Alaska issue gets spot on Supreme Court agenda

Alaska is headed to the U.S. Supreme Court.

The nation’s highest legal body began its new term this month, and among the 80 or so cases this term is at least one appeal dealing specifically with Alaska. The court is also being asked to deal with a thorny Southeast topic.

On the surface, Sturgeon v. Masica deals with — of all things — a hovercraft. Below the surface, it’s the knotty question of where the rights of the state and Native organizations end and those of the federal government begin.

The court’s acceptance of Sturgeon’s appeal was announced Oct. 1.

In 2007, John Sturgeon was operating his hovercraft on a river in eastern Alaska, en route to a moose hunt. The hovercraft broke down, and while he worked on it, he was approached by National Park Service officers.

Since Sturgeon was working within the boundaries of the Yukon-Charley National Preserve, and hovercraft are prohibited in National Park Service territory, he was told to remove it.

In 2011, Sturgeon sued, claiming that while the National Park Service might have authority over the land around the Nation River — where Sturgeon was — the state of Alaska has authority over submerged lands beneath navigable waterways, courtesy of the Alaska National Interest Lands Conservation Act. As a result, state rules, not those of the Park Service, should have been applied.

Alaska’s U.S. District Court rejected Sturgeon’s argument, as did the court of appeals that heard it, and Sturgeon’s attorneys appealed to the highest court. A date has not yet been set for oral arguments.

The Supreme Court appeal was pushed by Sturgeon’s lawyers, but the state of Alaska has also chimed in on their side. In a brief filed with the Supreme Court, assistant attorneys general Ruth Botstein and Janell Hafner wrote that Alaska has “a direct and profound interest in maintaining its authority to keep its waterways open without federal regulatory interference, as Congress intended.”

Seven regional Native corporations are supporting Sturgeon and the state, as are two village corporations. The corporations fear that any land claims they have that are surrounded by Park Service land could be subject to federal regulations governing public land.

While the 49th state is frequently affected by the actions of the court, having a case specifically address an Alaska question is unusual. Sturgeon’s case isn’t expected to have nationwide effects because ANILCA is an Alaska-specific law.

The court receives about 10,000 petitions per year, according to its figures, and hears just 75-80 of those in oral argument.

On Tuesday, the Alaska Department of Law announced it will try to put a second Alaska case among that select group. It is seeking an appeal for a Ninth Circuit Court of Appeals decision that effectively prohibited the construction of new roads in the Tongass National Forest.

The Roadless Rule, implemented in the final days of the Clinton administration, prohibits road construction, maintenance and timber harvesting on almost 60 million acres of U.S. Forest Service land.

An exemption to the Roadless Rule, approved in 2003, prohibited the rule’s application to the Tongass National Forest, but that exemption was challenged in 2009 by groups including the Sierra Club, Greenpeace and the Organized Village of Kake.

In 2011, an Alaska U.S. District Court judge ruled on the Kake v. USDA lawsuit by agreeing with the challengers.

The state of Alaska appealed that decision, and a three-judge panel of the Ninth Circuit in 2014 agreed with the state’s argument. That decision was appealed to a full 11-judge panel, and on July 29, the panel ruled that exempting the Tongass from the nationwide rule was illegal.

“I think we have a strong argument,” said assistant attorney general Dario Borghesan.

He added that the chances of getting the Supreme Court to hear any particular appeal are low, but the state has a compelling case.

“I think the court would be interested in the way the Ninth Circuit treated what is basically a policy change from one administration to another,” Borghesan said.

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