You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Tulkisarmute Native Community Council & Tuluksak v. Heinze & Davidge (7/28/95), 898 P 2d 935
<![CDATA[
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, telephone (907) 264-0607, fax (907) 276-
5808.
THE SUPREME COURT OF THE STATE OF ALASKA
TULKISARMUTE NATIVE COMMUNITY )
COUNCIL; PEOPLE OF THE ) Supreme Court No. S-5711
VILLAGE OF TULUKSAK, )
) Superior Court No.
Appellants, ) 3AN-91-8627 CI
)
v. ) O P I N I O N
)
HAROLD HEINZE, Commissioner, ) [No. 4232 - July 28, 1995]
Department of Natural )
Resources; RIC DAVIDGE, )
Director, Division of Water, )
)
Appellees, )
)
CALISTA CORPORATION; TULUKSAK )
DREDGING, )
)
Intervenors- )
Appellees. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Dana Fabe, Judge.
Appearances: Eric Smith, Anchorage, for
Appellants. John T. Baker, Assistant
Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellees. Frederick H. Boness, Preston,
Thorgrimson, Shidler, Gates & Ellis,
Anchorage, for Calista Corporation. James N.
Barkeley and Paul K. Wharton, Hughes,
Thorsness, Gantz, Powell & Brundin,
Anchorage, for Tuluksak Dredging.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Tulkisarmute Native Community Council, the tribal
government of the Village of Tuluksak, and Tuluksak residents
(collectively TNCC) challenge the decision of the Department of
Natural Resources (DNR) to extend fifteen permits for the
appropriation of water in the Tuluksak River and its tributaries.1
The water is to be used for placer gold mining, a procedure in
which overburden is removed from streambeds and nearby lands and
the underlying gravels are mixed with water and run through a
sluicebox. Because the water is taken from a stream, state law
requires that it be appropriated. Residents of the Village of
Tuluksak rely on the river for subsistence fish and wildlife uses
and oppose the permit extensions. They contend that the
extensions are without basis, and violate applicable regulations
and article VIII, section 13 of the Alaska Constitution. They
assert that appropriation of water for placer mining threatens
the quantity and quality of the water and the health of fish and
wildlife populations. DNR and intervenors Tuluksak Dredging,
Ltd. (TDL) and Calista Native Corporation (Calista) (collectively
TDL) support extending the permits so that TDL may continue
placer mining on the Tuluksak River.
II. FACTS AND PROCEEDINGS
In 1981 and 1982, TDL applied for water rights for
placer mining on the Tuluksak River and its headwater
tributaries.2 In February 1982 DNR issued permit ADL 209433-P,
authorizing the appropriation of 6.0 cubic feet of water per
second (cfs). In June 1982 DNR issued a second permit, ADL
213090-P, authorizing the appropriation of 7.0 cfs. ADL 213090-P
expired in March 1985; ADL 209433-P expired in March 1986. In
December 1986 DNR extended the permits for another four years.
However, instead of issuing two extended permits, DNR separated
the two original permits into fifteen separate permits.3 Each of
the fifteen permits authorized an appropriation of 5.6 cfs.
In February 1990, in anticipation of the expiration of
the 1986 permits, ADF&G reported to DNR the likelihood that in
seven of the stream locations, less than 5.6 cfs of streamflow
existed. Consequently, ADF&G concluded that permitting
appropriation of that amount would effectively deprive those
streams of all their water.4 ADF&G requested that DNR supply
specific information on those streams and an additional stream to
complete its review.5 DNR apparently never responded to these
requests.
When the fifteen 1986 permits expired in March 1990,
TDL applied for an extension of each of the permits.6 DNR issued
TDL temporary water use permits for the 1990 mining season.
In October 1990 DNR held a public hearing in Tuluksak
at which villagers testified and unanimously opposed the
extensions. The villagers described a variety of adverse impacts
on the river which they attributed to mining: the river had
grown shallow; the water was no longer safe to drink; the number
of fish in the river had decreased dramatically; and the water
had discolored river boats. By letter the villagers also asked
that DNR not extend the permits and asserted that DNR had
committed specified procedural and substantive errors.
In its April 22, 1991 written decision on the request
for extension of the permits, DNR extended the permits through
October 31, 1993, the end of the 1993 mining season. DNR
rejected the villagers' view that TDL's mining adversely affected
the quality and quantity of the water. DNR indicated that the
turbidity resulted from natural causes; there was no proof mining
caused loss of water depth, lower fish populations, and health
problems; the use of water for mining is nonconsumptive because
TDL operates a 100% water recycling system; and each creek
contained sufficient water to support the withdrawal of 5.6 cfs.
DNR also reasoned that "the extension of the permits is
preferable to the issuance of certificates of appropriation,
because of the complexity of the issues and the potential change
in land ownership [from the Bureau of Land Management (BLM) to
Calista]."
TNCC filed an administrative appeal of the decision to
extend the permits. DNR denied the appeal, stating that it
relied on the best available hydrologic data to make its decision
and otherwise complied with its regulations. DNR conceded that
there would be a net water loss as a result of the appropriation
but stated that the permits would "be conditioned to determine
how much water is diverted and when it is diverted." DNR amended
the permits to require the collection of hydrologic data to
document the flow and water level in the river and creeks and the
measurement of the amount of water diverted each mining season.
TNCC appealed DNR's decision to the superior court.
Contemporaneous with the filing of their opening superior court
brief, TNCC filed a variety of documents to augment the record.
Two of these documents were reports prepared by consultants
retained by TNCC. The reports asserted that in most streams
there was insufficient data to conclude that there would be no
harm to fish, and that in at least some streams degradation of
fish habitat was certain to occur.
After a hearing, Superior Court Judge Brian C. Shortell
remanded the matter to DNR to decide whether to accept and
consider the additional materials offered by TNCC. DNR decided
to add eight out of ten exhibits to the administrative record,
but did not amend its decision except to note that TDL had
abandoned its request for water at Shovel Creek. After further
briefing by the parties, in April 1993 Superior Court Judge Dana
Fabe affirmed DNR's decision. This appeal followed.
III. DISCUSSION
TNCC raises three issues on appeal: (1) whether DNR
acted outside its authority by extending the water rights permits
under the circumstances of this case; (2) whether substantial
evidence supported extending the water rights permits; and (3)
whether DNR's extension of the permits violated article VIII,
section 13 of the Alaska Constitution.7
A. Standard of Review
We have not previously addressed the standard of review
for a challenge of a DNR decision regarding an application for
water rights. However, for cases involving preferential land
rights, we have stated that we review "discretionary actions that
do not require formal procedures under the arbitrary and
capricious or abuse of discretion standard." Olson v. State,
Dep't of Natural Resources, 799 P.2d 289, 293 (Alaska 1990).
"This is also the federal rule." Id. at 293 n.7. Under that
standard
the court must consider whether the
decision was based on a consideration of the
relevant factors and whether there has been a
clear error of judgment. . . . Although this
inquiry into the facts is to be searching and
careful, the ultimate standard of review is a
narrow one. The court is not empowered to
substitute its judgment for that of the
agency.
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416
(1971) (citations omitted), cited in Olson, 799 P.2d at 293 n.7.
We apply the same standard in reviewing state water rights
decisions.
