# John Sturgeon v. Bert Frost, in his official capacity as Alaska Regional Director of the National Park Service/Concurrence

SUPREME COURT OF THE UNITED STATES
No. 17–949
JOHN STURGEON, PETITIONER v. BERT FROST, IN HIS OFFICIAL CAPACITY AS ALASKA REGIONAL DIRECTOR OF THE NATIONAL PARK SERVICE, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [March 26, 2019]
Justice Sotomayor, with whom Justice Ginsburg joins, concurring.
Professors have long asked law students to interpret a hypothetical ordinance that prohibits bringing “a vehicle into the park.” The debate usually centers on what counts as a “vehicle.” Is a moped forbidden? How about a baby stroller? In this case, we can all agree that John Sturgeon’s hovercraft is a vehicle. But now we ask whether he has brought it “into the park”—and, if not, how a river’s designation as “outside the park” will affect future attempts to regulate there.
The Court decides that the Nation River is not parkland, and I join the Court’s opinion because it offers a cogent reading of §103(c) of the Alaska National Interest Lands Conservation Act (ANILCA), 94 Stat. 2371, 16 U. S. C. §3101 et seq. I write separately to emphasize the important regulatory pathways that the Court’s decision leaves open for future exploration.
The Court holds only that the National Park Service may not regulate the Nation River as if it were within ​Alaska’s federal park system, not that the Service lacks all authority over the Nation River. A reading of ANILCA §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.
Properly interpreted, ANILCA §103(c) cannot nullify Congress’ purposes in enacting ANILCA. Even though the Service may not apply its ordinary park rules to non-public areas like the Nation River, two sources of Service authority over navigable rivers remain undisturbed by today’s decision. First, as a default, the Service may well have authority to regulate out-of-park, nonpublic areas in the midst of parklands when doing so is necessary or proper to protect in-park, public areas—for instance, to ban pollution of the Nation River if necessary to preserve habitat on the riverbanks or to ban hovercraft use on that river 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.
I
Since the National Park System’s creation in 1872, it has grown to include over 400 historic and recreation areas encompassing over 84 million acres. 54 U. S. C. §100101(b)(1)(A); 83 Fed. Reg. 2065 (2018). These areas provide habitat for 247 threatened or endangered species and received more than 325 million visitors in 2016 alone. Id., at 2065–2066.
The task of protecting this vast park system principally falls to the Park Service. In the National Park Service Organic Act (Organic Act), 39 Stat. 535, Congress entrusted the Service with regulating to leave the parks “unimpaired for the enjoyment of future generations.” 54 U. S. C. §100101(a). Congress empowered the agency to promulgate regulations “necessary or proper” for managing the Park System, including regulations “concerning boating and other activities on or relating to water located within [Park] System units.” §§100751(a), (b). The Service has carried out this charge by enacting a wide range of regulations, including the ban on hovercraft use at issue. See 36 CFR §2.17(e) (2018).
Wielding its Organic Act authority, the Service applies many park rules on federally owned lands and waters it administers, as well as navigable waters “within the boundaries of the National Park System.” See 36 CFR §§1.2(a)(1), (3). The title to lands beneath navigable waters, even within national parks, typically belongs to the States. Because park boundaries can encompass both federally and nonfederally owned lands and waters, this means that some nonfederally owned waters are subject to Service regulations—at least outside of Alaska. See ante, at 7–8.
​Against this backdrop, Congress enacted ANILCA. As the Court explains, ANILCA added millions of acres of federal land to the National Park System in Alaska and simultaneously swept around 18 million acres of nonfederally owned lands within the geographic boundary lines of the new Alaska parks. Ante, at 6–8; see also Sturgeon v. Frost, 577 U. S. ___, ___–___ (2016) (slip op., at 5–6). In ANILCA, Congress directed the Service to manage Alaska’s new and expanded parks “as new areas of the National Park System” under its Organic Act authority. 94 Stat. 2383, 16 U. S. C. §410hh–2.
ANILCA reflects Congress’ expectation that the Service will manage Alaska’s parks with a particular focus on rivers and river systems. For instance, the agency must “maintain unimpaired the water habitat” for salmon in Katmai National Monument, preserve “the natural environmental integrity and scenic beauty of… rivers” in Gates of the Arctic National Park, and “maintain the environmental integrity of the entire Charley River basin, including streams, lakes and other natural features.” §§410hh(4)(a), (10); §410hh–1(2); see also §§410hh(1), (6) (7)(a), (8)(a); §410hh–1(1). Some provisions of ANILCA direct the Service to regulate boating in Alaska’s parklands. See, e. g., §3170(a). Others command the Service to regulate fishing. See, e. g., §3201. Together, these provisions make clear that Congress must have intended for the Park Service to have at least some authority over navigable waters within Alaska’s parks.
