The United States of Alaska: How Regulatory Overreach Puts Private Lands in National Parks at Risk

Congress passed the Alaska National Interest Lands Conservation Act (“ANILCA”) (16 U.S.C. § 3101 et seq.; 43 U.S.C. § 1631) in 1980, converting 104 million acres of land in Alaska into national parks and wildlife preserves.[1] While some have praised ANILCA for its efforts to aid conservation in the state,[2] ANILCA has been abused by government agencies to take private land in the name of land conservation—not just in Alaska, but nationwide. Consequently, many private landowners have been left without recourse beyond a Takings claim. An analysis of this phenomenon first requires an understanding of ANILCA and the powers it was intended to grant to the Department of Interior (“DOI”). Next, a review of the circuit court decisions interpreting the statute will show how ANICLA has been misread to extend its effect beyond the borders of Alaska. To check such tremendous regulatory abuse across the country, the United States Supreme Court should rule that ANILCA’s power does not extend beyond Alaska, thereby resolving a current circuit split to the contrary.

1. ANILCA’s Power

After ANILCA set aside millions of acres for national parks, forests, and preserves,[3] land owned by the State, Native American groups, and private citizens became surrounded “inholdings.”[4] These inholdings were exempt from regulation by the Department of Interior.[5] Additionally, the ANILCA statute required that landowners be granted “adequate and feasible access” to their inholdings.[6] In this context, adequate and feasible access referred to a route or method “reasonably necessary and economically practicable.”[7]  Nevertheless, DOI still possessed significant regulatory power over inholding access routes insofar as it was charged to “protect the natural and other values of such lands.”[8] This power, of course, extended to the DOI’s subordinate agencies, e.g., the U.S. Forest Service or the National Park Service.

But how far does this regulatory power extend? At face value, ANILCA appears designed to protect the millions of acres in Alaska that Congress deemed necessary to preserve.[9] It would seem to strike a careful balance between the public interest in preservation and the right of private owners to access their land.[10] Indeed, one would think that, given ANILCA’s name, its application would ostensibly end at the borders of Alaska. Many of the provisions in ANILCA refer directly to the protection of native Alaskan subsistence.[11] Despite this clear language, some circuit courts have disagreed with this limited interpretation of the statute. Through their opinions, they have empowered DOI and its subagencies to regulate the access use of private land in or near national parks, forests, and preserves across the country.

2. Uncertainty Leads to Overreach

The uncertainty in ANILCA centers around an unlikely conflict between the phrase “public lands” and the phrase “National Forest System.” The statute requires DOI to “provide access to nonfederally owned land within the boundaries of the National Forest System,” potentially implying a national application.[12] Notwithstanding this language, the following subsection requires the government to allow access to inholdings “surrounded by public lands,” which—by ANILCA’s own definitions—is restricted to lands within Alaska.[13] That ambiguity compounds when considering other references to public lands, including the provision assuring “adequate and feasible access” to inholdings within “public lands.”[14] This comparison has led to two questions: does ANILCA extend to lands outside of Alaska; and if so, does it preempt state easement law? The Supreme Court has addressed ANILCA in three instances but has not touched ANILCA’s application outside of Alaska or its impact on preemption.[15] Without binding precedent on either of the two issues, circuit courts remain split.

The two courts that have decided that ANILCA applies outside its namesake state include the Ninth and Tenth circuit courts of appeals. Beginning with Adams v. United States, the Ninth Circuit Court of Appeals relied on ANILCA’s reference to the National Forest System to conclude that a national application would align with Congress’ intention for private landowners to have a right to easements subject to a previous forestry act, the Federal Land Policy Management Act of 1976 (“FLPMA”).[16] FLPMA established, inter alia, the Bureau of Land Management and a land use planning process to balance environmental values with efficient use of land, and also empowered DOI to regulate a myriad of regulations to effect the interests delineated in the act.[17]

The court also cited to a previous Ninth Circuit ruling from Montana Wilderness Association v. United States in which it relied on legislative history from a completely unrelated law called the Colorado Wilderness Act.[18] In drafting that act, a House and Senate Conference Committee deleted a provision “pertaining to [easements] within national forest wilderness areas in Colorado” because “similar language has already passed” in ANILCA.[19]  The Montana Wilderness Association court elevated this history as dispositive on the issue of ANILCA’s bounds without any reference to the statute’s own definition of “public lands” or legislative history.[20]

Ironically, both of the Ninth Circuit decisions were motivated to protect access to inholdings in that the court believed a national application of ANILCA would require the U.S. Forest Service to grant an easement to the plaintiffs in each case before the court.[21] As they say, good facts make for bad law. In effect, the court ruled to protect the right of individual citizens at the expense of the entire country.

