The Impact of Sturgeon Ii on Alaska Subsistence Management: a Chance for Peace in the Jurisdiction Wars

JurisdictionAlaska,United States,Federal
Publication year2019
CitationVol. 36


Alaska Law Review
Volume 36, No. 2, December 2019
Cited: 36 Alaska L. Rev. 221


Craig Jones [*]


In Sturgeon v. Frost, the Supreme Court addressed the status of navigable waters in Alaska's conservation system units. In holding that these waters are not "public lands" for the purposes of ANILCA, the Court limited the ability of the federal government to regulate them. In a footnote, Sturgeon preserved the longstanding Katie John trilogy of Ninth Circuit precedent regarding subsistence rights. This new jurisdictional framework has the potential to cause problems for subsistence management in Alaska. This Note addresses these potential consequences and proposes possible steps to create a more harmonized subsistence management system through greater cooperation between the federal government, the State, and subsistence users.


On March 26, 2019, the Supreme Court issued its unanimous opinion in Sturgeon v. Frost (Sturgeon II). [1] The Court held that the National Parks Service (NPS) did not have the authority to regulate navigable waters in Alaska's conservation system units (CSUs). [2] This decision concludes the latest battle in a decades long jurisdictional turf war over who controls Alaska CSUs, the State of Alaska or the federal government. The front line of this war has traditionally been the management of Alaskan natural resources for subsistence harvest. Caught in the crossfire are Alaska Natives, many of whom depend on subsistence lifestyles. [3]

While the Court attempted to dodge the subsistence issue in Sturgeon II, its decision magnifies the battle lines. The question of Alaskan subsistence management remains open, and the next moves by each party will be critical. The first part of this Note situates Sturgeon II in the statutory and judicial history of subsistence in Alaska. The following discussion introduces the Sturgeon decisions and considers the possible impact of Sturgeon II on subsistence management. The final part proposes a truce in the subsistence jurisdiction wars, suggesting that Sturgeon II might present new avenues for federal-state cooperation and the further recognition of Alaska Native interests. This discussion includes two proposals for policy change in response to the Court's decision: 1) increased cooperation through cooperative management plans, the Alaska Land Use Council, and memoranda of understanding, and 2) a state constitutional amendment recognizing rural subsistence rights.


A. Factual Background

In 2007, John Sturgeon was navigating the Nation River on his hovercraft, [4] traveling to his preferred moose hunting grounds. [5] National Parks Service (NPS) agents arrived and informed him that NPS regulations prohibited the operation of hovercrafts in the Yukon-Charley Rivers National Preserve. [6] Sturgeon returned home empty-handed but did not resign himself to the NPS regulations. Instead, he launched litigation that spanned more than a decade and resulted in two trips to the highest court in the land.

B. Statutory Background

1. ANILCA § 103(c)

Sturgeon's desire to operate his hovercraft in the Yukon-Charley preserve implicated a fundamental question about who has the authority to regulate the navigable waters located in Alaska's CSUs. The answer to this question lies within the law that created Alaska's CSUs, the Alaska National Interest Lands Conservation Act (ANILCA). [7] However, ANILCA is far from a model of clarity on this point. Section 103(c) states:

Only those lands within the boundaries of any conservation system unit which are public lands (as such term is defined in this Act) shall be deemed to be included as a portion of such unit. No lands which, before, on, or after [the date of ANILCA's enactment], are conveyed to the State, to any Native Corporation, or to any private party shall be subject to the regulations applicable solely to public lands within such units. If the State, a Native Corporation, or other owner desires to convey any such lands, the Secretary may acquire such lands in accordance with applicable law (including this Act), and any such lands shall become part of the unit, and be administered accordingly. [8]
The Act defines "land" as "lands, waters, or interests therein." [9] "Public lands" are defined as "land situated in Alaska which, [after the date of ANILCA's enactment] are Federal lands . . . ." [10] Finally, "Federal land[s]" under ANILCA are "lands the title to which is in the United States after [the date of ANILCA's enactment]." [11]

