04/05/2021 - Legal Analysis - Student Work

Implementing Sturgeon v. Frost: Changes to the Park Service’s Jurisdiction over Navigable Waters in Alaska

by Lindsay Williams, JD 2022

In November 2020, the National Park Service published a final rule[1] amending its jurisdiction in Alaska in order to comply with the Supreme Court’s recent decision in Sturgeon v. Frost (Sturgeon II).[2] The rule severely limits NPS’s authority over navigable rivers in Alaska, and thus the agency’s ability to satisfy its statutory mandate to protect and maintain water quality and habitat. In this piece, I briefly explain the Court’s Sturgeon II decision, the final rule’s impact on NPS’s jurisdiction in Alaska, and what narrow regulatory opportunities remain for the Biden administration.


The Organic Act of 1916 created the National Park Service (NPS) within the Department of the Interior to manage public lands designated as part of the National Park System. There are parks in all 50 states; however, land in Alaska alone represents 65% of the entire National Park System.[3] As a general rule, the NPS Director has the authority to regulate all lands within the National Park System, regardless of whether those lands are federally owned.[4]

In 1980, Congress passed the Alaska National Interest Lands Conservation Act (ANILCA)[5] to “preserve for the benefit, use, education, and inspiration of present and future generations certain lands and waters in the State of Alaska” while “provid[ing] adequate opportunity for satisfaction of the economic and social needs to the State of Alaska and its people.”[6] ANILCA set aside 104 million acres of federally owned land as conservation system units (CSUs) for preservation purposes, including nearly 44 million to be administered by NPS, doubling the amount of NPS’s jurisdictional lands.[7] ANILCA, however, differed from other statutes establishing national parks because it drew the CSU boundaries based on topographic and natural features, instead of the property lines of the federal government.[8] This was because prior allocations of property from the federal government to both the state and Alaska Native Tribes made it difficult to use the traditional system, as the property lines were more complex.[9] As a result, there is a significant portion of land within the CSUs that the federal government does not have title to, but instead belongs to the state, Tribes, or private actors.[10]

In addition to these privately owned lands within CSUs, the Submerged Lands Act of 1953[11] gave states title to all land beneath navigable waters. The Alaska Statehood Act[12] incorporated the provisions of the SLA, giving the state title to the submerged lands in Alaska, and ANILCA did not disturb this title.[13] This means that all submerged lands beneath navigable waters within CSUs, even if surrounded by park land, belong to the state of Alaska. In national parks outside of Alaska, all land and waters appropriated by Congress are considered to be part of the system unit and thus subject to NPS regulations, regardless of whether the federal government has title. However, “Alaska is different.”[14] Section 103(c) of ANILCA opaquely suggests a different approach in Alaska that hinges on the definition of “public lands”: “only those lands within the boundaries of any conservation system unit which are public lands . . . shall be deemed to be included as a portion of such unit. No 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.”[15] ANILCA defines public lands as lands that the United States has title to, with the exception of lands selected for future transfer.[16] However, because the United States does not have title to the submerged lands beneath navigable waters, the opaque language of section 103(c) of ANILCA raises the question of whether NPS can enforce its general regulations governing the use of navigable waters within CSUs in Alaska.

In Sturgeon I[17]and Sturgeon II, the dispute involved the use of hovercrafts along the Nation River in Alaska for the purpose of moose hunting.[18] Sturgeon was informed that NPS prohibited hovercrafts on rivers within any federal reserve or park, and subsequently sued NPS.[19] NPS is able to regulate activities on waters within other national parks,[20] and did so in Alaska before Sturgeon I and Sturgeon II.[21] In Sturgeon I, the Court did not rule on the extent of NPS’s jurisdiction in Alaska; they held only that treating parks in Alaska the same as parks in other parts of the country was an invalid reading of ANILCA.[22] The Court further clarified in Sturgeon II, holding that NPS may not enforce its general regulations on non-federal lands, including navigable waters over submerged lands belonging to the state, as if they were federal lands within Park boundaries.[23]

