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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. City of St. Paul v. State, Dept. of Nat. Resources (04/21/2006) sp-6005
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| CITY OF SAINT PAUL, | ) |
| ) Supreme Court No. S- 11299 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-00-3731 CI |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| DEPARTMENT OF NATURAL | ) |
| RESOURCES, TANADGUSIX | ) No. 6005 - April 21, 2006 |
| CORPORATION, and PRIBILOF | ) |
| BERING SEAFOODS, LTD., | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Reese, Judge.
Appearances: Ronald L. Baird, Office of
Ronald L. Baird, Anchorage, for Appellant.
John T. Baker, Assistant Attorney General,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for Appellee State of
Alaska. Terrance A. Turner and Natalie A.
Cale, Turner & Mede, P.C., Anchorage, for
Appellees Tanadgusix Corporation and Pribilof
Bering Seafoods, Ltd.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
I. INTRODUCTION
The City of Saint Paul applied to the Alaska Department
of Natural Resources for a conveyance of state-owned tidelands in
Village Cove harbor on St. Paul Island, asking that the boundary
of the tidelands be drawn according to a 1986 BLM survey. The
citys proposed method of describing the tidelands boundary was
opposed by the owner of the adjoining uplands, Tanadgusix
Corporation, which contended that the boundary should follow the
current mean high water line, to be established by conducting a
new survey. The Commissioner of Natural Resources approved the
citys request for conveyance but chose to use Tanadgusixs method
for describing the conveyed tidelands boundary. The city
challenges this ruling on appeal, claiming that the department
lacked authority to decide the disputed boundary through
administrative adjudication and that the dispute could only be
resolved in a judicial action. But in our view the department
did not adjudicate the disputed boundary; to the contrary, by
using the statutory definition of tidelands to describe its
conveyance, the department properly avoided addressing the
boundary dispute, and so left the point open for judicial
resolution if it arises in a future court action. Accordingly,
we affirm the departments ruling.
II. FACTS
The City of Saint Paul is located on St. Paul Island in
the Bering Sea. On the southern portion of the island, a narrow
peninsula forms a natural cove called Village Cove; a harbor for
commercial fishing vessels has been built within the Cove. The
submerged lands in Village Cove harbor and their surrounding
tidelands are owned by the State of Alaska.1 In 1983-84 the
Bureau of Land Management surveyed parts of St. Paul Island,
including the area around Village Cove, and mapped a meander
line, approximating the seaward boundary of the uplands in the
vicinity of Village Cove harbor.2 Because the BLM did not file
its survey until 1986, the meander line is commonly called the
1986 BLM meander line.3
In 1984 the city obtained a permit from the Army Corps
of Engineers to build a breakwater for Village Cove harbor, which
is frequently hit by severe storms. The BLM permit further
allowed the city to build a haul road along the shoreline so that
the city would have access to the construction site for the
breakwater. The city built the haul road and the breakwater in
June 1984, but a storm washed out the breakwater that November.
The city rebuilt the breakwater in 1988. During the next four
years, the state issued long-term leases for tracts of its
tidelands in Village Cove harbor to the city and to Tanadgusix
Corporation,4 which owns most of the uplands surrounding the
harbor.5
Several years later, in 1995, the legislature enacted a
law allowing municipalities to acquire the states interest in
tidelands located within or contiguous to the municipalities
borders.6 Under AS 38.05.825, a municipality may apply to the
Department of Natural Resources for a conveyance of tidelands; if
the municipalitys application meets certain criteria, the
department must grant the request for conveyance unless the
Commissioner of Natural Resources expressly determines that the
states interest in retaining the tidelands clearly outweighs the
municipalitys interest.7 The conveyance transfers to the
municipality the states right to use and manage the tidelands,
but does not confer the right to sell or dispose of the lands or
exempt them from the public trust doctrine.8
In response to the legislatures enactment of AS
38.05.825, the City of Saint Paul submitted an application to the
department in 1997, seeking a conveyance of all the tidelands in
Village Cove. Tanadgusix opposed the citys application,
advancing various reasons why the conveyance might not be in the
public interest and expressing concern over the future status of
the tideland Tanadgusix leased from the state. The department
nonetheless issued a preliminary report recommending approval of
the tideland conveyance. The report also recommended that the
boundary of the conveyed tideland should follow the 1986 BLM
meander line.
