| Arolik River - Latest News |
Following are a series of e-mails and references we received f rom the Alaska Department of Fish and Game.
From: "Brad Palach"
To:
Subject: Arolik River
Date: Wed, 7 Mar 2001 10:40:43 -0900
Lester and Jill
This is Brad Palach, from the Ak. Dept. of Fish and Game. I normally work in
Dillingham in the summer for commercial fisheries but this winter I am
working in Anch. For them.
I was trying to get ahold of you concerning a message on your web site that
says that you are no longer able to offer drop offs for rafting on the
Arolik River. I'd like to talk to you about it.
I'll also call and leave a message on your answering machine.
Thanks
Brad Palach
From: "Kamie Simmons" <Kamie_Simmons@fishgame.state.ak.us
To: <FRESHH2O@FRESH-H2O.com
Subject: Arolik River
Date: Wed, 4 Apr 2001 16:07:53 -0800
Mr. Bingman,
Sorry for the delay in contacting you. We have been in a whirlwind here at
the office. Between travelling and having to move our offices in order to
recarpet, we have been somewhat unable to function at our normal rate. Brad
Palach gave me your name and asked me to contact you regarding issues
occuring on the Arolik River.
I have been in touch with Dean Vogt (he got me just as I was reconnecting my
phone) and he expressed his concerns regarding Quinhagak's exclusive lease
with Mission Lodge.
There are two issues surrounding the Arolik River that we are working on
right now. I will briefly explain:
1) At the time of conveyance for Quanirtuuq, Inc. the Bureau of Land
Management determined that portions of the Arolik River were non-navigable
and conveyed the shorelands to the corporation as part of their entitlement
under the Alaska Native Claims Settlement Act (ANCSA). However, the State
of Alaska received title to inland navigable waterbodies as provided in the
Alaska Statehood Act of 1958 and the U.S. Submerged Lands Act of 1953.
Thus, the State of Alaska asserts that those shorelands were not in federal
ownership and were not BLM's to convey. Either BLM could correct the
navigability decision based upon a request from the corporation or it will
have to be resolved in court.
2) Our program received information that the Togiak Refuge was giving out
incorrect information on floating the Arolik River. Our office, as part of
an interagency navigability and access team (with Dept. of Natural Resources
and Law), sent a letter (attachment #5) to the refuge explaining the
public's rights of access and asked that at the receipt of the letter they
would start giving out the correct information. To date we have not
received a response from them.
Our state statutes and constitution (attachments 1 & 2) have clear language
regarding the public's right to use and enjoy public resources, including
navigable water. In essence, regardless of ownership of the shorelands, the
public has a right to use and access navigable and public waters. There is
no exclusive right to use of waters within the State of Alaska. All
navigable and public waters are held in trust by the state for the public to
use for public purposes protected by the Public Trust Doctrine (attachment
#4). No single entity can restrict public access on a navigable or public
water. Nor can they charge a fee for use of the water column below the
ordinary high water mark (attachment #3).
I am writing this to you in part because I will be leaving on vacation on
friday April 6th and will not return to the office until April 23. If you
have further questions, please contact Tina Cunning, my supervisor, at
267-2248. In the meantime, I would encourage you to provide the attached
information to other interested parties. I will be looking forward to
talking to you when I return.
Sincerely, Kamie
Article
VIII, section 3 states that:
Wherever occurring in their
natural state, fish, wildlife, and waters are reserved to the people for
common use.
Article
VIII, section 15 provides, in pertinent part:
No exclusive right or special
privilege of fishery shall be created or authorized in the natural waters of
the State...
Article
VIII, section 14 states:
Free access to the
navigable or public waters of the State, as defined by the legislature, shall
not be denied any citizen of the United States or resident of the State,
except that the legislature may by general law regulate and limit such access
for other beneficial uses or public purposes.
The
legislature has defined navigable waters in AS 38.05.965(13) as follows:
"navigable waters" means any water of the state forming a river, stream, lake, pond, slough, creek, bay, sound, estuary, inlet, strait, passage, canal sea or ocean, or any other body of water or waterway within the territorial limits of the state or subject to its jurisdiction, that is navigable in fact for any useful public purpose, including but not limited to water suitable for commercial navigation, floating of logs, landing and takeoff of aircraft, and public boating, trapping, hunting waterfowl and aquatic animals, fishing, or other public recreational purposes.
