April 26, 2022, the State of Alaska filed three actions involving the failure of the Biden Administration to honor a U.S. Supreme Court Decision directing the transfer of title to the State for submerged lands under 800,000 miles of navigable waters and 300 million acres of lakes within the State’s jurisdiction.
The first action was a Complaint to Quiet Title to state-owned submerged land underlying the Twin Lakes and Chilikadrotna River and Turquoise Lake and Mulchatna River in Alaska. The State argues that the Equal Footing doctrine of the U.S. Constitution and the Submerged Lands Act of 1953, expressly vested title to the submerged land under navigable waters to Alaska at Statehood. The Bureau of Land Management is asserting that these lands are “non-navigable,” even though the federal agency and Alaskan citizens regularly travel these waterways via boat and other watercraft to reach intended destinations. The State is asking the court to declare these waters “navigable” and affirm the lands were not withdrawn by the federal government prior to statehood.
The second action filed is a “cease-and-desist” order to the Forest Supervisor for the Tongass National Forest (TNF), who has been prohibiting the use of motorized non-commercial watercraft and permitting commercial uses of a lake and river within the TNF that are owned by the State. The State asserts that it govern’s the use of state owned submerged lands and the waters that flow over them, and noticed the U.S. Forest Service that its regulatory actions amount to federal overreach and violate state law. The notice states:
“You are hereby notified to cease and desist from prohibiting any type of motorized use by non-commercial watercraft operators of Mendenhall Lake or Mendenhall River within the borders of TNF that are considered generally allowable uses pursuant to state law. You are further hereby notified to cease and desist from adjudicating any permits or authorizations for commercial uses (including, but not limited to, commercial motorized watercraft operation) of the state-owned submerged lands or waters flowing over them that are solely within the authority of the Alaska Department of Natural Resources.”
The third action is a notice of Trespass to the Superintendent of the National Park Service for the Lake Clark National Park and Preserve. The state asserts the federal agency has constructed a dock on the state-owned submerged lands, which “is not a generally allowable use and requires a permit pursuant to state law.” No such permit has been applied for by the National Park Service. The Trespass notice states:
“You are hereby notified that this dock is unauthorized; constitutes trespass; and has been officially placed in trespass status to initiate proceedings for its removal from state land.”
A year prior to taking this action, the State reached out to the Department of the Interior and Agriculture to address the concerns of federal overreach into state land issues, but having not received any response or effort on the part of the federal Departments to resolve the conflicts, the State was compelled to file the recent actions.
Alaska Governor Mike Dunleavy stated:
“State submerged lands are how many Alaskans access health care services, visit family or friends, recreate, shop in other communities, and hunt or fish. You should be able to enjoy our waters without being harassed by the federal government. Yet despite two unanimous Supreme Court rulings and defining law from 63 years ago when Alaska became a state, the federal government continues to act in a manner contrary to law. When it does, we’re going to assert ourselves. I will fight for every acre owed to Alaskans.”
