Contact: William Perry Pendley, 303/292-2021, Ext. 30

June 3, 2014 – DENVER, CO. Alaskans in Juneau and Seward today had their appeal argued before the U.S. Court of Appeals for the Ninth Circuit in an effort to reverse an Alaska federal district court’s dismissal of their lawsuit against Alaska Department of Natural Resources officials challenging their claim to beds of small streams that cross private property. In late 2012, 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 through 1959. When the lands were surveyed, all federal surveyors set aside navigable rivers—“highways of commerce”’—for the future State of Alaska. Small streams that were not navigable were included in the property landowners bought from the government. Since then, land- owners treated the streams as their private property; they are prime sand and gravel sources or fill for commercial and residential use. The case was argued by Mountain States Legal Foundation (MSLF) attorney Gina Cannan.

“This is an outrageous and unprecedented land grab and our clients deserve their day in court to obtain the return of their property,” said William Perry Pendley, MSLF president. MSLF represents the landowners.

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 as from 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, founded 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.