The 9th U.S. Circuit Court of Appeals has rejected two high-profile Alaska cases dealing with federal authority in Alaska, largely because of a six-letter word Congress inserted into a sentence in the Alaska National Interest Lands Conservation Act 34 years ago.
In both cases, the court has concluded that the state and private parties challenging the National Park Service have misinterpreted the law because they are not giving the word its due.
The word is "solely" and its use as a qualifier in Section 103 of the act has given rise to a continuing argument about where federal authority ends in the national parks, preserves and monuments across Alaska. The 1980 law, preceded by years of intense debate in Alaska and Washington, D.C., created 10 new parks and preserves and expanded three others.
Section 103 has been cited in Alaska as the legal justification for why state property, such as a navigable river, should not be subject to federal regulation on sections running through the 51 million acres in Alaska under Park Service control.
Earlier this month the court denied appeals by Jim Wilde, who was cited for misdemeanor violations on the Yukon River in 2010, and John Sturgeon, who wanted to use his hovercraft on the Nation River in the Yukon-Charley Rivers National Preserve for moose-hunting trips.
In both cases, the court said the provision in ANILCA that exempts state holdings inside parks from federal regulatory authority does not apply. That's because the exemption is qualified in the law by the use of the word "solely."
Regulations that are "applicable solely" to federal land within a park or a preserve cannot be applied to other land, the court said.
But Wilde and Sturgeon are battling general regulations that were not adopted "solely" to apply to federal lands in parks.
The three-judge panel said Oct. 6 it agreed with Sturgeon's lawyer that the law is unambiguous.
But the decision, written by Judge Jacqueline Nguyen, said "we find that it unambiguously forecloses his interpretation." The word "solely" made the difference.
The hovercraft ban stems from a national regulation applicable to all lands and waters—regardless of ownership—within sites managed by the Park Service.
"Though Sturgeon might prefer a more robust regulatory exemption, we 'must presume that a Legislature says in a statute what it means and means in a statute what it says,'" the court said, quoting a 1992 federal court ruling.
In the Wilde case, Fairbanks attorney Bill Satterberg unsuccessfully argued that although the Yukon-Charley Rivers National Preserve is both north and south of the Yukon River, it excludes the riverbed, which is state property.
"What you have is a Yukon Charley North and a Yukon Charley South with a piece of property in-between," he said during an August court hearing in Anchorage. The river is not within the preserve, so the rules don't apply.
The judges did not agree.
"There can be no dispute that the relevant part of the Yukon River is located within the geographic boundaries of the Yukon-Charley Rivers National Preserve," the court said in a decision filed Oct. 6.
The showdown between Wilde, then 72, and the rangers on the Yukon escalated into a confrontation after the rangers asked that he stop his boat for a safety check and he refused to do so, shouting profanities at the rangers. The lower court decision said that it was not until after one of the rangers pointed a shotgun at Wilde that he pulled over. A scuffle ensued onshore.
In a decision in late 2013, District Judge Ralph Beistline made reference to the word in the law that allowed Park Service regulatory authority. "Wilde's interpretation does not give effect to the word 'solely,'" Beistline said.
In the Sturgeon case, the judges affirmed a lower court ruling upholding the authority of the Park Service in preventing the use of hovercraft under a national regulation.
Six miles of the Nation River, a tributary of the Yukon River in eastern Alaska, are within the preserve.
In 2007, while Sturgeon was stopped on a gravel bar fixing his small hovercraft, Park Service officials stopped to talk. They told Sturgeon that federal regulations prohibited him from using the craft, which he has used on hunting trips since 1990.
The judges rejected his argument that the federal rules didn't apply because the river is owned by the state.
The state had intervened in the case, challenging a requirement that its researchers had to get a federal permit to conduct salmon studies on the Alagnak River in Katmai National Park.
Jeanie Ann Nelson, an assistant attorney general, argued in an August proceeding that the state did not need permits to get access to its land.
She said it would be "similar to you being required to obtain a permit from your neighbor to cross your front yard to get into your house."
"But implicit in the idea of the permit is the idea that they can deny," she said, adding that this is opposed to provisions in the Alaska National Interest Lands Conservation Act that protect access to state and private land within federal conservation units.
The state has long argued that the intention of Section 103 was to limit federal control to federal lands in parks, preserves and national monuments. It has also sought an amendment to Park Service regulations to exempt Alaska from national regulations.
Responding to the court ruling, Gov. Sean Parnell said in a press release that the court misinterpreted the law and "wrongly found that the National Park Service could regulate state-owned lands and navigable waters within national parks as if they were part of the park. ANILCA clearly forbids this."
The judges said the state did not identify any "actual conflict" between the Park Service regulations and state law and regulations. That left them "with only a vague idea of how exactly NPS's permitting requirement infringes on the state's sovereign and proprietary interests in its lands and waters, or how the requirement interferes with the state's control over and management of those lands and waters."
Vicki Clark, executive director of Trustees for Alaska, responded in a press release, praising the "clear opinion that the National Park Service can enforce the law inside of National Parks in Alaska. Hopefully the State of Alaska won't continue wasting time and money challenging the Park Service's authority."