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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Dept. of Natural Resources v. Nondalton Tribal Council (1/20/2012) sp-6638
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, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
DEPARTMENT OF NATURAL )
RESOURCES and Tom Irwin, )
Commissioner of Natural Resources, )
) Supreme Court No. S-13681
Petitioners, )
) Superior Court No. 3DI-09-00046 CI
v. )
) O P I N I O N
NONDALTON TRIBAL COUNCIL, )
Koliganek Village Council, ) No. 6638 - January 20, 2012
New Stuyahok Traditional Council, )
Ekwok Village Council, Curyung )
Tribal Council, Levelock Village )
Council, AIFMA Cooperative Inc. )
d/b/a The Alaska Fishermen's )
Marketing Association, and Trout )
Unlimited, Inc., )
)
Respondents. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Dillingham, Fred Torrisi, Judge.
Appearances: J. Anne Nelson, Assistant Attorney General,
John T. Baker, Senior Assistant Attorney General,
Anchorage, and Daniel S. Sullivan, Attorney General,
Juneau, for Petitioners. Geoffrey Y. Parker, Law Office of
Geoffrey Y. Parker, and Thomas E. Meacham, Anchorage,
for Respondents.
----------------------- Page 2-----------------------
Before: Carpeneti, Chief Justice, Winfree, Christen, and
Stowers, Justices. [Fabe, Justice, not participating.]
STOWERS, Justice.
I. INTRODUCTION
Six tribal councils, joined by two other associations (collectively "the
Tribes"), filed an action against the State of Alaska, Department of Natural Resources
(DNR) in the superior court in Dillingham seeking declaratory judgment that the 2005
Bristol Bay Area Plan (BBAP, the Plan) was unlawful. DNR's motion to dismiss under
Civil Rule 12(b)(6) was denied and the superior court held that: (1) the BBAP is a
regulation that must be promulgated under the Alaska Administrative Procedure Act
(APA), and (2) Alaska Appellate Rule 602(a)(2) - which provides for a 30-day period
in which to appeal a final agency decision - does not bar the Tribes' claims. We
granted DNR's petition for review and now hold Appellate Rule 602(a)(2) does not bar
the Tribe's claims and the BBAP is not a regulation.
II. FACTS AND PROCEEDINGS
A. Land Use Planning In Alaska: History And Regulatory Landscape
DNR develops land use plans for state land pursuant to the Policy for Use
and Classification of State Land Surface (Alaska Land Policy Act), which was enacted
in 1978.1 At that time, the State's efforts to select its 103,350,000-acre statehood land
entitlement were complicated by, and partially subordinated to, the rights of Alaska
Natives under the 1971 Alaska Native Claims Settlement Act (ANCSA) to select
approximately 44 million acres of land.2 ANCSA also called for the federal withdrawal
1 Ch. 181, § 5, SLA 1978, codified at AS 38.04.
2 Alaska Statehood Act, Pub. L. No. 85-508, § 6(a)-(b), 72 Stat. 339, 340
(continued...)
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----------------------- Page 3-----------------------
of up to 80 million acres of unreserved public land for inclusion in the national
conservation system.3 Additionally, local governments sought to finalize their municipal
land entitlements.4 The State also faced intense pressure from its citizens to move state
5 6
land into private ownership. Beyond Article VIII of the Alaska Constitution and the
land use classification statute,7 no large-scale planning program for the management of
state lands existed at that time.8
2(...continued)
(1958); Alaska Native Claims Settlement Act, Pub. L. No. 92-293, § 11(a), 85 Stat. 688,
696 (1971) (codified at 43 U.S.C. § 1610(a) (2006)); see also Alaska v. Native Vill. of
Venetie Tribal Gov't, 522 U.S. 520, 524 (1988).
