The Supreme Court of the United States of America has now elevated Alaskan John Sturgeon to the pantheon of those who shaped the character of the freedom-loving 49th state.
It only cost the 73-year-old moose hunter $1.2 million and more than a decade of his life.
Sturgeon has no regrets, but Tuesday admitted that if someone younger and with access to fewer resources asked his advice on going to court to do battle with Uncle Sam, he’d advise against it.
“Don’t do it,” he said. “If you want to do that by yourself, it’s impossible.”
Doing the principled thing in America is costly, and Sturgeon did the principled thing. After the National Park Service kicked his hovercraft off the Nation River in the Yukon-Charley Rivers National Preserve, he read the law, decided the federal agency lacked the authority to do what it did, and decided he’d take on one of the biggest of proverbial City Halls.
“I knew it was right,” Sturgeon said.
Thankfully, he added, lots of average Alaskans agreed and came to his aid. He said he couldn’t begin to adequately thank the many in the state who contributed funds to keep his lawsuit going for a dozen years.
“People have been incredibly generous,” he said. “This clearly resonated with a lot of people. So much support made a big difference….I never worried because people were enthusiastic about this. They’re still coming through.”
Contributions have brought Sturgeon to within about $100,000 of that mind- boggling legal bill, and fundraising efforts are continuing. The case that ate up Sturgeon’s life would have been easy for most people to abandon.
Given the time, energy and money, he’s put into this, he could have visited plenty of hunting locales as good or better than the Nation River country. But his case wasn’t as much about moose hunting as it was about principle.
An aging Doug Pope, a lifelong Alaskan and one of Sturgeon’s attorneys, has described his client, a former Alaskan state forester, as one of the most principled men in state history.
It was this backbone of principle that led Supreme Court Justice Elena Kagan to write in the unanimous ruling in favor of Sturgeon that “you might catch a glimpse of some former-day John Sturgeons—who (for better or worse) sought greater independence from federal control and, in the process, helped to shape the current law.”
She went on to cite those who pushed for Alaska Statehood with the lament “that Alaskans were no better than ‘tenants upon the estate of the national landlord,'” and the Alaska Congressional delegation – the late Sens. Ted Stevens, R, and Mike Gravel, D, and Rep. Don Young , R – who fought to see that when new parks and wildlife refuges were created in Alaska the rules were different from those governering the heavily developed Lower 48.
For those unfamiliar with the D-2 Lands battle that led to passage of the Alaska National Interest Lands Act (ANILCA) in 1980, Kagan’s opinion provides a nice, concise snapshot of the history.
Alaskans who watched President Jimmy Carter more than double the size of the national park system by imposing national monument status on 56 million acres of the state by executive order, she wrote, saw just “‘one more example of federal interference,’ protesters demonstrated throughout the State and several thousand joined in the so-called Great Denali-McKinley Trespass. ‘The goal of the trespass,’ as Sturgeon I explained, ‘was to break over 25 Park Service rules in a two-day period.’ One especially eager participant played a modern-day Paul Revere, riding on horseback through the crowd to deliver the message: ‘The Feds are coming! The Feds are coming!'”
It was a crazy time in Alaska. ANILCA, a brokered settlement between Alaskans primarily interested in maintaining economic opportunities in the still young state and Outside environmental groups who would have preferred to turn most of Alaska into a park, was to have established the peace.
And it did, except where it didn’t.
A Nation showdown
Sturgeon said he still doesn’t understand exactly why the Park Service in 2007 decided to make an issue of his use of a 10-foot-long hovercraft in a remote corner of one of the least-visited parks in the country.
Park Service statistics reported that 11,567 visited Yukon-Charley Rivers that year. Nearly all of them were floaters and motorboaters traveling between Eagle, an isolated settlement of only about 100 people far from anywhere at the end of the Taylor Highway, and the only slightly less isolated community of Circle, home to about the same number of people at the end of the Steese Highway about 150 miles northeast of Fairbanks.
The Yukon River flows for about 160 miles – a distance about the length of Lake Ontario – on its way from Eagle to Circle. There is not a community to be seen along the way and only a handful of structures to indicate people ever inhabited the country.
Fairbanks author Dan O’Neill wrote a book about the area aptly titled “A Land Gone Lonesome.” A river corridor that once throbbed with the frenzy of the Klondike Gold Rush and the chase after yellow fever that followed has now gone back to nature.
Few bothered to even visit in 2007, and even fewer visit now. Yukon-Charley visitors were down to 1,272 last year. Visitation has fallen steadily year by year since the Park Service chased Sturgeon off the Nation more than a decade ago.
So why the decision to make an issue of a hovercraft that really amounted to nothing in a place that was nowhere? Sturgeon said he can only guess.
“I don’t mean to sound flippant,” he said, “but they’re just really arrogant. You can’t talk to them. The door is locked. They have like a little clique.
“And they’ve got nothing to lose. They didn’t pay for this. The Department of Justice did. The money didn’t come out of the Park Service budget.”
The reference to the locked door is a commentary on the Park Service’s fortress-like office building in downtown Anchorage with no public space and not so much as a receptionist to greet visitors. There is only an automated security system that leaves visitors feeling like they’ve walked into some sort of vault.
It seems a vestige of a pre-1980s Alaska when some Park Service employees feared Alaskans might harm them, though that never happened.
When the Park Service told Sturgeon he couldn’t use his hovercraft on the Nation, he left peacefully. He then did some research, talked to some attorneys and decided the federal agency lacked the authority to regulate watercraft on navigable rivers in Alaska.
