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State v. Prince (8/16/2002) ap-1817
State v. Prince (8/16/2002) ap-1817
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No.
A-7681
Appellant, )
Trial Court No. 4BE-99-747 Cr
)
v. )
) O P I N
I O N
DAVID T. PRINCE, )
)
Appellee. )
[No. 1817 August 16, 2002]
)
Appeal from the Superior Court, Fourth Judi
cial District, Bethel, Dale O. Curda, Judge.
Appearances: Douglas H. Kossler, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellant. John B. Salemi, St. Johns,
Michigan, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Under Alaskas local option law, AS 04.11.491, the
voters of a municipality may choose to prohibit the sale, the
importation, or even the possession of alcoholic beverages within
their city. The voters of St. Marys have exercised this
authority; it is unlawful to bring alcoholic beverages into St.
Marys or to possess alcoholic beverages within its boundaries.
The question presented in this appeal is whether this
ban on alcoholic beverages can be enforced on state-owned land
that lies within the boundaries of St. Marys. The answer is yes.
Enforcement of the municipal ban on the importation and
possession of alcoholic beverages is fully consistent with state
law. Indeed, it is state law that authorizes local voters to
restrict or ban alcoholic beverages within their communities, and
it is state law that defines and punishes the offense of
violating such local bans. Accordingly, the ban on alcoholic
beverages applies to state-owned property lying within the
municipal boundaries of St. Marys.
Underlying facts, and explanation of our map
The municipality of St. Marys lies on the Andreafsky
River in western Alaska, about three miles upstream from where
the Andreafsky flows into the Yukon River. As authorized by AS
04.11.491, the voters of St. Marys have approved a ban on the
importation and possession of alcoholic beverages within their
municipality.
On the night of June 28, 1999, the St. Marys police
received a tip from the Alaska State Troopers that someone was
bringing alcoholic beverages to St. Marys by boat via the
Andreafsky River. The boat described by the troopers arrived in
St. Marys early the next morning. The St. Marys police found the
boat with its bow on the beach and its stern in the river. Two
men David T. Prince and a co-defendant were lying in the boat,
either asleep or passed out from intoxication.
The officers observed cartons of three different brands
of beer in the boat. A subsequent search of the boat yielded 119
bottles of whiskey, 12 bottles of rum, and 8 bottles of liqueur.
Prince was charged with two felonies under state law:
importation of 12 liters or more of distilled spirits into a
municipality that has prohibited importation of alcoholic
beverages, and possession of alcoholic beverages for sale in a
municipality that has prohibited sale of alcoholic beverages.1
The attached map will help readers understand the
discussion that follows. This map depicts the portion of the
Andreafsky River and adjacent river bank where Princes boat
landed and was seized. The dark black lines show the pertinent
municipal boundaries of St. Marys as certified in March 1981 by
the Alaska Department of Community and Regional Affairs. (This
department has since been renamed the Department of Community and
Economic Development.)2
The Department used a metes and bounds description when
it certified the boundaries of St. Marys; but in this case, a
picture is easily worth the 468 words of that verbal description.
The X and the accompanying initials were placed on the
map by St. Marys city manager Walton Smith, who appeared as a
witness at the evidentiary hearing in this case. Smith drew the
X to mark the spot where he observed Princes boat on the morning
in question.
The scale of this map is approximately 1 inch = 1 mile.
(The numbered boxes represent sections within Range 76 West,
Township 23 North, Seward Meridian. These sections are slightly
less than 1 mile on each side.)
Place Map Here
The superior courts dismissal of the indictment
Following his indictment, Prince asked the superior
court to dismiss the charges. He contended that he had committed
no punishable act within the municipality of St. Marys.
Prince conceded that he had brought liquor with him in
the boat, but he claimed that neither he nor his boat had ever
been within the boundaries of St. Marys. Specifically, Prince
pointed out that the State of Alaska owns the portion of the
river and the river bank where his boat landed, and he argued
that a municipality can not assert jurisdiction over land owned
by the State of Alaska.
