State of Alaska sues the United States over who owns Fortymile River sections

The disputed portions of the Middle Fork and North Fork of the Fortymile<br />River, over...
The disputed portions of the Middle Fork and North Fork of the Fortymile<br />River, over which Alaska is now suing the U.S. <br />State AG office photo. (KTUU)
Published: Nov. 15, 2018 at 1:28 PM AKST
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Litigation swirling around water rights and land ownership in Alaska came in the form of a federal lawsuit filed last week by the State of Alaska against the U.S. government.

The suit, brought on behalf of Alaska by the state attorney general's office, states that two tributaries of the Fortymile River, a 60-mile piece of the Yukon River, which flows from Canada's Yukon Territory through Alaska to the Bering Sea, belong to the state, and not to the feds.

According to documents set forth by Jahna Lindemuth, Attorney General for Alaska, the ownership of the Middle Fork and North Fork of the river, and more importantly, the land under those river sections, was decided decades ago.

Brought into question in the suit is exactly when and where the river sections were declared navigable, and if, before Alaska became a state, this definition precludes Alaska from claiming ownership today.

The state says the river sections were deemed valid at the time of statehood.

"The State obtained ownership to its submerged lands on the date of statehood pursuant to the Equal Footing Doctrine, the Submerged Lands Act of 1953, and the Alaska Statehood Act," Lindemuth wrote in court documents.

However, according to Bureau of Land Management, that may not be the case, due to the murky nature of Supreme court ruling interpretations.

"The test of navigability is: was the body of water being used as a highway of commerce on the date of statehood, or was it susceptible to being used as a highway of commerce," explained Erika Reed, the acting deputy director for Lands and Cadastral Survey at with the BLM.

"Navigability does not necessarily mean boat-ability. And navigability is based on case law, it's not adjusted by BLM," Reed said. "And navigability determinations that BLM makes, are simply administrative findings. Only a court can actually make a ruling."

The owner of the submerged land, that is, the land beneath bodies of water, is determined either by navigability at the time of statehood, or riparian law, which extends to lands the state already owns.

Additionally, the water craft used to navigate those waters must be "meaningfully similar" to those used at the time of statehood, something which has thrown a wrench into similar land battles in other states where waterways were being used to much different degrees than they were at the time the states joined the nation.

In the Fortymile suit, the state says the U.S. government claims ownership over the submerged land under the river. This federal ownership "creates a cloud on the State’s title and causes uncertainty regarding the ownership, use, management, and control of the submerged lands," the state attorneys argue. Due to this "cloud" of confusion, the state hopes to settle the question of ownership once and for all.

"In bringing this lawsuit, the State of Alaska seeks to confirm its right to manage its own lands, and to remediate and prevent the attendant harm of being deprived of this right," the state wrote in court documents.

In a letter to Ryan Zinke, Secretary of the Interior, Lindemuth informed the department that Alaska intends to sue in a quiet title action to defend ownership of the river and the land beneath the water comprising the banks and riverbed.

Whether the quiet title action suit will go to trial or be settled before it gets to that point, remains to be seen. That determination will be handled by the Department of Justice.

While BLM can't officially comment on ongoing court cases Reed said that previous case history shows the burden of proof rests with the State.