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HomeMy WebLinkAbout1990-09-12 Council Packet - Work Session, shore fisherKenai City Council Work Session September 12, 1990 Shore Fishery Leases 1791-1991 CITY OF KENO lod Oa 4 4 / 7 4a� „ _ 210 FIDALGO KENAI, ALASKA 99611 TELEPHONE 283 - 7535 FAX 907-283-3014 TO: Councilmembers City of Kenai FROM: Carol L. Freas, City Clerk City of Kenai DATE: August 30, 199 RE: WORK SESSION/SHORE FISHERY LEASES At the July 11, 1990 Council Meeting, a motion was made to hold a work session to discuss shore fishery leases on September 12, 1990 at 7:00 p.m. The Public Works Conference Meeting was to be used to hold the meeting. I have been informed that there are members of the public who want to attend the meeting. Due to this information, I would suggest that the Council Chambers be used for this work session. The Planning & Zoning Commission had been scheduled to hold their regular meeting in the Chambers on September 12. The Commission meeting has been re -scheduled to be held in the Library. Therefore, the Council Chambers is available for the work session. If there are no objections, I will place the normal advertisement in the paper and include that the work session will be held in the Council Chambers. clf 1791-1991 CITY OF KENAI %Od uoaP4�ai 4 4i4� _ 210 FIDALGO KENAI, ALASKA 99611 TELEPHONE 283-7535 FAX 907-283-3014 TO: Council Members Department Heads City of Kenai FROM: Carol L. Freas, City Clerk City of Kenai 7"4� DATE: September 12, 199 RE: WORK SESSION It has been requested by Mayor Williams to add topics for discussion this evening. Topics to be discussed are: 1. Shore Fishery Leases 2. Resolution of the problem of lease payments with the Bowling Alley (Sandra Dye & Norm Blakely). 3. Extension of the water main for the golf course. clf Rindi Patterson Natural Resource Officer A A STATE OF ALASKA DEPARTMENT OF NATURAL RESOURCES DIVISION OF LAND & WATER MGMT SOUTHCENTRAL REGIONAL OFFICE 3601 C ST., P.O. BOX 107005 ANCHORAGE, ALASKA 99510-7005 PHONE: (907) 762-2469 1791-1991 CITY OF KENAI _ 210 FIDALGO KENAI, ALASKA 99611 TELEPHONE 263 - 7535 FAX 907-283-3014 MEMORANDUM TO: Mayor John J. Williams and Kenai City ouncil FROM: Kim Howard, Administrative Assistant DATE: September 7, 1990 RE: Set Net Leases on Municipal Tidelands The City Administration has been in contact with Department of Natural Resources (DNR) and anticipates that a DNR representative will attend the work session on September 12. Enclosed are copies of past correspondence from DNR regarding set net leases on municipal tidelands. Also enclosed is information regarding current set net leases. Ed Garnett: has submitted requests to lease tidelands on behalf of Thad and Ken Carlson. Five other individuals have asked to make application for set net leases, or information regarding our procedures, in the past 13 months. I will have the shore fishery file available at the work session should you need additional information. /kh Enclosures DEPARTJIEST OF NATURAL RESOURCES DIVISION OF LAND AND WATER MANAGEMENT SOUTHCENTRAL REGION ,Zet25 2t �Tc August 15, 1990 b N William Brighton City Manager s o City of Kenai 210 Fidalgo Avenue Kenai, Alaska 99611 RE: Set Net Leases on Municipal Tidelands Dear Mr. Brighton: STEVECOWPER, GOVERNOR 3601 C STREET BOX 107005 ANCHORAGE, ALASKA 99510-7005 PHONE: (907) 561-2020 This is to follow-up my letter to you dated February 27, 1989, regarding set net leasing on tidelands that have been patented to the City of Kenai (ATS 272). Enclosed is a copy of the Assistant Attorney General's response to the questions we raised regarding this matter. The Shore Fishery Unit has approximately eight applications on file for set net sites within ATS 272. Some of the applicants have moved their sites outside the boundary of ATS 272 in order to obtain State leases; however, they continue to express an interest in obtaining leases within ATS 272. If the City of Kenai wants to administer their own set net leasing program, we will close out the applications for sites within ATS 272 and refer the applicants to your office. If you or your staff want to discuss the specifics of the Stat e's leasing program, we are willing to meet with you. Another possibility is for the City of Kenai and the State of Alaska to enter into a formal agreement in which the State will administer the leasing program for the City. Only a program that would fall within the statutory and regulatory parameters of the State's current leasing program would be considered. Please let us know how the City of Kenai would like to proceed. If you have any questions, please call Susan Bulkow at (907) 762- 2469. Sincerely, r� Veronica Gilbert Regional Manager VG:SB:sjb,/kenai Enclosure "*MEMORANDUM To: Gary Gustafson, Director Division of Land & Water Management Dept. of Natural Resources V�� �, FROM: G. Thomas Koester Assistant Attorney General State of Alaska Department of Law DATE: May 9, 1989 FILE NO.: 663-89-0360 TEL. No.: 465-3600 ;.' SUBJECT Are tidelands patented to municipalities subject to the public trust doc- trine? You asked whether tidelands remain subject to the pub- lic trust doctrine following conveyance by the state to munici- palities under AS 38.05.820(b) (formerly codified as AS 38.05.- 320(b)). 1/ You then ask a number of specific questions regard- ing the administration for fisheries purposes of tidelands con- veyed to municipalities. In CWC Fisheries Inc. V. Bunker, 755 P.2d 1115, 1117-18 (Alaska ) (most citations and footnotes omitted), the Alaska Supreme Court summarized the public trust doctrine as fol- lows: The public trust doctrine was first advanced by the United States Supreme Court in Illinois Central R.R. Co. v. Illinois, 146 U.S. 387—,-rTS. t. 110, 36 L.Ed. ( ). In that case, the Court held that the State of Illinois was free to revoke a prior state grant bf one thousand acres of submerged land beneath the waters of Lake Michigan, because it had possessed no power to validly convey such land in the first place. The Court held that when a state receives title to tidelands and lands beneath navigable waterways within its borders at the time of its admission to the Union, it receives such land "in trust for the people of the State that they may enjoy the navi- gation of the waters, carry on commerce over them, 1/ The tideland undergone several purposes of this substantially the s in this opinion wil statute was renumbered in 1984, and has minor amendments since its enactment. For opinion, however, the statute remains ame as originally enacted, and all references L be to the present version of the statute. 1 0 Gary Gustafson, Director May 9, 1989 Div. of Land & Water Management, DNR Page 2 Our File No. 663-89-0360 and have liberty of fishing therein freed from the obstruction or interference of private parties." The Court noted that the state is entitled to con- vey such lands to private parties, free of the public trust, only under very limited circum- stances. It stated: The control of the State for the pur- poses of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remain- ing. In all other instances, the Court held, the state is prohibited from "abdicat[ing] its trust over [the] property" by absolute conveyance to private parties. Illinois Central remains the leading case regarding public rights in tide and submerged lands conveyed by the state. While we have never had prior occasion to apply the public trust doc- trine to tidelands in Alaska, those modern courts which have considered its application have gener- ally held that any attempted conveyance of tide- lands by the state which fails to meet the Illinois Central criteria for passing title free of the public trust will pass only "naked title to the soil," subject to continuing public trust "easements" for purposes of navigation, commerce, and fishery. The grantee may "assert a vested right to the servient estate (the right of use subject to the trust)," but may not enjoin any member of the public from utilizing the property for public trust purposes. We adopt the approach employed by our sister states on this question, and hold that any state tideland conveyance which fails to satisfy the requirements of Illinois Central will be viewed as a. valid conveyance of title subject to continuing public easements for purposes of navigation, com- merce, and fishery. r Gary Gustafson, Director May 9, 1989 Div. of Land & Water Management, DNR Page 3 Our File No. 663-89-0360 The court then went on to conclude that state convey- ances to private parties of tidelands not seaward of municipali- ties under AS 38.05.820(c) remained subject to the public trust under the Illinois Central tests. The court found that those conveyances were not in aid of navigation and commerce and did not expressly provide that they would be conveyed free of the public trust. 