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Alaska-US power struggle over moose hunter heads to the Supreme Court

  • Author: Erica Martinson
  • Updated: May 31, 2016
  • Published December 25, 2015

WASHINGTON -- On Jan. 20, the government's top lawyers are scheduled to square off against the team representing an Alaska moose hunter who has spent a small fortune fighting for what, to him, is the spirit of the Last Frontier.

For others, it's about the core spirit of conservation and preservation -- protecting the most pristine of the nation's natural beauty.

In court, it'll come down to questions about the legislative intent behind Alaska's federally protected lands and arguments over legal precedent.

In the end, either John Sturgeon will once again be allowed to ride his 10-foot hovercraft down the shallow waters of the Nation River, hunting in and around the Yukon-Charley Rivers National Preserve near Eagle, or he won't. But one thing is certain: The case is no longer solely about one man and his boat.

The case raises questions about the scope of federal authority on public lands across Alaska, pitting some of the nation's most expansive conservation legislation to date against the state's ability to exploit natural resources. And now, several court rulings in, some argue that an adverse ruling for Sturgeon could have much wider impacts -- for flights in and out of parks and preserves and new restrictions on all-terrain vehicles all across the state. The appeals court ruling against Sturgeon has already been cited in proposed new oil and gas regulations released in October.

Tension between Alaskans and the federal government is nothing new, from personal squabbles to conflict over hunting rules on preserves that override state regulations. In recent years, some of the remaining residents in the tiny town of Eagle and those who hunt near the small border town have had run-ins with park service employees, including a well-publicized spat with an elderly man who was arrested for not stopping for an in-river safety inspection.

"All they're doing is seeing how far they can push," said Bo Fay, former mayor and longtime gas-station owner in Eagle. Fay has an easy time detailing decades of what he says are transgressions from some park service employees, whom he calls "very bad neighbors" who subject residents and visitors to harassment.

Similarly, arguments over the ownership of waters in Alaska, and what regulations apply, have been bubbling since President Jimmy Carter signed the Alaska National Interest Lands Conservation Act (ANILCA) in 1980.

In recent years, the Supreme Court has taken an interest in cases relating to ownership of state and federal waters, so it's not entirely surprising that the Supreme Court would opt to hear Sturgeon's case.

An encounter with rangers

On September 2007, Sturgeon stopped on a gravel bar in the Nation River to repair the steering cable on the 10-foot hovercraft he'd been using to navigate during his moose hunts since 1990. Sturgeon has been hunting in the same area around Eagle, off the Yukon and Nation rivers, since 1971, a year after he arrived in Alaska.

A couple of park employees pulled up and engaged in a friendly manner, Sturgeon said, asking questions about his hovercraft. The vessel's fan boosts it just above the water, making it ideal for navigating shallow stretches of river along his favored hunting grounds. Hovercraft are notoriously noisy.

Sturgeon said his conversation with the park employees took a quick turn when one whipped out a rule book, read a line and demanded he put up his hovercraft for good.

The regulation reads: "The operation or use of hovercraft is prohibited."

But though he was in a national preserve, Sturgeon says the federal government shouldn't have any authority over the water he was in. Nevertheless, he loaded his hovercraft on a motor boat and it remains in his yard in Anchorage, the engine mothballed for safe-keeping, more than eight years later.

"After a year or so, the more I thought about it, the more it upset me," Sturgeon said. After consulting a few lawyers, he decided to take the government to court.

"This is Alaska; this isn't Yellowstone National Park," Sturgeon said. "That's not the deal that was cut" when ANILCA was passed, he said. "The federal government and the state of Alaska already made an agreement how these parks are supposed to be managed and how they're supposed to be run."

So far it hasn't gone well for him. More than $300,000 later, two courts -- a federal district court in Alaska and the 9th U.S. Circuit Court of Appeals -- have ruled against Sturgeon.

The Supreme Court is his last chance. He's backed by a long list of supporters who say his case is not only indicative of federal overreach, but amounts to the first step down a slippery slope that could interfere with development on 19 million acres of Native lands in Alaska.

Sturgeon's supporters -- including the state, several Native groups, members of Alaska's congressional delegation and others -- also argue that the appeals court decision gave the National Park Service more than it asked for, ruling that the federal government has authority over not just waters, but state and private land enclaves within national park boundaries in Alaska.

Ramifications through Alaska

"That decision has significant social and economic ramifications that will reverberate throughout the State of Alaska," Sturgeon's lawyers told the Supreme Court in a legal brief. "Alaska Natives depend on this land for economic support, which will be denied to them by NPS regulations that destroy its economic value and deny to these landowners the right to make productive use of their property."

