HomeMy WebLinkAboutOrdinance No. 2789-2014- Sponsored by: Council Member Mike Boyle
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KEHAI� KA
CITY OF KENAI
NO. 2789 -2014
AN ORDINANCE OF THE COUNCIL OF THE CITY OF KEN ,ALASKA, AMENDING
KENAI MUNICIPAL CODE SECTION 11.05.050, "CON TION AS TO EQUAL
SERVICES AND RATES," TO REQUIRE THAT THE CITY ROVIDE RESIDENTS OF
THE CITY OF KENAI WITH FREE SERVICES I THE TY -OWNED BOAT LAUNCH
AND PARKING FACILITY.
WHEREAS, the City has put into place certain es for taking advantage of City-
provided services at the City-owned and operated oat launch facility; and,
WHEREAS, although the City of Kenai Dock unching ramps and floats are facilities
that provide access to waterways for yrulu fire public, the costs of operating these
facilities are supported not only from fees but by the residents of Kenai who
support governmental operations throu es; and,
WHEREAS, it is in the best interest o the City to acknowledge the contributions of the
residents of the City of Kenai in p ent of taxes by offering free City services at the
City's boat launch and floats.
NOW, THEREFORE, ZITO AINED BY THE COUNCIL OF THE CITY OF KENAI,
ALASKA, as follows:
Section 1. Form: Th ordinance.
Section 2. Amendme n 11.05.050 of the Kenai Municipal Code: The Kenai
Municipal Code, Sec n 11.05.050, Condition as to equal services and rates, is hereby
amended as follows: '
11.05.050 Condition as to equal services and rates.
It sh be a condition of all permits granted by the City Council that the
facilities to a constructed and the services to be supplied in connection with them
shall be de available to all carriers upon equal terms, at equal rates, and without
discrimi tion of any kind. Notwithstanding, the City shall Provide services at its
New Text Underlined; [DELETED TEXT BRACKETED[
Ordinance No. 2789 -2014
Page 2 of 2
Section 3. Severability: If any part or provision of this ordinance or application
thereof to any person or circumstances is adjudged invalid by any court of competent
jurisdiction, such judgment shall be confined in its operation to the part, provision, or
application directly involved in all controversy in which this judgment shall have been
rendered, and shall not affect or impair the validity of the remainder of this title or
application thereof to other persons or circumstances. The City Council hereby
declares that it would have enacted the remainder of this ordinance even without such
part, provision, or application.
Section 4. Effective Date: Pursuant to KMC 1.15.070(1), this ordinance shall take
effect one month after adoption.
PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 20th day of
August, 2014
ATTEST:
Sandra Modigh, City Clerk
PAT PORTER, MAYOR
Introduced: August 6, 2014
Adopted: August 20, 2014
Effective: September 19, 2014
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M
" 1141 e with a Past, C# with a Future"
210 Fidalgo Avenue, Kenai, Alaska 99611 -7794
Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014
MEMORANDUM
TO: Mayor Porter and Council Members
FROM: Scott Bloom S'3
DATE: August 14, 2014
SUBJECT: Ord. 2789 -2014, Boat Launch Fees
I have no reason to disagree with the main conclusions reached by former City Attorneys
Krista Stearns and Cary Graves in the attached opinions on the issues presented by
Ordinance 2789 -2014. If anything, the recent use of dedicated dip net revenue for dock
funding has made it more difficult to legally support free use of the boat launch fees for
residents only.
Enc.
Opinion of Krista Stearns dated 6/1/2011
Ord. No.2559 -2011
Opinions of Cary Graves dated 9/5/2003, 9/9/2004 and 5/11/2007
p'(IIAIt1'
"Village with a Past, pity with a Future"
210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 �
Telephone: 907 - 283 -7535 / FAX: 907- 283 -3014 III�'i
1997
MEMO:
TO:
Mayor Porter and City Councilors
FROM:
Krista S. Stearns
City Attorney
DATE:
June 1, 2011
SUBJECT:
Resident Preference at Boat Launch
Proposed Ordinance No. 2559 -2011
At the May 18, 2011 Council meeting, the Council introduced Ordinance No. 2559 -2011.
