Gov. Mike Dunleavy’s “land management gambit” needs a more critical review than you gave it. His executive order purports to impose state management on “all navigable waterways” and their associated submerged lands in Alaska, but it cannot do that.
First, state jurisdiction extends only to those waterways formally determined to be “navigable” for title purposes, under factual and legal tests going back to the 1800s. If the United States contests navigability, then a federal court must decide.
Second, state jurisdiction applies only to waterways on federal lands that were “unreserved” at the time of Alaska statehood in 1959; that is the date Alaska is deemed to have received title to navigable water bottoms. While this includes many of the “national interest lands” that were designated by ANILCA — the Alaska National Interest Lands Conservation Act — in 1980, it does not include all of them. Any federal land withdrawal that pre-dated statehood is excluded. This means that the governor’s order cannot reach waters in the original Mt. McKinley Park, Katmai and Glacier Bay monuments, the pre-statehood national wildlife refuges in Alaska, or the Chugach and Tongass national forests.
Finally, the United States does not have an unmet “promise” to Alaska regarding 360,000 acres of federal land “promised” to the University of Alaska. Section 6(k) of the Statehood Act repealed the 1915 university land grant to the territory, except for designated sections of land in the Tanana Valley that had been reserved by surveys approved before the date of the Statehood Act. Any lands not subject to approved surveys failed to be reserved and “promised” to the new state under the explicit terms of the Statehood Act, which the voters of the territory had agreed to.
It was anticipated that the new state would make its university whole as to any designated sections of land that had not been surveyed and reserved by the date of statehood, to be drawn from the state’s generous 103.5 million acre statehood land grant from the United States. However, that has not happened. Sen. Lisa Murkowski is, of course, free to sponsor a new federal promise for university lands to the state. However, the pre-statehood promise of university lands was clearly repealed in 1959, with the complete knowledge and consent of the territory’s voters.
— Thomas E. Meacham
Anchorage
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