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Thread: State takes a stand on Chuit River Access

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    Exclamation State takes a stand on Chuit River Access

    DEPARTMENT OF NATURAL RESOURCES

    OFFICE OF THE COMMISSIONER t

    SEANPARNELL, GOVERNOR
    Q 550 WEST 7 AVENUE, SUITE 1400
    ANCHORAGE, ALASKA 99501-3650
    PHONE: (907) 269-8431
    FAX: (907) 269-8918

    April 20, 2010
    Mr. Tom Harris, CEO
    Tyonek Native Corporation
    1689 "C" Street, Suite 219
    Anchorage, Alaska 99501-5131 .
    Dear Mr. Harris,
    It has come to my attention that Tyonek Native Corporation (TNC) is currently publishing and distributing a brochure (attached) in which TNC claims ownership of the entire bed of the Chuitna River. The brochure also states "because the riverbed of the Chuitna is privately owned, walking, wading or standing on the riverbed is also considered trespassing." I also understand that the Tyonek Lodge, which is owned by TNC, now claims "exclusive fishing rights" to at least the lower 10 miles of the Chuitna River on their web page at http: / / www. tyoneklodge. com / location, htrn.
    Upon statehood, the State of Alaska received ownership of the beds of Alaska's streams, rivers, and lakes that are used or susceptible to use for navigation, together with ownership "of the resources within such lands and waters" and dominion over such waters, as a matter of federal law. That includes, as a matter of law, any portion of that river bed or Cook Inlet tidelands permanently or periodically covered by tidal waters. Accordingly, under federal law the Bureau of Land Management (BLM) could not convey the bed or waters of the Chuitna River, or "the resources within" them. They were not the federal government's to convey, including to TNC. The Chuitna River is navigable up to the state-owned uplands upstream of TNC's uplands. It is owned by the state, wherever it flows between TNC's uplands.
    Navigability determinations made by the BLM for the limited purposes of acreage calculations and 17(b) easement assessment did not quiet title to these submerged and submersible lands, waters and resources. In addition, TNC is not the owner of the entire uplands surrounding the river, as claimed in your webpage and the attached brochure.
    Moreover, regardless of state ownership of the river bed and resources under federal law, the general public has a constitutional and statutory right under state law to access and use the Chuitna River and similar rivers, including the beds and banks of those rivers below the ordinary high water mark. Those waters cannot be privately owned, and the river beds, regardless of who owns
    April 20,2010 Page 2 of4
    them, are available for public use protected by Alaska law. Protected activities within those waters and river bed include the right to boat, fish, stand, and walk or participate in any other activity protected by the public trust, under state dominion and control.
    Section 14, Article VIII of the Alaska Constitution specifically provides: "Free access to the navigable or public waters of the State, as defined by the legislature (emphasis added), shall not be denied any citizen of the United States or resident of the State," except as regulated or limited by the state legislature. Alaska Statute (AS) 38.05.126 reiterates the public's constitutional rights to "free access to and use of the navigable or public water of the state" and declares that the state holds and controls those waters in trust for the public use. Any private right of title to the land below the water body's ordinary high water mark is "subject to the rights of the people to use and have access to the water for recreational purposes ... consistent with the public trust." Free passage or use by the public of any navigable water is also provided by AS 38.05.128. Under those state laws, navigable water is defined broadly by AS 38.05.965 (13) and public water is defined broadly by AS 38.05.965 (18). Under AS 11.76.110, interference with a constitutional right is a Class A misdemeanor, and under AS 38.05.128 unauthorized obstruction or interference with the free passage or use of any navigable water as defined under state law is a Class B misdemeanor.
    The Chuitna River has been identified by the Alaska Department of Fish and Game as being important for the production of Chinook, chum, pink, and coho salmon, as well as Dolly Varden char and rainbow trout. In addition, affidavits and other reports documenting use of the Chuitna River for fishing and by watercraft in navigation have been submitted by the state to TNC and the federal government. TNC's various publications proclaim the good salmon and trout fishing found within the Chuitna River. Based on this and other information, the Chuitna River is clearly a navigable and public water body under state law.
    The bed and waters of the Chuitna River are thus reserved for public use under Alaska law. This includes the stream's gravel and sand bars, whether covered by water or exposed, as long as they are below what is legally known as the ordinary high water mark. Normally, the ordinary high water mark is observed as the discernible line impressed by erosion on the upper edge of a stream bank.
    Aerial photographs of the Chuitna River upstream of its tidelands show a river generally contained between its banks, including several often exposed sand and gravel bars. Use of the streambed, including those bars, in connection with fishing, boating, or floating the stream, is part of the protected public use. This protected use also includes walking and standing within the stream and upon its bars and anchoring or exiting a boat, raft or other watercraft while boating or floating the stream. Such uses do not constitute trespass.
    In addition, AS 38.05.128 provides that the free passage or use of any navigable water "includes the right to enter adjacent land above the ordinary high water mark as necessary to portage around obstacles or obstructions to travel on the

