June 29, 2020

Donald Striker, Acting Regional Director
National Park Service
Alaska Regional Office
240 West 5th Avenue
Anchorage, AK 99501

Submitted via regulations.gov

Subject:  Comments on Proposed Rule – National Park Service Jurisdiction in Alaska RIN: 1024-AE63

Dear Mr. Striker:

I am writing to you on behalf of over 1,800 members of the Coalition to Protect America’s National Parks (Coalition).The Coalition is a non-profit organization composed of retired, former, or current employees of the National Park Service (NPS). As a group we collectively represent nearly 40,000 years of experience managing and protecting America’s most precious and important natural and historic resources.

We count among our members many former NPS employees of Alaska’s national parks, monuments and preserves and the Alaska regional office, who understand the history and the special challenges of conservation of the National Park System areas in Alaska. And so we are very concerned that the proposed rule goes far beyond the narrow focus of the Supreme Court’s ruling in Sturgeon v. Frost. In doing so, the proposal’s significant overreach will likely create public confusion regarding NPS’s legitimate authority to regulate activities on park, monument and preserve lands and non-navigable waters, and in parks that pre-dated the 1959 Statehood Act. NPS also fails to consider or address foreseeable consequences, which perhaps are unintended by NPS but foreseeable nevertheless, that will result from NPS’s casual and erroneous re-description of its authority. Because of these concerns, we offer the comments below.

INTRODUCTION

As described by NPS at: https://www.regulations.gov/document?D=NPS_FRDOC_0001-0137. (emphasis added).

This rule would revise National Park Service regulations to comply with the decision of the U.S. Supreme Court in Sturgeon v. Frost. In the Sturgeon decision, the Court held that National Park Service regulations apply exclusively to public lands (meaning federally owned lands and waters) within the external boundaries of National Park System units in Alaska. Lands which are not federally owned, including submerged lands under navigable waters, are not part of the unit subject to the National Park Service’s ordinary regulatory authority.

In March 2019, the U.S. Supreme Court in Sturgeon v. Frost (139 S. Ct. 1066, March 26, 2019) unanimously determined the National Park Service’s (NPS) ordinary regulatory authority over National Park System units in Alaska only applies to federally owned “public lands” (as defined in section 102 of the Alaska National Interest Lands Conservation Act, 16 U.S.C. 3102)—and not to State, Native, or private lands—irrespective of unit boundaries on a map. Lands not owned by the federal government, including submerged lands beneath navigable waters, are not deemed to be a part of the unit. More specifically, the Court held that the NPS could not enforce a System-wide regulation prohibiting the operation of a hovercraft on part of the Nation River that flows through the Yukon-Charley Rivers National Preserve (Preserve).

We have significant concerns about the proposed rule, including:

    1. The NPS rule, as proposed, goes far beyond the narrow focus of the Supreme Court’s ruling in Sturgeon v. Frost, which applied specifically to the Nation River in Yukon-Charley Rivers National Preserve.
    2. The NPS rule, as proposed, would appear to concede State ownership of undetermined “lands beneath navigable waters” in park system units without defining “navigable waters” and without assessing if those waterbodies meet well-established federal criteria defining “navigability for title purposes.”
    3. There is longstanding disagreement between State and Federal agencies in Alaska regarding what constitutes “navigability for title purposes.”
    4. In 43 U.S.C. § 1745, Congress mandated a process for resolving State claims of ownership of “lands beneath navigable waters” on federal lands. NPS should rely upon that process, or the federal courts if necessary, to determine “navigability for title purposes” for waterbodies within National Park System units in Alaska.
    5. The NPS rule, as proposed, unnecessarily weakens and complicates NPS authority to administer, regulate, and conserve National Park System units in Alaska as mandated under Titles II, VI, and VIII of ANILCA.
    6. The NPS rule, as proposed, fails to properly describe federal ownership of “lands beneath navigable waters” in pre-statehood units of the National Park System in Alaska.
    7. The NPS rule, as proposed, should be revised significantly to accurately reflect the Court’s ruling in Sturgeon v. Frost.

