Early in the 1900s and continuing until 1959 when Alaska became a State, 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 to be used as homesteads, mining claims, or townsites. Since that time, the landowners treated these streams as their private property. In some location, they have been principle sources of sand and gravel for several cities; inn other places they were filled in and are now the sites of commercial and residential development.
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."
On December 20, 2012, the Alaska landowners filed their complaint and a motion for class certification in Alaska federal district court. On January 17, 2013, the Alaska officials moved to dismiss the lawsuit on Eleventh Amendment grounds. On February 19, 2013, the Alaska landowners filed a response. On March 12, 2013, the Alaska officials filed a motion to dismiss. Oral arguments were heard regarding the motion to dismiss on May 31, 2013, in Juneau, Alaska.
On August 15, 2013, the district court granted the motion to dismiss while expressing concern that the actions of the Alaska officials may effectively be confiscating private property, but concluding that it lacked jurisdiction to hear the case due to the Eleventh Amendment arguments raised by the Alaska officials.
On September 12, 2013, the Alaska landowners filed a notice of appeal to the U.S. Court of Appeals for the Ninth Circuit and, on January 24, 2014, filed their opening brief. Defendants filed their answer brief on April 25, 2014. On May 16, 2014, the Alaska landowners filed their reply. Oral arguments were conducted on June 3, 2014, in Anchorage, Alaska. On August 28, 2014, a panel of the Ninth Circuit upheld the district court's ruling.