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Bering Straits Coastal Mgt. Program v. Noah (1/23/98), 952 P 2d 737
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Notice: This opinion is subject to formal 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, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
BERING STRAITS COASTAL )
MANAGEMENT PROGRAM; NATIVE ) Supreme Court Nos. S-7679/7699
VILLAGE OF KOYUK, )
) Superior Court No.
Appellants/Cross-Appellees, ) 2NO-94-06 CI
)
v. )
)
HARRY NOAH, COMMISSIONER, ) O P I N I O N
RON SWANSON, DIRECTOR, )
DIVISION OF LAND; ALASKA ) [No. 4936 - January 23, 1998]
DEPARTMENT OF NATURAL )
RESOURCES; COASTAL POLICY )
COUNCIL, )
)
Appellees/Cross-Appellants. )
)
Appeal from the Superior Court of the State of
Alaska, Second Judicial District, Nome,
Michael I. Jeffery, Judge.
Appearances: Nancy S. Wainwright, Anchorage,
for Appellants/Cross-Appellees. Cameron M. Leonard, Assistant
Attorney General, Fairbanks, for Appellee/Cross-Appellant
Department of Natural Resources, Steven C. Weaver, Assistant
Attorney General, Juneau, for Appellee/Cross-Appellant Coastal
Policy Council, and Bruce M. Botelho, Attorney General, Juneau, for
Appellees/Cross-Appellants.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
COMPTON, Chief Justice.
I. INTRODUCTION
The Alaska Coastal Policy Council (Council) held that a
proposed trapping cabin in the Timber Creek area of the Koyuk River
drainage is consistent with the Alaska Coastal Management Program
(ACMP) and the Bering Straits Coastal Management Plan (Bering
Straits Plan). [Fn. 1] The superior court, on an appeal pursuant
to Alaska Appellate Rule 602, affirmed the Council's decision. The
Bering Straits Coastal Management Program (Coastal District)
appeals. The State cross-appeals the superior court's finding that
the Council has jurisdiction to determine whether a permit
application is consistent with the Northwest Area Plan (NWAP). We
affirm the Council's decision that the proposed cabin is consistent
with the Bering Straits Plan. Since the applicability of NWAP has
no effect on the reasonableness of the Council's decision, we
decline to determine whether the Council has jurisdiction to apply
NWAP.
II. FACTS AND PROCEEDINGS
A. The Regulatory Framework
Alaska Statute 46.40.010(a) provides that the Council
"shall approve . . . the Alaska coastal management program [ACMP]."
The objectives of ACMP must be consistent with, inter alia,
the use, management, restoration, and
enhancement of the overall quality of the coastal environment; the
development of industrial or commercial enterprises that are
consistent with the social, cultural, historic, economic, and
environmental interests of the people of the state; [and] the
orderly, balanced utilization and protection of the resources of
the coastal area consistent with sound conservation and sustained
yield principles.
AS 46.40.020(1)-(3). The statute states that "[c]oastal resource
districts shall develop and adopt district coastal management
programs in accordance with [its] provisions." AS 46.40.030. Once
a local coastal district develops a management program, the Council
must approve it before it becomes part of ACMP. AS 46.40.060(a).
All land-use permit applications must conform with any affected
district coastal management programs (CMP) before being approved by
a resource agency. AS 46.40.100(a).
When a permit application for a project located in a
coastal zone or which affects a coastal zone is submitted to a
resource agency, either the agency or the Office of Management and
Budget reviews the application for consistency with any affected
CMP. See 6 Alaska Administrative Code (AAC) 50.190(14), 6 AAC
50.070, AS 46.40.096(b). If only one resource agency's approval is
needed, that agency becomes the coordinating agency for that
application. AS 46.40.096(b).
The coordinating agency provides public notice of the
project and receives and analyzes comments from the public, other
resource agencies, and any affected coastal district(s). 6 AAC
50.070. The coordinating agency "carefully"considers all comments
and gives "due deference"to the comments of any affected coastal
district(s). Id. An affected coastal district is considered to be
an expert on its own plan. 6 AAC 50.120(a). If the coordinating
agency rejects the recommendation of a coastal district, the agency
must make written findings stating the reasons for the rejection.