755 P.2d at 1119. Moreover, the court held that the blanket statutory authorization for conveyances amounted "to a substantial impairment of the public's interest in state tide- lands as a whole." 755 P.2d at 1120 (footnote omitted). We believe that considerations identical to those noted by the Alaska Supreme Court with respect to conveyances to pri- vate individuals under AS 38.05.820(c) apply to conveyances of tidelands to municipalities under AS 38.05.820(b). The latter statute, like the former, does not expressly provide that the conveyances are in aid of navigation and commerce, nor does it provide that the lands will be conveyed free of the public trust. Because it authorizes a conveyance of all tidelands adjacent to home rule cities and cities of the first class incorporated on or before April 1, 1964, we believe it also would be "a substantial impairment of the public's interest in state tidelands as a whole" if it were construed as freeing the tidelands from the public trust. For these reasons, we accordingly conclude that tidelands conveyed to municipalities under AS 38.05.820(b) remain subject to the public trust. Given that general conclusion, we now address your spe- cific questions. They relate to tidelands conveyed to the City of Kenai ("Kenai" or "the city") and leased for set net fishing. 1. Does the City of Kenai have authority to issue and ad- minister leases or permits _or commercial set net sites. Kenai does have that authority. As you note, it is a home rule city and, as such, "has all legislative powers not pro- hibited by law or charter." AS 29.04.010. Moreover, AS 38.05.- 820(b)(7) states: When no preference right has been granted to purchase or lease tideland, the home rule cities and cities of the first class may sell or lease the tideland conveyed to them, and may impose terms or conditions for the sale or lease. Such terms and conditions shall include such reserva- tion of rights -of -way as are necessary to provide reasonable access to public waters. t Gary Gustafson, Director May 9, 1989 Div. of Land & Water Management, DNR Page 4 Our File No. 663-89-0360 In addition, you note that the administrative policy was to transfer tidelands lease administration to Kenai at the time the tidelands were conveyed. That administrative interpretation of the statutes, clearly involving a formulation of policy, would be given some deference by the courts. Kodiak Western Alaska v. Bob Harris F1 ing Service, 592 P.2d 1200, 1203 n. (Alaska ). Accordingly, we conclude that Kenai has authority to issue and administer leases or permits for set net sites. 2. If the answer to question one is yes. is the City bound state statutes or city or finances? Can t e Cit eve op a program and tee structure different from AS 38.05.082 Given the express authorization for Kenai to "impose terms or conditions for the sale or lease" of tidelands under AS 38.05.820(b)(7), the city can develop a program and fee struc- ture different from AS 38.05.082. It is not bound by the state statutes governing the administration of state land. It is, how- ever, required to adopt ordinances to administer its lands, in- cluding tidelands. AS 29.35.090. It also is bound by the public trust doctrine. See State, De 't of Natural Resources v. City of Haines, 627 P—.7U (Alaska ) ("the City ot Haines, being a public entity, is regulated by the same public policy considerations as is the state government" with respect to tidelands administra- tion). Accordingly, as in CWC Fisheries, Kenai's ownership of the tidelands does not give it blanket authority to exclude the public from using the lands for public trust purposes. Kenai can, of course, regulate the use of the tidelands for public trust purposes. That regulation, as in the case of set net site leases, may even amount to a grant of exclusive use for some trust purposes. It also cannot authorize activities that would conflict with the state laws -- either statutes or administrative regula- tions -- which govern fishing. Kenai "has all powers not prohib- ited by law or charter." AS 29.04.010. Certain actions with respect to fisheries are prohibited by law, and therefore beyond Kenai's power to authorize. For example, Kenai could not author- ize use of a set net within 600 feet of another set net; 5 AAC 21.335(a) prohibits the use of a set net or gill net within 600 feet of another set net. r Gary Gustafson, Director May 9, 1989 Div. of Land & Water Management, DNR Page 5 Our File No. 663-89-0360 3. If the answer to question one is yes, but the City is not willing to develop or administer a program, can DNR negotiate a cooperative management agreement. We believe there is no legal prohibition to the negoti- ation of such an agreement. AS 38.05.020(b)(2) gives the commis- sioner power to "enter into agreements considered necessary to carry out the purposes of this chapter"; we are unaware of any- thing in the City of Kenai's municipal ordinances which would prohibit it from entering into such an agreement. 4. Did the patent conveZ all of the state's Rublic trust res onsi i hies to the it the City is not wi= ing to administer a pro ram or sin a cooperative man- agement agreement, can DNR preem t the Cit s aut orit and issue shore fish leases within the patented -area? The short answer to the first inquiry is that the patent did not "convey" the state's public trust responsibili- ties. Those responsibilities are inherent in state sovereignty and not subject to conveyance. The patent instead simply conveyed title, along with management responsibility, from the state government to a differ- ent governmental entity, the city. In exercising that responsi- bility, Kenai "is regulated by the same public policy considera- tions as the state government." City of Haines, 627 P.2d at 1051. One of the major public policy considerations regulating the city, of course, is the public trust doctrine. The state, on behalf of the public, could sue Kenai to compel it to honor its public trust responsibilities, but the transfer of title contem- plates actual administration of the tidelands (consistent with the public trust) by the city. If Kenai refuses to acknowledge its public trust re- sponsibility and administer tidelands conveyed to them accord- ingly, we believe the state also could cancel the patent under both the public trust doctrine, Illinois Central, and the common use clause of the Alaska Constitution, artic e VIII, section 3. In Owsichek v. State, Guide Licensing Board, 763 P.2d 488, 496 (Alaska ) some citations omitte ), t e Alaska Supreme Court stated: Finally, cases applying the public trust doc- trine in navigable waters have frequently struck down state actions in violation of the trust with- out any reference to either federal or state con- stitutions. A good example is the lodestar of Gary Gustafson, Director May 9, 1989 Div. of Land & Water Management, DNR Page 6 Our File No. 663-89-0360 American public trust law, Illinois Central Rail- road Co. v. Illinois, 146 U.S.t. , 36 L.E ( In that case, the Illinois legislature purported to grant to a railroad more than 1,000 acres of land underlying Lake Michigan in the harbor of Chicago. The Court applied the doctrine of the public trust in navigable waters to uphold the legislature's later revocation of the grant: A grant of all the lands under the navi- gable waters of a State has never been adjudged to be within the legislative power, and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revoca- tion. The State can no more abdicate its trust over property in which the whole people are interested ... than it can abdicate its police powers in the administration of government and the preservation of the peace. In light of this historical review we con- clude that the common use clause was intended to engraft in our constitution certain trust princi- ples guaranteeing access to the fish, wildlife and water resources of the state. The proceedings of the Constitutional Convention, together with the common law tradition on which the delegates built convince us that a minimum requirement of this duty is a prohibition against any monopolistic grants or special privileges. Accordingly, we are compelled to strike down any statutes or regula- tions that violate this principle. If Kenai is simply not willing to administer a shore fisheries leasing program or sign a cooperative management agree- ment, however, but otherwise is willing to administer the tide- lands consistent with the public trust, the