He wrote a letter to the chief of the Park Service explaining why he thought the agency had taken the wrong position. The appeal was rebuffed.
So he went to court. The Alaska District Court refused to buck the Park Service when it argued it didn’t matter whether hovercrafts were a problem; they were banned in parks nationally so they should be banned in parks in Alaska as well.
Sturgeon appealed the ruling to the liberal Ninth Circuit Court of Appeals. The justices of the California-based Ninth Circuit didn’t see why any special accommodations needed to be made for Alaska. The judges figured Alaskans had no need to use rivers for access anymore, Sturgeon said, because in the modern age and people can fly from place to place if they need to get around.
Sturgeon lost again. He appealed to the Supreme Court.
Many, maybe most, Alaska attorneys were skeptical the Supreme Court would take the case, but it did. And in a strongly worded opinion, the more conservative Supremes overturned the legal reasoning of the California-based appeals court. ANILCA, the Supreme concluded, clearly says Alaska’s parks are to be treated differently than the parks in the 48 states crisscrossed by road.
After that ruling, the case was sent back to the appeals court for it to rule on whether the Nations River constituted “public lands” within a national park unit, thus granting the park service some legal authority to regulate.
The Ninth Circuit promptly decided that was the case, and Sturgeon’s victory turned into yet another defeat. He looked to be finally out of luck, but he appealed again. The thinking was that he’d have even less of a chance of getting the case back before the Supreme Court on a second try.
But he did, and then he won a big way.
“When we last faced that argument, we disagreed with the reason the lower courts gave to reject it,” Kagan wrote in that unanimous decision. “But we remanded the case for consideration of two remaining questions.
“First, does ‘the Nation River qualif[y] as ‘public land’ for purposes of ANILCA?’ Second, ‘even if the [Nation] is not ‘public land,’ does the Park Service have authority to ‘regulate Sturgeon’s activities’ on the part of the river in the Yukon-Charley?
“Today, we take up those questions, and answer both ‘no.’That means Sturgeon can again rev up his hovercraft in search of moose.”
Along with being a big loss for the Park Service, the ruling presents big problems for the agency in Alaska as liberal Justice Sonia Sotomayer noted in a concurring opinion in the case in which she was joined by Justice Ruth Bader Ginsburg.
“The Nation River is not parkland, and I join the Court’s opinion because it offers a cogent reading of section 103(c) of the Alaska National Interest Lands Conservation Act,” Sotomayer wrote. “(But) a reading of ANILCA section 103(c) that left the Service with no power whatsoever over navigable rivers in Alaska’s parks would be untenable in light of ANILCA’s other provisions, which state Congress’ intent that the Service protect those very same rivers. Congress would not have set out this aim and simultaneously deprived the Service of all means to carry out the task.”
The Nation is not the only problematic body of water here. Most of the parks in Alaska are home to navigable rivers and/or lakes. The Park Services management authority on all of them is now in question.
The Alaska Department of Natural Resources estimates 800,000 miles of river water and 30 million acres of lake water are subject to the court’s ruling.
The Park Service, Sotomayer suggested, might have the authority to restrict river activities if “needed to protect adjacent public park areas. Nothing in ANILCA removes that power. Second, Congress most likely meant for the Service to retain power to regulate as parklands a particular subset of navigable rivers designated as ‘Wild and Scenic Rivers,’ although that particular authority does not, by its terms, apply to the Nation River.”
Any such restrictions would have to work their way through the regulatory process, however, and then they, too, would be subject to legal challenge.
All of this, Sottamayer wrote, “could engender uncertainty regarding…the Service’s authority over navigable rivers that run through Alaska’s parks. If this is not what Congress intended, Congress should amend ANILCA to clarify the scope of the Service’s authority.”
There’s no telling what could happen if ANILCA is thrown back into the political arena. Along with the access issue, there is the not-so-little matter of federal regulation of Alaska fisheries, something that happens in no state but Alaska.
The Ninth Circuit handed that authority to federal officials by deciding in the Katie John case that the term “public lands” – the term the Supreme Court has now ruled does not apply to the Nation River because it is navigable – applies to all navigable waters in Alaska when it comes to the rural priority for so-called subsistence harvests of fish.
The Sturgeon suit addressed that issue without really handling it by attaching a footnote:
“As noted earlier, the Ninth Circuit has held in three cases—the so-called Katie John trilogy—that the term ‘public lands,’ when used in ANILCA’s subsistence-fishing provisions, encompasses navigable waters like the Nation River. Those provisions are not at issue in this case, and we therefore do not disturb the Ninth Circuit’s holdings that the Park Service may regulate subsistence fishing on navigable waters.”
The attorney general for former Gov. Bill Walker, a one-time Republican who formed an allegiance with Democrats to get elected, pleaded with the court not to overturn Katie John as part of the Sturgeon ruling.
Whether the attorney general of newly elected Republican Gov. Mike Dunleavy will decide to challenge Katie John remains to be seen.
Sturgeon, meanwhile, just wants to go hunting. Despite his age, he plans to be on the Nation River next fall pursuing moose, and before that he’s got a far more arduous task lined up – a late-summer hunt for Dall sheep with his hunter.
He might be old, but there’s a lot of fight left in this Sturgeon.
Updated: This story was revised on March 28, 2019 to reflect a state estimate of the amount of water affected by the decision.