Additionally, interpreting the applicable statutory
requirements for granting a permit extension does not involve
agency expertise. We consequently review the issues of statutory
interpretation under the substitution of judgment standard.
Longwith v. State, Dep't of Natural Resources, 848 P.2d 257, 260
n.5 (Alaska 1992); Madison v. Alaska Dep't of Fish and Game, 696
P.2d 168, 173 (Alaska 1985). We review DNR's fact findings under
the substantial evidence test, requiring that DNR's findings be
supported by the record. Olson, 799 P.2d at 294.
B. Water Rights in Alaska
Free flowing waters in Alaska are subject to the
appropriation doctrine: water may only be taken, or
appropriated,8 from a stream with permission from the State, but
the first person to apply has first priority to the volume of
water requested. This doctrine is reflected in article VIII,
section 13 of the Alaska Constitution:
All surface and subsurface waters
reserved to the people for common use, except
mineral and medicinal waters, are subject to
appropriation. Priority of appropriation
shall give prior right. Except for public
water supply, an appropriation of water shall
be limited to stated purposes and subject to
preferences among beneficial uses, concurrent
or otherwise, as prescribed by law, and to
the general reservation of fish and wildlife.
After successfully appropriating a specific amount of water, the
appropriator is entitled to a water right, a full and permanent
property right in that quantity of water.
The Alaska Water Use Act, AS 46.15.010-.270, governs
the appropriation and distribution of water rights in Alaska.
Doyle v. Peabody, 781 P.2d 957, 960 (Alaska 1989). DNR's
regulations elaborate on the statutory requirements. A person
must file an application with DNR to obtain a water right. 11
AAC 93.040 (1994).9 The applicant must provide information such
as the specific use proposed for the water, when, where and how
much water will be taken and discharged, the maximum amount to be
used, and descriptions of any impoundment structures to be used.
11 AAC 93.040(c). After providing notice and an opportunity for
others to file objections, DNR will issue a permit to appropriate
water if issuance meets the requirements of AS 46.15.080.10 AS
46.15.133; 11 AAC 93.080-110. DNR may place conditions on the
permit which "protect the public interest,"by ensuring that a
quantity of water will be maintained in the stream and that
proposed structures for taking the water are adequate. 11 AAC
93.120(e); AS 46.15.100.
The permit enables the permittee to construct any
necessary works and to begin using the water so that he or she
can qualify for a certificate of appropriation. See AS 46.15.110
("A permit may place a time limit for beginning construction and
perfecting appropriation."); AS 46.15.120 ("Upon completion of
construction of the works and commencement of use of water, the
permit holder shall notify the commissioner that the appropriator
has perfected the appropriation.").
DNR may extend the permit for "good cause shown,"upon
"receipt of a written request from the permittee showing diligent
effort toward completing the appropriation." AS 46.15.110; 11
AAC 93.120(f). DNR may also cancel the permit "if the permittee
(1) does not develop and make use of the appropriation within the
permit time period, or (2) as provided in AS 46.15.175, violates
a term or condition of the permit." 11 AAC 93.125.
Once the permittee has demonstrated that "the means
necessary for the taking of water have been developed and the
permit holder is beneficially using the quantity of water to be
certificated," he or she will receive a certificate of
appropriation of water. 11 AAC 93.130(a)(1); AS 46.15.120. This
provides the holder with a full and permanent property right in
that quantity of water. The right attaches as of the date of
application but may be lost through abandonment, primarily if a
beneficial use is not made for a period of five years. AS
46.15.050(b); AS 46.15.140(c).
C. Whether DNR Acted Outside Its Authority By
Extending the Water Rights Permits?
When DNR extended the permits, it reasoned that
"extension of the permits . . . [was] preferable to the issuance
of certificates of appropriation, because of the complexity of
the issues and the potential change in land ownership." The
decision further provided:
The permits to appropriate water will be
extended through the 1993 mining season.
This date corresponds with the authorization
to mine issued by BLM and the NPDES permit
issued by EPA. The transfer of lands
selected by Calista from BLM should be
completed by that date, if not sooner.
Calista will then have a say in the use of
its lands for mining and Tuluksak Dredging
will then be required to work with Calista.
It is expected that the federal mining claim
held by Tuluksak Dredging will be
relinquished in order to facilitate the
transfer of lands to Calista.
TNCC argues that DNR was not authorized to extend the
water rights permits because TDL did not demonstrate "diligent
effort toward completing the appropriation"pursuant to 11 AAC
93.120(f). Specifically, TNCC contends that establishing
"diligent effort"required TDL to demonstrate separate diversions
from each of the streams in the Tuluksak River system.
TDL and Calista explain in their joint brief11 that a
placer mining operation requires a mining company to move
equipment and build new settling ponds in order to mine different
locations within the larger project area. They apparently claim
that it is not feasible to work all locations within a project
area in a given season, and therefore, TDL's failure to work all
locations is not evidence of any lack of diligence. Further, TDL
argues that it has demonstrated diligence because its "permit
applications and subsequent activities constitute open steps
providing notice of . . . [its] intent to secure appropriative
rights on each of the permitted streams."
Alaska Statute 46.15.110 provides that "[r]easonable
extensions of time shall be permitted for good cause shown."
Additionally, DNR's regulation elaborates that: "Upon the
commissioner's receipt of a written request from the permittee
showing diligent effort toward completing the appropriation, the
permit will, in the commissioner's discretion, be extended for a
period of time not to exceed the relevant maximum time period
listed in . . . this section." 11 AAC 93.120(f) (emphasis
added). Therefore, we consider whether the two reasons provided
by DNR -- the "complexity of the issues"and the "potential
change of land ownership"-- constitute "good cause shown" or
demonstrate a "diligent effort"by TDL as required by the statute
and regulation.
We have not previously addressed "good cause" or
"diligent effort" in the context of the relevant statute or
regulation. However, two other state courts have discussed "good
cause"in the context of extending permits. In Kuiper v. Warren,
580 P.2d 32 (Colo. 1978), the Colorado Supreme Court discussed
good cause to extend a permit to construct a well and appropriate
water.
[T]he [Ground Water Management Act] and
the [Colorado Ground Water Commission]
guidelines afford appropriators the
opportunity to obtain extensions upon a
showing of good cause. The good cause shown
provision, while not identical to the
doctrine of due diligence, affords
appropriators many of the same protections.
Both the statutory extension procedure and
the doctrine of due diligence afford
appropriators, who are reasonably proceeding
to complete appropriations under conditional
rights, protection against loss of their
rights. Designated ground water
appropriators must construct their wells,
place water to beneficial use, and comply
with the statutory filing and time provisions
or lose their right to divert.
Id. at 35.
In Associated Enter. v. Toltec Watershed Improvement
Dist., 578 P.2d 1359 (Wyo. 1978), the Wyoming Supreme Court
addressed the good cause requirement for a permit extension to
complete construction of a reservoir.
Thus, the sole criterion for extending
these periods is whether the permittee has
shown good cause for the extension. The
above-quoted provision from 41-4-506 finds
its genesis in the common-law concept of due
diligence which, in the context of water law,
has been expressed as follows:
" . . . [T]he law does not require
any unusual or extraordinary efforts, but it
does require that which is usual, ordinary,
and reasonable. The diligence, required in
the prosecution of the construction of all
works necessary for the diversion and
application of water in an attempted
appropriation of the same is that constancy
or steadfastness of purpose or labor which is
usual with [people] engaged in like
enterprises, and who desire a speedy
accomplishment of their designs. . . " 2
Kinney on Irrigation and Water Rights, p.