And yet, ANILCA includes one provision that can be read to throw a wrench into that authority: §103(c). This provision says that “[o]nly those lands within the boundaries of any conservation system unit which are public lands (as such term is defined in this Act) shall be deemed to be included as a portion of such unit.” 16 U. S. C. §3103(c). Section 103(c) then says that no state, native, or private lands “shall be subject to the regulations ​applicable solely to public lands within such units,” although the Secretary may acquire those lands and administer them as part of the unit. Ibid. ANILCA, in turn, defines “public lands” as nearly all “lands, waters, and interests therein” in which the United States has title. §§3102(1)–(3). Crucially, Alaska has title to the lands under its navigable waters. See n. 2, supra. If the Service’s ordinary authority over navigable waters within park boundaries is diminished in Alaska relative to everywhere else in the United States, all agree that ANILCA §103(c) is the culprit.
II
Thus we arrive at the crux of this case: How, if at all, does ANILCA §103(c) circumscribe the Service’s ordinary authority over navigable rivers within the geographic boundaries of national parks?
A
I agree with the Court that the Service may not treat every navigable river in Alaska as legally part of Alaska’s parks merely because those (nonpublic) rivers flow within park boundaries. The majority ably explains why ANILCA’s text leads to this outcome. See ante, at 16–20. According to ANILCA §103(c), navigable waters (at least apart from Wild and Scenic Rivers) must be treated as waters outside of park units for legal purposes. Thus they may not be “subject to the regulations applicable solely to public lands within such units.” 16 U. S. C. §3103(c).
​This principle is all that is required to resolve Sturgeon’s case. The hovercraft rule applies only inside park boundaries. 36 CFR §1.2(a) (“regulations contained in this chapter apply to all persons entering, using, visiting, or otherwise within… [w]aters subject to the jurisdiction of the United States located within the boundaries of the National Park System”). The Nation River is, for legal purposes, outside of park boundaries. The hovercraft rule therefore does not apply on the Nation River.
B
Critically, although the Court decides today that the Service may not regulate the Nation River “as part of the park,” ante, at 16, the Court does not hold that ANILCA §103(c) strips the Service of all authority to protect navigable waters in Alaska. For good reason. It would be absurd to think that Congress intended for the Service to preserve Alaska’s rivers, but left it without any tools to do so.
Imagine if all Service regulations could apply in Alaska’s parklands only up to the banks of navigable rivers, and the Service lacked any authority whatsoever over the rivers themselves. If Jane Smith were to stand on the public bank of the Nation River, bag of trash in hand, Service rules could prohibit her from discarding the trash on the riverbank. See 36 CFR §2.14(a)(1). The rules also could bar her from intentionally disturbing wildlife breeding activities, §2.2(a)(2), making unreasonably loud noises, §2.12(a)(1)(ii), and introducing wildlife into the park ecosystem, §2.1(a)(2). But reading ANILCA §103(c) to bar any Park Service regulation of navigable waters would ​permit Jane to evade those rules entirely if she were to wade into the river or paddle along the bank in a canoe. She could toss her trash bag in the water and amp up her speakers with impunity. Under this reading, the Park Service would be powerless to stop her. Jane’s actions would likely harm flora and fauna on the banks of the river, which are public areas inside park boundaries. Jane’s trash also could drift from a navigable (and thus out-of-park, nonpublic) stretch of the Nation River into a nonnavigable (and thus in-park, public) stretch of the same river. So much for the Service’s duty to maintain the “environmental integrity” of the Charley River basin “in its undeveloped natural condition,” 16 U. S. C. §410hh(10).
C
Thankfully, today’s decision does not leave the Service without any authority over the Nation River and other rivers like it. Even though most navigable rivers in Alaska are not public parklands, Congress has left at least two avenues for the Service to achieve ANILCA’s purposes. Neither is addressed by the Court’s decision.
1
First, the Court expressly does not decide whether the Service may regulate navigable waters running through Alaska’s parks as an adjunct to its authority over the parks themselves. See ante, 19, n. 5. In my view, the Service likely retains power over navigable rivers that run through Alaska’s parks when that power is necessary to protect Alaska’s parklands.
