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Federal Subsistence Priority Under Threat

Take Back Alaska Waters

A red sunset reflects off the Yukon River (photo credit: Josh Spice, NPS)

Alaska Governor Asserts State Control of Navigable Waters

Alaska Governor Mike Dunleavy announced in 2021 that the state is taking control of navigable waters from the federal government. Dunleavy says he is “asserting the state’s control of the navigable waters and submerged lands we received at statehood, and our right to manage them in Alaskans’ best interests.”

In furtherance of the initiative, the state has filed a host of lawsuits against the United States in the federal District Court of Alaska to quiet title. These rivers include

• North Fork/Middle Fork of the Forty Mile River

• within the Lake Clark National Park & Preserve

• within the Yukon-Charley Rivers National Preserve

• underlying the South and Middle Fork of the Koyukuk, Bettles, and Dietrich Rivers

• Sarkar Canoe Route on Prince of Wales Island

• Stikine, Kandik, Nation and Gulkana, and Knik Rivers on Mendenhall Lake & River

State Sponsored Bills

In addition to litigation, the Governor has sponsored bills in the last and again in this legislative session, to recognize the state’s ownership of submerged lands under Navigable waters within the state. The bills state, “The purpose of this Act is to clarify and underscore the state's ownership interest in all submerged land underlying navigable waters at the time of statehood, explicitly including those in federal areas."

Supreme Court Opinion in Sturgeon v. Frost

The Governor’s other argument is that the Supreme Court opinion in Sturgeon v. Frost paves the way for state ownership of submerged lands within Alaska. According to the Governor, “John Sturgeon’s second Supreme Court victory in 2019 clarified ANILCA, making it clear that federal regulations do not supersede state ownership within ANILCA-established conservation units. It also rejected claims that laws affecting federal land in the lower 48 automatically apply in Alaska, clearly acknowledging our unique circumstances.”

Sturgeon, however, focused on the narrow issue of whether the state or federal government had jurisdiction over the navigable waters of the Nation River located within the Yukon-Charley Rivers National Preserve near the Canadian border. Also, the opinion did not "disturb the Ninth Circuit’s holdings that the Park Service may regulate subsistence fishing on navigable waters.”

Potential Impact on Federal Subsistence Priority

With its Sturgeon opinion, the Supreme Court has set the stage to argue that under The Alaska National Interest Land Claims Act, federal regulations do not supersede state law on rivers running through federal lands. The concern is that the state’s lawsuits could lead the courts to apply Sturgeon to federal subsistence laws and also throw out their applicability.

Norton Bay Watershed Council Reaches Out to Tribal Governments

The Norton Bay Watershed Council is reaching out to tribal governments to ask whether they are familiar with the water dispute and whether they would be interested in consulting with the National Park Service on protection of tribal interests, and joining a federal working group established to study and take measures to address the issue.

Following URL Links

• As salmon disappear, a battle over Alaska Native fishing rights heats up
• Dispute Over State/Federal Alaska Native Fish Fights Coming to a Head
• State’s Claim to Ownership of Kuskokwim River Threatens Local Communities and Salmon
• The Sagebrush Rebellion Comes to Alaska
  

PDF Attachment Links

• State of Alaska's "Unlocking Alaska Waters Initiative," Threats to the Federal Subsistence Priority. Norton Bay Watershed Council. Topics include “Take Back Alaska Waters,” Quiet Title Litigation, Issues with State Lawsuits, Katie John, and National Park Service outreach. Slideshow Presentation Link
• Norton Bay Watershed Council, Resolution 23-02. A Resolution in Support of Alaska Native Hunting and Fishing Rights and Congressional Action to Take Immediate Action to Permanently Protect the Right of Alaska Native People to Engage in Subsistence Fishing in Alaska's Navigable Waters, Resolution PDF Link

P.O. Box 15332, Fritz Creek, AK 99603
hal@waterpolicyconsulting.com
(907) 491-1355

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