “solely” reconciles the

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language in Section 3103(c): the word clarifies thatCongress did not intend to exempt these pockets ofnon-federal land from all generally applicable federallaws, such as the Clean Water Act. In other words,Congress inserted the word “solely” to ensure that non-federal enclaves within conservation units would stillbe subject to the United States’ general legislativejurisdiction. This reading, unlike the Ninth Circuit’s,does not elevate a single word over the rest of the text.

The plain language of ANILCA says non-federallands inside national parks are not part of the parksystem. This includes waters that run through suchlands where non-federal parties own title to thesubmerged land. These lands and waters are free fromall national park regulations.3

B. ANILCA Lacks Any Clear Statementof Intent To Trespass upon Alaska’sSupremacy over Management of Non-Federal Land and Water

This Court protects federalism by presuming thatCongress does not intend to alter it absent a plainstatement. “[U]nless Congress conveys its purposeclearly, it will not be deemed to have significantlychanged the federal-state balance.” United States v.

3 Below, the Service argued that all navigable waters withinconservation units are themselves public lands subject to fullService regulation under ANILCA because of federal reservedwater rights in Alaska waters. However, ANILCA’s definition of“public lands” excludes waters in which the federal governmentdoes not hold title. See 16 U.S.C. § 3102. And for the reasonsstated in the Petitioner’s brief on the merits, no federal interest inany of those waters is sufficient to qualify them as federal landsunder ANILCA.

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Bass, 404 U.S. 336, 349 (1971). Primary jurisdictionover land and water belongs to the sovereign states. See e.g., Hess v. Port Authority Trans-HudsonCorporation, 513 U.S. 30, 44 (1994); United States v.Alaska, 521 U.S. 1, 5 (1997). Although national parkregulations often apply to inholdings in other states,Alaska’s sovereignty faces unique peril because of thestaggering size of regions tagged as federalconservation areas. See Hansen, supra at 435(ANILCA added “more than 100 million acres ofconservation system units . . . more than doubling thesize of the national park system, almost tripling thesize of the wildlife refuge system, and nearlyquadrupling the size of the national wildernesspreservation system.”). Congress would not commitmatters of such political significance to agency handswith winks and nods.

Courts should presume that Congress does notintend to meddle with Alaska’s sovereign interests inland and water regulation unless it speaks clearly.Under the Ninth Circuit’s counter-intuitive reasoning,language that appears to preserve the federal-statebalance brokered by ANILCA in fact tilts the scaletoward federal control.

In fact, the Ninth Circuit beats ANILCA’sploughshare back into a sword by refashioninglanguage designed to preserve a balanced federalisminto a weapon that assaults the federalism embodiedby the statute’s compromise. “[I]n the absence of aclearer direction from Congress,” this Court shouldread ANILCA as a modest recognition of Alaska’ssovereignty over land and water. Bass, 404 U.S. at339.

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III

EVEN IF ANILCA IS AMBIGUOUS, THIS COURT SHOULD NOT DEFER TO

THE NATIONAL PARK SERVICE’SINTERPRETATION

The National Park Service’s interpretation ofANILCA subjecting non-federal lands and waters tofederal control contradicts the statute and does notdeserve this Court’s deference. The National ParkService’s views on its authority over non-federalenclaves have vacillated. In 1983, soon afterANILCA’s passage, the National Park Service said thatits regulations did not reach “privately owned landsand waters (including Indian lands and waters . . .)within the boundaries of a park area.” 48 Fed. Reg.30,252, 30,261 (June 30, 1983). This rule admitted ofone exception for “regulations relating specifically toprivately owned lands and waters under the legislativejurisdiction of the United States.” Id. A 1987 revisionaffirmed and clarified the agency’s position. Therevision that said park regulations “do not apply onnon-federally owned lands and waters or on Indianlands and waters owned individually or tribally withinthe boundaries of a park area.” 52 Fed. Reg. 35,238,35,239 (Sept. 18, 1987).

The National Park Service switched positions adecade later. A 1996 amendment extended nationalpark regulations to “waters subject to the jurisdictionof the United States located within the boundaries ofthe National Park System, including navigable watersand the areas within their ordinary reach . . . andwithout regard to the ownership of submerged lands,tidelands, or lowlands.” 61 Fed. Reg. 35,133, 35,136(July 5, 1996). The Service’s interpretation differs

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from the Ninth Circuit’s. Whereas the Ninth Circuitheld here that national park regulations apply acrossall non-federal inholdings, the Service’s interpretationapplies its regulations only to navigable waters withinpockets of non-federal land.