Prince acknowledged that the State had leased this
river land to St. Marys (for construction of dock improvements),
but he contended that this land could not be part of the city
itself because the State remained owner of the land in fee
simple. Princes attorney summarized his argument as follows:
Defense Attorney: A conviction for
importation [or possession] requires, by
definition, that the accused actually enter
the community in which possession of alcohol
has been banned. ... A person may stand, or
float, outside a municipality where
possession [of alcoholic beverages] is banned
by local option till doomsday and still not
commit a crime. The actus reus of the crime
is crossing the municipal boundary. As Mr.
Prince did not cross the boundary, he did not
commit the crime.
In response to Princes motion, the State asked the
superior court to hold an evidentiary hearing so that the State
could establish that the municipal boundaries of St. Marys
encompassed the portion of the Andreafsky River and adjacent
shore where Princes boat was found. The State did, in fact,
present testimony and exhibits to this effect.
In particular, the State introduced the official
Certification of Boundaries [of the] City of St. Marys a
document issued by the Department of Community and Regional
Affairs in 1981, which gives a metes and bounds description of
the municipal boundaries. The State also introduced two section
maps that physically depict these boundaries. Finally, the State
presented two witnesses who identified the spot where Princes
boat landed on the north bank of the Andreafsky River a spot
well within the municipal boundaries. Indeed, as shown in our
accompanying map, the city of St. Marys extends south across and
beyond the Andreafsky River for more than another mile.
But Princes attorney declared that all this evidence
was ultimately irrelevant:
Defense Attorney: The issue here is
quite simple. ... [T]he Submerged Lands Act
of 1953 ... ceded to the states ownership of,
and title to, all lands beneath navigable
state waterways. The Submerged Lands Act was
made applicable to Alaska at the time of
statehood. ... The City of St. Marys may
define its borders to include the [Andreafsky
River], but it cannot annex what it does not
own. The boundaries of the City may extend
over the river, but they do not include the
river [itself] and the lands below [the] mean
high water [line].
In other words, Prince argued that even though state-owned land
may lie within the ostensible boundaries of a municipality, the
state-owned land constitutes an enclave where municipal laws
and, in particular, municipal bans on alcohol hold no sway.
After considering this matter, Superior Court Judge
Dale O. Curda agreed with Prince. In his written decision
dismissing the indictment, Judge Curda adopted Princes contention
that St. Marys could not exercise jurisdiction over land owned by
the State:
Since [the] lands [in question] are owned by
the state ... , they cannot be annexed by
the city. At the time the alcohol was
seized, Princes boat was anchored on ...
state land, not land belonging to the City of
St. Marys. ... [B]ecause the state
presented no ... evidence [that] Prince
entered the city in possession of alcohol,
the indictment must be dismissed.
The parties arguments on appeal, and our analysis of
Judge Curdas decision
The State now asks us to reverse the superior courts
dismissal of the indictment.
There is some question as to whether the State is
entitled to appeal the superior courts dismissal of the
indictment. One other charge against Prince a misde
meanor was not dismissed and remains pending. Thus,
the superior courts dismissal of the indictment is
arguably not a final order. However, we conclude that
this issue is moot. Even assuming that the State had
no right to appeal the dismissal of the indictment,
this court has the power to treat the States ostensible
appeal as a petition for review.3 Given the legal
issue presented here, we would grant the petition and
decide the validity of the indictment.
The State concedes that the land at issue is owned by
the State.4 However, the State contends that the St. Marys ban
on alcoholic beverages applies to all land within its municipal
boundaries, even land owned by the State.
Prince, for his part, has abandoned his contention that
state-owned land is exempt from municipal law. But rather than
conceding that the superior court committed error, Prince now
argues that Judge Curda did not rely on this theory when he
dismissed the indictment. Prince asserts that Judge Curda did
not base his decision on the fact that the State owned the land
in question, but rather on the conclusion that the State failed
to prove that this land was physically located within the
boundaries of St. Marys.