6 AAC 50.120(a). After concluding the consistency review described
above, the coordinating agency writes a proposed "consistency
determination." AS 46.40.040(6); 6 AAC 50.120(b).
After a coordinating agency's proposed consistency
determination is circulated, "a resource agency, an affected
coastal resource district with an approved program, or [an]
applicant"may request elevation of review to "the division
directors, and then commissioners of the resource agencies."[Fn.
2] 6 AAC 50.070(j)-(k). "If the review is elevated, the
coordinating agency . . . shall arrange meetings and shall mediate
among the resource agencies, the affected coastal resource
districts with approved programs, and the applicant, for the
purpose of attempting to resolve any disputed issues and to
formulate a mutually acceptable consistency determination." 6 AAC
50.070(k). If no consensus is reached the coordinating agency must
render a determination consistent with any policy directions given
by the commissioner or the governor. Id.
If no consensus is reached after commissioner-level
elevation, an "authorized party"may "file a petition showing that
a district coastal management program is not being implemented,
enforced, or complied with." AS 46.40.100(b). [Fn. 3] The Council
"shall convene [for an adjudicatory hearing] . . . to consider the
matter." AS 46.40.100(b).
B. The Bering Straits Coastal Management Program
The Bering Straits Coastal Resource Service Area (BSCRSA)
was formed in 1980 by local vote to delineate the boundaries of a
coastal management district under ACMP. A BSCRSA Board was formed,
also by local vote, to develop and adopt a program for the coastal
management district. [Fn. 4] After nine years of development, the
BSCRSA's coastal management plan was approved by the Council and
added to ACMP.
C. Procedural History
Keith Koontz has trapped on the Seward Peninsula since
1980. [Fn. 5] Koontz originally used a building known as the Camp
Haven cabin, located in a valley adjacent to Timber Creek, as the
base for his guiding and trapping operations. In 1989 the Bureau
of Land Management advised Koontz that he must vacate the Camp
Haven cabin because it was being restored as a historical site.
Koontz continued to trap in the area between November and mid-
February, using a tent camp. However, he found the tent camp "too
cold and too risky in the event of an emergency."
Koontz filed a Trapping Cabin Construction Permit
application with the Department of Natural Resources (DNR) in July
1990. He proposed to build a sixteen-foot by twenty-foot cabin, an
outhouse, and a cache for storage. The cabin would be constructed
of logs selectively taken from the area around the site so as not
to create a clearing. The proposed sod roof would not be visible
from the air. The cabin would be approximately six miles from the
Camp Haven cabin, which would allow Koontz to use his old Camp
Haven trapping lines.
DNR was the sole agency whose approval Koontz needed to
build the cabin. DNR therefore served as the "coordinating agency"
under ACMP. 6 AAC 50.030(b).
Coastal District commented that the proposed cabin was
inconsistent with ACMP and the Bering Straits Plan. Coastal
District therefore recommended that DNR deny the permit application
on the grounds that a permanent cabin would violate the established
custom and tradition of not building permanent structures in
hunting and trapping grounds and that it would interfere with
subsistence hunting and trapping in the area. Coastal District
also noted that "local trappers were allowing furbearer populations
to rebuild and that a cabin would interfere with that program." It
emphasized that it was objecting to a permanent cabin, but did not
object to Koontz's right to subsistence trap in the area.
After collecting all comments, DNR concluded that a
permanent trapping cabin was consistent with both the Bering
Straits Plan and ACMP. Coastal District elevated the review to the
division director. As an alternative to a permanent cabin, Coastal
District suggested that Koontz use a wall tent for shelter, or base
his trapping activities in a local village. The director reversed
DNR's finding that the permanent cabin was consistent with the
Bering Straits Plan and ACMP, and denied Koontz a permit to build
a permanent structure. The director adopted Coastal District's
suggestion that Koontz use a wall tent as a base for his trapping
activities.
