Comment letter: Proposed revisions to NPS regulations related to Sturgeon v. Frost

June 29, 2020

Don Striker
Acting Regional Director
National Park Service
Alaska Regional Office
240 West 5th Ave.
Anchorage, AK  99501

RE: RIN 1024-AE63 Proposed Rule “National Park Service Jurisdiction in Alaska” April 30, 2020

Dear Mr. Striker:

The Resource Development Council for Alaska, Inc., (RDC) is writing to support the proposed revisions to National Park Service (NPS) regulations as a necessary step to comply with the March 26, 2019, U.S. Supreme Court decision in Sturgeon v. Frost.  

RDC is a statewide trade association comprised of individuals and companies from Alaska’s fishing, forestry, mining, oil and gas, and tourism industries. RDC’s membership includes Alaska Native corporations, local communities, organized labor, and industry support firms. RDC’s purpose is to encourage a strong, diversified private sector in Alaska and expand the state’s economic base through the responsible development of our natural resources.

RDC supported John Sturgeon in his lawsuit protecting Alaska’s right to manage state owned lands and waters consistent with the bipartisan intent of Congress in passage of the Alaska National Interest Lands Conservation Act (ANILCA) in 1980. The Court decision explicitly and repeatedly confirmed that ANILCA Section 103(c) limits federal regulation of conservation system units in Alaska to federally-owned lands. We look forward to a renewed commitment that NPS will engage in cooperative management among state, federal, and private land owners as envisioned in ANILCA and correctly applied for nearly two decades before NPS modified its regulations in 1996 to assert jurisdiction over non-federal lands and waters.

We support the intent in the proposed rule “of making the regulations unambiguous.” To that end, we request additional clarifications and/or modifications in the final NPS rule, as follows:

  1. Remove use of the phrase “ordinary regulatory authority” or define it to mean only the authorities granted by the Organic Act and ANILCA. The NPS began using this undefined phrase a few years ago, which inaccurately implies NPS has authorities to administer lands and waters within park units beyond that granted by the Organic Act, as amended, and by ANILCA. The Supreme Court in Sturgeon II repeatedly used the correct reference to the Organic Act, as amended, as the basis of NPS authority to administer system units and used the term “ordinary regulatory authority” once with a clarification that “the Organic Act pegs that authority to system units” (at page 18). NPS has no alternative authority to regulate activities. Further, other agencies such as the Army Corps of Engineers and Environmental Protection Agency have regulatory authorities that apply to both federal and non-federal lands, but Congress did not grant NPS those general authorities.

  2. Revise the proposed rule at 36 CFR 1.2(f). The preamble to the proposed rule describes (84 FR 23936) NPS intent is “to clarify that” only public lands as defined in ANILCA are a unit of the park system within the unit boundaries and non-public lands are not regulated as part of the unit, citing several specific Court directions in Sturgeon II. While we support the intent and the explanation, we suggest a revision of the proposed rule to close potential loopholes in the definitions of “legislative jurisdiction” and “park areas,” as well as “boundaries.” This revision does not prevent other authorizations, such as cooperative agreements, for NPS to participate in management of non-public lands but does prevent NPS from interpreting authorities that the Court, as quoted in the preamble, stated “apply exclusively to public lands (meaning federally-owned lands and waters) within system units.”

    •  Revise 36 CFR 1.2(f) to read: (f) In Alaska, only the public lands (federally-owned lands) within park unit boundaries are deemed a part of the unit, and non-public lands (including State, Native corporation, and other non-federally owned lands) shall not be regulated as part of the park unit.

  3. Other modifications to fully implement the Court’s holding that NPS regulations are preempted by ANILCA’s exceptions. NPS adopted Alaska-specific regulations in 1981 to closely implement Congressional directions in the just-passed ANILCA to limit federal jurisdiction to federally-owned lands. The preamble to the rule (46 FR 31853-54) provided a listing of the 36 CFR Parts 1-9 national regulations that NPS recognized were “superseded” by the Alaska rule. Again in 1983 the NPS national regulations clarified that the Alaska regulations “supersede the general regulations” (48 FR 30253). From 1983 to 1996, NPS incrementally revised the national regulations to progressively expand jurisdiction to non-federally owned land, as well as state waters, by changing the definitions of “boundaries,” “legislative jurisdiction,” and “park areas.” Thereby NPS asserted national regulations preempted activities otherwise allowed in Alaska park units because the allowances were not explicitly authorized in the Alaska part 13 regulations. This is in part how NPS justified applying its hovercraft ban on a State-owned waterway. In order to fully comply with the Court’s decisions in Sturgeon, consistent with the preamble in the proposed rule, and to reflect NPS’s stated intent in prior rulemaking, we propose: 
  • Revise 36 CFR 13.2(a) to replace the term “supplement” with “supersede.”
  • Confirm the Alaska exemption applies to other 36 CFR parts 1-9 regulations, e.g., the final NPS rule (81 FR 77973) on November 4, 2016, for part 9B Non-federal Oil and Gas Rights committed to reconsider the Alaska exemption after a final Sturgeon decision.

We support the proposed rule and request the additional suggested modifications to reduce any ambiguity about NPS authorities, consistent with the Supreme Court decision. While the Sturgeon litigation was triggered by NPS enforcement activities on one state waterway in one park unit, the Supreme Court decision clarifies that ANILCA 103(c) limits federal authorities to federally owned lands in all Alaska conservation system units. 


cc:  U.S. Senator Lisa Murkowski
       U.S. Senator Dan Sullivan
       Congressman Don Young
       Governor Mike Dunleavy
       John Sturgeon