National Park Service Jurisdiction in Alaska
| Published date | 30 April 2020 |
| Citation | 85 FR 23935 |
| Record Number | 2020-09261 |
| Section | Proposed rules |
| Court | National Park Service |
Federal Register, Volume 85 Issue 84 (Thursday, April 30, 2020)
[Federal Register Volume 85, Number 84 (Thursday, April 30, 2020)]
[Proposed Rules]
[Pages 23935-23938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09261]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Parts 1 and 13
[NPS-AKRO-29973; PPAKAKROZ5, PPMPRLE1Y.L00000]
RIN 1024-AE63
National Park Service Jurisdiction in Alaska
AGENCY: National Park Service, Interior.
ACTION: Proposed rule.
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SUMMARY: This rule would revise National Park Service regulations to
comply with the decision of the U.S. Supreme Court in Sturgeon v.
Frost. In the Sturgeon decision, the Court held that National Park
Service regulations apply exclusively to public lands (meaning
federally owned lands and waters) within the external boundaries of
National Park System units in Alaska. Lands which are not federally
owned, including submerged lands under navigable waters, are not part
of the unit subject to the National Park Service's ordinary regulatory
authority.
DATES: Comments on the proposed rule must be received by June 29, 2020.
ADDRESSES: You may submit comments, identified by Regulation Identifier
Number (RIN) 1024-AE63, by either of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov and search for ``1024-AE63''. Follow the
instructions for submitting comments.
(2) By hard copy: Mail or hand deliver to: National Park Service,
Regional Director, Alaska Regional Office, 240 West 5th Ave.,
Anchorage, AK 99501.
Instructions: Comments will not be accepted by fax, email, or in
any way other than those specified above. All submissions received must
include the words ``National Park Service'' or ``NPS'' and must include
the RIN 1024-AE63 for this rulemaking. Bulk comments in any format
(hard copy or electronic) submitted on behalf of others will not be
accepted. Comments received may be posted without change to
www.regulations.gov, including any personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to www.regulations.gov and search for ``1024-
AE63''.
FOR FURTHER INFORMATION CONTACT: Donald Striker, Acting Regional
Director, Alaska Regional Office, 240 West 5th Ave., Anchorage, AK
99501. Phone (907) 644-3510. Email: [email protected].
SUPPLEMENTARY INFORMATION:
Background
Sturgeon v. Frost
In March 2019, the U.S. Supreme Court in Sturgeon v. Frost (139 S.
Ct. 1066, March 26, 2019) unanimously determined the National Park
Service's (NPS) ordinary regulatory authority over National Park System
units in Alaska only applies to federally owned ``public lands'' (as
defined in section 102 of the Alaska National Interest Lands
Conservation Act, 16 U.S.C. 3102)--and not to State, Native, or private
lands--irrespective of unit boundaries on a map. Lands not owned by the
federal government, including submerged lands beneath navigable waters,
are not deemed to be a part of the unit (slip op. 17). More
specifically, the Court held that the NPS could not enforce a System-
wide regulation prohibiting the operation of a hovercraft on part of
the Nation River that flows through the Yukon-Charley Rivers National
Preserve (Preserve). A brief summary of the factual background and
Court opinion follow, as they are critical to understanding the purpose
of this proposed rule.
The Preserve is a conservation system unit established by the 1980
Alaska National Interest Lands Conservation Act (ANILCA) and
administered by the NPS as a unit of the National Park System. The
State of Alaska owns the submerged lands underlying the Nation River, a
navigable waterway. In late 2007, John Sturgeon was using his
hovercraft on the portion of the Nation River that passes through the
Preserve. NPS law enforcement officers encountered him and informed him
such use was prohibited within the boundaries of the Preserve under 36
CFR 2.17(e), which states that ``[t]he operation or use of a hovercraft
is prohibited.'' According to NPS regulations at 36 CFR 1.2(a)(3), this
rule applies to persons within ``[w]aters subject to the jurisdiction
of the United States located within the boundaries of the National Park
System, including navigable waters'' without any regard to ownership of
the submerged lands. See 54 U.S.C. 100751(b) (authorizing the Secretary
of the Interior to regulate ``boating and other activities on or
relating to water located within System units'').
Mr. Sturgeon disputed that NPS regulations could apply to his
activities on the Nation River, arguing that the river is not public
land and is therefore exempt from NPS rules pursuant to ANILCA section
103(c) (16 U.S.C. 3103(c)), which provides that only the public lands
within the boundaries of a System unit are part of the unit, and that
State-owned lands are exempt from NPS regulations, including the
hovercraft rule. Mr. Sturgeon appealed his case through the federal
court system.