This ordinance, sponsored by Council Member Boyle, provided for an exception to the
City's general policy of non - discrimination with respect to harbor facilities. Specifically,
the ordinance would allow the City to provide services at its launch ramp and adjacent
parking facility to residents of the City of Kenai at no charge.
During the meeting I opined that this ordinance probably violated the public trust
doctrine.' The Council requested further analysis of the issue, and specifically asked for
an analysis of whether the ordinance would put the City in violation of conditions of
funding sources used by the City to construct or maintain the facility. Council Member
Moore made specific reference to monies received under the Dingell- Johnson Act and
asked for additional analysis about the meaning of the term "resident" as used in the
ordinance.
ISSUES PRESENTED
A. Does Proposed Ordinance No. 2559 -2011 Violate the Public Trust Doctrine?
Preliminary Answer: Yes. The boat launch is clearly covered under the
doctrine, although there continues to be a question about whether the parking area -
-an area upland of the mean high water mark - -is subject to the doctrine as applied
I also suggested that the ordinance also raised issues of potential violation of the
Commerce Clause of the United States Constitution and the equal protection clauses of
the United States and Alaska constitutions.
Memorandum on Ordinance No. 2559 -2011 Page 1 of 9
doctrine is incorporated in Article VIII, section 14 of the Alaska Constitution and further
incorporated into statute at AS 38.05.126(c).
ii. The public trust doctrine does not prevent municipalities from regulating
wet beach areas; but, the fees must be reasonable, must not discriminate against non-
residents, and must be designed to fund maintenance and operations of the area.
iii. Case law on the public trust doctrine focuses on two separate areas of the
beach or tidelands. The "wet beach" area is the space between the mean high and low
water marks. The "dry beach" area is the area above the mean high water mark. The
boat launch is clearly covered by the public trust doctrine as it is part of the "wet beach."
There is some question, however, about whether the parking areas are covered by the
public trust doctrine because those areas are in the "dry beach" area. There are no
controlling cases in Alaska clearly establishing the extent to which the public trust
doctrine affects the "dry beach" area. Predicting how a court would rule is to provide
you with an educated guess. It is an issue is one upon which reasonable persons could
disagree.
iv. Whether a differential non - resident fee would be upheld by the court would
depend upon whether the court felt that the fees were an attempt to give Kenai residents
preferential access to and use of the resources that are held in trust for all state residents
or whether the differential fee was a legitimate attempt to fairly recapture capital
expenditures already paid for by City residents.
As drafted, the ordinance reflects a clear intent to give preferential access to Kenai
residents. This ordinance is unlike a seasonal discount pass already offered by the City.
Seasonal discount passes may have an incidental effect of benefitting residents over non-
residents because a resident is more likely to benefit from a season pass than a non-
resident. But, the benefits are not restricted only to residents. And, by its proposals to
provide absolutely free use of the facility for residents, it is evident that the difference
favoring residents is not tied to an attempt to recapture capital expenditures or municipal
dollars used to staff and maintain the facility and already paid by city residents. Under
these circumstances, the ordinance is likely to be invalidated by a court if challenged.
Since Mr. Graves issued his last memorandum on this issue, the Alaska Supreme Court
has considered the public trust doctrine in detail in one case.3 In State, Dept. of Natural
Resources v. Alaska Riverways, Inc., the Alaska Supreme Court examined a DNR
requirement that a tour boat operator, Alaska Riverways, lease state shorelands for
purposes of a wharf even though Alaska Riverways owned lands adjacent to the
3 State, Dept. of Natural Resources v. Alaska Riverways, Inc., 232 P.3d 1203
(Alaska 2010).
