Alaska Seeks Control of Waters on Federally Protected Lands (2)

The Trump administration is fast-tracking Alaska’s request for state control of federal land beneath numerous rivers and lakes within its boundaries, including some within national wildlife refuges, according to Federal Register public inspection notices published Tuesday.

The Bureau of Land Management is considering Alaska’s five applications filed during the first Trump administration for the federal government to disclaim ownership of the submerged lands beneath the rivers and lakes. The state claims the water bodies were navigable when Alaska became a state in 1959 and ownership should have transferred to the state at that time.

Alaska filed all of the applications between 2017 and 2019. Citing the statehood act and several other federal laws, the state has filed 18 other applications for disclaimer of interest that have appeared in the Federal Register since 2003, the most recent of which were filed during both Trump administrations.

The BLM gave the public 90 days to comment on those applications, but the latest are open to comment for 30 days because the bureau said it believes the shorter period of time is adequate.

“This looks like the latest development in the ongoing debate over management of Alaska’s river systems, especially those that fall within the boundaries of federal conservation areas designated under ANILCA,” or the Alaska National Interest Lands Conservation Act, said Chris Winter, executive director of the Getches-Wilkinson Center for Natural Resources at the University of Colorado Law School.

The US Supreme Court is considering Alaska’s September petition to hear its challenge to lower court rulings upholding a federal right to control Alaska’s navigable rivers. In Alaska v. US, the state claims the federal government doesn’t own title to submerged lands in Alaska even as the US asserts a right to control navigable waters that cross public lands.

The BLM is also processing Alaska’s applications as the US Fish and Wildlife Service reviews US national wildlife refuges for possible abolishment.

Robert T. Anderson, who served as Interior solicitor in the Biden administration, said the state’s applications under Gov. Mike Dunleavy (R) are directly tied to its Supreme Court petition.

“This is part of the Dunleavy Administration’s effort to attack federal authority over natural resource management—including subsistence fishing and hunting under ANILCA,” Anderson said in an email. “It is also tied to the State’s effort to limit the amount of federal land under waters within various federal conservation system units.”

Alaska is claiming ownership over some lakes and rivers on federal land and within protected areas, including Arolik Lake and the Arolik River within the Togiak National Wildlife Refuge, branches of the Fortymile River that are part of a Congressionally-designated National Wild and Scenic River, and parts of the Delta River system on federal lands, among other waterways.

The applications move Alaska “closer to the equal footing promised at statehood in 1959—real control over our navigable rivers, as every other state enjoys,” Alaska Attorney General Stephen Cox said in an emailed statement.

State ownership of those submerged lands would include any minerals found there, said Sam Kalen, an environmental law professor at the Indiana University-Indianapolis McKinney School of Law.

The BLM didn’t immediately respond to requests for comment Tuesday.

“Alaska is asking the federal government to voluntarily surrender federal interests in rivers and streams that have been designated as federal Wild and Scenic Rivers or that fall within the boundaries of National Wildlife Refuges or possibly National Parks,” Winter said in an email.

The disclaimers are needed to eliminate the need for litigation when the US asserts no ownership over lands beneath rivers and lakes, and the state uses the disclaimers to confirm its ownership over navigable waters, according to a BLM web page on the issue. The BLM expects the state to file disclaimer applications on about 200 rivers the state identified in 1992.