RDC letter regarding Navigable Waters

April 10, 2019

The Honorable Michael J. Dunleavy Alaska State Capitol
Juneau, AK 99801

Re: Sturgeon v Frost No. 17-949

Dear Governor Dunleavy:

The Resource Development Council for Alaska, Inc. (RDC) is writing to respectfully request your office to contact the Director of the National Park Service (NPS) and the Acting Secretary of the Interior to request the Supreme Court's decision in Sturgeon v. Frost be implemented as quickly as possible through changes to NPS regulations. Subsequently, if NPS believes specific activities will have a detriment to Park lands, then the agency should proceed with appropriate actions through other law to protect those lands. Otherwise, their lack of jurisdiction in Alaska over lands and waters that are not federally-owned needs to be expeditiously corrected in the regulations.

RDC is a statewide business association comprised of individuals and companies from Alaska’s oil and gas, mining, forest products, tourism, and fisheries 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.

In Sturgeon v Frost, the U.S. Supreme Court ruled in a unanimous decision that NPS regulations in Alaska only apply to federally-owned lands. Adopted in 1980, Alaska National Interest Lands Conservation Act (ANILCA) Section 103(c) limited the application of conservation unit regulations to federal lands. The NPS changed its national regulations in 1996 to extend authority over submerged lands and navigable waters "regardless of ownership.” After a decade of requesting NPS revise the 1996 regulations to exempt Alaska in order to be consistent with ANILCA Section 103(c), the State filed a Petition for Rulemaking in 2010, requesting regulation changes to repeal the NPS assertion of authority over state waterways. The Petition was eventually rejected. John Sturgeon similarly petitioned the Secretary to amend the same regulations and was rejected. Over a decade and a million dollars later, the Supreme Court agreed with Sturgeon that the regulations in Alaska apply only to federally-owned land.

After two decades of NPS asserting the illegal expansion of authority over state waterways, RDC is concerned that the NPS may need encouragement to make immediate corrections to their regulations at 36 CFR 1.2(a)(3) and 36 CFR 13.2 to exempt Alaska. As long as the 1996 regulations are on the books as applicable in Alaska, there remains a source of concern and confusion about what NPS regulations apply to transportation and other public activities in State waterways.

We appreciate your efforts to see that the federal government fully complies with the Supreme Court’s ruling.