Half the state's regional Native corporations and two village corporations, including Bristol Bay Native Corp. and NANA Regional Corp., filed a friend of the court brief urging the Supreme Court justices to hear the case and overturn the appeals court decision. With millions of acres of land within the boundaries of federal parks and preserves, they say they have a lot at stake.

The core statutory and regulatory claims raised in the case -- Section 103(c) of ANILCA and a regulation barring hovercraft in national parklands -- were both relative afterthoughts in larger, more expansive efforts.

The hovercraft rule was part of a 1983 update to general regulations governing national parks.

"A few" people who commented on the draft regulation "recommended that the Service prohibit the use of hovercraft in park areas. The National Park Service has adopted this suggestion," the government wrote in an explanation published in the Federal Register on June 30, 1983, provided by the NPS.

"The Service has determined that hovercraft should be prohibited because they provide virtually unlimited access to park areas and introduce a mechanical mode of transportation into locations where the intrusion of motorized equipment by sight or sound is generally inappropriate. ... Hovercraft shall only be permitted pursuant to special regulations and only following a thorough analysis of their effect on park resources."

Nobody said much about it in Alaska for the next 34 years.

Who controls the rivers?

"I doubt many members of the public were aware of, or paid any attention to, the 1983 revisions to the national regulations for NPS units." said Tina Cunning, a longtime ANILCA expert in Alaska. "Even those of us who were working alongside NPS in the implementation of ANILCA believed those regulations did not apply in Alaska."

Sturgeon started using his hovercraft in 1990, seven years after the rule was put in place, and at times provided his hunting license to park employees without hearing mention of the hovercraft.

Sturgeon said the reason the hovercraft regulation should not apply is section 103 of ANILCA, which says that, "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."

From there, the dispute revolves around the meaning of the word "solely." Does it refer to Park Service regulations just for those particular areas? Or does it exempt state lands from all Park Service regulations, even if those lands fall within a park or refuge? And if so, are the waterways considered "state lands?"

"This is a jurisdictional power struggle," Cunning said. "The issue needs to be resolved."

The Justice Department told the Supreme Court this month that "Section 103(c) does not control the treatment of navigable waters, which were never conveyed to the State, Native Corporations, or private parties."

Congress went out of its way to make clear its desire to protect many of Alaska's rivers, the Park Service told the court. The Park Service said the state and Sturgeon's interpretation of the law would create a "patchwork of jurisdiction ... There is no indication that Congress intended such an unworkable approach."

"Mr. Sturgeon's case has turned into a debate about whether or not the federal government is shutting down access to public lands, and that's really not the issue in that case," said Valerie Brown, legal director for Trustees for Alaska, which plans to intervene in the case on behalf of the Park Service.

Alaska parks allow hunting

"The national park where Mr. Sturgeon was asked to stop using his hovercraft is still open to hunting today ... You can hunt with your motorized boat. The only thing Mr. Sturgeon can't do is use a hovercraft to do that," Brown said.

Sturgeon argues the NPS reading of section 103 is "utterly illogical," protecting private land in Alaska from only Alaska-specific National Park Service regulations, rather than granting those lands the benefit of more relaxed regulations for hunting, camping and "motorized access."

The Arctic Slope Regional Corp. agreed, telling the high court that the appeals court decision "dramatically upsets the balance Congress struck in ANILCA."

"The Ninth Circuit's decision reaches far beyond one hunter and one hovercraft on navigable waters of the State. Its reading of ANILCA section 103(c) ... affects private land ownership rights on millions of acres in Alaska," ASRC wrote to the court.

Alaska Sens. Lisa Murkowski and Dan Sullivan, along with Rep. Don Young, said in their own brief filed with the Supreme Court that the Park Service has "improperly asserted" that it had the right to impose restrictions on all nonfederal lands within its conservation system in Alaska..

When it comes to the compromises struck with ANILCA, "I don't think what was intended is what we've got at this point 35 years later," Alaska Gov. Bill Walker said in an interview when he was in Washington, D.C., earlier this month to testify about the law. To Walker, the crux of the case is access to land -- a major challenge when so much of the state is owned by the federal government, he said.

So far, Sturgeon and his supporters have spent nearly half a million dollars on the case. Donations from Native corporations, outdoor groups and others have raised about $240,000, Sturgeon said. A fundraiser in Fairbanks headlined by Murkowski netted $67,000 in about 15 minutes, he said. Safari Club International is planning a raffle.

The rest he has split about 50-50 with his friend Ed Rasmuson. "I knew that it was going to be expensive, but I thought I could get help from a lot of people, which I have," he said.

For Sturgeon, it's "just the principle, I guess," he said. "I'm just a moose hunter from the Yukon that thought I got wronged. So it's kind of way beyond me."

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