We reject Princes interpretation of Judge Curdas
ruling. In Princes motion to dismiss the indictment, he did not
assert that his boat was found outside the boundaries of St.
Marys except in the technical sense that the boat was on state-
owned land and that this state-owned land constituted a protected
enclave within the municipal boundaries. We concede that Judge
Curdas decision is worded ambiguously in places, but he was not
responding to the argument that Prince makes on appeal. Rather,
he was responding to Princes argument that, as a legal matter,
state-owned land is exempt from municipal jurisdiction.
Moreover, even if Prince were correct i.e., even if
Judge Curda found that Princes boat did not land within the
physical boundaries of St. Marys this finding would be clearly
erroneous. As can be seen from our map, the boundaries of St.
Marys extend for more than a mile in any direction from the spot
on the north bank of the Andreafsky where Princes boat landed.
Thus, if Prince is to prevail in this appeal, it must
be under the theory that he advanced in the superior court and
that he now declines to argue: the theory that state-owned land
within the boundaries of a municipality is exempt from a
municipal ban on the importation and possession of alcoholic
beverages.
A municipality can enforce its ordinances on state or
federal land within its boundaries unless the state or
federal government has taken action to exempt its
property from local control
Generally speaking, a municipalitys authority
to enforce its ordinances on land within its boundaries
does not depend on the identity of the landowner.
(Conversely, when a municipality purchases land outside
its borders, it cannot enforce its ordinances on that
land except as authorized by state law. See AS
29.35.020.)
The situation is more complicated when the
land is owned by the state government (or the federal
government). Because the state and federal governments
possess a superior sovereignty, they are entitled to
enact laws that exempt their property from municipal
authority in whole or in part. But it is not state or
federal ownership of the land that creates this
exemption from municipal authority. Rather, it is the
state and federal governments exercise of their law-
making power their power to define and limit the scope
of a subordinate sovereigns political authority. Thus,
when the State of Alaska has not expressly or impliedly
limited municipal authority to enforce ordinances on
state-owned land, that land remains subject to
municipal authority to the same extent as any other
landowners property.
The United States Supreme Court discussed
this principle of law in Ft. Leavenworth Railway Co. v.
Lowe, 114 U.S. 525, 5 S.Ct. 995, 29 L.Ed. 264 (1885).
The question was whether the State of Kansas could levy
property taxes on a railroad located within a federal
military reservation land owned by the federal
government and set aside for future military uses. The
railroad argued that because the land was owned by the
federal government, the land (and the property on it)
was exempt from state tax laws. The Supreme Court
rejected this contention:
The land constituting the [military]
reservation was part of the territory
acquired in 1803 by cession from France
[ i.e., in the Louisiana Purchase.] [U]ntil
the formation of the state of Kansas, and her
admission into the Union, the United States
possessed the rights of a proprietor, and had
political dominion and sovereignty over [this
land]. ... But in 1861[,] Kansas was
admitted into the Union upon an equal footing
with the original states; that is, with the
same rights of political dominion and
sovereignty, subject like them only to the
constitution of the United States. Congress
might undoubtedly ... have stipulated for
retention of ... political authority ... over
the [military] reservation ... ; that is, it
could have excepted the place from the
jurisdiction of Kansas, as one needed for the
uses of the [federal] government. But ... no
such stipulation or exception was made. The
United States, therefore, retained ... only
the rights of an ordinary proprietor; except
[for] that part of the tract, which was
actually used for a fort or military post,
[which would put that part] beyond such
control of the state, by taxation or
otherwise, as would defeat its use for those
purposes. [But so] far as the land
constituting the reservation was not used for
military purposes, the possession of the
United States was only that of an individual
proprietor. The state could have exercised,
with reference to it, the same authority and
jurisdiction which she could have exercised
over similar property held by private
parties.
Id., 114 U.S. at 526-27, 5 S.Ct. at 996, 29
L.Ed. at 265.
