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HomeMy WebLinkAbout2007-12-10 Harbor Commission PacketKENAI HARBOR COMMISSION MEETING DECEMBER 10, 200'7 CYTY COUNCIL CHAMBERS 7:00 P.M. AGENDA ITEM 1: CALL TO ORDER & ROLL CALL ITEM 2: AGENDA APPROVAL ITEM 3: APPROVAL OF MEETING SUMMARY -- November 13, 2007 YTEM 4: PERSONS SCHEDULED TO BE HEARD ITEM 5: OLD BUSINESS a. Discussion/Recommendation -- Dip Net Report ITEM ~: NEW BUSINESS a. Discussion/Recommendation -- Boat Launch Fees ITEM 7: REPORTS a. Director b. City Council Liaison ITEM 8: COMMISSIONER COMMENTS/pUESTIONS ITEM 9: PERSONS NOT SCHEDULED TO BE HEARD ITEM 10: INFORMATION a. Kenai City Council Action Agendas of November 7 and 21, 2007. ITEM 11: ADJOURNMENT PLEASE CONTACT US IF YOU WILL NOT BE ABLE TO ATTEND THE MEETING: CAROL -- 283-8231 OR, BOB FRATES -- 283-3692 Ike 3 KENAI HARBOR COMMISSION MEETING NOVEMBER 13, 200? KENAI COUNCIL CHAMBERS 7:00 P.M. AGENDA YTEM 1: CALL TO ORDER 8s ROLL CALL ITEM 2: AGENDA APPROVAL ITEM 3: APPROVAL OF MEETING SUMMARY -- October 8, 2007. ITEM 4: PERSONS SCHEDULED TO BE HEARD a. Ron Pretzel -- Launch Fees for Individuals 65 and Older ITEM 5: OLD BUSINESS a. Discussion/Recommendation -- Dip Net Report b. Discussion -- New Drift Boat Haul Out c. Discussion -- Culvert Replacement d. Discussion -- Boat Launch Parking Area Paving ITEM 6: NEW BUST ITEM ?: REPORTS a. Director b. City Council Liaison ITEM S: COMMISSYONER COMMENTS/QUESTIONS ITEM 9: PERSONS NOT SCHEDULED TO BE HEARD ITEM 10: INFORMATION a. Kenai City Council Action Agendas of October 3 and 17, 2007. b. Dock Rate Schedule dated September 21, 2007 ITEM 11: ADJOURNMENT KENAI HARBOR COMMISSION MEETING NOVEMBER 13, 2007 KENAI COUNCYL CHAMBERS 7:00 P.M. CHAIR TOM THOMPSON, PRESIDING MEETING SUMMARY ITEM 1: CALL TO ORDER & ROLL CALL Chair Thompson called the meeting to order at approximately 7:30 p.m. Roil was confirmed as follows: Commissioners present: P. Morin, B. Osborn, G. Foster, A. Poynor, T. Thompson, D. Gregory Commissioners absent: R. Peters Others present: Parks & Recreation Director B. Frates, Council Member M. Boyle A quorum was present. ITEM 2: AGENDA APPROVAL Thompson noted the following: ADD TO: Item 4-b. Persons Scheduled to Be Heard • Robert Ruffner and Ken Tarbox -- Bird Viewing Platform MOTION: Commissioner Osborn MOVED to approve the agenda with the addition of Item 4-b. and Commissioner Morin SECONDED the motion. There were no objections. SO ORDERED. %TEM 3: APPROVAL OF MEETING SUMMARY -- October 8, 2007. The meeting summary of October 8, 2007 was approved as presented. ITEM 4: PERSONS SCHEDULED TO BE HEARD 4-a. Ron Pretzel -- Launch Fees for Individuals 65 and Older Spoke in support of reduced or eliminated boat launch fees for elderly and disabled veterans. Pretzel noted he appreciated what the state offered the elderly and disabled with regards to hunting, fishing, and trapping fees and recommended the boat launch fee be reduced by half for the elderly and disabled veterans. 4-b. Robert Ruffner and Ken Tarbox -- Bird Viewing Platform Stated monies were available for abird-viewing platform through the Watershed Forum. Ruffner suggested the platform be at the 90 degree bend in Boat Launch Road; possibly cleaning up the area as well. Ruffner would like to make a presentation to City Council on the issue. YTEM 5: OLD BUSINESS 5-a. Discussion/Recommendation -- Dip Net Report Frates reviewed the Dip Net Report, included in the packet. Commissioner comments included: • Enforcement would be a high priority. • Damage to dunes, litter and fish waste was discussed. • Restricting or denying vehicular access to the beach was also discussed. • Fees were discussed, noting the difficulty in enforcing unless an annual pass process was implemented. • Suggested fees, access for the disabled, the Public Trust Doctrine, and restricting or denying vehicular access be discussed at the December 3 meeting. S-b. Discussion -- New Drift Boat Haul Out Frates reported the City Manager had included the Drift Boat Haul Out on the City's Capital Improvement list. Commissioner comments included great interest in the project and the importance of a haul out on the lower Kenai River. 5-c. Discussion -- Culvert Replacement Frates reported the City Manager had included the culvert replacement project on the City's Capital Improvement list; noting a cost of $50,000. Commissioner comments included support for the project and suggested looking at the new industrial plastic culverts. 5-d. Discussion -- Boat Launch Parking Area Paving Frates reported the City Manager had included the paving on the City's Capital Improvement list; noting paving would allow for lower maintenance costs and include signage for ramp use. Commissioner comments included support for the project, but the culvert replacement was more important. YTEM 6: NEW BUSYNESS -- None. ITEM 7: REPORTS 7-a. Director -- None. 7-b. City CounciY Liaison -- Council Member Boyle noted the Capital Improvement list would be addressed during a work session at 5:00 p.m. before the HARBOR COMMISSION MEETING NOVEMBER 13, 1007 PAGE 2 November 21, 2007 City Council Meeting. ITEM 8: COMMISSIONER COMMENTS/QUESTIONS Gregory -- Suggested developing a comprehensive plan for the Kenai City Dock. Morin -- Noted it was a good idea to support inter-departmental discussions with the Alaska Department of Fish and Game and other agencies with regards to the dip net fishery. Poynor -- Suggested Administration do some forward thinking regarding the dock facility including what it would like at various stages. Thompson -- Noted as the dip net fishery grows, more area would be needed and the boundaries expanded. ITEM 9: PERSONS NOT SCHEDULED TO BE HEARD -- None. ITEM 10: INFORMATION 10-a. Kenai City Council Action Agendas of October 3 and 17, 2007 10-b. Dock Rate Schedule dated September 21, 2007 ITEM 11: ADJOURNMENT MOTION: Commissioner Morin MOVED to adjourn and Commissioner Poynor SECONDED the motion. There were no objections. SO ORDERED. There being no further business before the Commission, the meeting adjourned at approximately 9:00 p.m. Meeting summary prepared and submitted by: Corene Hall, Deputy City Clerk HARBOR COMMISSION MEETING NOVEMBER 13, 1007 PAGE 3 ~~erv~5u. J y II i 3 ~ tY t I 5 S ~, ~ ~ 1 ~~ 7 „ s~ ~z ~ ~+ S ~• J ~ J ~ ~ ,j ~ tr~ "r ~ G ~ ~ `~ s J ~" ,~ s W ~. ~ -r * + ~~J KEAI POLICE DEPAlZT1dIEl~1`T 107 SOUTH WILLOW STREET KENAI, AK 99Gll Telephone (907) 283-7879 Fax (907) 283-2267 TO: Rick Koch, City Manager September 19, 2007 FM: Lt. Kim Wannamaker TFiRU: Chuck Kopp, Chief of Police fM~-- RE: 2007 Kenai River Personal Use Dipnet Fishery The Annual Dipnet Report is presented for your review. It includes reports from the Police, Public Works, and Parks and Recreation Departments. You will find a summary overview of Police Department activity specific to the Kenai River Dipnet Fishery to include observations, statistics, problems encountered, and recommendations far improvement. The Seasonal Enforcement Officer report is also attached. The Kenai River Dipnet Fishery opened at Gam on Tuesday 7-10-07, and closed at midnight Tuesday 7-31-07. The 2007 Dipnet Fishery saw the largest number of State resident participation since the fishery opened in 1996. City departments prepared for anticipated & historical Dipnet Fishery-related challenges, resulting in effective overall management of the fishery. Two part-time Seasonal Enforcement Officers (SEOs) spent the majority of their July shifts. engaged in Dipnet Fishery related activity, with parking and camping violations being the significant portion of their enforcementlmanagement focus. The Police Department handled 153 Dipnet Fishery-related calls for service this yeaz, 89 by sworn officers and 64 by SEOs. The majoriTy of calls for service were cash pick-ups from the 4 pay shacks, followed by Parking complaints/violations, Citizen Assists (lockouts, lost children or pets), Noise/Disorderly Conduct, Trespassing on private property, Campfires in unauthorized areas, and several complaints each of Theft, Drunkenness, Vandalism, and vehicle collisions. There were 18 vehicles impounded, neazly all for parking violations, and 4 people were arrested for various crimes, including one DUI on an ATV. There were no deaths or serious injuries this yeaz. Of the 90 hours spent by SEOs on the Dipnet Fishery, 75 were spent at the North Beach (S. Spruce). Police Officers spent 34.5 hrs on Dipnet Fishery-related activity. SEOs spent a lot of time patrolling the S. Beach on the Dept. 4-wheeler, which is a very practical manner to cover that large and often very congested area. KENAI POLICE DEPARTMENT State Fish & Wildlife Troopers were a visible presence at the City Dock, N. Beach, and on the water in a patrol vessel this year. They kept a relatively low profile but were very active enforcing various Fish & Game laws. The greatest managerial challenge this season, as in yeazs before, was parking. For the North Beach, overflow parking at the designated parking lot off S. Spruce Street, and motor vehicle/pedestrian traffic congestion on Kenai Avenue presented the most serious