Koontz elevated the review to the level of the DNR
commissioner. He argued that a wall tent did not provide adequate
safety for his trapping activities. The Division of Governmental
Coordination wrote the commissioner's level review on behalf of the
commissioner. The commissioner reversed the director's decision
and approved the permit application to build a permanent trapping
cabin. The commissioner's findings included the following: (1) the
proposed cabin is not in an Important Use Area; (2) Koontz's
trapping has not impacted wildlife nor interfered with activities
of residents of surrounding villages; and (3) the proposed cabin
would not negatively impact subsistence or traditional and
customary uses in the area.
Coastal District petitioned the Council for a hearing,
arguing that a trapping cabin violated NWAP and policies A-1, A-4,
B-2, and K-3 of the Bering Straits Plan. [Fn. 6] A hearing officer
conducted an adjudicatory hearing and affirmed the commissioner's
decision. The hearing officer found that the "[i]ssuance of a
permit for the erection of the proposed Timber Creek cabin is
consistent with [the Bering Straits Plan]." The hearing officer
also concluded that the Council lacked jurisdiction to consider
claims under NWAP, but that the permit was consistent with NWAP in
any event. The vote by the Council after the hearing was 7-1 in
favor of the permit.
Coastal District appealed the Council's decision to the
superior court pursuant to Appellate Rule 602. The superior court
concluded that the Council's decision was supported by substantial
evidence and had a reasonable basis and therefore upheld it. This
appeal and cross-appeal followed.
III. DISCUSSION
A. Standard of Review
"No deference is given to the superior court's decision
when it acts as an intermediate court of appeal." Kuitsarak Corp.
v. Swope, 870 P.2d 387, 392 (Alaska 1994).
Our review of the Council's order is limited to
determining whether it had a reasonable basis. We use the
reasonable-basis standard for questions of law involving agency
expertise. We recently summarized this standard in Kuitsarak:
In reviewing agency decisions involving
complex subject matters or fundamental policy determinations, our
role is to ensure that the agency has taken a hard look at the
salient problems and has genuinely engaged in reasoned decision
making. We review the agency decision only to the extent necessary
to ascertain whether the decision has a reasonable basis, and to
ensure that it was not arbitrary, capricious, or prompted by
corruption. Where an agency fails to consider an important factor
in making its decision, the decision will be regarded as arbitrary.
We review DNR's decision to issue [the requested permits] under the
reasonable basis standard.
Id. (citations and quotations omitted).
We review an administrative agency's factual findings for
substantial evidence. See Handley v. State of Alaska, Dep't of
Revenue, 838 P.2d 1231, 1233 (Alaska 1992). Substantial evidence
is "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Id. (quoting Keiner v. City of
Anchorage, 378 P.2d 406, 411 (Alaska 1963)). We substitute our
judgment for that of the agency only when it has interpreted the
law in an area where it has no special expertise. Id.
B. The Council Did Not Owe Coastal District's Consistency
Comments Due Deference during a Hearing under AS 46.40.100(b).
After DNR's proposed consistency determination was
elevated to its highest level, Coastal District petitioned the
Council for a hearing under former AS 46.40.100(b). [Fn. 7] Before
granting a hearing, the Council required that Coastal District make
a prima facie showing that its coastal management program was not
being "implemented, enforced, or complied with." AS 46.40.100(b).
The Council conducted a pre-hearing conference and a five-day
hearing and then requested post-hearing briefs.
The Council correctly determined that it is authorized to
conduct this hearing de novo under AS 46.40.100(b). The Council
reasoned that the public hearing "shall be held in accordance with
the Administrative Procedure Act." AS 46.40.100(b) (amended 1994).
The hearing officer concluded that "[s]ince the Administrative
Procedure Act . . . embodies procedures for the conduct of a
denovo hearing rather than appellate review procedures . . . the
legislature must have intended that [the Council] apply these
procedures and conduct its hearing de novo." She noted
additionally that
[t]he fact that the [Council]'s authority to
conduct a hearing existed prior to and is independent of the
"consistency review process"contained in 6 AAC 50 indicates that
its authority is not limited to a deferential review of the
decision-making which occurred during that process but, rather,
that it has the authority to conduct a de novo hearing.