3 Alaska Native Claims Settlement Act, Pub. L. No. 92-293, § 17(d)(2),
85 Stat. at 709 (codified at 43 U.S.C. § 1616(d)(2) (2006)). These became known as "the
d-2 lands." See, e.g., State v. Andrus, 429 F. Supp. 958, 963 (D. Alaska 1977). The
status of these lands was not resolved until after Congress enacted the Alaska National
Interest Land Conservation Act in 1980. See Alaska National Interest Lands
Conservation Act, Pub. Law. No. 96-487, §§ 101 et. seq., 94 Stat. 2371, 2374 (1980)
(codified at 16 U.S.C. §§ 3101 et seq. (2006)).
4 Joint Federal-State Land Use Planning Commission, AGENDA FOR STATE
LANDS : RECOMMENDATIONS TO THE PEOPLE OF ALASKA ON THE FUTURE OF THEIR
PUBLIC LANDS, Part I, Recommendation 7 & Part II 48-50 (Dec. 1975) (hereinafter
FSLUPC, AGENDA FOR STATE LANDS).
5 See Thomas v. Bailey, 595 P.2d 1, 2-4 (Alaska 1979) for a description of
the "Beirne Initiative," which Governor Hammond characterized as "a vast land give-
away which could create an Oklahoma land rush in Alaska." 1978 Alaska House J. 629.
6 Article VIII, section 2 of the Alaska Constitution provides for the
"utilization, development, and conservation of all natural resources belonging to the
State, including land and waters, for the maximum benefit of its people."
7 AS 38.04.065.
8 FSLUPC, AGENDA FOR STATE LANDS, Part II, 19-38 (Dec. 1975).
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ANCSA established the Joint Federal-State Land Use Planning Commission
for Alaska (FSLUPC) to, among other things, "undertake a process of land-use planning"
and "make recommendations . . . to . . . the Governor and legislature of the State as to
changes in laws, policies and programs that the Planning Commission determines are
necessary or desirable."9 To that end, the FSLUPC recommended that Alaska's land
classification system, which had been in existence since statehood and focused on
"disposing of lands into private ownership and on producing revenue," be revised to be
based instead on "an area wide comprehensive planning process" and "the best possible
knowledge of land resources and their interrelationships."10
The Alaska Land Policy Act11 translates the constitutional policies of
Article VIII of the Alaska Constitution into specific land management goals to guide
DNR's land management decisions. It incorporates many of the recommendations of the
FSLUPC, and is modeled in large part after the land planning provisions in the Federal
Land Policy and Management Act of 1976.12
DNR is charged with managing the replenishable state resources under its
jurisdiction in accordance with "the sustained yield principle, subject to preferences
9 43 U.S.C. § 1616(a)(7)(A) & (H) (1976). The FSLUPC ceased to exist on
June 30, 1979. See id. § 1616(a)(10). Subsection (a) is omitted from the current version
of this statute. See 43 U.S.C. § 1616 (2006).
10 FSLUPC, AGENDA FOR STATE LANDS, Part I, Recommendations 1(a) and
2 (Dec. 1975).
11 Codified at AS 38.04.
12 Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579,
90 Stat. 2743, 2744 (codified at 43 U.S.C. §§ 1701 et seq. (2006)). Compare 43 U.S.C.
§§ 1711, 1712 with AS 38.04.060 & .065.
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----------------------- Page 5-----------------------
among beneficial uses."13 The Alaska Land Policy Act guides DNR by establishing the
purposes and goals of making land available for private use, and for retaining state land
in public ownership.14 It also prescribes that disposal and retention decisions be
"determined through the inventory, planning, and classifications processes set out in
AS 38.04.060-38.04.070."15 The inventory of state land and water resources must
emphasize "areas of potential settlement, economic development, and critical
environmental concern."16 In the adoption and revision of land use plans, DNR must:
(1) use and observe the principles of multiple use and
sustained yield;
(2) consider physical, economic, and social factors affecting
the area and involve other agencies and the public in
achieving a systematic interdisciplinary approach;
(3) give priority to planning and classification in areas of
potential settlement, renewable and nonrenewable resource
development, and critical environmental concern;
(4) rely, to the extent that it is available, on the inventory of
the state land, its resources, and other values;
(5) consider present and potential uses of state land;
(6) consider the supply, resources, and present and potential
use of land under other ownership within the area of concern;
(7) plan for compatible surface and mineral land use
classifications; and
13 Alaska Const. art. VIII, § 4.
14 AS 38.04.010 identifies the public interest in making land available for
private use. AS 38.04.015 identifies the purposes for which state land is to be retained
in public ownership.
