State of Alaska v. United States of America

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
STATE OF ALASKA,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
Case No. 3:18-cv-00265-SLG
ORDER RE MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT
Before the Court at Docket 51 is Plaintiff State of Alaska’s Motion for
Summary Judgment.1 	Defendant United States of America filed a Cross-Motion
for Summary Judgment and Opposition to the State’s Motion for Summary
Judgment at Docket 55.2 The State filed a combined Reply in Support of Its Motion
for Summary Judgment and a Response in Opposition to the United States’ Cross-
Motion for Partial Summary Judgment at Docket 56. The United States replied to
the State’s response at Docket 63. 	The State requested oral argument, but oral
argument was not necessary for the Court’s determination.
BACKGROUND
The Fortymile River and its branching forks and creeks are located 180 miles
1 See also Docket 52 (Mem. of Points and Authorities in Supp. of Pl.’s Mot. for Summ. J.).
2 See also Docket 55-1 (United States of America’s Mem. in Supp. of Its Opp’n to and Cross-
Mot. for Summ. J.).
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east of Fairbanks, Alaska, near the Alaska-Canada border.3 	The State brought
this action pursuant to the Quiet Title Act, 28 U.S.C. § 2409a, seeking to quiet title
to submerged lands underlying the Fortymile River. Although much of the parties’
initial dispute has since been resolved, the uppermost 16 miles of the North Fork
of the Fortymile River remains in dispute (“Disputed North Fork”).4
Disputed 	North 	Fork 	starts 	at 	the 	North 	Fork 	headwaters 	where
Independence Creek and Slate Creek merge (river mile 59.3) and extends three-
tenths of a river mile downstream from where Champion Creek meets North Fork
(river mile 42.4).5 	Starting at the headwaters, Disputed North Fork is a single
channel with boulder riffles for the first ten miles.6 Over the next six miles, Disputed
North Fork widens, splits in places, and has wide gravel bars.7 	Along its course,
3 Docket 52-1 at 2 (map of the region); Docket 52-2 at 2 (2018 Bureau of Land Management
(“BLM”) report).
4 Docket 1 at ¶¶ 15-17, 36 (Compl.); Docket 1-2 (map); Docket 52-13 at 3-4; Docket 55-5 at 14.
In its complaint, the State also sought to quiet title to the Middle Fork of the Fortymile River and
a portion of North Fork from its headwaters to a feature called the Kink. Docket 1 at ¶¶ 14-15.
“The Kink was formed in 1898 when a group of Danish prospectors blasted away a 100-foot
rock ridge to drain a 2.8-mile-long meander.” Docket 52-1 at 1. However, the United States has
since disclaimed the submerged lands under Middle Fork and the submerged lands under North
Fork from just below where Champion Creek meets the North Fork to the Kink. Docket 48 at 1-
2. Accordingly, title remains disputed in this action only as to North Fork from its headwaters to
0.3 miles downstream from where Champion Creek meets North Fork. See Docket 52 at 8-9;
Docket 55-1 at 21, 23, 33-34.
5 See Docket 52 at 8-9; Docket 55-1 at 21, 23, 33-34; Docket 48 at 2 (noting that “0.3 rivermiles
downstream of the south bank of Champion Creek where that bank meets the North Fork” is
“approximately river mile 42.4”).
6 Docket 55-5 at 10, 14; Docket 52-21 at 25 (United States’ expert hydrologist’s description);
Docket 52-18 at 3 (State’s expert hydrologist’s description).
7 Docket 55-5 at 10; Docket 52-18 at 3. See Docket 55-5 at 19 (photo of portion of Disputed
North Fork).
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several tributaries join Disputed North Fork, including Champion Creek at river mile
42.7.8 	Champion Creek contributes nearly one-quarter of Disputed North Fork’s
total watershed.9 	Disputed North Fork ends three-tenths of a mile downstream
from its confluence with Champion Creek. 10
JURISDICTION
The Court has jurisdiction pursuant to 28 U.S.C. § 1331 because this is a
civil action with claims arising under federal law: the Quiet Title Act, 28 U.S.C. §
2409a.
LEGAL STANDARDS
I. 	Summary Judgment
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary
judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” 	The burden of
showing the absence of a genuine dispute of material fact lies with the movant.11
If the movant meets this burden, the non-moving party must demonstrate “specific
facts showing that there is a genuine issue for trial.”12 The non-moving party may
8 Docket 55-5 at 14-15; Docket 52-18 at 2.
9 Docket 52-18 at 2.
10 Docket 48 at 2.
11 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
12 Id. at 324 (quoting Fed. R. Civ. P. 56(e)); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-
49 (1986).
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not rely on “mere allegations or denials”; rather, to reach the level of a genuine
dispute, the evidence must be such “that a reasonable [trier of fact] could return a
verdict for the non-moving party.” 13 	In reviewing cross-motions for summary
judgment, a court “review[s] each separately, giving the non-movant for each
motion the benefit of all reasonable inferences.”14
II. 	Equal Footing Doctrine and Submerged Lands Act
Determining title to Disputed North Fork implicates the navigability of that
river at the time of Alaska’s admission to the Union. 	Under the Equal Footing
Doctrine, newly admitted states are guaranteed “the same rights enjoyed by the
original thirteen States and other previously-admitted States,” including “title
ownership to lands underlying navigable rivers.” 15 This guarantee was codified in
the Submerged Lands Act of 1953 and extended to Alaska in the Alaska Statehood
Act of 1958.16 	Accordingly, Alaska acquired title to submerged lands underlying
navigable waters 17 on January 3, 1959, when it became the 49th state of the
13 Anderson, 477 U.S. at 248-49 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S.
253 (1968)).
14 Flores v. City of San Gabriel, 824 F.3d 890, 897 (9th Cir. 2016) (citing Ctr. for Bio-Ethical
Reform, Inc. v. L.A. Cnty. Sheriff Dep’t, 533 F.3d 780, 786 (9th Cir. 2008)).
15 Alaska v. Ahtna, Inc., 891 F.2d 1401, 1404 (9th Cir. 1989) (citing Utah Div. of State Lands v.
United States, 482 U.S. 193, 196 (1987)).
16 Submerged Lands Act, Pub. L. No. 83-31, § 3, 67 Stat. 29, 30-31 (1953) (codified at 43
U.S.C. § 1311(a)); Alaska Statehood Act, Pub. L. No. 85-508, § 6(m), 72 Stat. 339, 343 (1958).