Tanadgusix submitted supplemental comments, opposing
the departments preliminary report on several grounds. One
objection raised by Tanadgusix was that the 1986 meander line no
longer reflected the current tideland boundary because the mean
high water line had gradually changed since the BLM completed its
survey. As a result, Tanadgusix asserted, using the BLM 1986
meander line to describe the conveyance would convey significant
portions of . . . uplands to the City in the guise of Tidelands.
After considering these additional comments, the
commissioner issued a formal decision approving the tideland
conveyance under AS 38.05.825. The decision rejected Tanadgusixs
objections to the 1986 meander line, noting that [t]he 1986 BLM
meander line is the most practicable line which approximates the
seaward boundary [separating the tidelands from the uplands].
Tanadgusix asked for reconsideration, renewing its
contention that the 1986 meander line would not correctly reflect
the current boundary separating the conveyed tidelands from
Tanadgusixs adjoining uplands. In responding to Tanadgusixs
arguments on reconsideration, the city urged the department to
adhere to its decision to use the 1986 meander line, alleging
that any recent changes to the mean high water line should be
attributed to a dredging operation by Tanadgusix, in which the
corporation removed materials from an area of the harbor that it
leased from the state and dumped them onto tidelands adjoining
the corporations upland property. According to the city, these
operations artificially expanded the borders of Tanadgusixs
uplands by altering the mean high water line. Because an uplands
owner is only entitled to benefit from a boundary change
occurring by accretion9 that is, as gradual, naturally occurring
change in the mean high water line the city reasoned that the
boundary between the tidelands and uplands in Village Cove harbor
should properly remain as established in the 1986 BLM meander
line.10
In reply, Tanadgusix denied placing any fill onto the
tidelands adjoining its property, insisting that recent increases
in its uplands were caused by gradual accretion, thus making the
current mean high water line the most accurate measure of the
tidelands the state proposed to convey.
Tanadgusix also asked for an evidentiary hearing on
this issue. The commissioner granted Tanadgusixs request to
reconsider his decision on this point but declined to hold an
evidentiary hearing, ruling instead that the parties would only
be allowed to present oral arguments. After hearing arguments,
the department left the record open during an information
gathering phase, so that both parties could submit supplemental
information documenting their positions. During this phase,
engineers from each side were allowed to meet informally with the
departments engineers.
Upon reconsidering the case in light of the parties
oral arguments and supplemental materials, the commissioner
issued a final decision on reconsideration that confirmed his
original decision to convey the tidelands in most respects, but
modified the departments method of describing the conveyances
boundaries. Finding no conclusive evidence that a significant
amount of fill was placed on the tidelands below the MHW [mean
high water] line so as to legally fix the boundary at some
location other than the current MHW line, the commissioner
ordered that the MHW line to be used as the boundary of the
tideland conveyance shall be the current MHW line, and directed
that a new survey be established in accordance with 11 AAC
53.120(1)11 to determine this line.
The city unsuccessfully appealed to the superior court
and then filed this appeal.
III. DISCUSSION
On appeal the city challenges the commissioners
decision that the boundary of the tideland conveyance should be
determined by a new survey establishing the current mean high
water line in the vicinity of Village Cove harbor, instead of by
using the 1986 BLM meander line. The city builds its argument on
the premise that the commissioners choice of the current mean
high water line over the 1986 BLM meander line amounts to a
decision adjudicating a boundary dispute between the city and
Tanadgusix. Insisting that boundary disputes can be resolved
only by courts, the city asserts that the commissioner lacked
authority to adjudicate this boundary dispute. Alternatively, the
city argues, even if the commissioner did have authority to rule
on this point, he erred in denying an evidentiary hearing and in
failing to make adequate findings.
Tanadgusix and the state respond by questioning the
citys premise that the commissioners decision amounted to an
adjudication; they contend that the commissioner did not actually
adjudicate a boundary dispute, because the state had no dispute
with Tanadgusix, and there could not have been a boundary dispute
between the city and Tanadgusix since the city did not yet own
the tidelands.
