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Alaska Commer. Fishermen's Mem'l in Juneau v. City & Borough of Juneau

Supreme Court of Alaska

September 25, 2015

ALASKA COMMERCIAL FISHERMEN'S MEMORIAL IN JUNEAU, Appellant,
v.
CITY AND BOROUGH OF JUNEAU, Appellee

Appeal from the Superior Court of the State of Alaska, First Judicial District, Juneau, Louis J. Menendez, Judge. Superior Court No. 1JU-14-00487 CI.

Bruce B. Weyhrauch, Larri Irene Spengler, and Gayle Horetski, Law Office of Bruce B. Weyhrauch, LLC, Juneau, for Appellant.

Christopher F. Orman, Assistant City Attorney, and Amy Mead, City Attorney, Juneau, for Appellee.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION

Page 1173

MAASSEN, Justice.

I. INTRODUCTION

A nonprofit organization constructed a granite memorial on the Juneau waterfront and each spring conducted a ceremonial blessing of the fleet as the fishing boats passed by. The City and Borough of Juneau decided to build a large dock on the same stretch of waterfront. The City asked the State of Alaska to transfer the State-owned submerged lands necessary to complete the project, and the organization filed suit to enjoin construction of the dock before the land was transferred. The superior court denied the organization's motions for injunctive and declaratory relief, denied motions to amend and for a continuance to conduct discovery, and granted the City's motion to dismiss the organization's claims.

We conclude that the superior court was correct in ruling that the organization failed to allege an actual controversy and that the organization's proposed amendment to its complaint was futile. We therefore affirm the superior court's decision.

II. FACTS AND PROCEEDINGS

The Alaska Commercial Fishermen's Memorial in Juneau (Fishermen's Memorial), a nonprofit corporation, built and maintains a granite memorial on the Juneau waterfront overlooking the Gastineau Channel. Engraved on the memorial are the names of men and women who have died in the Alaska commercial fishing industry. On the first Saturday in May, Fishermen's Memorial hosts the annual " Blessing of the Fleet," a ceremony in which commercial fishing boats parade past the memorial for a blessing before heading out to fish.

The City and Borough of Juneau (the City) plans to build a new dock -- known as Dock 16B -- for berthing cruise ships. The project was reviewed and endorsed by the City in a multi-year administrative process that included a number of opportunities for public input:

Page 1174

the Assembly's passage of a resolution in 2009 authorizing a request for funds from the State legislature (which the legislature provided in 2010); the Assembly's passage of another resolution in 2010 approving a preliminary design; and a Planning Commission decision in 2012 approving a conditional use permit. At several points in the process Fishermen's Memorial raised concerns about the project's impact on the Blessing of the Fleet ceremony, and some design changes were made in response. In 2013 Fishermen's Memorial also intervened in an administrative appeal to the Assembly from the Planning Commission's decision to approve the conditional use permit; the Assembly ultimately affirmed the Planning Commission's decision.

Completing the project under the approved plan requires that the City obtain title to submerged lands currently owned by the State of Alaska.[1] In 2013 the Division of Mining, Land and Water within the Alaska Department of Natural Resources issued a preliminary decision conveying the land to the City, then scheduled a public comment period. The Division received a single public comment: a comprehensive letter with attachments from Fishermen's Memorial. Fishermen's Memorial argued that the proposed dock would interfere with the annual Blessing of the Fleet ceremony by making fishing boats' access to the waterfront memorial more difficult (and for some larger boats, impossible). It argued that the proposed transfer of submerged lands violated state law and the City's own plans for land use and waterfront development.

The Division addressed each of the arguments raised by Fishermen's Memorial and rejected them. The Division's Southeast Regional Manager then signed a " Final Finding and Decision" determining " that it is in the best interest of the State to proceed with this conveyance under the authority of AS 38.05.825." Fishermen's Memorial appealed to the Commissioner of the Department of Natural Resources, and the decision's effect was automatically stayed by regulation.[2] While the stay was in effect, the City accepted a contractor's bid for construction of the dock.

Fishermen's Memorial then filed a complaint in superior court contending that " [t]he City cannot [legally] construct Dock 16[B] because the City does not have the submerged lands in the Gastineau Channel to legally be able to construct Dock 16B in Gastineau Channel." Fishermen's Memorial asked the court to issue a temporary restraining order and injunction " against the City to enjoin it from taking any action to authorize or pay for Dock 16B or the construction of Dock 16B in Gastineau Channel unless and until DNR's Final Decision becomes a final decision." The superior court denied the motion for a temporary restraining order, reasoning that since " the City does not have title to the submerged lands and construction of Dock 16B remains uncertain," Fishermen's Memorial had not shown the prospect of immediate and irreparable injury. Following a hearing, the superior court denied a preliminary injunction as well, on grounds that Fishermen's Memorial had failed to show either irreparable harm or probable success on the merits.

Fishermen's Memorial then moved to amend its complaint to include a claim that the City had failed to disclose potential environmental remediation costs that it contended " should be disclosed as part of the City's Dock 16B construction project." It also filed a motion seeking " Declaratory Judgment on the issue of whether the defendant City may construct a dock on submerged lands . . . before it has a final decision from the State of ...


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