We discuss these concerns in more detail below.

GENERAL COMMENTS AND CONCERNS

    1. The NPS rule, as proposed, goes far beyond the narrow focus of the Supreme Court’s ruling in Sturgeon v. Frost, which applied specifically to the Nation River in Yukon-Charley Rivers National Preserve.

A careful reading of Sturgeon v. Frost, 139 S.Ct. 1066 (2019)[1],  hereafter Sturgeon v. Frost, reveals the Court’s ruling hinged on a limited set of facts involving the use of a hovercraft on the Nation River within Yukon-Charley Rivers National Preserve. The question the Court focused on is does the NPS general regulation at 36 CFR § 2.17(e), which prohibits the use of hovercraft within units of the National Park System, apply to “a stretch of the Nation River that lies within the boundaries of the Yukon-Charley [Rivers] Preserve, a conservation system unit in Alaska.” The Court held that the hovercraft prohibition does not apply to the Nation River. As explained by the Court (emphasis added):

The Nation River is not public land for purposes of ANILCA. “[P]ublic land” under ANILCA means (almost all) “lands, waters, and interests therein” the “title to which is in the United States.” 16 U. S. C. §3102(1)–(3). Because running waters cannot be owned, the United States does not have “title” to the Nation River in the ordinary sense. And under the Submerged Lands Act, it is the State of Alaska—not the United States—that holds “title to and ownership of the lands beneath [the River’s] navigable waters.” 43 U. S. C. §1311.”

In other words, Sturgeon v. Frost is not a sweeping decision that all waterbodies in units of the National Park System in Alaska necessarily meet the federal criteria of “navigability for title purposes.” Nor did the opinion leave NPS without authority to protect “resources and values” of waterbodies within conservation units in Alaska. As explained by Justice Kagan, who delivered the Opinion of the Court, “…our construction leaves the Park Service with multiple tools to “protect” rivers in Alaskan national parks, as those statements anticipate. §3101(b);§410hh–1(1). The Park Service may at a minimum regulate the public lands flanking rivers.”

In concurring with the Opinion, Justice Sotomayor wrote (emphasis added): “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… Properly interpreted, ANILCA §103(c) cannot nullify Congress’ purposes in enacting ANILCA.”

    1. The NPS rule, as proposed, would appear to concede State ownership of undetermined “lands beneath navigable waters” in park system units without defining “navigable waters” and without assessing if those waterbodies meet well-established federal criteria defining “navigability for title purposes.”

 Key paragraphs of the Submerged Lands Act of 1953, 43 U. S. C. §1301[2] define “lands beneath navigable waters” and specifically excludes certain stream beds from that definition as (emphasis added):

(a)(1) all lands within the boundaries of each of the respective States which are covered by nontidal waters that were navigable under the laws of the United States at the time such State became a member of the Union[;],

(f) The term “lands beneath navigable waters” does not include the beds of streams if such streams were not meandered in connection with the public survey of such lands under the laws of the United States

Determining the “navigability” of waterbodies under Federal law at the time Alaska became a member of the Union (i.e., 1959) is not a simple task. First, here is no single, universally accepted Federal definition of “navigable waters”; and the definitions that do exist are typically specific to context. For example, the Rivers and Harbors Act of 1894, 33 U. S. C. § 1, established the U.S. Army Corps of Engineers authority to regulate “navigable waters of the United States.” The Corps’ definition of “navigable waters” is found at 33 CFR § 329.4. The Clean Water Act, 33 U.S.C. §1251 et seq. (1972), explicitly directed the Army Corps and the Environmental Protection Agency (EPA) to protect “navigable waters.” As a result, EPA’s definition of the term is very similar to the Corps’. However, these definitions apply to “navigability for regulatory purposes” to determine which waterbodies are “jurisdictional waters” of these Agencies under applicable federal laws.