Coastal District contends that a de novo hearing denies
it the deference required by 6 AAC 50.120. ACMP regulations
specifically state that the coordinating agency, when making its
consistency determination, must afford due deference to the
comments of the affected coastal district. 6 AAC 50.120(a). [Fn.
8] Coastal District argues that due deference at the comment level
is meaningless unless it is also required at a Council hearing. It
maintains that "[The Council] is charged with reviewing DNR's
decision, [and] it therefore acts in a manner akin to that of a
panel of judges reviewing agency action." Coastal District reasons
that if the Council reviews the decision of the coordinating
agency, it must afford the same deference as the coordinating
agency.
We conclude that the Council hearing, authorized by
AS 46.40.100(b), is not a review of the coordinating agency's
decision. [Fn. 9] A party who petitions the Council for a hearing
must show that the district program is not being "implemented,
enforced, or complied with." AS 46.40.100(b). This petition is
wholly independent from the review by right available before the
Council hearing. Due deference is required only of the
coordinating agency when making a consistency determination. The
Council properly conducted its hearing using a de novo standard of
review.
C. The Council's Finding that a Permanent Trapping Cabin Was
Consistent with the Bering Straits Plan Had a Reasonable Basis.
The Council concluded that the "issuance of a permit for
the erection of the proposed Timber Creek cabin is consistent with
the [Bering Straits Plan]."[Fn. 10] An initial determination
underlying the hearing officer's analysis was that the proposed
cabin will be in a Permit Notification Area, not an Important Use
Area. She also concluded that the proposed cabin "will not have an
adverse impact on either subsistence resources or the habitat of
subsistence resources."
1. The proposed cabin site is not in an Important Use
Area.
Whether the proposed cabin is in an Important Use Area
[Fn. 11] is a question of law involving agency expertise, requiring
a "reasonable basis"standard of review. Cook Inlet Pipe Line Co.
v. Alaska Pub. Utils. Comm'n, 836 P.2d 343, 348 (Alaska 1992).
Under this standard of review "we give deference to the agency's
determination 'so long as it is reasonable, supported by the
evidence in the record as a whole, and there is no abuse of
discretion.'" Id. (quoting Kodiak Western Alaska Airlines, Inc. v.
Bob Harris Flying Serv., Inc., 592 P.2d 1200, 1203 n.7 (Alaska
1979)).
Both parties agree that the proposed cabin lies in the
Koyuk River drainage. The conflict concerns whether the entire
Koyuk River drainage is an Important Use Area under the Bering
Straits Plan, a question which has policy implications apart from
the individual facts of this case. See Galt v. Stanton, 591 P.2d
960, 965-66 (Alaska 1979) (Rabinowitz, J. concurring) ("The
reasonable basis test is utilized by this court whenever the agency
is, in effect, making law by creating standards or setting criteria
which will be used to evaluate future situations in addition to the
individual cases before it."). We conclude that the Council had a
reasonable basis for its decision that the entire Koyuk River
drainage is not an Important Use Area.
The Council's conclusion that the proposed cabin is not
in an Important Use Area rejected the recommendation of Coastal
District which, by regulation, is an expert on its own coastal
plan. 6 AAC 50.120(a). The Bering Straits Plan states, "[t]his
Important Use Area, [the Koyuk River drainage], includes the Koyuk
River and the coastal waters extending one mile from the ordinary
high water of the Koyuk River at its confluence with Norton Bay."
[Fn. 12] The Council concluded that this language completely
contained the description for the Important Use Area. In other
words, only the river and the coastal waters extending one mile
from the river's high-water confluence with the bay are considered
an Important Use Area. Map 4-1 in the Bering Straits Plan shows
the Important Use Area; it contains a bold line drawn up the river
valley.
The Plan's description of the Solomon River drainage,
another Important Use Area, supports this conclusion. The Plan
describes it as "the drainage of the Solomon River upstream"and
notes a "corresponding boundary line around the entire river
drainage." It is reasonable to conclude that if Coastal District
had wanted to make the area that now includes the proposed cabin
site part of an Important Use Area, it would have described the
Koyuk River drainage as carefully and expansively as the Solomon
River drainage.