We agree that the commissioners decision was not an
adjudication, though not for the reasons advanced by Tanadgusix
and the state. The core issue addressed by the commissioner was
whether the state should convey its tidelands to the city under
AS 38.05.825. As already mentioned, this statute required the
department to convey the states interest in using these tidelands
unless the commissioner expressly found that the public interest
in retaining state ownership in the land clearly outweighs the
municipalitys interest in obtaining the land.12 Here, Tanadgusix
objected to the requested conveyance; the controversy over the
precise boundary of the requested conveyance arose as a
collateral issue in Tanadgusixs effort to persuade the
commissioner that conveying the tidelands would not serve the
public interest. No provision in AS 38.05.825 authorized the
commissioner to adjudicate this collateral point. Indeed, this
statute does not seem to require the department to take any
adjudicative action at all. We have typically described
administrative best-interest findings like the one required in
AS 38.05.825 as involving executive action rather than
administrative adjudication.13
The manner in which the department reached its decision
in this case tends to confirm that its action was not an
adjudication. In Johnson v. Alaska State Department of Fish and
Game, we described the essential elements of an administrative
adjudication:
The essential elements of adjudication
include adequate notice to persons to be
bound by the adjudication, the parties rights
to present and rebut evidence and argument, a
formulation of issues of law and fact in
terms of specific parties and specific
transactions, a rule of finality specifying
the point in the proceeding when
presentations end and a final decision is
rendered, and any other procedural elements
necessary for a conclusive determination of
the matter in question.[14]
Here, after receiving the citys application,
considering the departments preliminary findings and
recommendation, and reviewing an initial round of comments and
information from interested parties, the commissioner issued a
final finding and decision granting the citys request for
conveyance. While this decision adopted the 1986 BLM meander
line as the appropriate method for describing the scope of the
tidelands conveyance, the commissioner expressly cautioned that
his choice of this method was not a conclusive determination of
the conveyances precise boundaries:
The 1986 BLM meander line is the most
practicable line which approximates the
seaward boundary [of the conveyed tidelands].
The meander line does not establish the line
of ownership; rather, it is the means of
ascertaining the quanti[t]y of land embraced
in the survey.
(Emphasis added.)
On reconsideration, the city and Tanadgusix submitted
additional comments and supporting documents regarding their
views of the proper tidelands boundary. But no notice of
disputed factual issues was issued by the department; no
evidentiary hearing was conducted; neither party had an
opportunity to cross-examine the others evidence; and officials
from the department informally engaged in off-record, ex parte
consultations with various experts from each of the parties.
The commissioner ultimately chose to use the current
mean high water mark as the best method to describe the conveyed
tidelands in making the conveyance. Yet at the same time, the
commissioner made it clear that this method of description was
not meant to establish a fixed and immutable boundary: The MHW
[mean high water] line is an ambulatory boundary, which moves as
the natural shoreline changes resulting from accretion and
erosion. And nothing else in the commissioners decision suggests
that he intended to foreclose future action to resolve the
incipient boundary dispute between the city and Tanadgusix. To
the contrary, after finding no conclusive evidence that a
significant amount of fill was placed on the tidelands, the
commissioner in effect avoided a definitive resolution of the
dispute by choosing to rely on the statutory definition of
tidelands the current MHW line, as it exists at the time of
survey15 a generic and flexible definition. For purposes of
complying with the requirements of AS 38.05.825, the
commissioner had no need to be more precise, since the statute
simply required a conveyance of tidelands within or contiguous to
the citys boundaries.16
In sum, because the boundaries of tideland are
statutorily defined in general terms17 and AS 38.05.825 simply
calls for a conveyance of eligible tidelands, the statute did not
require the commissioner to resolve the parties incipient
boundary dispute and it does not appear that the commissioner
attempted to do so. The commissioners decision on
reconsideration properly recognized this distinction.