In the context of this proposed rule, the task is to determine “navigability for title purposes” under federal law in 1959in order to determine which waterbodies do, in fact, meet the Submerged Lands Act’s requirements for State ownership. Complicating this determination, Congress has never passed legislation defining “navigability for title purposes.” Federal court decisions provide the applicable law on the subject; and yet there is not any single Supreme Court ruling establishing criteria for making such a determination. Instead, relevant passages and phrases in various Supreme Court decisions provide the basis for the “federal test” to determine “navigability for title purposes.” [3]

Multiple Supreme Court decisions have contributed to the “federal test” to determine “navigability for title purposes.” In The Daniel Ball, 77 U.S. (19 Wall.) 557, 563, (1870), the Supreme Court held that (emphasis added): “Navigability… is necessarily a question of federal law to be determined… in the federal courts… Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.”

A critical case on this point is United States v. Holt Bank, 270 U.S. 4970 L. Ed. 46546 S. Ct. 197 (1926), which established specific criteria to be used in determining whether particular waterbodies are deemed navigable for purposes of vesting the state with title to the beds. Under this “federal test,” waterbodies are vested in the state if (emphasis added):

(1) the bodies of water were used, or were susceptible of being used, as a matter of fact, as highways for commerce;

(2) such use for commerce was possible under the natural conditions of the body of water;

(3) commerce was or could have been conducted in the customary modes of trade or travel on water; and

(4) all of these conditions were satisfied at the time of statehood.

In United States v. Utah, 283 U. S. 64, 75 (1931), the Supreme Court held (emphasis added): “Navigability… concerns a river’s usefulness for ‘trade and travel.’… River segments are navigable if they [were] used and if they [were] susceptible of being used as highways of commerce at the time of statehoodThe United States retains title vested in it before statehood to land beneath waters not then navigable…  In order for present-day use to have a bearing on navigability at statehood, (1) the watercraft must be meaningfully similar to those in customary use for trade and travel at the time of statehood, and (2) the river’s post statehood condition may not be materially different from its physical condition at statehood.”

More recently, in PPL Montana v. Montana[4], 565 U.S. 576 (2012), the Supreme Court held (emphasis added): “To determine riverbed title under the equal-footing doctrine, this Court considers the river on a segment-by-segment basis to assess whether the segment of the river… is navigable or not… [S]egments that are nonnavigable at the time of statehood are those over which commerce could not then occur. Thus, there is no reason that these segments also should be deemed owned by the State under the equal-footing doctrine… At a minimum, therefore, the party seeking to use present-day evidence for title purposes must show: (1) the watercraft are meaningfully similar to those in customary use for trade and travel at the time of statehood; and (2) the river’s post-statehood condition is not materially different from its physical condition at statehood… If modern watercraft permit navigability where the historical watercraft would not…the evidence of present-day use has little or no bearing on navigability at statehood.”

Lastly, there is federal precedent that a waterbody is presumed non-navigable with the burden of proof on the party claiming it is navigable. For example, the U.S. Forest Service considers a waterbody not navigable until is adjudicated otherwise. See Whitewater v. Tidwell 770 F. 3d 1108 (2014).

In summary, the “federal test” derived from Supreme Court decisions establishes four criteria that must be met to make a determination of “navigability for title purposes.” Simple “navigability” (“the degree to which an area of water is deep, wide, or safe enough for a boat to go through”[5]) is not legally sufficient to make such a determination. Yet the NPS proposed rule would broadly relinquish federal authority over hundreds or thousands of undetermined waterbodies within federal conservation system units in Alaska without properly assessing “navigability for title purposes” under applicable federal law.

    1. There is longstanding disagreement between State and Federal agencies in Alaska regarding what constitutes “navigability for title purposes.”

As described by the Alaska Department of Natural Resources (ADNR)[6] (emphasis added): “Because of differing legal interpretations of court navigability decisions, several aspects of the criteria used by the state to determine navigability have been disputed by the federal government…[M]any waterbodies considered navigable by the state have been determined non-navigable by the federal governmentThe federal government has asserted that a waterway must be used, or capable of use, for transporting commerce to be considered navigable.”