Additionally, the hearing officer found that the
description of the "essential subsistence use area"only comprised
the river and the river valley, not the entire river drainage. Her
findings included that only the river and its valley "are critical
to the villages' subsistence needs."
The Council's analysis regarding Permit Notification
Areas (PNA) is persuasive. Both parties agree that the proposed
cabin site is in a PNA. By definition, PNA's are outside of the
coastal zone boundary; a location within a PNA cannot
simultaneously be in an Important Use Area. See Bering Straits
Plan sec. 3.2 (Coastal Boundary).
While Coastal District raised evidence controverting the
Council's determination, such evidence does not render the
Council's decision erroneous under the deferential reasonable basis
standard. [Fn. 13] We conclude that the Council's decision that
the proposed cabin would not be in an Important Use Area has a
reasonable basis.
2. The proposed cabin will not adversely affect
subsistence use or wildlife in the area.
Whether the proposed cabin will affect subsistence use or
wildlife is a question of fact, reviewed under the "substantial
evidence"standard. Handley, 838 P.2d at 1233. Substantial
evidence is "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Id. (quoting Keiner,
378 P.2d at 411). Under this standard, we do not independently
weigh the evidence, but only determine whether such evidence
exists. See Municipality of Anchorage, Police & Fire Retirement
Bd. v. Coffey, 893 P.2d 722, 726 (Alaska 1995).
The following testimony constituted substantial evidence
to support the Council's conclusion that construction of the
proposed cabin "will not negatively impact the subsistence
resources in the area."
Koontz testified that he would build the cabin with white
spruce logs "selectively cut over a large area so as to avoid
making a clearing." The roof would be made out of sod "which will
minimize its visibility from the air." The hearing officer
considered Koontz's plan to dispose of all anticipated waste
products. A Division of Forestry representative testified that
"careful thinning of trees would be beneficial to the land."
With regard to wildlife impact, the hearing officer found
no evidence from which to conclude that Mr.
Koontz's trapping activities have had or will have an impact on the
subsistence resources. . . . Mr. Nelson [the area biologist]
testified that he does not believe that Mr. Koontz's activities
will impact wildlife. . . . Nor does he believe that Mr. Koontz's
operation of his snowmachine to check his traplines will have an
impact on the subsistence resources.
Mr. Nelson testified that "the cabin will have no impact on moose
or caribou . . . [and furbearers] might actually increase in
numbers near the cabin."
The hearing officer found Koontz's use of the Camp Haven
cabin highly relevant to his predicted use of the proposed cabin.
The officer rejected Coastal District's argument that she should
consider the use and impact of another cabin, the Shaktoolik River
cabin, to predict the impact of the proposed cabin. The officer
found that the Shaktoolik River cabin is a public-use cabin,
located on a well-traveled river route in an area densely populated
by caribou. In contrast, the proposed cabin is not likely to be
used by the public except in emergencies and is not on any trail or
in an area well populated by large wildlife.
The Coastal District claimed that all foreign elements in
"the environment would negatively impact the ecosystem in the
surrounding area." However, the hearing officer found the
testimony for DNR to be more credible than that of Coastal
District. She found that "no evidence was offered to substantiate
[the] opinions"of Coastal District witnesses. Also, she found
that Coastal District witnesses' testimony were "predicated on
assumptions which have no factual basis in the record."
In light of the circumstances discussed above, we
conclude that the Council relied on substantial evidence to decide
that the proposed cabin would not adversely affect subsistence use
and wildlife in the Timber Creek area.
D. The Weight that DNR Afforded Coastal District's Comments
Is Beyond the Scope of this Appeal.
We decline to review whether DNR afforded Coastal
District due deference during its consistency determination. The
final administrative determination of the permit application was
made during a de novo hearing conducted by the Council. There is
no indication that the degree of deference that DNR gave Coastal
District's comments during the first proposed consistency
determination influenced the hearing which the Council conducted.
