Sturgeon v. Masica

• Decision Date: 06 October 2014
• Docket Number: 13–36166.,Nos. 13–36165,s. 13–36165
• Citation: 768 F.3d 1066
• Parties: John STURGEON, Plaintiff–Appellant, State of Alaska, Plaintiff–Intervenor, v. Sue MASICA, in her official capacity as Alaska Regional Director of the National Park Service ; Greg Dudgeon; Andee Sears; Sally Jewell, Secretary of the Interior; Jonathan Jarvis, in his official capacity as Director of the National Park Service ; The National Park Service ; The United States Department of the Interior, Defendants–Appellees. State of Alaska, Intervenor–Plaintiff–Appellant, and John Sturgeon, Plaintiff, v. Sue Masica, in her official capacity as Alaska Regional Director of the National Park Service ; Greg Dudgeon; Andee Sears; Sally Jewell, Secretary of the Interior; Jonathan Jarvis, in his official capacity as Director of the National Park Service ; The National Park Service ; The United States Department of the Interior, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

768 F.3d 1066

John STURGEON, Plaintiff–Appellant

State of Alaska, Plaintiff–Intervenor

v.Sue MASICA, in her official capacity as Alaska Regional Director of the National Park Service ;

Greg Dudgeon;

Andee Sears;

Sally Jewell, Secretary of the Interior;

Jonathan Jarvis, in his official capacity as Director of the National Park Service ;

The National Park Service ;

The United States Department of the Interior, Defendants–Appellees.

State of Alaska, Intervenor–Plaintiff–Appellant

and

John Sturgeon, Plaintiff

v.Sue Masica, in her official capacity as Alaska Regional Director of the National Park Service ;

Greg Dudgeon;

Andee Sears;

Sally Jewell, Secretary of the Interior;

Jonathan Jarvis, in his official capacity as Director of the National Park Service ;

The National Park Service ;

The United States Department of the Interior, Defendants–Appellees.

Nos. 13–36165

13–36166.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 12, 2014.

Filed Oct. 6, 2014.

Matthew T. Findley (argued) and Eva R. Gardner, Ashburn & Mason, P.C., Anchorage, AK; Douglas Pope, Pope & Katcher, Anchorage, AK, for Plaintiff–Appellant John Sturgeon.

Jeanie Ann Nelson (argued), Assistant Attorney General, State of Alaska, Department of Law, Anchorage, AK, for Intervenor–Plaintiff–Appellant, State of Alaska.

Elizabeth Ann Peterson (argued), Andrew C. Mergen, David C. Shilton, Dean K. Dunsmore, Vivian H.W. Wang, and Sam Hirsch, Acting Assistant Attorney General, United States Department of Justice, Environment and Natural Resources Division, Washington, D.C.; Jason Waanders, United States Department of the Interior, Office of the Solicitor, Philadelphia, PA; F. Christopher Bockmon, United States Department of the Interior, Office of the Solicitor, Anchorage, AK, for Defendants–Appellees.

Jahna M. Lindemuth and Katherine Demarest, Dorsey & Whitney LLP, Anchorage, AK, for Amicus Curiae Cook Inlet Region, Inc., Arctic Slope Regional Corp., Koniag, Inc., Chickaloon Moose Creek Native Association, Inc., Knikatnu, Inc., Ninilchik Natives Association, Inc., Salamatof Native Association, Inc., Seldovia Native Association, Inc., and Tyonek Native Corp.

James D. Linxwiler and Josh Van Gorkom, Guess & Rudd P.C., Anchorage, AK, for Amicus Curiae native corporations.

Katherine Strong and Valerie Brown, Trustees for Alaska, Anchorage, AK; Thomas E. Meacham, Anchorage, AK, for Amicus Curiae National Parks Conservation Association.

Appeal from the United States District Court for the District of Alaska, H. Russel Holland, Senior District Judge, Presiding. D.C. Nos. 3:11–cv–00183–HRH, 3:11–cv–00183–HRH.

Before: JEROME FARRIS, DOROTHY W. NELSON, and JACQUELINE H. NGUYEN, Circuit Judges.

OPINION

NGUYEN, Circuit Judge:

John Sturgeon (“Sturgeon”) challenges the National Park Service's (“NPS”) enforcement of a regulation banning the operation of hovercrafts on the Nation River, part of which falls within the Yukon–Charley Rivers National Preserve. The ban prevented Sturgeon from using his personal hovercraft on his moose hunting trips on the Nation River. The State of Alaska intervened, challenging NPS's authority to require its researchers to obtain a permit before engaging in studies of chum and sockeye salmon on the Alagnak River, part of which falls within the boundaries of the Katmai National Park and Preserve.

Sturgeon and Alaska present the same legal argument: § 103(c) of the Alaska National Interest Lands Conservation Act (“ANILCA”) precludes NPS from regulating activities on state-owned lands and navigable waters that fall within the boundaries of National Park System units in Alaska. The district court granted summary judgment in favor of the federal appellees. Because we find that Sturgeon's interpretation of § 103(c) is foreclosed by the plain text of the statute, we affirm as to Sturgeon. We hold that Alaska lacks standing to bring this challenge, and thus vacate and remand with instructions that Alaska's case be dismissed.