1269. . . . It is basic that the
determination of diligence is factual in
nature and is to be determined from the
circumstances surrounding each particular
case.
Id. at 1365-66 (citations omitted).
We hold that the regulatory standard of requiring an
applicant to demonstrate "diligent effort toward completing the
appropriation"for a permit extension satisfies the more general
statutory standard of granting an extension for "good cause
shown." Therefore, DNR can extend a permit if the applicant
shows diligent effort.
To obtain a finding of reasonable
diligence, the holder of the right must prove
continuous, project-specific effort directed
toward the development of the conditional
right commensurate with his [or her]
capabilities. Reasonable diligence must be
evidenced by reasonable progress in the
development of the conditional appropriation
in the most expedient and efficient manner.
Trans-County Water v. Central Colo. Water Conservancy Dist., 727
P.2d 60, 64 (Colo. 1986).
DNR stated that it extended the permits "because of the
complexity of the issues and the potential change in land
ownership." However, DNR failed to follow its own regulation in
extending the permits based on these two reasons because neither
basis bears on whether TDL demonstrated a "diligent effort toward
completing the appropriation"as required by 11 AAC 93.120(f).
DNR extended TDL's permits for reasons alien to the regulation.
Moreover, TDL also failed to demonstrate diligent effort in its
extension applications. DNR should have required TDL to describe
the work which had been done to perfect the appropriation, show
how the water had been beneficially used, or, at a minimum,
explain why no use had yet been made, and state precisely why
additional time was needed. Without this information, DNR could
not determine whether TDL had made a "diligent"effort warranting
permit extensions. TDL could not rely on its initial
applications for water rights, because they did not contain
information that would have satisfied the requirements of 11 AAC
93.040. We hold that on this record DNR was not authorized to
extend the permits.
1. TDL did not demonstrate construction of
infrastructure or water use.
The representations TDL made in the extension
applications reveal that the extension requests fail to meet the
diligent effort standard. The initial permits, issued in
February and June 1982 stated that TDL would construct and use
bucket line dredges. The 1990 extension applications stated:
The infrastructure including, but not
limited to: airfields; road system; camp
sites with complete living, working and power
facilities; 2 bucketline dredges; and 1
trommel washplant are well established for
support of any of our operations on the
contiguous claim block and vicinity.
TNCC asserts that "these facilities have long been
present in the area. For example, . . . [Northland Gold
Dredging's]12 dredge was operational in 1981, since it started to
destroy the river then; and the dredge at Bear Creek had been in
use well before 1988." TNCC's point is apparently that TDL's
statement should not be construed as demonstrating a diligent
effort by TDL, the permit holder, because Northland had already
established the infrastructure. Additionally, TNCC argues that
regardless of who completed the infrastructure, Northland or TDL,
the fact the infrastructure is established obviates TDL's need
for a permit extension.13
TDL responds that, by nature, mining cannot be confined
to one location due to the need to build settling ponds and
assemble the intakes of actual diversions. TDL, therefore,
suggests that this indicates that the infrastructure has not been
completed and extensions are warranted. However, TDL did not
provide this information in its extension applications and the
agency record does not clearly reveal what TDL may have done to
prepare for further operations. Thus, TDL's unsupported
assertion that it needs more time to complete the infrastructure
is insufficient.
TNCC further argues that since the dredges and the wash
plant were available, TDL was in a position to make beneficial
use of the water before the 1990 expiration of the 1986
extensions, but failed to do so.
ADF&G raised this issue with DNR regarding eight of the
streams in early 1990.14 Specifically, ADF&G questioned whether
TDL had made any use of the waters, and with the exception of
Spruce Creek, whether there were any present plans to mine there.
DNR never responded to ADF&G.
TDL did not demonstrate any actual water use in its
extension applications. Moreover, in many of the applications,
TDL stated that mining (and its concurrent use of water) would
not begin until an undetermined or vague future date, in some
cases commencing after the permits' 1993 expiration date.15 In
other extension applications, TDL stated that it intended to
operate in a number of the creeks in vague time frames from 1990
to 1994.16 An applicant must actually do something during the
term of the permit to demonstrate diligence; a statement of
intent cannot suffice. City of Denver v. Northern Colo. Water
Conservancy Dist., 276 P.2d 992, 1003-04, 1008 (Colo. 1954). See
also Trans-County Water, 727 P.2d at 64 (citing Orchard Mesa
Irrigation Dist. v. City of Denver, 511 P.2d 25, 28 (Colo. 1973)
("to prove due diligence, there must be concrete efforts to
finalize the appropriation; a vague hope to use the water someday
is insufficient")).
In its decision on appeal, DNR responded to TNCC's
assertion that there was no evidence that the mining operation
had used water during the past five years by stating that it
"[found] evidence in the administrative record that water use . .
. [had] occurred." DNR, however, did not specify what that use
was or which streams had been used. TDL's applications failed to
demonstrate that TDL had made any beneficial use of the water
between 1986 and 1990, or that it intended to do so absent
another extension. The record does not clearly indicate what use
TDL made of the water before the 1986 extensions expired in 1990.
The record does contain information that might have supported
findings that TDL operated a wash plant at California Creek and
Rocky Creek in 1987-89. The record suggests less clearly that
the valley floors were dredged as recently as 1987, but does not
specify where any such operations occurred. DNR made no specific
findings about what beneficial use of water TDL made while the
1986-90 permits were in force, and made no findings about how any
water use at particular sites might have justified extending the
permits at all the sites.17
2. Diligent effort can be shown on a
project instead of on each individual stream.
TDL contends that its placer mining operation is a
single project, therefore, it need not perfect an appropriation
from each stream to show diligent effort. TNCC argues that a
showing of diligence must be made for each particular stream,
claiming that the Colorado Supreme Court expressly rejected an
argument identical to the one TDL makes here.
Although in City of Denver v. Northern Colo. Water
Conservancy Dist., 276 P.2d 992, 1000 (Colo. 1954), the Colorado
Supreme Court concluded, "The priority of appropriation which
gives the better right under [the Colorado] Constitution is a
priority on a stream rather than on a project,"the facts in that
case are distinguishable from the dispute before us. The Denver
court listed the following considerations: (1) whether streams
within a project are confluent with a main water body or somehow
physically connected; (2) whether the permittee seeks to divert
water from an "entirely separate drainage basin;"(3) whether the
water appropriation on one water body was surveyed and planned
years later than the other projects; and (4) whether
appropriation on part of the project would directly affect other
claimants who are "protestants [in that part of the project] but
not directly affected by [the other] projects." Id. Thus, the
court implicitly acknowledged that a demonstration of diligent
effort on a stream within a project can conceivably suffice to
show diligence throughout. Applying those guidelines in the
instant case would support a conclusion that the fifteen
permitted streams are part of a larger project: (1) the disputed
permits are for the Tuluksak River and its tributaries; (2) all
diversions are from two connected drainage basins within a
defined area of operation; (3) TDL's mining and water use plan
has always included each of the permitted streams; and (4) the
"protestants" here claim to be directly affected by TDL's
operations on each of the permitted streams. However, in light
of TDL's failure to demonstrate diligent effort for any of the
streams, we cannot extend the finding to the entire project.