Department of Natural Resources probably cannot preempt the city's authority and issue shore fisheries leases within the patented area. The state no longer has an ownership interest in the tidelands, and therefore it cannot exercise the powers of ownership. This does not mean that the tidelands would not be available for public trust uses like fishing. In the absence of a formal tidelands administra- tion program developed by the city, tidelands probably would be available for public trust uses under the "first in time, first Gary Gustafson, Director May 9, 1989 Div. of Land & Water Management, DNR Page 7 Our File No. 663-89-0360 in right" principle. Cf. CWC Fisheries, 755 P.2d at 1121 n.16 (citing Snu4 Harbor Pac-Ti'n Co. v. ScEmidt, 394 P.2d 397, 399 (Alaska ) (priority tor use ot tidelands to set net is deter- mined by the "first in time, first in right" doctrine in the absence of controlling law to the contrary)). We hope this answers your questions. If we can be of further assistance, please contact us at your convenience. GTK:dlm CC: Lennie Gorsuch, Commissioner Department of Natural Resources ti C o ` LJ ` I '\ a -i DEPART,'WIENT OF NATURAL RESOURCES DIVISION OF LAND AND WATER MANAGEMENT HCENTRAL REGION G February 27, 1989 N o l William Brighton N m7 cb`' City Manager City of Kenai S�StNzt2��� 210 Fidalgo Kenai, AK 99611 Re: Set Net Leases on Municipal Tidelands Dear Mr. Brighton: STEVECOWPER, GOVERNOR 3601 C STREET BOX 107005 ANCHORAGE, ALASKA 99510-7005 PHONE: (907) 561-2020 We want to inform you about two recent court decisions from CWC Fisheries vs. Bunker (copies enclosed). The decisions raise concerns related to commercial set net leases on municipal tidelands near the mouth of the Kenai River. When we patented ATS 272 to the City of Kenai in 1977, we transferred management of six shore fish leases to the City. The City still administers some of those leases. Until recently, we routinely referred all applicants within ATS 272 to the City. According to the recent court decisions, privately owned tidelands acquired under preference right statute AS 38.05.820(c) are subject to the public's right to fish the water above the tidelands. In managing the public interest, the State of Alaska can issue and administer- leases for commercial set net leases on private tidelands. Because the City acquired ATS 272 under another section of the preference right statute, we are uncertain about our public trust responsibilities, if any, within ATS 272. This summer, we received lease applications for commercial set net sites neat- the mouth of the Kenai River. Some of the net sites are inside ATS 272. Until the Attorney General's office responds to the attached memo dated January 20, 1989, we are suspending action on the set net lease applications, including referral to the City of Kenai. We will contact you when any change in status occurs. William Brighton February 27, 1989 Page 2 Our questions to the Attorney General reflect our concern for a prompt, legally correct solution that serves the applicants' needs. Competition for the same set net sites is becoming more frequent. Set netters need a lease program for legal protection of their traditional sites. Please call Rindi Patterson at 762-2469 if you have any questions about this issue or about our shore fishery leasing program in general. Sincerely, Veronica Gilbert Regional Manager VG:jr:nec/bright Enclosure MEMORANDUM State of Alaska r Ic c v'/ w M DEPARTMENT OF NATURAL RESOURCES DIVISION OF LAND AND WATER TO: Grace Berg Schaible DATE: January 20, 1989 Attorney General ' Department of Law FILE NO.: THRU: Denby Lloyd TELEPHONE NO.: 762-2680 Special Assistant, Office of the Governor THRU: Lennie Gorsuch Commissioner SUBJECT: Shore Fish Leases FROM: Gary Gustafson on Municipal Tidelands Director ISSUE Because of two recent court decisions, we are uncertain about the State's public trust responsibilities, if any, on tidelands patented to municipalities under preference right statutes. BACKGROUND AND QUESTIONS According to two recent court decisions, privately owned tidelands acquired under AS 38.05.820(c) are subject to the public's right to fish the waters above the tidelands. In managing the public interest, the State of Alaska can issue and administer leases for commercial. set net sites on private tidelands. (See CWC Fisheries Inc. and Eric Randall VS Dean B. Bunker, Superior Court 3KN 85-796 CI and Supreme Court File No. S-1996 No. 3340.) The court decisions raise questions concerning tidelands acquired by the City of Kenai under AS 38.05.320 (now 38.05.820). Both the City and the State have received shore fishery lease applications within the patented boundary. 1. Does the City of Kenai have authority to issue and administer leases or permits for commercial set net sites? Because Kenai is a home rule city with all the legislative powers not prohibited by law or charter, we suspect the answer is yes. T� y/ A a .r ' NOTICE: This opinion is subject to formal correction before publication in the Pacific Reporter. Readers are requested to bring typographical or other formal errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, in order that corrections may be made prior to permanent publication. THE SUPREME COURT OF THE STATE OF ALASKA CWC FISHERIES, INC. and ERIC RANDALL, V. DEAN B. BUNKER, Appellants, Appellee. File No. S-1995 O P I N I O N [No. 3340 - June 3, 1988] Appeal from the Superior Court of the State of Alaska, Third Judicial District, Kenai, Charles K. Cranston, Judge. / Appearances: R. Eldridge Hicks and Bruce L Falconer, Hicks, Boyd & Chandler, Anchorage, for Appellants. Arthur S. Robinson, Soldotna, for Appellee. Before: Rabinowitz, Burke, Compton and Moore, Justices. [Matthews, Chief Justice, not participating.] BURKE, Justice. This appeal presents the question of whether tidelands conveyed pursuant to class I tideland preference rights under AS 38.05.820 were conveyed subject to the public's right to fish the waters above those tidelands. We conclude that they were, and we therefore affirm the judgment of the superior court dismissing CWC Fisheries' trespass claim against Dean Bunker. I r, Shortly after statehood, as part of the Alaska \� Land Act, the legislature enacted AS 38.05.820 (formerly AS 38.05.320).1 Under this provision, occupants of tideland tracts not seaward of a municipal corporation, who had erected substantial permanent improvements on their property prior to statehood, were given a "class I preference right" to their property. AS 38.05.820(c), (d)(5). A class I preference right entitled the occupant to obtain title to the occupied tideland tract from the state for a nominal fee.2 AS 38.05.820 (d) (1) , (d) (8) . On October 3, 1963, Snug Harbor Packing .Company applied for a class I preference right to an area of tide- land fronting its fish cannery on the southwestern shore of Chisik Island in the Tuxedni Channel. The Department of Natural Resources (DNR) granted the application, and issued a patent to Snug Harbor on March 20, 1972. The patent granted Snug Harbor the tideland lot "to have and to hold 1. The tidelands provision was renumbered in 1984, and has undergone several minor amendments since its enactment. For purposes of this opinion, however, the statute remains 'substantially the same as originally enacted; thus, all future references will be to the present version of the statute. 2. The occupant was required to pay an amount not exceeding the costs of surveying, transferring and conveying title" to the property. AS 38.05.820(d)(1). 3340 3 -2- . with the appurtenances thereof unto the said Grantee and their heirs and assigns forever," subject to the State of Alaska's express reservation of mineral rights, and an express prohibition on the taking of herring spawn at the site. The lot, known as ATS 360, 3 was used by the company primarily in its canning and processing operations throughout the period of Snug Harbor's ownership. In August, 1964, Dean Bunker, a commercial fisher- man operating salmon set nets in the Tuxedni Channel, applied for a shore fishery lease on a tract of tideland encompassing the present ATS 360 location. The DNR informed Bunker that he could not lease the ATS 360 site because Snug Harbor had already applied for a class I preference right on (� that site. However, the Department told Bunker that he could continue to fish the site under a reservation of fishing rights which would be placed in the patent issued to Snug Harbor. The reservation promised by the DNR was never placed in the patent issued to. Snug Harbor. Nonetheless, Bunker claims to have regularly fished the waters above ATS 360 from 1964 to 1985.4 3. Alaska Tidelands Survey No. 360. 