JERRY C. McCAVIT and BRENDA D. McCAVIT, Appellants,
BARBARA LACHER, LOUIS LACHER, and STATE OF ALASKA, DEPARTMENT OF NATURAL RESOURCES, Appellees.
from the Superior Court of the State of Alaska Third Judicial
District, Palmer, No. 3PA-13-00918 CI, Vanessa White, Judge.
T. Fitzgerald, Ingaldson Fitzgerald, P.C., Anchorage, for
Duffy, Gruenstein, Hickey, Havelock & Duffy, Anchorage,
for Appellees Barbara Lacher and Louis Lacher.
of non-filing filed by Jessica M. Alloway, Assistant Attorney
General, Anchorage, and Jahna Lindemuth, Attorney General,
Juneau, for Appellee State of Alaska, Department of Natural
Before: Bolger, Chief Justice, Winfree, Stowers, and Carney,
Justices.[Maassen, Justice, not participating.]
and Brenda McCavit built a dock extending into Wasilla Lake
from their upland property. Their neighbors, Barbara and
Louis Lacher, sued the McCavits claiming the dock
unreasonably interfered with their riparian rights and
constituted a private nuisance. The superior court found for
the Lachers and issued an injunction ordering the McCavits to
remove a portion of their dock. The McCavits now appeal.
Because we announce a new rule of reasonableness regarding
riparian or littoral rights, we vacate the superior
court's Findings of Fact and Conclusions of Law and Order
Granting Injunctive Relief and Nuisance Abatement, remand for
the superior court to conduct the proper legal analysis, and
vacate the superior court's award for attorney's fees
FACTS AND PROCEEDINGS
and Louis Lacher own property abutting Wasilla Lake. Jerry
and Brenda McCavit own adjacent property abutting Wasilla
Lake to the east of the Lachers' property. Both families
own their respective property up to the ordinary high water
mark of Wasilla Lake, making them littoral
landowners. The Lachers purchased their property in
1974 and the McCavits purchased their property in 1991.
the McCavits bought their property, neither they nor the
Lachers had a dock. For 30 years the Lachers' western
neighbors allowed the Lachers to use their dock. But in 2012
or 2013, after several incidents involving the Lachers'
grandchildren, the western neighbors asked the Lachers to
stop using the dock. The Lachers then began considering
building a dock from their own property.
in March 1992, the McCavits were granted a permit from the
Alaska Department of Fish and Game (ADFG) to construct a dock
from their property into Wasilla Lake. They completed
their dock before the permit expired at year's end.
Between 2011 and 2012 the McCavits built a 16x20 foot
extension to the original dock. They never sought nor were
granted a permit for this extension. The extension was
attached at a right angle to the original dock, and extended
in the direction of the Lachers' property.
families make use of the lake. The McCavits, their family,
and their friends use and frequently park a variety of
watercraft at the McCavits' dock during the summer. Jerry
McCavit testified that he built the extension to accommodate
larger watercraft, to reach deeper water, and to make it
easier for his aging father to visit. The Lachers and their
family and friends also enjoy using the lake. Their children
and grandchildren often use the lake for swimming, boating,
fishing, and other recreational uses.
spring of 2012 the Lachers informed their daughter, Randy
Lacher, about their displeasure with the McCavits' dock
and the fact that it was "in front of their property.
Randy, who was then employed by the Alaska Department of
Natural Resources (DNR), began making inquiries into her
parents' rights regarding the lake and the McCavits'
dock. Randy obtained a copy of the agency's
"Generally Allowed Uses" regulation. The regulation
allows an upland littoral property owner to build a dock for
personal, noncommercial use provided the dock is within the
"projected sidelines" of the upland littoral
property or is built with consent of the neighboring upland
littoral property owner. After receiving the copy of the
regulation, Randy contacted Jerry McCavit to discuss the dock
and whether it was "in front of the Lachers'
in the summer of 2012 ADFG sent the McCavits a Notice of
Violation advising them that their dock extension was
constructed in violation of permitting requirements. Although
it is possible that the McCavits' construction of the
extension could have supported a misdemeanor charge,
ADFG took no further action. In November the Lachers obtained
a permit to construct a 10x50 foot dock that would extend
from their property. However the Lachers never constructed or
made definite plans to construct a dock.
early 2013 Randy attempted to have DNR enforce its
"Generally Allowed Use" regulation against the
McCavits' dock. She was informed that DNR could not
enforce the "projected sidelines" language because
the Commissioner had found the language vague and ambiguous.
After being advised that they would need to pursue a civil
suit to obtain the relief they sought, the Lachers sued the
McCavits in superior court. They brought three claims: the
dock interfered with their riparian rights, constituted a
private nuisance, and was a trespass.
court granted the McCavits' motion to require the Lachers
to join DNR as a necessary party because the dock was located
on state land. In response the Lachers amended their
complaint to allege that DNR violated their due process
rights by arbitrarily and capriciously failing to enforce the
"Generally Allowed Use" regulation. DNR
successfully moved for summary judgment, arguing that it was
not required to act, and was dismissed as a party. The
court's order held that: (1) the Lachers did not have a
"significant property interest" in the submerged
lands of Wasilla Lake; (2) at most the Lachers had a right of
reasonable access to Wasilla Lake, which "ha[d] not been
completely obstructed by the McCavits' dock"; and
(3) if DNR had found that the McCavits' dock violated the
"Generally Allowed Uses" regulation, that decision
would have been arbitrary and capricious because DNR had
previously found the term "projected sidelines"
vague and ambiguous.