17 The United States could reserve certain lands beneath navigable waters before statehood for
the United States, but such reservation is not an issue in this case. See Idaho v. United States,
533 U.S. 262, 272-74 (2001).
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Union.18 	“The United States retains any title vested in it before statehood to any
land beneath waters not then navigable . . . .” 19
To determine navigability, courts apply the standard established in 1871 by
the Supreme Court in The Daniel Ball:
Those rivers must be regarded as public navigable rivers in law which
are navigable in fact. 	And they are navigable in fact when they are
used, or are susceptible of being used, in their ordinary condition, as
highways for commerce, over which trade and travel are or may be
conducted in the customary modes of trade and travel on water.20
“Navigability must be assessed as of the time of statehood, and it concerns the
river’s usefulness for ‘trade and travel,’ rather than for other purposes.” 21 	“Mere
use by initial explorers or trappers, who may have dragged their boats in or
alongside the river despite its nonnavigability in order to avoid getting lost, or to
provide water for their horses and themselves, is not itself enough.” 22
DISCUSSION
I. 	United States’ Cross-Motion for Summary Judgment
The 	Court 	first 	addresses 	the 	United 	States’ 	Cross-Motion 	for 	Partial
Summary Judgment because the legal determinations the United States seeks
could impact the Court’s determination as to whether the State is entitled to
18 Alaska v. United States, 201 F.3d 1154, 1156 (9th Cir. 2000).
19 PPL Mont., LLC v. Montana, 565 U.S. 576, 591 (2012) (citation omitted).
20 Id. at 591-92 (quoting The Daniel Ball, 77 U.S. 557, 563 (1871)).
21 Id. at 600 (citing United States v. Utah, 283 U.S. 64, 75-76 (1931)).
22 Id. (citing United States v. Oregon, 295 U.S. 1, 20-21 (1935)).
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summary judgment. The United States asks the Court to make three legal rulings:
(a) “Susceptibility to downstream-only floating for recreation and government
purposes is legally insufficient to make a river navigable in fact”; 23 (b) “Mere depth
of water is legally insufficient to make a river navigable 	in 	fact”;24 	and 	(c)
“Watercraft considered in any susceptibility analysis must have been the ‘modes
of trade and travel on water’ that were ‘customary’ at statehood.”25
a. 	Downstream-Only Floating
First, the United States seeks a legal determination that susceptibility to
downstream-only floating for recreation and government purposes is, as a matter
of law, legally insufficient for navigability.26 	The United States relies on language
in The Daniel Ball requiring that a waterway be susceptible to use as a “highway
for 	commerce” 	and 	argues 	that 	downstream-only 	floating 	for 	recreation 	or
government purposes “do[es] not use the river as a ‘highway’ of commerce, [is] not
transportation on water for profit, and do[es] not show the river is one of general
and common usefulness for purposes of trade and commerce.”27
23 Docket 55-1 at 37.
24 Docket 55-1 at 41 (internal quotation marks omitted).
25 Docket 55-1 at 43. The United States also asks for a ruling that “the undisputed facts show
inflatable rafts, canoes, airboats, and jet boats were not customary modes of trade and travel at
statehood.” Docket 63 at 8. The Court addresses this request in its consideration of the State’s
Motion for Summary Judgment. See infra Section II.a.
26 Docket 55-1 at 37-41.
27 Docket 55-1 at 37.
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The Court declines to find that susceptibility to downstream-only floating for
recreation or government purposes is insufficient for navigability as a matter of law;
rather, precedent requires a case-by-case analysis. First, transportation for profit
is not required for navigability. 	In Utah v. United States, the Supreme Court held
that the Great Salt Lake was navigable when “nine boats [were] used from time to
time to haul cattle and sheep from the mainland to one of the islands or from one
of the islands to the mainland. The hauling apparently was done by the owners of
the livestock, not by a carrier for the purpose of making money.”28 	The federal
government had argued that the ranchers’ use of the lake did not render it “a
navigable highway in the customary sense of the word” because “the business of
the boats was ranching and not carrying water-borne freight.”29 	The Supreme
Court rejected this argument, holding that the noncommercial aspect of the
ranchers’ use was “an irrelevant detail” and that “[t]he lake was used as a
highway.”30
The United States contends that while Utah recognized that transportation
for profit is not required for navigability, a waterway must still be susceptible to use
as a highway to be legally navigable.31 The Court agrees that the waterbody must
28 403 U.S. 9, 11 (1971).
29 Id.
30 Id.
31 Docket 55-1 at 41 (first quoting Ahtna, Inc., 891 F.2d at 1404; and then citing Utah, 403 U.S.
at 11).
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be susceptible to use as a highway, but the Court disagrees with the United States’
contention that downstream-only use precludes a finding that a river is susceptible
to use as a highway. To the contrary, in Oregon ex rel. Division of State Lands v.
Riverfront Protection Ass’n, the Ninth Circuit held that a river was navigable based
on evidence of the downstream floating of thousands of logs.32 The United States
maintains that Riverfront Protection Ass’n is distinguishable because the river in
that case had actually been used as a highway for commerce, so susceptibility to
use was not at issue, and “no court has ever found a river navigable under the
equal footing doctrine based on mere ‘susceptibility’ to log drives.” 33 However, no
court has ever found that as a matter of law, a river is not navigable solely because
the only travel that could take place on it was downstream travel, and this court
declines to so hold.
The United States also asserts that United States v. Oregon stands for the
proposition 	that 	pleasure 	boating 	and 	hunting 	cannot 	support 	a 	finding 	of
navigability.34 	But in Oregon, the Supreme Court did not hold that the use of
32 672 F.2d 792, 795-96 (9th Cir. 1982); see also Docket 56 at 30 (State’s Reply). But see
United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 698 (1899) (“The mere fact
that logs, poles, and rafts are floated down a stream occasionally and in times of high water
does not make it a navigable river.”).
33 Docket 55-1 at 47-48.
34 Docket 55-1 at 38-39, 44-45 (first citing Oregon, 295 U.S. at 21; and then citing N. Am.
Dredging Co. of Nev. v. Mintzer, 245 F. 297, 300 (9th Cir. 1917) (“Mere depth of water, without
profitable utility, will not render a water course navigable in the legal sense, so as to subject it to
public servitude, nor will the fact that it is sufficient for pleasure boating or to enable hunters or
fishermen to float their skiffs or canoes. To be navigable, a water course must have a useful
capacity as a public highway of transportation.”)).
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pleasure boats and trappers’ boats could not ever establish navigability. 	Rather,
the Court focused on the condition of the waterways that rendered the boating
activities “sporadic and ineffective,” not the fact that the use was recreational.35
Moreover, 	the 	Supreme 	Court 	has 	recognized 	that 	“[e]vidence 	of
recreational 	use, 	depending 	on 	its 	nature, 	may 	bear 	upon 	susceptibility 	of
commercial use at the time of statehood.”36 Likewise, in Alaska v. Ahtna, Inc., the
Ninth Circuit expressed that “[t]o deny that this use of the [Gulkana] River is
commercial because it relates to the recreation industry is to employ too narrow a
view of commercial activity.”37 	Because “[n]avigability is a flexible concept” and
the case law does not foreclose the possibility that susceptibility to downstream-
only recreational or government travel could support a finding that a river has a
“capacity 	for 	general 	and 	common 	usefulness 	for 	purposes 	of 	trade 	and
commerce,”38 	the 	Court 	denies 	the 	United 	States’ 	first 	requested 	legal
determination.
35 Oregon, 295 U.S. at 20-23 (recounting that trappers and duck hunters who used boats on
waterways often had to pole their boats and drag them yards from shore before they would float,
and finding that use was “sporadic and ineffective” and that “[t]he evidence, taken as a whole,
clearly establishes the flat topography of the disputed area, the shallow water without defined
banks, . . . the separation of areas covered by water of sufficient depth to float boats, the
presence of . . . water vegetation, a dry season every year, and frequent dry years during which
[two lakes] are almost entirely without water, and [the third lake] is reduced to a relatively few
acres of disconnected ponds surrounded by mud”).