Four years after Adams, the Tenth Circuit followed suit in United States v. Jenks (“Jenks I”)  while examining a citizen’s right to access his land in New Mexico. [22] The court decided that ANILCA’s reference to the National Forest System was intended to “resolve any lingering legal questions” regarding access to inholdings.[23] Additionally, the Jenks I court relied on both Adams and Montana Wilderness Association in holding that ANILCA applied nationally.[24] Once again, the court looked at the reference to the National Forest System while ignoring ANILCA’s own definitions.[25] But in contrast to the Ninth Circuit analysis, the court in Jenks I at least obliquely considered ANILCA’s legislative history.[26] Without explaining how it reached this conclusion, the court found that the legislative history of ANILCA illustrated Congress’ intent for the “access [required] under ANILCA” to be subject to the rules and regulations created by FLPMA.[27] In other words, the court reasoned that ANILCA must have been drafted in response to a statutory gap left by FLPMA, an act that affects regulations on all public lands. Therefore, ANILCA must have then been intended to apply nationally.

Not only have these same circuits held that ANILCA applies outside of the Last Frontier, but the Ninth and Tenth Circuits have also ruled that the same federal power that regulates easements preempts pre-existing easements.[28] In other words, according to just two Circuits, ANILCA allows the Federal Government to impose “reasonable regulations” on all easements in the entire 193 million acres of the National Forest System, regardless of whether such easements existed before ANILCA was ever passed.

The only federal appellate court to reach the opposite conclusion was the Fourth Circuit in United States v. Srnsky.[29]  It explained the dilemma found in the provision’s reference to both public lands and the National Forest System and acknowledged its sister circuits that answered affirmatively. Ultimately, the court rejected the conclusion that the law applies nationally.[30] To be sure, the Fourth Circuit did not conclusively hold that ANILCA does not apply outside Alaska, but rather concluded that its geographic scope was not at issue.[31] The court only reached that conclusion because it also concluded that ANILCA could not preempt state law even if it did apply nationally. First, the court reasoned that ANILCA lacked any intent to preempt state law.[32] Moreover, it interpreted ANILCA’s provision requiring inholding access subject to federal regulations as applicable to only those private citizens who did not already have access to their inholdings under state law.[33] When ANILCA requires access to inholdings, “provided that such owner comply with the rules and regulations . . .” the word “such” limits those regulations, the court reasoned, to those without an inholding already.[34] Following this reasoning, if ANILCA only applies to those without an inholding, it could not conflict with any state law regarding the access to inholdings.

While the circuits have split on whether ANILCA applies nationally and its effect on state law easements, the Eighth Circuit has remained silent on the subject. How it would rule on the matter could impact millions of acres of forestry and all those who own inholdings within. Perhaps most importantly, the Supreme Court has yet to address the issue.

3. The Supreme Court Needs to Correct This Overreach

Only three cases before the Supreme Court have addressed ANILCA, all of which involved disputes in Alaska and thus did not address the extent of ANILCA’s geographic scope. The first time ANILCA made it to the Supreme Court was in Amoco Production Co. v. Village of Gambell.[35] There, the issue before the Court was whether ANILCA’s provisions regarding the protection of native Alaskan subsistence applied to the Outer Continental Shelf.[36] Accordingly, the Court never addressed the extent of ANILCA’s scope or its effect on preexisting easements. The next case, Sturgeon v. Frost (“Sturgeon I”) centered on whether the Park Service’s nationwide regulations apply to Nation River, a state-owner river in Alaska as public lands.[37] As such, the Court discussed the applicability of nationwide regulations to land in Alaska, rather than the current issue, i.e., the applicability of ANILCA. The last and most recent case out of the Supreme Court to address ANILCA was Sturgeon II, a case involving the same plaintiff with a slightly different issue: whether the Park Service could regulate the Nation River even if it was deemed non-public land.[38]

None of these cases are certain to offer any insight to how the Court would rule on ANILCA’s scope or its effect on preexisting easements. On the one hand, given the circumstances of the three cases and their limited scope, there simply has yet to be an appropriate case providing the Court with an opportunity to rule on the matter. On the other hand, because every case before the Court involving ANILCA occurred in Alaska, the Court has possibly indicated a reluctance to tackle a national application. By the time the Court decided Sturgeon II, the circuit split had already existed for a number of years. Perhaps the Court’s decision to continue focusing solely on how ANILCA applied to Alaskan land was intentional: the scope of ANILCA’s analysis should always be within Alaska. Moreover, the Sturgeon II opinion focuses repeatedly on the balance struck by ANILCA in its passage, that inholdings (in Alaska) “did not become subject to new regulation by the happenstance of ending up within a national park.”[39] This balance between federal regulation and enjoyment of non-public lands has always been discussed by the Court in the context of Alaska, further hinting that the Alaska National Interest Lands Conservation Act is designed for and applies to, Alaska.