McCavits also moved for summary judgment on the Lachers'
trespass claim, arguing that the Lachers did not have title
to the lake and therefore could not maintain a trespass
claim. The superior court agreed and granted summary judgment
on this claim.
proceeded on the remaining claims of unreasonable
interference with riparian rights and private nuisance. The
Lachers' witnesses testified that the Lachers'
preferred location for their potential dock would be on the
eastern side of their property, which would conflict with the
McCavits' existing dock. But witnesses also acknowledged
that the Lachers could build a dock elsewhere on their
property so as not to conflict with the McCavits' dock.
four days of trial the superior court issued its Findings of
Fact and Conclusions of Law and Order Granting Injunctive
Relief and Nuisance Abatement on May 7, 2017. The court found
that the McCavits' dock unreasonably interfered with the
Lachers' riparian rights and constituted a private
nuisance. It ordered the McCavits to remove a portion of
in May 2017 the Lachers moved for attorney's fees and
costs as the prevailing party under Alaska Rule of Civil
Procedure 82. They submitted fees and costs dating from 2012
and including fees incurred as part of their claims against
DNR upon which they had not prevailed. The Lachers asserted
that they were entitled to 30% of their fees of $ 120, 070,
which amounted to $36, 021. The superior court awarded the
full $36, 021 over the McCavits' objection. The
court's order included a handwritten note: "The
Court is not persuaded that some of plaintiffs' fees must
be allocated to their litigation against DNR. The State
became a party only due to the McCavits' insistence that
DNR was a necessary party."
McCavits moved for a stay of the superior court's
injunction pending this appeal. The superior court denied
this motion, but in doing so "clarified" its
original decision. The superior court noted that it had
"already determined the merits of this case and... found
the McCavit[s'] dock to be a nuisance to the
Lacher[s]." In February 2018 we granted the
McCavits' motion to stay the injunction pending
resolution of this appeal.
McCavits appeal. They contend that the superior court erred
in determining that their dock unreasonably interfered with
the Lachers' riparian rights and constituted a private
nuisance, and that injunctive relief was therefore
inappropriate. Because the superior court had not yet ruled
on the Lachers' motion for attorneys fees when the
McCavits filed their opening brief, we granted their motion
to allow supplemental briefing on attorney's
fees. We therefore also address the award of
attorney's fees and costs.
STANDARD OF REVIEW
will not consider arguments that were not raised below,
unless the issues establish plain error, or the issues (1) do
not depend upon new facts, (2) are closely related to other
arguments at trial, and (3) could have been gleaned from the
the superior court applied the correct legal
standard" and "used the appropriate burden of
persuasion" are questions of law. We consider
"whether a trial court has applied the correct legal
test" to be a question of law. We review questions of
law and a superior court's application of the law to
facts de novo, using our independent judgment to "adopt
the rule of law that is most persuasive in light of
precedent, reason, and policy."
The McCavits Did Not Waive Any Of Their Arguments On
Lachers first argue that the McCavits waived several of their
arguments on appeal by failing to raise them during the trial
proceedings. But because the McCavits did raise these
issues during the trial proceedings, the issues have not been
The Superior Court Applied The Proper Standard Of
Lachers also claim that the McCavits waived their argument
that the superior court improperly applied the preponderance
of the evidence standard of proof because they did not
request the court to apply a different standard. The McCavits
respond that "[p]arties do not have to invoke burdens of
proof and persuasion; they are automatic."
of the evidence is the general burden of persuasion in civil
cases." A party that wants the court to apply a
higher standard of proof must request it; failure to
raise this issue before the trial court fails to preserve the
issue for appeal. When a party fails to preserve such an
issue for appeal, we review it for plain error.
demonstrate plain error, the McCavits must prove that
"an obvious mistake has been made which creates a high
likelihood that injustice has resulted."Such a mistake
is not present in this case. In Fernandes v.
Portwine we explicitly held that preponderance of the
evidence is the appropriate standard of proof for nuisance
cases. The McCavits primarily rely on
Spenard Action Committee v. Lot 3, Block 1, Evergreen
Subdivision to argue that clear and convincing
evidence should apply. But we distinguished Spenard
Action Committee in Fernandes In
Spenard Action Committee the statutes at issue were
"quasi-criminal nuisance statutes" that imposed
heavy sanctions and therefore demanded a higher
burden. In Fernandes we rejected the
suggestion that the higher burden was appropriate in the
absence of such concerns and held that a preponderance of the
evidence standard applied in private nuisance
cases. The McCavits have failed to demonstrate
that the present case demands the higher standard employed in
Spenard Action Commitee. The superior court did not
plainly err by applying the preponderance of the evidence
standard of proof.
We Extend Our Rule Of Reasonable Use To Riparian And Littoral
Landowners And Remand For The Superior Court To Apply The
Rule To Determine Whether The McCavits' Dock Was An
Unreasonable Interference With The Lachers' Littoral
Riparian and littoral rights defined
is unique in that "[t]he people of the state have a
constitutional right to free access to and use of the
navigable or public water of the state." This
constitutional right does not create a private cause of
action; rather, the constitutional right of free access to
and use of navigable or public water is a right shared by the
public and enforced by the State.
over water rights frequently involves competing consumptive
uses, such as a riparian or littoral landowner's right to
appropriate a quantity of water for purposes such as
agriculture. Alaska has adopted the Water Use Act to
regulate the appropriation and consumptive use of
water. But the McCavits' dock is not a
consumptive use of water; the McCavits built a ...