36 PPL Mont., LLC, 565 U.S. at 600-01 (citations omitted).
37 Ahtna, Inc., 891 F.2d at 1405.
38 Id. (citation omitted); Oregon, 295 U.S. at 23 (citation omitted).
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b. 	Mere Depth of Water
Next, the United States asks the Court to rule as a matter of law that a
navigability 	determination cannot 	be 	made 	based 	solely 	on 	“mere 	depth 	of
water.”39 	As the Daniel Ball test requires the consideration of more than water
depth, the Court grants the United States’ second request and finds that mere
depth of water, without satisfaction of the Daniel Ball test, is legally insufficient to
establish navigability.40
c. 	Watercraft Requirements
Third, the United States requests a ruling requiring that any watercraft
considered in a susceptibility analysis “must have been (1) used for trade and
travel, meaning realistic commercial use, (2) customary for those purposes, (3) at
the time of statehood.”41
i. 	Used for Trade and Travel – Commercial Use
The United States asserts that “[c]ourts regularly find rivers non-navigable
where there is evidence the river was boated in watercraft that are typical for ‘other
purposes,’ rather than for useful commerce.”42 In support, the United States cites
39 Docket 55-1 at 41-43.
40 N. Am. Dredging Co., 245 F. at 300 (“Mere depth of water, without profitable utility, will not
render a water course navigable in the legal sense . . . .” (quoting Harrison v. Fite, 148 F. 781,
784 (8th Cir. 1906))). The State agrees. Docket 56 at 31 (“The State agrees with the United
States that depth of a waterbody is not the sole consideration in the navigability-in-fact
analysis.”).
41 Docket 55-1 at 43-44 (internal quotation marks omitted).
42 Docket 55-1 at 44.
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Oklahoma v. Texas,43 North American Dredging Co. v. Mintzer,44 United States. v.
Rio Grande Dam & Irrigation Co.,45 and United States v. Brewer-Elliot Oil & Gas
Co.46 	The United States claims that “[t]he State . . . fails to show its proposed
historic watercraft were used for ‘commercial use that, as a realistic matter, might
have occurred’ on the disputed reach because the State cannot identify any
commerce that reasonably could occur on the reach.”47
However, under The Daniel Ball, the test for watercraft is whether it was a
customary mode of trade or travel at statehood. 	The State does not need to
establish that the watercraft was used in commerce; rather, it is the waterway itself
that the State must show is “susceptible of being used . . . as [a] highway[] for
commerce.”48 	To the extent the United States asks the Court to depart from the
language of The Daniel Ball to require the State to show that a customary mode of
trade and travel was used in commerce at the time of statehood, the Court declines
43 258 U.S. 574, 589-91 (1922).
44 245 F. at 299.
45 174 U.S. 690, 698-99 (1899).
46 249 F. 609, 623 (W.D. Okla. 1918), aff’d, 270 F. 100 (8th Cir. 1920), and aff’d, 260 U.S. 77
(1922).
47 Docket 55-1 at 45 (quoting PPL Mont., LLC, 565 U.S. at 600).
48 PPL Mont., LLC, 565 U.S. at 592 (quoting The Daniel Ball, 77 U.S. at 563). See Alaska v.
United States, 662 F. Supp. 455, 464-65 (D. Alaska 1987) (“When determining the title
navigability of a waterbody . . . a court need not specifically concern itself with when and how
commerce has or could be conducted in the region surrounding the waterbody; rather the court
need only inquire if the waterbody is susceptible to the most basic form of commercial use: the
transportation of people or goods.”), aff’d sub nom. Alaska v. Ahtna, Inc., 891 F.2d 1401 (9th Cir.
1989).
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to do so. In the Court’s view, that approach would improperly conflate two distinct
components of the Daniel Ball test: that a river was susceptible to use as a highway
of commerce and that a customary watercraft was used for trade and travel.
The cases the United States relies on do not compel a different result. 	In
Oklahoma, the Supreme Court observed that “[b]oats with a sufficient draft to be
of any service can ascend and descend only during periods of high water” and
concluded that
trade and travel neither do nor can move over that part of the river, in
its natural and ordinary condition, according to the modes of trade and
travel customary on water; in other words, that it is neither used, nor
susceptible of being used, in its natural and ordinary condition as a
highway for commerce. 	Its characteristics are such that its use for
transportation has been and must be exceptional, and confined to the
irregular and short periods of temporary high water.49
Thus, the Oklahoma Court determined that the disputed river was non-navigable
because it could only be used during irregular periods of high water. 	Oklahoma
does 	not 	distinguish 	between 	watercraft 	that 	were 	commercially 	used 	and
watercraft used for a different purpose.
In North American Dredging Co., the Ninth Circuit held that a channel was
not navigable where “the channel in controversy and other sloughs intersecting the
land have never been used or regarded as available for any kind of navigation,
other than for duck boats or punts for hunting and fishing.”50 	To the extent the
49 258 U.S. at 589, 591.
50 245 F. at 299.
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United States is asserting that this language precludes any consideration of non-
commercial watercraft in a navigability analysis, the Court disagrees.51 Rather, the
Court reads the language as emphasizing that, to be navigable, a waterway must
have a useful capacity as a highway for commerce.
The United States also quotes the following excerpt from Rio Grande Dam
& Irrigation Co.: “It is not . . . every small creek in which a fishing skiff or gunning
canoe can be made to float at high water which is deemed navigable, but, in order
to give it the character of a navigable stream, it must be generally and commonly
useful to some purpose of trade or agriculture.”52 	The Court similarly reads this
language not as a limitation on the types of watercraft that may be considered in a
navigability analysis but as emphasizing that the mere fact that a particular boat
can float on the waterway at high water does not render the waterway navigable;
instead, the waterway must be susceptible to use as a highway for commerce.
Lastly, the United States asserts that Brewer-Elliott Oil & Gas Co. “[found a]
river segment non-navigable because steamboats and ‘naphtha[] launches’ could
not use the segment, even though non-commercial ‘[s]kiffs could be used at any
time.’”53 	However, there, the court determined that the river was non-navigable
because
[t]he use of that portion of the river for transportation boats has been
51 Docket 55-1 at 44-45.
52 Docket 55-1 at 45 (quoting 174 U.S. at 698-99 (internal quotation marks omitted)).
53 Docket 55-1 at 45 (quoting Brewer-Elliott Oil & Gas Co., 249 F. at 623).
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exceptional and necessarily on high water, was found impractical, and
was abandoned. The rafting of logs or freight has been attended with
difficulties precluding utility. 	There was no practical susceptibility to
use as a highway of trade or travel.54
Thus, to the extent that the United States asks the Court to exclude from
consideration customary modes of trade and travel at statehood that were not used
in commerce, the Court declines to do so, as it would impermissibly narrow the
navigability inquiry.55
ii. 	Customary for Commercial Use
The United States next maintains that “[a]ny watercraft considered must
have been ‘customary’ for the identified reasonable commercial use.”56 The Court
agrees insofar as The Daniel Ball requires that any watercraft considered must be
a “customary mode[] of trade and travel” at statehood.57 But as discussed in the
preceding section, the Court rejects the United States’ assertion that the use must
54 Brewer-Elliott Oil & Gas Co., 249 F. at 623.
55 See PPL Mont., LLC, 565 U.S. at 600-01 (“Evidence of recreational use, depending on its
nature, may bear upon susceptibility of commercial use at the time of statehood.” (first citing
United States v. Appalachian Elec. Power Co., 311 U.S. 377, 416 (1940) (“[P]ersonal or private
use by boats demonstrates the availability of the stream for the simpler types of commercial
navigation”); and then citing Utah, 283 U.S. at 82 (fact that actual use has “been more of a
private nature than of a public, commercial sort . . . cannot be regarded as controlling”))); Ahtna,
Inc., 891 F.2d at 1405 (rejecting argument that recreational use does not support a finding of
navigability as “[t]he test is whether the river was susceptible of being used as a highway for
commerce at statehood, not whether it was actually so used”); Alaska v. United States, Case
No. 3:12-cv-00114-SLG, 2016 WL 1948801, at *7 (D. Alaska May 3, 2016) (noting that party’s
“asserti[on] that only ‘freighting’ or commercial use could be considered as a matter of law” was
“at odds with both Ninth Circuit and United States Supreme Court precedent, which expressly
directs consideration of non-commercial use in determining navigability”).