4. Randall vehemently disputes Bunker's claim of continuous use of ATS 360. Resolution of this factual question, however, is unnecessary for our purposes. 3340 -3- In 1980, CWC Fisheries, Inc. (CWC) bought Snug Harbor's operation and took over the premises. Since the C acquisition, CWC has gradually phased out cannery and fleet operations at ATS 360. The site now serves only as a refueling and support facility for CWC's fishing operations. The present dispute arose in 1985, when CWC granted set net fishing rights at ATS 360 to Eric Randall, as part of an agreement to employ Randall as winter care- taker and summer superintendent at the site. Since fish and game regulations prohibit any two parties from set net fishing concurrently on a lot the size of ATS 360, see 5 AAC 21.335 (eff. 4/14/82); 11 AAC 64.020(2) (eff. 4/18/64; am. 3/30/ 85),5 the CWC/Randall agreement has, apparently for the first time, placed CWC's use of ATS 360 in direct conflict with Bunker's. CWC and Randall filed suit against Bunker, alleging trespass and requesting damages and injunctive relief. Bunker denied CWC's claims of trespass, and argued that the State's conveyance of ATS 360 was made subject to the right of the general public to enter those tidelands for purposes of navigation, commerce, and fishery under the 5. The parties agree that these regulations, which require that set net sites be located at least 600 feet apart, prevent any concurrent use of the lot. 3340 -4- "public trust" doctrine established by the United States Supreme Court in Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 36 L. Ed. 1018 (1892).6 On September 24, 1986, the superior court granted summary judgment for Bunker, holding that CWC held title to ATS 360 subject to the public trust, and that neither CWC nor its assignee could rightfully exclude Bunker from the site. Accordingly, the court dismissed CWC's trespass claim against Bunker. CWC appeals the dismissal. II The public trust doctrine was first advanced by the United States Supreme Court in Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 36 L. Ed. 1018 (1892). In that case, the Court held that the State of Illinois was free to revoke a prior state grant of 1,000 acres of sub- merged. land beneath the waters of Lake Michigan, because it had possessed no power to validly convey such land in the first place. The Court held that when a state receives title to tidelands and lands beneath navigable waterways within its borders at the time of its admission to the 6. Bunker also counterclaimed, arguing that he had acquired the site by adverse possession, and filed a third -party claim against the DNR for negligent misrepresentation with regard to the fishery reservation which was never placed in Snug Harbor's patent. These claims have since been dismissed, and are not at issue here. 3340 -5- Union, it receives such land "in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties." Id. at 452, 36 L. Ed. at 1042. The Court noted that the state is entitled to convey such lands to private parties, free of the public trust, only under very limited circumstances. It stated: The control of the State for the pur- poses of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or_can be disposed of without any substantial impairment of the public interest in the lands and waters remain- ing. Id. at 453, 36 L. Ed. at 1042-43. In all other instances, the Court held, the state is prohibited from "abdicat[ing] its trust over [the] property" by absolute conveyance to private parties. Id. at 453, 36 L. Ed. at 1043. Illinois Central remains the leading case regarding public 'rights in tide and submerged lands conveyed by the state. See, e.g., City of Berkeley v. Superior Court, 606 P.2d 362, 365-66 (Cal.), cent. denied, 449 U.S. 840, 66 L. Ed. 2d 48 (1980); Kootenai Environmental Alliance v. Panhandle Yacht Club, 671 P.2d 1085, 1088-89 (Idaho 1983); Caminiti v. Boyle, 732 P.2d 989, 994 (Wash. 1987). While we have never had prior occasion to apply the public 3340 t� trust doctrine to tidelands in Alaska,7 those modern courts \ which have considered its application have generally held that any attempted conveyance of tidelands by the state which fails to meet the Illinois Central criteria for passing title free of the public trust will pass only "naked title to the soil," subject to continuing public trust "easements" for purposes of navigation, commerce, and fish- ery.8 People v. California Fish Co., 138 P. 79, 88 (Cal. 1913). Accord City of Berkeley, 606 P.2d at 367; Kootenai, 671 P.2d at 1094; Boston Waterfront Development Corp. v. Commonwealth, 393 N.E.2d 356, 365 (Mass. 1979); Orion Corp. v. State, 747 P.2d 1062, 1072-73 (Wash. 1987). The grantee may "assert a vested right to the servient estate (the right L 7. We made passing reference to the public trust doctrine in State, Dep't of Natural Resources v. City of Haines, 627 P.2d 1047, 1050-52 (Alaska 1981), but did not decide whether, and to what extent, the doctrine applied to tideland conveyances by the state. 8. Some courts have expanded the public trust doctrine to include additional public uses, such as boating, swimming, water skiing, and other recreational or scientific activities for which the waters might be utilized. See, etc., ;Marks v. Whitney, 491 P.2d 374, 380 (Cal. 1971); Orion Corp. v. State, 747 P.2d 1062, 1073 (Wash. 1987); Menzer v. Village of Elkhart Lake, 186 N.W.2d 290, 296 (Wis. 1971); see also ch. 82, S 1(c), SLA 1985 (Alaska Statutes, Temporary and Special Acts and' Resolves 1985) (refers to trust as including "recreational purposes or any other public purpose for which the water is used or capable of being used"). We are concerned in this case only with the traditionally recognized fishery interest. 3340 -7- of use subject to the trust)," National Audubon Society v. Superior Court, 658 P.2d 709, 723 (Cal.), cert. denied, 464 U.S. 977, 78 L. Ed. 2d 351 (1983), but may not enjoin any member of the public from utilizing the property for public trust purposes. See California Fish, 138 P. at 83 Orion Corp., 747 P.2d at 1072-73. I. We adopt the approach employed by our sister states on this question, and hold that any state tideland conveyance which fails to satisfy the requirements of Illinois Central will be viewed as a valid conveyance of title subject to continuing public easements for purposes of navigation, commerce, and fishery.9 c 9. This approach is entirely consistent with ch. 82, 5 1(c), SLA 1985 (Alaska Statutes, Temporary and Special Acts and Resolves 1985), wherein the legislature recently declared that [o)wnership of land bordering navigable or .public waters does not grant an exclusive right to the u'se of the water and any rights of title to the land below the ordinary high water mark are subject to the rights of the people of the state to use and have access to the water for recreational purposes or any other public purpose for which the water is used or capable of being used consistent with the public trust. While this act expressly excepted "valid existing rights," ch. 82, 5 1(d), SLA 1985, we nonetheless agree with the superior court's assessment that the statement quoted above constitutes a clear "legislative expression of . . . continued adherence to the 'public trust' doctrine." 3340 WE In determining whether a state conveyance has C passed title to a parcel of tideland free of any trust obligations under Illinois Central, we must ask, first, whether the conveyance was made in furtherance of some specific public trust purpose and, second, whether the conveyance can be made without substantial impairment of the public's interest in state tidelands. See Illinois Central, 146 U.S. at 435, 453, 36 L. Ed. at 1036, 1042-43; Caminiti, 732 P.2d at 994-95. If either of these questions can be answered in the affirmative, conveyance free of the public trust would be permissible. See Illinois Central, 146 U.S. at 453, .36 L. Ed. at 1042-43. Initially, CWC argues that the conveyance of ATS 360 was a grant "in aid of navigation and commerce." It notes that the property was originally used by Snug Harbor in its commercial canning and processing operations, and that the site's wharfage and docking facilities were, and are, utilized by commercial fishermen in Cook Inlet. Further, CWC points to the "substantial permanent improvements" language of AS 38.05.820, which, it maintains, constitutes clear evidence of the state's intent to further commerce and navigation through its tideland allocations under the Alaska Land Act. See AS 38.05.820(c), (d) (5) . We are not persuaded by CWC's argument. 