Memorandum on Ordinance No. 2559 -2011 Page 3 of 9
B. Would Adoption of Ordinance No. 2559 -2011 put the City in Violation of
Conditions of Funding Sources Used by the City to Construct or Maintain the
Boat Launch And /Or its Adjacent Parking Area?
To date, I have received little information from Administration regarding exactly what
public funds and grants were used to construct the boat launch and related parking
facility. Thus, I cannot answer this question with respect to all funds used and my
responses should be understood accordingly.
1. Grants
Mr. Koch provided me with information about one grant used to fund improvements at
the boat launch, Grant No. 04 -RR -013. This grant was closed on July 20, 2006, and
involved the City's receipt of up to $350,000 in state funds for "Restoring River Banks of
the Kenai River." The grant agreement includes a standard non - discrimination clause
that requiring that the benefits from the project shall be made available
"without regard to race, religion, color, national origin, age, physical handicap, sex,
marital status, changes in marital status, pregnancy or parenthood." The grant language
does not include any express restrictions prohibiting discrimination based upon
residency.
2. Limitation in Deeds/Patents
The City received patent A- 032678 covering at least some of the property used for the
boat launch and city dock facility. The patent was issued "for public docking facilities,
maritime commerce, transportation, warehousing, distribution of commerce, fishing, and
port and waterfront development purposes only." The patent has a reverter clause
prohibiting the City from using the land being for any other purpose without the consent
of the Secretary of the Interior
The patent does not contain express language prohibiting a preference for residents;
however, such a restriction may have been anticipated. In an unsigned letter dated
February 21, 1968,6 then City Manager James Harrison wrote to the federal government
offering to make a negotiated purchase of the property. That letter included a statement of
intended use stating that "[t]he City of Kenai represents that the proposed real property
would be used in connection with adjacent lands for comprehensive development of the.
.. real property and the adjacent land ... to permit the utmost equitable service for the
general public at the location indicated for dock, warehouse and storage facilities." The
6 Receipt of this letter was acknowledged by the federal government in its return
letter agreeing to the transaction.
Memorandum on Ordinance No. 2559 -2011 Page 5 of 9
that fees be reasonable and based upon equitable principles.10 The concept of "equitable
principles" suggests that discrimination based upon residency is not permitted."
Another law, the Rivers and Harbors Appropriation Act (of 1884 and 1919) also would
affect the City's ability to enact ordinances favoring residents. 12 The Act of 1919 states:
It is hereby declared to be the policy of the Congress that water terminals
are essential at all cities and towns located upon harbors or navigable
waterways and that at least one public terminal should exist, constructed,
owned, and regulated by the municipality, or other public agency of the
State and open to the use of all on equal terms. 13
This express language suggests that a preference based solely on residency, without
resort to looking at the cost to recapture local investment and the benefits incurred, would
violate the terms of this Act.
This Act was also discussed in the Alaska Riverways case and imposes a limitation on
fees as follows:
No taxes, tolls, operating charges, fees, or any other impositions whatever
shall be levied upon or collected from any vessel or other water craft, or
from its passengers or crew, by any non - Federal interest, if the vessel or
water craft is operating on any navigable waters subject to the authority of
the United States, or under the right to freedom of navigation on those
waters, 14
The law allows a non - federal entity, like the City, to charge some fees. The Act allows
for "reasonable fees charged on a fair and equitable basis that (A) are used solely to pay
the cost of a service to the vessel or water craft; (B) enhance the safety and efficiency of
interstate and foreign commerce; and (C) do not impose more than a small burden on
interstate or foreign commerce ...... 15
10 50 C.F.R. § 86.31.
11 I have no specific knowledge whether the City has or has not received any BIG
funds.
12 33 U.S.C. § 551.
13 Id. (emphasis added).
14 33 U.S.0 § 5(b).
