A Report to the People of Alaska 75 Federal Promises: Should They Just be Water Under the Bridge? jules V. Tileston Excluding glaciers, Alaska has 40% of mark remains essentially unresolved the total U.S. fresh water supply. This and more often than not is disputed by large amount of fresh water is distrib­ federal agencies. A good portion of the uted in about 3 million lakes and ap­ foot dragging by the federal govern­ proximately 30,000 rivers, creeks and ment directly stems from the fact that streams. The Alaska Constitution (Article a substantial number of State owned VIII, Section 3) says "Wherever occur­ waterbodies are now within National ring in their natural state, fish, wildlife Conservation System Units (CSUs) and waters re-reserved to the people for managed by the Bureau of land Man­ common use." Section 13 of our Con­ agement (BLM), Fish and Wildlife Ser­ stitution establishes the principal that vice, Forest Service, and National Park water rights are created by prior appro­ Service. In other cases, such as the priation (first in time = first in priority) Fortymile River, and subsistence fish­ for a specified amount and use. ery management, the federal govern­ About 60 % of Alaska is in various ment has attempted to expand its re­ federal ownerships that range from stricted land management authorities small sites for federal administrative to State owned navigable waters. facilities to large military withdrawals, Prior to Alaska Statehood, the Con­ the vast majority of the total National gress passed the McCarran Amendment Park System and National Wildlife Ref­ (1952, 43 USC 666a) that has bearing uge System acreages, and the two larg­ on the way the federal government ac­ est National Forests in the nation. quires water rights. First, it accepts the Under the Alaska Statehood Act," Alaska basic concept that all states have clear owns all inland waters that are navigable authority to manage water rights, in­ and not expressly reserved by the fed­ cluding water on federal lands within a eral gove-rnment at the time Alaska be­ state. These State Rights have been came a full and independent member confirmed by the U.S. Supreme Court of the Union. For example, the es~ab­ in at least two cases (U.S. v Eagle lishment of the Chugach National For­ county, CO, 401 US 520 in 1971, and est, even though well before Statehood, U.S. v New Mexico, 438 US 696 in did not expressly reserve water for the 1978). The McCarran Amendment purposes of the national forest, while also recognizes that federal ownership the creation of the Kenai National of land creates an implied federal re­ Moose Ra~ge (now called the Kenai served water right. Priority for a fed­ National Wildlife Refuge) did. eral reserved water right goes to the date Forty years after Statehood, State the lands were withdrawn from the ownership of the water column and public domain. As opposed to other land between the ordinary high water water rights acquired under State wa- 76 d(2), Part 2 ter law, a reserved federal water right A precedent-setting federal court de­ cannot be lost by non-use. The quan­ cision also has significant ramifications tity of water claimed for a reserved fed­ on State ownership and management eral water right cannot exceed the mini­ of navigable inland waters. The Katie mum amount necessary to fulfill the john v. Babbit, 72 F.3d 698 (9ch Cir. primary purpo~e of the withdrawal. 1996) decision says that the federal Once a federal reserved water right has government has the right to manage been granted by a state, it is incorpo­ subsistence fisheries in all navigable rated into that state's water right sys­ waters where the federal government tem and has no greater rights than any has a reserved water right. other water right holder. Finally, a fed­ eral reserved water right is only implied Kandik, Nation, Black Rivers until such time as there is an applica­ .- A Case History: tion and the application is adjudicated In determining ownerships for the by the state. purpose of conveying land to Alaska The Alaska National Interest Land Native Corporations, BLM makes a de­ Conservation Act (ANILCA) in De­ termination on whether a water body in cember of 1980 created new and ex­ the pending tide transfer from the fed­ panded CSUs throughout Alaska. The eral government was or was not navi­ creation of a CSU in 1980, regardless gable since the federal government can­ of the Congressional management di­ not issue tide to land it does not own. rections, _9id not affect State water man.,. The Kandik and Nation rivers flow agement and ownership or State own­ southward from Canada into the Yukon ership of submerged land for either River near Eagle; the Black flows west­ marine and navigable inland waters