It is noteworthy, that the State (as described above by ADNR) disagrees with the federal assertion “that a waterway must be used, or capable of use, for transporting commerce to be considered navigable.”   As described in the previous section, such use is a fundamental requirement of the “federal test” to determine “navigability for title purposes” in accordance with the Supreme Court decisions described in the previous sections.

ADNR[7] continues (emphasis added): “Even if the criteria… were totally agreed upon, it still would be difficult to prepare a complete list of all of the navigable lakes, rivers, and streams in the state. Much of Alaska has not yet been surveyed… For large, undeveloped regions of Alaska there may be little or no accurate waterbody use or physical characteristics information available for making navigability determinations… Even where navigability is conceded, the federal government often contends that title to the submerged lands did not vest in the state if the area was withdrawn or reserved by the federal government on the date of statehood… The state strongly disagrees with this federal claim.”  On this last point, see discussion of Alaska v. United States, 125 S. Ct. 2137 (2005) under comment # 6 below.

ADNR’s Fact Sheet Recordable Disclaimers of Interest: State Owned Navigable Water,[8] further explains (emphasis added): “[T]he state’s title to submerged lands is somewhat clouded because it took ownership without any written documentationWhether a waterway meets the technical criteria for navigability is not always clear.”

On the federal side, the Bureau of Land Management (BLM) is the federal agency tasked with the determining “navigability for title” claims in Alaska and elsewhere. 43 U.S.C. § 1745. According to BLM[9] (emphasis added), “[a] definitive federal list of navigable waters in Alaska does not exist. The State has indicated thousands of rivers, streams, and lakes are potentially navigable. However, since statehood in 1959, the federal courts have determined navigability of less than a dozen unreserved rivers, streams, and lakes in Alaska.”

Thus NPS’s broad brush approach to ceding ownership of unspecified “lands beneath navigable waters” in all NPS conservation units in Alaska without determining “navigability for title purposes” is ill-considered and fails to follow established federal law and regulation for making such decisions.

    1. In 43 U.S.C. § 1745, Congress mandated a process for resolving State claims of ownership of “lands beneath navigable waters” on federal lands. NPS should rely upon that process, or the federal courts if necessary, to determine “navigability for title purposes” for waterbodies within National Park System units in Alaska.

While Sturgeon v. Frost determined that the Nation River is “navigable” for title purposes under the Submerged Lands Act, NPS should not assume that all other waterbodies within national parks, monuments, and preserves in Alaska are equally “navigable” for title purposes. Instead, NPS should rely upon the Congressionally mandated a process for resolving state claims of ownership of “lands beneath navigable waters” on federal lands, which is described  in § 315 of Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1745. The Bureau of Land Management (BLM) is the federal agency tasked with the responsibility of addressing such claims in Alaska and elsewhere.

BLM regulations at 43 CFR § 1864[10] spell out the requirements and procedures for filing and approving Recordable Disclaimers of Interest (RDIs), which allows the Secretary of the Interior, under certain conditions, to issue a “disclaimer of interest.” The objective of the disclaimer is to eliminate the necessity for court action or private legislation in those instances where the United States asserts no ownership or record interest, based on a determination by the BLM that there is a cloud on the title to the lands, attributable to the United States, and that an interest of the United States has terminated by operation of law or is otherwise invalid.

ADNR’s Fact Sheet Recordable Disclaimers of Interest: State Owned Navigable Water[11] explains: “A Recordable Disclaimer of Interest for submerged lands will lift the cloud on the state’s title. Whether a waterway meets the technical criteria for navigability is not always clear. While ideally the state would like to verify ownership of lands underlying all waterways in Alaska, recordable disclaimers of interest provide finality for at least those waterways that the state and the United States agree are clearly navigable.” To date, ADNR has submitted a number of applications for RDIs to BLM. These applications are listed at: http://www.dnr.state.ak.us/mlw/nav/rdi/

In brief, determining “navigability for title purposes” in Alaska is complicated due to lack of surveys, lack of historical documentation, and disagreement between the State and Federal governments regarding what constitutes “navigable waters” for this purpose. As a result, the NPS rule should be limited in scope to only those waterbodies that have been confirmed as navigable “for title purposes” waters by court rulings or the RDI process mandated by Congress. 

