National Park Service nemesis John Sturgeon now uses a perfectly legal airboat to hunt the remote and wild Nation River near the Canadian border in Eastern Alaska, but his fight with the feds to use an environmentally friendlier hovercraft is alive and growing.
What began years ago as a somewhat pointless, rules-are-rules dispute between a group of park rangers and an elderly moose hunter in an out-of-the-way corner of North America only a handful of people ever visit, appears today on the verge of turning into a huge state’s rights battle focused on who owns Alaska’s water.
Down about $1 million in legal fees but pressing on because he says he can’t ethically quit at this point, Sturgeon this week asked the Supreme Court of the United States (SCOTUS) to again consider the lawsuit he won in the spring of 2016 only to lose for a second time last year back before the Ninth Circuit Court of Appeals in San Fransisco.
In ruling against Sturgeon for the second time, the Court of Appeals magnified the significance of the Sturgeon case. Once a dispute limited to control over rivers flowing across about 55 million acres of park service land in Alaska , the lawsuit has mushroomed into a battle over who owns the state’s water.
The Ninth Circuit in October ruled that the federal government holds an “implied reservation of water rights” in Alaska and because of that all of the waters in the state are rendered “public (federal) lands.”
The Ninth Circuit didn’t see it that way.
Sturgeon “contended that the Nation River belonged to Alaska, which permits hovercraft on its waterways, and that the National Park Service had no authority to regulate, and prohibit, the use of hovercraft on that stretch of the river,” the court’s majority opinion said. “The panel held that ANILCA section 103(c) did not limit the Park Service from applying the hovercraft ban on the Nation River in the Yukon-Charley Preserve. The panel held that under the Katie John precedent…the United States had an implied reservation of water rights, rendering the river public lands.
“On remand from the United States Supreme Court, the panel again concluded that the federal government properly regulated hovercraft use on the Nation River in the Yukon-Charley Preserve.”
It’s unclear if this is the ruling the SCOTUS had in mind when it unanimously over-ruled the Ninth Circuit’s first ruling against Sturgeon and sent the case back to the Ninth Circuit with the suggestion it address “vital issues of state sovereignty, on the one hand, and federal authority, on the other.”
Alaskans will recognize the Ninth Circuit’s Katie John reference. The John decision gave federal officials the authority to oversee management of fisheries in Alaska’s rivers in order to protect a subsistence fishing priority for “rural residents’ written into the Alaska National Interest Lands Conservation Act (ANILCA).
The ruling made Alaska the only state in the union where federal officials manage fish in non-park waters.
Sturgeon said Wednesday that his attorneys believe there’s a 50-50 chance the present SCOTUS, which is more partial to state’s rights than the Ninth Circuit, will take the case again. He noted the same lawyers gave him a “point-5” percent chance the court would take his case the first time.
Having now devoted years of his life and hundreds of thousands of dollars to this case, Sturgeon could well be the poster boy for the old idiom that “you can’t fight city hall.”
“It isn’t really fair,” he admitted. Since the start of this litigation, Sturgeon has been fighting an uphill battle against an army of federal lawyers backed by unlimited resources.
And to think the case began so simply.
Sturgeon ended up in trouble with the Park Service in a place far from anywhere almost by accident. For more than a decade, no one seemed to notice his small hovercraft was violating a 1983 ban on hovercraft in parks. The ban reportedly started with an effort to block a hovercraft from being used as a taxi on the Potomac River in Washington, D.C, and just sort of grew from there to cover parks across the nation.
When Sturgeon’s problem began a decade ago, he was doing what he had been doing every fall for 16 years. He had for all that time used a riverboat to haul his small hovercraft 45 miles downriver from Eagle, a historic but fading community down to about 85 people 65 miles off the summer only Top of the World Highway.
At the confluence of the Yukon and the Nation, Sturgeon would unload the hovercraft and head up the boulder-strewn Nation to hunt moose. The hovercraft, he said Wednesday, can pass over rocks barely covered with water without disturbing them.
An airboat bangs its way up the Nation, smashing into boulders and dragging on the smaller rocks of gravel bars.
“You can’t see where the hovercraft has been,” Sturgeon said. It’s a different story with an airboat. But the issue in Yukon-Charley was never about the environment; it was about something far simpler in the bureaucratic scheme of things:
Rules. And rules are rules.
Not in Alaska
Yukon-Charley became a national preserve in 1980 with the passage of ANILCA, a bit of federal legislation loaded with compromises intended to recognize how different Alaska from the rest of the nation.
Alaska is part of the United State, but only small parts of Alaska – basically the Anchorage metropolitan area and a handful of minor cities – are like the United States. Alaska is home to more caribou – about 1 million – than people – about 740,000.
By far the largest state in the nation, Alaska has fewer miles of roadway – 31,618 – than New Hampshire – 33,156.
At 9,350 square miles, New Hampshire is the fifth smallest state in the nation. Most Americans consider it rural. At 665,400 square miles, Alaska is more than 71 times bigger, and only those lands adjacent to the limited Alaska road system could be considered rural.
Beyond the roadsides, most of the state is wild, unpeopled, primordial.
ANILCA recognized that and bent some rules to accommodate those trying to survive in or along the edge of the wilderness. Yukon-Charley itself was one of the kinks. It was made into a “preserve” rather than a park to allow hunting to continue.
Of the nation’s 21 national preserves, half are in Alaska. Of the 24.2 million acres of land in preserves, close to 19 million acres are in Alaska.
“ANILCA dramatically modified traditional NPS access policy by permitting sport hunting in extensive national preserves and created a new management role for the NPS with large-scale inclusion of preexisting mineral rights in new park areas,” David Funk wrote in a 1990 history of ANILCA. “ANILCA both designated land areas and provided management directives. Most of the management provisions of the Act define who can go where, how they can get there, and what they can do when they arrive. Furthermore, most of these directives deal with non-recreational resource use and access for purposes and by methods not traditionally associated with national parks.”