Consequently, we need not determine on how many individual
streams18 a permittee must demonstrate diligent effort to
demonstrate diligence on a project.
In sum, TDL did not show a diligent effort in making a
water appropriation in its permit extension applications. DNR
made no explicit or implicit findings of diligent efforts, but
rather, granted the extensions based on the alleged complexity of
the issues and a prospective change in ownership of the land.
Neither reason bears on whether TDL demonstrated a diligent
effort to complete its water appropriation on any stream. DNR's
rationale for extending the permits, therefore, is not related to
the diligent effort criterion contained in 11 AAC 93.120(f). We
conclude that DNR acted arbitrarily in extending the permits,
thereby abusing its discretion.
D. Whether DNR Had Substantial Evidence To Extend the
Water Rights Permits?
TNCC asserts that DNR's decision to extend the permits
is not supported by the record. Specifically, it argues that (1)
DNR lacked any basis to conclude that adequate water would be
available for appropriation; (2) DNR did not have substantial
evidence to support the amount of water granted for mining
operations; (3) DNR did not consider that the method of placer
mining had changed; and (4) DNR did not adequately address TNCC's
concerns regarding water quality, navigation, or fish and
wildlife.
1. DNR had adequate data to estimate stream
flows and thereby determine that TDL could
appropriate 5.6 cfs.
TNCC contends that DNR did not have the necessary data
to determine whether TDL should be able to appropriate 5.6 cfs
from each of the fifteen streams. TNCC relies on two letters,
one from Barry Hecht of Balance Hydrologics, Inc. and one from
Lawrence Wise of Entrix, Inc., which express opinions that DNR
erred in concluding that there was sufficient water to meet the
requirements of TDL's mining operations while also protecting
fish habitat.
DNR contends that the permit extensions were based upon
the best available data, and the information subsequently
submitted by TNCC did not contradict DNR's data. DNR asserts
that its decision is supported by adequate hydrologic data,
relying on the memorandum by its hydrologist, Mark Inghram. DNR
also notes that in approving TDL's appropriation of 5.6 cfs it
relied on ADF&G's memorandum which stated that it had no
objection to the issuance of the water right because the
"withdrawal will not adversely affect fish or wildlife . . . if
conducted according to an approved plan of operations."
DNR's regulation provides that an application for a
water right must include "a description of the mean annual flow,
or mean monthly flow if available, using the best available data,
or, if data are not available, an estimate of mean annual flow
using acceptable hydrologic methods." 11 AAC 93.040(c)(14).
Thus, TDL's requested water appropriation of 5.6 cfs must be
based on the best available data or an estimate using acceptable
hydrologic methods to estimate mean annual or monthly flows.
Essentially, TNCC wants us to attach more importance to
the methodology and conclusions of Hecht and Wise than to the
methodology and conclusions of DNR's expert. TNCC's expert,
Hecht, used the U.S. Geological Survey's standard procedure for
estimating flows in ungauged waterbodies in southwestern Alaska
and estimated stream flows based on the Kisaralik basin to the
south of the Tuluksak area. Hecht challenged Inghram's "use [of]
an average flow for the June through October period as the basis
for evaluating water availability since flows vary so much over
the course of the summer."19 Hecht suggested that DNR should use
a minimum flow instead of a mean flow.
TNCC's other expert, Wise, used the Tennant Method for
determining instream flow requirements for the maintenance of
fish habitat.20 To maintain "excellent" fish habitat, Wise
recommended that flow diversions not exceed fifty percent of the
average annual rainfall of any individual tributary and the sum
of the withdrawals should not exceed fifty percent of the average
annual flow of the Tuluksak River. Wise opined that, using the
Tennant Method and Inghram's flow estimates, TDL could withdraw
5.6 cfs and maintain "excellent"fish habitat in most of the
streams. However, he asserted that Shovel Creek did not contain
enough water to withdraw 5.6 cfs, and diverting such an amount on
Rocky and Spruce Creeks would result in "fair to degrading" and
"poor or minimum"habitat, respectively.
DNR and its hydrologist considered the information
presented by Hecht and Wise in its decision on remand. Based on
information provided by Hecht, Inghram revised his original flow
estimates in eight tributaries to the Tuluksak River, finding
that greater than 5.6 cfs of water existed in all but Shovel and
Spruce Creeks. DNR concluded that the differences between
Inghram's estimates and those of Hecht are roughly nine percent,
which "represents corroborating values." As a result of Wise's
assertion that there would be inadequate flow in Shovel Creek,
TDL agreed to relinquish its permit to appropriate water from
Shovel Creek for mining. DNR maintained, however, that Rocky and
Spruce Creeks "have the water necessary for mining; and, since
the water is required to be returned to those creeks, flows
necessary for fish habitat would be maintained at a level that
would be considered 'excellent' to 'outstanding' under the
Tennant Method."21 After reviewing the documents submitted by
TNCC, DNR adhered to its decision to issue all permit extensions
except for Shovel Creek.
No recorded data exist for the exact stream flows of
the Tuluksak River and its tributaries. Consequently, DNR needed
to extrapolate that information to determine how much water was
available for appropriation. DNR considered the estimates of its
hydrologist, Inghram, and those of Hecht and Wise, provided by
TNCC ten months after DNR decided to extend the permits. DNR
concluded that an appropriation of 5.6 cfs was justified in all
streams except Shovel Creek, for which TDL subsequently
relinquished its permit. Although DNR ultimately maintained its
decision to extend the permits, it modified its analysis of flow
estimates. We conclude that DNR's determination that TDL could
appropriate 5.6 cfs based on the estimated stream flows in all
streams except Spruce Creek is supported by substantial evidence.
Despite its own hydrologist's estimate of only 4.6 cfs
stream flow in Spruce Creek, Hecht's estimate of 3.6-4.2 cfs, and
Wise's assertion that withdrawal of 5.6 cfs would result in "poor
or minimum"fish habitat, DNR granted TDL the permit extension to
appropriate 5.6 cfs in Spruce Creek. Therefore, DNR's extension
for Spruce Creek was not supported by substantial evidence.
2. The record does not support a grant of
the amount of water TDL requested and DNR granted.
TNCC also argues the permit extensions are invalid
because they allow TDL to take more water than it needs. TNCC
argues that since TDL uses settling ponds to recycle 100% of the
water, TDL does not need 5.6 cfs of water once the settling ponds
are filled. TDL explains that despite its recycling program, it
is necessary to divert water from the streams because of water
loss (by evaporation and infiltration under normal conditions and
when the operation stops for a protracted period) and the
potential need to fill settling ponds which may be built when TDL
moves the wash plant. TDL notes that while 5.6 cfs is the flow
rate to which it requires access in order to guarantee sufficient
water for its ongoing operations, TDL will not, in fact, divert
5.6 cfs twenty-four hours a day.
The pertinent DNR regulation states that an application
for a water right must include "a statement of the quantity of
water requested, with documentation and calculations justifying
the request."22 11 AAC 93.040(c)(13). The record contains no
documentation and calculations from TDL justifying its request
for 5.6 cfs.