Any dispute concerning such deference therefore is beyond the scope
of our review.
E. The Issue of the Council's Jurisdiction over NWAP Has No
Affect on the Resolution of this Case.
We decline to review whether the Council has jurisdiction
to apply NWAP, because the applicability of NWAP, or the lack
thereof, has no affect on the outcome of this case. If NWAP is not
applicable, we have already concluded that the cabin is consistent
with ACMP and the Bering Straits Plan. If NWAP applies, a
reasonable basis exists for the Council's conclusion that the
proposed cabin is consistent with the Plan. NWAP states that
"trapping cabin construction permits should not be issued if the
cabin will conflict with existing trapping and subsistence
activities." The Council already concluded that the proposed cabin
would not adversely affect wildlife or subsistence trapping in the
area. Thus it had a reasonable basis for determining that the
proposed cabin was consistent with NWAP.
IV. CONCLUSION
We AFFIRM the Council's determination that a permanent
trapping cabin is consistent with ACMP and the Bering Straits Plan.
We decline to reach the issue whether DNR afforded Coastal
District's comments due deference. We also decline to review
whether the Council has jurisdiction to apply NWAP.
FOOTNOTES
Footnote 1:
The appellants/cross-appellees are Bering Straits Coastal
Management Program, a coastal resource district as defined by AS
46.40.210(2)(E) and consisting of the Bering Straits Coastal
Resource Service Area (BSCRSA) and the Native Village of Koyuk
(collectively Coastal District). The appellees/cross-appellants
are Harry Noah, Commissioner, Ron Swanson, Director, Division of
Land; Alaska Department of Natural Resources; Alaska Coastal Policy
Council (collectively the State).
Footnote 2:
The resource agencies are the Alaska Department of Fish and
Game, Alaska Department of Natural Resources, and Alaska Department
of Environmental Conservation.
Footnote 3:
The former version of AS 46.40.100 was in effect at the time
of the Council hearing. The current statute, effective August 7,
1994, also allows appeals to the Council.
Footnote 4:
AS 46.40.030 lists the specific guidelines for programs:
(1) a delineation within the district of
the boundaries of the coastal area subject to the district coastal
management program;
(2) a statement, list, or definition of
the land and water uses and activities subject to the district
coastal management program;
(3) a statement of policies to be
applied to the land and water uses subject to the district coastal
management program;
(4) regulations, as appropriate, to be
applied to the land and water uses subject to the district coastal
management program;
(5) a description of the uses and
activities which will be considered proper and the uses and
activities which will be considered improper with respect to the
land and water within the coastal area;
(6) a summary or statement of the
policies which will be applied and the procedures which will be
used to determine whether specific proposals for land or water uses
or activities shall be allowed; and
(7) a designation of, and the policies
which will be applied to the use of, areas within the coastal
resource district which merit special attention.
Footnote 5:
The Department of Fish and Game Furbearer Sealing Records
indicate that Koontz trapped three wolverines in Timber Creek
preceding his permit application (in 1985, 1987, and 1990). The
hearing officer heard testimony that Koontz's trapping had no
adverse effects in the area. However, this testimony was presented
by witnesses who had already stopped trapping in Timber Creek by
1985, the first recorded year of Koontz's trapping activities.
Coastal District questions the validity of this expert testimony
that Koontz will not negatively impact wildlife and subsistence use
in the area. We conclude that the hearing officer had other
substantial evidence that supported her decision that Koontz's
trapping had no adverse effects in Timber Creek. See Discussion,
infra, Part III.C.2.
Footnote 6:
A-1 Subsistence Use
Subsistence use of the coastal lands and
waters of the Bering Straits CRSA has traditionally been the
primary and highest priority use of all lands and waters within the
coastal management plan area; therefore, all other land/water uses
and activities shall ensure that through careful planning,
development, and operation of a resource extraction or development
project, all steps will be taken to mitigate adverse impacts to
subsistence resources and their use in accordance with Policy F-2.