56 Docket 55-1 at 48; Docket 63 at 27.
57 77 U.S. at 563.
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have been commercial.58
“Customary” has been defined as “commonly . . . used.”59 	Further, as the
United States’ proposed definition provides, customary refers to “usual practices
associated with a particular . . . place.”60 The Court agrees that some geographic
boundaries should be applied in determining the customary mode of travel. In its
reply, the United States cites two out-of-circuit cases for the proposition that this
Court should only consider boats that were customary in the Fortymile Region and
not in other parts of Alaska.61 	While those cases discuss canoes used by
“communities of the region” and boats “designed for the shallow rivers of the
northern plains,” they do not define what constitutes a region, nor do they hold that
it is impermissible for a court to consider boats that may not have been used in a
certain region but that were used within the same state.62 	Rather, given the
vastness of the state and its small population at statehood, the Court will consider
58 See supra Section I.c.i.
59 Customary, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/customary#dictionary-entry-1 (last visited Feb. 6, 2024).
60 Docket 55-1 at 49 (quoting Oxford English Dictionary definition of “customary” from Docket
55-4 at 2, which the United States refers to as the Greenwald Report i).
61 Docket 63 at 29-30 (first citing North Carolina ex rel. N.C. Dep’t of Admin. v. Alcoa Power
Generating, Inc., 853 F.3d 140, 152 (4th Cir. 2017), as amended (Apr. 18, 2017), as amended
(May 3, 2017); and then citing North Dakota ex rel. Bd. of Univ. & Sch. Lands v. United States,
972 F.2d 235, 239 (8th Cir. 1992)).
62 See North Carolina, 853 F.3d at 152; North Dakota, 972 F.2d at 239. See also Utah, 403 U.S.
at 12 (affirming finding that Salt Lake was navigable where facts showed “that the lake on
January 4, 1896, [the date of statehood,] ‘could have floated and afforded passage to large
boats, barges and similar craft currently in general use on inland navigable bodies of water in
the United States’” (emphasis added)); supra Section I.c.ii.
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evidence by either party of customary watercraft in use in the state of Alaska before
or at statehood in determining navigability under The Daniel Ball.63
iii. 	At Statehood
The United States contends that “[t]he consideration of historic watercraft for
a susceptibility analysis must focus on watercraft at the time of statehood” and,
therefore, any watercraft that became customary after statehood cannot be used
to establish navigability.64 	The Court agrees that watercraft that did not become
customary until after statehood cannot, standing alone, establish navigability.65
But the Court also finds that watercraft that were used before statehood—and that
might have declined in use by 1959 but nonetheless had been a customary mode
of trade and travel prior to statehood—can support a finding of navigability.66
* * *
In sum, the Court grants the United States’ Cross-Motion for Summary
Judgment insofar as the Court finds that mere depth of water is insufficient to
63 See Docket 63 at 28-31.
64 Docket 55-1 at 50-51; Docket 63 at 31-32.
65 See PPL Mont., LLC, 565 U.S. at 601.
66 See Docket 56 at 26-27 (citing PPL Mont., LLC, 565 U.S. at 582-83, to note that the
“Supreme Court considered the diaries of Lewis and Clark, written in 1805, when considering
the navigability of the Great Falls of the Missouri River at Montana’s statehood in 1889”); Utah,
403 U.S. at 12 (“Most of the history of actual water transportation, to be sure, took place on the
lake in the 1880’s, yet the findings of the Master are that the water conditions which obtained on
January 4, 1896, still permitted navigation at that time.”); Utah, 283 U.S. at 82 (“Much of [the]
evidence as to actual navigation relates to the period after [statehood], but the evidence was
properly received . . . as being relevant upon the issue of the susceptibility of the rivers to use
as highways of commerce [at statehood].”).
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establish navigability as a matter of law; the United States’ motion is otherwise
denied. The Court will apply The Daniel Ball to determine whether Disputed North
Fork was susceptible of being used as a highway for commerce by a customary
mode of trade or travel at the time of statehood. 	Customary modes of trade and
travel must have been commonly used in the state of Alaska prior to or at the time
of statehood, but they need not have been used for commerce. 	Further, any
differences between the Fortymile Region and the region in Alaska where a
watercraft was used and any gap in time between the customary use of the
watercraft prior to statehood and January 3, 1959, will be considered in the Court’s
evaluation of the weight of the parties’ evidence on the navigability of Disputed
North Fork.
II. 	State’s Motion for Summary Judgment
As an initial matter, the Court rejects the State’s argument that, since the
“United States agrees that the [Disputed North Fork] is beautiful and boatable in
modern inflatable rafts,” the United States has “concede[d] . . . navigability-in-
fact.”67 Relying on Ahtna, Inc., the State claims that “the modern commercial river
rafting industry is commerce and could have been conducted by the types of boats
customarily in use in Alaska at statehood” and that Disputed North Fork “is
susceptible to the same kind of industry that exists on the Gulkana River,” the river
67 Docket 56 at 9.
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at issue in Ahtna, Inc.68
After 	the 	Ninth 	Circuit’s 	decision 	in 	Ahtna, 	Inc., 	the 	Supreme 	Court
instructed, in PPL Montana, that a party seeking to establish navigability based on
present-day use “must show: (1) the watercraft are meaningfully similar to those in
customary use for trade and travel at the time of statehood; and (2) the river’s
poststatehood condition is not materially different from its physical condition at
statehood.”69 	While the parties agree that the second requirement is met—that
Disputed 	North 	Fork 	is 	in 	the 	same 	material 	condition 	now 	as 	it 	was 	at
statehood70 —they 	dispute 	whether 	modern 	inflatable 	rafts 	are 	“meaningfully
similar to those in customary use for trade and travel at the time of statehood.”71
The Court declines to rely “upon the State’s evidence of present-day recreational
use, at least without further inquiry,” as to do so would be “wrong as a matter of
law.”72 The Court therefore considers whether there are material factual disputes
with respect to the remaining aspects of the Daniel Ball test: (a) which watercraft
were customary modes of trade and travel at statehood, and (b) whether Disputed
68 Docket 56 at 9 (citing Ahtna, Inc., 891 F.2d at 1405).
69 PPL Mont., LLC, 565 U.S. at 601 (citation omitted).
70 Docket 52 at 60 (“There is no dispute that the [Disputed] North Fork . . . is in its ordinary
condition, unchanged since statehood in any respect that would affect navigability.” (first citing
Docket 52-18 at 2; and then citing Docket 52-21 at 2)); Docket 55-1 at 35 (“The disputed reach
of the North Fork is in the same ‘ordinary and natural condition’ as when Alaska became a state
in 1959.”).