On December 22, 1986, DNR amended the amount of water
to be appropriated to 5.6 cfs (from the previously permitted
levels of 6 cfs and 7 cfs) in each of the permits, apparently on
its own initiative, without supplying its reasons for doing so.
DNR initially granted TDL 6 cfs and 7 cfs for two permits which
covered large areas. DNR's initial grant can be fairly
interpreted to have permitted TDL a total appropriation of 13 cfs
for the two permitted areas, not 6 cfs and 7 cfs for each
tributary within the permitted areas. The latter interpretation
would potentially result in a cumulative total appropriation much
greater than 13 cfs for the initial two permits. Therefore, when
DNR split the initial two permits into fifteen permits, allowing
5.6 cfs to be appropriated for each permitted stream, DNR allowed
TDL to appropriate a total of approximately 84 cfs. By doing so,
DNR improperly amended the permitted appropriation amounts.
Additionally, TDL has not supported its claimed need
for 5.6 cfs. TDL broadly asserts that "[t]he ongoing flow rate
necessary to guarantee operation of TDL's mining equipment is 5.6
cfs," explaining that 5.6 cfs is needed to replenish water loss
in settling ponds due to evaporation, seepage, cessation of
operation, or moving the wash plant.23 This assertion is not
supported by facts in the record. No logical or self-evident
reason explains why that amount of water is needed to fill or
refill a settling pond; TDL could, for example, fill the pond at
a slower rate or pump from the shallow ground water adjacent to
ponds. Furthermore, other than asserting that 5.6 cfs is the
flow rate to which it requires access, TDL fails to demonstrate
why such an amount is necessary.24 Therefore, DNR's grant of 5.6
cfs lacked a substantial basis in the record.
3. DNR should have considered the change in
the nature of the water use from a dredge
operation to a wash plant.
TNCC claims that the water use has changed, and
therefore that the amount of water to be appropriated should
reflect this change. TNCC contends that the original permits
approved the operation of a bucket line dredge, which required 6
and 7 cfs to operate. In December 1986 DNR amended the
appropriation per stream to 5.6 cfs; DNR retained that amended
figure through the disputed extensions. However, DNR found that
from 1987-90 TDL used wash plants which apparently require more
water than bucket line dredges. TNCC argues that this is a
substantial change in the way the water was used, and therefore
that, DNR should not have extended the 5.6 cfs allocation without
further analysis.
TDL responds that "[t]he fact that . . . [it] has gone
from a dredge to a wash plant operation does not change the type
of beneficial use involved: placer mining. Only the type of
equipment used has changed." The DNR Director responded
similarly to TNCC's position on this point: "While the type of
operation for mining has changed from dredging to a wash plant, I
find that using water for placer mining has not changed."
TNCC counters that the beneficial use is not "placer
mining," but instead "placer mining by wash plant" rather than
"placer mining by dredge." We agree. The issue is not the
general purpose of the appropriation, but the requisite amount of
water for the specific project involved. DNR requires a water
right applicant to describe the "nature of the water use." 11
AAC 93.040(c)(9). The nature of the water use changes if a
mining company employs a significantly different mining method
that requires a different quantity of water. If TNCC was correct
in asserting that a wash plant uses different amounts of water
than a dredge, TDL should have been required to seek amended
permits reflecting an adjusted limit on the amount to be
appropriated. If TNCC was correct, TDL also should have been
required to provide "a statement of the [new] quantity of water
requested, with documentation and calculations justifying the
request." 11 AAC 93.040(c)(13). DNR did not decide whether TNCC
was correct; it only considered that the basic use, placer
mining, was unchanged. DNR should have considered whether the
two different methods of mining, in fact, require different
amounts of water. Not having conducted that analysis or answered
TNCC's argument, DNR should not have extended the 5.6 cfs
allocation. The record does not appear to contain facts that
would have supported a finding the two types of operations use
identical amounts of water (had DNR made such a finding) and it
certainly does not contain facts that are so convincing that they
render harmless DNR's failure to decide that issue.
4. DNR adequately addressed TNCC's concerns
regarding water quality and navigation, but failed
to do so regarding fish and wildlife.
TNCC argues that DNR did not adequately address TNCC's
concerns regarding water quality, navigation, and fish and
wildlife. DNR responds that TNCC supports this claim with
opinions which are not probative of harm attributable to TDL's
permitted activities.25
DNR may not issue a permit unless doing so is in the
public interest. AS 46.15.080(a)(4). In making this
determination, DNR shall consider the impacts of water
appropriation on fish and game resources, public health, and
access to navigable water. AS 46.15.080(b)(3), (4), (8). DNR's
regulation provides that "[a] permit extension . . . will, in the
commissioner's discretion, be subject to additional conditions
that the commissioner considers necessary to protect prior
appropriators and the public interest." 11 AAC 93.120(g).
Therefore, DNR must consider the public interest in determining
whether to extend permits, specifically considering the impacts
on water quality, navigation, and fish and wildlife. AS
46.15.080(b); 11 AAC 93.120(e)(2) & (g).
a. Water quality concerns
DNR's decision to extend the permits discussed water
quality:
The biggest concern expressed in the
objections to this project and in the public
hearing concerned water quality. This issue
is hard to get a handle on due to the fact
that there is no baseline data prior to
mining, and the water quality work done to
date has been geared towards turbidity and
sediment. The USF&WS has a draft report out
on the impacts of placer mining on the Yukon
Delta National Wildlife Refuge. The
conclusion states that no evidence was found
that mining activities have adversely
impacted the Tuluksak River's water quality
or fish population.[26] However, the report
goes on to say that river sediment in and
below mining operations appear to be
accumulating heavy metals. It is
hypothesized that alterations in specific
water quality parameters, such as PH, could
release the heavy metals and trace elements
found in sediment to the Tuluksak River. The
report does not demonstrate that water
quality has been affected by the mining to
date, but speculates that the Fog River and
Otter Creek significantly influence the lower
Tuluksak River's chemical characteristics.
Neither of these streams have been mined in
the past.
The report suggested that the current
studies be continued with additional, and
more extensive monitoring, on a regular
schedule. BLM, in their Environmental
Assessment (EA) states that, "No impact to
the water quality of the Tuluksak River
watershed is expected from the mining
operation, because there are no planned
diversions of surface water or direct
discharges of processed water to the Tuluksak
River. All surface and ground water
intercepted in the mining areas will be
collected and recycled into the operational
water supply or treated to state and federal
standards before discharge."
The wash plant used in this mining
operation has consistently met state and
federal water quality standards during the
last six years of operation, according to DEC
and BLM. Monitoring by the federal and state
agencies has not identified any contaminants
in the Tuluksak River system, which might be
attributed to the mining or its support
activities (BLM's EA).
DNR relied on the reports of various agencies in
concluding that the Tuluksak River meets state water quality
standards. DNR provided conditions regarding water quality on
the permit extensions:
Per AS 46.030.050, [sic] Any discharge
to state waters made subsequent to these
water appropriations shall comply with the
Alaska Water Quality Standards. This may
require the installation and maintenance of
settling ponds or similar systems to reduce
turbidity and settleable solids in the
discharges.
. . . .
