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Alaska Editorial: State has good reasons to challenge park rules

Posted: December 19, 2011 - 12:04am

This editorial first appeared in the Fairbanks Daily News-Miner:

An illuminating list appears near the back of the state’s brief supporting moose hunter John Sturgeon’s lawsuit against the National Park Service. The list briefly details a selection of instances in which the federal agency has required Alaskans to obtain permission for work on state-owned waters and submerged lands within national parks and preserves.

The list shows why the state’s participation in Sturgeon’s case is necessary. Unchallenged, federal agencies tend to assume ever-greater control of Alaska. While federal control isn’t some inherently evil thing — all of us accept and welcome it in many cases — it does tend to place greater limits on use of Alaska’s lands than the state would otherwise allow. Those limits often impede enterprise, recreation and research, as the state’s list demonstrates.

Below, from the list, are examples of what the National Park Service has done:

• Required a phone company to get a permit to lay a cable in Lake Clark, which is state-owned by virtue of its navigability, in Lake Clark National Park and Preserve.

• Told state biologists that they had to get a permit to collect genetic samples from salmon on the state-owned Alagnak River in Katmai National Park and Preserve.

• Required a permit for a private individual to transport material on the Nizina River in the Wrangell-St. Elias National Park and Preserve.

• Warned a private group that landed a helicopter on the Noatak River that such landings were not allowed in Noatak National Preserve.

• Told a kayaking guide he needed authorization to paddle with clients on Bear Glacier Lake in Kenai Fjords National Park.

• Told a sled dog tour operator he needed permission to mush with clients on the Yukon and Tatonduk rivers in the Yukon-Charley Rivers National Preserve.

• Told fishing guides on the Naknek River in Katmai park that they needed permission to operate.

And then there’s the case of Anchorage resident John Sturgeon.

Sturgeon, using a hovercraft, hunted along the Yukon and Nation rivers up until 2007. That year, rangers warned him that federal regulations prohibited hovercrafts within the Yukon-Charley preserve. Sturgeon filed suit to challenge that regulation this fall, and the state asked to join the case last week.

The state’s legal argument is stronger than the one it filed on behalf of Jim Wilde, the Central man who the Park Service cited on the Yukon last year for failing to register his boat. A federal judge rejected the state’s argument on behalf of Wilde, and that decision, however much some Alaskans might bemoan it, relied upon a reasonable interpretation of the law and court precedents.

Sturgeon’s case is a little different, though.

The Alaska National Interest Lands Conservation Act of 1980, which established the Yukon-Charley preserve and tens of millions of acres of other federal conservation units in Alaska, says this: “No lands which, before, on or after the date of enactment of this act, are conveyed to the state ... shall be subject to the regulations applicable solely to public lands within such units.” (“Public lands,” in this context, are federal lands, the state asserts.)

A key word in the law is “solely.” The boat registration regulations that Jim Wilde violated apply everywhere to everyone. In contrast, the Park Service’s hovercraft regulation applies “solely” to park units. As such, under ANILCA’s prohibition, it should not apply to non-federal waters within those units.

Before anyone gets too loudly self-righteous, though, we should all recognize that this area of law has been in dispute for decades, and the federal government usually has won. Courts tend to agree that the U.S. government retains some right to regulate activities on navigable waters conveyed to the states, particularly those waters surrounded by federal conservation units. The extent of that federal authority is fuzzy, though.

The state asserts that the rules clearly are different in Alaska because Congress in 1980 recognized the need for a different approach, given the vastness of the conservation areas created here. Sturgeon’s situation appears to be a sound vessel on which to carry that case. The state, as the list in its brief demonstrates, has plenty of reasons to climb aboard.

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