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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

City of St. Paul v. State, Dept. of Nat. Resources (04/21/2006) sp-6005, 127 P3d 261

     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,


) Supreme Court No. S- 11299
Appellant, )
) Superior Court No.
v. ) 3AN-00-3731 CI
RESOURCES, TANADGUSIX ) No. 6005 - April 21, 2006
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.

          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.
          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
          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
          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.
          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
          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
          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

     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

     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
               (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;
               (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

     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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