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Theorner v. United States

United States District Court, D. Alaska

November 4, 2015

FREDERICK D. THOERNER, III, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

ORDER RE MOTION FOR SUMMARY JUDGMENT

SHARON L. GLEASON, UNITED STATES DISTRICT JUDGE.

Before the Court is the United States’ Motion for Summary Judgment at Docket 12. The motion has been fully briefed.[1] Oral argument was not requested and was not necessary to the Court’s determination. For the reasons set forth below, the motion will be denied.

BACKGROUND

This case asks the Court to consider whether the United States Coast Guard’s right to maintain an aid to navigation on private property rolls with the fluidity of Alaska’s eroding shoreline or slips into the sea. On September 2, 1944, the Coast Guard established a navigational beacon at Point Mackenzie on the Knik Arm, a waterway adjacent to Anchorage, Alaska. The beacon was the first lighted, shore-based aid to navigation (“ATON”) established in the area. The location came to be known as Lot 3, which is property now owned by Plaintiff Frederick D. Thoerner. According to Mr. Thoerner, Lot 3 consisted of 1.78 acres in 1950, but was just 0.80 acres by 2012, after the beacon had tumbled from the bluff sometime between November 2009 and August 2011.

In August 2011, U.S. Coast Guard personnel entered Mr. Thoerner’s property without expressed permission, where they cut down up to forty-four trees and dug holes in preparation for rebuilding the ATON in a new location. Mr. Thoerner alleges that the Coast Guard’s 2011 entry onto his property to reestablish the beacon was a trespass. The United States disagrees. It has moved for summary judgment asserting that “[t]he Coast Guard had maintained an implied easement on the property to access an Aid to Navigation (ATON) built in 1944, and continuously operating until 2011, on the land Mr. Thoerner bought in 2010. Thus, their presence and activities on the land in 2011 are recognized as permissible.”[2] Mr. Thoerner responds that “that portion of property on which the Coast Guard previously operated ceased to exist when it eroded away and the Coast Guard cannot claim that it now has rights to additional lands that it was not previously using.”[3]

The following facts do not appear to be in dispute. The original ATON was a small white wooden house on a concrete footing, with dimensions of 4’ x 6’ x 7’. The ATON’s battery-powered lantern was approximately 11’5” above-ground. The Coast Guard recorded the latitude and longitude of the original ATON at 61° 14’ 08” N, 149° 59’ 34” W. At the time the ATON was built, it stood on federal land.[4] The ATON was noted on NOAA charts beginning in 1947.[5]

In 1950, the Bureau of Land Management (“BLM”) surveyed Point Mackenzie in preparation to sell federal land to private buyers. The notes of that survey recorded the ATON as the “Center of Point Mackensie [sic] Navigation light, which is on top of a 6 x 8 ft. battery shed, 7 ft. above the ground, bears S. 63° 40’ E., 2.687 chs. dist., ” measured from the “cor[ner] of sec[tions] 3, 4, 9, and 10, ” using steel tape made of chains of 66 feet.[6] The United States points out, and Mr. Thoerner does not dispute, that “[t]he Coast Guard navigational light was observed to be located 177 feet to the southeast from the corner post. In other words, the ATON was not on the edge of Lot 3 - it was 177 feet inside Lot 3.”[7]

On July 3, 1955, BLM sold the property to James Koll and issued Patent Number 1152474.[8] The patent does not mention the ATON or a federal need to maintain the ATON. On September 7, 1955, Mr. Koll sold the property to David and Jean Ring.[9]

On September 21, 1966, the Commander, 17th District, U.S. Coast Guard sent a memorandum to Commanding Officer CGC Sorrel regarding “Point MacKenzie Light (LLNR 3428); special servicing instructions.”[10] That memorandum recorded that “when this light was recently rebuilt, ” Mr. Ring was “quite disturbed over the amount of tree cutting and general debris left on his property, ” and advised “[p]articularly check with Mr. Ring prior to cutting down any more trees in the Point MacKenzie vicinity.” The memorandum also stated, “There is a clause in Mr. Rings title permitting the Coast Guard to maintain Point MacKenzie Light. However, it is preferred that this work be accomplished with Mr. Rings cooperation rather than his animosity.”[11] A September 22, 1966 letter from the Commander to Mr. Ring states that “on 6 September 1966, Point MacKenzie Light was relocated approximately fifty feet inland. . . . The new light is located at latitude 61° 14.3’ N., longitude 149° 59.0’ W.”[12]

Between May 5, 1998 and November 5, 2009, Coast Guard records indicate that the ATON was visited and serviced by Coast Guard personnel seven times.[13] Mr. Ring died in 2008. On June 23, 2010, the trustees of Mr. Ring’s estate quitclaimed his interests in the property to Ms. Kimberly Morris and Mr. Thoerner.[14] Ms. Morris conveyed her interest to Mr. Thoerner by quitclaim deed on July 2, 2012, and Mr. Thoerner became the sole owner of Lot 3.[15]

At some point between November 5, 2009 and August 2011, the ATON “tumbled off the edge of the bluff.”[16] On August 25, 2011, Bonnie Vaughn, the daughter of Mr. Ring, “noticed trees had been cut off the bluff, ” and discovered men who identified themselves as Coast Guard workers “in the process of constructing the replacement ATON.”[17] Ms. Vaughn indicates that when she “asked the Coast Guard who had given them authority to be on my families private property, they were unable to advise me under what authority they have entered upon the property.”[18] Mr. Thoerner asserts, and the United States does not deny, that these activities included cutting down approximately forty-four trees varying in size from 3-23 inches in diameter and digging several large holes.[19]

On June 17, 2013, Mr. Thoerner made an administrative claim to the Coast Guard.[20] On April 8, 2014, the Coast Guard denied the claim.

Mr. Thoerner filed this action on October 2, 2014. The Complaint pleads the following causes of action: Mr. Thoerner asserts that the Coast Guard’s entry onto his property constituted a trespass (Count 1); that the Coast Guard negligently damaged the property-“destroyed much of the native vegetation that is needed to stabilize the Property and protect the soils from eroding into the Cook Inlet” (Count 2); and that the Coast Guard’s actions constituted a taking that requires just compensation (Count 3). Mr. Thoerner also seeks to quiet title to the property under Alaska Statute 09.45.010 (Count 4), and an order ...


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