Dunleavy flops on state budget, tries a 'wag the dog' attack on federal land managers

Gov. Mike Dunleavy’s political bombast about taking control of submerged lands under every river, lake, pond, and deep ditch in Alaska sounds like an opening shot for his 2022 re-election campaign.

Dunleavy has fallen flat on the multi-billion-dollar deficit facing the state—the most pressing issue facing Alaska. He can’t get his jumbo dividend and has set a course for draining the earnings reserve of the Permanent Fund.

He can’t explain how he intends to fund state government starting in July 2022, so he can’t run for re-election or any other office on his fiscal record, but he can appear to be a man of action by taking on the feds in court and talking tough—an Alaska wag-the-dog political stunt that never goes out of style.

“Our state will not tolerate federal officials or federal action attempting to subvert the clear mandate of the court,” Dunleavy wrote to President Biden, saying the Supreme Court decision in the Sturgeon case clears the way for 800,000 river miles and 30 million acres under lakes to be managed by the state. He’s exaggerating the impact of that case.

Candidate Dunleavy will take his campaign to Sean Hannity’s radio show Monday, a guest shot that may be a product of the $4,000-a-month he pays a right-wing PR handler in Washington, D.C. to polish the Dunleavy persona. The best way to get Hannity’s attention is to decide that being combative is better than being effective, which is what we have here.

“It is time for Alaskans to unlock Alaska. After decades of federal obstruction and delay, 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,” says a Dunleavy press release that Alaska newspapers are printing in full.

“It is my hope federal authorities will abandon their strategy of litigation and delay, and instead choose to save millions of dollars by working cooperatively with the state,” he claims.

Nothing will be abandoned. No money will be saved. Alaska will be spending millions on court costs on highly technical arguments.

“These actions are a first step in ‘Unlocking Alaska’ – an initiative that I will continue to advance in the coming months. My administration will not rest until Alaska has achieved the foundational promises of statehood, and every Alaskan is granted unfettered access to our lands and waters,” said Dunleavy.

Promises like that are easy to make, hard to keep. This is an old issue with a long history in the courts and federal and state decision-making processes.

For a hint of the complexity and why Dunleavy is unable to snap his fingers and produce an instant change, read this document that the Dunleavy administration still has on the state website. It explains the complicated history of Alaska’s efforts to deal with navigable waters.

“The greatest hurdle to overcome in the state's efforts to identify and manage navigable waters has been the long-standing differences of opinion between the State of Alaska and the United States regarding the application of the test for determining title navigability,” the state policy on navigability says.

“Navigability is a question of fact, not a simple legal formula. Variations in waterbody use that result from different physical characteristics and transportation methods and needs must be taken into account. There are many legal precedents for determining navigability in other states based upon the particular facts presented in those cases. In Alaska, though, we are just beginning to get the final court decisions that are necessary to provide legal guidance for accurate navigability determinations.”

The federal approach to deciding navigability stems from an 1870 Supreme Court case that bears the name of a steamship known as the Daniel Ball. The state has a far more liberal interpretation of navigability than the federal government saying that if a waterway has enough water to allow boats, etc., it is navigable even if there is no record of commerce and trade.

“The major criteria dispute has been over the type or purpose of the transportation required to establish navigability. The federal government has asserted that a waterway must be used, or capable of use, for transporting commerce to be considered navigable. Other, ‘noncommercial’ transportation uses are not considered sufficient to establish navigability. In this context, the federal government has claimed that the only relevant ‘commercial’ transportation is the distribution of goods for sale or barter, or the transportation for hire of people or things,” the state policy on navigability says.

Dunleavy is urging Alaskans to ignore whatever federal rules are placed before them for travel on rivers and lakes. Don’t worry about being prosecuted by the feds, according to Dunleavy’s press release, because the state will stand behind you all the way.

“Following in the path of John Sturgeon, who won two unanimous decisions before the Supreme Court on this very issue, the state will provide a legal shield to Alaskans for as long the Biden administration wishes to lose cases,” says Dunleavy, who is counting his victories prematurely.

That pledge to give future violators a “legal shield” on cases that may have no relationship to the Sturgeon precedent is irresponsible and dumb, though the state is likely to claim in time that it was never meant to be taken at face value. But Dunleavy is certainly hoping that people will provoke confrontations and he is on the record claiming he will spend state money on their behalf.

Snarling at the feds appeals to the Dunleavy right-wing base.

Craig Compeau, a Fairbanks snowmachine and boat dealer, cheered Dunleavy on Facebook for having the “stones” to stand up for Alaskans. “We are officially done ’Biden’ our time,” said Compeau.

In fact, all Dunleavy has shown so far is that he has the “stones” to spend state money and create employment opportunities for lots of lawyers.

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