A Constitutional Right to Hovercraft?

“Raisins are not wild animals even when they are dancing,” Michael McConnell told the U.S. Supreme Court last term, thereby winning the first annual Epps Award for Coolest Argument Line of the term. I am hoping that this year’s winner will be: “When hovercrafts are outlawed, only outlaws will have hovercrafts.”

McConnell, a former federal judge and current Stanford professor, was challenging a federal agricultural program that required growers to turn a portion of each crop over to the government. (He won.) Hovercrafts are the issue in Sturgeon v. Masica, which asks whether the federal government can keep John Sturgeon, a 75-year-old Alaska outdoorsman, from using his personal hovercraft to stalk the wily moose in the wilds of the Yukon-Charley Rivers National Preserve. The Court’s cert. grant on October 1 was greeted with some confusion. The question is whether, in some way not readily discernible, the case is a stalking moose for an attempt to cut back on the power of the federal government to manage lands entrusted by statute to its supervision.

In its brief opposing a grant, the federal government described the case in soothing tones. “The question whether hovercraft may be navigated on navigable waters within national parks’ boundaries,” the Solicitor General wrote, “is not in itself one of surpassing significance.” Indeed, it says, the rules are “far from burdensome,” adding that the state of Alaska is “unable to identify any way in which the regulations either burden its activities or conflict with its own enactments.” Alaska, in an amicus brief supporting cert., sees the principle behind the case, by contrast, as a matter of life and death: “What is at stake here for Alaska,” it says, “is not just a different view . . . about permissible weekend recreation or the best method of routing tourists through national parks. . . . [U]nencumbered access to Alaska’s waters and meaningful use of Alaska’s natural resources is necessary to sustain life in much of rural Alaska.”

The moose hunt itself, of course, is of surpassing importance to Sturgeon, if to no one else. In September 2007, he navigated his personal hovercraft (his lawyer says it was “very small”) up the Nation River in the Yukon-Charley. A hovercraft travels over land or water by directing a high-speed stream of air downward; the “ground effect” of the air keeps it aloft without touching the ground. Hovercraft can be very useful for such things as wilderness rescue—they can go almost anywhere.

Apparently engine trouble developed. Sturgeon landed the craft on a sandbar and began to tinker with the engine. Two strangers approached. After half an hour’s conversation, they identified themselves as employees of the National Park Service. Moose hunting (with a license) was no problem—all that is needed is a state hunting license. But NPS regulations forbid the use of hovercraft in any parks. (In 1983, the NPS found that allowing hovercraft into the parks “would introduce a mechanical mode of transportation into locations where the intrusion of motorized equipment by sight or sound is generally inappropriate.”)

The park-service staffers told Sturgeon he could not even use the hovercraft to exit the park; he had to have it towed along the river. With the craft grounded, he was unable to take part in his annual moose hunt—though the Alaska Dispatch reported in 2013 that stronger-than-usual rains had allowed him to go back up the river by boat. (He got a moose that year, after all.)

Sturgeon is not challenging the nationwide park-service rule. But he was hovering not over federal land but over state land managed by the Park Service, within the Yukon-Charlie. The reason for this arrangement has to do with the strange and special land that is Alaska—covering an area larger than France and home to about as many people as Charlotte, North Carolina, For nearly 100 years, Alaska was a U.S. territory. The federal land in it was subject to claims by the dozens of Alaska Native tribes and villages who have lived there for thousands of years. (Alaska has 21 official languages—English, plus 20 spoken by its original owners.)

In 1971, Congress constructed a settlement with the Native peoples, guaranteeing land—much of it rich in natural resources—to 13 regional Alaska Native Corporations and more than 200 Native village corporations. The settlement legislation also ordered the Interior Department to set aside 100 million acres of land (more than half the size of Texas) as a protected federal reserve. In 1980, Congress ratified the Department’s land plan in the Alaska National Interest Land Conservation Act (ANILCA), which withdrew the federal law from development and also set up conservation districts—including some on state and Native lands—for the feds to manage. Recreational use, hunting, fishing, and Native subsistence living are allowed within these districts.

Section 103(c) of the statute sets out the limits of federal authority over state and Native lands in a district:

Only those lands within the boundaries of any conservation system unit which are public lands (as such term is defined in this Act) shall be deemed to be included as a portion of such unit. No lands which, before, on, or after the date of enactment of this Act, 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.

And here’s where the dispute begins. Sturgeon—and the state of Alaska—argue that this language means that state lands are exempt from all National Park Service regulations. The government argues that the words “applicable solely to public lands” exempt only NPS regulations drawn up solely for one specific conservation unit. A National Park or Preserve area that includes state or Native land would still be governed by the general regulations for National Parks; but if the Service decides to regulate that specific parcel, the state and Native lands are exempt from those local regulations.

In the years after ANILCA was passed, the federal government agreed with the state’s interpretation—general park rules didn’t apply; but in 1996, the Service conducted a formal process to change the interpretation of the rule. After notice and comment by everyone involved, it adopted its current interpretation, and courts have upheld that reading. When Sturgeon came before the Ninth Circuit, a panel unanimously held that the statute “unambiguously” supports the NPS.

Americans in the East often underestimate how emotional the issue of public lands can be to those in the West. As Alaska points out in its amicus brief, only 4 percent of the total area east of the Mississippi is federal land (where seven of the nine Justices were born); in the 11 contiguous Western states, the overall figure is 47 percent. In Alaska, 61 percent of the state belongs to the federal government. (Alaska isn’t even the champion; the feds own 66.5 percent of Utah.)

Many Westerners believe that this land ought to belong to them, to be used without interference from Washington. Conservatives intuitively sympathize with the locals. That ideological predisposition may be behind the Court’s decision to hear this case, which land-use experts regard as puzzling. “I was very surprised that the Court thought there was anything here of importance,” John Leshy of Hastings College of the Law, a former solicitor of the Interior Department in the Carter administration, said in an interview last week. “It has no legs.” Any result will have an impact only in Alaska, Leshy noted, because it hinges on an interpretation of ANILCA, which applies only there. Finding a constitutional issue—one that would in some way affect federal authority elsewhere in the West—would require a stretch far beyond the facts and the briefing.

The Court, however, can do anything it wants, and some of the justices may be seeking a chance to make a statement about federal management of Western lands—an issue that is hovering in the background.