We thus reject the citys characterization of the
commissioners decision on reconsideration as an adjudication of a
boundary dispute between the city and Tanadgusix. Our conclusion
on this point allays one of the citys main concerns: the
possibility that the commissioners ruling might be construed in
the future to effectively prejudge the outcome of any subsequent
judicial proceedings concerning the boundary of the citys
tidelands. To be sure, our cases have followed the modern and
now generally accepted view that the doctrine of res judicata may
be applied to adjudicative determinations made by administrative
agencies.18 But we have consistently recognized that this
doctrine can extend to an administrative agencys ruling only if
the administrative decision resulted from a procedure that seems
an adequate substitute for judicial procedure so that according
preclusive effect to the administrative decision would be fair.19
Here, because the commissioners decision on reconsideration was
not an administrative adjudication and lacked the procedural
safeguards to make it an adequate substitute for judicial
procedure, it could not properly be given preclusive effect in
post-conveyance litigation to resolve a boundary dispute between
the city and Tanadgusix.20 Accordingly, we hold that the
commissioners decision will not affect the procedural rights of
either the city or Tanadgusix in future boundary litigation.21
Our ruling on this point raises one further question
involving implementation. The view we adopt today suggests that,
when a dispute arises over the extent of tidelands included in an
AS 38.05.825 conveyance, the proper approach for the state to
take will generally be to assign to the municipality, in
conjunction with the conveyance, the states claim over the
disputed parcel. This approach will allow the municipality to
establish the precise boundaries of the conveyed tidelands by
pursuing a judicial action after the conveyance occurs. But the
wording of the commissioners decision, if rigidly applied, might
make this approach problematic. The decision provides that the
. . . line to be used as the boundary of the tideland conveyance
shall be the current MHW line. (Emphasis added.) If the state
actually makes the conveyance by a deed limited to the current
MHW line, then an argument might be raised in the post-conveyance
action that the boundaries described in the citys deed define the
full extent of the citys property regardless of whether those
boundaries might describe as uplands property that should have
been conveyed to the city as tidelands. To avoid this potential
problem, we think that if a controversy over boundaries arises
after the new survey is completed, it would be appropriate and
permissible for the state to convey the disputed property to the
city via quitclaim pending adjudication of the disputed
boundaries.
IV. CONCLUSION
For these reasons, we AFFIRM the commissioners decision
to uphold the tidelands conveyance using the current mean high
water line as established by a survey to be conducted in
accordance with 11 AAC 53.120(1).
_______________________________
1 The state acquired all submerged and tide lands within
its territory from the federal government upon being admitted to
statehood. P.L. 85-503, 6(m), 72 Stat. 339, 343 (1958)
(applying the Submerged Lands Act of 1953 to Alaska).
2 A meander line does not mark the precise boundary line
between tidelands and uplands, but rather comprises a series of
straight lines marking the general contours of the shoreline. See
Hawkins v. Alaska Freight Lines, Inc., 410 P.2d 992, 994 (Alaska
1966); see also Nordale v. Waxberg, 84 F. Supp. 1004, 1006 (D.
Alaska 1949).
3 The parties use the terms 1983-84 BLM meander line and
1986 BLM meander line interchangeably. For clarity we will refer
to it as the 1986 meander line.
4 The Tanadgusix Corporation was established under the
Alaska Native Claims Settlement Act for the Aleut community on
St. Paul Island. Pribilof Bering Seafood, a wholly owned
subsidiary of Tanadgusix, has joined in Tanadgusixs brief on
appeal.
5 Uplands are the areas of land adjacent to and
immediately above tidelands, which lie between the elevation of
the mean high water line and the mean low water line. Tidelands
are the area periodically covered by incoming and outgoing tides.
See AS 38.05.965(23).
6 Ch. 95, 2, SLA 1995, codified as amended at AS
38.05.825.
7 AS 38.05.825(a) provides:
Unless the commissioner finds that the
public interest in retaining state ownership
of the land clearly outweighs the
municipalitys interest in obtaining the land,
the commissioner shall convey to a
municipality tide or submerged land requested
by the municipality that is occupied or
suitable for occupation and development.
8 See AS 38.05.825(c) & (d). The public trust doctrine
states that tidelands conveyed to individuals are subject to the
publics right to use the tidelands for navigation, commerce and
fishing. While patent holders are free to make such use of their
property as will not unreasonably interfere with these continuing
public easements, they are prohibited from any general attempt to
exclude the public from the property by virtue of their title.