The Legislature further interpreted the constitutional protections for public use of the waters in an act relating to the navigable or public waters of the state, declaring in the preamble that:
(a)
The people of the state have a constitutional right to free access to
the navigable or public waters of the state.
(b) Subject to the federal navigational servitude, the state has full power and control of all of the navigable or public waters of the state both meandered and unmeandered, and it holds and controls all navigable or public waters in trust for the use of the people of the state.
(c)
Ownership of land bordering navigable or public waters does not grant
an exclusive right to the use of the water and any rights of title to the land
below the ordinary high water mark are subject to the rights of the people of
the state to use and have access to the water for recreational purposes or any
other public purposes for which the water is used or capable of being used
consistent with the public trust.
(d)This
Act may not be construed to affect or abridge valid existing rights or create
any right or privilege to the public to cross or enter private land.
85 SLA chap. 82
ALASKA STATUTES
38.05.126.
Navigable and public water.
(a)
The people of the state have a constitutional right to free access to and use
of the navigable or public water of the state.
(b)
The state has full power and control of all of the navigable or public water
of the state, both meandered and unmeandered, and the state holds and controls
all navigable or public water in trust for the use of the people of the state.
(c)
Ownership of land bordering navigable or public water does not grant an
exclusive right to the use of the water and a right of title to the land below
the ordinary high water mark is subject to the rights of the people of the
state to use and have access to the water for recreational purposes or other
public purposes for which the water is used or capable of being used
consistent with the public trust.
(d)
This section may not be construed to affect or abridge valid existing rights
or create a right or privilege of the public to cross or enter private land.
Sec.
38.05.127. Access to navigable or
public water.
(a)
Before the sale, lease, grant, or other disposal of any interest in state land
adjacent to a body of water or waterway, the commissioner shall,
(1)
determine if the body of water or waterway is navigable water, public water,
or neither;
(2)
upon finding that the body of water or waterway is navigable or public water,
provide for the specific easements or rights-of-way necessary to ensure free
access to and along the body of water, unless the commissioner finds that
regulating or limiting access is necessary for other beneficial uses or public
purposes.
(b)
The department shall adopt regulations implementing this section.
(c)
Nothing in this section affects valid existing rights or limits in any way the
constitutional right of the public to use and have free access to the
navigable or public waters of the state.
(d)
Upon application by a municipality or an affected owner of land, the
department may vacate, release, modify, or relocate an easement and
right-of-way for public access to or along navigable or public waters reserved
by the department in a patent issued under AS 29.65 or former AS 29.18, if the
commissioner determines the action is consistent with the public interest.
(e)
The establishment of easements or rights-of-way for oil and gas and mineral
leases under (a) of this section need not be made until the leases are ready
to be developed.
(f)
Rights-of-way or easements to waterways established under (a)(2) of this
section shall be established approximately once each mile unless the
commissioner makes a written finding that regulating or limiting access is
necessary for other beneficial uses or public purposes.
(g)
The commissioner may exchange land under AS 38.50 to create access to public
water of the state.
Sec.
38.05.128. Obstructions to
navigable water.
(a)
A person may not obstruct or interfere with the free passage or use by a
person of any navigable water unless the obstruction or interference is
(1)
authorized by a federal agency and a state agency;
(2)
authorized under a federal or state law or permit;
(3)
exempt under 33 U.S.C. 1344(f) (Clean Water Act);
(4)
caused by the normal operation of freight barging that is otherwise consistent
with law; or
(5)
authorized by the commissioner after reasonable public notice.
(b)
An unauthorized obstruction or interference is a public nuisance and is
subject to abatement. The cost of abatement shall be borne by the violator and
is in addition to any penalty imposed by the court.
(c)
This section may not be construed to affect or abridge valid existing rights.
(d)
Free passage or use of any navigable water includes the right to use land
below the ordinary high water mark to the extent reasonably necessary to use
the navigable water consistent with the public trust.
