FAIRBANKS — The state of Alaska, in its latest lawsuit challenging ownership of riverbeds in the state, sued the federal government earlier this month over two forks of the Fortymile River in the eastern Interior.
The state previously won recognition that it owns the bank underneath the Fortymile River’s Mosquito Fork in 2015. The state now wants the federal government to recognize the land beneath the river’s Middle and North forks as state land.
The distinction between state and federal ownership is more than an academic one. The Fortymile country is Alaska’s oldest gold mining district and continues to be the site of small gold mining operations. The state lawsuit followed a letter from Fortymile miners that asked the state to pursue state interest in the Middle and North forks, said Jessie Alloway, the assistant attorney general who wrote the state’s opening brief in the case.
“Both rivers are within a (federally designated) Wild and Scenic Corridor, so there are differences between state and federal management,” Alloway said in an email to the Daily News-Miner.
The Middle and North forks of the Fortymile River flow mostly through federal Bureau of Land Management lands. The federal government owns a large but patchworked section of the Fortymile River region.
As in past disputes between state and federal riverbed ownership, the key issue is the river’s “navigability.” Alaska was given title to lands below “navigable waters” under the Statehood Act of 1958 and through a 1953 law called the Submerged Lands Act. But the state and federal government have long disagreed about what exactly it means for a river to be “navigable.” The ownership of hundreds of riverbeds around Alaska hangs on the definition of the word.
The federal Bureau of Land Management is required to follow a narrower definition of navigability defined in case law, said Erika Reed, state director for land and cadastral survey at the BLM.
“The BLM doesn’t contest state ownership, but we are the responsible federal executive agency to determine navigability for title purposes,” she said in an email to the Daily News-Miner.
For the last six years, a group at Alaska’s Department of Natural Resources called the Public Access Assertion and Defense Unit has tried to get recognition for the state’s more-expansive definition of “navigable” and for state ownership of the lands below these rivers, said Alloway. The state chooses what rivers to pursue based on which rivers have the “most immediate value to the public,” she said.
In the case of the Mosquito Fork of the Fortymile River, the Stikine River in Southeast Alaska, and the Knik River in Southcentral Alaska, the state filed lawsuits against the federal government, but the federal government agreed to recognize state ownership before a federal judge had a chance to rule on the navigability issue, Alloway said. If the federal government defends its ownership of the riverbeds in court, it could lead to a court ruling that gets to the broader issue about now “navigable” should be defined.
More recently, the state informed the federal government that it intended to sue over several other parts of the Fortymile River watershed: the Dennison Fork, the West Fork of the Dennison Fork, the Middle Fork and the North Fork.
The Bureau of Land Management conducted navigability studies on these forks in July 2018 and made findings that all the forks were navigable except the Middle and North Forks. Reed said the BLM had previously declared the Middle and North forks non-navigable, but was reviewing that conclusion this fall based on data collected in July.
“The state was aware that BLM was conducting a re-assessment, but chose to file suit before BLM could complete its work,” said Reed at BLM.
The BLM has recently declared other rivers navigable including most of the Kisaralik River (a tributary of the Kuskokwim River in southwest Alaska) and the Delta River in the Interior, Reed said. She said the federal government has encouraged the state to pursue title to these riverbeds through a noncourt administrative process called a Recordable Disclaimer of Interest.
Contact Outdoors Editor Sam Friedman at 459-7545. Follow him on Twitter: @FDNMoutdoors.
Correction: This story has been changed to reflect the following correction.
The last paragraph of Friday's story "Alaska sues feds over Fortymile forks in latest ‘submerged lands’ lawsuit" should have stated that the federal Bureau of Land Management recently declared most of the Kisaralik and Delta rivers navigable. The article incorrectly reported that BLM made the opposite finding.