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American Whitewater

Alaska Navigability Report

Summary

By statute, virtually any stream capable of being boated may be boated without peril of arrest or impediment. If you can access the waterway without trespassing, you can boat on it and portage if necessary.

State Test of Navigability

Alaska's state statute defines navigable waters broadly as “any water of the state forming a river, stream, lake, pond, slough, creek, bay, sound, estuary, inlet, strait, passage, canal, sea or ocean, or any other body of water or waterway within the territorial limits of the state or subject to its jurisdiction, that is navigable in fact for any useful purpose, including but limited to water suitable for commercial navigation, floating of logs, landing and taking off of aircraft, and public boating, trapping, hunting waterfowl and aquatic animals, fishing, or other recreational purposes.”1) This statute further defines public water as “navigable water and all other water, whether inland or coastal, fresh or salt, that is reasonably suitable for public use and utility, habitat for fish and wildlife in which there is a public interest, or migration and spawning of fish in which there is a public interest.”2)

To demonstrate navigability in Alaska, it is only necessary to show that the body of water is physically capable of “the most basic form of commercial use: the transportation of people or goods.”3) The central theme of navigability is that the body of water must be capable of use as a highway which people can use for transporting goods or for travel. Transportation on water associated with recognized commercial activities in Alaska, such as mining, timber harvesting, and trapping is, evidence of navigability.4) Travel by local residents or visitors for the purpose of hunting, fishing, and trapping, or as a means of access to an area can be used to establish navigability.5) The same holds true for recreational transportation, including personal travel and professionally guided trips.6) For example, modern inflatable rafts can be used to establish navigability.7)

It is not necessary that a body of water actually be used for transportation to be found navigable. It is enough that it is susceptible, or physically capable, of being used. For instance, the use or susceptibility of use of a river or stream by an 18-24 foot wooden riverboat capable of carrying at least 1,000 pounds of gear or supplies is sufficient to establish navigability.8)

Alaska's Constitution does not explicitly create a public trust; rather, the analogy of a public trust has been used to describe the nature of the State's duties with respect to wildlife and other natural resources meant for common use.9) Basically, the trust reflects an understanding of the ancient concept that navigable waters, their beds and their banks, should be enjoyed by all the people because they are too important to be reserved for private use. Alaska's Constitution provides protections similar to the public trust doctrine protections that cannot be disregarded by the legislature or overruled by the courts.10) The Alaska Supreme Court has explained that “the common use clause was intended to engraft in [the] constitution certain trust principles guaranteeing access to the fish, wildlife and water resources of the state.”11) The Alaska Attorney General's Office has determined that, until the Alaska Supreme Court rules on the question, the state should assume that a broad definition of public rights protected by the Alaska Constitution and the public trust doctrine applies in Alaska.12)

Extent of Public Rights in Navigable and Non-Navigable Rivers

As stated above, the people of the State of Alaska “have a constitutional right to free access to and use of the navigable or public water of the state.”13) Alaska's State Constitution specifically provides that the Alaskan legislature “shall provide for the utilization, development, and conservation of all natural resources belonging to the State, including land and waters, for the maximum benefit of its people.”14) In so providing, it was the intent of the state legislature to permit the broadest possible access to and use of state waters by the general public.15) “Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use.”16) In short, the people of the State of Alaska have the right to use the water on non-navigable rivers and streams.17)

Incident to recreational boating on public and navigable waters is the right to portage. The Alaskan Department of Natural Resources takes the position that portage around barriers in a public waterway on private land is permissible as an incident to the use of the state-owned waters.18) No property right, however, exists in fish traps,19) and their use has been prohibited in Alaska.20) Furthermore, Alaska generally prohibits a person from engaging in the following activities without actual possession of an appropriate license or tag: sport fishing, including the taking of razor clams; and the farming of fish, fur, or game.21)

Miscellaneous

Based on the foregoing, it is clear that any surface waters capable of use by the public defined by Alaska State statute are available to the public, irrespective of streambed ownership. The Alaska Attorney General, however, has stated that the right to use of the banks of non-navigable rivers does not exist, except in limited instances where a public emergency or an imminent hazard to life arises.22) All the same, the Attorney General's opinion should not be a barrier to boating new or smaller streams, since the use by boaters under the state law makes the stream navigable in fact and law.

In Alaska, a person may not obstruct or interfere with the free passage by a member of the public on any navigable water.23) There are, however, limited exceptions, such as authorization by a federal or state agency and exemptions provided for under the Clean Water Act.24) Obstructing or interfering with the free passage on any navigable water is a class B misdemeanor.25)

1) Alaska Stat. § 38.05.965 (13) (2006).
2) Alaska Stat. § 38.05.965 (18) (2006).
3) Alaska v. Ahtna, Inc., 892 F.2d 1401 (9th Cir. 1989).
4) Appeal of Alaska, No. 82-133 (IBLA Rec. Decision Aug. 18, 1983).
5) , 7) Alaska v. Ahtna, Inc., 892 F.2d 1401 (9th Cir. 1989).
6) Alaska v. United States, 662 F. Supp. 455 (D. Alaska 1987).
8) Appeal of Doyon, 86 I.D. 692 (ANCAB 1979).
9) Brooks v. Wright, 971 P.2d 1025 (Alaska 1998).
10) Alaska Const. Art. VIII, § 3 (2006).
11) Owsichek v. State, Guide Licensing, 763 P.2d 488 (Alaska 1988).
12) 1982 Atty. Gen. Op. No. 3 (June 10, 1982).
13) Alaska Stat. § 38.05.126 (2006).
14) Alaska Const. Art. III, § 2 (2006).
15) Wernberg v. State, 516 P.2d 1191 (Alaska 1973), rehearing denied, 519 P.2d 801 (Alaska 1974).
16) Alaska Const. art. III, § 3 (2006).
17) Alaska Pub. Easement Defense Fund v. Andrus, 435 F. Supp. 664 (D. Alaska 1977).
18) Alaska Dept. of Natural Resources, Division of Land, State Policy on Navigability, http://www.dnr.state.ak.us/mlw/nav/nav_policy.htm
19) Organized Village of Kake v. Egan, 174 F. Supp. 500 (D. Alaska 1959), aff'd, Metlakatla Indian Community v. Egan, 362 P.2d 901 (1961), aff'd in part, 369 U.S. 60 (1962).
20) Alaska Stat. § 16.10.070 (2006).
21) Alaska Stat. § 16.05.330 (2006).
22) Op. Alaska Att’y Gen. May 17, 1978.
23) Alaska Stat. § 38.05.128(a) (2006).
24) Alaska Stat. § 38.05.128(a)(1)-(5) (2006).
25) Alaska Stat. § 38.05.128(b) (2006).