To summarize, public lands for the purposes of ANILCA are lands to which the United States had title on December 2, 1980, when ANILCA was enacted, as well as lands within CSUs acquired by the federal government after that date. Only these "public lands" are "subject to the regulations applicable solely to public lands within such units." [12] As a practical matter, this section refers to NPS regulations. Other federal regulations, for instance those issued by the EPA, are of general applicability to both public and private lands, removing them from 103(c)'s purview. At first blush, this provision may seem trivial, but its importance is highlighted by the presence of vast "inholdings" [13] within Alaska CSUs. Much of the land that falls within the boundaries of the CSUs in Alaska is owned privately or by Alaskan Native corporations. These inholdings are more prevalent in Alaska than elsewhere because in ANILCA Congress chose to follow topographic or natural features rather than property lines. [14] Without section 103(c), these inholdings would be subject to NPS regulations along with all of the federally owned land in the CSU.

2. The History of ANILCA

ANILCA resulted from years of legislative wrangling over the fate of Alaska's undeveloped land. The battle that led to ANILCA began with the passage of the Alaska Native Claims Settlement Act (ANSCA). [15] Section 17(d)(2) of ANSCA resulted from an amendment proposed by Nevada Senator Alan Bible with the support of conservationists. [16] Section 17(d)(2) authorized the Secretary of the Interior to reserve up to eighty million acres of land in Alaska for inclusion in the national park, forest, wildlife refuge, and wild and scenic rivers systems. [17] However, Congress had the final authority to approve the withdrawals authorized by § 17(d)(2). [18] Congress was required to act in response to the Secretary's proposed withdrawals before December 28, 1978. [19] As the deadline approached, Congress had not acted on the Secretary's recommendations. [20] Further, the State of Alaska had selected nine to eleven million acres located in the proposed section 17(d)(2) areas under their Alaska Statehood Act [21] entitlement. [22] In response, President Carter exercised his authority under the Antiquities Act of 1906 [23] to create seventeen new national monuments totaling fifty-six million acres located in the section 17(d)(2) recommended areas. [24] Carter also used his Federal Land Policy and Management Act [25] authority to reserve more land in Alaska. [26] In total, the President's reservations exceeded 100 million acres. [27]

The Carter land reservations sparked political controversy in Alaska and set the stage for ANILCA's passage. [28] Like the debates over ANSCA, the legislative process leading to ANILCA pitted conservationists and pro-development forces against each other. [29] Alaska Native interests were also determined to ensure that their rights were protected. [30] Ultimately, ANILCA is a compromise statute, balancing conservation, development, and subsistence use of Alaska's lands. [31]


The Sturgeon cases unfolded against the backdrop of Alaska's complex subsistence management history. In fact, the Sturgeon question was not new. The Ninth Circuit had addressed the § 103(c) question several times in a series of cases collectively known as the Katie John trilogy. These decisions set the parameters of a patchwork state-federal subsistence management system that took center stage in the Sturgeon controversy. At a fundamental level, the Katie John decisions called upon courts to consider some finer points of federal water law and their bearing on the word "title" in ANILCA.

A. Federal Water Law

Understanding the holdings in Katie John and Sturgeon requires some grasp of federal water law. In particular, the Equal Footing Doctrine, the reserved water doctrine, and the navigational servitude loom large in the section 103(c) controversy.

1. Equal Footing Doctrine

The Equal Footing Doctrine states that when a new state enters the union it has the same rights and powers as the existing states. [32] The exact phrase "equal footing" has appeared in every act admitting a new state since the addition of Tennessee in 1796. [33] However, this language does not do much work on its own; the heart of the doctrine comes from Article IV Section 3 of the Constitution, which says "[n]ew states may be admitted by the Congress into this union." [34] From there, the Constitution defines how these new states will relate to each other and the federal government. [35]

The Equal Footing...

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