The Service’s default ability to regulate comes from the Organic Act. That Act gives the Service general authority to promulgate all regulations “necessary or proper” for managing park units, including power to regulate activities “on or relating to water located within [Park] System units.” 54 U. S. C. §§100751(a), (b) (emphasis added). Nothing in the text of the Organic Act suggests that the Service is powerless over out-of-park areas in the midst of public parklands, like the Nation River.
This brings us back to Jane, this time canoeing down the Nation River with a gallon of toxic insecticide onboard. ​If Jane spills the insecticide into the river, the effects will surely reach the riverbanks—public areas within the park’s legal boundaries. An antipollution rule tailored to apply to the Nation River as it runs through the park thus could well be “necessary or proper” to manage the parklands on either side of the river, even though the river itself is not legally a part of the park. §100751(a). And if the pollution is likely to harm nonnavigable stretches of the river downstream—public waters that are “within” the park for legal purposes—the ban also could be authorized because it specifically concerns “activities… relating to water located within [Park] System units.” §100751(b). Similar reasoning could justify a range of Service regulations, giving the Service substantial authority over navigable rivers inside geographic park boundaries in order to protect the parklands through which they flow.
Assuming that the Service has such authority over out-of-park areas pursuant to its Organic Act, nothing in ANILCA §103(c) takes it away. That section’s first sentence explains that nonpublic lands are not part of Alaska’s park units. See 16 U. S. C. §3103(c); supra, at 4–5. The second sentence then emphasizes that the Service cannot regulate nonpublic lands as if they were part of the park. Together, these sentences mean that the Service loses its authority to apply normal park rules to nonpublic lands, and instead can apply only those rules that it can justify by reference to the needs of other, public lands. For instance, the Service is unlikely to have power to apply rules against abandoning property, 36 CFR §2.22(a), or trespassing, §2.31(a)(1), to nonpublic lands amid parklands because doing so would have little or no impact on neighboring public areas within the legal boundaries of the park. But a Service regulation tailored to apply to nonparklands in order to protect sensitive surrounding parklands—like a rule against putting a toxic substance in the Nation River to stop harms to the riverbanks—would ​present a different question. Such a regulation could be consistent with the Service’s limited Organic Act authority over out-of-park areas, and it would not run afoul of ANILCA because it would not be applicable to public lands.
The Service’s out-of-park authority is not at issue in this case given that the hovercraft regulation applies only within park boundaries, see ante, at 19, n. 5. Hovercraft can be unsightly, be loud, and disturb sensitive ecosystems within the park. See 48 Fed. Reg. 30258 (1983) (“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”). If the Service were to choose to apply its hovercraft ban to the Nation River, the agency could justify doing so in certain designated areas to protect a particular sensitivity in a surrounding (public) park area, including some habitats on the banks of the Nation River.
2
The Court also leaves open a second way for the Service to protect navigable rivers. Because the Nation River is not a designated Wild and Scenic River, the Court expressly does not decide the extent of the Service’s power over such designated rivers. Ante, at 26–27, n. 10. If ANILCA §103(c) is to be harmonized with the remainder of the statute, the Service must possess authority to regulate fully, as parklands, at least that subset of rivers.
​The Wild and Scenic Rivers Act, 16 U. S. C. §1271 et seq., established a system of rivers that “possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values.” §1271. Congress created the system to “preserv[e]” designated rivers “in free-flowing condition.” Ibid. Rivers can become part of the system if they are designated by an Act of Congress. §1273(a)(i).
ANILCA designated 26 Alaskan rivers as components of this system, more than doubling the mileage of the rivers in the system at the time. 16 U. S. C. §1274; S. Johnson & L. Comay, CRS Report for Congress, The National Wild and Scenic Rivers System: A Brief Overview 1 (2015); see §1281(c). ANILCA, in turn, expressly defines the Alaskan park system as including “any unit in Alaska of the… National Wild and Scenic Rivers Systems.” §3102(4).
Although ANILCA §103(c) generally has the effect of removing navigable waters from the legal boundaries of Alaska’s parks, Congress’ highly specific definition of the Wild and Scenic Rivers as a portion of Alaska’s park system overrides ANILCA §103(c)’s general carveout. “General language of a statutory provision… will not be held to apply to a matter specifically dealt with in another part of the same enactment.” D. Ginsberg & Sons, Inc. v. Popkin, 285 U. S. 204, 208 (1932). To make sense of ANILCA §103(c) within the context of the rest of ANILCA, the Service should retain full authority to regulate the Wild and Scenic Rivers as parklands.