In its March 2019 opinion, the Court agreed with Mr. Sturgeon. The
questions before the Court were: (1) Whether the Nation River in the
Preserve is public land for the purposes of ANILCA, making it
indisputably subject to NPS regulation; and (2) if not, whether NPS has
an alternative source of authority to regulate Mr. Sturgeon's
activities on that portion of the Nation River. The Court answered
``no'' to both questions.
Resolution turned upon several definitions in ANILCA section 102
and the aforementioned section 103(c). Under ANILCA, 16 U.S.C. 3102,
``land'' means ``lands, waters, and interests therein''; ``Federal
land'' means ``lands the title to which is in the United States''; and
``public lands'' are ``Federal lands,'' subject to several statutory
exclusions that were not at issue in the Sturgeon case. As such, the
Court found ``public lands'' are ``most but not quite all [lands,
waters, and interests therein] that the Federal Government owns'' (slip
op. 10). The Court held that the Nation River did not meet the
definition of ``public land'' because: (1) ``running waters cannot be
owned''; (2) ``Alaska, not the United States, has title to the lands
beneath the Nation River''; and, (3) federal reserved water rights
(``not the type of property interests to which title can be held'') do
not ``give the Government plenary authority over the waterway'' (slip
op 12-14).
Regarding the second question, the Court found no alternative basis
to support applying NPS regulations to Mr. Sturgeon's activities on the
Nation River, concluding that, pursuant to ANILCA section 103(c),
``only the federal property in system units is subject to the Service's
authority'' (slip op. 19). As stated by the Court, ``non-federally
owned waters and lands inside system units (on a map) are declared
outside them (for the law). So those
[[Page 23936]]
areas are no longer subject to the Service's power over `System units'
and the `water located within' them'' (slip op. 18) (quoting 54 U.S.C.
100751(a), (b)).
There are four additional aspects of the Sturgeon opinion and
ANILCA that inform this rulemaking. First, by incorporating the
provisions of the Submerged Lands Act of 1953, the Alaska Statehood Act
gave the State ``title to and ownership of the lands beneath navigable
waters'' effective as of the date of Statehood. The Court recognized
that a State's title to lands beneath navigable waters brings with it
regulatory authority over public uses of those waters (slip op. 12-13).
While the specific example cited by the Court involved the State of
Alaska, the conclusion logically extends to any submerged lands owner.
Thus, in cases where the United States holds title to submerged lands
within the external boundaries of a System unit, the NPS maintains its
ordinary regulatory authority over the waters.
Second, the Court noted but expressly declined to address Ninth
Circuit precedent finding that ``public lands'' in ANILCA's subsistence
fishing provisions include navigable waters with a reserved water right
held by the federal government. The NPS participates in regulating
subsistence fisheries as part of the Federal Subsistence Management
Program, a joint effort between the Departments of the Interior and
Agriculture implementing Title VIII of ANILCA. Applicable regulations
can be found at 36 CFR part 242 and 50 CFR part 100 and are unaffected
by the Sturgeon decision.
Third, the Court acknowledged that NPS maintains its authority to
acquire lands, enter into cooperative agreements, and propose needed
regulatory action to agencies with jurisdiction over non-federal lands
(slip op. 20, 28). Cooperative agreements with the State, for example,
could stipulate that certain NPS regulations would apply to activities
on the waters and that NPS would have authority to enforce those
regulations under the terms of the agreement.
Fourth, ANILCA section 906 (o)(2) contains an administrative
exception relative to State and Native corporation land selections,
which are excluded from the definition of ``public land'' in section
102. This exemption did not feature in the Sturgeon case and would not
be affected by this rulemaking.
Proposed Rule
This rule would modify NPS regulations at 36 CFR parts 1 and 13 to
conform to the U.S. Supreme Court's decision in Sturgeon. In the
interest of making the regulations unambiguous, and in response to a
petition for rulemaking filed by the State of Alaska, the NPS is
proposing a set of targeted amendments to ensure its regulations
accurately reflect the outcome of the Sturgeon case and provide fair
notice of where regulations in 36 CFR Chapter I apply and where they do
not in System units in Alaska.