The Supreme Court of Virginia
reached a similar conclusion in Smith v.
Commonwealth, 248 S.E.2d 135 (Va. 1978). The
defendant in Smith raped and then murdered a
woman along the banks of the James River.5
The defendant acknowledg[ed] that the crime
was committed within the geographical
boundaries of [Virginia], but he challenged
the jurisdiction of the Virginia courts to
try him, since the land in question is owned
by the United States. Smith argued [that] it
was incumbent upon the Commonwealth to show
that the United States did not have exclusive
jurisdiction over crimes committed [on this
land].6 The Virginia Supreme Court answered
as follows:
It is well settled ... that the mere
ownership of land by the United States does
not divest a state of its jurisdiction over
that land, and that the nature and extent of
the federal jurisdiction is dependent upon
the consent of the state. James v. Dravo
Contracting Co., 302 U.S. 134, 58 S.Ct. 208,
82 L.Ed. 155 (1937)[.] Accord, Waltrip v.
Commonwealth, 189 Va. 365, 53 S.E.2d 14
(1949). The United States was ceded
concurrent jurisdiction by statute over
crimes committed on land to which it holds
title within [this] Commonwealth. [U.S.] Code
7.1-21(1) (Replacement Vol. 1973). ... In
light of the cession [of concurrent
jurisdiction] by statute, it is presumed that
the Commonwealth retains concurrent
jurisdiction over the area embracing the
locus of the crime. To hold otherwise, would
be to require the Commonwealth to prove the
negative ... . Since defendant adduced no
evidence to show the affirmative, the
presumption prevails and the trial courts
[denial of] the motion to dismiss was proper.
Smith, 248 S.E.2d at 139-140.
These cases stand for the
proposition that federal ownership of land
does not, per se, forbid a state from
exercising its political authority over the
land. An analogous rule applies to municipal-
state relations: state ownership of land
does not, per se, forbid a municipality from
exercising political authority over the land.
The Ohio Court of Appeals recently
addressed this issue in City of Columbus v.
Spingola, 759 N.E.2d 473 (Ohio App. 2001).
The city had enacted an ordinance that
forbade acts of ethnic intimidation. The
issue was whether the city could enforce this
ordinance against a defendant who committed
an act of intimidation on land owned by the
State of Ohio the grounds of the Ohio
Statehouse. The court concluded that, under
the home rule provisions of Ohio law,
municipalities [are authorized] to adopt and
enforce police regulations [on all land]
within their territorial limits, provided the
regulations are not in conflict with [the]
general laws [of the State of Ohio].7
Finally, in People v. Weiner, 378
N.Y.S.2d 966 (N.Y. City Crim. Ct. 1976), the
defendant was charged with criminal mischief
for defacing a wall at the United Nations
Building. He argued that the City of New
York had no jurisdiction to prosecute him
because the United Nations grounds are owned
by that international organization.8 The
court concluded that the international
ownership of the property did not deprive the
City of New York of jurisdiction over the
person of the defendant or the subject matter
of the offense because, under the terms of a
treaty between the United States and the
United Nations (a treaty known as the
Headquarters Agreement) criminal infractions
committed on property located within the
United Nations headquarters district are, for
jurisdictional purposes, to be deemed crimes
committed against property located in New
York County.9 The court additionally noted
that, in [the] absence of any rules or
regulations of the United Nations in conflict
with the local law, the local law applies.10
We now turn to the superior courts
ruling in the present case.
In Alaska, state-owned land within a municipality is
not exempt from state statutes that prohibit
people from violating a municipal ban on the
importation and possession of alcoholic beverages
We have been discussing the general question
of whether a municipality can enforce its
ordinances on state or federal land within its
boundaries. But Princes case does not raise this
precise issue. It is true that the municipality
of St. Marys has enacted a local ban on the
importation and possession of alcoholic beverages,
but the municipalitys power to enact such a ban is
granted by state law (AS 04.11.491), and that ban
is enforced by state law. Prince was charged with
violating state criminal statutes: AS
04.16.200(e), which makes it a felony to transport
or bring alcoholic beverages into a municipality
that has prohibited the importation of alcoholic
beverages, and AS 04.16.200(b), which makes it a
felony to possess alcoholic beverages in a
municipality that has banned their possession.
