In a lawsuit filed by Gov. Mike Dunleavy last week, the state is claiming ownership of Mendenhall Lake and the portion of Mendenhall River upstream from the bridge on the Backloop Road. Now I’m not qualified to judge whether the state will succeed in this case. But it’s not the slam dunk Dunleavy wants us to believe it is.
According to Akis Gialopsos, the acting commissioner of Department of Natural Resources, “Everyone knows” the state has owned the lake and river “since the date of statehood.”
The idea that “everybody knows” anything is worthless political rhetoric. And in this case, the opposite would be closer to the truth. For 60 years everyone had good reason to believe that the lake and river were the property of the federal government.
Dunleavy isn’t claiming ownership actual water surface, but rather the right to regulate their use as the legal owner of the submerged lands below them. And the Mendenhall isn’t the only place he’s pursuing this kind of action. It’s part of his statewide “Unlock Alaska” initiative in which he claims the feds are resisting turning over title to about 26 million acres.
“After decades of federal obstruction and delay” he wrote in March, “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. It is my hope federal authorities will abandon their strategy of litigation and delay, and instead chose to save millions of dollars by working cooperatively with the state.”
The Mendenhall lawsuit claims “the State obtained ownership” of the submerged lands “on the date of statehood.” But “the United States has failed to acknowledge the State’s ownership” and “did not convey [it] to the State at statehood.”
But nowhere does it describe decades of federal obstruction, delay, or a strategy of litigation. That’s because lawyers can be disbarred for knowingly submitting false statements like that to the court.
The Mendenhall Glacier Recreation Area Management Plan is central to this dispute. It was established by the U.S. Forest Service in 1960 and they’ve managed it ever since. The plan was revised in 1996 and again in 2015. The lawsuit briefly describes the changes regarding boating on the river and lake. But there isn’t a word about the state objecting to any part of the plan or claiming ownership either time.
The truth is that through the first 58 years of statehood, Alaska’s governors either didn’t know the state was that rightful owner of millions of acres of submerged lands. Or they weren’t concerned the feds were regulating the navigable waterways above them.
And Alaska’s residents knew and cared even less.
That began in to change about 15 years ago.
For years, John Sturgeon had been operating a hovercraft on a stretch of the Nation River located within the boundaries of a federally protected area. Then in 2007, he was told by park rangers that doing so violated federal regulations. He sued the federal government. After losing in district court and again in the 9th Circuit Court of Appeals, the U.S. Supreme Court ruled unanimously in his favor.
It’s important to recognize that a private citizen won that case. And not until March 2019.
However, the precedent established by that case isn’t necessarily applicable to the Mendenhall Lake and River.
It has yet to be determined if those are navigable waterways used for commerce as defined by federal law. And in August, the Secretary of Agriculture who oversees the Forest Service stated that the submerged land below them “were reserved to federal ownership prior to Alaska statehood and retained in federal ownership at statehood.”
To Gialopsos, that disagreement is the federal government choosing “to gaslight the public into believing that Alaska is not the rightful owner.”
Dunleavy is trying to spin a relatively recent Supreme Court ruling into a fact known at the time of statehood. He wants the public to believe every one of his predecessors knowingly ignored that supposed historical fact to the detriment of Alaska’s citizens. And erase six decades of genuine public trust that the U.S. Forest Service was the rightful custodian of the Mendenhall Glacier Recreation Area.
That’s the real gaslighting.
• Rich Moniak is a Juneau resident and retired civil engineer with more than 25 years of experience working in the public sector. Columns, My Turns and Letters to the Editor represent the view of the author, not the view of the Juneau Empire. Have something to say? Here’s how to submit a My Turn or letter.