The exact extent of NPS jurisdiction, and therefore the agency’s ability to protect waters within national parks in Alaska, has major consequences for water quality and wildlife within the parks. As noted in the Sturgeon II concurrence, ANILCA requires the Park Service to meet several water quality and water regulation goals, including “maintaining unimpaired the water habitat” for salmon in the Katmai National Monument.[24] If the Park Service is unable to enforce its regulations over navigable waters within system units, it will be very difficult for the agency to comply with these statutory mandates. This interpretation also results in the slightly absurd situation where individuals would be permitted to engage in activities on a navigable river that would not be permitted on the banks, such as littering, fishing or hunting, suction dredging, and creating disturbances.[25] This could frustrate the purpose of Congress’s delegation of management authority to NPS, as “[t]he Service cannot carry out its duty to ‘manage’ the park areas if it is estopped from promulgating the necessary rules and regulations.”[26]

NPS Jurisdiction in Alaska under the Final Rule

In response to Sturgeon II, NPS promulgated a final rule that the agency argued brings their regulations in line with the Court’s opinion. This rule makes several changes that narrow NPS’s jurisdiction over navigable waters in Alaska.

The final rule clarifies that NPS’s general regulations do not apply in Alaska, except on “federally owned lands” within park boundaries.[27] Additionally, the final rule states that “[f]ederally owned lands . . . means lands, waters, and interests therein the title to which is in the United States.”[28] The term “federally owned lands” is not the term used by either the Court in Sturgeon II or in ANILCA itself. However, NPS asserts that “public lands” and “federally owned lands” are interchangeable.[29] The Sturgeon II majority defines public lands in several different ways: as being synonymous with federally owned lands,[30] as referring to federally owned lands and waters,[31] or as referring to most federally owned lands, waters, and associated interests.[32] Thus, based on definitions alone, NPS’s definition is mostly consistent with the Sturgeon II majority. However, the NPS definition limits federal interests that might trigger NPS jurisdiction to those interests in which the U.S. has title. This addition may exceed the limits the Court imposed in Sturgeon II, as discussed in greater detail below.

The rule further clarifies that waters flowing over submerged lands that are not federally owned “may not be regulated [by NPS] as part of the park.”[33] It’s unclear, however, whether the rule forecloses the narrow possibility left open in Sturgeon II that NPS could regulate some aspects of navigable waters in Alaska on the basis of other federal interests.[34] These interests include so-called “usufructuary rights,” or the rights that the federal government has to use and enjoy water flowing over submerged state land. In Cappaert v. United States,[35] the Supreme Court held that when the federal government withdraws or reserves lands for a federal purpose, it implicitly reserves appurtenant waters not already appropriated to the extent necessary to accomplish that purpose. These reserved water rights may include the right to regulate navigable waters, if doing so is deemed necessary to accomplish the federal purpose.[36] Later, in U.S. v. New Mexico, the Court established that questions concerning the existence and quantity of reserved water rights are largely dependent upon the reservation’s authorizing legislation and the specific purposes for which the land is reserved.[37] Thus, there is an outstanding question as to the exact extent of the federal government’s reserved water rights under ANILCA.

The Court in Sturgeon II forecloses the possibility that NPS could rely on the federal government’s reserved water rights to regulate hovercraft (i.e. enforce their general regulations) on navigable waters because those interests do not convey title.[38] However, as Justice Kagan states in the majority opinion, reserved water rights “enable[] the Government to take or maintain the specific ‘amount of water’ . . . required to ‘fulfill the purpose of [its land]reservation . . . for example . . . the Government could control only the volume of water necessary for the tribe to farm or the fish to survive.”[39] It’s unclear whether the final rule’s overly restrictive definition of “federally owned lands” to only include interests in which the federal government has title would preclude NPS from exercising its limited regulatory authority on the basis of such reserved water rights.[40]