difficulties. South Beach problem azeas involved illegal parking and heavy traffic congestion on Dunes Road near the pay shack, and illegal operation of off-road vehicles on dunes and vegetated wetland areas. The Dunes Road parking is troublesome because it is on Borough land, in which the Alaska State Troopers have jurisdictiomfor enforcing traffic & criminal offenses (pazking, trespass). The Police Department will work with Troopers to provide a better collective response to Dunes Road this next season. Four pay shacks to collect user fees were placed in the same locations as previous years: S. Spruce Street at the beachfront parking lot, Boat Launch Road at the City Dock, Dunes Road and Old Cannery Road. No pay shacks were run over this year, or otherwise incurred damage. Police Department Labor, Equipment and Fuel Expenses Police Officers (34.5 hrs) $1030 S.E.O. (90 hrs) 1260 Pre & Post season meetings/planning (Chief, Lt, SEO} 1000 Equipment & Fuel costs* 1300 Total $4590 * Patrol cars 8c the Dept. pickup, and the 4-wheeler were equipment expenditures for the fishery. The costs included would reflect fuel consumption relative to driving to/from pay shacks, City Hall, police station, Kenai Ave, and up & down the beaches on the ATV, and idling during stops at these locations. Fuel was more expensive this year than last. KENAI POLICE DEPARTMENT 2007 Observations Sienaee deficiencies were documented. On the South Beach, SEOs responded to frequent complaints of ATVs and other vehicles in the vegetated areas. There is just one sign at the very end of the beach (river mouth} prohibiting operation of vehicles in wetland/grassy areas. On the North Beach at the end of Kenai Avenue there is an absence of signs requiring "5 minute loading/unloading" which contributed to traffic congestion. Other signage improvement needs are addressed in the SEO report. On the whole, public awareness has improved with respect to pasking, camping, campfires, and bathrooms due to good signage posted at(neaz all the pay shacks and pay/parking areas. Public 1nfolmation was available via commercial media, online sites such as the City of Kenai and Alaska Dept of Fish & Game, printed brochures distributed by the City, and radio public service announcements. This information included answers to FAQs for parking, fees, camping, campfires, dunes & grassy areas, restroom facilities, and contact information for State and City management entities. Parkin¢ & Camninn fees were the same as last year. The manned pay shacks contributed significantly to compliance, as did aggressive presence by police and SEO personnel. SEOs issued hundreds of written warnings for pasking &non-payment, or for not displaying the parking permit. On Saturday July 21, the busiest day in the history of the fishery, vehicles filled the N. Beach, S. Spruce pazking lot, S. Spruce, the little league parking lots, N. Spruce nearly all the way to 4a' Ave, and commercial parking lots along KSR near S. Spruce. Restroom (port-a-potty) service was hindered due to traffic congestion along Kenai Avenue, and on South Beaeh due to vehicles parked in close proximity to the toilets. This interfered with the service provider being able to maneuver beside them for change-outs. Off-Road Vehicles and associated violations are a recumng issue. Police & SEOs responded to multiple complaints of ATVs causing late night noise, racing, youth operators w/o helmets, and speeding on the beaches and access roads. Dumpster service was overall satisfactory. There were several instances of traffic congestion at the end of Kenai Avenue, which prevented or slowed the garbage truck from getting to the dumpsters. KENAI POLICE DEPARTMENT Litter and Trash collection and management needs are significant for the three weeks of the Fishery. The possibility of providing more trash and fish waste collection points should be reviewed. Traffic congestion on Kenai Avenue was severe, and the improved wide areas often were illegally used for extended parking along the "loading/unloading only" area. Kenai Avenue is a narrow one-lane dirt road with No Parking allowed at any point. During the Fishery, by necessity it becomes a 2-lane road with motortraffic and pedestrians. Vehicles often have objects hanging out the back or off the sides, and pedestrians are generally pushing or pulling objects, all of which takes more room than merely driving or walking. Couple this with numerous vehicles loading/unloading along the road and traffic congestion happens quickly. Recommendations The recommendations and suggestions for-improvement here are based on initial assessment. We expect to filrther refine our ideas for improvement following amulti-department debriefing in Late September. Coordinate with Little League to allow North Beach overflow pazkine in the Little League ball field lots on South Spruce Street. Some years there are post-season tournaments and the parking lot is needed for those involved with baseball. However, when there aze no post-season baseball activities, that parking lot would be ideal for overflow dip netter parking. Signaee Improvements for the North Beach call for two (2) more signs at the Kenai Avenue turnaround stafing "5 minutes loading/unioading", and for a more clearly marked Iron Ranger for self-pay participants. On the South Beach three (3) additional signs aze needed that prohibit operation of vehicles in the wetland areas. Regulatory signs stating "No parking/stopping within 30 feet of restrooms" would help facilitate Restroom service. Oranue Barrier Fencing (along with improved signage) wiil help prevent South Beach wetlands and dune destruction. This fencing has been installed in previous years with the assistance of the Borough, but not for the past two seasons. Assistance with fencing should again be sought from the Kenai Watershed Forum. Additional Public Safety Officer resources, beyond what is currently budgeted, are needed to effectively address the significant management needs of the Dipnet Fishery. The intensity of the issues highlighted in this report, would each be considerably lessened with 24-hour coverage of the fishery by public safety resources. Administration will discuss this internally to prepare a recommendation. 4 KEl~AI PQLICE I?EPARTIVIEN`T 107 SOUTH WILLOW STREET gEPsTAI, AK 99611 Telephone (907) 283-7879 Fax (907) 283-2267 To: Lt.4~'annamaker Cc: Chief Kopp From: SEOs Goggia & Caswell Date: 8/4/2007 Re: Seasonal Enforcement Officer Report 2007 Kenai River Dip Net Fishery This report is a summary of Seasonal Enforcement Officer observations and recommendations concerning the 2007 Kenai River Personal Use Dip Net Fishery. The fishery opened Tuesday July 10, 2007 at 0600 hours and closed Tuesday July 31, 2007 at 23 59 hours. On Wednesday July 25, 2007 at 1100 hours the Alaska Department of Fish and Game gave an emergency order to open the dip net fishery to 24 hours daily until the closure. The placement of pay stations remained the same as last year, with stations being placed on South Spruce, Dunes Rd., Old Cannery Rd., and at the City Dock. Payment also remained the same, $10 for 12 hour parking and $10 for 12 hour camping, until the fishery was opened 24 hours daily upon which the fee for 24 hour camping was $10. Enforcement of fees on both beaches was for the most part successful due to theplacement of payment booths and the use of "iron rangers" when the attendants of the pay shackswere not available. SEOs also helped to enforce fee compliance. The pay shacks were attended 24 hours a day once the dip net fishery went 24 hours daily. There were minor problems with people not paying enough due to confusion about $10 per 12 hours. The first week of the fishery was relatively slow due to minimal amounts of salmon. The parking lot at both the North and South beaches remained less than 50% full until the weekend of Saturday, July 14. Seasonal Enforcement Officers (SEOs) issued 44 parking warnings, one citation for a minor operating an ATV without a helmet, and one tow truck was called. Two children were reported missing as well as part of the parking lot needing to be evacuated due to a propane leak on an RV that required Kenai Fire Department attention and deportation. KENAY POLICE DIrrPARTMENT On Saturday, July 14 the number of vehicles and people increased exponentially. The North Beach parking lot was completely full, and at times overIlowing. The majority of SEOs time was spent at the North Beach enforcing fees for parking and vehicle congestion on Kenai Avenue. SEOs also issued many ATV warnings for not wearing helmets and riding in prohibited areas. Traffic on Kenai Ave, was congested throughout the day, which led to one tow truck being called. However, the owner contacted SEOs and paid the tow truck driver before the vehicle was impounded. Also, on July 14 an SEO dealt with a man riding an ATV, which was pulling a trailer with several young children on it who were not wearing helmets. Upon contacting the operator, the SEO determined that he might intoxicated, which led to the request of another officer to do Field Sobriety Testing. The driver was indeed