​*** One final note warrants mention. Although I join the Court’s opinion, I recognize that today’s decision creates uncertainty concerning the extent of Service authority over navigable waters in Alaska’s parks. Courts ultimately may affirm some of the Service’s authority over out-of-park areas and Wild and Scenic Rivers. But that authority may be more circumscribed than the special needs of the parks require. This would not only make it impossible for the Service to fulfill Congress’ charge to preserve rivers, made plain in ANILCA itself, but also threaten the Service’s ability to fulfill its broader duty to protect all of the parklands through which the rivers flow. See, e. g., 16 U. S. C. §410hh(6) (Kobuk Valley National Park “shall be managed… [t]o maintain the environmental integrity of the natural features of the Kobuk River Valley, including the Kobuk, Salmon, and other rivers”). Many of Alaska’s navigable rivers course directly through the heart of protected parks, monuments, and preserves. A decision that leaves the Service with no authority, or only highly constrained authority, over those rivers would undercut Congress’ clear expectations in enacting ANILCA and could have exceedingly damaging consequences.
In light of the explicit instructions throughout ANILCA that the Service must regulate and protect rivers in Alaska, I am convinced that Congress intended the Service to possess meaningful authority over those rivers. If I am correct, Congress can and should clarify the broad scope of the Service’s authority over Alaska’s navigable waters.
* ↑ See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 36 (2012); Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 607 (1958).
* ↑ Under the Submerged Lands Act of 1953, each State has “title to and ownership of the lands beneath [its] navigable waters.” 43 U. S. C. §1311(a); see ante, at 4, 13.
* ↑ Notably, the Park Service did not argue—nor does the Court’s opinion address—whether navigable waters may qualify as “public lands” because the United States has title to some interest other than an interest in reserved water rights. See §§3102(1)–(3). In particular, the United States did not press the argument that the Federal Government functionally holds title to the requisite interest because of the navigational servitude. See, e. g., Kaiser Aetna v. United States, 444 U. S. 164, 177 (1979) (“The navigational servitude… gives rise to an authority in the Government to assure that [navigable] streams retain their capacity to serve as continuous highways for the purpose of navigation in interstate commerce”); United States v. Rands, 389 U. S. 121, 123 (1967) (“This power to regulate navigation confers upon the United States a ‘dominant servitude’”); 43 U. S. C. §1314 (providing that the United States retains the navigational servitude in navigable waters).
* ↑ The navigability of a river is determined “on a segment-by-segment basis.” PPL Montana, LLC v. Montana, 565 U. S. 576, 593 (2012); see also id., at 594.
* ↑ Even if the Service cannot regulate the rivers itself, the majority says that the agency can enter into “cooperative agreements” with Alaska to regulate the rivers, 16 U. S. C. §3181(j), propose that state or other federal agencies take action to protect the rivers, §3191(b)(7), or buy the submerged lands from Alaska and then regulate them, §§3103(c), 3192. See ante, at 28. But Congress made the Service directly responsible for protecting Alaska’s parks and park resources. The Service cannot carry out its duty to “manag[e]” the park areas, see §410hh, if it is estopped from promulgating necessary rules and regulations.
* ↑ The Court’s interpretation prohibits the Service only from applying its usual, in-park rules to out-of-park areas. See, e. g., ante, at 16 (nonpublic lands “may not be regulated as part of the park”); ante, at 18 (Section 103(c)’s exclusion “exempt[s] non-public lands… from the Park Service’s ordinary regulatory authority”); ante, at 19 (the areas “are no longer subject to the Service’s power over ‘System units’ and the ‘water located within’ them”); ante, at 22 (rejecting suggestion that inholdings can be “regulated as parklands”); ante, at 25 (the inholdings “are not subject to regulation as parkland”).
* ↑ This authority would supplement, not replace, the Service’s authority over out-of-park navigable rivers, because the Service’s authority over the Wild and Scenic Rivers alone cannot explain all of ANILCA’s express references to protecting Alaskan rivers. For instance, ANILCA states Congress’ expectation that the Service will manage the Kobuk River in Kobuk Valley National Park. See 16 U. S. C. §410hh(6). That portion of the river is not designated as a Wild and Scenic River, see §1274, but the Bureau of Land Management has found it to be navigable, see Dept. of Interior, Nat. Park Service, Kobuk Valley National Park: General Management Plan 65 (1987). The Service therefore must have another source of authority over the river if the statute’s purpose provision is not to be deprived of meaning.