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By William Perry Pendley, President and Chief Operating Officer of Mountain States Legal Foundation
Property owners in Juneau and Seward, for themselves and others throughout Alaska, have responded to attempts by State of Alaska Department of Natural Resources officials to dismiss their lawsuit challenging Alaska's claim to the beds of small streams that cross private property. In December, Lacano Investments, Inc., Nowell Avenue Development, and Ava L. Eads filed a class-action lawsuit claiming that land sought by the State was patented and sold as homesteads, mining claims, or townsites beginning over 100 years ago and continuing until 1959. When the lands were surveyed, federal surveyors set aside navigable rivers-"highways of commerce"'-for the future State of Alaska. Small streams, which were not navigable, were included in the property that landowners bought from the government. Since that time, the landowners treated these streams as their private property. They have been cities' prime sand and gravel sources or filled in for commercial and residential development.
"The officials have provided neither evidence to counter our clients' claims nor evidence to settle the dispute in their favor; therefore, the court must allow this case to proceed," said William Perry Pendley of Mountain States Legal Foundation (MSLF); MSLF represents the parties who filed suit.
Recently, Alaska's Department of Natural Resources instituted a "Navigability Policy" that revisits these decade-old determinations by federal surveyors. Alaska says, if a recreational rubber raft can float down a stream, it is "navigable!" Then it uses air photos from 1959 to redraw property lines from the old survey plats, and when a landowner seeks a permit to use his land, Alaska says it owns the land and wants payment for a "lease."
In Juneau, Lacano Investments filed suit because, after it sought to mine gravel from a portion of Lemon Creek that was patented in 1913 and has been mined for gravel for 70 years, the State produced air photographic maps with new property lines and demanded a lease and royalty payments. In Seward, Alaska demanded leases and royalties from the owners of private property as well from as the Kenai Peninsula Borough for removal of gravel from small streams that it now says are "navigable." The dispute hinders flood mitigation efforts and added to the extensive damage Seward suffered in recent flooding.
The lawsuit maintains that the landowners' predecessors bought and paid for the land, that they and current owners paid taxes on it, and that they now own it. Moreover, Congress specifically confirmed their ownership in the Submerged Lands Act and the Alaska Statehood Act. The lawsuit is a class action that involves all who are similarly situated.
Mountain States Legal Foundation, created in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system. Its offices are in suburban Denver, Colorado.
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