3340 Before any tideland grant may be found to be free of the public trust under the "public trust purposes" theory, the legislature's intent to so convey it must be clearly expressed or necessarily implied in the legislation authorizing the transfer. See, e.g., City of Berkeley, 606 P.2d at 369; Opinion of the Justices to the Senate, 424 N.E.2d 1092, 1100 (Mass. 1981); State v. Bunkowski, 503 P.2d 1231, 1237-38 (Nev. 1972). If any interpretation of the statute which would retain the public's interest in the tidelands is reasonably possible, we must give the statute such an interpretation. City of Berkeley, 606 P.2d at 369. Here, the operative language of AS 38.05.820 reads simply: (a) It is the policy of the state to allow preference rights for the acquisition of tide and submerged land (� occupied or developed for municipal business, residential or other bene- ficial purposes on or before the date of admission of Alaska into the Union. (c) An occupant; or tide or sub- merged land which is not seaward of a municipal corporation, who occupied or developed it on and prior to September 7, 1957, has a class I preference right to the land from the state. . . . (d) For the purposes of this section, unless the context otherwise requires, (5) "occupant" means a person or the successor in interest of a person, who actually occupied for business, 3340 �_-j -10- � residential or other beneficial purpose, tideland, or tide and submerged land contiguous to tideland, in the state, on and before January 3, 1959, with substantial permanent improvements. Id. The statute does not expressly state that the preference rights were given in aid of navigation and commerce, nor does it state that the lands in question would be conveyed free of the public trust. While it is true that the statute conditions the preference right upon the existence of "substantial permanent improvements on the property, such a requirement can hardly be interpreted as an expression of the state's intent to abdicate its trust responsibilities. As we noted in City of Homer v. State, i Department of Natural Resources, 566 P.2d 1314, 1316 (Alaska 1977) , at least one purpose. of the Alaska Land Act was "to establish equitable methods of disposing of certain tidelands." The "substantial permanent improvements" requirement simply serves as an additional factor in deter- mining equitable distribution as between occupants. We find nothing in the language of AS 38.05.820 that expresses a clear legislative intent to convey state tidelands free of the public trust. Likewise, we do not think such intent is "necessarily implied" by the surrounding circumstances. Indeed, article VIII, section 3 of the Alaska Constitution, 3340 -11- which was in effect at the time AS 38.05.820 was enacted, explicitly provides that [w]herever occurring* in their natural state, fish, wildlife, and waters are reserved to the people for common use. At least in the absence of some clear evidence to the contrary, we will not presume that the legislature intended to take action which would, on its face, appear inconsistent with the plain wording of this constitutional mandate.10 In sum, we are not persuaded that this conveyance was made "in furtherance of trust purposes" such as would free the property from any continuing public trust obligations. Next, we turn to the "substantial impairment" aspect of the Illinois Central test. CWC argues that ATS 360 is a small, rather remote, parcel of tideland, one which can hardly be considered to involve the degree of impairment suggested by the public trust cases. Moreover, CWC notes that, under existing law, only one person is permitted to set net fish on the site at any one time. To vest such fishing privilege in the patent holder, CWC maintains, would no more impair the public's interest in the tidelands than 10. We need not decide at this time whether a fee simple tideland conveyance which satisfied the strictures of Illinois Central would nonetheless run afoul of article VIII, section 3. 3340 e -12- does the state's shore fishery leasing program, under which particular individuals are granted exclusive fishing privileges at specified sites. See 11 AAC 64.010-.570 (eff. 4/18/64). Again, we disagree. Even if we were to accept CWC's suggestion that size and location might, by them- selves, be decisive factors in determining whether a given legislative conveyance amounts to a substantial impairment of the public's interest in state tidelands, these tidelands would still fail to meet the test. 11 This case does not involve a mere isolated conveyance of a remote piece of tideland. The statute at issue here made available for private ownership virtually all Alaska tidelands occupied and developed prior to statehood. See AS 38.05.820. To hold that .persons receiving title under that statute hold the fee free of any public trust obligations would, we believe, amount to a substantial impairment of the public's interest in state tidelands as a whble.12 11. Because we conclude below that conveyances under AS 38.05.820 substantially impact upon the public's interest in state tidelands, we find it unnecessary to decide whether, and to what extent, the "substantial impairment" prong might be applied to tideland conveyances under other legislative enactments or different factual circumstances. 12. We note in this regard that, under present (Footnote Continued) -13- 3340 Finally, we fail to see how the state's shore _ fisheries leasing program can be said to bear any reasonable C resemblance to the proposition urged upon us by CWC. Lessees under that program do not exercise their fishing privileges as an incident of title to the tidelands. They do not hold or enjoy such privileges in perpetuity. Rather, they are granted a limited fishing privilege on specified tracts of state-owned tideland for a period of reasonable, but finite, duration.13 Whatever the validity of the state's shore fisheries leasingprogram p under the g public o trust doctrine, we are satisfied that the fee simple -;" ��.,. ownership claimed b CWC in this case p y goes far beyond any (Footnote Continued) state law, explicit easements protecting public access to navigable waters must be reserved by the state before any interest in state land may be transferred. AS 38.05.127. While this statute was not in .effect at the time of the conveyance at issue here, it nonetheless serves as a clear indication of the public's concern for the preservation of public access rights to all navigable waters. The "substantial impairment" requirement must be viewed in this context. 13. In general, successful applicants under the program are entitled to lease fishing sites on up to three tracts of tideland, 11 AAC 64.080 (eff. 4/18/64; am. 3/30/85), for a renewable period not exceeding 10 years. 11 AAC 64.301, .391 (eff. 3/30/85). Lessees pay an annual rental to the state based upon the cost of administering the program, 11 AAC 64.370 (eff. 4/18/64), and all leases are subject to cancellation upon the lessee's failure to regularly fish the leased tract. 11 AAC 64.180 (eff. 4/18/64; am. 3/30/85). 3340 -14 - �-- impairment created under that state -administered regulatory scheme.14 We hold that tidelands conveyed to private parties pursuant to class I preference rights under AS 38.05.820 were conveyed subject to the public's right to utilize those tidelands for purposes of navigation, commerce and fishery. While patent holders are free to make such use of their property as will not unreasonably interfere with these continuing public easements, they are prohibited from any general attempt to exclude the public from the property by virtue of their title. In the instant case, CWC and Randall are entitled to make use of the fisheries at ATS 360, but they are prohibited from excluding other members of the public who seek to do the same. 15 Here, state regulations limit the 14. In addition to the arguments discussed above, CWC argues at some length that, even if ATS 360 were conveyed subject to the public trust, Bunker may not invoke that doctrine because he is seeking to use the property for private commercial purposes. This argument merits little discussion. Even commercial fishermen are members of the public, and, as such, are entitled to use those waters reserved to the public under the public trust doctrine, provided they comply with all relevant statutes and regulations concerning their intended use. Illinois Central suggests nothing less. 15. This case does not involve a situation in which one public trust use is directly in conflict with another (e.g., fisheries versus navigation). We note, (Footnote Continued) 3340 %1- -15- l number of individuals who may fish this tract at any one time; therefore, the parties must look to relevant �C ' provisions of state law in determining their respective priority rights.16 For the reasons discussed above, however, CWC's trespass action must fail. - Accordingly, the judgment of the superior court is AFFIRMED. (Footnote Continued) however, that in such cases, the legislature will generally be afforded broad authority to make policy choices favoring one trust use over another. See generally National Audubon Society v. Su erior Court, 658 P.2d 709, 723-24 (Cal.), cert. denied, 464 U.S. 977, 78 L. Ed. 2d 351 (19-83); Count of Orange v. Heim, 106 Cal. Rptr. 825, 837 (Cal. App. 1973). 