intoxicated and was arrested for DUI. During the second week of the dip net fishery a large number of warnings for parking and ATV use were issued. Nine (9) vehicles were impounded. More illegally parked vehicles would have been impounded but owners arrived in time to pay the tow agency. Also, six (6) citations were issued for parking to the left (east) of the beach access on South Spruce. Throughout the second week of the dip net fishery, both beaches were consistently 75-85% full. At the beginning of the week the fish began to come in abundance, leading to a massive influx of people. SEOs spent most of their time at the North Beach enforcing traffic and the 5 -10 minute parking areas on Kenai Ave. as well as checking camping and parking receipts, but maintained a strong presence at the South Beach. Saturday, July 21 was by faz the busiest day of the season with both North and South Beach parking lots at 100% capacity. The pazking lot at the North Beach was overIlowing by about 0500 hours. SEOs spent significant portions of their shifts controlling traffic on Kenai Ave. Another problem was overIlow parking of vehicles on the beach due to lack of room in the parking lot at the end of South Spruce. Normally parking on the beach is only allowed to the right (west) of the beach access, and vehicles must proceed past the line of South Forest Drive. However, due to the abundance of vehicles parked prior to the South Forest line, vehicles were allowed to pazk to the right as long as they did not block access to the beach. SEOs clearly marked the access lane with cones to indicate where vehicles could or could not park. Vehicles not in compliance were impounded and/or warned. IxI addition, people began parking to the left of the beach access where it is clearly posted "no motor vehicles beyond this point". SEOs fought many of the same battles on Sunday, July 22. KENAI POLICE DEPARTMENT On Wednesday, July 25 ADF&G gaue an emergency order to open the dip net fishery to 24 hours daily until the end of the season on Tuesday, July 31. Generally the dip net fishery is opened to fishing 24 hours daily when there is a large increase in the Kenai River salmon population. Unfortunately, the number offish began to decrease after the emergency order was given. This emergency arder caused another influx of people during the last week even with the dwindling number of fish. The best fishing of this dip net season was during the middle of the second week. During the final week, both beaches consistently remained 70-80% full. SEOs continued to focus on parking and camping compliance. Throughout this week the parking lot at the Little League ball field was opened for use by dip petters. Parking was not as significant of a problem compared to prior weeks even though there were many people. Also, during this week five (5) vehicles were impounded, numerous parking/ATV warnings were issued, and there was one vehicle abandoned below the high tide line. Saturday, July 28 and Sunday, July 29 were the last days of the fishery. Both beaches were crowded again, but people seemed to be self-maintaining. On the South Beach SEOs received many complaints of ATVs riding in the wetlands and grassy azeas. There is only one sign stating that vehicles are prohibited in the wetlands, which led to a general lack of knowledge about regulations concerning the area. On Sunday, July 29, one person was cited for this offense. The City Dock continued to require little attention fi om SEOs due to last year's addition of two new ramps, an exit road, and overflow parking. The only problem that required police attention was a hit and run of a boat trailer. The trailer had a broken board from being run over by another truck's tire, but the owner of the trailer did not wish to pursue the matter Tuesday, July 31, 2007 the 2007 Kenai River Personal Use Dip net Fishery was officially closed at 2359 hours. SEOs spent a total of 90 hours on dip net related activities during the 2007 personal dip net fishery; 75 hours on the North Beach and 15 hours on the South Beach. SEOs also responded to or initiated 101 dip net related calls for service; and issued eight (8) dip net related citations. K$NAI POLYCE DEPARTMENT SPECIFIC OBSERVATIONS & CONCERNS Overview During the 2007 dip net fishery there weren't any major problems, other than a shortage of staffing to address problems at earlier stages before they became more of a management challenge. Information and regulations regarding pazking, camping, and waste collection were contained in brochures distributed by the pay shack attendants. The season began relatively calm, with the majority of people arriving during the second and third weeks of the fishery. Traffic, parking and congestion on Kenai Ave.. consistently required the most time and attention. On busier days people inevitably parked in no parking zones and blocked lanes in the pazking lot and Kenai Ave. Camping on both beaches never reached full capacity. Camping issues that the SEOs were involved with generally involved checking payment receipts. NORTH BEACH The North Beach required more time and attention from SEOs throughout the dip net fishery. Parking was limited and filled up quickly during busy days, which led to traffic jams that kept people from traveling in and out of Kenai Ave. SEOs dealt with more ATV use violations on the North Beach due to more restrictions than on the South Beach. Parking in the Little League parking lot, closed to dip petters for the majority of the season, was opened on Saturday, 7uly 28 for a fee of $10 for every 12 hours of parking. Because Little League games happen rarely during the Dipnet fishery, opening the pazking lot for dip petters would help alleviate parking issues on South Spruce. Improper parking and traffic on Kenai Ave. required the most attention from SEOs throughout the fishery. The road and turnaround are intended for five to ten minute loading and/or unloading of gear. However, people tended to take longer then the allotted time for these activities. Vehicles were also left unattended, causing traffic backups. SEOs spent entire shifts clearing traffic jams and impounding parked vehicles during the busier days. A suggestion for this problem is to create a lane for outgoing traffic to minimize competition between incoming and KENAI POLICE DEPARTMENT outgoing traffic. There need to be at least two more signs stating "five to ten minutes for loadinglunloading" at the end of Kenai Ave. This yeaz there were also problems with parking on the beach. Vehicles should be parked to the right ofthe beach access past the line of South Forest Dr. However, on days when the beach was busy, vehicles would fill up the entire beach to the right of the South Spruce access with parking. Eventually SEOs mazked the access lanes onto the beach with cones, which allowed vehicles to park on the beach as long as they didn't block the access lanes. This should be done at the beginning of the season next year. At the North Beach there are limited areas where ATVs are allowed. They are allowed to the right of the beach access off South Spence, but they are not allowed on the roadways or to the left of the South Spruce access. SEOs received complaints and inquiries about ATV use on the left side of the beach because it was not specifically marked that ATVs could not be used for the pick up offish. Also, there is a trail starting in the pazking lot on South Spruce that leads to Municipal Park at the end of South Forest where ATVs are prohibited. There were several warnings given to children operating ATVs on thistrail and into the pazk. The majority of parking and camping payment issues occurred when the fishery was only open from 0600-2300 hours. SEOs spent significant time checking parking and camping receipts, and issuing warnings to those who hadn't paid. In most cases people just forgot to display their receipt where it was visible to SEOs. Iron rangers also seemed to have a higher success rate than other years. The combination of the iron rangers and pay shacks is very effective, and should be continually used in future years. However, the iron ranger should be marked more clearly to reduce the amount of pedestrians who go to the pay shack and backup traffic on South Spruce. On the last day of the fishery, there was a problem with vehicles parking in the "City Vehicles Only" zone. Several people that were warned complained that it wasn't very clear that there is no parking allowed in that spot. As of now there is only a white spray-painted message on a concrete barrier stating "City Vehicles Only", and one No Parking sign at one end of the concrete barrier. More signs need to be added along the concrete barrier so it is clear to dip netters that it is for City vehicles only. ICENAI POLICE DEPARTMENT SOUTH BEACH Although the South Beach required less attention from 5EOs, public safety presence was still required. Self-supervision was easier due to fewer restrictions on the South Beach concerning parking, camping, ATV use, etc. Most of the SEOs time spent there was checking parking and camping receipts and warning