I.

The facts are straightforward and largely undisputed. Since 1971, Sturgeon has hunted moose on an annual basis on the Nation River.¹ The lower six miles of the Nation River lie within the Yukon–Charley Rivers National Preserve (“Yukon–Charley”), which is a unit of the National Park System. In 1990, Sturgeon purchased a small, personal hovercraft, which he used on his hunting excursions. In September 2007, while repairing his hovercraft on a gravel bar adjoining the river, Sturgeon was approached by three NPS law enforcement employees. They informed him that NPS regulations prohibited the operation of hovercrafts within the Yukon–Charley and issued him a verbal warning. Sturgeon protested that the NPS regulations were inapplicable because he was operating his hovercraft on a state-owned navigable river. Sturgeon contacted his attorney via satellite phone, who in turn contacted Andee Sears, a Regional Law Enforcement Specialist with NPS. Sears told Sturgeon's attorney that the hovercraft must be removed from the Yukon–Charley. Sturgeon complied.

Later, Sturgeon followed up with Sears over the phone and met with him in Anchorage. Sears advised Sturgeon that even though Alaska might own the submerged land beneath the river, the hovercraft ban was nonetheless in force within the boundaries of the Yukon–Charley. Sears warned Sturgeon that he risked criminal liability if he operated his hovercraft within the Yukon–Charley. In response to these warnings, Sturgeon refrained from using his hovercraft during the 2008 to 2010 moose hunting seasons and has not been able to hunt on the portions of the Nation River that fall within the boundaries of the Yukon–Charley.

Although Sturgeon sent a letter to then-Secretary of the Interior, Ken Salazar, petitioning for repeal or amendment of the NPS regulations restricting his access to navigable waters located within national park boundaries, he did not receive a response. He then sued in federal district court, seeking an order declaring that NPS's regulations violated ANILCA, as applied to him on state-owned lands and waters, and enjoining the federal defendants from enforcing these regulations.

Alaska intervened, raising the same argument that the application and enforcement of NPS regulations on state-owned lands and waters violated ANILCA. Specifically, Alaska challenged NPS regulations that required employees of the Alaska Department of Fish and Game to obtain a scientific research and collecting permit before engaging in genetic sampling of chum and sockeye salmon on the Alagnak River. These regulations purportedly harmed Alaska “in the form of increased staff time and expense in complying with NPS procedures and in the form of delays in implementing the project.” Alaska further argued that NPS's actions both interfered with its sovereign right to manage and regulate its lands and waters and chilled its citizens' ability to enjoy the rights and benefits flowing from its management of state resources.

On summary judgment, the district court ruled in favor of the federal appellees. Sturgeon v. Masica, No. 3:11–CV–0183–HRH, 2013 WL 5888230, at *9 (D.Alaska Oct. 30, 2013). The district court found that Sturgeon's and Alaska's interpretation of ANILCA § 103(c) lacks support in the plain language of the statute. Id. at *8–*9. This appeal followed.

II.

We review questions of law resolved on summary judgment de novo, and the district court's factual findings for clear error. Al Haramain Islamic Found., Inc. v. U.S. Dep't of Treasury, 686 F.3d 965, 976 (9th Cir.2012).

III.

As an initial matter, the federal appellees contend that we lack jurisdiction over this appeal because Sturgeon and Alaska have failed to establish standing. Even though the federal appellees did not present these arguments to the district court below, they may nonetheless do so for the first time on appeal. The constitutional requirements for standing under Article III are jurisdictional, cannot be waived by any party, and may be considered sua sponte. City of Los Angeles v. Cnty. of Kern, 581 F.3d 841, 845 (9th Cir.2009). The oft-repeated “irreducible constitutional minimum of standing contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “First, the plaintiff must have suffered an ‘injury in fact,’ ” which is both concrete and particularized, as well as actual or imminent. Id. “Second, there must be a causal connection between the injury and the conduct complained of,” meaning that the injury must be “fairly traceable to the challenged action of the defendant.” Id. (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41–42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) (quotation mark and alterations omitted)). Third, it must be likely that a favorable decision would redress the injury identified. Id. at 561, 112 S.Ct. 2130.

Apart from these constitutional concerns, “there exists a body of ‘judicially self-imposed limits on the exercise of federal jurisdiction’ ” that forms the prudential standing doctrine. Cnty. of Kern, 581 F.3d at 845 (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) ); see also Sprint Commc'ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 289–90, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008). Because these considerations are nonconstitutional in nature, they may be deemed waived if not previously raised before the district court. Cnty. of Kern, 581 F.3d at 845.

A.

We find that Sturgeon has established standing. The federal appellees argue that Sturgeon has failed to show probable or imminent enforcement of the NPS regulations to meet the first requirement of an injury-in-fact. The federal appellees' view, however, cannot be reconciled with the Supreme Court's recent decision in Susan B. Anthony List v. Driehaus, –––U.S. ––––, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014), where the Court emphasized that threatened enforcement actions may suffice to create Article III injuries. “When an individual is subject to such a threat, an actual...