State Continues Push for Control of Waters on Federal Lands
By Hal Shepherd
Last August, employees of the Alaska Department of Natural Resources (DNR) flew to the Lake Clark National Park and Preserve to study the Necons River. The so-called “Public Access Assertion and Defense team“ is a group of roughly a dozen state workers who came to the federally managed Park to assert what the Dunleavy Administration believes are legal rights to land beneath the navigable waters of the river.
As part of a renewed push to confirm ownership of land that Alaska’s government says became state property at statehood, the Defense Team made similar trips on other rivers within federal parks and preserves throughout the summer in hopes of ultimately settling the ownership of thousands of miles of Alaska riverbeds, plus millions of acres beneath the surface of lakes.
According to Nathaniel Herz of the Northern Journal, “for more than a half-century, Alaska land managers have been fighting successive federal administrations through the courts as well as lengthy administrative processes — battling what they describe as an unwillingness to negotiate from officials of both political parties at the U.S. Department of the Interior, the federal land management agency.”
In addition to the belief that the federal government should not be interfering in Alaska’s business, DNR officials also express a sense of elitism about being Alaskan. According to Jim Walker, the Public Access Team’s chief, decisions about how to manage Alaska’s navigable waterways, “should be made by Alaskans, and not made in Washington by folks who don’t appreciate and haven’t experienced this place.”
This is why the Defense Team sees itself as warriors in a battle to protect state sovereignty from federal overreach. Walker describes the team members as “hard chargers“ willing to tough it out in the wilderness, using drones, data loggers, flow meters, and notebooks to prove navigability on contested rivers one by one.
When visiting the Necons River, the Team’s unwavering loyalty to State’s rights is palpable. More than four decades ago, the federal government determined that the Necons was non-navigable, and hasn’t changed its position since then. According to Jon Fuller, a consulting hydrologist assisting the Team, “It’s astounding the federal government is wasting everyone’s money fighting this.” More to the point, Opsahl, the state attorney, exclaimed about the Necon “[i]f this isn’t fucking navigable, I don’t know what is.”
Such enthusiasm for water sovereignty among Alaska officials stems from the claim that the U.S. Constitution and federal law grant the State of Alaska exclusive rights to navigable waters and submerged lands within its borders. This argument is based primarily on a 2019 U.S. Supreme Court decision that under the Alaska National Interest Lands Conservation Act, the Nation River inside the Yukon Charlie National Park and Preserve, did not qualify as “public land” and the National Park Service, therefore, did not have the authority to prohibit specific activity of the River found within the preserve. In reference to the Sturgeon decision, Walker says “[a]s has been said repeatedly, in U.S. Supreme Court opinions and elsewhere: Alaska is different.”
Yet, while it is generally considered that if a stream is determined to be navigable, the State has jurisdiction over the “bed and banks,” the one nagging question about the State’s claim to complete control of the rivers that the Access Team is studying is the fact that each one is located on federal land. In such cases, therefore, the Supreme Court has consistently rejected complete ownership of water by either the federal or State governments, and state claims of ownership generally do not justify interference with valid federal rights to the uses of that water.
Nevertheless, shortly after the Sturgeon decision, Governor Dunleavey called the plaintiff, John Sturgeon, “a hero” and then announced that, “I am asserting the state’s control of the navigable waters and submerged lands we received at statehood, and our right to manage them in Alaskans’ best interests.” For the highly litigious Dunleavy administration, such an assertion has meant the filing of a fleet of quiet title actions on key rivers throughout the state, sponsoring legislation, and applying the State’s rights rhetoric to support its claim that the State owns all submerged lands within its boundaries.
And while the State has had some wins, including control of land beneath the Stikine River in Southeast Alaska, the Knik River outside Anchorage, and multiple forks of the gold-bearing Fortymile River in the Interior, it lost a case for control of the Mendenhall River. The others are still in court, moving into the discovery and trial phases. Such cases can take a long time to work their way through the courts because the questions about navigability are fact-intensive and will likely go to trial, which is why the work on the ground conducted by the Defense team is so expensive.
At the center of this dispute is a 9th Circuit Court of Appeals decision in the Katie John line of cases, which says that the Alaska National Interest Lands Conservation Act established the Subsistence Priority for the benefit of rural Alaskans on federal lands. Not only does the decision therefore protect the fishing rights of Alaska Native communities, but it also helps mitigate dwindling salmon runs by restricting the right to fish for them in federal rivers and streams to only those communities. In fact, it is for this reason that Alaska tribal communities are mortified at the prospect of the state obtaining control over rivers running through federal lands.
This is why, in September 2025, Tribes throughout Alaska celebrated the Ninth Circuit’s reaffirmation of its prior decision in Katie John by upholding the rural preference in a lawsuit between the state and federal governments over fishing in the Kuskokwim River – a decision that the State has appealed to the U.S. Supreme Court.
Another reason for the Defense Team’s stepped-up work is that, among other resource-exploitation incentives, President Donald Trump’s Unleashing Alaska Executive Order (EO) directs the Secretary of the Interior to review lands and make recommendations on which waterways should be “restored” to the State.
In fact. Taking advantage of this language in the Unleashing EO, Jim Walker and other State officials recently met with the Trump administration to obtain the Department of the Interior’s agreement to relinquish jurisdiction over rivers throughout the State, rather than having to prove ownership one at a time. According to Walker, “[i]nstead of going through and giving minute details about every mile of these rivers, we talk, rather, about our methodology and why it’s so sound. “
Under the Trump administration, which is known for its dislike of vast national parks and monuments in Alaska, which previous democratic administrations created,[1] there is little doubt that the State will get its wish. If the federal government gives into the State on the navigability question, combined with a likely victory for the State at the U.S. Supreme Court in the Kuskokwim Litigation, this would further threaten the Katie John precedent and be a significant blow to Native Fishing rights and to the protection of salmon in rivers running through federal lands throughout the State.
[1] Harold Shepherd, Return to Ekeunick’s Time, Defending Waters and Tradition in the Arctic, p. 155, (October 2024).