71 PPL Mont., LLC, 565 U.S. at 601 (citation omitted). See Docket 55-1 at 58-62.
72 PPL Mont., LLC, 565 U.S. at 603.
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North Fork was susceptible to use as a highway of commerce by those customary
watercraft.73
a. 	Customary Modes of Trade and Travel
The State maintains that it is entitled to summary judgment because
Disputed North Fork “has sufficient depths and widths to be functionally and
reliably boatable by a variety of boats customarily used on Alaska’s rivers at
statehood.”74 The State maintains that each of the following were customarily used
in Alaska before or at statehood: poling boats, canoes, handmade wooden boats,
inflatable rafts, motorboats, airboats, and jetboats; the Court addresses each in
turn.75
i. 	Poling Boats
The only boat that the parties agree was customarily used in the Fortymile
Region for trade and travel at the time of statehood was the poling boat.76
73 See id. at 601. The parties dispute whether there is evidence of actual travel on Disputed
North Fork before or at statehood, so the State relies on Disputed North Fork’s susceptibility to
use for a navigability determination on summary judgment. Docket 52 at 62-63. See Docket
52-8 at 10 (State’s expert report recounting that a group of prospectors traveled up North Fork
past the Kink to Hutchinson Creek); Docket 52-7 at 12 (United States’ expert found “no evidence
of travel by water on the Middle Fork or [past the Kink on the] upper North Forth prior to or at the
time of statehood”); Docket 52-9 at 2-3 (United States’ expert rebuttal report explaining that the
State misinterpreted the historical writings and that the prospectors did not travel to Hutchinson
Creek by water; rather, they walked on foot).
74 Docket 52 at 9.
75 See Docket 52 at 11-12 & n.16; Docket 52-6. The United States’ expert agreed that, in
addition to poling boats, Peterborough canoes and some motorized boats were customarily
used for trade and travel on water in the Fortymile Region prior to or at the time of statehood.
Docket 52-7 at 3, 20-23, 26-28.
76 See Docket 56 at 10-11 (State asserting that consideration of poling boats alone
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“Historically, pole boats were used in the Fortymile Region of Alaska before
statehood.”77 	From the 1880s to the 1930s, poling boats were used to carry
supplies to miners upstream on the Fortymile River and South Fork to Chicken,
Alaska, and to Mosquito Fork.78 	In the 1930s, poling boats were widely used
throughout Alaska,79 and, while boat travel in the Fortymile Region decreased at
that time,80 	“[m]iners continued to use poling boats . . . into the 1940s.”81
Accordingly, the Court finds that there is no dispute of material fact that poling
boats were a customary mode of trade and travel in Alaska at the time of
statehood.
ii. 	Canoes
The State’s expert recounted that, long before statehood, Alaska Natives
used canoes and kayaks to hunt and transport harvested resources on Alaska’s
rivers.82 	At the time of Russian exploration, Alaska Natives traveled on water to
demonstrates Disputed North Fork was navigable at statehood).
77 Docket 52-2 at 7.
78 See Docket 52-3 at 3-4 (recounting instances of miners using poling boats to transport
supplies up the Fortymile River to Chicken, Alaska, and to travel down the South Fork, Mosquito
Fork, and the main stem of the Fortymile River); Docket 52-6 at 17-18 (describing use of poling
boats in the Fortymile Region and on the Fortymile River to prospect for gold in the 1880s and
1890s); Docket 52-7 at 12, 20-23 (United States’ expert report acknowledging that poling boats
were used in the Fortymile Region at the time of statehood).
79 Docket 52-6 at 24-26.
80 Docket 52-3 at 4.
81 Docket 52-6 at 23.
82 Docket 52-6 at 7-8.
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Russian trading posts to trade furs.83 	Two United States military personnel used
canoes and boats crafted by Alaska Natives to explore Alaska in the mid-1880s. 84
And in the 1890s, another explorer used a “cottonwood dugout canoe” for an
expedition.85
At the turn of the 20th century, “[t]he Peterborough Canoe Company built
canoes especially for use in Alaska . . . and for use by government expeditions.” 86
In 1914, Peterborough Canoe Company advertised freight canoes ranging from 17
to 19.5 feet long and capable of carrying 1,250 to 2,000 pounds with a 12-inch
draft.87 	“[P]unctures 	by 	snags 	or 	rocks 	of 	thin 	cedar 	planking 	[were] 	not
uncommon, but these [were] quickly and permanently repaired by strips carried for
the purpose.”88 According to the State’s expert, from the late 1800s to early 1900s,
the United States Geological Survey (“USGS”) used Peterborough canoes “on
about 15,000 miles of the watercourses of Alaska.”89 	In the Fortymile Region,
government expeditions used the canoes in 1898 to survey the area, at one point
“poling, lining, and dragging their boats against the swift current and shallow water
83 Docket 52-6 at 8.
84 Docket 52-6 at 10.
85 Docket 52-6 at 11.
86 Docket 52-6 at 12.
87 Docket 52-6 at 12 & n.17.
88 Docket 52-6 at 12.
89 Docket 52-6 at 11-12.
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to the Snag River.”90 	However, “[a]s other types of river boats started to become
more popular after World War II, canoeists were increasingly numbered as
recreationists rather than prospectors, trappers, or freighters. 	Still, recreational
canoers would utilize canoes capable of carrying large loads . . . .” 91
The United States’ expert agreed that Alaska Natives used canoes to travel.
For example, the expert noted that the Upper Tanana, an Athabascan group that
lived in the Fortymile Region, used a smaller, lightweight canoe that could carry
one to two people and limited cargo, and a larger skin boat that could carry a dozen
people or an equal amount of cargo.92 	Another Athabascan group, the Han, also
used canoes in the Fortymile Region for fishing and to hunt caribou.93 	There is
one account of Alaska Natives, likely Han, in the early 1900s using a canoe to pole
up the Yukon River.94
Based on the foregoing, the State maintains that the evidence is undisputed
that canoes were a customary mode of trade and travel at the time of statehood.95
The United States disagrees, arguing that the “State cannot prove that canoes
customarily 	served 	commercial 	uses 	that, 	as 	a realistic 	matter, 	might 	have
90 Docket 52-6 at 13.
91 Docket 52-6 at 15.
92 Docket 52-7 at 13.
93 Docket 52-7 at 13, 16.
94 Docket 52-7 at 17-18.
95 Docket 52 at 64.
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occurred at the time of statehood on the North Fork of the Fortymile River.”96
Canoes were not used commercially, the United States claims, but rather were
used 	by 	explorers 	and 	adventurers 	and 	for 	expeditions, 	and 	then 	later 	for
recreation. 97 And the United States asserts that the State’s identified historical use
of canoes is “too far removed from the time of statehood to be relevant.”98 	The
United States also contends that canoes cannot establish navigability because the
State did not “identify any particular canoe customary for trade and travel,” which
would be relevant to show that canoes used in Alaska around the time of statehood
were comparable to modern inflatable rafts.99
As discussed above, the Court rejects the United States’ assertion that a
customary mode of trade and travel must necessarily have been used for a
commercial use.100 The United States also asserts that, in assessing navigability,
the Court should not consider evidence of historical canoe use dating from the
1800s through 1928 in Alaska because it is too dated.101 But, as noted above, the
Court declines to rule, as a matter of 	law, that courts are prohibited from
96 Docket 55-1 at 53.
97 Docket 55-1 at 53.
98 Docket 55-1 at 54 (citing Docket 52-6 at 7-14 which recounted canoe use in the 18th Century,
late 1800s, early 1900s, and 1928).