15 AS 38.04.005(a).
16 AS 38.04.060(a).
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----------------------- Page 6-----------------------
(8) provide for meaningful participation in the planning
process by affected local governments, state and federal
agencies, adjacent landowners, and the general public.[17]
Each regional plan must also identify and delineate:
(1) areas of settlement and settlement impact, where land
must be classified for various private uses, renewable and
nonrenewable resource development, and for public
recreation, open space, and other public uses desirable in and
around settlement; and
(2) areas that must be retained in state ownership and planned
and classified for various uses and purposes under
AS 38.04.015.[18]
The state land use planning process also must result in the classification of land for
surface use.19 Land classification orders are statutorily exempt from the APA.20 The
definitions of the various land classification categories, however, are set out in
regulations.21
In sum, DNR adopts and revises state land use plans under AS 38.04,
AS 38.05.300, and the regulations at 11 AAC 55. DNR implements land use plans
17 AS 38.04.065(b). These requirements largely mirror those in the Federal
Land Policy and Management Act of 1976. See 43 U.S.C. § 1712 (2006).
18 AS 38.04.065(c).
19 AS 38.04.065(e); AS 38.05.300. With limited exceptions, neither state land
nor state interests in land may be disposed of until the land has been classified.
11 Alaska Administrative Code (AAC) 55.040(i) (2005).
20 AS 38.05.020(b)(1) ("[O]rders by the commissioner classifying land, issued
after January 3, 1959, are not required to be adopted under AS 44.62 (Administrative
Procedure Act).").
21 11 AAC 55.050-.230. For discussions of the land use planning process, see
Alaska Survival v. State, 723 P.2d 1281, 1289-91 (Alaska 1986).
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----------------------- Page 7-----------------------
pursuant to the statutory policy "to establish a balanced combination of land available
for both public and private purposes."22 "The choice of land best suited for public and
private use shall be determined through . . . inventory, planning, and classification
processes."23
B. The Bristol Bay Area Plan
DNR adopted the BBAP on April 19, 200524 after a two-year development
process, replacing a 1984 version of the plan. The Plan "directs how [DNR] will manage
state uplands, shorelands, tidelands, and submerged lands within the planning boundary,"
and "determines management intent, land-use designations, and management guidelines
that apply to all state lands in the planning area." (Emphasis added.) The BBAP is one
of 20 area plans in Alaska.25
The BBAP covers almost 19 million acres partitioned into 20 discrete
regions of land, each subdivided into units.26 For each region, the BBAP presents three
types of information: (1) an inventory and description of resources; (2) a management
22 AS 38.04.005(a).
23 Id.
24 DEPARTMENT OF NATURAL RESOURCES, BRISTOL BAY AREA PLAN FOR
STATE LANDS (2005), available at http://dnr.alaska.gov/mlw/planning/areaplans/
bristol/index.htm (last visited Jan. 4, 2012) ("The Commissioner of the Department of
Natural Resources adopts the revised Bristol Bay Area Plan (2005) and finds that it
meets the requirements of AS 38.04.065 and 11 AAC 55.010-55.030 for land use plans.
The Department of Natural Resources will manage state land within the planning
boundaries consistent with this plan.").
25 See Area Plans Online, http://dnr.alaska.gov/mlw/planning/areaplans/ (last
visited Jan. 4, 2012).
26 Note that regions are numbered one through 22, but regions one and four
do not exist.