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    water," provided that entry is made in the least obtrusive manner possible and without injury or damage to the adjacent lands, there is no reasonable alternative to that entry, and the navigable water is re-entered immediately below the obstacle or obstruction at the nearest point where it is safe to do so.
    The public's right to use the Chuitna River does not include the right to enter, cross, or use adjacent uplands in private ownership except in the circumstances relating to safe portage described above. Legal access to the Chuitna River is available to the public in a number of ways: by boat, over state-owned tidelands at the mouth of the Chuitna River, through the section line easement on the north side, and at the ANCSA 17(b) easement issued on the lands interim conveyed to TNC. This 17(b) easement is 25 feet wide and provides for public travel by foot and small all-terrain vehicle from the Pan American Highway at approximately mile 7, to the 17(b) site at the edge of the Chuitna River. Boating or walking the river using inflatable rafts or other means is possible from this 17(b) access point. Travel by boat or other means along Cook Inlet waters and tidelands, and up the waters, tidelands and other bed lands of the Chuitna River, is also permissible, assuming all applicable laws and regulations of the government are followed. Once people reach the Chuitna River by such means, they have the right to fish throughout the river and its riverbed below the ordinary high water mark. They can do so from a boat, or by standing within the river or upon its exposed gravel or sand bars, or from a log, other timber, or rock within the river or riverbed. The public must, of course, abide by the applicable fishing regulations for that area.
    Therefore, advertising by TNC, or by any other adjacent landowner, that it owns the Chuitna River or river bed or has exclusive fishing rights on the river, or posting of notice by anyone that boating, walking, wading or standing within the river or river bed is considered trespassing, is false and a misrepresentation of the facts. Further, these actions may constitute interference with the public's constitutional and statutory rights to access and use of a water body defined as navigable by state law.
    The State advises Tyonek Native Corporation and its agents to immediately cease and desist any and all actions that may violate the aforementioned provisions of law, including any actions that interfere with lawful public access to and on the river, including its streambed. As part of stopping such interference, Tyonek Native Corporation and Tyonek Lodge must remove all references to exclusive fishing rights including any inference of trespass on the river bed, and respect all rules of law associated with the public use of public resources and waters in the Chuitna River. The state requests TNC to refer the public to the ADF&G Chuitna River access presentation, previously agreed upon by TNC, which is available on the ADF&G website at: http://www.sf.adfg.state.ak.us/SARR/ access / index, cfrn/ FA/ chuit. overview.

    Thomas E. Irwin Commissioner

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    Member DRIFTER_016's Avatar
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    Default

    Very nice!!!
    Thnaks for the info.
    I gues now there will be no gun toting thugs trying to imtimidate people just out trying to enjoy the river.

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    Member AKMarmot's Avatar
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    Default win one for the good guys

    Thanks for the info,
    We should see if we can get a few members together sometime in king or silver season & go over as a small group for the day

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    Thumbs up

    Good. Now lets go over and rub it in!
    "Ya can't stop a bad guy with a middle finger and a bag of quarters!!!!"- Ted Nugent.

