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Feds concede state owns submerged lands

Posted: Thursday, December 26, 2002

JUNEAU (AP) -- The federal government conceded recently that Alaska owns much of the submerged lands in the Tongass National Forest.

But federal attorneys are not giving up on Glacier Bay, which is central to a state submerged land dispute before a special master of the U.S. Supreme Court.

The dispute centers around submerged lands and waters within the Inside Passage that the federal government has claimed control over. Part of those submerged lands lie within the Glacier Bay National Park and Preserve.

The state asked the U.S. Supreme Court to decide ownership of submerged lands in Southeast in 1999, due in part to a decision by Congress to end commercial fishing in Glacier Bay.

The state argued Congress never intended the bay itself to be part of Glacier Bay National Park, which began as a national monument in 1925.

The Supreme Court appointed Washington, D.C., law professor Gregory Maggs to make recommendations to the high court.

Oral arguments are scheduled for February and a trial is scheduled for 2004 if the case goes unresolved, state attorneys said. The case could ultimately end up before the U.S. Supreme Court.

In filings by the Justice Department, federal attorneys last month conceded that Alaska has valid claim to title to most of the marine submerged lands in the Tongass National Forest. The forest boundaries extend 60 miles seaward of the Alexander Archipelago.

But federal attorneys said Congress retained title to many marine submerged lands within the Tongass, some of which haven't been identified.

They asked Maggs to delay a recommendation on Alaska's claim until the state and federal government can meet to identify what should remain in federal hands. Federal attorneys declined to comment to The Juneau Empire.

''You have the federal government saying they're willing to do a settlement with the state that acknowledges the state has title to a very large proportion of submerged land lying under the marine waters in Southeast Alaska,'' said Dave Bedford, director of the Southeast Alaska Seiners Association, of the Tongass concession.

States control marine waters within their boundaries and those up to three miles from shore. But the federal government has the power to retain control of some marine waters when a state enters the union.

But even if the court rules that Alaska owns the land under Glacier Bay, Congress could control some of the activities there, state attorneys said.

Still, a ruling in the state's favor would be a big step forward, said Assistant Attorney General Joanne Grace in Anchorage.

''It's possible that Congress could change its mind (about banning commercial fishing) if the state had a judgment of title,'' she said.

Federal attorneys said Congress intended Glacier Bay to remain in federal hands. The park draws about 390,000 visitors a year and would be undermined by state control, it argued.

''The bay has been a clear focus of federal management over the years,'' said John Quinley, a National Park Service spokesman in Anchorage.

Two Southeast Natives unsuccessfully sought to intervene on the Tongass issue, saying the federal government wouldn't argue the case strongly enough.

They said the court's decision might affect their ability to harvest herring roe on kelp, a subsistence food.

In recent years, Federal Subsistence Board has refused a request by some Southeast residents to create subsistence fisheries in Tongass marine waters that the state doesn't allow.



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