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----------------------- Page 8-----------------------
summary and guidelines; and (3) statements of management intent for each planning unit
within the region. The Plan as a whole is "the expression of how DNR will pursue"
management of "state lands and resources within the planning area." Specifically, "[t]he
area plan guides DNR decisions for leases, sales, and permits that authorize use of state
lands. . . . DNR's actions will be based on the area plan."
The BBAP is a long-term planning document with an expected lifespan of
20 years. The required public involvement in the planning process took place over two
years, and involved local meetings and opportunity for public comment.27 To implement
the Plan on state lands, "DNR must 'classify' state lands to reflect the intent of 'land use
designations' made by [the Plan],"28 which it did through Land Classification Order No.
SC-04-002, also on April 19, 2005.
C. Proceedings
On May 5, 2009, four tribal councils29 filed suit in the superior court in
Dillingham against DNR and its commissioner, Tom Irwin. An amended complaint
added two more tribal councils as plaintiffs,30 and a second amended complaint added
27 See AS 38.04.065(a) (providing for "local governmental and public
involvement" in adopting or revising land use plans); AS 38.05.945 (listing notice
requirements); 11 AAC 55.250 (specifying notice and either public hearing or
solicitation of public comment).
28 See 11 AAC 55.040.
29 Nondalton Tribal Council, Koliganek Village Council, New Stuyahok
Traditional Council, and Ekwok Village Council.
30 Curyung Tribal Council and Levelock Village Council.
-8- 6638
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two additional plaintiff organizations.31 Collectively, we refer to these
plaintiffs/respondents as "the Tribes."
The Tribes' amended complaint alleged eight causes of action; the seven
at issue here (counts 1 and 3-8) challenged provisions of the BBAP itself.32 In essence,
the Tribes alleged that DNR unlawfully adopted the BBAP, and sought declaratory
judgment that the BBAP was "of no continuing legal force and effect."
DNR moved under Civil Rule 12(b)(6) to dismiss the amended complaint
for failure to state a claim upon which relief could be granted. DNR argued that the
seven causes of action at issue here were barred because they were not brought within
the proper limitations period, and that they were functionally administrative appeals that
should have been raised before the agency. Specifically, DNR alleged that because the
Tribes sought review of DNR's decision, their claims should be treated as an appeal from
an agency determination and barred 30 days following issuance of the determination
under Appellate Rule 602(a)(2).33 DNR also noted that the Tribes had not exhausted
31 AIFMA Cooperative d/b/a the Alaska Independent Fisherman's Marketing
Ass'n, and Trout Unlimited, Inc.
32 Count 2 alleged that DNR's adoption of land classification categories at
11 AAC 55.050-.230 for all uses listed in AS 38.04.015(1) except subsistence violated
AS 38.04.065, AS 38.04.015, and AS 38.05.300. The superior court ruled separately on
this count, granting the State's motion to dismiss. This count was not part of the petition
for review and is not on appeal. A separate ninth cause of action, alleging that DNR
abused its discretion in adopting the BBAP, was added in the Second Amended
Complaint, filed after the superior court decision on appeal here.
33 Alaska R. App. P. 602(a)(2) provides:
(2)Appeals from Administrative Agencies . An appeal may be
taken to the superior court from an administrative agency
within 30 days from the date that the decision appealed from
(continued...)
-9- 6638
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their administrative remedies because the Tribes could have challenged the BBAP by
petitioning DNR to reclassify land under AS 38.05.300(a) and 11 AAC 55.270, and
ultimately could have sought judicial review of that determination.
The Tribes responded by arguing that the BBAP was a regulation as defined
by the APA34 and therefore was subject to judicial review at any time under
33(...continued)
is mailed or otherwise distributed to the appellant. If a request
for agency reconsideration is timely filed before the agency,
the notice of appeal must be filed within 30 days after the
date the agency's reconsideration decision is mailed or
otherwise distributed to the appellant, or after the date the
request for reconsideration is deemed denied under agency
regulations whichever is earlier. The 30-day period for taking
an appeal does not begin to run until the agency has issued a
decision that clearly states that it is a final decision and that
the claimant has thirty days to appeal. An appeal that is taken
from a final decision that does not include such a statement
is not a premature appeal.
