North of 60 Mining News - The mining newspaper for Alaska and Canada's North

U.S. District Court Judge Sharon Gleason slammed federal attorneys representing the U.S. Bureau of Land Management for acting in "bad faith" while stalling the resolution of Alaska's ownership of lands under the navigable Mosquito Fork in the Fortymile Mining District.

Alaska, like all other states in union, owns the beds of navigable waters within its borders. This state ownership of these important trade transportation routes is protected by the United States Constitution. While the last bastion of dispute over states' ownership of navigable waters was settled nearly four decades ago, Alaska and federal land managers continue to wrangle over the navigability and therefore ownership of thousands of miles of waterways in the state.

The case, decided on May 4, considered Alaska's argument that the U.S. Department of Justice attorneys representing BLM put forward frivolous arguments and employed delay tactics that ran up the costs in preparation for a trial that they pulled out of at the last minute.

The federal judge agreed with the State on most of the points; however, she found one aspect of the federal attorney's tactics particularly troubling.

"(T)he United States' refusal to follow (U. S.) Supreme Court and Ninth Circuit (Court of Appeals) precedent greatly increased the length of this case and its burden on the state. Accordingly, the court finds that … it acted in bad faith," Gleason wrote in a 22-page ruling.

Frivolous arguments

Since filing litigation over ownership of Mosquito Fork in 2012, Alaska carried out and documented a thorough investigation of the navigability and historic use of the river, accruing an estimated US$750,000 in attorney fees.

"We spent considerable time, money and effort in hopes of getting a precedent-setting ruling on the important issues of navigability in the state," Brent Goodrum, director of the Division of Mining Land & Water, Alaska Department of Natural Resources, told Mining News.

Alaska, however, never got its day in court. In July of last year, a day before oral arguments were to begin, BLM abandoned its claim to the disputed Mosquito Fork.

By turning Mosquito Fork over to Alaska before being forced to by the court, BLM's attorneys avoided a potential precedent-setting case.

While the timing of the concession was suspect, Judge Gleason's bad faith ruling was based on the Department of Justice attorneys' "frivolous" argument that only commercial use of a waterway could be considered when determining a river's navigability.

Citing other cases both in and out of Alaska, the district court judge determined that the federal government's position "is at odds with both Ninth Circuit and the Supreme Court precedent" and "these frivolous arguments were at least recklessly, if not knowingly, raised."

Upon finding bad faith, Gleason ordered the U.S. government to reimburse Alaska's attorney fees, which could be north of US$1 million once the additional costs of getting the reimbursement is tacked on. This does not include the money the federal government spent to block Alaska ownership of Mosquito Fork, all of which is funded by U.S. taxpayers.

While the money is important, especially during the current budget shortfalls in Alaska, Goodrum believes that a federal judge ruling that BLM and federal attorneys inappropriately ignored precedent may be the most critical aspect of the case. He is optimistic that this will open doors to a more cooperative and efficient means for the Alaska and federal governments to resolve navigability issues going forward.

"My hope is after this decision we can have real and meaningful discussions about how we better work this process so that it is clear to everyone who owns those submerged lands beneath navigable water bodies," he said.

Alaska Attorney General Craig Richards agrees.

"This decision sends a strong message to the federal government that they need to come to the table and work with the State," he said.

Beyond Fortymile

The resolution of ownership of the 80.5-mile stretch of Mosquito Fork was good news for placer miners with claims on this river that runs through the Fortymile, a mining district that has been continually mined since gold was discovered in its streams in 1886.

Alaska had granted state mining claims on the disputed section of Mosquito Fork. But BLM also claimed ownership of the bed of the river, and threatened to arrest and criminally prosecute anyone mining in the disputed section of the river.

"You don't want someone who is working a project with state authorization having to worry about federal prosecution for doing those authorized activities," Goodrum said.

With at least 3,834 miles of Alaska rivers and 42,488 acres of Alaska lakes in active dispute, the ownership issue extends well beyond the Fortymile District.

This could be especially onerous for a project like the hoped-for natural gas pipeline, which would cross numerous rivers on the roughly 800-mile stretch between Alaska's North Slope and Kenai Peninsula.

When asked if the precedent set in Gleason's ruling opens the door for resolving state ownership of large blocks of Alaska rivers with disputed navigability but with similar traits as Mosquito Fork, Goodrum said, "It is beyond time for us to have those discussions; let's describe the box (physical characteristics) that defines navigability within the state."

Author Bio

Shane Lasley, Publisher

Over his more than 16 years of covering mining and mineral exploration, Shane has become renowned for his ability to report on the sector in a way that is technically sound enough to inform industry insiders while being easy to understand by a wider audience.

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