This is a developing story.
Would Juneau residents be happy about a flood levee at Mendenhall Lake in the near future if it also means motorized boats are allowed there?
Such questions may not be hypothetical — or necessarily up to the collective desire of residents — if a holiday season wish list from Gov. Mike Dunleavy to President-elect Donald Trump is fulfilled that would give the state vast amounts of land and regulation currently under federal jurisdiction.
A 28-page document submitted Sunday seeks an Alaska-specific executive order imposing dozens of actions, many of which have been sought by Dunleavy in recent years through lawsuits, legislation and other actions. Items sought in the executive order include handing over various “submerged lands” including Mendenhall Lake to the state, nullifying federal actions related to numerous Alaska Native sovereignty rights, and setting aside resource development restrictions including the Tongass Roadless Rule.
“Your election will hail in a new era of optimism and opportunity, and Alaska stands ready to and is eager to work with you to repair this damage wrought by the previous administration, and to set both Alaska and America on a course to prosperity,” Dunleavy vote in a cover letter accompanying the list of requests to Trump.
Trump has already stated a top priority is scaling back what he calls excessive federal authority, notably in areas such as development and environmental regulations, and will be working with Republican majorities in both chambers of Congress, including an all-Republican Alaska delegation.
Among the latter, Sen. Dan Sullivan and Rep.-elect Nick Begich III have stated they are aligned with Trump’s goals, while Sen. Lisa Murkowski is expressing more reservations, but generally been supportive of expanding resource development projects in the state.
Harsh criticism of a portion of Dunleavy’s request involving tribal rights was expressed Monday afternoon by Richard Chalyee Éesh Peterson, president of the Central Council of the Tlingit and Haida Indian Tribes of Alaska, who in a prepared statement to the Empire declared “Tlingit & Haida unequivocally opposes Governor Dunleavy’s decision to make an attack on tribal sovereignty as one of the highest priorities in Alaska’s Federal Transition Plan.”
Many of the items on the list reflect long-stated goals of Republicans within Alaska as well as elsewhere: opening up more of the Arctic National Wildlife Refuge and National Petroleum Reserve–Alaska to drilling, allowing roads and other development such as mining in currently protected areas, and giving the state primacy instead of the federal government for fish and game management as well as environmental enforcement.
“Recent federal activity has made it increasingly difficult, if not impossible, for the State to properly manage fish and game resources in the roughly 61% of the State owned by the federal government,” Dunleavy notes in his request.
Other such goals sought by Dunleavy include limiting Endangered Species Act protections, eliminating the Federal Subsistence Board and establishing “a cabinet level task force” that includes six officials overseeing federal agencies in Alaska to ensure they are carrying out the directives in the executive order.
A levee and motorized boats at Mendenhall Lake?
A practical example of how a drastic shakeup of state and federal authority under such an order is Mendenhall Lake, which Dunleavy sought to seize from the federal government in a 2022 lawsuit under a claim involving “submerged lands” throughout Alaska he claims belong to the state. Legal arguments about the issue in the U.S. date back more than 150 years and are extremely complex, but ultimately all that could matter come January is Trump’s signature of approval.
The lawsuit was seen by some two years ago as an attempt to remove federal restrictions, including a ban on motorized boats, in the Mendenhall Glacier Recreation Area that is on U.S. Forest Service land. A revised management plan for the area completed last year continues the ban on such vessels.
But the implications today of putting the lake under state control could have a much more significant impact for Juneau residents seeking a solution to record glacial outburst flooding during the past two years that has damaged more than 300 homes.
Officials ranging from Juneau Assembly members to the U.S. Army Corps of Engineers have stated a key issue of consideration is any long-term flood control solution on Forest Service land will likely take a decade or longer to study and implement, due to factors ranging from environmental considerations to costs. Putting the land under state control might remove some of the regulatory barriers — but also might remove some federal material support and safeguards for a long-term solution.
The U.S. Army Corps of Engineers, for instance, is providing enough military-grade flood barriers for a four-mile semipermanent levee along the most vulnerable side of the Mendenhall River, with the City and Borough of Juneau responsible for the installation and maintenance costs. Similarly, the Corps of Engineers is in the early stages of what would be a long-term study-and-implementation process for a permanent solution, such as drilling a drainage tunnel through a mountain, which CBJ is required to provide some matching funds for.
Meanwhile, a group of Juneau residents is advocating as an alternative solution a levee around Mendenhall Lake, arguing it could be built by next summer if federal rules were waived. That assertion has been challenged by city and federal officials — noting that among other things the safety of its engineering in so short a time couldn’t be guaranteed — but building a levee sooner than might be possible under federal control could emerge as a possibility if the executive order sought by Dunleavy is signed.
Deputy City Manager Robert Barr, when asked for an initial response to that possibility immediately after Dunleavy’s request was released publicly, stated in an email “we’ve been engaged with both State and Federal partners on this topic and will continue those efforts, regardless of the outcome of (the submerged lands) lawsuit.”
However, a concern voiced recently by City Manager Katie Koester is if Juneau rejects solutions the Corps. of Engineers and other federal officials are currently willing to provide, such as the semipermanent river levee, they may not be willing to offer support to other flood-related projects.
Such issues could arise statewide since, in addition to more than 60% of Alaska’s land being owned by the federal government, the state is expected to receive nearly $7 billion in federal funding during the current fiscal year that ends June 30. Alaska’s total operating and capital budgets this year are about $15.7 billion.
Major implications for Tlingit and Haida, other Alaska Native tribes
Dunleavy, in addition to filing numerous challenges to federal authority while governor, has also challenged the authority of tribal entities in Alaska on key matters. Among them is the Tlingit and Haida central council seeking so-called “Indian Country” status for a small land parcel in Juneau that could set a precedent allowing them such sovereignty over some of its other property.
The tribal council reached what it called a landmark agreement for such status under a “land into trust” arrangement with the federal government in November of 2022. However, a federal judge in June of this year invalidated the pact due to a lawsuit by the Dunleavy administration, although the judge did affirmed the right of the state’s 228 federally recognized tribes to put land into trust. The ruling against Tlingit and Haida was based on what the judge deemed a flawed process that could be redone.
Dunleavy, in his request to Trump, states he wants the lawsuit before the U.S. Supreme Court — solidly controlled by conservative members after Trump’s first term in office — “in the next four years.” The governor also requests the U.S. Department of Interior “halt any processing of other (land into trust) applications during the pendency of the litigation, which it can do under its discretion.”
Peterson, in his statement to the Empire, declared “it is both alarming and offensive that the Governor’s second priority targets the ability of Alaska Tribes to place lands into trust — lands that are essential for safeguarding our sovereignty and protecting our tribal homelands in perpetuity.”
“We are further dismayed by the continued lack of transparency and accountability in how the State of Alaska approaches its relationship with tribes,” Peterson stated. “Time and again, tribal governments have been excluded from decision-making processes that directly impact us, violating the State’s responsibility to engage in meaningful consultation, leaving Tribes with another broken promise. The State’s failure to consult with stakeholders, including Tribes, in the creation of this document is a significant oversight.”
Dunleavy’s request for less federal control extends to additional tribal policies involving the 1971 Alaska Native Claims Settlement Act, as well as the Alaska National Interest Lands Conservation Act which ensures a rural subsistence priority. In his written request, the governor states the Biden administration worked “to advance divisive and dubious legal theories and policies to drive a wedge between Alaska’s Native and non-Native citizens; and to usurp State management of its fish and game upon which Alaskans uniquely rely.”
• Contact Mark Sabbatini at mark.sabbatini@juneauempire.com or (907) 957-2306.