(e)
Free passage or use of any navigable water includes the right to enter
adjacent land above the ordinary high water mark as necessary to portage
around obstacles or obstructions to travel on the water, provided
(1)
entry is made without injury or damage to the land;
(2)
entry is made in the least obtrusive manner possible;
(3)
there is no reasonable alternative available to avoid the use of the adjacent
land above the ordinary high water mark; and
(4)
the navigable water is reentered immediately below the obstacle or obstruction
at the nearest point where it is safe to do so.
(f)
A violation of (a) of this section is a class B misdemeanor.
Public
Trust Doctrine
The Public Trust Doctrine provides that
public trust lands, waters and living resources in a state are held by the
state in trust for the benefit of all the people, and establishes the right of
the public to fully utilize the public trust lands, waters, and resources for
a wide variety of public uses. Each
state has the authority and responsibility for managing these public trust
assets to assure the public rights are upheld.
The Public Trust Doctrine applies whenever navigable waters or the lands beneath those waters are altered, developed, conveyed, or otherwise managed. It also applies whether the trust lands are publicly or privately owned. Public trust lands are generally those lands below navigable waters, with the upper boundary being the ordinary high water mark. Tidelands, shorelands of navigable lakes and rivers, as well as the land beneath oceans, lakes and rivers are usually considered public trust lands.
The Alaska Constitution contains numerous provisions embracing principles of the Public Trust Doctrine that require the state to exercise authority to ensure that the right of the public to use navigable waters for navigation, commerce, recreation, and related purposes is protected. In Alaska, the Public Trust Doctrine extends beyond those submerged lands in which the state holds title to include all waters that are navigable. The state’s waters are themselves reserved to the people for common use.
The Alaska Constitution (Article
VIII, sections 1, 2, 3, 6, 13, and 14) and Alaska Statutes (38.05.127 and
38.05.128) contain some of the provisions that are the legal basis for
applying the Public Trust Doctrine in Alaska.
In Alaska, this doctrine guarantees the public’s right to engage in
activities such as commerce, navigation, fishing, hunting, trapping, and
swimming, while also providing for the protection of areas for ecological
study.
The
Alaska Constitution provides that "free access to the navigable or public
waters of the state, as defined by the legislature, shall not be denied any
citizen of the United States or resident of the state, except that the
legislature may by general law regulate and limit such access for other
beneficial uses or public purposes."
The Alaska Supreme Court has concluded “the provisions in article
VIII [of the Constitution] were intended to permit the broadest possible
access to and use of state waters by the general public.” Wernberg
v State, 516 P. 2d 1191, 1198-9 (Alaska 1973).
The Alaska legislature has broadly defined the navigable and public
waters available for public use in AS 38.05.965.
Moreover, the legislature
has endorsed a broad interpretation of the Public Trust Doctrine
constitutionalized in article VIII in finding that:
Ownership of land
bordering navigable or public waters does not grant an exclusive right to the
use of the water and any rights of title to the land below the ordinary high
water mark are subject to the rights of the people of the state to use and
have access to the water for recreational purposes or any other public
purposes for which the water is used or capable of being used consistent with
the public trust. sec. 1, ch. 82,
SLA 1985.
The
legislature has also declared that the right to use state waters does not
include the right to enter or trespass upon private lands.
Nevertheless, with 99 percent of Alaska in
public ownership at statehood, federal and state laws providing that the
transfer of land to private parties also provide for public access to
navigable waters have had broad effect. For
instance, AS 38.05.127 implements the state constitutional guarantee of access
to navigable waters under Article VIII, Section 14. Under the statute, the Commissioner of the Alaska Department
of Natural Resources must "provide for the specific easements or
rights-of-way necessary to ensure free access to and along the body of water,
unless the Commissioner finds that regulating or eliminating access is
necessary for other beneficial uses or public purposes."
INTERAGENCY NAVIGABILITY TEAMDEPARTMENT OF NATURAL RESOURCES
DEPARTMENT OF FISH AND GAME
TONY KNOWLES, GOVERNOR
DNR
550 W. 7th AvenueAnchorage, AK 99501, Suite 1050-A
(907) 269-8525
www.dnr.state.ak.us/land/nav.htm
ADF&G
333 Raspberry Rd
Anchorage, AK 99518
(907) 267-2242
December
27, 2000
Mr.