Regulations at 36 CFR 1.2 address the ``Applicability and Scope''
of regulations found in 36 CFR Chapter I, which ``provide for the
proper use, management, government, and protection of persons,
property, and natural and cultural resources within areas under the
jurisdiction of the National Park Service'' (36 CFR 1.1(a)). Section
1.2(a) identifies where the regulations apply unless otherwise stated.
In order to reflect the Court's holding in Sturgeon, the NPS proposes
to amend 36 CFR 1.2(a)(3) to add the words ``except in Alaska'' before
``without regard to the ownership of submerged lands, tidelands, or
lowlands.'' This ensures that, consistent with the Court's holding, NPS
regulations ``will apply exclusively to public lands (meaning federally
owned lands and waters) within system units'' (slip op. 19).
The NPS proposes to add a new 36 CFR 1.2(f) to clarify that, under
ANILCA, ```[o]nly the `public lands' (essentially, the federally owned
lands)'' within unit boundaries in Alaska are ```deemed' a part of that
unit,'' and non-public lands (including waters) ``may not be regulated
as part of the park'' (slip op. 16-17). As stated by the Court,
``[g]eographic inholdings thus become regulatory outholdings,
impervious to the Service's ordinary authority'' (slip op. 19). The
proposed addition states that, except as otherwise provided, the
boundaries of National Park System units in Alaska do not include non-
federally owned lands, including submerged lands, irrespective of
external unit boundaries. The definition of ``boundary'' in 36 CFR 1.4
has limited operation in Alaska, as NPS published legal descriptions
for each unit boundary in 1992 and modifications must be consistent
with ANILCA sections 103(b) and 1302(c) and (h).
NPS also proposes changes to its regulations at 36 CFR part 13,
which ``are prescribed for the proper use and management of park areas
in Alaska'' and as a ``supplement'' to general NPS regulations found
elsewhere in Chapter I (36 CFR 13.2(a), (b)). In section 13.1, ``park
areas'' is currently defined as ``lands and waters administered by the
National Park Service within the State of Alaska.'' NPS proposes to
modify this definition, and to add a definition of ``federally owned
lands'' (incorporating and relocating the description at 36 CFR
13.2(f)), to reflect ANILCA's limitations on the lands and waters that
are administered by the NPS in Alaska, as outlined in the Sturgeon
decision. As stated above, this would not affect NPS administration
under a valid cooperative agreement, which would be governed by the
terms of the agreement.
The term ``federally owned lands'' is used instead of ``public
lands'' to account for the authority granted by ANILCA section
906(o)(2) over validly selected lands, an exception to the definition
of ``public lands'' in ANILCA (16 U.S.C. 3102(3)). As before, selected
lands are not considered ``federally owned lands'' once they are
subject to a tentative approval or an interim conveyance; title has
been transferred although it is not recordable until the lands are
surveyed.
Compliance With Other Laws, Executive Orders and Department Policy
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. The OIRA has waived review of this
proposed rule and, at the final rule stage, will make a separate
decision as to whether the rule is a significant regulatory action as
defined by Executive Order 12866.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. Executive Order 13563 emphasizes
further that regulations must be based on the best available science
and that the rulemaking process must allow for public participation and
an open exchange of ideas. The NPS has developed this rule in a manner
consistent with these requirements.
[[Page 23937]]
Reducing Regulation and Controlling Regulatory Costs (Executive Order
13771)
Enabling regulations are considered deregulatory under guidance
implementing E.O. 13771 (M-17-21). This rule would clarify that
activities on lands which are not federally owned, including submerged
lands under navigable waters, are not subject to the NPS's ordinary
regulatory authority.
Regulatory Flexibility Act
This rule will not have a significant economic effect on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). The proposed rule would modify NPS
regulations at 36 CFR parts 1 and 13 to conform to the U.S. Supreme
Court's decision in Sturgeon. These proposed changes are considered
legal in nature with the intent to provide clarification to existing
regulations pertinent to the U.S. Supreme Court's decision. The costs
and benefits of a regulatory action are measured with respect to its
existing baseline conditions. Since this regulatory action is legal in
nature, changes are not anticipated compared to baseline conditions. In
addition, this action will not impose restrictions on local businesses
in the form of fees, training, record keeping, or other measures that
would increase costs. Given those findings, this proposed regulatory
action will not impose a significant economic impact on a substantial
number of small entities.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2). This rule:
(a) Does not have an annual effect on the economy of $100 million
or more.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
(c) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector. It addresses public
use of national park lands and imposes no requirements on other
agencies or governments. A statement containing the information
required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is
not required.