16. In the absence of any controlling provision of law to the contrary, the dispute would generally be resolved by reference to the "first in time, first in right" doctrine announced by this court in Snug Harbor Packing Co. v. Schmidt, 394 P.2d 397, 399 (Alaska 1964). In the case at bar, the parties agreed to dismiss without prejudice the "first in time, first in right" question. Hence, there has been no trial court determination of this issue. 3340-' -16- When patent was issued in 1977, six shore fishery leases issued by the State of Alaska were transferred to the City. The City is still administering some of the leases. Until the Bunker decision raised these questions, DNR sent new applicants to the City. 2. If the answer to Question 1 is yes, is the City bound by state statutes or city ordinances? Can the City develop a program and fee structure different from AS 38.05.082? 3. If the answer to Question 1 is yes,.but the City is not willing to develop or administer a program, can .DNR negotiate a cooperative management agreement? 4. Did the patent convey all of the State's public trust responsibilities to the City? If the City is not willing to administer a program or sign a cooperative management agreement, can DNR preempt the City's authority and issue shore fish leases within the patented area? Should you need specific information regarding the City of Kenai situation or other similar cases, please contact Rindi Patterson in the division's Southcentral Regional office at 762-2470. CASEFILE NUMBERS AND APPLICABLE REFERENCES City of Kenai file: ADL 20598 Shore Fish Leases Transferred to the City: ADL 74763, 74695, 44349, 36041, 36729, 32885 Pending Shore Fish Lease Applications: ADL 224491, 224564, 224556, 224549, 224550, 224554 Because the fishing season opens in June, we would appreciate an early reply. Thank you. cc: Tom Koester, AGO/JNU Mike Frank, AGO/ANC Veronica Gilbert Judy Robinson GG:JR:nec ag_opin2.ken Attach: Patent No. 295 l C 1 d � a eSKb n .DEPARTiiENT OF LAW OFFICE OF THE ATTORNEY GENERAL January 11, Bruce Stafford Division of Land & Water Management P.O. Box 7005 Anchorage, Alaska 99510 Re: Shore Fisheries Leases Dear Bruce: 1988 STEVE CO WPER, GOVERNOR �RtEPLY TO: pp 1031 W 4th AVENUE SUITE' 200 ANCHORAGE, ALASKA 99501-1994 PHONE. (907) 276-3550 ❑ 1st NATIONAL CENTER 100 CUSHMAN ST. SUITE 400 FAIRBANKS, ALASKA 99701-4679 ' ❑ P.O. BOX K—STATE CAPITOL n JUNEAU, ALASKA 99811-0300 . 9� � PHONE: (907) 465-3600 't ��►��y3 ctsal ; S•QJ h 1 Qtt�� / Enclosed please find relevant documents in the C. W. Fisheries, Inc. v. Bunker case. The case is on appeal to the Alaska Supreme Court. In fact, it has been briefed and argued in the Supreme Court. The lower court decision does not alter my opinion concerning tideland patent reservations for shore fisheries leases. Indeed, the case apparently holds that even absent a reservation in a tideland patent, under the public trust doctrine the state can still issue shore fisheries leases on lands otherwise patented. If you have any, furt4ier questions, please let me know. Sincerely yours, GRACE -BERG SCHAIBLE ATTORN ENERAL By: Michael r k Assistant Attorney General Enclosure cc: Roger DuBrock, Esq. MJF/rlr M14:01 Shore Fisheries 0]-CSLH r IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT KENAI 4, CWC FISHERIES, INC., and ) ERIC RANDALL, - me ; Sons of Alaska Third Owk7 Plaintiffs, ) of x.nol + ) SEP Z 1986 �.r VS. ) . L :DEAN B. BUNKER, ) Clerk of Has Trial Courts n4'l ` Defendant and Third ) Party Plaintiff, ) �y r DEPARTMENT OF NATURAL ) RESOURCES, STATE OF ALASKA, ) Third Party ) Defendant ) r bcn 3KN 85-796 CI DECISIONS ON MOTIONS FOR SUMMARY JUDGMENT This is a suit by CWC Fisheries, Inc. and Eric Randall -eze<.;; (herein collectively called "CWC"), wherein plaintiffs allege „•.,,., that defendant Dean Bunker (hereinafter called "Bunker"), on or about July 1, 1985 trespassed on ATS (Alaska Tide Land Survey) No. 360 and U.S. Sul-vey No. 2694. CWC seeks damages and injunctive relief. Specifically, CWC alleges that Bunker placed a set ` net on ATS No. 360 and its uplands, thereby interfering with CWC's ability to place its own or its agent's set net on ATS' r;;, •. No. 360. j. T Bunker does not deny his use of ATS No. 360 as a'set net site on or about the date in question. He does deny the -" use of the upland parcel, U.S. Survey No. 2694, for any of his set net activities on or about July 1, 1985. Bunker raises two principal defenses to CWC's trespass claim: first, that CWC's interest in ATS No. 360 is subject to Bunker's right to use the tidelands within the survey as a member of the public incident to the so-called "pu lic trust" doctrine first expoun_ in Illinois Central R.R.Co. v. Illinois, 146 U.S. 1018 (1892); 21 CWC Fisheries v. Bunker 3KN 85-796 CI Decisions on Motions for Summary Judgment Page 2 and second, that Bunker acquired rights in and to ATS No. 360 through his open, notorious and adverse use thereof continuously since 1965. In addition, Bunker asserts a tfiird party claim 1 :o;+• •_ against the State of Alaska, Department of Natural Resources (hereinafter "DNR") for damages and rescission arising out of DNA's alleged negligence in failing to include a fishery reservation in the tidelands patent issued to CWC's predecessor in interest in 1972. :�. 3nk All parties filed motions for summary judgment. Bunker ,_^. seeks an order dismissing CWC's trespass and injunction claims based upon his defenses of adverse possession and upon application of the "public trust' doctrine. CWC seeks partial summary judgment in its favor on Bunker's adverse possession defense and DNR - S has moved for an order dismissing Bunker's third party complaint :alleging the bar of the two year statute of limitations, A.S. "public 09.10.070, and upon its own assertion of the trust' doctrine. The motions for summary judgment were fully briefed ' °`•` and thereafter argued on September 18, 1986. After oral argument the court made the following orders from the bench: 1. Denied CWC's Motion for Summary Judgment for the reason that there are genuine issues of material fact pertaining to Bunker's adverse possession defense. 2. Denied DNB's motion, in part, concluding that the statute of limitations upon Bunker's negligence claim against DNR was tolled until Bunker's discovery of the alleged negligence. 3, Reserved for decision Bunker's -and DNR's claims that the "public trust" doctrine applies to Bunker's use of ATS No. 360. - 4. Reserved for decision ADL's claim that Bunker Chas no standing to seek reformation of the tidelands patent between CWC's predecessor in interest and DNR. -his memorandum represents the court's decision upon those issues reserved at the close of argument on the motions for summary judgment. n 4•' CWC Fisheries v. Bunker 3hN 85-796 CI Decisions on Motions for Summary Judgment Page 3 FACTS On September 17, 1963 CWC's predecessor in interest, Snug Harbor Packing Company, applied to the State of Alaska for a Class 1 preference right grant of tidelands pursuant to A.S. 38.05.320 (now cited as A.S. 38.05.820). In 1964, Bunker applied for shore fishery leases on State tidelands pursuant to A.S. 38.05.082. One of the areas sought to be leased by Bunker was the same area covered in Snug Harbor's application for the tidelands grant. On November 13, 1964, William Satterberg, a tidelands officer for DNR, wrote Bunker informing him that the conflicting site sought by Bunker could not be leased, but when a patent was issued to Snug Harbor it would contain a reserva- tion prohibiting the grantee from denying any person the right to operate a set net on the lands conveyed. Bunker agreed to (- the placing of the reservation in the patent. ..On March 20, 1972, Patent No. 258 was issued to Snug ` Harbor Packing Company conveying ATS No. 360 but without the fishery reservation described by the DNR letter of November 13, 1964. Prior to the issuance of the Tidelands Patent, in 1964, Snug Harbor had acquired by patent U.S.S. No. 2694, the uplands adjacent