Alaska stakes first riverbed claim; more to be filed

by The Associated Press

Alaska has become the first state in the nation to claim a riverbed under a new process designed by the Bush administration to give up federal interests in some roads and waterways. Alaska claimed about 500 miles of the Black River, from its headwaters near the Canadian border to its mouth on the Porcupine River just upstream of Fort Yukon. Submerged lands under navigable waters belong to states, according to federal law, and the state argues that the Black River and several tributaries are navigable.

So it has asked the U.S. Bureau of Land Management for a “recordable disclaimer of interest” on the river. That's a statement from the federal government that it has no stake in a property.

The Bush administration said in December that it would encourage applications for such disclaimers.

Environmental groups accuse the administration of endangering existing and future wilderness areas by using the disclaimers to recognize road rights of way in Alaska and other Western states.

But the disclaimer process also can be used by states to claim navigable waters. So Alaska jumped at the opportunity, asking for the Black River disclaimer on Feb. 14, according to Michael Haskins, BLM's land and realty branch chief in Anchorage.

Feds have not disputed claim in past

There is no mining in the river, and a disclaimer won't affect the authority of federal and state fish and wildlife managers, according to Tina Cunning, a co-chair of a state agency working group on navigable waters.

Nevertheless, the state believes the Black River claim and others like it are “crucially important” to establish access rights for Alaska residents, said Cunning, who also serves as the Department of Fish and Game's state-federal program manager in Anchorage.

“We have these thousands and thousands of rivers and lakes in the state that we thought we got title to at statehood, but that we have had to go individually to court on,” Cunning said.

The state has secured title to just 13 such waters since 1959, she said. The Black, Kandik and Nation rivers were the subject of one such case in the 1990s. A state-federal working group under former Gov. Walter Hickel and the first Bush administration tried to resolve the disputes out of court.

The group selected the three rivers as test cases, out of a list of about 200 clearly navigable water bodies. The federal agencies dropped out during the Clinton administration. So the state sued.

It won on the Kandik and Nation rivers, which flow southwestward into the Yukon between Circle and Eagle. But the federal government adopted a novel legal strategy on the Black River. It simply refused to say whether it had an interest.

Judge unable to rule

Haskins said BLM refused to take a position because it was worried that the state would swamp it with such cases, which in turn would take resources away from efforts to transfer other federal land to Native corporations and the state itself.

Congress promised the state about 100 million acres in 1958 and Native corporations about 44 million acres in 1971. But BLM is still working to convey the land.

“If, in fact, the state could turn around and file on all these other rivers, it could really throw us in terms of our workload,” Haskins said.

Refusing to take a position didn't do much to clear up who owns what in Alaska, he acknowledged.

“That's where this 'recordable disclaimer of interest' process is going to be the next best thing,” he said. “It's going to save the federal government and state a lot of time and money in the courts.”

Haskins said BLM is charging the state a $7,400 processing fee. That figure will probably come down on future filings, he said.

Cunning said the state plans to file more claims shortly.

BLM published notice of the state's claim in the May 8 Federal Register. It will take written comment for 90 days after that date and then make a decision. No public hearings will be held.