    1. The NPS rule, as proposed, unnecessarily weakens and complicates NPS authority to administer, regulate, and conserve National Park System units in Alaska as mandated under Titles II, VI, and VIII of ANILCA.

First, we re-state that the NPS proposed rule goes far beyond the scope to which Sturgeon v. Frost applies. As Justice Sotomayor wrote in the Concurring opinion (emphasis added): “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… Properly interpreted, ANILCA §103(c) cannot nullify Congress’ purposes in enacting ANILCA.”(Sotomayor, J., concurring, pp. 1-2)

Title II § 201 of ANILCA established a number of new parks, monuments, and preserves in Alaska “as units of the National Park System [that] shall be administered by the Secretary under the laws governing the administration of such lands.” Section 202 expanded three of the existing park system units. Nearly every one of these establishment or expansion acts includes language that these areas “shall be managed” to protect the area’s lakes, rivers, and streams. Examples of such language include the following:

    • “The monument and preserve shall be managed …[ t]o maintain … the Aniakchak River and other lakes and streams, in their natural state.” 201 (1) Aniakchak National Monument and Preserve.
    • “The park and preserve shall be managed…[t]o maintain the wild and undeveloped character of the area, including opportunities for visitors to experience solitude, and the natural environmental integrity and scenic beauty of the … rivers, lakes, and other natural features.” 201 (4)(a) Gates of the Arctic National Park and Preserve.
    • “The park and preserve shall be managed… [t]o protect the watershed necessary for perpetuation of the red salmon fishery in Bristol Bay; to maintain unimpaired the scenic beauty and quality of portions of the …wild rivers, lakes, [and] waterfalls… in their natural state.” 201 (7)(a) Lake Clark National Park and Preserve.
    • “The preserve shall be managed … [to] maintain the environmental integrity of the Noatak River and… to protect habitat for, and populations of, fish.” 201 (8)(a) Noatak National Preserve.
    • “The preserve shall be managed… [to] maintain the environmental integrity of the entire Charley River basin, including streams, lakes and other natural features, in its undeveloped natural condition.” 201 (10) Yukon-Charley Rivers National Preserve.
    • “The monument addition and preserve shall be managed… to maintain unimpaired the water habitat for significant salmon populations.” 202 (2) Katmai National Monument and Preserve.

We could list additional examples; however, our point is that Title II of ANILCA directed NPS to “maintain” and “protect” rivers, lakes, and streams (i.e., waterbodies) within National Park System units in Alaska. It should go without saying that the authority to regulate activities on those waterbodies is an essential management tool to ensure that NPS fulfills its conservation mandates under Title II. The NPS rule, which is overly broad as proposed, unnecessarily weakens and complicates NPS authority to fulfill its conservation mandates under Title II.

Title VI § 601of ANILCA established a number of “Wild and Scenic Rivers within the National Park System.” In light of Sturgeon v. Frost, several paragraphs in Title VI provide confusing, if not conflicting, guidance on NPS ownership of “lands beneath navigable waters” within these areas; and thus raises serious questions about the Agency’s authority and thus its ability to effectively administer its assigned wild and scenic rivers.

Section 606(a)(1) provides that “the boundary of each such river… shall not include any lands owned by the State.” Evidently, State claims of ownership of all submerged lands beneath navigable rivers in Alaska was not foreseen when ANILCA was enacted. Under NPS’s overly broad proposed rule, NPS would, in effect, concede to the State ownership and the authority to regulate all lands beneath the wild and scenic rivers assigned to NPS under Title VI. As a result, NPS’s ability to regulate activities on the primary resource to be protected, the rivers themselves, would evaporate.