Aaron Archebique, Refuge Manager
Togiak National Wildlife Refuge
U. S. Fish and Wildlife Service
P. O. Box 270
Dillingham, AK 99576
Dear
Mr. Archebique:
On December 11-12, 2000, staff from the Departments of Natural Resources (ADNR) and Fish and Game (ADF&G) attended a Togiak Refuge Comprehensive Conservation Plan planning team meeting in Dillingham. The Arolik River was one of several watersheds discussed during the course of this meeting. Unfortunately, Refuge staff provided inaccurate information concerning public access to and use of the Arolik River. We would appreciate your assistance in distributing the following information to aid your staff in addressing the issue properly in the future.
The
State of Alaska asserts that the Arolik River is navigable in its entirety
from Arolik Lake to its mouth at Kuskokwim Bay.
Because the river was navigable in its ordinary condition at the time
of statehood, title to its shorelands below the ordinary high water (OHW) mark
passed to the State of Alaska at statehood under the equal footing doctrine,
the Submerged Lands Act, and the Alaska Statehood Act.
The State of Alaska is aware that the Bureau of Land Management (BLM),
fulfilling its duties under the Alaska Native Claims Settlement Act (ANCSA),
purported to convey some state shorelands underlying the Arolik River to
Qanirtuuq, Inc. But it is the
State of Alaska’s position that such conveyance, based upon an erroneous
navigability determination, can have no effect on the state’s title to the
shorelands underlying the Arolik River. Since
that conveyance, the federal courts have clarified the standards for
navigability for title. Under
that clarified standard, the BLM has determined other portions of the Arolik
River to be navigable for title purposes.
Whether
or not the federal government agrees that the entire Arolik River is navigable
for title purposes, the public has a constitutional right to access and use
the state’s navigable and public waters. See
Alaska Const. art. VIII, sec. 14. Under state law, navigable waters include
any water of the state that is navigable in fact for any useful public
purpose, including boating, hunting, fishing, and other recreational purposes.
See AS 38.05.965.
There is no question that the Arolik River is navigable under the state
law definition. As such, public
use is protected. Ownership of
land bordering navigable or public water does not grant an exclusive right to
the use of the water, and any right of title to the land below the OHW mark is
subject to the right of the people to use and have access to the water for
purposes consistent with the public trust. See
AS 38.05.126. Such uses
include fishing, floating or boating, and related anchoring.
Accordingly,
though a landowner has the right to contract with a guide to provide exclusive
use and access to its uplands, a landowner has no right to limit--by contract
or otherwise--public use of adjacent water.
Use of the water and shorelands consistent with the public trust does
not constitute trespass. On the
contrary, it is a misdemeanor to interfere with or obstruct a person’s free
passage or use of navigable water, including the reasonable use of the land
below the OHW mark. See AS 38.05.128.
In
addition, the opinion expressed by Refuge staff that floating the Arolik River
is nearly impossible without trespassing on the uplands above the OHW mark
should be tempered by acknowledgement that a person wishing to land on Arolik
Lake and float or fish the Arolik River may do so without permission or
permits so long as his or her activities occur below the OHW mark or fall
within the limited privilege to portage.[1] The State of Alaska strongly encourages those who wish to
float the river but are uncertain whether their activities will include use of
the uplands above the OHW mark, to obtain all the necessary permits from the
adjacent landowner in order to avoid trespass.
But at the same time, the State of Alaska has a responsibility to
educate landowners adjacent to navigable or public waters--and others--about
the public’s right to use such waterways.
We
want to ensure that correct information is available to the public in the
future. Attached is a handout of
the current state statutes as well as the pertinent excerpts from the state
constitution. If you have any
questions regarding the state’s position on the navigability of the Arolik
River or the right of public use, please contact one of us.
Sincerely,
Tina Cunning
Dick Mylius
Department of Fish and Game
Department of
Natural Resources
267-2248
269-8532
