Trump Administration Assists State in Water Grab Of Alaska’s Rivers
The State of Alaska’s campaign to take ownership of navigable rivers running through federal lands started in the Spring of 2021 when governor Dunleavy announced he was “Unlocking our waters.” The Dunleavy administration believes the process to obtain jurisdiction over navigable waters on federal lands which is typically fact-dependent and involves site visits and historical analyses, as well as review by the Office of the Solicitor, has been too slow and onerous. Alaska has made 36 applications to BLM that have resulted in a recordable disclaimer of interest since 2003, but there are a lot in process and the state has filed Quiet Title Act litigation. Such cases, can take a long time to work their way through the courts because the questions about navigability are fact-intensive and will likely go to trial.
The State now proposes go around the legitimate navigability determination process by applicating for RDIs, one-year approval timeframes and new regulations with a limited set of criteria for RDIs that were included in the Transition Report submitted to the incoming administration by the State in December 2024. The applications for RDIs in the Federal Register are 5 of the 7 the state identified in its report for immediate transfer https://dnr.alaska.gov/mlw/paad/nav/rdi/#inprocess.
Such resource exploitation actions in Alaska appeal to the Trump administration whose Unleashing Alaska Executive Order the Secretary of Interior to:
immediately conduct a review of waterways in the State of Alaska and direct the Bureau of Land Management, in consultation with the State of Alaska, to provide recommendations of navigable waterways subject to the equal footing doctrine and the Submerged Lands Act of 1953, as amended, 43 U.S.C. 1301 et seq., and prepare Recordable Disclaimers of Interest pursuant to section 315 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1745, to restore ownership of said waterways to the State as appropriate.[
Taking advantage of the water related RDI language in the Unleashing EO, State officials recently met with the Trump administration to obtain the Department of the Interior's agreement to relinquish jurisdiction over rivers throughout the State, rather than having to prove ownership one at a time. According to Jim Walker with the Alaska Division of Mining, Land & Water, "[i]nstead of going through and giving minute details about every mile of these rivers, we talk, rather, about our methodology and why it's so sound."
The State’s Bogus Claim of Ownership of Navigable Waters
The State of Alaska’s claim for water sovereignty over Waterbodies stems from the claim that the U.S. Constitution and federal law grant the State of Alaska exclusive rights to navigable waters and submerged lands within its borders. This argument is based primarily on a 2019 U.S. Supreme Court decision that under the Alaska National Interest Lands Conservation Act, that the Nation River inside the Yukon Charlie National Park and Preserve, did not qualify as "public land" and the National Park Service, therefore, did not have the authority to prohibit specific activity of the River found within the preserve. In reference to the Sturgeon decision, Walker says "[a]s has been said repeatedly, in U.S. Supreme Court opinions and elsewhere: Alaska is different."
Yet, while it is generally considered that if a stream is determined to be navigable, the State has jurisdiction over the "bed and banks," the one nagging question about the State's claim to complete control of the rivers that the Access Team is studying is the fact that each one is located on federal land. In such cases, therefore, the Supreme Court has consistently rejected complete ownership of water by either the federal or State governments, and state claims of ownership generally do not justify interference with valid federal rights to the uses of that water.
Nevertheless, shortly after the Sturgeon decision, Governor Dunleavey called the plaintiff, John Sturgeon, "a hero" and announced that, "I am 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." For the highly litigious Dunleavy administration, such an assertion has meant the filing of a fleet of quiet title actions on key rivers throughout the state, sponsoring legislation, and applying the State's rights rhetoric to support its claim that the State owns all submerged lands within its boundaries.
And while the State has had some wins, including control of land beneath the Stikine River in Southeast Alaska, the Knik River outside Anchorage, and multiple forks of the gold-bearing Fortymile River in the Interior, it lost a case for control of the Mendenhall River. The others are still in court, moving into the discovery and trial phases.
The state wants to use the RDI process to assert jurisdiction over subsistence fishing and open it to all users.
The RDI’s are contrary to a 9th Circuit Court of Appeals decision in the Katie John line of cases, which says that the Alaska National Interest Lands Conservation Act established the Subsistence Priority for the benefit of rural Alaskans on federal lands. Not only does the decision therefore protect the fishing rights of Alaska Native communities, but it also helps mitigate dwindling salmon runs by restricting the right to fish for them in federal rivers and streams to only those communities. In fact, it is for this reason that Alaska tribal communities are mortified at the prospect of the state obtaining control over rivers running through federal lands.
Attorneys representing the state of Alaska had argued that new Supreme Court precedents — in particular, a 2019 case involving an Alaska man and his hovercraft — mean that the state alone has the power to manage subsistence fishing in Alaska’s navigable waters. The U.S. Supreme Court, however, has rejected the state of Alaska’s latest attempt to alter Alaska’s decades-old system of subsistence fishing management.
Last January, in a one-sentence order , the court said it will not review a decision by the 9th U.S. Circuit Court of Appeals, which ruled in August that Alaska cannot manage fishing on a stretch of the Kuskokwim River that flows through the Yukon Delta National Wildlife Refuge.
That preference exists only in public waters under federal control, not in state waters, because federal law requires the preference but the Alaska Constitution forbids state officials from implementing it.
In their 40-page opinion, the Court of Appeals said that recent U.S. Supreme Court rulings do not mandate a change in the way the state and federal governments split management of fish and game in Alaska.
Under the Trump administration, which is known for its dislike of vast national parks and monuments in Alaska, which previous democratic administrations created,[3] there is little doubt that the State will get its wish. If the federal government gives into the State on RDIs this will be contrary to the 9th Circuit’s decision in the Kuskokwim Litigation that is now supported by the U.S. Supreme Court that protects the Katie John precedent, Native Fishing rights and to the protection of salmon in rivers running through federal lands throughout the State.
