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Alaska editorial: Maintain access: New law keeps fishing stream rights on the state's agenda

Posted: May 11, 2012 - 12:06am

This editorial first appeared in the Fairbanks Daily News-Miner:

The governor signed a small piece of legislation last month that has a big concern behind it. The new law, which contains just a few sentences, says state land managers must report annually on their efforts to protect public access to fishing streams in Alaska.

The bill, sponsored by Rep. Les Gara, D-Anchorage, was not controversial. It passed unanimously in both legislative houses — and so one also might reasonably conclude that it does nothing of note. That would be too dismissive. Preparing the report will make managers think regularly about ways they can help all Alaskans find their way to the state’s public waters, and that’s a worthy thing to think about.

The reports will focus on fishing, but access is access. If a fisherman can use a right of way, so might others — whether paddlers and riverboaters during the summer or snowmachiners and skiers during the winter (at least in most of the state).

It might seem odd that this should be a concern in Alaska, where most land is public and is likely to remain so in perpetuity. Nevertheless, it is truly a serious issue and it becomes more so every year.

That’s in part because private lands, and the accompanying no trespassing signs, tend to be concentrated where the topography has historically allowed people to travel.

As our population grows, long-forgotten homesteads and other private parcels are being developed. Stream access trails used for decades suddenly can be closed.

The inventory of private lands in Alaska also is growing as the federal government transfers millions of acres to Alaska Native corporations, a task that is still unfinished more than 40 years after congressional passage of the land claims act. These transfers, which have accelerated in recent years, are much needed and long overdue, but they also can restrict public access.

Before handing title to the corporations, the federal government is supposed to establish rights of way across the lands to provide access to any public lands or waters that might otherwise be cut off. But there are debates about how many access routes are enough and where they should be placed. State government should represent all Alaskans in those debates.

The state also must continue to vigorously defend its ownership of rivers as a way to protect access for fishermen and others. By law, the beds of navigable rivers belong to the state. But the state and federal agencies have disagreed for decades about how to define “navigable.” Some of those disputes are in court right now, and the state is right to defend its interests there.

The state’s navigability claims against the federal government also are important in cases where the federal government doesn’t plan to hold onto the land in perpetuity. Alaskans can see this in a dispute concerning the Chuitna River across Cook Inlet from Anchorage. Based on a federal decision that the river was not navigable, the local village corporation claimed ownership of the riverbed where it flows through its land. The corporation advertised exclusive fishing rights on the river for guests at its lodge. The state objected, saying the river actually is navigable and thus belongs to the public, but that remains unresolved. Now the corporation is seeking revocation of a federally reserved right of way for a trail to the river.

The Department of Natural Resources has also pointed out that state law guarantees the public an access right even on many non-navigable rivers and streams. Alaska’s Constitution says “free access to the navigable or public waters of the state, as defined by the Legislature, shall not be denied any citizen.” The Legislature defined public waters as all waterways that are “reasonably suitable for public use and utility, habitat for fish and wildlife in which there is a public interest, or migration and spawning of fish in which there is a public interest.” It also has adopted law declaring that private title to such waterways is “subject to the rights of the people to use and have access to the water for recreational purposes.”

That access right, however, is limited. It arguably only allows public to use the waterway itself, not any privately owned land above the mean annual high water mark. So maintaining land rights of way that connect to Alaska’s rivers and streams is still essential if we are to sustain public access in the long term.

An annual report on these subjects will tell the public what the state is doing to defend such rights of way. Preparing the report also will ensure that land managers keep this concern near the top of their agendas — right where it needs to be.

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