Opinion analysis: A rebuke of the Ninth Circuit, and nothing more

In Sturgeon v. Frost, the Supreme Court unanimously held that the lower courts misinterpreted a federal law governing National Park Service authority over lands in Alaska. But, the Court stopped there. It did not offer its own view of the statute, other than to say that the Ninth Circuit (like the district court before it) misread the statute. There are several possible reasons why the Court stopped where it did, but before considering them, it is worth a short recap.

At issue in the case was the interpretation of Section 103(c) of the Alaska National Interest Lands Conservation Act of 1980, which provides, in relevant part, that “[n]o lands which . . . are conveyed to the State, to any Native Corporation, or to any private party shall be subject to the regulations applicable solely to public lands within such units.” Lest this seem straightforward when applied to a non-tribal member using a hovercraft on a navigable river within the boundary of a federally delineated “conservation service unit” (“CSU”) in Alaska, the case has numerous other complexities. The entire statutory scheme was built on other statutes, going back to the admission of Alaska as a state, and represented in whole a complex bargain among various stakeholders to lands in Alaska: native tribes, the state of Alaska, the federal government, and the people of the new state. The NPS tried to enforce a nationwide ban on hovercrafts on public lands, but John Sturgeon claimed the Nation River was non-public land, and that Section 103(c) thus limited the NPS’s jurisdiction. The case thus required the courts to answer whether the surface of a navigable river inside of a CSU was public or non-public land, and whatever the answer, whether the NPS rule applied or not.

This is a surprisingly hard case, both in terms of statutory interpretation/administrative law and in terms of policy. And, like the rest of us, judges don’t like hard cases. So when one comes along, they often look for a simple way out. The district court, and then the Ninth Circuit, believed they found a clever way to resolve the case without getting into the messy tribal-state-federal politics. The lower courts read Section 103(c) as limiting NPS jurisdiction over non-public lands only in cases in which the rule in question was an Alaska-only rule. This is putting lots of weight on the word solely, and reading this provision out of context with the rest of the statute. But, as Sturgeon argued, it would lead to strange results. For instance, if there were nationwide park rules forbidding certain fishing practices and then a special Alaska-specific rule that permitted them, under the Ninth Circuit’s reading, the non-federal land within the Yukon-Charley would be subject to the nationwide ban, but not the Alaska exemption. In other words, federal fishing regulations would be stricter on non-federal land than federal land. The absurdity of this result did not trouble the lower courts, since it provided a plausible reading of the statute that resolved the case in a simple way.

Not surprisingly, the Supreme Court rejected this reading of the statute, calling it “topsy-turvy.” Writing for the unanimous Court, Chief Justice John Roberts spent a long time recounting the history of the various statutes and of the policy issues at stake – his love of Alaska and his former work as a lawyer representing the state shines through – but then dismisses the issues in a few scant paragraphs. The Court reverses the Ninth Circuit, finding its read of the statute implausible when read in the entire statutory context, but then the Court stops short of offering its own views on the merits. The case is sent back for the work to be done by the lower courts.

One possible explanation is that the issues are simply too complex and difficult for the Supreme Court to address without a better record created by the district court – the clever (too clever it turns out) way to resolve the case cut short the lawyerly work that needed to be done by the lower court. The Supreme Court either didn’t want to or couldn’t do this work on its own. Another possibility is that the necessary tie-breaking vote for the Court was missing in the wake of the death of Justice Antonin Scalia last month. This is not entirely implausible. As the argument preview and oral argument review made clear, the stakes in this case are potentially huge, and the issues of federal power of land in the West cleave pretty clearly along ideological lines. It would not be surprising if the four more conservative Justices prefer to read the statute to limit federal power over the lands in question in this case, or, at least, do not feel the need to defer to the interpretation of the NPS over the reach of its authority. And, it would not be surprising if the four more liberal Justices read the statute to permit just this. If this is the case, then the narrowness of the Court’s opinion is not explained by the lack of a proper record or by judicial modesty, but rather by a deadlock that the Court preferred not to air at this time. Better, perhaps, to decide what it could easily (and unanimously decide) – that the Ninth Circuit was wrong – and leave for another day the tough questions about federal power over lands in Alaska and perhaps elsewhere throughout the West.