15 Id.
Memorandum on Ordinance No. 2559 -2011 Page 7 of 9
In sum, the concept of "residence" has a common legal understanding. It means a person
has formed an intent to remain in a place indefinitely as their permanent dwelling place .20
Without further definition within the City's Code a resident of the City of Kenai should
be similarly understood. As drafted, there would not be a period of residency required
before a person could take advantage of the resident preference proposed. A resident of
the City should be considered a person physically present in the City and who has the
intent to remain in the City indefinitely and to make the City their home .21
If the Council desired, it could amend the ordinance to impose a reasonable time before
one can establish residence (such as 30 days). The Council could also use some other
standard to provide a preference, such as "property owner" or "registered voter." My
understanding of Council Member Boyle's intention, however, was that the provision of
free services for residents be applied broadly to reach as many people as possible. The
draft language reflects this intent. It also furthers Council Member Boyle's intent to
provide the Administration with leeway as to how best to work out how to process
requests for free _service based upon residency.
CONCLUSION
An all -out resident preference like that proposed in Ordinance 2559 -2011 clearly violates
the public trust doctrine with respect to the boat launch. Whether a resident preference
for the parking area violates the public trust doctrine is a tougher question as the land on
which the parking area is place is above mean high water. Alaska courts have not spoken
directly to this issue. The City would be making new law if it adopted the ordinance and
it was challenged. Much would depend upon whether a court found that the parking was
required to provide for the public's use and access of the tidelands and whether the
supreme court would extend the doctrine to upland areas.
As for funding, I have concerns that the resident preference as proposed would violate the
Rivers and Harbors Appropriation Act. There is a less substantial question about how the
Department of the Interior might view the preference in light of the reverter clause in the
patent conveying the land to the City.
L:\ Council\ public.trust.boat.launch.052711
20 Perito v. Perito, 756 P.2d 895 898 -99 Alaska 1988
( ) (interpreting prior statute
defining intent to remain permanently to be understood as "indefinitely ").
21 Temporary work sites, office boxes and private mail services do not create
residence. For purposes of this ordinance, residency could be evidenced in a variety of
ways to be determined by the Administration (utility bills, voter registration, driver's
license physical address).
Memorandum on Ordinance No. 2559 -2011 Page 9 of 9
vL' E.
o 4
N I . Suggested by: Council Member Mike Boyle
atir °h� CITY OF KENAI
NO. 2559 -2011
AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, ENDING
KENAI MUNICIPAL CODE SECTION 11.05.050, "CONDITION AS TO UAL
SERVICES AND RATES," TO REQUIRE THAT THE CITY PROVIDE SIDENTS OF
THE CITY OF KENAI WITH FREE SERVICES AT THE CITY -OWN BOAT LAUNCH
AND PARKING FACILITY.
WHEREAS, the City has put into place certain fees for takind advantage of City -
provided services at the City -owned and operated boat lauy<ch facility; and,
WHEREAS, although the City of Kenai Dock launching /amps and floats are facilities
that provide access to waterways for the entire public.,the costs of operating these
facilities are supported not only from user fees but b the residents of Kenai who
support governmental operations through taxes; a14,
WHEREAS, it is in the best interest of the City
residents of the City of Kenai in payment of ta:
City's boat launch and floats.
NOW, THEREFORE, BE IT ORDAINED BY
ALASKA, as follows: /
Section 1. Form: This is a Code
acknowledge the contributions of the
by offering free City services at the
COUNCIL OF THE CITY OF KENAI,
Section 2. Amendment of Section A 1.05.050 of the Kenai Municipal Code: The Kenai
Municipal Code, Section 11.05.0. , Condition as to equal services and rates, is hereby
amended as follows:
11.05.050 Condition Jto ual services and rates.
It shall be a co all permits granted by the City Council that the
facilities to be constru the services to be supplied in connection with them
shall be made availabarriers upon equal terms, at equal rates, and without
discrimination of any withstanding, the City shall provide services at its
charge.
