High court to weigh Alaska marine lands case

Posted: Sunday, December 05, 2004

Alaska attorneys will ask the U.S. Supreme Court on Jan. 10 to force the federal government to relinquish ownership of Southeast Alaska's submerged marine lands - including Glacier Bay.

State attorneys say the case, Alaska v. United States, is the largest of its kind in U.S. history. A verdict is expected by June 2005.

Though it doesn't have the high stakes of a multimillion-dollar off-shore oil dispute, the case is a big deal for Alaska commercial and subsistence fishermen. It also will be a benchmark in the historic struggle for state sovereignty.

"It's part of that ancient battle of who owns the land in Alaska," said Avrum Gross, a former state attorney general who fought the federal government in suits over oil and gas-laden marine deposits in the Beaufort Sea and Cook Inlet.

But some environmentalists fear if Alaska gains control over Glacier Bay, it could ultimately harm its unique ecosystem and endangered species.

"It's part of that ancient battle of who owns the land in Alaska."

Avrum Gross

Former state attorney general

Gov. Frank Murkowski has lobbied the National Park Service to increase cruise ship traffic in the bay, where large ships are now restricted to two per day.

The United Fishermen of Alaska supports the state's claim for sovereignty. "We think the state should have jurisdiction over every piece of land and water for fishing, hunting or mining ... though we aren't such poor sports that we don't think there should be some wilderness areas, parks and national forests," said UFA president Bob Thorstenson.

The case began when Alaska commercial fishermen reacted in anger to the National Park Service's decision to phase out fishing in Glacier Bay in 1998. The state filed suit, protesting that Congress never intended to include the bay itself when it created a national monument there in 1925.

State attorneys also made a bid to the Supreme Court to resolve a 34-year-old state-federal boundary dispute over the rest of Southeast Alaska's inland waters.

The Supreme Court agreed to take the case as an original action - a rare exception meaning it didn't need to pass through lower courts.

The parties have agreed Alaska has rightful claim to most of the submerged lands in Southeast Alaska. That means that subsistence fishermen will not be able to gain federal permits to fish in those waters as they previously requested.

It also means the disputed submerged lands have been whittled down at least 80 percent.

But the U.S. Department of Justice is fighting Alaska's attempt to acquire submerged land in Glacier Bay and smaller pockets of submerged land in Chatham Strait, Frederick Sound, Stephens Passage and other inland channels.

Those pockets are called doughnut holes because they occur in isolated spots more than three miles from the shoreline. Until a few years ago, cruise ships were allowed to dump waste in the doughnut holes with impunity.

Attorneys for the state expect the Supreme Court's final opinion will include several major findings:

• It will likely approve a 2002 legal disclaimer in which the U.S. government agreed it would not fight Alaska's claim to most submerged lands within three miles of the Southeast Alaska coastline.

• It will rule on whether the state should obtain title to the doughnut holes.

• It will rule on whether the submerged lands of Glacier Bay should be granted to the state.

U.S. attorneys, who could not be reached for comment, in September accused the state of using flawed legal arguments to obtain the doughnut holes and Glacier Bay.

U.S. attorneys took aim at the state's view that Southeast Alaska islands should be considered an extension of the mainland - a legal distinction that would mold Southeast Alaska into two large bays containing numerous islands.

In their September brief to the court, U.S attorneys sided with a Supreme Court-appointed expert who advised the court to reject that claim. U.S. attorneys derided it as "an extraordinary contention."

But Assistant State Attorney General Laura Bottger noted one precedent: The Supreme Court previously ruled that Long Island is an extension of the mainland of New York. As a result Long Island Sound became a "juridical" bay.

National Park Service spokesman John Quinley said that if the Supreme Court accepts all of its expert's recommendations in the case, "it would largely be the status quo at Glacier Bay."

Quinley said the park service wants to continue to preserve the bay as a unit of the park but he declined to speculate about what would happen if the Supreme Court ruled in favor of Alaska's claim.

The state's interest is increasing public access to lands and it would be up to Congress to decide whether to lift the ban on commercial fishing in Glacier Bay.

Generally speaking, federal ownership of inland waters "is a serious insult to the people in Southeast Alaska," Assistant Alaska Attorney General Laura Bottger said.

She said the state also has concerns about what could happen in the doughnut holes in the future. For example, federal regulators are proposing off-shore fish farms that are subject to a ban in Alaska waters.

The federal government didn't begin asserting its ownership over many submerged lands - from Cook Inlet to the Beaufort Sea - until the 1960s and 1970s.

In the past 20 years, the United States and Alaska have warred over submerged land with high value for fisheries, the cruise ship industry and the oil industry.

But one matter hasn't gotten nearly that much attention in the legal battles over land ownership: how the lands should be managed.

In the 1990s, pursuant to the park's closure of the Glacier Bay fisheries, the bay suddenly became one the nation's largest marine reserves.

Since then, some evidence has emerged that the bay could be an important nursery for commercial shellfish like Dungeness crab, said Jim Taggart, fisheries biologist with the U.S. Geological Survey's Glacier Bay research station.

After closure of the fisheries, the size of the typical male Dungeness crab in Glacier Bay increased dramatically - boosting the potential for successful breeding and production of incredible amounts of crab larvae that can travel for hundreds of miles on ocean currents.

That tantalizing evidence could have a major future implications for commercial fisheries.

"But no one's arguing that we need places for crab larvae to grow up," Taggart said.

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