All operations will be conducted to
prevent degradation of natural water courses
or systems. Processed water will be recycled
and any overflow will be treated to state and
federal standards before discharge. All
surface waters within the state of operations
will be subject to treatment before
discharge.
Although DNR could have been more specific in the conditions it
imposed regarding water quality,27 TNCC fails to demonstrate that
DNR did not comply with state water quality standards. Thus, DNR
did not abuse its discretion.
b. Navigation concerns
During the public hearing at Tuluksak, villagers
testified that navigability on the river had decreased. DNR's
decision found that navigability would not suffer from issuance
of the permits because mining did not reduce the overall flow of
the river since there would allegedly be no net loss of water.28
TNCC claims that DNR's decision ignored the villagers' testimony
and is, therefore, unfounded.
Although we acknowledge the sincerity of the villagers'
opinions that mining will necessarily degrade the Tuluksak River,
TNCC failed to document how TDL had negatively impacted
navigability on the river and its tributaries.
c. Fish and wildlife concerns
The Tuluksak River provides important habitat for
salmon and is relied upon as a subsistence and commercial
fishery. The Tuluksak River system contains "one of the major
salmon spawning streams in the Kuskokwim River drainage." A loss
of salmon production in the Tuluksak River will impact the
Village of Tuluksak's subsistence fishery. Additionally, the
Tuluksak River is a major contributor to the Kuskokwim River
commercial fishery.
TNCC argues that DNR did not adequately address TNCC's
concerns regarding fish and wildlife. Villagers testified that
there are fewer fish in the river than before mining began.
Additionally, TNCC submitted Wise's report, stating that fish
need at least fifty percent of the stream flow to have
"excellent" fish habitat. TNCC also expresses its concern that
stream segments may become dewatered when the return point of
recycled water is downstream from the appropriation point,
thereby significantly depleting fish spawning and rearing
habitats and preventing passage of fish upstream or downstream at
key life stages.
TNCC's concern about the potential for dewatering has
merit. A permit applicant must provide "a legal description of
the point of withdrawal, diversion, or impoundment; the point of
water use; and, if water is to be returned to a stream or water
body, the point of discharge." 11 AAC 93.040(c)(6). Neither
TDL's original applications nor its extension applications
indicate precisely the points where the water will be diverted
and then returned to the streams. Consequently, it is difficult
to determine where a stream may potentially become dewatered.
DNR failed to place any conditions on the permits concerning the
distance between the point of appropriation and the point of
return. See 11 AAC 93.120(e)(2)(A) (providing that DNR may
include conditions to maintain a specific quantity of water at a
given point to protect fish and wildlife) & 11 AAC
93.120(e)(2)(B) (providing that DNR may include conditions that
include the approved location of points of withdrawal and return
flow). 11 AAC 93.120(e)(2) gives DNR the authority to include
conditions which would have potentially protected fish and
wildlife. DNR's decision granting the permit extensions
contained one condition regarding fish and wildlife: "Operations
will be conducted in a manner to minimize wildlife species
disruption and habitat destruction. Reclamation will be
designed, to the extent practicable, to enhance wildlife habitat
diversity and productivity."
11 AAC 93.120(e)(2) gives DNR the authority to include
conditions which protect fish and wildlife. Because TDL's
extension applications failed to reveal the location of the
points of appropriation and return, DNR should have conditioned
the permits. DNR might have cured any deficiency in the
applications by imposing stringent limitations on dewatering and
by requiring that operations cease or be reduced to maintain
adequate streamflow for fish and wildlife. The sole condition
DNR imposed regarding fish and wildlife is too vague to ensure
protection of the salmon habitat from dewatering. Because DNR
did not incorporate any specific condition regarding dewatering,
it abused its discretion in granting extensions in response to
deficient applications.29
IV. CONCLUSION
We hold that DNR acted outside its authority in
extending the water rights permits because TDL did not show
"diligent effort toward completing the appropriation"as required
by 11 AAC 93.120(f). We conclude that DNR had adequate data to
estimate stream flows. We conclude that the amount of water TDL
requested is not supported by the record. We conclude that DNR
did not abuse its discretion in determining that the permit
extensions adequately addressed water quality and navigation
concerns; however, we conclude that DNR abused its discretion by
failing to address fish and wildlife concerns adequately.
Accordingly, we REVERSE DNR's decision to extend the
permits and REMAND to DNR. If TDL wishes to pursue the
extensions, DNR must order TDL to file a proper application for a
permit for each stream for which TDL intends to use water in the
definite future, providing a justification for the amount of
water each operation would require, and demonstrating diligent
effort and how water was beneficially used during the prior
extensions that expired in 1990. Applicants seeking permits or
extensions are not necessarily in the best position to make
determinations potentially affecting fish and wildlife.
Consequently, if DNR decides to issue permits, we urge it to
consider including conditions requiring maintenance of specific
minimum quantities of water in specified stretches of stream and
specifying the points of withdrawal and return.
_______________________________
1 The challenged permit extensions are as follows:
Permit Extensions ADL 209433, ADL 213050, LAS 5670, LAS 5672, LAS
5674, LAS 5675, LAS 5676, LAS 5677, LAS 5678, LAS 5679, LAS 5680,
LAS 5681, LAS 5682, LAS 5683, and LAS 5684.
2 The Tuluksak River has its headwaters in the Kilbuck
Mountains. The river is ninety miles long and drains
approximately 830 square miles of southwestern Alaska before
entering the Kuskokwim River. Gold placer mining operations
began on the Tuluksak in the early 1900's.
In a 1983 report, the Alaska Department of Fish and
Game (ADF&G) reviewed the permit applications since 1981 and
characterized the Tuluksak River as a "major contributor to the
Kuskokwim River commercial fishery." ADF&G estimated that the
Tuluksak contributes seventeen percent of the salmon in the
Kuskokwim River drainage. It also found that the portion of the
river proposed for diversion and mining "contains the highest
quality king salmon spawning habitat in the Tuluksak River
drainage." Further, ADF&G reported that
91% of the king salmon, 92% of the chum
salmon, 100% of the pink salmon and an
unknown percent of the coho salmon spawning
in the Tuluksak River occurs downstream of .
. . [this portion] and is exposed to the
detrimental effects of the increased
turbidity and sediment loads which will
result from instream mining by . . .
[operating a mining company's] dredge.
3 DNR separated the permits for "administrative purposes
so that for each stream (source of water) being used within the
mining block there is a separate water right file."
4 ADF&G questioned the availability of 5.6 cfs in
Shamrock Creek, Sabula Creek, Spruce Creek, Myrtle Creek, Rocky
Creek, Shovel Creek, and Dry Creek. Additionally, ADF&G
requested information regarding water flow, existing water uses,
and the time water would be needed in Nugget Creek because it
"has been specified as an anadromous fish waterbody . . . and is
known to provide spawning and rearing habitat for coho salmon."
5 ADF&G asked for information such as monthly flow
duration analyses, the estimate of mean annual flow, the existing
water use appropriations, if any, from the waters, and the
anticipated date the need for the water would arise. TNCC claims
that ADF&G never received the information.
6 TDL has since expressly relinquished its permit for
Shovel Creek.
7 Although the subject permit extensions expired at the
end of the 1993 mining season, we consider the merits of this
appeal. Generally, we refrain from deciding questions where
events have rendered the legal issues moot. Brandon v. Dep't of
Corrections, 865 P.2d 87, 92 n.6 (Alaska 1993) (citing Hayes v.
