In McCavit v. Lacher[1] the supreme court extended the rule of reasonable use for non-consumptive waters to rights of access and rights to use. The Lachers brought an action against upland neighboring landowners McCavits for extending their dock on Wasilla Lake towards their property, claiming it was an unreasonable interference with their riparian rights and constituted a private nuisance. Because the Alaska Department of Fish and Game would not enforce its Notice of Violation against the McCavits – due to concerns of unclear and vague regulatory language leading the agency to question its legal authority – the Lachers brought suit against the McCavits. The superior court determined the McCavits’ dock was unreasonably interfering with the Lachers’ riparian rights and was a private nuisance, leading the court to grant an injunction against the McCavits’ dock extension and awarded partial Attorneys’ Fees to the Lachers. The McCavits claimed on appeal that the superior court erred in both its determination that its dock extension unreasonably interfered with the Lachers’ riparian rights and for determining it constituted a private nuisance. The supreme court began its analysis by recognizing the constitutional right to free access and use of navigable or public waters and also a state common law tradition of riparian and littoral rights of access to deep and navigable waters for navigation. The court goes on to expand the reasonable use test used for other non-consumptive uses of water here for rights of access and rights of use. This inquiry is inherently fact-intensive and requires two steps of analysis for the trial court: (1) whether the neighboring landowner’s use of public waters an unreasonable interference with a riparian or littoral right and (2) whether that unreasonable interference constitutes a private nuisance. The supreme court vacated the superior court’s findings of fact and conclusions of law and order granting injunctive relief and nuisance abatement and vacated the award of Attorneys’ Fees and costs because of its new rule of reasonableness and remands the claim to the superior court to conduct a legal analysis under the new rule.
[1] 447 P.3d 726 (Alaska 2019).