Section 3. Severa ili : If any part or provision of this ordinance or application
thereof to any per on or circumstances is adjudged invalid by any court of competent
jurisdiction, suc judgment shall be confined in its operation to the part, provision, or
application d3 tly involved in all controversy in which this judgment shall have been
New Tent Underlined.; (DELETED TEXT BRACKETED]
"V °lla9e with a Past, C# with a Future"
210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 b.dw
Telephone: 907- 283 -7535 / FAX: 907- 283 -3014 11111
1992
MEMO:
TO: Mayor Pat Porter
Council Members Bob Molloy, Joe Moore, Ryan Marquis,
Terry Bookey, and Brian Gabriel
FROM: Vice Mayor Mike Boyle
DATE: May 12, 2011
SUBJECT: Ordinance No. 2559 - 2011 -- Providing free boat launch and parking
services to City of Kenai Residents
At the May 4, 2011 Council meeting, I stated that I was working on an ordinance to
provide free services to City residents related to the City's boat launch facility. I now
propose for introduction Ordinance No. 2559 -2011. This ordinance would require the
City to provide free boat launch and boat launch parking to City residents. My hope is
that the Council would introduce and adopt the Ordinance in time for residents to benefit
from free service during the height of summer recreational activities. The Ordinance
could go into effect as early as July 1 with the typical public hearing schedule. (The
Council could later amend the fee schedule to reflect the "no charge" rule at some point
in the future so that the Code and the fee schedule are consistent.)
The Council has been involved in discussion of the Public Trust Doctrine in the past. As
this issue does not deal with beach access or parking on the beach, I do not feel the
Doctrine applies to this ordinance. By focusing on this service and facility constructed
by the City with taxpayer funds I believe that, if challenged, the ordinance would be
validated. The ordinance is also supported by the otherwise reasonable charges for this
service in general and the fact that residents are supporting the facility through their tax
dollars. Thus, I feel the City should pursue this matter.
MEMORANDUM
pl�t4�19'
CITY OF KENAI
tt od 11
210 FIDALGO AVE., SUITE 200 KENAI, ALASKA 99611.7794
TELEPHONE 907 - 283 -7535
FAX 907 - 283 -3014
4Ynbbry
Ifllll
1992
TO: Linda L. Snow, City Manager
FROM: (_4 Cary R. Graves, City Attorney
DATE: September 5, 2003
RE: Beach Parking Fees and the "Public Trust Doctrine"
The Council requested a memorandum outlining our options regarding differential beach parking
fees, regulation of beach access and the "Public Trust Doctrine." My analysis follows.
The Public Trust Doctrine
The public trust doctrine, originated in Roman Law, was incorporated into English Common
Law and then made part of American Law by the United States Supreme Court in Illinois
Central Railroad v. Illinois, 146 U.S. 387,13 S.Ct. 110, 36 L.Ed. 1018 (1892).
In Illinois Central Railroad, the 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 maters, carry on commerce over them, and have liberty of fishing
therein freed from the obstruction or interference of private parties." Id. at 452.
The doctrine means 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. 1 1988 Alaska Op. Atty. Gen. (inf.) 351. For
example, if the mean high water mark moves inland because of erosion, the public use easement
moves with it.
Some courts have even expanded the doctrine to include the "dry beach" above the ordinary high
water mark. For example, Oregon and Texas have expanded the doctrine to include beach use up
to the vegetation line. State ex rel Thorson v. Hay, 462 P.2d 671 (Or. 1969); Hirtz v. Texas, 974
F.2d 603 (5 " Cir. 1992). Other courts have expanded the public trust doctrine to include access
to publicly owned beaches and recreation. Matthews v. Bay Head Imp. Ass'n, 471 A.2d 355
Linda L. Snow, City Manager
September 5, 2003
Page 3 of 4
of beach and beach - related facilities. Slocumb v. Borough ofBelnian, 569 A.2d 312 (N.J. Super.