Justice Sotomayor notes in the concurrence that NPS may have the authority to enforce certain regulations over non-“public land” under its Organic Act.[41] NPS’s Organic Act gives NPS the “general authority to promulgate all regulations ‘necessary or proper’ for managing park units, including the power to regulate activities ‘on or relating to water located within Park System units.’”[42] Justice Sotomayor argues that the Organic Act thus gives NPS the authority to regulate activities on navigable waters that threaten to harm downstream waters over which NPS has jurisdiction.[43] Neither the majority in Sturgeon II nor the final rule addresses this authority, leaving open a potential avenue for the current administration to regulate certain harmful activities on navigable waters.

Designation of Navigable Waters in the Final Rule

Under Sturgeon II and the final rule, which entity has jurisdiction over particular submerged lands turns on whether the water is navigable. Therefore, that determination is of particular importance in deciding the extent of NPS’s jurisdiction in Alaska. Under the Submerged Lands Act, land under navigable waters is owned by the states. Land under water that is non-navigable within a CSU would not have been conveyed to the states and therefore would be federally owned. The navigability of a river is determined on a “segment-by-segment” basis, and is evaluated at the time of statehood. [44] In the preamble to the final rule, NPS states that they do not have the authority to determine whether any particular waters are navigable; rather, that determination is left to the Bureau of Land Management, Congress, and the courts. This question will therefore likely play out on a case-by-case basis.

Wild and Scenic Rivers

The rule’s preamble only touches briefly on the issue of Wild and Scenic Rivers, which was the concern of several commenters.[45] Specifically, commenters were concerned that the new rule would cause these wild and scenic rivers to no longer be sufficiently regulated and protected by NPS.

Section 10 of the Wild and Scenic Rivers Act (WSRA) states that any component of the national wild and scenic rivers system that is administered by NPS shall become part of the National Park System.[46] There are currently 25 wild and scenic rivers in Alaska, 14 of which are regulated by NPS.[47] (ANILCA automatically designates wild and scenic rivers as CSUs, as it does for the National Trails System).[48]

Because NPS’s authority to regulate wild and scenic rivers derives from the WSRA and not NPS’s general regulatory authority, the final rule does not affect NPS’s ability to directly regulate wild and scenic rivers. However, NPS will not be able to exercise its general regulatory authority over the navigable segments of these rivers as part of a park system after the Sturgeon II decision. The effects of this decision are not clear because in general, all wild and scenic rivers administered by NPS are also part of a park system, and thus subject to NPS’s general regulations and policies.[49] Sturgeon II upends this structure for the first time by exempting navigable rivers from NPS’s general regulatory authority. However, the WSRA states that where there is a conflict between the WSRA and “the Acts under which the national park system . . . is administered . . . the more restrictive provisions shall apply.”[50] Thus, even if there is a conflict between the WSRA and ANILCA (as interpreted by the Court in Sturgeon II), the more protective statute should apply to ensure the ongoing protection of wild and scenic rivers.

 Subsistence Fishing Effects

The final rule analyzes the effects of Sturgeon II on the Katie John trilogy of cases in the Ninth Circuit, which addresses subsistence fishing rights. In John v. United States,[51] the latest in the series, the Ninth Circuit held that “public lands” subject to subsistence management under ANILCA include certain navigable waters.[52] In Sturgeon II, the Court addressed the Katie John trilogy, stating that the term “public lands” when used in subsistence fishing provisions encompasses navigable waters, and that Sturgeon II does not disturb the Katie John holdings, i.e. that NPS may regulate subsistence fishing on navigable waters within park units.[53]

Sturgeon II and the final rule lead to the conclusion that “public lands” must be interpreted differently in subsistence provisions than in other parts of the statute. However, “to the extent that NPS regulations implicitly supported subsistence use, perhaps by prohibiting access by means such as hovercrafts [the synergy between NPS regulations over public land and subsistence use] will no longer exist.”[54] While this could mean that there are no impacts to the legal rights of people who rely on subsistence fishing, deterioration of quality as a result of broader deregulation is a significant risk. This could have significant impacts on the people who rely on this use, specifically indigenous populations and rural Alaskans.