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    Great news!
    Alaska: We're all here cuz we're not all "there"

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    Default 2 birds w/ one stone

    This kind of statement needed to come out due to increased intimidation tactics over there... in addition, this runs policy-making hand in hand with what has been recently said concerning the 'under the radar' mining issues.

    With a bit of luck... it will catch on to dozens of cases where it's total frustration for un-'rightful' intimidation (pamphlet and signage, vandalism, theft, etc.) going un-checked. These intimidation tactics run rampant up here continually trumping individual freedoms to enjoy what good still wild and wild still good.

  7. #7

    Wink

    In Defiance of what the State says, the Tyonek Website has not changed. Furthermore, their attorney has sent a response back to the State. It looks like another Court Challenge is in the making. Some poor unsuspecting Schmuck Fisherman is going to find him/her self in the middle of it. There will undoubtably be a test case and there will be a "victim". Someone is going to likely get charged with Trespass and this will be the beginning of the long haul to see who comes out victorious. My money is on the Natives.
    "96% of all Internet Quotes are suspect and the remaining 4% are fiction."
    ~~Abraham Lincoln~~

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    Quote Originally Posted by Akres View Post
    In Defiance of what the State says, the Tyonek Website has not changed. Furthermore, their attorney has sent a response back to the State. It looks like another Court Challenge is in the making. Some poor unsuspecting Schmuck Fisherman is going to find him/her self in the middle of it. There will undoubtably be a test case and there will be a "victim". Someone is going to likely get charged with Trespass and this will be the beginning of the long haul to see who comes out victorious. My money is on the Natives.
    Did you really think they were just going to "give up" that part of "their" river without a fight? TNC is taking more land over there than you can imagine.
    "Ya can't stop a bad guy with a middle finger and a bag of quarters!!!!"- Ted Nugent.

  9. #9
    Supporting Member bullbuster's Avatar
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    Thumbs up Long time coming

    As a guy that was threatened by a shotgun toting employee of the TNC, this is some long overdue good news.
    I had stayed below the high water mark after using a legal access trail. I was accosted by an employee of the Pinkerton Detective Agency. He ordered me to leave the river. I refused. Then he rolled his shotgun off of his shoulder and pointed it at my legs, he again instructed me to leave the river. I acted like I was picking up my fishbag and pulled out my 454, which I didn't fool around with. I pointed it directly at his chest.
    Long story short, when the trooper helicopter arrived, the trooper stated that I was in the right. He directed the guard to learn the law and to leave me alone and for both of us to put the guns away.
    Funny thing was that I was never approached by a guard again.

    The part that really got my blood boiling was the fact that the guard was a resident of Nevada, hired to keep Alaskans off of the river. He had no knowledge of the laws, just a willingness to intimidate the locals.

    I think we all owe Dennis Torrey (love him or hate him) a thank you for keeping this fight alive for all of the years it took to get it done. His lodge, the Chuit River Lodge, may never recover the lost business due to the threatening gun packing guards. But he stood up for all Alaskans and I wish him luck.
    Live life and love it
    Love life and live it

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    Default Lunatics

    Do you realize that these lunatic natives claim they own the chuit river because they say it's not a river!...It's submerged land...(meaning a bog, swamp or lake) ARE YOU KIDDING ME! And since when does salmon swim 15 miles upstream in a bog.

    It's an insult to every Alaskan!

    It's raw naked GREED!

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    Thumbs up Good news! Finaly!

    I have fished the chuitna river for fifteen years the armed guards have made it a very hard time for everyone! to fish in alaska is one of my dreams I work hard and in summertime we all value our time off to recreate! to have a armed guard acost you is a terrible feeling anger/fright/fear this is not what you want on a fishing trip! the tyonek native corp has used there mob mentality on many fishermen. Iam glad that I can fish again whithout fear of these gun toting fake fish cops! please we all have to work together so this does not happen at the chuitna or any such river in ALASKA! I hope many more people benefit from this kind victory! AKSCOOTER! FISH ON DENNY!