99 Docket 55-1 at 54.
100 See supra Section I.c.i; supra note 55.
101 Docket 55-1 at 54.
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considering such evidence. 102 	And, regarding the United States’ contention that
the State cannot use canoes to demonstrate navigability because the State did not
identify a particular canoe for comparison to modern watercraft, if at trial the State
chooses to rely on canoes and modern recreational use of Disputed North Fork to
show navigability, the State can present evidence that one or more particular types
of canoe customary at statehood are meaningfully similar to modern watercraft.
Accordingly, the Court finds that there is no dispute of material fact that canoes
were a customary mode of trade and travel in Alaska for purposes of determining
navigability at statehood.
iii. 	Handmade Wooden Boats
The State’s expert noted that some miners built “simple river boats” out of
“local trees” to “float down to the Klondike and Fortymile gold areas.”103 According
to the United States’ expert, in the late 1800s, miners, prospectors, and explorers
used handmade boats of “varied . . . length and draft” to travel up the Fortymile
River, the South Fork of the Fortymile River, and to the confluence of the North
and South Forks of the Fortymile River.104
The United States challenges the relevance of handmade wooden boats to
the navigability analysis, claiming that “the evidence of their use is too far removed
102 See supra note 66.
103 Docket 52-6 at 16.
104 Docket 52-7 at 23-26.
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from the time of statehood and their characteristics too varied to be part of any
analysis aimed at determining whether these amorphously defined ‘small boats’
constitute a common or ‘customary’ form at the time of statehood.”105 	As noted
above, the Court declines to exclude evidence of customary modes of trade and
travel as a matter of law simply because the evidence of their use is allegedly too
dated. However, the Court finds that a dispute of material fact exists as to whether
handmade wooden boats were customary modes of trade and travel at the time of
statehood.
iv. 	Inflatable Rafts
The 	State’s 	expert 	opined 	that 	the 	use 	of 	inflatable 	rafts 	“increased
significantly after World War II.” 106 A BLM employee, George Gustafson, indicated
that inflatable boats were commonly used in Alaska in the 1940s and 1950s.107
Gustafson himself used an inflatable raft from 1949 or 1950 to 1955 that was 10
to 12 feet long and four feet wide for “week-long hunting trips, carrying over 1,000
pounds of people, moose meat, and supplies.”108 Gustafson also recalled seeing
a commercial river rafting trip on the Gulkana River in the early 1950s using military
surplus 	inflatable 	boats.109 	The 	State’s 	expert 	also 	indicated 	that, 	before
105 Docket 55-1 at 58 n.130.
106 Docket 52-6 at 53, 57.
107 Docket 52-6 at 59.
108 Docket 52-6 at 59, 61.
109 Docket 52-6 at 62.
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statehood, inflatable rafts were used by fishermen, a geographer, a prospector,
hunters, 	and 	river 	guides 	on 	various 	Alaskan 	waterways.110 	And, 	before
statehood, two “amateur geologists” used an inflatable boat to mine a jade deposit
on the Shungnak River.111 	The report also recounted numerous advertisements
for inflatable boats for sale in Alaska before statehood.112
The United States’ expert opined that “[i]nflatable rafts were not customarily
used in the Fortymile basin prior to or at the time of statehood,” but acknowledges
their use in other parts of the state at that time.113 	Further, the United States
maintains that “inflatable rafts were designed, sold, and used for ‘other purposes’
than commerce” and, citing the use of an inflatable raft by the amateur jade miners,
that “[a] few historical instances of people using . . . an inflatable raft[] for a
commercial purpose does not make that craft ‘customary’ for that purpose.”114 But,
as explained above, the Court does not find that customary use must have
occurred in the Fortymile Region or been of a commercial nature. The Court thus
finds that there is no dispute of material fact that inflatable rafts were customary
modes of trade and travel at statehood.
110 Docket 52-6 at 60-62.
111 Docket 52-6 at 68. The United States notes that “the Shungnak River[ is] hundreds of miles
away [from Disputed North Fork] in northwest Alaska.” Docket 55-1 at 52.
112 Docket 52-6 at 66.
113 Docket 55-4 at 36; Docket 52-7 at 33; Docket 52-9 at 8.
114 Docket 55-1 at 51-52.
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v. 	Motorboats
The State’s expert chronicled that outboard motors, often attached to poling
boats and other boats already in use, were used in Alaska by the early 1900s.115
For example, in 1926, a USGS expedition used an outboard motor attached to a
poling boat, and, in 1929, the government used a poling boat with an outboard
motor to conduct a census along the Yukon River from Fairbanks to Nenana.116
Starting in the 1930s, boaters began using lift mechanisms so they could lift the
motor when in shallow water.117 Inboard motors were used on boats with a tunnel
design, which “used a recessed area at the stern of the hull to draw water up to
the motor within the tunnel.”118 But tunnel boats with inboard motors were heavier
than boats with outboard motors and “could get hung up on gravel bars or other
obstructions,” so “they were largely replaced by outboard riverboats and other,
lighter types of boats.”119
Eventually, Alaskan boaters began building watercraft specifically for use
with outboard motors.120 	As the State’s expert explained, “[b]y the 1950s, the
115 Docket 52-6 at 26-27, 31 (explaining that outboard motors were attached to skiffs, dories,
and umiaks).
116 Docket 52-6 at 27-30 (providing additional examples of use of poling boats and canoes from
the 1920s to the 1940s with outboard motors).
117 Docket 52-6 at 37-38.
118 Docket 52-6 at 43.
119 Docket 52-6 at 46-47.
120 Docket 52-6 at 35.
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typical Alaskan river boat was 5 to 6 feet in beam by 18 to 35 feet in length, with a
flat bottom and no keel. . . . They were normally constructed out of wood, primarily
Sitka spruce or plywood, but some were aluminum.” 121 	Gustafson also indicated
that these kinds of boats were very common in Alaska from the late 1940s to
1960s; he used one for his work for BLM during that time, and he saw companies
use similar boats to transport clients for hunting and fishing trips.122 	These boats
were also used for recreation.123
The United States’ expert recounted that:
Motorized boats were used in at least some portions of the Fortymile
basin. John Mertie, who traveled to Alaska in 1936 to do survey work
for the USGS, reported that “[g]asoline launches and small boats are
also used on the streams tributary to the Yukon River, particularly on
the Fortymile River, where supplies are freighted from the mouth of
the Fortymile upstream to Steel Creek.”124
The United States’ expert concluded that “motorized boats were customarily used
for trade and travel on water in the region prior to or at the time of statehood,” but
found “no evidence that motorized boats were used on the Middle Fork or upper
North Fork prior to or at the time of statehood.”125 However, as discussed above,
121 Docket 52-6 at 35.
122 Docket 52-6 at 35-36.
123 Docket 52-6 at 36.
124 Docket 52-7 at 28.
125 Docket 52-7 at 3, 28. The United States notes that one “customary boat[] of gold miners”
was the “propeller-powered riverboat[].” Docket 63 at 30. Accordingly, the United States
appears to only challenge the Court’s consideration of motorboats with lifts.