L. 1989)
Alaska Constitution and Beach Access
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 deni.:d any citizen of the United States or
resident of the State, except that the legislature may by general law regulate and limit such
access for other beneficial uses or public purposes." This clause has been interpreted to be
Alaska's own version of the public trust doctrine incorporated in our state constitution. Alaska's
Constitution -A Citizen's Guide, p.163 (Gordon S. Harrison 1992).
Restrictions on tideland access must be for a public benefit. In his book, Mr. Harrison gives the
following example:
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 a
nearby private lodge. Supra at 163.
There is strong public policy in favor of public access to the tidelands under both state and
federal law. However, that does not mean the City may not take reasonable regulatory actions
regarding beach access.
The intent of Article VIII, § 14 has been incorporated into the Alaska Statutes (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 of the state to use and have access
to the water for recreational purposes or other public purposes for which the water
is used or cable of being used consistent with the public trust.
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 word "free" in the above passages regards
eliminating access rather than a monetary context.
Since Article VIII, §14 was intended as Alaska's version of the public trust doctrine, it is
reasonable to interpret it and the statutes implementing it in the same manner as the public trust
doctrine has been interpreted. The City may place reasonable conditions on the use of and
access to the tidelands, but it cannot completely prevent them unless such use and access would
be completely unreasonable. 1985 Alaska Op. Atty Gen. (Inf.) 445.
Conclusions
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"V'llaye with a Past, C# with a Future"
210 Fidalgo Avenue, Kenai, Alaska 99611 -7794
Telephone: (907) 283 -7535 / Fax: (907) 263 -3014
www.ci.kenai.ak,us
MEMORANDUM
TO: Mayor Porter and the Kenai City Council
FROM1009 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 opportunity 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 trust for the benefit of all the
people, and establishes the right of the public to fiilly 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.i'
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. "r It was
incorporated into English Common Law and made part of American Law by the United States
t 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,
13tti),,I/www.wsii.ory-lissues/P]Opubstyustdoc.htmI .
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states do have the right to access the wet beach area for "fishing, fowling, and navigation ". I0
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,u
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 scientific study; as open space; as environments which provide food and habitats for birds
and marine life; and as environments which favorably affect the scenery and climate of the
area. "12
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 doctrine. 14
BEACH ACCESS AND FACILITIES FEES
The Public Trust Doctrine does not mean that municipalities may not regulate the wet beach
area In Lusardi v. Curtis Point Property 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-
mentally fragile 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. IS The general rules are
that the fees must be reasonable, 16 not discriminate against out of town residents, 7 and designed
to fund the maintenance and operation of the beach area's In Avon, the New Jersey Supreme
Court noted that, "while municipalities my validly charge reasonable fees for the use of their
"Opinion of Justices. 437 A.2d 597 (Me. 1981); Bell v. Inhabitants of Wells, 1957 Me. Super. LEXIS 256 (Me.
Super. Ct. Sept. 14 1987); Opinion of Justices, 313 N21d 561 (Mass. 1974).
11 Opinion of Justices, 139 N. H. 82 (1994).
1= California State Land Commission, California's Rivers, A Public Trust Report- Executive Summary vi (1993).
s Shively v. Bowlhy, 152 U.S. 1, 26, (1894).
Robert George, Comment: The "Public Access Doctrine": Our Constitutional Right To Sun, Surf, and Sand. I l
Ocean & Coastal Law Journal 73, 77 (200512006).
15 State of Wisconsin v. Linn, 556 N. W. 2d 394 (Wise. App. 1996)(Boat launch fees allowed); City of New Smyrna
Beach v. Board of Trustees, 543 So. 2d 824 (Fla. Dist. 1989)(Upholding beach access fee for motor vehicles);
6 Borough of Neptune Ciy v. Borough of Avon -by -the Sea, 294 A2d 47 (NJ, 1972)
Van Ness v. Borough of Deal, 393 A.2d 571, 572 (N.J. 1978).