The final rule also does not upset the Katie John holdings,[55] but does amend one provision regarding subsistence access by expanding which areas qualify as “resident zones,” which designate areas in which rural residents are able to claim a subsistence interest.[56] Those zones now explicitly include people who live on privately owned lands within a national park or monument. The amendment does not have any legal effect on preexisting subsistence fishing rights.


While the new rule does not seem to go beyond what the Court ruled in Sturgeon II, it leaves significant unanswered questions, particularly relating to the federal government’s authority to regulate navigable rivers pursuant to their reserved water rights under ANILCA, and NPS’s regulatory authority over such rivers under its Organic Act. Both the Court’s decision and the rule also potentially threaten subsistence fishing and the continued preservation of wild and scenic rivers, which in turn may affect the integrity of the National Park System in Alaska. The Biden administration and Secretary of the Interior Deb Haaland can address these gaps by strengthening NPS’s regulations under the Wild and Scenic Rivers Act specifically for Alaska so that the quality of these rivers is protected. For the management of non-Wild and Scenic Rivers, the Biden Administration can also enter cooperative agreements with the state of Alaska. However, only a legislative fix amending or clarifying Section 103(c) of ANILCA can restore NPS’s jurisdiction over navigable waters in Alaska.


[1] Jurisdiction in Alaska, 85 Fed. Reg. 72,956 (Nov. 16, 2020).

[2] 139 S. Ct. 1066 (2019).

[3] Land Ownership in National Park System Units in Alaska and Possibilities for Mining and Other Developments, NPS (last updated Sep. 14, 2017), https://www.nps.gov/articles/aps-v13-i2-c3.htm.

[4] Sturgeon II, 139 S. Ct. at 1075 (“[T]he Secretary, acting through the Director of the Park Service, has broad authority under the National Park Service Organic Act to administer both lands and waters within all system units in the country . . . Those statutory grants of power make no distinctions based on the ownership of either lands or waters (or lands beneath waters).”) (internal citations and abbreviations omitted).

[5] 16 U.S.C. §§ 3101–3233.

[6] Id. at § 3101.

[7] Sturgeon II, 139 S. Ct. at 1075.

[8] Id. at 1075 (quoting §3101(b)).

[9] Id.

[10] Native corporations formed under the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C. §§ 1601–1624, own the largest portion of non-federal lands within NPS units in Alaska, totaling 1,462,320 acres. In these areas, Native corporations own both the surface and subsurface estates. Land Ownership in National Park System Units in Alaska and Possibilities for Mining and Other Developments, NPS (last updated Sep. 14, 2017), https://www.nps.gov/articles/aps-v13-i2-c3.htm.

[11] 43 U.S.C. §§ 1301–1356.

[12] Pub. L. 85–508, 72 Stat. 339 (1958).

[13] Sturgeon II, 139 S. Ct. at 1077.

[14] For example, in Alaska, “rivers function as the roads of Alaska, to an extent unknown anyplace else in the country” and “over three-quarters of Alaska’s 300 communities live in regions unconnected to the State’s road system.” Sturgeon II, 139 S. Ct. at 1087.

[15] 16 U.S.C. § 3103(c) (titled “Maps”).

[16] ANILCA, 43 U.S.C. § 1302 (“’[F]ederal land’ means lands to which title is in the United States . . . ‘[P]ublic’ lands means lands situated in Alaska which . . . are Federal lands, except land selections of the State of Alaska which have been tentatively approved or validly selected under the Alaska Statehood Act and lands which have been confirmed to, validly selected by, or granted to the Territory of Alaska or the State . . . [or] land selections of a Native Corporation made under the Alaska Native Claims Settlement which have not been conveyed to a Native Corporation. . .”)

[17] 136 S. Ct. 1061 (2016).