In contrast to § 606(a)(1), § 606(c)  of ANILCA amended the Wild and Scenic Rivers Act to provide that “all public lands which constitute the bed or bank, or are within an area extending two miles from the bank of the river channel on both sides of the river segments …are hereby withdrawn from entry, sale, State selection or other disposition under the public land laws of the United States.”  (emphasis added). This withdrawal would seem to preclude State ownership of submerged lands within the wild and scenic rivers administered by NPS under ANILCA, even if the rivers meet the federal criteria for “navigability for title.” Because of the apparent conflict between these two paragraphs in Title VI, we urge NPS to take a more cautious approach in interpreting and applying the Court’s decision in Sturgeon v. Frost, which as previously stated was specifically limited to the Nation River in Yukon-Charley Rivers National Preserve.

 Title VIII of ANILCA established the “Subsistence Management and Use” program and provided broad authority to the respective federal land management agencies to manage and regulate such uses, including subsistence use of “fish and wildlife.” NPS’s authority to manage and regulate subsistence uses under Title VIII’s provisions is well established and generally accepted by the State. As ADNR describes in its RDI Fact Sheet[12]: “The federal subsistence priority granted by Title VIII of the Alaska National Interest Lands Conservation Act applies to all waterways in which the federal government has reserved water rights, generally in federal reservations such as National Parks and National Wildlife Refuges. Thus, the federal subsistence priority applies to waters within and adjacent to reserved federal lands regardless of the ownership of the land underlying the waters.”

Within NPS parks and monuments in Alaska there are privately owned “inholdings” where people are currently authorized as “local” and “local rural” residents. Under the current regulations, they live within the boundary of the park or monument in a “resident zone” and are thereby qualified as subsistence users as defined by 36 CFR13.430 (a) (1).

With this proposed rule change, whoever fits this category now will then be considered to live outside the boundaries of the park or monument once the rule is implemented. By regulation they will lose their status of living within a “resident zone” and thus will lose their legal ability to undertake subsistence uses, as defined by 36 CFR 13.420. We suggest this is an unintended consequence of the rule. We believe it could be remedied by a process, yet to be developed, by working with the regulations at 36 CFR 13.440 regarding where people can apply to become qualified subsistence users in parks and monuments.

Disqualifying an unidentified number of currently qualified subsistence users (through no fault of their own) and creating the need to have them re-qualify would be an incredibly harmful consequence of the NPS proposal. Yet none of this is discussed in the proposed rule. NPS should determine an appropriate remedy to this concern that would allow local rural residents to re-qualify as subsistence users with as little effort on their part as is possible and without a loss of subsistence use opportunity. The proposed remedy should be presented for public review and comment before the rule is finalized.

    1. The NPS rule, as proposed, fails to properly describe federal ownership of “lands beneath navigable waters” in pre-statehood units of the National Park System in Alaska.

The provisions of the Submerged Lands Act are contingent upon the status of navigable waters at the time a State joins the Union. Four units of the National Park System were established and administered by the NPS well before Alaska statehood in 1959. First, and smallest in land area, is the currently named Sitka National Historical Park (NHP). Here the Indian River runs through the federal land. Sitka was established as a national monument in 1910; then re-designated as a national historical park in 1972.

The other three pre-statehood conservation system units contain considerable land area and multiple waterbodies (i.e., streams, rivers and lakes). These are Mount McKinley National Park, established in 1917; Katmai National Monument, established 1918; and Glacier Bay National Monument, established in 1925 then expanded to double its size in 1939. Each of these three units was expanded and all were re-named under ANILCA in 1980 as: Denali National Park & Preserve, Katmai National Park and Preserve, and Glacier Bay National Park & Preserve. See ANILCA § 202 for details.

The presumption under the equal footing doctrine and the Submerged Lands Act is that the State owns “lands beneath navigable waters” (subject, of course, to the determination of “navigability for title purposes.”). However, in Alaska v. United States, 125 S. Ct. 2137 (2005), the Supreme Court ruled that the presumption can be rebutted when Congress has set aside the submerged lands as part of a federal reservation. A summary of Alaska v. United States[13] is provided by the National Sea Grant Center at the University of Mississippi Law School, which states, in part (emphasis added):

The Supreme Court test for determining whether Congress has retained control of submerged lands is to look at whether the submerged lands are within a reservation and whether the U.S. expressed intent to retain title to the submerged lands on that reservation. In this case, Alaska claimed that the U.S. never made an express intention to control the submerged lands in this federal enclave.