Although the Service’s interpretation is not asonerous as the Ninth Circuit’s, it does not meritdeference. ANILCA unambiguously shields Sturgeonand all Alaskans on all non-federal lands and watersfrom the reach of default national park regulations.Even without ANILCA’s straightforward language, theregulation is an unreasonable interpretation.

A. The National Park Service’sPatchwork Approach To RegulatingNon-Federal Land and Water Is Not aPermissible Reading of the Statute

Chevron deference applies to “an agency’sreasonable interpretation of an ambiguity in a statutethat the agency administers.” Michigan v. EPA, 135S. Ct. 2699, 2701 (2015). A Chevron analysis poses twoquestions: (1) is the agency interpreting an ambiguoustext?; and if so, (2) is the agency’s interpretationreasonable? Utility Air Regulatory Grp., 134 S. Ct. at2439.

As discussed above, ANILCA’s plain language isunambiguous. Non-federal lands shall not “be subjectto the regulations applicable solely to public landswithin such units.” 16 U.S.C. § 3103(c). This phraseleaves no room for interpretive legerdemain.

Assuming arguendo that the language wereambiguous, the National Park Service’s interpretationof ANILCA could not fit into any fair reading of thestatute. Even under the deferential standard of

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Chevron, courts must reject an unreasonable agencyinterpretation. See Michigan v. EPA, 135 S. Ct. at2707.

The National Park Service’s interpretation isunreasonable because it applies a non-uniform rule toa statute establishing a uniform standard for non-federal enclaves. Under the agency’s interpretation,national park regulations apply to navigable waterswithin park boundaries “without regard to theownership of submerged lands, tidelands, or lowlands.” 36 C.F.R. § 1.2(a)(3). Otherwise, the agency recognizesthat its regulations only reach “federally owned landsand waters administered by the National ParkService.” Id. at § 1.2(a)(1). This means that someparts of non-federal enclaves are subject to parkregulation and other parts are not.

The statute does not support this checkerboardinterpretation. Rather, ANILCA contemplates uniformtreatment of all non-federal lands and waters withinconservation system units. Non-federal lands, whichare not part of the surrounding conservation systemunit, are exempt from regulations “applicable solely topublic lands within such units.” 16 U.S.C. § 3103.ANILCA explicitly defines “land” to mean both landsand waters. Id. § 3102(1). Thus, Congress intendedthat this exemption should apply to land and waterwithin non-federal enclaves.

Even if Section 3103 were ambiguous regardingwhat regulations apply to non-federal lands andwaters, the statute still would unambiguously applythe same rule to both non-federal lands and waters. Inother words, nationwide park regulations either applyto all non-federal lands and waters within conservationunits (as the Ninth Circuit held), or to none of them (as

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Sturgeon contends). The lands and waters stand or falltogether.

Yet the Service’s interpretation treats land andwater differently. See 36 C.F.R. § 1.2(a). The Serviceapplies nationwide park regulations to water on non-federal land, but not to the rest of the enclave. TheNational Park Service’s regulation that claimsauthority to regulate waters within conservationsystem units regardless of ownership of the submergedand surrounding land cannot be squared with anypermissible reading of ANILCA.

B. This Court Should Not Defer to theNational Park Service’sInterpretation Because Other FederalAgencies Also Manage ConservationSystem Units Under ANILCA

Where multiple agencies share in administrationof a statute, this Court should not defer to a singleagency’s interpretation. See Bowen v. American Hosp.Ass’n, 476 U.S. 610, 642 n.30 (1986); see also Proffitt v.FDIC, 200 F.3d 855, 860 (D.C. Cir. 2000). “Any otherconclusion would produce an intolerable situation inwhich different agencies could adopt inconsistentinterpretations of [a statute] and substantiallycomplicate the administration of the Act.” PublicCitizen Health Res. Grp. v. FDA, 704 F.2d 1280, 1287(D.C. Cir. 1983).

The National Park Service interpretation does notmerit deference because other agencies also administerconservation system units in Alaska, and interpretSection 3103 differently. For example, the UnitedStates Fish and Wildlife Service manages NationalWildlife Refuges in Alaska, which are included within

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the definition of “conservation system unit.” See 50C.F.R. § 36.1; 16 U.S.C. § 3102(4). The Department ofAgriculture and Forest Service also have imposedsubsistence management regulations pursuant toANILCA with regard to Alaska’s conservation systemunits. See 36 C.F.R §§ 242.1-242.28.