people on ATVs about helmet regulations for their children. A reoccurring problem was overnight parking in the pazking lot on Dunes Rd. In past years, vehicles, especially RVs, inevitably parked overnight in this parking lot, and this year was no exception. However, the parking lot is in the Alaska State Troopers' jurisdiction. Many people leave their vehicles and trailers in this parking lot overnight and bring. camping gear onto the beach. In future years it may he considered to allow people to park their vehicles overnight and camp on the beach. Along the beach there are grassy areas where vehicles aze prohibited, yet there is only one sign posted at the end of the beach. SEOs received numerous complaints of people riding their ATVs into the wetlands and dragging large logs out for bonfires. When contacted, people claimed they did not know vehicles weren't allowed in that specific area. At one time there was bright orange fencing along the grassy area, but it has fallen down throughout the years. More signs stating "no vehicles" and/or more orange fencing need to be put up. SEOs also issuedmany warnings to children not wearing helmets while operating ATVs. Fortunately many were cooperative and either put on a helmet or stopped riding. Another issue on the South Beach was a 2002 Nissan Frontier that was left below the high tide line. The vehicle was left there for several days, and the owner of the vehicle could not be contacted. As time passed, people/nature began to beat up the vehicle, tearing off the bumper, breaking windows and generally destroying the vehicle. 6 . ~~~\ _ - ~ ehe~~~yoff/ KENA~ SKA °Vtft'a~r e W"l~Yt Gl ~GiS~f ~il~'G4/G~f7 GI ~Gt~LiYL'rr 210 Fidalgo Avenue, Kenai, Alaska 99611-7794 Telephone: 907-283-3692 /FAX: 907-283-3693 MEMORANDUM T13: Chuck Kopp, Chief of Police Lt. Kim Wannamaker, Kenai Police Department Jack LaShot, Public Works Manger FROM: Robert J. Frates, Parks & Recreation Director DATE: September 18, 2007 RE: Dip Net Report - 2007 The volume of people participating in the 2007 fishery sepazates this from previous seasons. It is this elevated participation that resulted in some higher costs, namely for portable bathroom services. The popularity of the fishery also resulted in extra challenges ranging from parking issues, pedestrian traffic on dunes, litter, and other associated issues. From an operational standpoint, this was the first year the dock operation was assigned to the Parks Department. The additional ramps and exit road provided amuch-improved service this season and allowed more boats to be retrieved and launched. Dock personnel did an excellent job preparing for this year's dip net season and effectively met their challenges along the way. Fee shack attendants randomly surveyed dip net participants during the 2007 fishery. Participants were asked if they live in the City of Kenai, live on the Kenai Peninsula, or live elsewhere. Of the 6,330 surveyed, approximately 90% indicated they live elsewhere, 7% live on the Kenai Peninsula and 3% live in the City of Kenai. The following outlines some miscellaneous suggestions for next season along with this year's operational cost. Suegestions For Nest Season Portable Restrooms & Dumpster on Dunes Rd: Due. to the heavy public use of the parking lot off Dunes Road neaz nur fee station, portable restrooms and dumpster service is suggested to accommodate the public. Better Coordination With RestroomlDumpster Service Provider. Contractor had difficulty during the peak season gaining access to his equipment stored on Old Cannery Road due primarily to parking of vehicles. Signage and fencing helped but will need to be done prior to season next year. Servicing of restrooms on the south side required the contractor to make two trips during the peak season due to the number of people and increased use. Contractor also had difficulty during peak season (July 16a' - 24a`) gaining access along. Kenai Avenue, particularly Saturday and Sunday resulting in a delay of services. Litter & Fish Waste: Consideration should be given to ways to effectively provide and manage garbage collection stations on the beaches as well as providing an easy means of depositing fish waste. Sand Dune Protection & North Beach Access: Continue exploring ways to protect the dunes from pedestrian and vehicle traffic. Beach road access during one weekend became very congested making passage difficult for commercial fishing operators. Access road needs better defined with cones and signage to prevent this from happening. Traffic Controllers at Cit~Dock: Consideration should be given to placing a couple personnel at the City Dock during peak times and weekends to facilitate loading & unloading at the ramps, parking, and exiting the facility. Designated Ramps at Ci Dock: Designating one ramp specifically for loading and another for launching may contribute to a smoother operation. This is not typically the procedure used at the deck but may be worth exploring. Parks and Recreation Expenses Material, Supplies & Services Portable Toilets $18,900 Dumpsters 10,250 Receipt Books 1,099 Misc. (propane, batteries, etc.) .505 Dip Net Brochures 300 Phone(1Vlinutes 135 Fuel 100 Page 2 of 2 Total $31,289 Labor Wages (fee station attendants) $27,300 Wages (Admin, clean-up, prep, etc.) 1,700 Total $zs,soo TOTAL MATERIAL, LABOR, SERVICES Boating Facility Expenses Material, Supplies & Services Portable Toilets $1,500 Dumpsters 500 Receipt Books 500 Minutes 135 Cleaning Supplies, etc 100 Spray Paint 80 Total $2,815 Labor Wages (fee station attendants) $5,250 Wages (Dock Manager 1/2) 1,620 Wages (Dock Worker 1/2) 1,075 Wages (painting, signs, etc.) 450 Total $8,395 TOTAL MATERIAL, LABOR, SERVICES $60,089 $11,210 Page 3 of 3 >. ~~~~ ~~ "l/'lla~e wit~t a Past, Gi~ wit~t a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611-7794 Telephone: (907) 283-7535, Ext. 236 /FAX: (907) 283-3014 t'IIf~ 1992 `tl~ecifyof~/ ~/~~~/I<® AT~TTT~~^ KENAI, ALASKA j~'1 L~'j l~ jJ lJ la U TO: Chuck Kopp, Chief of Police. CC: - Lt. Kim Wannamaker, Bob Frates FROM: Jack La Shot, Public Works Manager DATE: September 13, 2007 SUBJECT: Dip Net Fishery 2007 The following is a recap of Public Works efforts in support of the 2007 dip net fishery. The department had less involvement this year due to the assignment of dock operations to the Parks Department. Support Operations • Yearly removal of the mud accumulation on the ramps, dike construction and hauling of the mud off site after dewatering. • Set and remove dock ramps. ^ Move and remove shacks and concrete barricades at beach entrance sites. ^ Place two concrete barricades at the end of Main Street for traffic control. ^ Blade the South Spruce parking lot once and Kenai Avenue twice. Haul and place gravel from the parking area onto the beach entrance. • Place and maintain numerous regulatory signs at various locations. Capital Construction ^ Haul, place and grade gravel at the over flow parking area adjacent to the exit road. Estimated Expenses Operations $18,721 Capital Construction $12,134 Total $30,855 a~ a 0 V d ~Q w L O ~, z G R d Tn a+ O ^~ U tE d .C '~ O KENAI 1'QLIC'E DEPAI 1a7 SOUTH WILLOW STREET KEN! Telephone (907) 283-787f Fax (907) 283-2267 TO: Rick Koch, City Manager FM: Chuck Kopp, Chief of Police ~,~ RE: Dipnet Fishery Management Recommendations DT: September 27, 2007 City Administration has now reviewed operational reports and observations from all departments involved with the management and oversight of the Kenai River Personal Use Dipnet Fishery. This review process has distilled several recommendations Administration is prepared to move forward with for the 2008 Dipnet Fishery. Administration Recommendations 1. Update Kenai Municipal Code 13.30:080 Operating a vehicle in a prohibited area to include language that exempts City Public Works and Maintenance vehicles, and their - agents, from the provisions of this Chapter. Public Safety vehicles currently have an exemption in this Chapter. The recommended exemption far maintenance vehicles will authorize service of trash and fish waste receptacles by off-road vehicles on the North and South shore during the course of the fishery. 