http://racerealty.com/

Glacier Bay ruling goes against state

Supreme Court finds Alaska's claims to area's submerged, tidal lands invalid

Posted: Tuesday, June 07, 2005

The U.S. Supreme Court rejected Alaska's claim to submerged and tidal lands of Glacier Bay, ruling Monday they are owned by the federal government.

Tomie Lee, superintendent of Glacier Bay National Park and Preserve, said the decision is good news that will maintain the "status quo" at the park, about 50 miles west of Juneau. The best news is that the case is resolved, she said.

"The really positive thing is that it makes it possible now for the state and us to sit down and talk."

Restrictions on commercial fishing in the park led to the suit. The Murkowski administration also has lobbied the National Park Service to ease a restriction of two large cruise ships per day in the bay.

"I'm disappointed in the court's ruling," commercial fisherman Joe Emerson said from his boat Monday. "I'm really concerned about the federal government getting into management of fish and game."

Emerson is one of the commercial fishermen with a lifetime exemption allowing him to fish for halibut and king salmon in Glacier Bay. As long as the park continues to honor his exemption to fish in the bay, the court ruling won't affect him much, he said. He would oppose updating the regulations if it means more restrictions on fishing in the outside waters.

Mark Morones, spokesman for the Alaska Department of Law, said the resolution is good for the state, even though there was disappointment in his office.

"If an issue of (property) title is in dispute, it limits you," he said.

The lawsuit was filed in 2000, inspired by the reaction of Alaska commercial fishermen after the National Park Service began phasing out fishing in Glacier Bay in 1998. The suit argued that Congress never intended to include the water in the Glacier Bay National Monument when it was created in 1925.

The suit also covered other submerged lands in the Alexander Archipelago, from south of Glacier Bay to Dixon Entrance beyond Ketchikan, claiming they are historic inland waters.

"A lot of this is about states' rights," Morones said.

In a 9-0 vote regarding submerged lands more than three miles from shore, the court found the federal government should control the disputed submerged lands. But Chief Justice William Rehnquist and Justices Clarence Thomas and Antonin Scalia dissented on the Glacier Bay issue.

Justice Anthony Kennedy wrote the 35-page opinion. He said the appointed special master who recommended the court's summary judgment - George Washington University professor Gregory Maggs - concluded that the areas did not qualify as inland waters subject to state control. The state claimed they had been treated as such since Alaska was Russian America, prior to 1863.

Maggs also concluded that federal attorneys showed that the Glacier Bay title did not pass to Alaska at statehood in 1959.

State officials have put off talking to park officials about areas of common interest while the question of ownership remained uncertain, said Lee, the park superintendent. The biggest issue has concerned commercial fishing. Since the 1998 agreement on commercial fishing, there have been no new fisheries or gear allowed in waters surrounding the park, such as Icy Strait.

Jim Stratton, director of the Alaska Region for the National Parks Conservation Association, said Monday's ruling "kept the 'bay' in Glacier Bay."

He said he was happy because the ruling protects the park.

"The purpose of the National Park System is to protect these unique areas in perpetuity," he said. "Glacier Bay is one of the most amazing tidewater glacier laboratories in the world."

State ownership would have threatened the marine life in the bay, he said, because the state has shown it would want to increase commercial fishing and the number of tourist boats allowed in the bay.

• Tony Carroll can be reached at tony.carroll@juneauempire.com.



CONTACT US

  • Switchboard: 907-586-3740
  • Circulation and Delivery: 907-523-2295
  • Newsroom Fax: 907-586-3028
  • Business Fax: 907-586-9097
  • Accounts Receivable: 907-523-2270
  • View the Staff Directory
  • or Send feedback

ADVERTISING

SUBSCRIBER SERVICES

SOCIAL NETWORKING