The governor wants Alaskans to have “unfettered access” to lands and waters. He will likely spend a lot of our money in court trying to achieve this. Before everyone gets too excited, we might all want to ask what exactly that means? Who gets access to submerged lands and what are they? What exactly are navigable waters and who gets to use those? And why is the federal government managing land in Alaska in the first place?
Submerged lands are the lands beneath river beds and lakes and the lands under some tidal waters extending three miles out from the shoreline. Control over submerged lands is important when developments like building bridges and docks are being considered, or mineral extraction or transport below the lands is contemplated. Unless you are involved in this kind of development, submerged lands are probably not a big concern.
Access to submerged lands also extends to the high-watermark. You can get out of a boat onto a beach or sandbar but you will need to abide by whatever rules apply to the land beyond high-watermark including no trespass orders. Guides who have been told they cannot take clients “onto submerged lands” have most likely been told those clients cannot depart from the submerged land and go elsewhere if adjacent land is private.
Depending on the location of the submerged lands, control may lie with either the state or federal governments. If the water body is navigable, title passed to Alaska at statehood. If it is non-navigable, the federal government retained title. Neither scenario grants residents “unfettered control” over anything and nor should it. Waters are a common good and need to be regulated as such for the benefit of all. If we value the quality of our parks and public lands and waters we should be careful what we ask for when it comes to de-regulation.
The governor, and recent editorials in the Fairbanks and Anchorage papers, all reference the 2019 Sturgeon USSC decision and the Alaska National Interest Lands Conservation Act (ANILCA) and seem to conclude that federal control over submerged lands is now history. A thorough reading of those documents indicates something more complicated, and navigability status contributes to that complexity.
Herein lies part of the state’s problem. State and federal standards for determining navigability are different. The federal standard is fairly conservative and connected to commercial uses while the state has a very expansive criterion. Under Alaska’s interpretation, waterways which have never been used for any kind of commerce may still be designated navigable. This may be a reasonable interpretation for some waterways in Alaska however until both parties agree, title may remain with the federal government if they believe the waterway is non-navigable, and many rivers remain to be adjudicated. Reaching agreement on navigability may be lengthy and expensive.
But there is another issue to consider. The state cannot simply order the federal government out of Alaska. They own land and have legal obligations here regarding management. Neither the governor nor the News-Miner mentioned the Katie John or McDowell (1989) litigation. The Anchorage Daily News gave Katie John a few words and then quickly moved on. In case we have all forgotten, the Katie John litigation spanned almost 30 years and began because of the state’s failure to provide for Native subsistence fishing needs.
McDowell brought us federal management on public lands and non-navigable waters in 1990 because state subsistence law conflicted with Alaska’s Constitution and placed Alaska in non-compliance with ANILCA. Katie John extended that management to some navigable waters in 1999. Let us be clear: the USFWS is not managing Alaska fish and game by choice. They were sued in order to force them to implement Title VIII of ANILCA. While navigable waters within Alaska’s national parks may be exempt from Park Service regulatory authority, this does not apply to the Departments of Interior and Agriculture who must regulate subsistence hunting and fishing because the state proved itself unable to do so.
Perhaps the governor thinks if he ignores subsistence nobody will notice, but certainly some Alaskans would prefer that federal management authority continue until such time as the state is able to comply with Title VIII of ANILCA and properly protect Native and rural resident subsistence rights. Many Alaskans would likely prefer that nobody has “unfettered access” to Alaska’s lands and waters until the subsistence issue is addressed. Management is expensive. If we cannot afford to do it right then we must seriously consider before taking it on.
Jenny Bell-Jones is chair emeritus of the Department of Alaska Native Studies and Rural Development at the University of Alaska Fairbanks. This work represents her opinion and not that of the department.