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Sturgeon seeking a ‘hat trick’ for states’ rights

  • Author: Wayne Heimer
    | Opinion
    , Craig Compeau
    | Opinion
  • Updated: June 26, 2018
  • Published June 25, 2018

John Sturgeon deals with his Hovercraft on the Nation River. The river is quite shallow at this point.John Sturgeon used a hovercraft in the upper Yukon basin to hunt moose. His case is now before the U.S. Supreme Court. (Photo provided by John Sturgeon )

We all realize our state is hockey crazed. That being the case, Alaskans might remember the astronomical preseason odds against the National Hockey League's Las Vegas Golden Knights making the Stanley Cup finals. Still, there they were! Alaskan states' rights advocate John Sturgeon has faced similar unfavorable odds in both of his appeals to the U.S. Supreme Court. Still, he's there — again.

The Sturgeon case seeks to restore Alaska's rights to manage its navigable waters. This all started when John "got into it" with the feds over use of the Yukon River to get to his historic moose hunting spot. He'd been using a small hovercraft to get to his hunting area for 25 years when the National Park Service busted him because they don't like hovercraft.

History suggests that way back in 1983, the federal ban on hovercraft originated on the Potomac River via a National Park Service denial to a request to operate large hovercraft ferries on the Potomac to relieve traffic congestion in Washington, D.C. The Potomac runs between some federal lands, so the Park Service got to comment on the permit application, didn't like hovercraft, and banned hovercraft use on all Park Service land by regulation. It's been 35 years since the feds made the anti-hovercraft rule. Now they've expanded this rule from urban Washington, D.C., to the Alaska wilderness. Applying rules in Alaska that were made for the Lower 48 has become standard operating procedure for these agencies, as many of us that follow these matters can attest.

After the feds busted Mr. Sturgeon, he went to court and fought them all the way to the U.S. Supreme Court. He won by an 8-0 decision. The Supreme Court sent the case back to the 9th Circuit Court of Appeals, and told that court to "fix it."

In what has become the typical federal overreach pattern, the Ninth Circuit didn't fix its mistake. Instead, it doubled down, claiming federal control over what uses are allowed on navigable waters to "protect interstate commerce." In spite of it not being clear what an Alaska resident's moose hunt has to do with interstate commerce, the Circuit Court is hoping to use the Commerce Clause of the U.S. Constitution to expand control over what uses are allowed on the navigable waters of all 50 states. Essentially, the feds are claiming all navigable waters originating on, flowing through or adjacent to federal lands are really "land" the Park Service owns and/or has the authority to manage, even if it is private land or water.

This isn't the first time lawyers have claimed water is "land." Many years ago, when the subsistence issue was being argued in court, lawyers for Alaska Native elder Katie John made this same claim. Ms. John made four claims and lost on three of them. The claim that "navigable water" is "federal land" was one she lost. The only claim she won on was "reserved federal water rights." That's basically technical irrigation law and was the basis of Mr. Sturgeon's win in his first trip to the U.S. Supreme Court.

Many local Alaskans, businesses, sportsman's groups and citizens concerned about this federal land/water grab have donated to help John Sturgeon try to keep up with his massive legal bills. They will hit the million-dollar mark before this is over. The good news is that the Sturgeon case is back before the Supreme Court with the prospect of re-establishing Alaska's promised statehood rights. The challenge is that the bills will still have to be paid. The state has been inactive in supporting this case financially. The Alaska Senate Finance Committee attempted, without success, to get funding for the case during the last session. Gov. Bill Walker's administration has pointedly stayed on the financial "bench." Alaskans interested in supporting our statehood rights would do well to support the Sturgeon case. It's pretty easy to find out how when visiting the Alaska Outdoor Council website.

The three members of our congressional delegation — Rep. Don Young, Sen. Lisa Murkowski and Sen. Dan Sullivan — have supported Mr. Sturgeon all along the way. The issue got a bit sidetracked while the Walker administration introduced an Alaska Federation of Natives-friendly ANILCA amendment as a solution. That turned out to be mostly double talk and failed in the U.S. Congress.

Originally, this case was about one guy using a hovercraft to hunt moose on a remote river in Alaska. Now, it's much bigger than that. It is about the way the feds generate and enforce regulations that might have made sense to them on the Potomac River 35 years ago, but don't make sense in the middle of Alaska, or in other states, today.

Wayne Heimer is a retired Fish and Game biologist with a background in state/federal relations. Craig Compeau is a Fairbanks businessman who has been active in fundraising for the Sturgeon case.

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