Charney, 693 P.2d 831, 834 (Alaska 1985)); see Kleven v.
Yukon-Koyukuk School Dist., 853 P.2d 518, 523 (Alaska 1993)
(quoting United States v. Geophysical Corp., 732 F.2d 693, 698
(9th Cir. 1984) ("A claim is moot if it has lost its character as
a present, live controversy.")). However, "where the matter is
one of public concern and is recurrent but is capable of evading
review," there is a public interest exception to the mootness
doctrine. Hayes, 693 P.2d at 834 (quoting Doe v. State, 487 P.2d
47, 53 (Alaska 1971)).
The public interest exception involves
consideration of three main factors:
1) whether the disputed issues are
capable of repetition, 2) whether the
mootness doctrine, if applied, may repeatedly
circumvent review of the issues and, 3)
whether the issues presented are so important
to the public interest as to justify
overriding the mootness doctrine. . . .
Ultimately, the determination whether to
review a moot question is left to the
discretion of the court.
Id. (citations omitted).
Here, consideration of the three factors indicates that
this matter falls within the public interest exception. First,
TDL has repeatedly sought and been granted extensions of its
water use permits. Based on TDL's previous applications, it
appears likely that it intends to continue to seek permit
extensions, until its appropriation ripens into a water right.
Thus, the issues addressed in the present controversy are likely
to arise again, when DNR considers future extensions. Second,
the last extension granted to TDL was for less than two years.
Due to the complexity of various ancillary issues in this case,
DNR has favored issuing shorter term permits pending their
resolution. It is therefore likely that the term of future
permit extensions will be completed before final appellate review
occurs and thus application of the mootness doctrine may
repeatedly circumvent review of the issues addressed in this
appeal. Third, since a water rights permit can potentially ripen
into a property right, the public interest in the common water
resource is important. Moreover, due to the ripening nature of a
water right, our review of the propriety of granting the permit
extensions will potentially determine the viability of TDL's
future water right. Therefore, although the permit extensions
expired in October 1993, we consider the merits of this appeal.
8 "[A]ppropriate means to divert, impound, or withdraw a
quantity of water from a source of water, for a beneficial use or
to reserve water under AS 46.15.145." AS 46.15.260(1).
9 DNR made numerous changes to the pertinent regulations
effective November 7, 1990: DNR amended 11 AAC 93.040(c), 11 AAC
93.120, and 11 AAC 92.130, and adopted 11 AAC 93.125. TDL
applied in April 1990 for the permit extensions at issue. DNR
issued the extensions in 1991. TNCC cited the amended
regulations in support of its arguments before the agency and on
appeal to the superior court and to this court. DNR cited one of
the newly-amended regulations when it denied TNCC's
administrative appeal. Likewise, appellees TDL and state
officials have consistently cited to the amended regulations in
their joint superior and supreme court briefs. No party on
appeal has argued that the regulations effective November 7, 1990
are inapplicable to the issues before us.
10 AS 46.15.080 provides the criteria for issuing a
permit:
(a) The commissioner shall issue a
permit if the commissioner finds that
(1) rights of a prior appropriator
will not be unduly affected;
(2) the proposed means of
diversion or construction are adequate;
(3) the proposed use of water is
beneficial; and
(4) the proposed appropriation is
in the public interest.
(b) In determining the public interest,
the commissioner shall consider
(1) the benefit to the applicant
resulting from the proposed appropriation;
(2) the effect of the economic
activity resulting from the proposed
appropriation;
(3) the effect on fish and game
resources and on public recreational
opportunities;
(4) the effect on public health;
(5) the effect of loss of
alternate uses of water that might be made
within a reasonable time if not precluded or
hindered by the proposed appropriation;
(6) harm to other persons
resulting from the proposed appropriation;
(7) the intent and ability of the
applicant to complete the appropriation; and
(8) the effect upon access to
navigable or public water.
11 TDL and its lessee, NYAC Mining Company, hold all
mining claims within the Tuluksak Valley. All lands within the
NYAC planning block are federal lands managed by BLM. These
lands are presently closed to mineral entry. Calista Regional
Native Corporation has selected these lands under the Alaska
Native Claims Settlement Act. The transfer of these lands to
Calista is pending within the BLM.
12 Northland Gold Dredging mined the area in the early
1980's.
13 The extension application form states before the
signature line, "I hereby apply for an extension of time in which
to complete construction of the structures and begin beneficial
use of water." (Emphasis added.)
14 The streams included: Shamrock Creek, Sabula Creek,
Spruce Creek, Myrtle Creek, Rocky Creek, Shovel Creek, Dry Creek,
and Nugget Creek.
15 In three of the extension applications, TDL stated that
it had no intent to begin mining until after 1993, the expiration
date of the present permits. With regard to two of those
permits, TDL stated that actual operations will await suitable
economic conditions. Additionally, two applications stated that
TDL "may opt to wait on extracting these reserves until . . .
[they] are working in that vicinity, in 1994 or 1995." One
application stated, "It is anticipated that we will begin
extracting those reserves in 1995. The exact timetable is
dependant on the business strategy of mining the reserves on the
whole contiguous claim block." Further, one application stated,
"We have no present plans to develop these lode deposits
ourselves but we are presently marketing their developement [sic]
and the continuation of the present water permit is valuable for
that purpose."
16 The applications for Bear Creek, Bonanza Creek, Spruce
Creek, and California Creek provided that TDL intended to operate
in 1990 and 1991. The application for claim # AA30710 stated
that TDL planned to operate in 1991. Some time thereafter, TDL
would mine Granite Creek and Dry Creek. Another application
provided that TDL "would likely move onto those reserves in
1992." One application stated that "Shamrock Creek is one of our
optional sites for the Trommel Washplant beginning as early as
1992 or 1993." The application for Sabula Creek provided that
TDL anticipated on extracting those reserves in 1993 or 1994.
17 Our analysis of this issue highlights the point that
the permits in question here are essentially blanket permits
authorizing water to be taken at any point along more than forty
miles of stream. By contrast, the regulations applicable to
applications for water rights are site specific, requiring
designation of the point of water withdrawal and the point of
discharge back to the stream. 11 AAC 93.040(c)(3). No
applications conforming with the degree of specificity required
by the regulations appear in the record. The parties do not
directly address whether blanket permits to appropriate water are
authorized by statute. It is clear, however, that the
regulations concerning permit applications do not contemplate
blanket permits.
18 This assumes blanket rather than point specific permits
are lawful. See note 17, supra.
19 In the absence of any measurements or useful estimates,
Inghram estimated flows in the affected creeks by "analogy to the
nearest gaged basins of similar size, which are in portions of
Southwest Alaska." Hecht challenges the analogy on the basis
that the area used had much greater precipitation.
20 The Tennant Method requires the calculation of the
average annual flow, and then assesses the effect of removal of
flow on the habitat of aquatic animals by determining the
percentage of average annual flow remaining in the stream. This
method assigns habitat quality values for different flow regimes
during different parts of the year.