Glacier Bay… had been a federal reservation for thirty-four years prior to Alaskan statehood and has existed primarily for the purpose of preserving wildlife and protecting the natural phenomenon that occur there. The Court assumed that the Antiquities Act of 1906, which empowers the President to declare and control national monuments, empowers the federal government to set aside the submerged lands that fall within the preserved area. The stated purpose for establishing national parks and monuments is to conserve the scenery and the natural historic objects and wildlife and leave them unimpaired for future generations. The Court reasoned that these legislative proclamations could demonstrate that the federal government expressly reserved the submerged lands within Glacier Bay.

The Supreme Court, however, formally looked to the Alaska Statehood Act (ASA) to make its determination that the United States owned title to submerged lands of Glacier Bay. Section 6(e) of the ASA specifically reserves for the United States “all real and personal property” of the U.S. that is “used for the sole purpose of conservation and protection of the fisheries and wildlife in Alaska” to “lands withdrawn or otherwise set apart as refuges or reservations for the protection of wildlife.” Alaska argued that this section was only applicable to specific refuges referenced in the initial clause of § 6(e) of the ASA. The Court relied on Supreme Court precedent that held a proviso is not applicable only to “the part of the enactment with which it is immediately associated; it may apply generally to all cases within the meaning of the language used.

Since Mount McKinley National Park (1917), Katmai National Monument (1918) and Glacier Bay National Monument (1925, enlarged in 1939) were established as federal reservations for conservation purposes before the Alaska Statehood Act in 1959, the pre-statehood portions of these parks and preserves must be excluded from the proposed rule.

    1. The NPS rule, as proposed, should be revised significantly to accurately reflect the Court’s ruling in Sturgeon v. Frost.

In comment # 1 above, we discussed the narrow focus of the Court’s ruling in Sturgeon v. Frost. We have also expressed our concerns about the expansiveness of NPS’s proposed rule, which would broadly “except Alaska” from “waters subject to the jurisdiction of the United States within the boundaries of the National Park System.”

To conform with the Court’s decision, at a minimum NPS should amend 36 C.F.R. § 2.17 (e) to exempt the Nation River within Yukon-Charley Rivers National Preserve from the general prohibition on hovercraft use – this would be the most targeted way to conform. We therefore propose the following changes (shown in italics below) to the existing wording:

    • 2.17 (e) The operation or use of hovercraft is prohibited, except in Yukon-Charley Rivers National Preserve.

Comment: This specific amendment would most accurately reflect the Court’s targeted decision in Sturgeon v. Frost.

If NPS chooses to take a more expansive approach, which it seems inclined to do, at most the proposed rule should be revised as indicated below. Such an approach would concede State ownership of lands beneath navigable waterbodies once “navigability for title purposes” has been established. This would be consistent not only with the Court’s decision in Sturgeon v. Frost, but also with case law establishing the “federal test” to determine such navigability. We propose the following changes (shown in italics below) to the NPS wording:

In Part 1 General Provisions, NPS would amend 36 CFR § 1.2 by revising paragraph (a)(3) and adding a paragraph (f).

    •  1.2 Applicability and scope.(a)(3) Waters subject to the jurisdiction of the United States located within the boundaries of the National Park System, including navigable waters and areas within their ordinary reach (up to the mean high water line in places subject to the ebb and flow of the tide and up to the ordinary high water mark in other places) and, except in Alaska as provided in paragraph (f) of this section, without regard to the ownership of submerged lands, tidelands, or lowlands;

Comment: For all the reasons described in this letter, a blanket exclusion of “Alaska” from the applicability and scope of NPS jurisdiction over undetermined navigable waters within the boundaries of the National Park System in Alaska is inappropriate and grossly exceeds the scope of the Court’s decision in Sturgeon v. Frost. As a result, paragraph (a)(3) should point to paragraph (f), as revised below, for further explanation.