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    I wish the legislator would make the law a little less ambiguous, what with navigability and all... Personally I'd like to see a Montana style law, allowing common use of all rivers to the normal high water mark.
    I choose to fly fish, not because its easy, but because its hard.

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    Member B&C 04's Avatar
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    Outstanding news for all Alaskans!!!! I've been over to the Chuit about 6 or so times and have seen the signs posted and the TNC guards first hand. It really is a shame to allow greed to run their life to the point of putting others in the hurt locker. I fully support and am gratefull for the efforts put forth by Dennis at the Chuit River Lodge and belive without his dedication to this obvious lie and robery, we would have lost our right to fish an outstanding river (Chuit).

  14. #14

    Thumbs up I pray this sticks

    Last Summer I brought my 70 year old parents up from Montana for some Alaska remote fishing on the Chuitna River, we had a great time at the Chuit River Lodge, when My Dad, My 4 year old Son and I were wading and fishing the river 2 armed security gaurds waded out to us and informed us that if we crossed the center point or went on the far bank we would be charged with treaspassing, they video taped the whole encounter also, needless to say my Dad was in shock that after 60 years of fishing all over the US the first time something like that happened was at a fly out fishing trip in Alaska.
    I probably won't ever go back there unless this law is upheld, I would rather combat fish than be harrassed by rent a cops.
    Jim Rosteck
    19' Lowe Roughneck
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    Default Chuit River

    A long time coming, Denny!
    I have fished the Chuit for the past 18 years....every year taking my senior staff and a customer or sales rep to fish this little slice of Heaven. This year, we have made other plans to fish British Columbia instead, due to the fact that last year one of my employees was threatened by an armed guard to get off the river....that he was trespassing. I have seen Dennis plagued by the TNC all the years that I have known him. I hope this brings some relief.
    Only after I am sure it is safe to fish the Chuitna River, will I return.

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    Member Phish Finder's Avatar
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    What's the legality of shooting the guards?

    I ask because I don't respond well to firearms being pointed in my direction.

    This isn't a flame. The question is sincere.
    ><((((>.`..`.. ><((((>`..`.><((((>

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    just like to pee a lot." --Capitol Brewery

  17. #17

    Default

    ^^ I believe it's in what you believe at the moment. If somebody illegally points a gun at you, and you believe your life is in danger, you have the right of self-defense (and will likely have the duty to convince a jury that's what you believed).

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    Default WOW

    What I cannot figure out is this. If in fact and I do believe it happened people have had weapons pointed at them (A gun is nothing more than that a gun) once pointed at a person it then becomes a weapon and weapons kill & or injure with intent. It seems they intend is to scare / threaten people buy lowering a weapon at them which shows intent of usage. Not trying to get to far off course if I am sorry. I find it hard to believe the state has not done more to protect its citizens considering there are laws on the books that prevent such actions for the purpose of harvesting fish and game.

    Yes state has taken a position but it also needs to prosecute if it in fact has witness of their actions.

    Someone walks up to you on the street and points a weapon at you that is intent no difference in the woods you have the right to defend your-self. Not advocating anyhting just staing the facts.

    We should do a group fishing trip over there with about 40 people!!!!!

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    Default I have a better idea

    Let's get enforcement over there undercover and see what happens. Those hired guns might find a problem with their behavior and end up getting hauled into court. I hear everybody tells me LE monitors this sight, soo.... Go get em boys!!!
    If a dipnetter dips a fish and there is no one around to see/hear it, Did he really dip?

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    Default chuit river

    good news. glad the state is standing up for all the people.
    ive been fishing the chuit river for 25 years that is until three years ago
    when the trouble started with TNC, will be good to come back.
    GOOD LUCK DENNIS


    Tommy Partee

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