Nevertheless, the Court’s silence damages private property within public lands, empowering government agencies to restrict, if not take, those lands while trampling on state law. The Court should end its silence and curtail this unsanctioned expansion of regulatory authority by the National Forest Service by finding that ANILCA only applies to land in Alaska.

If you need assistance pursuing litigation against the federal government or navigating the rules and regulations around inholdings, the experienced government contract attorneys at Eckland & Blando are prepared to help.

[1]           Kenneth Cooper contributed research and drafting assistance to this article.

[2]           See, e.g., Hearing on Implementation of the Alaska National Interest Lands Conservation Act of 1980, 114th Cong. 1 (2015) (“[I]n my view, [ANILCA] has been a tremendous success.”) (statement of Sen. Maria Cantwell, Ranking Member, S. Comm. on Energy & Nat’l Res.)

[3]           16 U.S.C. §§ 410hh, 410hh-1.

[4]           Sturgeon v. Frost, 139 S.Ct. 1066, 1069 (2019) (“Sturgeon II”).

[5]           “The Service’s rules will apply exclusively to public lands (meaning federally owned lands and waters) within system units. The rules cannot apply to any non-federal properties, even if a map would show they are within such a unit’s boundaries. Geographic inholdings thus become regulatory outholdings, impervious to the Service’s ordinary authority.” Id. at 1082.

[6]           16 U.S.C. § 3170(b); see also 16 U.S.C. §§ 3169, 3210.

[7]           43 C.F.R. § 36.10.

[8]           16 U.S.C. §§ 3170(b), 3210(a).

[9]           16 U.S.C. § 3101 (“In order to preserve . . . certain lands and waters in the State of Alaska . . . .”); 16 U.S.C. § 3102 (“The term ‘public lands’ means land situated in Alaska . . . .”).

[10]         16 U.S.C. § 3101.

[11]         16 U.S.C. Ch. 51, Subch. II.

[12]         16 U.S.C. § 3210(a) (emphasis added).

[13]         16 U.S.C. §§ 3210(b) (emphasis added), 3102(3).

[14]         16 U.S.C. § 3170.

[15]         Sturgeon II, 139 S.Ct. at 1069; Sturgeon v. Frost, 577 U.S. 424, 428 (2016) (“Sturgeon I”); Amoco Production Co. v. Village of Gambell, 480 U.S. 531 (1987).

[16]         Adams, 3 F.3d at 1258; 43 U.S.C. Ch. 35, § 1701 et seq.

[17]         See 43 U.S.C. § 1702.

[18]         Montana Wilderness Ass’n, 655 F.2d 951, 957 (9th Cir. 1981).

[19]         Id. (citing) H.R. Rep.No. 1521, 96th Cong. 2d Sess., 126 Cong.Rec. H11687 (1980)

[20]         Id.

[21]         Adams, 3 F.3d at 1259 (“[ANILCA] commands the Secretary of Agriculture to provide access to secure the owner’s reasonable use and enjoyment.”); Montana Wilderness Ass’n, 655 F.2d at 957.

[22]         22 F.3d 1513 (10th Cir. 1994).

[23]         Id. at 1516.

[24]         Id.

[25]         Id.

[26]         Id. at 1517.

[27]         Id. at 1516.

[28]         Adams, 3 F.3d at 1259; United States v. Jenks, 22 F.3d 1513 (10th Cir. 1994) (“Jenks I”); but see Burlison v. United States, 533 F.3d 419, at 437–38 (6th Cir. 2008) (acknowledging a case from the Fourth Circuit holding that ANILCA does not preempt state law easements).

[29]         271 F.3d 595, 601 (4th Cir. 2001).

[30]         Id.

[31]         Id. at 603.

[32]         Id.

[33]         Id.

[34]         Id.

[35]         480 U.S. 531 (1987).

[36]         Id. at 535, 544.

[37]         577 U.S. 424, 428 (2016).

[38]         139 S.Ct. 1066, 1078–80 (2019).

[39]         Id. at 1087.