"Slocum v. Borough of Belmar, 569 A.2d 312,3 36 (N.J. Super. Ct. 1989)(Public access fee allowed to fund
maintenance of beach area),
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apply to other property owned by the city 30 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 all 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 purpose." 32
Restrictions on tideland access must be for 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.s33 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 of the 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 public trust.
AS 38.05.128(4) 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 76 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. 1138
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
3" William H. Dame, Jr. Annotation, Power of municipality to charge nonresidents higherfees than residents for -
use of municipal facilities. 57 A.L.R. 3d 998.
31 Owsichekv. Guide Licensing& Control Board 763 P.2d 483, 494 (Alaska 1998) Thepubtic's legal interest in use
the wet beach is sometimes referred to as the jus publicum.
31 Seejus publicum,Biack's Law Dictionary, (S" Ed. 1979).
33 Gordon S. Harrison, Alaska's Constitution -A Citizen's Guide, p.163 (Third Edition 1992).
u Wernbergv. State, 516 P.2d 1191, 1198 -1199 (Alaska 1973).
" 1985 Alaska Op. Any, Gen. (Inf.) 445
36 755 P.2d at 1121.
3' 152 U.S. at 26; 755 P.2d at 1121.
31 Gregory F. Cook, The Public Trust Doctrine in Alaska, Vol 8(1) The Journal of Environmental Law and
Litigation 1 (1993)(The author was kind enough to discuss his article with me via telephone from Juneau on May 9,
2007).
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Public Trust Doctrine and Differential Fees U:\My DocumentACounciMublic Trust Memo 0507.doe
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OITi OF KENAI
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210 FIDALGO AVE., SUITE 200 KENAI, ALASKA 99611 -7794
TELEPHONE 907 - 283 -7535
_ FAX 907- 283 -3014 MO
111911!
MEMORANDUM
TO: Mayor Williams and Councilors
FROM: Ctz Cary R. Graves, City Attorney
DATE: September 9, 2004
RE: Beach Parking Fee Discounts for City Residents
Councilor Moore asked me to research the feasibility of giving city residents a discount for
beach parking fees during dipnet season.
1. The Public Trust Doctrine
The public trust doctrine originated in Roman law. It was incorporated into English Common
Law and made part of American Common Law by the United States Supreme Court in Illinois
Central Railroad v. Illinois, 146 U.S. 387, 12 S.Ct. 110, 36 L.Ed 1018 (1892).
In Illinois Central Railroad, the Court held that states hold tidelands (the land in between the
mean high and mean low water marks) "in trust for the people of the state that they may enjoy
the navigation of the waters, carry on commerce over them, and have the liberty of fishing
therein freed from the obstruction or interference of private parties." Id at 452. The doctrine
means that there is a public access easement between the mean high and mean low water marks.
The Alaska Supreme Court recognized the public trust doctrine in CWC Fisheries, Inc. V.
Bunker, 755 P.2d 1115 (Alaska 1988). Lands conveyed by states to municipalities and private
parties are conveyed subject to the public trust doctrine. 1989 Alaska Op. Atty. Gen (Inf.) 309,
1988 Alaska Op. Atty. Gen. (Inf.) 351. Thus, the beaches on the north and south sides between
the mean high and mean low water marks are subject to the public trust doctrine.
It is important to note that the City does not charge beach access fees; we charge parking fees for
areas on both the north and south sides. The general rule is that fees charged in an area covered
by the public trust doctrine cannot discriminate between city and non -city residents. Hyland v.
Borough ofAllenhurst, 393 A.2d 579 (N.J. 1978); Van Ness v. Borough of Deal, 393 A. 2d 571
(N.J. Cty Ct. 1973). Some courts have applied that non - discrimination rule to city facilities
above the mean high tide line if the facilities are needed to access the beach. Zaroogian v. Town