General Information

The following is intended to provide general information on recordable disclaimers of interest (RDI) as it is applied to navigable waterbodies; with that the current status of the State of Alaska's applications. BLM—Alaska is the only bureau office currently applying the RDI process on a systematic basis to navigable waterbodies within a state. The first RDI document was issued on October 24, 2003 .

Background:

Section 315 of the Federal Land Policy and Management Act (FLPMA) and the Code of Federal Regulations 43 CFR 1864 allows the Secretary of the Interior, under certain conditions, to issue a "disclaimer of interest" where the disclaimer will help remove a cloud on the title of such lands.

The objective of the disclaimer is to eliminate the necessity for court action or private legislation in those instances where the United States asserts no ownership or record interest, based on a determination by the BLM that there is a cloud on the title to the lands, attributable to the United States, and that an interest of the United States has terminated by operation of law or is otherwise invalid.

The original regulations on Conveyances, Disclaimers and Correction Documents (43 CFR 1864) were promulgated September 6, 1984. These regulations were revised on January 6, 2003, [Federal Register Vol. 68, No. 3] effective February 5, 2003 .

Some states ( Utah specifically) would like to use this provision to recognize Utah 's interest in rights-of-ways that unquestionably meet R.S. 2477 requirements.

The State of Alaska is using the RDI process to help confirm the State's ownership of navigable rivers and lakes in Alaska. In all likelihood, the State will initially file RDI applications on approximately 200 rivers that it identified in 1992 when it filed notice of intent to sue for quiet title to the beds of the identified waterbodies. There are no immediate plans for BLM to systematically apply the RDI process to other State claims (e.g. R.S. 2477 rights of way claims).

Navigability - General:

A definitive federal list of navigable waters in Alaska does not exist. The State has indicated thousands of rivers, streams, and lakes are potentially navigable. The BLM in Alaska is the most experienced federal agency for making navigability determinations. Since 1978, BLM Alaska has prepared administrative navigability determinations mostly in support of land transfer actions under the Alaska Statehood Act, the Alaska Native Claims Settlement Act, and the Native Allotment Act. Before the land transfer program is completed, the BLM will have classified waters as navigable or non-navigable on over 150 million acres of land in Alaska.

The States' ownership right to the beds of navigable waters was recognized from the beginning of the United States ' history. The original thirteen states succeeded the Crown as the owner of the beds of navigable waters within their boundaries. Under the "equal footing doctrine" in constitutional law, new states were granted lands underlying navigable waters. By the Submerged Lands Act of 1953, Congress confirmed that the states owned the unreserved beds of navigable waters. By Section 6(m) of the Alaska Statehood Act, Congress expressly applied the Submerged Lands Act of 1953 to Alaska.

Since statehood in 1959, the federal courts have determined navigability of less than a dozen unreserved rivers, streams, and lakes in Alaska . The process of litigating these actions is both expensive and time consuming to the State and Federal governments. The RDI process provides an effective and efficient tool to confirm the State's ownership of navigable waterbodies.

General Process:

The BLM met with the State of Alaska and other federal agencies to discuss ways to improve the RDI process. The BLM has finalized the RDI process, specifically geared for those applications filed by the State for those lands underlying potentially navigable waters.
Instruction Memorandum No. AK 2010-012