erly into the Porcupine River upstream granted in 1959 by the Alaska State­ from Fort Yukon. BLM determined that hood Act. Likewise, the Alaska State­ the headwaters of the Kandik were navi­ hood Act did not affect express federal gable as were the Nation and lower two­ water reservations that were in effe~t at thirds of the Black River. The BLM that time. Thus, the 1980 creation of decision was appealed and prior to a four new National Wildlife Refuges and hearing the representatives of the fed­ a unit of the National Park System eral and state government conducted a along the Yukon River did not change joint field investigation and agreed that the fact that the Yukon Ri:ver and its the U.S. Geological Survey would col­ interconnected sloughs are navigable lect scientific hydrologic data that could and passed to complete State ownership be used at the hearing. Historic docu­ in January of 1959. Yet the State does ments also showed that the survey crew not have quiet tide from the federal marking the boundary of the border government for the Yukon River or its between the U.S. and Canada were sup­ other tributaries such as the Porcupine plied by a motorized boat moving a ton or Tanana, rivers each with a long and of hay upstream on the Kandik. The clear documented factual history of use hearing officer concluded the Kandik for travel, trade and commerce. River was navigable in fact. BLM also A Report to the People of Alaska 77 determined that a substantial portion of it doubled the acreage of federal land the Black River and its interconnected that could be included within the sloughs were navigable and therefore the boundaries of all Alaskan units. Sec­ State owned the land between ordinary ondly, it expressly prohibits inclusion high water marks. Based on these BLM of State and local government owner­ determinations, the State has requested ships and prohibits the boundaries from quiet title from the federal government. effectively encompassing private land. Since the Kandik and Nation rivers now This means that the navigable portions flow through a unit of the National Park of the Fortymile and its principal tribu­ System, and the Black River flows taries are not a part of the National through a National Wildlife Refuge cre­ Wild and Scenic Rivers System and that ated in ANILCA in 1980, the federal no, provisions of the Wild and Scenic government has used a variety of stall­ Rivers Act applies, e.g. this CSU is al­ ing tactics to avoid confirming the fact mo~t totally comprised only of federal that the State ofAlaska got title to all or uplands (humorously referred to as wild significant parts of these three rivers in and scenic bank lands). This same situ­ January 1959. The hydrological facts ation also applies to the Delta, Gulkana, collected by federal scientists for the Unalakleet rivers and Birch and Beaver Kandik River (non-glacial and without creeks CSUs. The Fortymile River is significant feeder lakes, total len'gth within a mining district with more than slightly less than ninety river miles in a a hundred years of almost continuous drainage basin that is under five miles placer gold production that was recog­ wide at its widest with numerous shal­ nized in the federal studies that lead to low gravel bars and sweepers) means that the inclusion of the river in ANILCA. most non-glacial rivers in Alaska are in ANILCA also recognized that the up­ State ownership. The Black River navi­ per portions of the Fortymile River con­ gability determination is being ·stone­ tained mineral deposits that could only walled by the federal governro'ent be­ be developed with road access. Accord­ cause BLM made a determinati~n that ingly, ANILCA provided for road ac­ interconnected sloughs were also in State cess across portions designated as a Wild ownership and there is reluctance to ap­ River Area which was a complete de­ ply this same standard to the Yukon, parture from the precedents set for Wild Porcupine, Tana, Kuskokwim, and other River Areas throughout the Nation. large meandering rivers that are in one BLM has initially determined that sig­ or more CSUs. nificant parts of the Fortymile were navigable and in State ownership. That The Fortymile River Story: early ownership determination does not ANILCA established the Fortymile reflect the fact that it stopped well short River and many of its tributaries as a of the launching site for BLM river unit of the National Wild and Scenic rangers, a site also used by commercial Rivers System. However, ANILCA also and private recreationists, or that the amended the way the Wild and Scenic State has formally asserted additional Rivers System works in Alaska. First, upstream parts of the Fortymile CSU 78 d{2), Part 2 are navigable.