to ATS No. 360. ATS No. 360 was described as containing certain'tidelands "lying seaward of the mean high tide in Chisik Island...". U.S.S. No. 2694 was described as containing certain lands bounded "by meanders along the said line of mean high tide along the shore of Tuxedni Channel...." In 1965, Bunker received two shore fishery leases adjacent to ATS No. 360 and has fished both sites since that date. The amount of fishing, if any, done by Bunker on ATS No. 360 is in dispute. In 1980, Snug Harbor Packing Company sold its business including its interest in ATS No. 360 and U.S.S. No. 2694 to CWC and by 1985 CWC had ceased its fish processing operations on the sites. Pursuant to an agreement with CWC plaintiff Eric r 4 7 CWC Fisheries v. Bunker 3KN 85-796 CI Decisions on Motions for Summary Judgment Page 4 Randall obtained CWC's rights to set net fish on ATS No. 360. This dispute arises out of Bunker's use of ATS No. 360 for his own set net fishing on July 1, 1985, an alleged violation of CWC's & Randall's exclusive rights to the same fishery. CWC and Randall filed suit on July 3, 1985. DISCUSSION A. Public Trust Doctrine. CWC's interest in ATS No. 360 arises from a patent issued by the State of Alaska on March 20, 1972. CWC's predecessor in interest qualified under the provisions of a statute similar to those contained in A.S. 38.05.820(c)(1), Y as the holder — of a Class I preference_right, A.S. 38.05.820(d)(1)..!/ Snug Harbor had used the tidelands since prior to 1947 and had placed improvements thereof consisting of a wharf, fish dock, gridiron, marineway and 21 dolphin pilings. Up to the =ime of the patent, ATS No. 360 Snug Harbor had not used ATS No. 360 for commercial fishing except as a processor. When Bunker fished ATS No. 360 on July 1, 1985, he used the sea bed under ATS No. 360 for purposes of setting one or more stakes and anchors. His use of that sea bed was necessary e to carry out the set net fishery. Because of Bunker's activity on that date, Randall and CWC were unable, legally, to use any part of ATS No. 360 for set net fishing. The "public trust" doctrine applicable to tidelands was first applied in Ill. Cent. R.R. Co.,v. Illinois, supra. The court established the doctrine as, A.S. 38.05.820(c)(1) provides in part: "(c) An occupant of tide or submerged land which is not seaward of a municipal corporation, who occupied or developed it on and prior to September 7, 1957, has a Class I preference right from the State." A.S. 38.05.820(d)(1) provides in part: "'Class I preference right' means the right of an occupant to acquire tide and submerged land for a consideration, not exceeding the costs of surveving, transfering and conveying the title to it." 91 c CWC Fisheries v. Bunker 3KN 85-796 CI Decisions on Motions for Summary Judgment P29H 5 ..the ownership of and dominion and sover- eignty over lands covered by tide waters, within the limits of the several states within which they are found with the consequent right to dispose of any portion thereof, when that can be done without substantial impairment of the interests of the public in waters,...". (146 U.S. at 1036). The court said that the " .. doctrine is founded upon the necessity of preserving to the public the use of navigable waters from private-interuption and encroach- ment." (U146 U.S. at 1037). Thus, the state's title to tidelands "...is a title held in trust for the people of the state that may enjoy the navigation of the waters, carry on ccmmerce over them, _ and have liberty of fishing thereon freed from the obstruction or interference of private parties." (146 U.S. at 146). 3/ The "public trust" doctrine has been applied as a C matter of federal common law and has been reaffirmed in numerou!cases, especially in California, Citv of Berklev v. Superior Court of Alameda, 606 P.2d 362 (Cal. 1980). In deciding whether a statute authorizing the grant of tidelands abrogated the "public: use" doctrine, Justice Mosk, speaking for the California Supreme Court stated: "Statutes purporting to authorize an abandon- ment of ... public use will be carefully scanned to ascertain whether or not such. was the legislative intention, and that intent must be clearly expressed or necessari- ly implied. It will not be implied if any other inference is reasonably possible. And, if any interpretation of the statute is reasonably possible which would not involve a destruction of the public use or -an inten- tion to terminate it in violation of the trust, the courts will give the statute such interpretation." (606 P.2d 367). 4/ 3/ Illinois Central v. Illinois, supra, held invalid a legislative grant of a portion of submerged lands in the City of Chicago's harbor to the Illinois Central Railroad for the reason that the state could not abdicate its trust responsibility as to .those submerged lands. 4/ In the City of Berklev case, 2� miles of the City of Berkley — water front were conveyed to private developers. To the extent L still possible those tracts amenable to public use were held ` subject to the public trust. ' 2.zu r CWC Fisheries v. Bunker 3KN 85-796 CI Decisions on Motions for Summary Judgment Page 6 The starting point for the court's analysis is A.S. 38.05.820(c)(1) and its predecessor to determine if the legislature explicitly, impliedly or otherwise intended to limit the applicatio: of the public trust an the tidelands conveyed thereunder. The policy of A.S. 38.05.820 is expressed in subsection (a) as follows: ..to allow preference rights for the acquisi- tion of tide and submerged land occupied or developed for municipal business, residen- tial or other beneficial purposes on or ss� before the date of admission of Alaska into t the Union." The following sections of the statute classify the various possible - claimants to the tidelands. The preference right available to claimants under A.S. 38.05.820(c)(1), based on uses of the tidelands before statehood was itself subject to the "public trust" doctrine. That doctrine originated in Roman Law, was included in English Common Law and applied to crown grants, Citv of Berklev v. Superior Court, supra, at 364-365. Thus, upon admission, Alaska was bound to the trust just as the United States had been before it. The court, upon review of the provisions of A.S. 38.05.82 finds no legislative intent to limit the application of the public trust doctrine'to conveyances made upon the authority of the statute. Thus, the conveyance of ATS No. 360 was imbued with the public trust applicable to tidelands. The question remains whether CWC's exercise of the exclusive right tQ place a set.net on ATS No. 360 to the exclusion of other members of the public, including Bunker, is contrary to the public trust to which its grant is subject. The liberty of fishing is one of the activities described in Illinois Central, supra, to be free from private interference or obstruction cn trust lands. Thus, Bunker was engaged in an activity, fishing, which is protected by application of the public trust doctrine. The precise question, however, is whether Bunker's and the public's right to fish extends to the right to fish in a specific manner, CWC Fisheries ,-. Bunker 3KN 85-796 CI Decisions on Motions for Summary Judgment Page 7 such as set netting, rather than a right to fish generally. The distinction is important since it is only -in the case of set netting for salmon that Bunker or other members of the public interfere with CWC's present intended exclusive use of its land, namely set netting for salmon. Bunker can sport :Fish, drift fish or presumably even bottom fish for species other than salmon and not interfere with CWC's intended exclusive use. CWC argues that the "public trust" doctrine, though applicable, cannot apply to or restrict CWC's use of the sea .bed, but most courts which have considered the question have recognized that the lands themselves are held in trust, cf: I11. Central R.R. Co. v. Illinois, suora. The court concludes that application of the public trust doctrine to ATS No. 360 is inconsistent with CWC's exclusive use of ATS No. 360 for set netting for salmon. That conclusion is based on what has been stated above as well as the following: 1. Snug Harbor's preference right was founded on its improvement of the parcel incident to its operation as a cannery. That development consisted of wharves, docks and other items In connection with marine commerce. Those uses of tidelands are consistent with rust purposes, City of Berklev v. Superior Court, supra, at 365. Thus, to the extent such uses interfered with the public right to set net fish on ATS No. 360, such inter- ference was permissible and consistent with the trust. When Snug Harbor or CWC suspended its wharfing and fish processing operations on ATS No. 360, this gave rise to the public rights to fish free from CWC's assertion of any exclusive fishing right, as opposed to any exclusive docking, wharfing or other similar rights arose. 