Over Federal Reserved Water Rights
January 05, 2005
"Every governor since statehood has recognized the need to protect the state's control of its navigable waters. I promised the Alaskan people that I would defend the state's right to manage its own resources, whether fish or game, riverbed or seabed. That duty transcends personality and politics," said Governor Frank H. Murkowski.
"This case does not challenge Title VIII's subsistence provisions or the Katie John decision. It simply represents my commitment to vigorously defend Alaskans against an over-reaching federal government."
The statute of limitations requires that the regulations be challenged before January 9, 2005, or they will be immune to legal challenge.
The lawsuit challenges regulations that, in some cases, expand federal jurisdiction over state and private lands and over marine waters beyond the mean high tide mark. The lawsuit will also challenge federal jurisdiction over certain waterways and water bodies where reserved water right reservations have not been established.
In 1995, the 9th Circuit Court of Appeals decided in the Katie John case that the federal subsistence priority in ANILCA applies not just to land but also in certain navigable waters. The Court directed that this priority apply where there is a federal reserved water right.
The new lawsuit does not challenge the 9th Circuit Court decision in the Katie John case. Rather, it maintains that the Interior and Agriculture Departments have not followed the process set out by the courts to define the extent of the federal reserved water rights and that the regulations have expanded federal jurisdiction beyond that which the court intended.
The U.S. Supreme Court has spelled out exact standards for establishing reserved water rights. If standards specifically referenced in the Katie John decision are not followed, no federal water right can be established. The Clinton-era regulations did not attempt to satisfy those requirements, and instead claimed reserved water rights in thousands of waterways without presentation of any supporting law or facts.
The federal government claimed water rights on state waters both upstream and downstream of federal conservation system units in addition to some state marine waters. The state's complaint cites several locations where the federal government has improperly asserted authority, including the Nushagak River in Bristol Bay, the Egegik River on the Alaska Peninsula, and marine lands and tidelands at Tuxedni Bay on Cook Inlet.
"I have reached out to leadership of the Alaska Native community to advise them of the state's action and the reasons behind it," said the governor. "We are all Alaskans, and I believe we will all benefit from clarifying this issue over reserved water rights."
Wayne Regelin, Acting Commissioner of the Alaska Department of Fish and Game (ADF&G) expressed ADF&G's support for Governor Frank Murkowski's decision to challenge federal regulations implementing the Katie John decision as they relate to federal reserved water rights.
"ADF&G applauds Governor Murkowski's decision to assert sovereignty by challenging these federal regulations, which extend federal authority beyond what the court directed in the Katie John decision," said ADF&G Acting Commissioner Wayne Regelin. "Such inappropriate and unnecessary extensions of jurisdiction affect not only subsistence use of fish and wildlife, but the ability of the state to develop other natural resources adjacent to and underlying navigable waters, tidelands and marine waters."
Historically, the Alaska Board
of Fisheries and Board of Game have also supported the State
of Alaska's rights to both conserve and develop fish and game
resources, and to manage and allocate those resources for the
benefit of Alaskans. Art Nelson, Chairman of the Board of Fisheries,
anticipates that both boards will continue their joint and independent
work to protect those important rights.
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