2. Update Kenai Municipal Code 13.40.020 Off-road vehicle aperation, to include language that exempts Public Safety vehicles from the provisions of this Chapter. Current language states "It shall be unlawful for arty person to operate an off-road vehicle in the City of Kenai... "and lists prohibited areas for off-road vehicle operation. The only exception currently allowed is for maintenance vehicles as identified in subsection (j) Not withstanding the provisions of this section, the City or State, or their agents, may operate machinery or off-road vehicles in otherwise prohibited areas for maintenance, repair, cleaning and upkeep. The recommended exemption for Public Safety vehicles will clear up any disparity of exemptions between KMC 13 and 14, 3. Provide high visibility barrier/crowd control fencing on both North and South Shore to protect dunes and vegetated wetlands from pedestrian and motorized tragic. Cost estimate: $4,000.00 - To purchase 5,000 feet (SOct - 4'x 100' rolls) of fencing. KENAI FOLICE DEPARTMENT 4. Signage Improvements -North Shore Two (2) 5-minute doad/unload signs on Kenai Avenue at the turnazound. One (1 }high visibility Pay Here sign for Iron Ranger (self-pay) station. Thirty (30) Keep off Dune s- $100 Fine signs to be placed on both sides of dunes. Signage Improvements -South Shore Fifteen (13) Keep off Wetlands - $100 Fine signs to be placed on beach in front of vegetated wetland grass azeas. Cost estimate: $4;000AO 3. Public Safety Officer personnel increases are needed to effectively manage the Dipnet Fishery 24(7 during the high usage times of Thursday -Sunday. The attached staff reports clearly show the-sheer numbers of dipnetters overwhelming current personnel resources to address fishery management issues during peak use periods. Administration recommends two (2) additional Seasonal Enforcement Officers (SEOs) and one Public Safety Officer (PSO) FT position to provide 24/7 coverage Thursday - Sunday, and significant coverage Monday -Wednesday. Additionally, the PSO will provide year round support to sworn police officers, the Animal Control Department, and Code Enforcement Officer. The SEO positions were originally budgeted to support a broad level of service requests during the summer months, as well as provide Dipnet Fishery support. These positions have evolved into almost exclusively a Dipnet Fishery support position, with very little support directed to other seasonal activity increases handled by the police department. Position justifications and actual costs will be submitted through the FY09 budget process. KENAI POLICE DEPARTMENT Public Safety Officer Cost estimate: Two (2) part time SEOs (payPoenefits/OT} - One (1) full time PSO (pay/benefits) - $20,000.00 $16,250.00 6. Parks and Recreation personnel increases are needed to address litter patrol, trash and fish waste receptacle change outs, barrier fence repair and maintenance, camping and pazking assistance to SEOs and other fishery support duties. Administration recommends two (2) additional Parks and Recreation seasonal employee positions to address these needs. Cost estimate: Two (2) Parks and Rec seasonal emp. (payPoenefits/OT} $15,000.00 Garbage and Fish Waste service improvements are needed to address significant litter and fish waste issues on the North and South shore. Administration recommends placing pairs of trash & fish waste containers at 400' intervals for about 2,000' along both shores. A "roll-on/roll-off' 20 - 30 yard dumpster would be place on Kenai Avenue and Dunes Road to regularly service these containers. Administration would need to consider the purchase of a 1-Ton flatbed truck with crane to service these trash & fish waste receptacles, or contract it out to a service provider. As recently done for the North Shore, Administration recommends making a donation of $7,500.00 to a non-profit or school sports booster club that is willing and able to provide regular litter patroUclean up duties on the South shore during the fishery. Cost estimate: $7,500.00 for South shore litter patrol $5,000.00 for trash & fish waste receptacle service ~ Public Safety Officer Total Cost Estimate is $65,000. '/< of this cost ($16,250.00) is borne by Dipnet Fishery revenues, with the remaining $48,750.00 coming from General Fund to support yeaz round Police operations, off-road vehicle municipal ordinance enforcement, code enforcement, animal control matters, etc. RENAI POLYCE DEPARTMENT 8. North Shore Parking continues to see the most urgent-need for improvements. Administraton recommends that the City coordinate with the Little League program to allow North Beach overflow parking in the Little League ball fields and parking lots on South Spruce Street. If there are no post-season baseball activities, this area would be ideal for overflow dip netter parking. 9. Administration further recommends that the City explore the purchase of Anchor Trailer Court property, in whole or in part, to address long term municipal parking needs for beach front recreational activity, Little League, Kenai River Personal Use Dipnet Fishery and Special Events parting. Total cost for implementation of Administration recommendations is approximately $75,000.00, excluding the possible purchase of additional property for parking. A "I/illa~ge wit~i a Past, GiE 1- ~' 210 Fidalgo Avenue, Kenai, Alaska 99611-7794 Telephone: (907) 283-7535 /Fax: (907) 283-3014 www.ci.kenai.ak.us MEM®itl~lr L V M TO: Mayor Porter and the Kenai City Council FROM: Cary R. Graves, City Attorney DATE: May 11, 2007 RE: Public Trust Doctrine and Differential Fees INTRODUCTION Councilor Molloy requested I update my previous research regarding the Public Trust Doctrine and beach parking fees My previous memoranda on the doctrine were done in 2002 and 2004. I took this opportwiity to take a fresh look at my earlier research. This memorandum is longer than I anticipated but I felt it was necessary to give the Council sufficient background regarding the doctrine. THE PUBLIC TRUST DOCTRINE The Public Trust Doctrine is a legal doctrine which "provides that public trust lands [tidelands], waters, and living resources in a State are held by the State in bust for the benefit of all the people, and establishes the right of the public to fully enjoy public trust lands, waters and living resources for a wide variety of recognized public uses... The doctrine articulates not only the public rights in these Land and waters; it also sets limitations on the States, the public and private owners, as well as establishing duties and responsibilities of the State when managing these public trust assets."1 The public trust doctrine originated in Roman Civil Law. In 530 A.D, the "Institutes of Justinian" contained a provision stating: "By the law of nature these things are common to all mankind; the air, running water, the sea and consequently the shores of the sea."~ It was incorporated into English Common Law and made part of American Law by the United States ~ David Slade, et. al., Putting the Public Trust Doctrine to Work, p. 3, (Second Edition 1997). ~ The Public Trust Doctrine: A Gift From a Roman Emperor, David C. Slade, httu'/hvww.wsu.ore/issues/PlOpubstrustdoc.htrnl. Memo Page 1 of 6 11/28/2007 9:44 AM Public Trust Doctrine and Differcntiat Fees UaMy DocumentsVCounciAI'ublic Trust Memo 0~07.doc Supreme Courtin Illinois Cenh^a~l Railroad v. Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed 1018 (1892). The doctrine means that there is a public use easement on tidelands between the mean high and low water marks. The easement is flexible in that it moves with the changes in the Location of the water marks due to erosion, accretion or reliction.3 For example, if the mean high water mark moves inland because of erosion, the public use easement moves with it4 The case law on the public trust doctrine deals with two separate areas of the beach. The distinction is important. The "wet beach" is the area between the mean high and low water marks. The "dry beach" is the beach area above the mean high water mark. In this case the city boat launch would be part of the wet beach and the city parking lots would be part of the dry beach. Tn Illinois Cenh^al Railroad the supreme court held that the states hold tidelands (land in between the mean high water and mean low water mark) "in trust for the people of the state that they may enjoy the navigation of the water, carry on commerce over them, and have Liberty of fishing therein freed from the obstruction or interference of private parties."5 Each individual state has the right to dime what lands are included in the doctrine and what rights are protected by it.e Oregon, for example, considers the tideland area covered by the doctrine to be from the mean iow tide mark to the visible line of vegetation, not the mean high tide line. Initially, the doctrine only required public access for fishing, hunting and navigation for the wet beach. However, since the Illinois Central Railroad decision, most courts have expanded the public lust doctrine to include wet beach access to publicly owned beaches for swimming and recreation.8 Beginning hl the early 1800s and continuing until twenty-first century courts have struck dovai municipal attempts to restrict use of the wet beach area to local residents only.9 Courts in Massachusetts and Maine have not included the right to wet sand beach access for swimming and recreation as part of their states' public trust doctrine. Those rulings are based on courts' findings that colonial residents of the area did not use beaches for bathing and hence acquired no such public access right colder colonial ordinances. However, residents of those 3 Reliction is the gradual recession of water leaving the land permanently. Accretion is an increase of land by natural forces. a 1988 Alaska Op. Atty. Gen. (inf) 351. 5146 U.S. at 452. e Phillips Petroleum v. Mississippi, 484 U.S. 469, 475 (1988); Cavanaugh v. Town of Narragansett, 199'7 R.I. Super. LEXIS 113, (N.J. Super. Ct. 1997). ~ State ex rel Thorton v. Kay, 462 P.2d 671 (Or. 1969). $ Borough of Neptune City v. Borough of Avon by-the Sea, 294 A.2d 47 (N.7. 