Thus, the question in Princes case is whether
people on state land are subject to state statutes
in particular, the statutes that enforce municipal
bans on the importation and possession of
alcoholic beverages. The answer is obviously yes.
The only remaining issue is the scope of
these state criminal statutes. When the Alaska
legislature chose to enforce municipal bans on
alcoholic beverages by making it a crime under
state law to violate these local bans, did the
Alaska legislature intend to exempt people whose
activities occur on state land located within
municipal boundaries?
As explained earlier in this opinion, AS
04.11.491 authorizes municipal voters to enact local
option ordinances ordinances that restrict or prohibit
the sale, importation, or possession of alcohol.
Moreover, AS 29.35.080 expressly recognizes the
authority of municipalities to regulate the possession,
barter, sale, importation, and consumption of alcoholic
beverages as prescribed in the local option statutes.
Thus, a properly enacted municipal ban on alcoholic
beverages does not conflict with state law; rather, it
is consonant with state law.
Alaska law does contain provisions that limit
the reach of a municipalitys political authority over
state land. See, for example, AS 29.45.030(a)(1),
which prohibits a municipality from taxing property
within its borders if that property is owned by the
State, by the University of Alaska, by the Mental
Health Trust, or by another municipality. But there is
no similar statute that limits the reach of a municipal
ban on the importation or possession of alcoholic
beverages. Nowhere in the Alaska Statutes can we find
any indication that the Alaska Legislature viewed state-
owned land within municipalities as havens where people
might go to avoid being prosecuted under state
criminal law for violating a properly enacted local
ban on the importation and possession of alcoholic
beverages.
St. Marys is a municipality whose voters have
exercised their right under AS 04.11.491 to ban
alcoholic beverages. Prince is charged with violating
state law by importing alcoholic beverages into St.
Marys and possessing these beverages within the
municipalitys boundaries. Even though Princes
activities occurred on state-owned land within the
municipality, he is still subject to the state statutes
that forbid people from violating municipal
restrictions on the importation and possession of
alcoholic beverages. The superior court should have
denied Princes motion to dismiss the indictment.
Conclusion
The judgement of the superior court is
REVERSED. The indictment is reinstated, and this case
is remanded to the superior court for further
proceedings on that indictment.
_______________________________
1 AS 04.16.200(e) and AS 04.16.200(b), respectively.
2 Under Alaska law, municipal boundaries (and any changes to
those boundaries) must be approved by the Local Boundary
Commission, an arm of the Department of Community and Economic
Development. See AS 29.05.060-100, AS 29.06.040-050, and
AS 29.06.090-130.
3 See Puhlman v. Turner, 874 P.2d 291, 293 n.3 (Alaska
1994); Juneau v. Thibodeau, 595 P.2d 626, 631 (Alaska
1979); Moore v. State, 895 P.2d 507, 509 n.2 (Alaska
App. 1995).
4 In the Submerged Lands Act of 1953, 43 U.S.C. 1301-1356,
the federal government gave the states title to all lands lying
beneath navigable state waterways and upon the adjacent shores,
up to the ordinary high water mark. When Alaska became a state,
it received the benefits of this Act. See the Alaska Statehood
Act, Public Law 85-508, 6(m), 72 Stat. 339, 343 (1983). Because
the Andreafsky is a navigable river, the State owns the land
below the river and along its shores, up to the mean high water
line including the spot where Princes boat landed. The States
ownership of this land was confirmed by a plat that Prince
introduced at the evidentiary hearing in the superior court.
5 Smith, 248 S.E.2d at 135.
6 Id.
7 Spingola, 759 N.E.2d at 477.
8 Weiner, 378 N.Y.S.2d at 969.
9 Id. at 972.
10Id.