Aware of these ANILCA directives and irritated by the Park Service arbitrarily telling him to keep his hovercraft off the Nation, Sturgeon tried for a couple of years to get an explanation as to why. He even asked the agency to amend its regulations to allow a water craft better suited to the Nation than an airboat.
Unable to get a response out of the agency, he finally decided to sue.
His lawyers played the ANILCA card on the Park Service, arguing the act made it clear Alaska parks and preserves were to be treated differently than Outside parks and preserves, and then fought an uphill battle against the system.
U.S. District Court Judge H. Russell Holland of Alaska held for the government. Sturgeon appealed. The Ninth Circuit backed Holland and admonished Sturgeon.
“The panel rejected Sturgeon’s contention that Section 103(c) of the Alaska National Interest Lands Conservation Act precluded NPS from regulating activities on state-owned lands and navigable waters that fell within the boundaries of National Park System units in Alaska,” the court’s opinion said.
“The panel also rejected Sturgeon’s arguments that the Secretary of the Interior exceeded her statutory authority in promulgating the regulation at issue, and that her action raised serious constitutional concerns.”
To the California judges, Sturgeon was just some moose hunter wanting special treatment and the protection of Alaska wild lands trumped any of that.
“Summarized succinctly,’ANILCA is generally concerned with the designation, disposition, and management of land for environmental preservation purposes,'” their opinion said.
Sturgeon appealed that decision, too.
SCOTUS strikes back
The Supreme Court unanimously rejected the Ninth Circuit view, and ruled it was clear ANILCA set different standards for parks and preserves in Alaska.
It then sent the case back to the Ninth Circuit. Sturgeon said he was pretty confident of what would happen next.
“There’s no way we were going to win in the Ninth Circuit with those liberal judges,” he said. Sturgeon remembers his attorney telling him that “the bad news is that we’re going to lose….the good news is that because there are three liberal judges, they’re going to come up with a real wacky decision.”
Sturgeon admitted to being surprised by how wacky it got.
“I never thought I would be involved in a case that is so important to the state of Alaska,” he said. “The state (now) has no control over their navigable waters….This just gives the federal government a huge increase in power.”
“I don’t want to be in this position, but how do you get off the roller coaster?” the one-time state forester added. He doesn’t want it on his conscience if the latest ruling stands. He sees the Ninth Circuit ruling pushing Alaska back toward territory status.
“It is such a bad decision, and it’s so bad for Alaska,” Sturgeon said. Some attorneys believe it could even limit the state’s use of ground water for communities or industry.
Sturgeon is hopeful Gov. Bill Walker will go all in on support of the latest appeal, but isn’t counting on that. Walker tried to claim partial credit for Sturgeon’s win at the Supreme Court. It’s politically good to be seen battling “federal over-reach” in the 49th state.
But Alaska politicians have been unwilling to help support the Sturgeon case financially.
“I’ve talked to legislators,” Surgeon said. “I’ve talked to the governor. They all agree the state should be supporting this,” but they haven’t put up any money. Funding has come out of Sturgeon’s bank account boosted by contributions from dozens of individual Alaskans and fundraisers sponsored by the Alaska Outdoor Council and other interest groups.
Sturgeon called out Ed Rasmuson, chairman of the Anchorage-based Rasmuson Foundation, and Fairbanks businessman Craig Compeau as especially helpful sponsors of the lawsuit.
Sturgeon added that he has had a lot of help from the Alaska Department of Law in preparing the case, and he thanked Walker for that.
“The AG’s office has been incredible,” Sturgeon said. “(Attorney General) Jahna Lindemuth has been supportive. They’ve done a lot of research for us.”
The politics are complicated here. Walker and Lt. Gov. Byron Mallott, who has cultivated tribal contacts in rural Alaska, are up for re-election and need the rural vote. Rural Alaskans are broadly opposed to any restrictions, real or perceived, on their subsistence priority. They are unlikely to take kindly to any threat to the Katie John ruling.
But some of the state’s Native corporations are equally worried about what federal restrictions on water use could mean for future development projects in Alaska. The implications could reach into oil and mining industries in which some corporations are heavily invested.
As for Sturgeon, all he really wants is his hovercraft back.
“I can go more places with my airboat,” he said. “An airboat will go across tundra. I talked to a guy who went 23 miles overland on the Copper River flats with his. You can’t do that with a hovercraft. It needs a flat surface.”
But the hovercraft rides better and doesn’t bash around in the rocks they way the airboat does on the Nation.
The Park Service thinks “they’ll go anywhere. They can’t. It won’t even operate on my cut lawn. The grass breaks the field.”
He firmly believes the hovercraft is environmentally better on the Nation than an airboat – even an airboat that’s part hovercraft.
When Sturgeon goes to the Nation now, he takes a part of the hovercraft with him.
“I took the engine out of the hovercraft, and put it in the airboat,” he said. “I got a little bit of revenge on the Park Service. And they don’t bother me anymore. If I’m on the right side of the river, they move to the left side of the river.”
Sturgeon said he had talked to federal officials about some sort of negotiated settlement to their dispute, but doesn’t see that happening. The issues have become too complicated and too big.
“The big issue is who controls the navigable waters,” he said. “The only permanent solution is to go through the courts. There’s nothing else I can do. If they take the case, I know we’re going to do well.”
And if not? Well, Sturgeon will have wasted a lot of money on principle, but it is in his view an important principle.
“It would be the most unethical thing in the world for me to back off now,” he said. “Alaska is screwed if we lose. This is 10 times worse for Alaska” than the situation before the litigation began.