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State seeks title to more lakes, rivers

Officials want control of land beneath navigable waters

Posted: Thursday, February 27, 2003

Bodies of water numbering in the thousands, tens of thousands, or hundreds of thousands, flow through this state. No one knows exactly how many, and it's also not clear who owns each one. To settle that question, the state is beginning a push to obtain title to all of its navigable waters.

"When Alaska became a state, we automatically got title to lands under navigable waters, with some exceptions. But nobody has ever sat down and figured out exactly where all those are," said Dick Mylius, a natural resource manager for the state Department of Natural Resources' division of mining, land and water.

The ownership claims don't deal with rights to the water itself, which is owned by the state. They deal with who owns the river or lake bed. Obtaining title to the beds of navigable waters would give the state the ability to control who can use the waterways and in what manner.

"If you own the bed of the river, you have more control over private use of it. Ownership is the best way to determine if it's available for public use, like fishing," Mylius said. "If we own a water body in the Tongass National Forest, decisions about how that water body can be used can be made by the state rather than the Forest Service."

It also would give the state rights to any minerals, oil or natural gas under the beds.

"Certainly it's a state's rights issue," said Mike Haskins, chief of the Bureau of Land Management's lands and realty branch. "It has a lot to do with access."

How many navigable bodies of water are available for the state to claim is unclear. A survey done by the state came up with an estimated 22,000 bodies of water, but staff at the federal Bureau of Land Management said the number was probably closer to 2,000 or 3,000.

Federal law stipulates all navigable waters within a state belong to that state. Until recently, the navigability of a water body had to be determined through a lengthy court process before the state could obtain title to the bed of the lake, river or stream, said John Manly, spokesman for Gov. Frank Murkowski. Through that process, the state has obtained title to 13 bodies of water during the last 25 years.

But in the last month, the Department of Interior issued a new rule that allows the federal government to make its own judgment about whether a body of water is navigable, and then issue what is known as a "recordable disclaimer" stating that it has no interest in the title.

"That way the water is claimed for the state," Manly said.

But not in all cases, according to Haskins.

"We could have conveyed those lands to a Native corporation and they could feel that they own it," he said.

Then it would be up to the state to work out the dispute.

So far, the state has filed one application for certification, on a stretch of the Black River, a secondary tributary of the Yukon River. The Black flows into the Porcupine, which flows into the Yukon about 100 miles northeast of Fairbanks.

It's unclear how long it will take the Bureau of Land Management to make a decision on the application, Haskins said.

"I'm hoping that we can do something in four to six months. That may prove to be wishful thinking," he said.

The state probably will file for several hundred bodies of water, though there are many more that are navigable, Mylius said.

"I would probably say it would take years to sort it all out," he said. "Some are going to be a lot easier to file on than others."

Even if the federal government issues the disclaimer for the Black River or any other water body, the state won't necessarily have automatic claim to the water body. There also could be an ownership dispute with a Native corporation or a private landowner, Haskins said.

Waters that are not navigable automatically are owned by the owner of the upland around the lake, river or stream, Mylius said.

Masha Herbst can be reached at masha.herbst@juneauempire.com.



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