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CWC Fisheries, Inc. v. Bunker

Citation: 19 ELR 20111
No. No. S-1995, 755 P.2d 1115/(Alaska, 06/03/1988)

The Alaska Supreme Court holds that a conveyance of tidelands by the state is subject to the public trust doctrine, and will be viewed as a valid conveyance of title subject to continuing public easements for navigation, commerce, and public fishing. The court first rules that the public trust doctrine applies to state tidelands in Alaska. The court rules that a conveyance of state-owned tidelands remains subject to continuing public easements for navigation, commerce, and publicfishing, unless conveyance of the parcel promotes a specific trust purpose or the conveyance can be made without substantial impairment of the public's interest in the state's tidelands. The court holds that the conveyance in this case was not made to aid the trust purposes of navigation or commerce. Although the grant was made pursuant to a state statute entitling occupants of tidelands to preference rights to obtain title to the lands, the statute does not expressly state that the preference rights were given in aid of navigation or commerce, nor does it state that the lands were conveyed free of the public trust. That the statute conditions the preference rights upon the existence of substantial permanent improvements does not indicate an intent by the legislature to abdicate its trust obligations. Such intent cannot be implied, either. The Alaskan constitution explicitly reserves to the people the fish, wildlife, and waters of the state, and there is no reason to presume that the legislature intended to take action inconsistent with this mandate. The court holds that the conveyance cannot be made without substantial impairment of the trust. Although the parcel in question is small and isolated, the statute allows transfer into private ownership of virtually all state tidelands occupied prior to statehood. The court rejects the transferee's argument that allowing exclusive fishing privileges by a patent holder is no different from the state's shore fishery leasing program, which grants exclusive fishing privileges at specified sites, since lessees under the program have fishing privileges only for a period of finite duration rather than in perpetuity as an incident of title.

Counsel for Appellants
R. Eldridge Hicks
Hicks, Boyd & Chandler
Ste. 1530, 550 W. Seventh Ave., Anchorage AK 99501
(907) 272-8401

Counsel for Appellee
Arthur S. Robinson
Robinson & Beiswenger
35401 Kenai Spur Hwy., Soldotna AK 99669
(907) 262-9164

Before RABINOWITZ, BURKE, COMPTON and MOORE, JJ.