2. In June, 1985, prior to July 1, 1985, Section 1, Chapter 82 SLA 1985 became effective. That statute restated the then existing "public trust" doctrine in Alaska. In part, �_ ! the act provided the following: 211. c i CWC Fisheries v. Bunker 3KN 85-796 C1 Decisions on I -lotions for Summary Judgment Page 8 "(c) Ownership of land bordering navigable or public waters does not grant an exclusive right to the use of the water or any rights of title to the land below the ordinary high water mark are subject to the rights of the people of the state to use and have access to the water for recreational purposes or any other public purpose for which water is used or capable of being used consistent with the public trust." Under subsection (d) of the act, no valid existing rights were affected or abridged. However, as noted, ATS No. 360 was, even before passage of the act, subject to the public trust. Thus, ``. the 1985 Act is a legislative expression of its continued adherent to the "public trust" doctrine. _ 3. Where the legislature has determined to limit the "public trust" doctrine, it has done so, cf. A.S. 38.05.08; That statute authorizes the issuance of shore fishery leases on state tide and submerged lands. However, the title provides in part: (a)... -Every lease issued under this section shall reserve to the public a right of way for access to navigable waters and other tide and submerged land. (Emphasis supoiied)". Clearly the statute did not reserve the public right to the land leased. This is shown by the use of the term "other tide and submerged land". Accordingly, the court grants Bunker's motion for summary judgment on the application of the public use doctrine to .his placing a set net,on ATS No. 360 July 1, 1985. Nevertheles. plaintiff's suit is not dismissed since there remains the followin; questions: (1) the issue of Bunker's trespass on the upland parcel, U.S.S. No. 2694; and, (2) the issue over whether Bunker could properly fish the site on July 1, 1985 in light of CwC's assertion that Randall was on the site earlier in the 1985 lashing season. This raises the application of the "first in time, first in right" doctrine, Snua !?arbor Packina Co. v. Schmidt, 394 P.2d 397 (Ak. 1964). Further the court grants D\R's motion against Bunker based on application of the "public trust" doctrine, but leaves r 3KN V. bunKer 65-705 C; Decisions on Motions for Summary Judgment Page 9 open the issue of the possibility of Bunker's recovery against DNR for costs and attorney fees incident to this. litigation. B. Reformation. The question of whether Bunker is entitled to reformation is moot based upon the court's decision on the "public trust" doctrine. Were the court to decide that issue, however, it finds Bunker, a non-party to the conveyance, is without standing to seek reformation of the patent issued by the state to Snug Harbor, Shioton v. Barfield, 208 S.E.2d 210 (N. C. 1974). Accordingly, it is ORDERED, ADJUDGED and DECREED:__ 1. Bunker's motion for summary judgment is granted in part. The "public trust" doctrine is applicable to both Bunker's and CWC's set netting activities on ATS No. 360. 2. Bunker's claim against DNR based on reformation of the 1972 patent of ATS No. 360 is dismissed. 3. DNR's motion for summary judgment against Bunker, based on application of the "public trust" doctrine to Bunker's and CWC's set netting activies on ATS No. 360 is granted, reserving to Bunker leave to pursue any claims, if any, validly existing in his favor against DNR for costs and attorney fees. 4. The following issues remain for trial: a. Facts incident to the application of the "first in time, first in right" doctrine as applied to Bunker's and CWC's activities on ATS No. 360 during the 1965 set net season. b. Factual issues relating to Bunker's alleged trespass on U.S.S. No. 2694. c. To the extent not moot, genuine issues of material fact pertaining to Bunker's adverse possession defense. 4. Matters of costs and attorneys fees shall be decided at the final conclusion of all matters still remaining for court C It. THE SUPERIOR COURT FOR THE STATE OF ALASKA "` 2 THIRD JUDICIAL DISTRICT AT KENAI CWC FISHERIES, INC., and ERIC RANDALL, ) 3 Plaintiffs, ) VS. DEAN B. BUNKER, :.C. Defendant and Third ) y r .�C' •; �. �;' Party Plaintiff," )` VS. DEPARTMENT OF NATURAL ) RESOURCES, STATE OF ALASKA,C. Third Part • ) 4A Defendant. ) Case No. 3KN 85-796 CIV STIPULATION TO DISMISSAL WITHOUT PREJUDICE AND TO ENTRY OF FINAL JUDG*,ENT Plaintiffs CWC Fisheries, Inc. and Eric Randall ("CWC") and Defendant Dean B. Bunker ("Bunker") stipulate and agree as follows: 1. CWC's claim that Bunker trespassed on upland U.S: Survey No. 2694, as described in CWC's Complaint, shall be dismissed without prejudice; 2. Bunker's claims that he acquired title by adverse' ` possession to Alaska Tide Lands Survey No. 360 ("ATS 360 and that CWC unlawfully and wrongfully excluded Bunker from Jr set net fishing on ATS 360, as described in Bunker's SecC'nd " Amended Answer and Counterclaim shall be dismissed without prejudice; 3. Pursuant to this Court's Decisions on Motions For c Summary Judgment, dated September 24, 1986, Final Judgment "r STIPULATION --1 215 •3KN 85-796 C! • Decisions on ':otions for Summary Judgment Page 10 decision. Counsel for Bunker shall prepare a partial summary judgment representing the decisions embodied herein. DATED at Kenai, Alaska this day of September, i ' 1 1986 ILIL Ct,a, C1 ES K . CRAN �P , v;,: Superior Court Judge y q (^G . - A. I hereby certify that a copy of the foregoing document was sent on to the following: Hicks King - Robinson 11Z?I� Deputy Clerk cc: -Law Clerk in . c c IN THE SUPERIOR COURT FOR THE STATE Of' ALASKA THIRD JUDICIAL DISTRICT AT KENAI FMM in the Trial Courts CI4C FISHERIES, INC., and ) State of Alaska Third District ERIC RANDALL, ) at Kenai Plaintiffs, ) 0 E 1C _ n ) V5. t,'leri {v�e/'I'# urts ;y-�1 C-T DEAN B. BUNKER, ) 7 1>eputy Defendant and Third ) Party Plaintiff,. :) , ) VS. ) DEPARTMENT OF NATURAL ) RESOURCES, STATE OF ALASKA, ) Third Party ) Defendant. - ) Case No. 3KN 85-796 CIV FINAL JUDGMENT Based upon the law and reasoning pertaining to tideland issues in this Court's Decisions On Motions For* Summary Judgment dated September 24, 1986, and based upon the executed Stipulation To Dismissal Without Prejudice And To Entry Of Final Judgment pertaining to adverse possession and -upland issues, x IT IS HEREBY ORDERED AND ADJUDGED that: (1) Plaintiffs' claim that Defendant trespassed on Alaska Tide Lands Survey No. 360, as described in Plaintiffs' Complaint, is denied and dismissed with prejudice; _. (2) Defendant's Third -Party Complaint against the FINAL JUDGMENT --1 Exhibit "A" —� 217 Department of Natural Resources, State of Alaska, is denied and dismissed with prejudice. 3. All remaining claims of Plaintiffs and Defendant against one another are dismissed without prejudice in accordance with the Stipulation between the same parties. DATED this _ —! day of // , 1986.- JUDUE IPERIOR COURT �. SAL. c.r- T 'tilt, �_— :„ r FINAL JUDG1.1ENT --2 r-, I Into 0 0 0 0 0 0 O o o O O �10 0 o In o 0 >r 1 u I ri ri r-I U) ri ri 1 0 1 �-I 1 O I E I I C] I I O I -H 1 OO 0o co %0 co co 4-) 1 -, U 1 W N N 01 Un r-I lL N I O O O O O O O LO LO In ON I- W 1 I O O O O o !~ I O O O O O O a 1 0 O O O O OD ri I to >~ I b I I • i ro o ro (n ,� ((ddL ko N 1 P (d Z- P m z - P ro a p ro ko w. (d ui I (1) O X cr 4j O 01 V O X N - O x ri r-I -ri H M -r-I 9 ri P I M 1~ ,L." in O %0 g 4 l0 t.. 4 U) O M b 4 Ul O ro ri (d U) r-I b 1 0040(d(n'qr-riU %r-riUroInM(dUroLokzto X9cdtD rO I Co N C.. r-I of w O C. x w O c r-I of Oo O C. r-I 0\ O av of O N r-I 0) I r-I xa'a'MClP444Maa'a'o T-11%440 M X M MX40) U I U1 I Ln U I ri . -I r I w ri LO ri I- N ?+ 1- r-q >i I- 1- O M >4 I` >r 1- I i1qizz ism P%t I`I` p44tU) p� r-I I4-) 41 N C N N 4J Q) Q) 4J N W 4J W N N ro I U p441 U p441 U p441 U 1444-) U S44-P ssI (d0U1(d (d0U)ro(d0(A(d aEn ro0Nroroz3Om(d (v I 3-I 4 -H r-I 3.1 4 -r1 r-I p 4 -r-I r-( Q E i-I .0 --I r-I i•I Z 4 -r.1 r-I (4 1 1 I EU)G4a EU)G4a4PWPL,a WfX4aE roWwa I I I � � O I . r(S O O r{ •ri >+ >v a� 11n r-+ U) (n >`(x 10 >1 b x U) I (d ro >~ ro 4-) S4 (d ro ro >~ Ul I U z Li 41 ri (v >~ z �." ro 0 1 �J0 Ov ON C1~ (a to rop a1ao hx hx uro uz uw G- LO 9 L�l 10 ek, 19 L.1 Coc Ao 12 0• . . ... ... ........ .. - ?Awl" 5 SECTION 26 4p�! % 2 5.0 Pt&T SECTION 25 SECTION 36 R 12 11, S.M, ALASKA F-