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the Court will consider evidence of customary use in the state of Alaska.126
The United States argues that outboard motor lifts were not customary
means of trade and travel at statehood “because these unique devices were used
for recreation and adventure seeking but they were not customary on boats using
rivers as highways of commerce.”127 	However, as noted above, the Court finds
that recreational use can be considered when determining whether a watercraft
was used as a customary mode of trade and travel.128
Accordingly, the Court finds that there is no dispute of material fact that river
boats with outboard motors, with or without lifts, were customary modes of trade
and travel in Alaska at the time of statehood.
vi. 	Airboats
The 	State’s 	expert 	described 	airboat 	use 	in 	Alaska, 	including 	“an
experimental salmon transport consisting of a large scow fitted with an airplane
engine and propeller on its stern” built in 1918 and a Peterborough canoe outfitted
with an air propeller that was used to transport a village doctor and his spouse
from Candle to Kelawik in the same year.129 In 1953, a group of Kotzebue hunters
built an airboat for sealing and whaling, and, in 1958, a fishing and hunting
126 See supra Section I.c.ii.
127 Docket 55-1 at 57-58.
128 See supra note 55.
129 Docket 52-6 at 40-41.
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publication reported that the Salcha and Chena Rivers were so shallow that even
airboats were returning from moose hunting with “trouble bound to the bottom.”130
In 1959, the Haines Sportsmen’s Association offered a new airboat as a raffle
prize, and the association hosted an airboat race.131 Numerous advertisements in
newspapers from Anchorage and Fairbanks listed airboats for sale in the late
1950s, and airboats were used on the Knik and Gulkana Rivers around the time of
statehood.132
In her rebuttal to the State’s report, the United States’ expert noted that
airboats were used on the Gulkana River starting in the mid-1950s to transport
loads of 600 to 700 pounds.133 But the expert opined that the airboats pictured in
the State’s expert report do not “appear to be designed or used to move freight.” 134
However, a watercraft can demonstrate navigability even if it does not transport
freight. 	The United States’ expert also concluded that “neither jet boats nor
airboats were customarily used in the Fortymile basin prior to or at the time of
statehood.”135 However, as noted, the Court does not find that the Daniel Ball test
requires that the customary mode of trade and travel be used in the precise region
130 Docket 52-6 at 41 & n.121.
131 Docket 52-6 at 41.
132 Docket 52-6 at 42-43.
133 Docket 52-9 at 7.
134 Docket 52-9 at 7.
135 Docket 52-9 at 7-8.
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at issue; rather, the Court will consider use in the state of Alaska.136 	The United
States also argues that airboats should not be considered in a navigability analysis
because “airboats were used for personal recreation at statehood, and not as
customary means of trade and travel,” and that “they do not even need a waterbody
to operate.”137 	As noted above, boats used for recreational purposes are not
excludable as a matter of law in determining navigability,138 and the Court is not
persuaded that the fact that airboats can operate over wet vegetation precludes
airboats’ relevancy to a navigability analysis.139 	Accordingly, the Court finds that
there is no dispute of material fact that airboats were customary modes of trade
and travel in Alaska at statehood.
vii. 	Jetboats
The United States maintains that, because jetboats were new in Alaska in
1959, they were not a customary mode of trade and travel.140 	The State
acknowledges that whether jet boats were in customary use at statehood is
disputed.141 Accordingly, the Court finds that a dispute of material fact remains as
136 See supra Section I.c.ii.
137 Docket 55-1 at 55.
138 See supra note 55.
139 See Docket 55-1 at 55-56 (quoting the State’s expert at Docket 55-20 at 5, which notes that
“airboats can operate not only in ‘very shallow water’ but ‘sometimes even over wet
vegetation’”).
140 Docket 55-1 at 56.
141 Docket 56 at 27 n.90.
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to whether jetboats were customary modes of trade and travel at the time of
statehood.
* * *
In sum, the Court finds that the State has established that poling boats,
canoes, inflatable rafts, motorized boats, and airboats were customary modes of
trade and travel in Alaska at the time of statehood. 	But disputes of material fact
remain as to whether handmade wooden boats and jetboats were customary
modes of trade and travel in Alaska at the time of statehood.
b. 	Susceptible to Use as a Highway of Commerce
The State asserts that “the modern inflatable canoes and rafts used by
witnesses who boated [Disputed] North Fork . . . are meaningfully similar to pre-
statehood non-motorized boats, including pre-statehood canoes and poling boats,”
as “[a]ll of these craft draft 8 inches or less and require similar channel widths.”142
And the State maintains that Disputed North Fork is navigable because the United
States’ expert hydrologist reported that Disputed North Fork has “consistent depths
greater than 8 inches even at relatively low water levels.”143 Accordingly, the State
claims that navigability can be based on canoes, poling boats, and other non-
142 Docket 52 at 64.
143 Docket 52 at 64.
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motorized 	boats 	customarily 	in 	use 	at 	statehood, 	without 	consideration 	of
motorized boats.144
The United States disputes the State’s interpretation of the United States’
hydrologist’s data,145 asserts that modern inflatable rafts are not meaningfully
similar to any watercraft used at the time of statehood,146 and maintains that draft
alone is “too simplistic” a measure on which to base a finding of meaningful
similarity.147 	The United States points to the deposition testimony of one of the
State’s experts, Larry Bartlett, who owns a wildlife adventure company and
organizes hunting trips in the Fortymile Region.148 He testified that his clients hike
from the Gold Run landing strip to hunt on rafts starting above the North Fork
headwaters and that, during periods of low water, his clients have had to drag their
144 Docket 52 at 64.
145 Docket 55-1 at 15 (“On depth of water, the State relies on measurements from only the
deepest, least obstructed parts of the river and misuses the U.S. hydrologist’s data to make it
appear that a clear channel exists. The U.S. hydrologist already explained that the State’s
interpretation is incorrect.”). See Docket 55-1 at 62-63 (“Functionally, the river is not as deep as
the State claims because the boulders and riffles that reduce the channel and require dragging
are not reflected in either party’s data.); Docket 55-28 at 5-6 (United States’ hydrologist
explaining that “the boulders for the most part are not reflected in the mapping that this is based
on” and that the State’s graph does not “mean there is 8 inches of depth available for a boat to
pass through”).
146 In its reply, the United States recognizes that “[a]lthough not all historic craft are customary
modes of trade and travel on water appropriate for a susceptibility analysis, . . . the Court in this
case should consider evidence of all river use when assessing susceptibility.” Docket 63 at 25.
147 Docket 55-1 at 59-60 (citing Docket 55-22 (expert report concluding that modern inflatable
rafts are lighter, have less static draft, are more maneuverable, and are more durable than
statehood military surplus inflatable rafts)).
148 Docket 52-30 at 1-4.
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rafts from the start of their trip all the way to Champion Creek. 149
A “party seeking to use present-day evidence for title purposes must show .
. . the watercraft are meaningfully similar to those in customary use for trade and
travel at the time of statehood.”150 “If modern watercraft permit navigability where
the historical watercraft would not, . . . then the evidence of present-day use has
little or no bearing on navigability at statehood.”151 	“[T]he test focuses on the
capabilities and draft of the vessels . . . .”152
Above, the Court found that poling boats, canoes, inflatable rafts, motorized
boats, and airboats were customary modes of trade and travel on water in Alaska
at statehood. 	Because the State seeks summary judgment on poling boats,
canoes, and inflatable rafts alone,153 the Court considers whether the State has
shown that Disputed North Fork was susceptible to use as a highway of commerce
at statehood by any of these three types of vessels.154
149 Docket 52-30 at 18-21, 27 (Bartlett testifying that when groups “shot all of their harvest close
to the put-in” they “drag for days to reach Champion [Creek]”).
