WASHINGTON -- The U.S. Supreme Court heard arguments Wednesday in a case questioning whether the federal government has authority over navigable waters in Alaska's national parks -- a case brought by a moose hunter barred from using his hovercraft by the National Park Service.
The case is largely specific to Alaska, where the moose hunter in question -- John Sturgeon -- argues that a provision the 1980 Alaska National Interest Lands Conservation Act withholds authority from the federal government for setting the rules for waters in national parks.
The outcome of Wednesday's arguments will be known in the next few months, but it appeared that Sturgeon has a fair shot of getting five of nine justices to agree to letting him pilot his hovercraft up the Yukon and Nation rivers once again.
Nevertheless, they didn't discuss the specific hovercraft regulation much. The hourlong hearing focused more on the roots of federal and state authority and the intersection of perhaps conflicting federal laws.
Sturgeon used his hovercraft on annual moose hunts in the Yukon-Charley Rivers National Preserve for more than 15 years before he was stopped by three Park Service employees in 2007 and told the agency had long ago banned the use of hovercraft in national parks.
He eventually sued the federal government in 2011 and lost in both federal district and appeals courts, which ruled the provision in question -- Section 103(c) of ANILCA -- exempts only nonfederal lands within Alaska's national parks from regulations that apply only to Alaska's national parks. The hovercraft ban is nationwide.
The leanings of Supreme Court justices can be difficult to discern during oral arguments. This case was no different. Some justices seemed to sway throughout the hearing, perhaps uncertain where they were going to land and, at times, seemingly unfamiliar with Alaska.
Early in the hearing, the justices focused questions for Sturgeon's attorney, Matthew Findley, on the stretch of government regulation allowed for navigable waters that run through national parks in Alaska.
Chief Justice John Roberts, Justice Elena Kagan and Justice Anthony Kennedy all wondered if, legally, a ruling barring the Park Service from enforcing its hovercraft ban would ultimately extend to other agencies, such as the Environmental Protection Agency, the Army Corps of Engineers or the U.S. Coast Guard. Findley argued that the provision of ANILCA is limited to the park management agency.
Throughout, the justices struggled with whether there is a legal difference between Alaska's national parklands and those in the rest of the country. Justice Stephen Breyer repeatedly employed an analogy based on a man living on an inholding in Yosemite National Park. (Remaining inholdings in the Lower 48 are starkly limited compared to those in Alaska.)
Kagan quickly dismissed arguments by Sturgeon's attorney about the Park Service's decision to expand the reach of its regulations in Alaska parks in 1996. "Whether or not that's true, agencies can change their mind," she said.
And Kennedy perhaps hit on the difficulty of the matter, noting he didn't understand why the ANILCA exemption, if valid, would apply only to the Park Service and not other agencies.
"Are you saying that's the same as the Forest Service regulations?" he asked, pointing to an agency that, like the Park Service, manages public lands.
Kagan and Kennedy questioned why Congress would grant the federal government authority over lands, but not the rivers that run through them.
"There are good reasons Congress made that choice," Alaska Assistant Attorney General Ruth Botstein told the court, pointing to small villages that dot the state, often without roads.
The 9th Circuit Court of Appeals ruled in a way that focused on a single word, in a single sentence in Section 103(c) of ANILCA. That is where Sturgeon -- and the state of Alaska and other supporters -- argues the state has authority over the Park Service.
It says:
"No lands which, before, on, or after the date of enactment of this Act, 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."
The word "solely" was what stopped previous courts from siding with Sturgeon. They said that its clear meaning is regulations written only for Alaska parks -- not nationwide regulations, such as the ban on hovercrafts.
And there was a clear split among some members of the court.
Findley argued that without the word, the statute would bar any and all regulations from those lands.
Kagan didn't feel like the one-word qualifier was enough. "Putting the word 'solely' in, I gotta say, doesn't do that for me," she said.
Justice Samuel Alito, meanwhile, clearly opposed the 9th Circuit's interpretation of the law. He noted the federal government attorneys didn't reach the issue until Page 49 of its 58-page brief.
"Why don't you just concede that it's wrong -- it's a ridiculous interpretation," Alito said.
Alito's strong statement appeared to be a turning point for the court, as justices gave an equally hard time to the Justice Department attorney as they did those who came before her. Roberts pressed her on the source of the Park Service's authority, and noted that the way the agency sees the law is "not a very significant protection for inholders."
Justice Antonin Scalia argued for the Park Service to have authority over the waters in the park, "you'll have to show that … the federal government holds title to the water."