CWC Fisheries, Inc. v. Bunker, 755 P.2d 1115, 1121 (Alaska 1988).
9 Compare Schafer v. Schnabel, 494 P.2d 802, 806-07
(Alaska 1972) (noting that [t]he general rule applied to
accretion is that it benefits the riparian owner) with Honsinger
v. State, 642 P.2d 1352, 1353 (Alaska 1982) (noting that
avulsion, which refers to a sudden and perceptible change in the
shoreline . . . does not change the legal boundary).
10 In addition, the city argued that the current mean high
water line is not the proper boundary because Tanadgusix cannot
benefit from any accretion because there is a road between the
uplands and the tidelands.
11 11 AAC 53.120(1) defines mean high tide as follows:
(A) in the case of unoccupied and
unimproved tide and submerged lands not
seaward of an incorporated municipality, the
line of mean high tide must be determined in
accordance with (B) - (D) of this subsection
and used as the landward boundary; in the
case of occupied and improved tide and
submerged land, either the original meander
line established before statehood o[r] the
line of mean high tide, whichever is the
higher, must be reestablished or determined
and used as the landward boundary line;
(B) for tideland surveys abutting any
U.S. survey made after the date of statehood
or in any location where no upland survey
exists, the line of mean high tide must be
determined by using National Geodetic Survey
bench marks (or any other bench marks that
have been established from that source), and
the tide table datum; the upland boundary
need not follow this line exactly, but may
follow in a meander or average line of mean
high tide; each end of the boundary must be
established on the elevation of mean high
tide;
(C) if no National Geodetic Survey
bench mark exists within one mile of the
property being surveyed, the surveyor may, by
using the tide tables for the immediate body
of water and applying tidal readings he has
taken, determine the line of mean high tide;
and
(D) in some cases, such as salt or mud
flat areas where the average grade of the
beach is one percent or less, and where
determining the elevation of the line of mean
high tide could create a lengthy horizontal
distance, the director may nevertheless
require that the true line of mean high tide
be established using the procedures of (B) of
this paragraph, regardless of the distance
from a known bench mark.
12 AS 38.05.825(a).
13 See, e.g., Laidlaw v. Anchorage Sch. Dist., 118 P.3d
1018, 1024 (Alaska 2005).
14 836 P.2d 896, 908 n.17 (Alaska 1991) (citing
Restatement (Second) of Judgments 83(2) (1982)); see also
Brandon v. State, Dept of Corrections, 938 P.2d 1029, 1032-33
(Alaska 1997).
15 See AS 38.05.965(23) (defining tidelands as land that
is periodically covered by tidal water between the elevation of
mean high water and mean low water); AS 38.05.825(c) (requiring
city to pay cost of pre-conveyance survey).
16 AS 38.05.825(a) directs the commissioner to convey tide
or submerged land requested by [a] municipality that is occupied
or suitable for occupation and development if the . . . (1) land
is within or contiguous to the boundaries of the municipality.
17 See AS 38.05.965(23) (quoted above at n.15).
18 Jeffries v. Glacier State Tel. Co., 604 P.2d 4, 8
(Alaska 1979).
19 Alaska Contracting & Consulting, Inc. v. Alaska Dept of
Labor, 8 P.3d 340, 344 (Alaska 2000) (quoting State, Child
Support Enforcement Div. v. Bromley, 987 P.2d 183, 192 (Alaska
1999)).
20 Because the city is entitled to all of the states
interest in the tidelands, one question that will arise if there
is future litigation will be the extent to which the lands
between the newly surveyed mean high water line and the 1986 BLM
meander line were formed by processes that did not result in a
transfer of ownership to Tanadgusix, as the upland owner.
Because the new survey will not resolve this question, the new
survey will not be determinative of the boundary between
Tanadgusixs lands and those of the city.
21 Our conclusion that the commissioners decision did not
amount to an administrative adjudication makes it unnecessary to
address the citys further contentions that the commissioner erred
in declining to allow an evidentiary hearing and in failing to
make adequate findings and conclusions. Both these arguments
rely on the citys mistaken premise that the commissioners
decision conclusively adjudicated the disputed boundaries of the
tideland conveyance.
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