150 PPL Mont., LLC, 565 U.S. at 601 (citation omitted).
151 Id.
152 Alaska, 2016 WL 1948801, at *7 n.82. The United States maintains that “technology that
affects capabilities must be considered.” 	Docket 63 at 21-22 (citing PPL Mont., LLC, 565 U.S.
at 601-02). The Court agrees that technology may well affect a vessel’s capabilities and is
considered in that regard when assessing meaningful similarity.
153 Docket 52 at 64.
154 See PPL Mont., LLC, 565 U.S. at 600 (citation omitted).
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i. 	Poling Boats
The State’s expert modeled draft and load for several kinds of modern non-
motorized boats that “are suitable for trips on the . . . North Fork[].”155 	The report
included 	a 	figure 	that 	“provides 	schematic 	drawings 	of 	representative 	non-
motorized boat types, widths and lengths, and associated clear channel needs.
The figure also includes a light poling boat, an historical craft used in the Fortymile
Basin, which has similar lengths, widths, and drafts.”156 	The figure appears to
show that a pack raft, canoe, inflatable canoe, cataraft, inflatable raft, and 20-foot-
long poling boat all draft less than 8 inches.157
The United States counters that the State’s expert “did not examine the
capabilities of poling boats or ‘clearly compare’ them to modern vessels. 	The
recreational rafting witnesses report simply provides a picture of its draft.”158
Further, the United States’ expert witness opined that a 14-foot self-bailing
whitewater raft and a 20-foot poling boat are not similar.159
Viewing the evidence in the light most favorable to the United States, the
Court finds that the State has not established that Disputed North Fork was
susceptible to use as a highway for commerce by poling boats at statehood. 	To
155 Docket 52-13 at 22-23.
156 Docket 52-13 at 25 (citing Docket 52-6).
157 Docket 52-13 at 26.
158 Docket 63 at 23 n.12 (citations omitted).
159 Docket 55-27 at 2-3.
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begin, the State has not conclusively established that a poling boat would draft no
more than eight inches, as it does not appear that the State’s expert actually
performed a draft analysis with a statehood-era poling boat. Nor does the expert
explain how any of the modern boats the expert studied are meaningfully similar
to a historic poling boat.160 	The expert’s inclusion of a photo of a statehood-era
poling boat, without more, does not establish that such a vessel could navigate
Disputed North Fork.161 	Further, the State has not established that static draft
alone is sufficient to show a watercraft could navigate a particular waterway.162 In
sum, disputes of material fact remain as to whether Disputed North Fork was
susceptible to use as a highway of commerce at statehood by poling boats.
ii. 	Canoes
The State’s expert opined that modern “[c]anoes and inflatable canoes with
loads about 700 to 900 [pounds] draft” “less than 8 inches.”163 However, the expert
did not explain how the modern canoes he considered are meaningfully similar to
160 Docket 52-13 at 10-11. The State’s expert concluded that “modern boats are more similar
than different to their historical ancestors. Their overall dimensions are similar (lengths and
widths); their displacements are similar (especially for loads far greater than the weight of the
boat); and their designs are only subtly different. Most importantly, their drafts are similar (about
6 to 8 inches, depending on load). We therefore conclude that current-day craft are
meaningfully similar to boats used on Alaskan rivers for trade and transportation about the time
of statehood.” Docket 52-13 at 28. The Court finds that this general conclusion is insufficient to
establish that Disputed North Fork was navigable by a particular customary mode of trade and
travel at statehood.
161 See Docket 52-13 at 26.
162 See Docket 63 at 22-23 n.11 (quoting Docket 52-6 at 16-17).
163 Docket 52-13 at 24.
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canoes used at the time of statehood.164 As noted above, one Peterborough canoe
used before statehood was 17 to 19-and-one-half feet in length, could carry 1,250
to 2,000 pounds, and drafted 12 inches.165 Viewing the evidence in the light most
favorable to the United States, disputes of material fact remain as to whether
Disputed North Fork was susceptible to use as a highway of commerce at
statehood by canoes.
iii. 	Inflatable Rafts
The parties dispute the draft of inflatable rafts, with the State’s expert
reporting that modern inflatable rafts draft “less than 8 inches” and generally
asserting that modern boats are similar to boats used in Alaska at the time of
statehood.166 	The United States’ expert reported that military surplus inflatable
rafts in use at statehood drafted 11 to 15 inches.167 	Viewing the evidence in the
light most favorable to the United States, disputes of material fact remain as to
whether Disputed North Fork was susceptible to use as a highway of commerce
at statehood by inflatable rafts.
CONCLUSION
Accordingly, the United States’ Cross-Motion for Summary Judgment at
164 See Docket 52-13 at 11 (listing canoes used for draft demonstration, which included a 13-
foot-long solo whitewater canoe, a 16-foot-long tandem canoe, a 17-foot-long tandem canoe,
and a 19-foot-long tandem canoe).
165 Docket 52-6 at 12.
166 Docket 52-13 at 24, 28.
167 Docket 52-17 at 4.
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Docket 55 is GRANTED in part and DENIED in part, insofar as the Court finds that
mere depth of water alone is insufficient to establish navigability as a matter of law;
the motion is otherwise denied. 	At trial, the Court intends to apply the plain
language of The Daniel Ball. As noted above, the Court
 	defines “customary” as “commonly used” in the state of Alaska, with
uses in other areas of the state outside of the Fortymile Region going
to the weight to be accorded to such evidence;
 	will 	consider 	evidence 	proffered 	to 	show 	that 	a 	watercraft 	was
customary based on its use for trade or travel, and such evidence is
not limited to commercial uses;
 	will consider evidence of watercraft use in Alaska prior to or at the
time of statehood to determine what vessels were customary at
statehood; and
 	finds that susceptibility to use requires a showing that Disputed North
Fork 	could 	have 	been 	used 	as 	a 	highway 	for 	commerce 	by 	a
customary mode of trade or travel at statehood.
Further, the State’s Motion for Summary Judgment at Docket 51 is DENIED.
The Court finds that disputes of material fact remain as to:
 	Whether handmade wooden boats or jetboats were customary modes
of trade and travel at statehood;
o 	If so, whether Disputed North Fork was susceptible to use as a
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highway for commerce by either of these watercraft, including
whether either of these watercraft is meaningfully similar to
present-day watercraft.
 	Whether Disputed North Fork was susceptible to use as a highway for
commerce by poling boats, canoes, inflatable rafts, motorized boats
with or without lifts, or airboats, including whether any of these
watercraft are meaningfully similar to present-day watercraft.
The Court sets a telephonic status conference for March 11, 2024, at 9:30
a.m. to schedule a trial date. 	All parties shall participate telephonically by dialing
571-353-2301 (Call ID 020262828, Pin 487051) approximately five minutes before
the scheduled hearing time. 	The parties are instructed to meet and confer
beforehand to discuss potential dates for and length of trial.
DATED this 27th day of February, 2024, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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