A-4 Impacts on Subsistence
Within Important Use Areas identified for
subsistence resources and activities in Chapter 4, entities
proposing non-subsistence uses or activities shall locate such uses
and activities at alternative sites outside the identified areas.
Where location in alternative sites is not feasible and prudent,
uses and activities shall minimize adverse impacts to subsistence
resources, subsistence activities, and coastal habitats.
B-2 Habitat Maintenance
All habitats shall be managed to maintain or
enhance the biological, chemical, and physical characteristics of
the habitat which contributes to its capacity to support living
resources.
K-3 State Land Disposals
The Bering Straits CRSA will participate in
the planning process for programmatic state land disposals in
accordance with the authorities outlined in AS 38 . . . 6 AAC 50,
and other Department of Natural Resources procedures.
Footnote 7:
This statute was amended in 1994 (sec.sec. 3, 4, 5, 6 ch 34
SLA
1994). This petition was filed and reviewed under the prior
statute. Former AS 46.40.100(b) provided:
On petition of a coastal resource district, a
citizen of the district, or a state agency, showing that a district
coastal management program is not being implemented, enforced or
complied with, the council shall convene a public hearing to
consider the matter. A hearing called under this section shall be
held in accordance with the Administrative Procedure Act (AS
44.62). After hearing the council may order that the coastal
resource district or state agency take any action which the council
considers necessary to implement, enforce or comply with the
district coastal management program.
Footnote 8:
6 AAC 50.120(a). Conclusive Consistency Determination.
In rendering a conclusive consistency
determination, the coordinating agency shall give careful
consideration to all comments, and shall give due deference to the
comments of resource agencies and affected coastal districts with
approved programs. "Due deference"means that deference which is
appropriate in the context of the commenter's expertise and area of
responsibility, and all the evidence available to support any
factual assertions. A coastal resource district whose district
program has been incorporated into the ACMP is considered to have
expertise in the interpretation and application of its program. If
the coordinating agency rejects a stipulation or recommendation
requested by a commenting resource agency or affected coastal
resource district with an approved program, within its respective
area of expertise, the coordinating agency shall make a written
finding stating the reasons for rejecting the stipulation.
Footnote 9:
Under the current version of AS 46.40.100(b), this is changed.
Now the Council must review the decision of the coordinating agency
to determine whether the agency has fairly considered the
petitioner's comments. AS 46.40.100(b)(1)(A).
Footnote 10:
AS 46.40.100(d) states:
(d) Except when a petition has been filed
under AS 46.40.096(e), in determining whether a state agency is
complying with a district coastal management program with respect
to its exercise of regulation or control of the resources within
the coastal area, the council shall find in favor of the agency if
(1) the use or activity for which the
permit, license, or approval is granted is consistent with the
district coastal management program and regulations adopted under
it; and
(2) the use or activity for which the
permit, license, or approval is granted is consistent with
requirements imposed by state statute, regulation, or local
ordinance applicable to the use or activity.
Footnote 11:
Bering Straits Plan 4.4.2 Important Use Areas:
Some areas within the region warrant special
attention due to the presence of highly productive wildlife
habitat, the ability to sustain a large part of a village's
subsistence needs, the occurrence of unusual historical sites or
large mineral deposits, recreation, energy development, hazardous
areas, or the presence of important fisheries. These areas are
very important to the communities within the Bering Straits CRSA
and are identified on Map 4-1.
Footnote 12:
The Bering Straits Plan sec. 4.4.2.7 clarifies why the area
was
designated as an Important Use Area. The two specific designations
for this area are habitat and subsistence.
Footnote 13:
Coastal District argues that the Bering Straits Plan's map was
meant as a "visual aid,"not as a defining tool. Coastal District
employs the plain language of the Plan by arguing that the word
"includes"("includes the Koyuk River and the coastal waters")
should be defined similarly to other ACMP regulations, meaning
"including but not limited to." 6 AAC 80.900(21); 6 AAC
85.900(10). Coastal District also highlights the fact that the
name of the Important Use Area is the "Koyuk River Drainage,"which
supports its assertion that the entire river drainage is included
in the Important Use Area.
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