1972)(Public trust doctrine includes use for recreation, swimming, bathing and other shore activities), White v. Hughes, 190 So. 446 (Fla. 1939)(Doctrine includes right to use area for bathing and swimming). 9 Hayden v. Noyes, 5 Conn. 391, 397 (1824)(Striking down town law restricting use of local fishery to town residents only); Leydon v. Town of Greenwich, 750 A.2d 1122, 1126 (Conn. App. 2000) aff'd on otJver grounds, 777 A.2d 552 (Conn. 2001). (Restriction ofmunicipai beach use to town residents only was illegal under the Public Trust Doctrine); Gerwitz v. City of Long Beach, 69 Misc. 2d. 763, 330 N.Y.S. 2nd 495 (1972 N.Y. Misc.). Memo Page 2 oP 6 1 1/27/2007 0.:06 PM Public Trust Doctrine and Differential Fees U:AMy DocumenfslCouncil\Public Trust Memo 0~07.doc states do have the right to access the wet beach area for "fishing, fowling, and navigation".t0 Interestingly, the public Trust doctrine in New Hampshire (whose coastline is located in between that of Maine and Massachusetts) does grant its residents the right to use wet beach area for recreational purposes.] t In California, the public trust doctrine includes, "the right to use California's water resources for: navigation, fisheries, commerce, environmental preservation and recreation; as ecological units for scientif c study; as open space; as environments which provide food and habitats fox birds and marine life; and as environments which favorably affect the scenery and climate of the area."1z The United States Supreme Court has noted that caution should be applied in applying the case law from one state to cases arising in another because, "Each state has dealt with the lands under the tidewaters within its borders according to its own views of justice and policy."13 Except for Maine and Massachusetts, the modern trend is for states to broadly interpret the public's rights under the doetrine.14 BEACH ACCDSS AND FACILITIES FEES The Public Trust Doctrine does not mean that municipalities may not regulate the wet beach area. In Lusardi v. Curtis Point Properly Owners Assoc. 430 A.2d 881, 888 (N.J. 1981) the New Jersey Supreme Court stated that the public trust doctrine: [D]oes not mean that the township may not... achieve its valid objectives of avoiding unnecessarily disruptive behavior, overcrowding, littering, or of protecting environ- mentallyfragile oceanfront property, such as irreplaceable sand dunes, for the benefit of future generations. The problems can be alleviated through reasonable ordinances directed at specific abuses and through the use of the general police power. Municipalities may charge fees for use of the public trust wet beach area.]' The general rules are that the fees must be reasonable,16 not discriminate against out of town residents,l~ and designed to fund the maintenance and operation of the beach area. t a In Avon, the New Jersey Supreme Court noted that, "while municipalities my validly charge reasonable fees for the use of their '0 C)pinton of Justices, 437 A.2d 597 (Me. 1981); Beld v. Inhabitants of We(Is, 1987 Me. Super. LEXIS 256 (Me. Super. Ct. Sept. 141987); Opinion gfJush'ceg 313 N.E.2d 561 (Mass. 1974). ~~ Opinion afJustices, 139 N. H. 82 (1994). ~~ California State Land Commission, California's Rivers, A Public Trust Report-Executive Summary, p. vi (1993). 13 Shively v. Bowlby, 152 U.S. 1, 26, (1894). is Robert George, Comment: The "Public Access Doctrine": Our ConstifutionaL Right To Sun, Surf, and Sand. I1 Ocean & Coastal Law Journal 73, 77 (2005/2006). is State of WisconsJn v. Lzmt, 556 N. W. 2d 394 (Wisc. App. 1996)(Boat launch fees allowed); City of New Smyrna Beach v. Board of Trustees, 543 So. 2d 824 (1"Ia. Dist. 1989)(Upholdingbeoch access fee for motor vehicles); 16 Borough of Neptune Cil)~ v. Borough of Avon-by-the Sea, 294 r1.2d 47 (N.J. 1972) " Van Ness v. Borough of Deal, 393 A.2d 571, 572 (N.J. 1978). Je Slocum v. Borough ofBehnar, 569 A.2d 312, 316 (N.J. Super. Ct. 1989)(Public access fee allowed to fund maintenance of beach area). Memo Page 3 of 6 11/28/200'7 9:42 AM Public Trust Doctrine and Differential Fees U:\My Documents\Council\Public Trust Memo 0507.doc beaches, they may not discriminate in any respect between their residents and non-residents."19 Seasonal rate discounts or discounted ticket booklets are allowed as long as they do not unduly discriminate against non-residents?° In New Jersey the courts have held that where the dry beach area and facilities are reasonably necessary to utilize the access to the wet beach, municipalities may not discriminate in fees between residents and non-residents.21 In reaching that conclusion, the New Jersey Supreme Court held that use of the dry land facilities can be inseparable from use of the wet beach.22 In Connecticut, an appellate court has indicated that a higher fee for non-residents might be legal, but only if any non-resident surcharges were minimal.zs Some states have allowed higher non-resident fees. An Illinois court has held that charging a higher moorage rate to non-residents was legal if the fee was designed to equitably recapture a fair share of the capital and operational costs otherwise born by the taxpayers.24. In Rhode Island, a lower court held that charging a higher non-resident fee was allowed under that state's public trust doctrine, but only as long as out of state non-residents paid the same fee as in state non-residents.25 A federal district court in Rhode Island held that municipalities could discriminate between residents and non-residents regarding use of the beach 26 However, that opinion is very questionable because the court did not even mention the Public Trust Doctrine in its legal analysis. PUBLIC TRUST DOCTRINE IN ALASKA Article VIII, § 14 of the Alaska Constitution states, "Free access to the navigable or public waters of the State, as defined by the Legislature, shall not be denied any citizen of the United States of resident of the state, except that the Legislature may by general law regulate and limit such access for other beneficial uses or public purposes." z7 This clause incorporates the Public Trust Doctrine into Alaska's constitution.28 AS 38.05.126(a) explains that constitutional right and provides that, "The people of the state have a constitutional right to free access to and use of the navigable water of the state." In Alaska, lands conveyed to municipalities by the state are subject to the public bust doctrine.~s The Public Trust Doctrine places conditions on the use of city owned beach property that do not i9 Avon, 290. A.2d at 56. 20 Sea Isle Ciry v. Catertna, 303 A.2d 351 (N.J. Cty. Ct. 1973). ~~ Raleigh Beach Association v. Atlantis beach CLub, Lac., 879 Aid 112, 120 (N,J. 2005). zz Lusar^di v.Curdas Point Property Owners Assn, 430 A2d. 881 (N.J. 1981). zs Brenden v. Town of Creenwicla, 750 A.2d 1122, n. t 0 (Conn. App. 2000) aff'd on other grounds 777 A.2d 552 (Conn. 2001). ''4 Broeckl v. Chicago ParkDistrtct, 544 N.E.2d 792 (IIl, 1989). ~' Cavanaugh v. Town ofNarrangansett, 1997 RI. Super. LEXIS 113 (R.I. Super. Ct. 1997). ss Zaroogian v. Narrangansett, 701 F. Supp 302 (D. RI. 1988) ~~ Arl icle VIII, sections 1,2,3,6,13 of the Alaska Constitution also embody the principles of the public trust doctrine. 28 Gordon S. Harrison, Alaska's Constitution-A Citizen's Guide, p. 163 (Third Edition 1992). ~~ CWC Fisheries, Inc. v. Bunker, 755 P.2d 11 t5 (Alask'a 1988); 1989 Alaska Op. Atty. Gen. (Inf,) 309, 1988 Alaska Op. Atty.Gen. (Inf.) 351. Memo Page 4 of 6 71/28/2007 9:42 AM Public Trust DocErine and Differential Fees U:AMy DocumentsVCouncilAPublic Trust Memo 0507.doc apply to other property owned by the city.3° Alaska's Supreme Court has stated that tidelands in Alaska are subject to a public trust easement 31 The easement is the "right shared by ail to navigate on waters covering foreshore [tidelands] at high tide, and, at low tide, to have access across foreshore [tidelands] to waters for fishing, bathing or any other lawful putpose.i32 Restrictions on tideland access must be fox a public benefit. One scholar notes that, "the state may keep people away from a lake that supplies drinking water to a town, or impair navigation on a river by building a dam. But it may not prevent the public from fishing in certain streams in order to protect the interest of nearby private lodges." 33 There is strong public policy in favor of public access to the tidelands under both state and federal law. The Alaska Supreme Court has held, "the provisions of Article VIII were intended to permit the broadest possible access to and use of state waters by the general public." 