The concurrent management of conservationsystem units in Alaska allows for diverging and evencontradictory interpretations of ANILCA. Indeed, theUnited States Fish and Wildlife Service employs adifferent interpretation of its authority over non-federal land within conservation system units under itsdomain. That agency interprets its authority to extendonly to “federally-owned lands within the boundariesof any Alaska National Wildlife Refuge.” 50 C.F.R. §36.1(b). The Fish and Wildlife Service thus leaves non-federal islands within wildlife refuges alone, while theNational Park Service seeks to expand its authority tonavigable waters on non-federal lands. Under suchcircumstances, a court should not favor any one agencyand instead lean on its own judgment.

C. The Agency’s Flip-Flop in ItsInterpretation of ANILCAExtinguishes Any RemainingPersuasive Power

If Chevron does not apply, an agency regulationmay sometimes enjoy persuasive power under theSkidmore deference: “We consider that the rulings,interpretations and opinions of [an agency], while notcontrolling upon the courts by reason of theirauthority, do constitute a body of experience andinformed judgment to which courts and litigants mayproperly resort for guidance.” Skidmore v. Swift & Co.,323 U.S. 134, 139 (1944). However, the agency’s

15

shifting interpretation weakens its persuasive grip.

The space afforded under Chevron’s discretiontheory allows for changes in policy if the agencyremains within the confines of its discretion. Nat’lCable & Telecommunications Ass’n v. Brand X InternetServices, 545 U.S. 967, 980-81 (2005). But, underSkidmore, policy changes undermine the level ofdeference due to the agency’s interpretation.

This Court has frequently applied more scrutinyto agency interpretations because of policy shifts.Respect for agency interpretations under Skidmoredepends upon whether the agency’s position representsa “longstanding, consistently maintainedinterpretation.” Alaska Dep’t of Envt’l Conservation v.E.P.A., 540 U.S. 461, 487 (2004). “An agencyinterpretation of a relevant provision which conflictswith the agency’s earlier interpretation is entitled toconsiderably less deference than a consistently heldagency view.” INS v. Cardoza-Fonseca, 480 U.S. 421,446 n.30 (1987) (internal quotation marks omitted); seealso Good Samaritan Hosp. v. Shalala, 508 U.S. 402,417 (1993). Moreover, deference diminishes with thespan of time between the statute’s enactment and thesubsequent agency interpretation. Pub. Citizen v.United States Dep’t of Justice, 491 U.S. 440, 463 n.12(1989); see also Good Samaritan, 508 U.S. at 414.

Here, the National Park Service has changed itsposition regarding the reach of national parkregulations. The agency’s 1981 interim guidanceprovided that national park regulations “would notapply to activities occurring on State lands [or]activities occurring on Native or any other non-federally owned land interests located within park area

16

boundaries.” 46 Fed. Reg. 31,836, 31,843 (June 17,1981). The Service clarified again in 1987 that itsregulations “do not apply on non-federally owned landsand waters or on Indian lands and waters ownedindividually or tribally within the boundaries of a parkarea.” 52 Fed. Reg. at 35,239.

The agency then upgraded its own regulatorypower in 1996. The new policy extended national parkregulations to waters inside park boundaries “withoutregard to the ownership of submerged lands, tidelands,or lowlands.” 61 Fed. Reg. at 35,136.

This shift in position blunts the agency’spersuasive power. If any agency interpretation oughtto persuade this Court, it is the interpretation closestin time to enactment. That interpretation said that theNational Park Service cannot impose its regulations onnon-federal lands within Alaska’s national parks. Thisearlier policy also accords with ANILCA’s plainlanguage.

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CONCLUSION

ANILCA offers a balance between federalconservation and Alaskans’ autonomy. Thiscompromise acknowledges the great national interestin Alaska’s natural treasures, while alsoacknowledging the special solicitude that shouldaccompany such national interest. The National ParkService seeks to disrupt that balance by subjecting themany islands of non-federal land within Alaska’snational parks to its full regulatory jurisdiction. ButANILCA dictates that such lands should remain justas free of federal control as lands far from any nationalpark boundary. The National Park Service cannotunilaterally deem it otherwise.

DATED: November, 2015.

Respectfully submitted,

DAMIEN M. SCHIFFCounsel of Record

ETHAN W. BLEVINS, of CounselPacific Legal Foundation930 G StreetSacramento, California 95814Telephone: (916) 419-7111Facsimile: (916) 419-7747E-mail: dms@pacificlegal.orgE-mail: ewb@pacificlegal.org

Counsel for Amicus CuriaePacific Legal Foundation