    •  1.2 (f) In Alaska, unless otherwise provided, the boundaries of the National Park System include only federally owned lands and waters, as defined in 36 CFR. 13.1, regardless of external unit boundaries. For the purpose of determining ownership of lands beneath navigable waters in park areas in Alaska, all waters within external unit boundaries are considered non-navigable until their navigability for title purposes has been conclusively determined through the Bureau of Land Management’s Recordable Disclaimer of Interest process, described at 43 C.F.R. § 1864[14], or by the federal courts.

Comment: The broad wording of the proposed rule will create confusion and conflict over what constitutes navigable waters owned by the State rather than the NPS. There are, in fact, many waterbodies in conservation system units in Alaska that are subject to NPS jurisdiction. These include waters within designated wild and scenic rivers, within parks and monuments that pre-dated Alaska statehood, and thousands of waterbodies that do not meet the “federal test” of “navigability for title purposes.” The additional wording we propose above will ensure appropriate, defensible decisions are made regarding title to submerged lands.

CLOSING COMMENT

The NPS rule, as proposed, goes far beyond the narrow focus of the Supreme Court’s ruling in Sturgeon v. Frost, which applied specifically to the Nation River in Yukon-Charley Rivers National Preserve. NPS’s proposal would appear to concede State ownership of undetermined “lands beneath navigable waters” in park system units without defining “navigable waters” and without assessing if those waterbodies meet well-established federal criteria defining “navigability for title purposes.”

NPS has proposed this rule knowing there is longstanding disagreement between State and Federal agencies in Alaska regarding what constitutes “navigability for title purposes”; and also knowing that Congress mandated a process in 43 U.S.C. § 1745 for resolving State claims of ownership of “lands beneath navigable waters” on federal lands. NPS should rely upon that process, or the federal courts if necessary, to determine “navigability for title purposes” for waterbodies within National Park System units in Alaska.

Instead, the proposed rule unnecessarily weakens and complicates NPS authority to administer, regulate, and conserve National Park System units in Alaska as mandated under Titles II, VI, and VIII of ANILCA. And last but not least, the proposed rule fails to properly describe federal ownership of “lands beneath navigable waters” in pre-statehood units of the National Park System in Alaska, areas in which navigable waters should remain under NPS jurisdiction.

For these reasons, the NPS proposed rule should be revised significantly to accurately reflect the Court’s ruling in Sturgeon v. Frost.

We appreciate the opportunity to comment on this important issue.

Sincerely,

Phil Francis Signature

 

 

Philip A. Francis, Jr., Chair
Coalition to Protect America’s National Parks
201 I Street, NE #805
Washington, DC 20002

cc:        David Vela, Acting Director, National Park Service


[1] https://www.supremecourt.gov/opinions/18pdf/17-949_6kgn.pdf

[2] https://www.law.cornell.edu/uscode/text/43/1301

[3] http://www.nationalrivers.org/frequently-asked-questions/

[4] https://www.supremecourt.gov/opinions/11pdf/10-218.pdf

[5]https://dictionary.cambridge.org/us/dictionary/english/navigability

[6] http://www.dnr.state.ak.us/mlw/nav/policy/#DISP

[7] Ibid.

[8] http://dnr.alaska.gov/mlw/factsht/land_fs/recordable_disclaimer.pdf

[9] https://www.blm.gov/programs/lands-and-realty/regional-information/alaska/RDI#:~:text=The%20objective%20of%20the%20disclaimer,United%20States%2C%20and%20that%20an

[10] https://www.law.cornell.edu/cfr/text/43/part-1860/subpart-1864

[11] http://dnr.alaska.gov/mlw/factsht/land_fs/recordable_disclaimer.pdf

[12] http://www.dnr.state.ak.us/mlw/factsht/land_fs/recordable_disclaimer.pdf

[13] http://nsglc.olemiss.edu/SandBar/SandBar4/4.2submerged.htm

[14] https://www.law.cornell.edu/cfr/text/43/part-1860/subpart-1864