34 The intent of Article VIII, § 14 has been incorporated into AS 38.05.126(c). That section states: Ownership of land bordering navigable or public water does not grant an exclusive right to use of the water and a right of title to the land below the ordinary high water mark is subject to the rights of the people ofthe state to use and have access to the water for recreational purposes or other public purposes for which the water is used or capable of being used consistent with the pubiie bust. AS 38.05.128(d) states: `'Free passage or use of any navigable water includes the right to use land below the ordinary high water mark to the extent reasonably necessary to use the navigable water consistent with the public trust." The term "free passage" in the above section refers to unblocked access rather than a monetary context. The City may place reasonable terms and conditions on the use and access to the tidelands.35 However, tidelands owners may not exclude the public from use of the tidelands for navigation, fishing, or commerce.36 Individual states are free to establish the parameters of their own public trust doctrine.37 In Alaska, land held under the public trust doctrine is held for the benefit "of all the people of the state." 38 There are no controlling cases in Alaska clearly establishing whether higher non-resident boat launch and parking fees would be allowed under this state's version of the Public Trust Doctrine. Predicting how courts will rule on issues where there is no clear controlling precedent is a risky 30 William H. Danne, Jr. Annotation, Power of municipality to charge nonresidents higher fees than residents for use ofmunicipal facilities. 57 A.L.R. 3d 948. 3i Owsichek v. Guide Licensing & Control Board, 763 P.2d 483, 494 (Alaska 1998) The public's legal interest in use the wet beach is sometimes referred to as the jus pubdicum. 3z See jus publieum,Black's Law Dictionary (Sa' Ed. 1979). sa Gordon S. Harrison, Alaska's Constitution-A Citizen's Guide, p.163 (Third Edition 1992). ea Wernberg v. State, 516 P.Zd 1191, 1198-1199 (Alaska 1973). 3s 1985 Alaska Op. Atty. Gen. (Inf.) 445. J6755 P.2d at 1121. " 152 U. S. at 26; 755 P.2d at 1121. 38 Gregory F. Cook, The Public Trust Doctrine in Alaska, Vo] 8(1) The Journal of Environmental Law and Litigation 1 (1993)(The author was kind enough to discuss his article with me via Yelephone from Juneau on May 9, 2007). Memo Page 5 of 6 i (/27/2007 4:06 PM Pubtic Trust Doctrine and Differential Fees U:\My Documents\Counci(\Public Trust Memo 0507.doc business. Such predictions axe in reality just educated guesses. With that in mind, the following is my opinion on how Alaska courts would approach this issue. The boat launch. is clearly covered by the public trust doctrine. Whether the dry beach parking Lots are covered will depend on whether a court feels they are necessary for reasonable access to and use of the wet beach. While reasonable people could certainly disagree, I believe the courts would find them subject to the public trust rules. Whether the court would allow a differential non-resident fee depends (in my opinion) on the following: 1) whether the court felt the fees were an attempt to give Kenai residents preferential access to and use of resources (wet beach, the fishery, and use of the river and ocean) that are held intrust for all state residents; or 2) whether the court felt non-resident fees were a legitimate attempt to fairly recapture capital expenditures already paid for by city residents. If anon-resident fee is established, it should be designed to recapture capital expendihues and must be based on a detailed fmaucial anaiysis.39 The "Carlson Litigation" was a class action challenging higher state fees for out-of--state fishing licenses. The litigation was filed in 1984 and has been to the state supreme court three times; most recently in 2003; almost twenty years after it started."0 In that case the state supreme court struck down the original fee and awarded damages and attorney's fees. It held a higher non-resident fee could be used, but set down a detailed methodology for how any higher fee could be calculated to recapture costs. SUMMARY Because public trust property is held for all residents of the state, courts will closely scrutinize any higher non-resident fee. However, anon-resident differential fee is defensible if it is designed to recapture capital expenditures and is based on a detailed financial analysis. 39 Operational costs are not mentioned because the fees recently provided a surplus over operational costs. 40 Car/son v. State, 498 P.2d 1269 (Alaska 1990); Carlson v. Commercial Fisheries Entry Commisszon, 919 P.2d 1337 (Alaska 194; and State v. Carlson, 65 P.3d S51 (Alaska 2003). The United States Supreme Court has declined to hear the appeals on the cases. Carlson v. Alaska Commercial Fisheries Entry Commission, 519 U.S. 1101, 117 S.Ct. 789, 136 L.Ed. 2d 730 (1997) and Carlson v. Alaska Commercial Fisheries Entr~r Commission, 540 U.S. 963, 124 S. Ct: 387, 157 L.Ed.2d 305 (2003). The Carlson Litigation did not concern the Public Trust Doctrine. It dealt with federal constitutionalissues regarding the privileges and immunities and commerce clauses of the United States Constitutirnt. Memo Page 6 of 6 11/27Y2007 4:06 PM Public Trust Doctrine and Differential Fees U:AMy DocumentsVCouneihPubiic Trust Memo 0507.doc 1 AGENDA KENAI CITY COUNCIL -REGULAR MEETING NOVEMBER 7, 2007 7:00 P.M. KENAI CITY COUNCIL CHAMBERS http: / /www.ci.kenai.ak.us ITEM A: CALL TO ORDER 1. Pledge of Allegiance 2. Roll Call 3. Agenda Approval 4. Consent Agenda *All items listed with an asterisk (*) are considered to be routine and non- controversial by the council and will be approved by one motion. There will be no separate discussion of these items unless a council member so requests, in which case the item will be removed from the consent agenda and considered in its normal sequence on the agenda as part of the General Orders. ITEM B: SCHEDULED PUBLYC COMMENTS (10 minutes) 1. Bill Radtke, Central Peninsula Habitat for Humanity -- Program Update. 2. Jason Carroll, President, Kenai Chamber of Commerce -- Christmas Comes to Kenai fireworks display ITEM C: UNSCHEDULED PUBLYC COMMENTS (3 minutes) ITEM D: REPORTS OF KPB ASSEMBLY LEGISLATORS AND COUNCILS ITEM E: PUBLYC HEARINGS (Testimony limited to 3 minutes per speaker.) 1. Ordinance No. 2264-2007 -- Accepting a Grant From the State Division of Homeland Security and Emergency Management 2007 State Homeland • Security Program in the Amount of $243,000.00 and Appropriating the Grant in the Kenai Emergency Operations Center Capital Project Fund. 2. Ordinance No. 2265-2007 -- Increasing Estimated Revenues and 8 Appropriations by $58,640.00 in the General Fund for a Grant From the State Division of Homeland Security and Emergency Management 2007 A) Law Enforcement Terrorism Prevention Program to Provide P25 Radio -' ~J~ Consolette Upgrades to the City Communications (Dispatch) Center. 3. Ordinance No. 2266-2007 -- Increasing Estimated Revenues and Appropriations by $21,250 in the Airport Fund and by $850,000 in the ~- ~ Runway Improvement Capital Project Fund for Capital Improvements. (N` ~ 4. Resolution No. 2007-61 -- Awarding a Three Year Contract for the ^1 ~ ~ Operation and Management of the Kenai Recreation Center to the Boys 8v n S~' Girls Club of the Kenai Peninsula, Kenai Unit, in the Amount of WNW' $130,000 Per Annum, With an Option to Renew for Two Additional Years. (Clerk's Note: At the 10/ 17/ 07 meeting, council postponed action on Resolufion No. 2007-61. The motion to approUe Resolution No. 2007-61 is active.) 5. Resolution No. 2007-64 -- Adopting an Alternative Allocation Method for the FY08 Shared Fisheries Business Tax Program and Certifying that ~ this Allocation Method Fairly Represents the Distribution of Significant Effects of Fisheries Business Activity in Cook Inlet. 6. Resolution No. 2007-67 -- A Resolution of the Council of the City of /1 ,(^ Kenai, Alaska, adopting the City of Kenai Capital Improvements Plan ~`/ ` v' ~ Priority List for Federal Funding Requests for the Fiscal Year 2009 for Submission to the Kenai Peninsula Borough. 7. Resolution No. 2007-68 -- A Resolution of the Council of the City of ~~ Kenai, Alaska, Adopting the City of Kenai Capital Improvements Plan ppp///~~~""" Priority List for State of Alaska Funding Requests for the Fiscal Year 2009 for Submission to the Kenai Peninsula Borough. P 8. Resolution No. 2007-69 -- Awarding the Vintage Pointe Manor a.ve~°'/~ ~ Caretaker Contract to Pleezers Enterprise, for $2000/Month, for the ~`("°°__ ~ period October 1, 2007 through June 30, 2008. Q J~ 9. Resolution No. 2007-70 -- Requesting the State of Alaska Department (~ \,~ S~"'" of Transportation and Public Facilities (ADOT/PF) Include in the J,~"C4"a~' ` 4~~ Kalifornsky Beach Road Rehabilitation, Project 58703, a Separated ~~ -~ Pedestrian Pathway from Station +/- 827+00 (Cannery Road) to Station +/- 944-00 (Bridge Access Road). 10 ,8~~ 1111 ITEM F: ITEM G: Resolution No. 2007-?1 -- Accepting the Donation of an Industrial Firefighting Prop to be Used for Training at the P.R.I.S.M. *Transfer of Liquor License -- From Carter Enterprises, Inc., d/b/a Rosita's Mexican Restaurant to Jose Ramos, d/b/a Don Jose's Mexican Restaurant. MINUTES *Regular Meeting of October 17, 2007. UNFINISHED BUSINESS %TEM H: NEW BUSINESS Bills to be Ratified 2. Approval of Purchase Orders Exceeding $15,000 3. *Ordinance No. 2267-2007 -- Increasing Estimated Revenues and Appropriations by $2,000 in the General Fund for a Federal Grant. 