Vol. 26, No.16 Week of April 18, 2021
Providing coverage of Alaska and northern Canada's oil and gas industry

Alaska DNR vs. USA

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Assertive approach to secure title on submerged lands promised at statehood

Steve Sutherlin

Petroleum News

After 62 years of federal foot dragging on clearing title to submerged lands promised to the state under the Alaska Statehood Act, Gov. Mike Dunleavy’s Unlocking Alaska Initiative seeks a path to resolution.

At stake is the right of Alaskans to ply the waters of navigable rivers and lakes, and the state’s right to manage those waters and the lands that lie beneath them.

The state is adopting a new proactive approach by unilaterally asserting management over the disputed waterways.

“In short, we will act like the owners that we are of the submerged lands under these conspicuously navigable waters that fall within ANILCA areas in the State of Alaska,” James Walker, Alaska Department of Natural Resources natural resource manager James Walker said in an April 8 presentation to the Alaska Support Industry Alliance.

Passed by Congress in 1980, ANILCA - the Alaska National Interest Lands Conservation Act - designated more than 100 million acres of federal land in Alaska as new or expanded conservation system units, CSU. Recognizing Alaska’s unique rural lifestyle, the act included language to protect traditional transportation routes on land and water.

Walker, in his role at the DNR’s Division of Mining, Land and Water, is charged with pursuing the state’s Public Access Assertion and Defense, PAAD, program, a multi-front approach to rapidly resolve submerged lands issues.

“The first way we are going to be doing and implementing this initiative is through intensified quiet title litigation against the federal government,” Walker said. “The governor’s initiative has many spokes; there are many prongs to this approach and intensified litigation is one of them.”

Governor’s announcement

Arguably the squeakiest spoke in the wheel is Dunleavy’s public announcement that the state will assert management over the submerged lands in question.

Walker said DNR Commissioner Corri Feige has notified the U.S. Bureau of Land Management of the action by letter, while Deputy Commissioner Brent Goodrum has sent letters to notify park superintendents, refuge managers and forest managers.

“Our goal is that by assertion of management hopefully the federal government will agree with us that these conspicuously navigable waters are indeed navigable, in fact, in the law the state owns the submerged lands,” Walker said. “If, however, they disagree with our management of the action, that will give us the necessary predicate pursuant to the federal Quiet Title Act to commence litigation.”

“One area where we have seen this already is in Crescent Lake in the Lake Clark National Park and Preserve,” Walker said, adding that Crescent Lake is a huge, conspicuously navigable lake of great use and enjoyment by many Alaskans, and that federal overreach there has been to the detriment of Alaskans who wish to enjoy those navigable waters.

“We started receiving permits applications from various commercial users to place mooring buoys within Crescent Lake to facilitate the landing and taking off of aircraft,” he said, “They’ve also filed permit applications to store the boats - that the park service is requiring at great cost and danger for them to bring in and take out before and after each open water season - that they store those boats for the winter months below the ordinary high water mark on the gravel that would constitute submerged state lands.”

The applications were filed with the state Division of Land and Water, and as required, with the U.S. National Park Service, Walker said. The park service commented but did not assert their ownership. “Those permit applications were thereafter adjudicated, and taken care of pursuant to state practice,” he said. “This is the example of one way that we would like our state management of submerged land to work within the CSUs.”

Sturgeon case

“We want to create this new approach, this new mindset, that if you are on state owned submerged lands you need to talk to the State of Alaska about permit requirements of authorized uses; if you are on the upland, you need to talk with the federal government regarding what permits you need and what uses you can make of these,” Walker said. “This is the balance that was created by ANILCA, this is the balance that was articulated by the United States Supreme Court not once but twice in unanimous opinions in the John Sturgeon case.”

In March 2019, the U.S. Supreme Court ruled 9-0 in favor of John Sturgeon, a moose hunter legally using a hovercraft on the Nation River in the Yukon Charley Preserve in 2007. National Park Service Rangers threatened to cite him for violating a NPS ban on using hovercraft in federal park units. Sturgeon sued, pursuing the case through the 9th Circuit Court of Appeals and finally to the Supreme Court.

DNR wants to take what it did at Crescent Lake and apply it statewide, Walker said.

“If there is infrastructure that the federal government has built - docks, that type of thing … built on state submerged lands without state authorization or permits where one is required, we want to work with them, to help them get into compliance with state law where applicable,” he said. “We also want them to encourage users of state submerged lands to contact the state regarding permitting requirements, as opposed to overreaching and attempting to permit activities that are occurring on state lands.”

The Supreme Court repeatedly said in both Sturgeon opinions that Alaska is different; Alaska is the exception to the rule, Walker said.

“We have this thing called ANILCA in Alaska, so what is good practice in the management of areas in the Lower 48 is not the management system that we use and that is lawful within the State of Alaska.”

Spreading the word

Walker said the second prong of the governor’s initiative is to advise Alaska citizens, others in state government, commercial entities and the federal government what specifically is owned by the State of Alaska within federal conservation system units.

“To that end, we are in the process of developing a layer for our official state navigable waters dataset that will identify those waters within the CSUs within the ANILCA areas that we believe are conspicuously navigable and belong to the State of Alaska,” he said. “We have been very conservative in the work that we have done; we have not gone as far upstream as we think we could prove in litigation because we want to give certainty to our citizens that if you rely upon this you are relying upon the state’s best analysis of what they would win in litigation.”

Phase one of the new layer for the dataset, which will go live April 15, includes all National Park Service areas in Alaska plus the Tongass National Forest, Walker said. Phase two, later, will include U.S. Fish and Wildlife Service areas as well as the Chugach National Forest, and Phase three would be a mop up of general BLM land and some other remaining projects.

The U.S. Fish and Wildlife Service area in western Alaska is particularly dominated by water, and DNR’s identification work there is probably going to be more time consuming, Walker said, adding that the agency will roll those results out in phase two as quickly as it can.

“The idea is that we are putting everyone on notice that these are conspicuous waters that we in the State of Alaska believe belong to the state as part of its birthright pursuant to the equal footing doctrine, the Alaska Statehood Act, and the federal Submerged Lands Act,” he said. “We got what every other state got, and that is namely the submerged lands under all navigable rivers and tidally influenced rivers within the state as part of the birthright, the promise to us that we would have the economic wherewithal to sustain ourselves as a state.”

Playing offense

Walker said another spoke of the initiative is playing offense in federal and state land planning projects. “All too often, we see in federal land planning initiatives throughout Alaska that they refuse to acknowledge state owned navigable waters as well as state owned RS 2477 rights of way,” Walker said. “The response is always, ‘Oh, it’s not the proper forum in which to adjudicate such issues so were not going to do that but we’re going to manage these lands like they don’t exist.”

Revised Statute 2477 was a congressional grant of rights of way repealed in 1976, however, rights of way that existed at that date expressly remain as valid existing rights.

Walker said the state will push back very strongly that state property rights be recognized in federal planning initiatives.

The information process is a two-way street.

DNR would like citizens to share information on how water routes are used, to aid in its analysis of waterways in the state, Walker said. If citizens encounter incidents with federal law enforcement on state lands, the state wants to hear about any federal overreach.

“The state will act accordingly, and appropriately up to and including litigation,” he said.

“We’re also working to publish various scientific and peer reviewed articles that assist us in clearing state title remotely though using principles of hydraulic geometry and other physical characteristics of rivers that would expedite this process,” Walker said, adding that the current pace would take “hundreds of years.”

“Science could bring closure to these questions within the immediate future,” he said. “This is not something that should take hundreds of years.”

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