[18] Sturgeon II, 139 S. Ct. at 1072.

[19] Id.

[20] Id.

[21] Id.

[22] Sturgeon I, 136 S. Ct. at 1071.

[23] Sturgeon II, 139 S. Ct. at 1085.

[24] Id. at 1089 (Sotomayor, J., concurring).

[25] The State of Alaska may still regulate or prohibit all of these activities. However, it is conceivable that the State would have different priorities in regulating its own constituents relative to NPS’s mandate. This is supported by the substantial number of comments in favor of the rule from organizations such as the Alaskan Miners Association and the Alaska Outdoor Council, a hunting organization, among others.

[26] Sturgeon II, 139 S. Ct. at 1091 n.5 (Sotomayor, J., concurring) (internal citations and punctuation omitted).

[27] 85 Fed. Reg. at 72,961 (stating that NPS’s general regulations only apply to persons within “waters . . . within the boundaries of the National Park System . . . without regard to the ownership of submerged lands . . . except in Alaska” and that “the regulations contained in part 13 . . . apply only on federally owned lands within the boundaries of any park area in Alaska”). The stated purpose of these changes was to ensure that in Alaska, NPS regulations apply exclusively to federally owned lands and waters within system units. Id. at 72,956.

[28] Id.

[29] 84 Fed. Reg. at 72,956 (“public lands (meaning federally owned lands and waters)”).

[30] Sturgeon II, 139 S. Ct. at 1081.

[31] Id. at 1082.

[32] Id. at 1077.

[33] 82 Fed. Reg. at 72,959

[34] Id.

[35] 426 U.S. 128, 138 (1976).

[36] The Court does not address whether other federal reserved water rights, like navigational servitudes, could give NPS the authority to regulate navigable waters in Alaska. Sturgeon II, 139 S. Ct. at 1090 n.3 (Sotomayor, J., concurring).

[37] Federal Reserved Water Rights and State Law Claims, DOJ (last updated May 12, 2015), https://www.justice.gov/enrd/federal-reserved-water-rights-and-state-law-claims (citing U.S. v. New Mexico, 438 U.S. 696 (1978)).

[38] Justice Kagan states that “the more common understanding . . . is that reserved water rights are not the type of property interests to which title can be held.” 139 S. Ct. at 1079.

[39] Sturgeon II, 139 S. Ct. at 1079.

[40] 85 Fed. Reg. at 72,961.

[41] Id. at 1091 (Sotomayor, J., concurring).

[42] Id. (quoting 54 U.S.C. §§ 100741(a), (b)) (emphasis in original).

[43] Id.

[44] PPL Montana, LLC v. Montana, 565 U.S. 576, 593 (2012).

[45] The final rule states that “these regulations do not address [the Wild and Scenic Rivers] issue.” 85 Fed. Reg. at 72,956.

[46] 16 U.S.C. § 1281(c).

[47] The other 11 wild and scenic rivers are administered by the Bureau of Land Management, the Fish and Wildlife Service, or a combination of both. Alaska, National Wild and Scenic Rivers System, Rivers.gov (last visited March 29, 2021), https://www.rivers.gov/alaska.php.

[48] 16 U.S.C. § 3102(4).

[49] WSRA, 16 U.S.C. § 1281(c).

[50] Id.

[51] 720 F.3d 1214 (9th Cir. 2013).

[52] Id. at 1222.

[53] Sturgeon II, 139 S. Ct. 1080, n.2.

[54] Craig Jones, The Impact of Sturgeon II on Alaska Subsistence Management: A Chance for Peace in the Jurisdiction Wars, 36 Alaska L. Rev. 222, 241–242 (2019).

[55] 85 Fed. Reg. at 72,957.

[56] The applicable regulations for subsistence fishing are found at 36 CFR part 242 and 50 CFR part 100, which are not amended by the Park Service’s final rule. Additional regulations for subsistence fishing are found in 12 CFR Part 13.430