4. *Ordinance No. 2268-2007 -- Amending KMC 3.15.040 to Provide that 1) a Hearing Shall be Held to Determine Whether a Dog Kennel License will be Granted or Renewed; and 2) Property Owners Within 300 Feet of a Parcel that is the Subject of a Dog Kennel License Application Shall be Notified of the Application and the Date, Time and Place of the Hearing; and 3) Setting Out the Appeal Process for Any Aggrieved Party. 5. *Ordinance No. 2269-2007 -- Enacting Chapter 5.40 of the Kenai Municipal Code Establishing a Licensing Procedure for Pawnbrokers and Regulating How Pawnbrokers Conduct Business. 6. Discussion -- Ordinance 2240-2007 -- Amending KMC 21.10.070 to Give the Airport Commission More Authority Over Leasing Decisions Within the Airport Reserve. (Ordinance No. 2240-2007 was tabled, no time certain, at the July 1 &, 2007 council meeting. Direction was to bring back the ordinance after Commission review. (reviewed by Commission at its September 13, 2007 meeting). The motion to enact is active.) Discussion -- Kenai Convenfion and Visitors Bureau, Inc. 8. Discussion -- Reconstitution of Airport Commission Discussion -- Newsletter 10. Discussion -- Banners ITEM Y: COMMISSION/COMMITTEE REPORTS 1. Council on Aging 2. Airport Commission 3. Harbor Commission 4. Library Commission 5. Parks 8v Recreation Commission 6. Planning 8v Zoning Commission 7. Miscellaneous Commissions and Committees a. Beaufification Committee b. Alaska Municipal League Report a Joint Kenai River Working Group d. Mini-Grant Steering Committee ITEM J: REPORT OF THE MAYOR ITEM K: ADMINYSTRATION REPORTS 1. City Manager 2. Attorney 3. City Clerk ITEM L: 1. Citizens (five minutes) 2. Council ITEM M: PENDING LEGISLATION (This item lists legislation which will be addressed at a later date as noted.) Ordinance No. 2202-2006 -- Amending KMC 11.05.090 to Limit the Use of the City of Kenai Boat Launch, Located at the Municipal Harbor, to Vessels and Boats Powered by Four-Cycle or Direct Injection Two-Cycle Engines. (1/17/07, Tabled, no time certain.) Ordinance No. 2240-2007 -- Amending KMC 21.10.070 to Give the Airport Commission More Authority Over Leasing Decisions Within the Airport Reserve. (7/18/07, Tabled, no time certain.) Resolution No. 2007-62 -- Designating that Lot 1-A Sprucewood Glen Subdivision Number Two be Replatted and that a Portion of the Property in That Lot be Preserved as a Buffer. (At 10/ 17/ 07 meeting, council postponed action on Resolution No. 2007-62 until reviewed by the Airport Commission.) EXECUTIVE SESSION -- None Scheduled ITEM M: ADJOURNMENT AGENDA KENAI CITY COUNCIL -REGULAR MEETING NOVEMBER 21, 2007 ?:00 P.M. KENAI CITY COUNCIL CHAMBERS http: / /www.ci.kenai.ak.us ITEM A: CALL TO ORDER 1. Pledge of Allegiance 2. Roll Call 3. Agenda Approval 4. Consent Agenda *All items listed with an asterisk (*) are considered to be routine and non- controversial by the council and will be approved by one motion. There will be no separate discussion of these items unless a council member so requests, in which case the item will be removed from the consent agenda and considered in its normal sequence on the agenda as part of the General Orders. YTEM B: 1. ITEM C: ITEM D: ITEM E: ~~z-aQP~G Gr, 1. SCHEDULED PUBLIC COMMENTS (10 minutes) Jessica Martin -- Invasive Plants of Alaska UNSCHEDULED PUBLIC COMMENTS (3 minutes) REPORTS OF KPB ASSEMBLY LEGISLATORS AND COUNCILS PUBLIC HEARINGS (Testimony limited to 3 minutes per speaker.) Ordinance No. 2267-2007 -- Increasing Estimated Revenues and Appropriations by $2,000 in the General Fund for a Federal Grant. ~~~er~ ~ 2. Ordinance No. 2268-2007 -- Amending KMC 3.15.040 to Provide that 1) /al.~/v7 a Hearing Shall be Held to Determine Whether a Dog Kennel License Will be Granted or Renewed; and 2) Property Owners Within 300 Feet of a Parcel That is the Subject of a Dog Kennel License Application Shall be Notified of the Application and the Date, Time and Place of the Hearing; and 3) Setting Out the Appeal Process for Any Aggrieved Party. ~/"Oy~~c.ed( 3. Ordinance No. 2269-2007 -- Enacting Chapter 5.40 of the Kenai 2~p /a~~`d '~ Municipal Code Establishing a Licensing Procedure for Pawnbrokers and Regulating How Pawnbrokers Conduct Business. 4. Resolution No. 2007-62 -- Designating that Lot 1-A Sprucewood Glen Subdivision Number Two be Replatted and that a Portion of the Property in That Lot be Preserved as a Buffer. (Clerk's Note: At the 10/ 17/07 meeting, council postponed action on Resolution No. 2007-62 until reviewed by the Airport Commission. The Airport Commission reviewed different versions of the resolution at its November 8, 2007 meeting. The motion to enact Resolution No. 2007-62 (as originally presented) is active.) ~'~-~ a. Resolution No. 2007-62 Substitute "A" -- Designating That Lot '~'"~~'~~0`~' 1-A Sprucewood Glen Subdivision Number Two be Replatted and That a Portion of the Property in That Lot be Designated as a Buffer. f~~~' b. Resolution No. 2007-62 Substitute "B" -- Designating That Lot 1-A Sprucewood Glen Subdivision Number Two be Replatted and That a Portion of the Property in That Lot be Preserved as a Buffer. /~iti~'~~~1~='~2' S. Resolution No. 2007-70 -- Requesting the State of Alaska Department 61~r~;~/lls7.~°!°~~• of Transportation and Public Facilities (ADOT/PF) Include in the Kalifornsky Beach Road Rehabilitation, Project 58703, a Separated Pedestrian Pathway from Station +/-827+00 (Cannery Road) to Station +/-944-00 (Bridge Access Road). (Clerk's Note: At the November 7, 2007 council meeting, Resolution No. 2007-70 was postponed to the November 21, 2007 council meeting. The motion to approve Resolution No. 2007-70 is active.) /~~~~ ~ 6. Resolution No 2007-72 -- Awarding a Sole Source Contract to Motorola, / Inc., in the Amount Not to Exceed $58,640.00 to ProComm Alaska LLC to Equip the Kenai Public Safety Communications Center. ~ 7. Resolution No. 2007-73 -- Awarding a Sole Source Contract to ProComm Alaska LLC, in the Amount Not to Exceed $243,000.00 to Equip the Kenai Emergency Operations Center. 8. 2~ ~ " Resolution No. 2007-74 -- Authorizing City of Kenai Mayor Porter to , ~y9 / Sign City of Kenai, City of Soldotna, and Kenai Peninsula Borough Joint Resolution No. 2007-02, Requesting the Board of Fisheries to Adopt Regulations to Reduce Hydrocarbon Discharge at the Mouth of the Kenai River. ~ , 9. Resolution No. 2007-75 -- Selecting Alternative Number One as the ~~~ ~ Preferred Alternative for the Expansion of the Kenai Community Library. 10. *Applscation for Restaurant Designation Permit -- Don Jose's LLC, d/b/a Don Jose's Mexican Restaurant. ITEM F: MINUTES 1. *Regular Meeting of November 7, 2007. ITEM G: UNFINISHED BUSINESS ITEM H: NEW BUSINESS ~~pyek'. 1. Bills to be Ratified 2. Approval of Purchase Orders Exceeding $15,000 3. *Ordinance No. 2270-2007 -- Increasing Estimated Revenues and Appropriations by $71,730.85 in the General Fund for Repair of the Visitors Center Heating System. 4. *Ordinance No. 22?1-2007 -- Increasing Estimated Revenues and Appropriations by $1,254,000 in the Wellhouse 4 Capital Project Fund for Water System Upgrades and $627,000 in the Water and Sewer Fund to Provide Matching Funds for a State Grant. *Ordinance No. 2272-2007 -- 1) Amending the Land Use Table in KMC 14.22.010 by Separating "Storage" From the Current Use Listing of "Manufacturing/Fabricating/Assembly Storage" and; 2) Adding "Storage Yard" and "Mini-Storage Facility" to the Listed Uses in the Land Use Table and; 3) Amending KMC 14.20.320 by Providing De&ni*.ions of "Wholesale Business," "Mini-Storage Facility," "Storage Yard," and "Warehouse." /~~~,p~~, 6. Approval -- Assignment of Shore Fishery Leases ' ! a. Tract 1, Shore Fishery Plat No. 71 (From Keith Johnson to Markham-Scow, LLC). b. Tract 2, Shore Fishery Plat No. 71 (From Reta Johnson to Markham-Scow, LLC). ~i^6~°>~° 7. Discussion -- Donation/Christmas Comes to Kenai Fireworks Display. ~ ,257 ~vwvw°~ • 0~'t, 8. Discussion -- Schedule Work Session/Goal Setting ~~~ 9. Discussion -- Banners ITEM I: COMMYSSION/COMMYTTEE REPORTS 1. Council on Aging 2. Airport Commission 3. Harbor Commission 4. Library Commission 5. Parks 8, Recreation Commission 6. Planning 8v Zoning Commission 7. Miscellaneous Commissions and Committees a. Beautification Committee b. Alaska Municipal League Report c. Joint Kenai River Working Group d. Mini-Grant Steering Committee ITEM J: REPORT OF THE MAYOR ITEM K: ADMINISTRATYON REPORTS 1. City Manager 2. Attorney 3. City Clerk YTEM L: 1. Citizens (five minutes) 2. Council ITEM M: PENDING LEGISLATION (This item lists legislation which will be addressed at a later date as noted.) Ordinance No. 2202-2006 -- Amending KMC 11.05.090 to Limit the Use of the City of Kenai Boat Launch, Located at the Municipal Harbor, to Vessels and Boats Powered by Four-Cycle or Direct Injection Two-Cycle Engines. (1/17/07, Tabled, no time certain.) Ordinance No. 2240-2007 -- Amending KMC 21.10.070 to Give the Airport Commission More Authority Over Leasing Decisions Within the Airport Reserve. (7/18/07, Tabled, no time certain.) EXECUTIVE SESSION -- Hollenberg Litigation YTEM M• ADJOURNMENT