DEPARTMENT OF NATURAL RESOURCES
OFFICE OF THE COMMISSIONER t
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
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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