The following editorial first appeared in the Fairbanks Daily News-Miner:
The state once again has lost a court fight in which it challenged the federal government’s authority. The state had protested National Park Service rules that ban helicopters and hovercrafts from state-owned waterways that run through Alaska’s national parks and preserves. A senior federal district court judge last week upheld the federal agency’s authority to do so
While the state’s batting average in such suits admittedly has been dismal lately, this is one decision it ought to appeal. The decision greatly limits the utility of a central provision that authors of the Alaska National Interest Lands Conservation Act added to protect the ability of the state and private landowners to use their lands within the vast federal parks, refuges and other units created when Congress passed the law in 1980.
The judge who decided the case, H. Russel Holland, is probably the most experienced veteran of Alaska land law battles on the federal bench. So his opinion can’t be shrugged off lightly.
Nevertheless, Judge Holland’s ruling rests on a simple assumption that the state ought to challenge. The judge’s interpretation might be right, but many of those who were present at the law’s writing think it is not.
The key sentence in ANILCA declares that Park Service regulations do not apply to state and private lands within the boundaries of its conservation units in Alaska if those regulations are “applicable solely to public lands within such units.”
The question here is what Congress meant by “solely . within such units.” Judge Holland noted that the regulation banning helicopters and hovercrafts applies to parks nationwide. It does not apply “solely” to units in Alaska, he concluded. For that reason, the sentence in ANILCA does not exempt state and private lands from the regulation, he decided.
However, this isn’t the only way to look at it, as the history of Alaska land law makes clear.
The language in question came in reaction to a provision of the 1971 Alaska Native Claims Settlement Act. ANCSA said Native land patents within national wildlife refuges are “subject to the laws and regulations governing use and development of such refuge.” That included all sorts of laws and regulations of national applicability.
Applying those laws and regulations to Native corporation land within Alaska’s refuges created potential problems for the corporations seeking to use that land. The authors of ANILCA tried to fix the problems with the language at issue here. The idea was to prevent the Department of the Interior, which managed parks and refuges across the nation, from burdening Alaska’s state and private inholdings with the rules that were generally applicable to “such units” nationwide.
In ANILCA, the term “solely” was used to contrast the regulations in such units in Alaska not with those applied nationally in other parks and refuges but rather with regulations that were applied everywhere outside conservation units.
It makes no sense to think that Congress was trying to exempt state and private inholdings only from Alaska-specific rules for parks and refuges. That’s simply not what was sought by the authors of the language. It was the broad national conservation unit regulations, such as those applied by ANCSA to Native lands within refuges, that were the target.
Judge Holland’s decision dismisses this entire understanding by interpreting the language without giving sufficient weight to the context. The state shouldn’t let it stand without challenge.