Takings (Executive Order 12630)
This rule does not effect a taking of private property or otherwise
have takings implications under Executive Order 12630. A takings
implication assessment is not required.
Federalism (Executive Order 13132)
Under the criteria in section 1 of Executive Order 13132, the rule
does not have sufficient federalism implications to warrant the
preparation of a Federalism summary impact statement. This rule only
affects public use of federally-administered lands. It has no outside
effects on other areas. A Federalism summary impact statement is not
required.
Civil Justice Reform (Executive Order 12988)
This rule complies with the requirements of Executive Order 12988.
This rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Tribal Consultation (Executive Order 13175 and Department Policy)
The Department of the Interior strives to strengthen its
government-to-government relationship with Tribes and Alaska Native
corporations through a commitment to consultation and recognition of
their right to self-governance and tribal sovereignty. The NPS has
evaluated this rule under the criteria in Executive Order 13175 and
under the Department's Tribal consultation policy and has determined
that consultation is not required because the rule will have no
substantial direct effect on federally recognized Tribes or Alaska
Native corporations.
Paperwork Reduction Act
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget under the Paperwork
Reduction Act is not required. The NPS may not conduct or sponsor and
you are not required to respond to a collection of information unless
it displays a currently valid OMB control number.
National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 (NEPA) is not
required because the rule is covered by a categorical exclusion. The
NPS has determined the rule is categorically excluded under 43 CFR
46.210(i) which applies to ``policies, directives, regulations, and
guidelines: that are of an administrative, financial, legal, technical,
or procedural nature; or whose environmental effects are too broad,
speculative, or conjectural to lend themselves to meaningful analysis
and will later be subject to the NEPA process, either collectively or
case-by-case.'' This rule is legal in nature. The Sturgeon decision has
governed how the NPS administers lands and waters in Alaska since it
was issued in March 2019. This rule would have no legal effect beyond
what was announced by the Court. It would revise NPS regulations to be
consistent with the decision and make no additional changes. The NPS
has determined that the rule does not involve any of the extraordinary
circumstances listed in 43 CFR 46.215 that would require further
analysis under NEPA.
Effects on the Energy Supply (Executive Order 13211)
This rule is not a significant energy action under the definition
in Executive Order 13211. A Statement of Energy Effects in not
required.
List of Subjects
36 CFR Part 1
National parks, Penalties, Reporting and recordkeeping
requirements, Signs and symbols.
36 CFR Part 13
Alaska, National Parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, the National Park Service
proposes to amend 36 CFR parts 1 and 13 as set forth below:
PART 1--GENERAL PROVISIONS
0
1. The authority citation for part 1 continues to read as follows:
Authority: 54 U.S.C. 100101, 100751, 320102.
0
2. Amend Sec. 1.2 by revising paragraph (a)(3) and adding paragraph
(f) to read as follows:
Sec. 1.2 Applicability and scope.
(a) * * *
[[Page 23938]]
(3) Waters subject to the jurisdiction of the United States located
within the boundaries of the National Park System, including navigable
waters and areas within their ordinary reach (up to the mean high water
line in places subject to the ebb and flow of the tide and up to the
ordinary high water mark in other places) and, except in Alaska,
without regard to the ownership of submerged lands, tidelands, or
lowlands;
* * * * *
(f) In Alaska, unless otherwise provided, the boundaries of the
National Park System include only federally owned lands, as defined in
36 CFR. 13.1, regardless of external unit boundaries.
PART 13--NATIONAL PARK SYSTEM UNITS IN ALASKA
0
3. The authority citation for part 13 continues to read as follows:
Authority: 16 U.S.C. 3124; 54 U.S.C. 100101, 100751, 320102;
Sec. 13.1204 also issued under Sec. 1035, Pub. L. 104-333, 110 Stat.
4240.
0
4. In Sec. 13.1, add a definition for ``Federally owned lands'' in
alphabetical order and revise the definition of ``Park areas'' to read
as follows:
Sec. 13.1 Definitions.
* * * * *
Federally owned lands means lands, waters, and interests therein
the title to which is in the United States, and does not include those
land interests tentatively approved to the State of Alaska; or conveyed
by an interim conveyance to a Native corporation.
* * * * *
Park areas means federally owned lands administered by the National
Park Service in Alaska.
* * * * *
Sec. 13.2 [Amended]
0
5. In Sec. 13.2, remove paragraph (f).
George Wallace,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2020-09261 Filed 4-29-20; 8:45 am]
BILLING CODE 4312-52-P
