The federal government in December gave up its claim to ownership of the section of the Fortymile River in Alaska’s eastern Interior, court documents show. The move was announced by the state Department of Law and comes after a seven-year legal dispute between the federal and state governments.
Who owns the land under and around the river matters because it affects decisions about fishing and mineral extraction, said Robert Anderson, a Native American law specialist who served as a solicitor of the U.S. Department of the Interior under the Biden administration.
“One of the big issues is who has jurisdiction over hunting and fishing for subsistence,” Anderson said. “And then, of course, if the state owns the submerged lands, they can authorize activities in that submerged land, like mining and so on.”
The Fortymile River is a tributary to the Yukon River, southeast of Fairbanks. The region around it is where Interior Alaska’s first major gold discovery happened, and gold mining continues there today.
The Fairbanks Daily News-Miner reported in 2018 that the state lawsuit over the river’s ownership followed a letter from Fortymile miners asking the state to pursue its interest in the area.
Lorraine Henry, the director of communications at the Alaska Department of Natural Resources, said that under state regulations, mining in this remote area could include gold panning, hard-rock prospecting or mining using portable equipment, as well as suction dredging, which is basically vacuuming sediment from the bottom of the stream for gold recovery.
But Henry said that any activity in fish-bearing streams would require authorization from the Alaska Department of Fish and Game. Permits for water discharge from the Alaska Department of Environmental Conservation would likely also be needed, she added.
The Fortymile River case
Like other states, Alaska gained ownership of the lands below its navigable rivers when it became a state. But the Alaska state and federal governments have disagreed about what it means for some waterways to be navigable.
The U.S. Bureau of Land Management previously classified the portions of the Fortymile River as non-navigable and therefore owned by the federal government. But Alaska sued the federal government in 2018, arguing that it is navigable.
The federal government had already conceded its claims to other parts of the Fortymile River, leaving only the last 16 miles of the upper North Fork in dispute.
The federal government’s move to give up its claim to the remaining portion — and to ask the court to confirm the river’s navigability — comes after the review of the disputed area.
“The United States is giving up any claim that it has to the submerged lands,” Anderson said. “They're throwing in a towel on this part of the Fortymile.”
Gov. Mike Dunleavy applauded the move on the case, which is just one example of a common litigation between the state and federal governments over the navigability of rivers and ownership of submerged lands.
“My administration has been working tirelessly to end senseless disputes over lands Alaska has owned since statehood,” he said in a prepared statement. “We finally have a federal partner committed to doing the same.”
John Sturgeon, a former president of Alaska Safari Club who has been fighting for state control of Alaska rivers, was also happy about the decision.
“The state of Alaska is much more responsive to the needs of State of Alaska residents when it comes to hunting, fishing, travel, commercial development,” he said.
President Trump also issued an Alaska-specific executive order last January that, among other things, mandated a review of the navigability of Alaska waterways.
Subsistence fishing in navigable rivers
The decision about navigability of the Fortymile River could also have implications for subsistence fishing.
Much of the land around the waterway – including the 16 miles of the upper North Fork at play in this case – is part of the Fortymile Wild and Scenic River.
Such conservation units, which also include Alaska's national parks, wildlife refuges and wilderness areas, were established by Congress in the Alaska National Interest Lands Conservation Act. That law gives priority to rural, predominantly Alaska Native, residents for subsistence hunting and fishing on those lands and adjacent rivers.
But, the Alaska Constitution forbids that kind of preference. That means residents and nonlocal hunters have the same access on state-owned lands.
As of now, rivers in conservation units allow for rural subsistence fishing whether or not they are navigable. But the state is asking the U.S. Supreme Court to change that, and the court is scheduled to consider the request on Jan. 9.
The legal dispute about rural priority on navigable rivers is just one challenge facing Alaskans who depend on rural subsistence rights. Others include the U.S. Department of the Interior reviewing its Federal Subsistence Management Program, which prioritizes rural subsistence hunters.