21 Christopher Estes, Statewide Instream Flow Coordinator
for ADF&G, stated that Wise incorrectly applied the Tennant
method. Estes stated that the Tennant method "should be combined
with an evaluation of mean daily flow, monthly flow, and other
hydrologic characteristics particular to the water body under
investigation, whenever these data are available or can be
estimated." Estes concluded that Wise did not include estimates
of mean annual flow for each tributary and instead based the
analysis on a mean monthly flow estimated by combining mean
monthly flows for June through October which may not reflect the
flow variability available for fish and other uses during
individual months. Additionally, he claimed the analysis
contained no fish periodicity data, "without which it is not
possible to assess the quality of, and need for, the recommended
instream flow requirements to sustain fish habitat."
Wise stated that he used a modified Tennant method in
response to having only Inghram's flow estimates with which to
work. He justified the use of the average flow from June through
October as more realistically reflecting the stream conditions
during the spawning season than would the use of the average
annual flow. Regarding periodicity, Wise responded that his
analysis did consider the timing of life history activities of
salmon. Furthermore, Wise explained that using the standard
Tennant method results in lower flow recommendations which may
not provide full protection for spawning fish, therefore, using
the modified Tennant method results in a "conservative estimate
of the amount of flow needed to protect important fishery
resources of the Tuluksak River tributaries."
22 Although 11 AAC 93.040(c)(13) speaks directly to an
application for a permit, we believe that this requirement also
applies to permit extensions. Because a permit extension
concerns the terms and conditions of the permit and thereby the
amount of water requested, DNR should require an applicant for a
permit extension to provide the quantity of water requested, with
documentation and calculations justifying the request. This is
especially true where the information supporting the initial
permit fails to satisfy the regulation or where the terms in the
extension permit differ from those approved in the initial
permit.
23 TNCC disputes TDL's assertion that the settling ponds
will lose water, and instead, asserts that the ponds will gain
water. TNCC points to TDL's ADF&G permit which specifies how TDL
is to deal with "settling pond overflow water."
24 TDL argues in support of its allowed diversion of 5.6
cfs: "TDL's application for the wash plant operation requested
3,000 gallons per minute, or roughly 6.7 cfs. Since the
application established that mining did not run into November,
DNR decreased the allowable diversion to 5.6 cfs accordingly, to
reflect June-October usage."
TDL fails to explain why it initially needed 6.7 cfs.
Additionally, TDL does not explain why the fact that November was
not part of the mining season justified DNR's approval of 5.6
cfs.
Further, TDL's statement that its application for the wash plant
operation established that mining did not run into November is
not found in the application. As TNCC points out, TDL's
attempted justification makes no sense. "The amount taken from a
stream reflects the amount to be taken at a given time, not an
average throughout the mining season. Moreover, flows in
November obviously are going to be far lower than in the summer,
due to freeze-up, which means that June-October usage will be
higher than June-November usage."
DNR granted TDL 5.6 cfs without either an explanation
or a justification in the record as to why that amount is
necessary for TDL's mining operation. Possibly facts exist which
would have supported a permit of 5.6 cfs, but the record does not
contain them and DNR does not describe them.
25 A number of villagers testified at the DNR hearing as
to how mining affected the Tuluksak River, noting the decline in
water quality, water levels, and the number of fish.
26 The November 1990 USF&WS report provides:
Limnological information and analytical
data collected during non-mining periods
indicate that the Tuluksak River's water
quality meets state water quality standards.
No sediment levels exceeded Service-derived
criteria; however, sediment collected in, and
downstream of, mined sites contained
significantly greater concentrations of trace
elements and heavy metals than those levels
found in control samples. Total metals
concentrations in fish collected from mining-
influenced sites were not significantly
greater than those fish samples collected
from control sites. Furthermore,
concentrations in fish were below Service
DRAFT tissue criteria associated with
expected environmental impacts.
27 USF&WS noted in its report that "placer mining in
Alaska, in general, has had a history of non-compliance with
water quality standards and there is little evidence that the
existing situation is likely to improve soon." Consequently,
USF&WS recommended, at a minimum, including the following
parameters in future monitoring plans:
settleable solids turbidity
alkalinity hardness
conductivity temperature and pH
dissolved oxygen suspended solids
total arsenic in water dissolve metals in water
total metals in sediment mercury in fish tissue
28 DNR's decision stated the following about navigation:
The navigability of the Tuluksak River
has changed over time. Sand bars have been
created at its confluence with the Kuskokwim
River due to sediment deposits. Some of this
sediment originated from the Tuluksak River
and its tributaries. It is not possible to
determine if this impact is due to past
mining practices prior to 1985, but it is
evident that a majority of sediment
transported by the Tuluksak River comes
through natural means, such as bank erosion.
In the BLM environmental assessment for this
mining project, it states that, "During
periods of high flow, water clarity degrades
slightly in the upper valley, but clarity may
fall off sharply in the lower river due to
accelerated bank cut and slumping of silt
rich soils."
The largest source of sediment within
the Tuluksak River comes from the Fog River,
a tributary to the Tuluksak River. The Fog
River has never been mined, and the turbidity
and sedimentation processes occurring are
natural.
In some areas of past dredging, surface
water flow is temporarily lost to
intertailing flow. This is evident on
California Creek, which does not have a
continuous surface water flow to the Tuluksak
River. This break in flow was caused by the
1955 dredging, which placed a strip of
tailings across the valley mouth. In other
areas, dredging adjacent to stream channels
has caused a reduced surface flow as water is
flowing through the tailings, and not at the
surface.
The overall flow of the Tuluksak River
has not been decreased due to mining, and
surface water quantity below these mining
sites has not been altered. The same
historical volumes of water are available
downstream from the mining project due to the
nonconsumptive nature of placer mining.
29 TNCC also argues that DNR violated article VIII,
section 13 of the Alaska Constitution by extending TDL's permits
because DNR did not reserve enough water to support fish and
wildlife. However, we find it necessary to abstain from reaching
constitutional issues unless essential to a decision in the case.
See Municipality of Anchorage v. Anchorage Daily News, 794 P.2d
584, 594 n.18 (Alaska 1990) (declining to reach broader
constitutional issue when civil rules constitute sufficient
device for controlling discovery harassment); State v. F/V
Baranof, 677 P.2d 1245, 1255 (Alaska) (not addressing
constitutionality of statute since owners were afforded due
process), cert. denied, 469 U.S. 823 (1984); Zerbe v. State, 578
P.2d 597, 598 (Alaska 1978) (not addressing constitutional issue
because of disposition of first point on appeal), overruled on
other grounds, Stephens v. State, Dep't of Revenue, 746 P.2d 908
(Alaska 1987); Puller v. Municipality of Anchorage, 574 P.2d
1285, 1288 (Alaska 1978) (not reaching constitutional issues in
light of construction of statute); State v. City of Anchorage,
513 P.2d 1104, 1112 (Alaska 1973) (reaching constitutional issue
unnecessary after interpreting statute); Anniskette v. State, 489
P.2d 1012, 1016 (Alaska 1971) (not reaching broader question of
statute's constitutionality since conduct protected by
constitution) (cited with approval in Marks v. City of Anchorage,
500 P.2d 644, 647 n.9 (Alaska 1972)). Because we hold that DNR
erred in extending the permits pursuant to the applicable
regulations, it is not essential to the resolution of the case to
decide the constitutional issue.
]]>