34 The APA defines "regulation" in AS 44.62.640(a)(3) as follows:
(3) "regulation" means every rule, regulation, order, or
standard of general application or the amendment,
supplement, or revision of a rule, regulation, order, or
standard adopted by a state agency to implement, interpret, or
make specific the law enforced or administered by it, or to
govern its procedure, except one that relates only to the
internal management of a state agency; "regulation" does not
include a form prescribed by a state agency or instructions
relating to the use of the form, but this provision is not a
limitation upon a requirement that a regulation be adopted
under this chapter when one is needed to implement the law
under which the form is issued; "regulation"
includes "manuals," "policies," "instructions," "guides to
(continued...)
-10- 6638
----------------------- Page 11-----------------------
AS 44.62.300.35 The Tribes further argued that Appellate Rule 602(a)(2) only applies
when an agency acts in an adjudicatory capacity and therefore does not bar their claims
in this case, and also that they were not parties to the decision and therefore were not
bound by the rule's 30-day limit because they did not participate in the process that
resulted in DNR's adoption of the BBAP. Finally, the Tribes argued that they were not
required to exhaust administrative remedies before filing suit because: (1) adoption of
the BBAP was not adjudicatory; (2) seeking reclassification was an inappropriate remedy
because the Tribes did not seek to reclassify land; and (3) the Tribes were not
challenging any particular classification of land, but rather claimed that DNR committed
errors of law - and as such, there were no facts to develop, no agency expertise to
apply, and administrative remedies were inappropriate.
DNR filed a reply in support of its motion to dismiss, arguing that land use
plans are not regulations because they implement DNR's quasi-executive discretion36 and
34(...continued)
enforcement," "interpretative bulletins," "interpretations,"
and the like, that have the effect of rules, orders, regulations,
or standards of general application, and this and similar
phraseology may not be used to avoid or circumvent this
chapter; whether a regulation, regardless of name, is covered
by this chapter depends in part on whether it affects the
public or is used by the agency in dealing with the public[.]
35 AS 44.62.300 provides in relevant part that "[a]n interested person may get
a judicial declaration on the validity of a regulation by bringing an action for declaratory
relief in the superior court."
36 DNR claimed that land use plans are committed to DNR's discretion by
AS 38.04.065(a), which provides that "the commissioner shall, with local governmental
and public involvement under AS 38.05.945, adopt, maintain, and, when appropriate,
revise regional land use plans that provide for the use and management of state-owned
(continued...)
-11- 6638
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are therefore not open to challenge under APA judicial review. DNR attached to its
reply a 2008 decision by Superior Court Judge Beverly Cutler ruling that a statutorily
directed forest management plan was not a regulation under AS 44.62.640(a)(3).
Superior Court Judge Fred Torrisi denied DNR's motion to dismiss and
concluded that the BBAP was a regulation under AS 44.62.640 and therefore was subject
to judicial review under AS 44.62.300.37 The court also found that DNR had cited no
precedent for applying Appellate Rule 602(a)(2) to bar a claim by someone who was not
a party to the administrative proceeding at issue.
DNR petitioned this court for interlocutory review, arguing the superior
court's decision that a statutorily mandated land use plan is a regulation was incorrect,
and that it would lead to widespread judicial challenges to such plans and introduce
uncertainty in state land planning activities. DNR also challenged the superior court's
Appellate Rule 602 decision.
The Tribes opposed granting the petition for review, arguing inter alia that
the decision applied only to the BBAP and not to all land use plans, and that the superior
court was correct in finding that the BBAP was a regulation.
The superior court stayed its proceedings pending the resolution of the
State's petition. Additionally, Pebble Limited Partnership moved to intervene as a
defendant in the superior court, but the case was stayed before oral argument was heard
on this motion, and it does not participate in this appeal.
We granted the petition for review on the issues whether the BBAP is a
regulation and whether Appellate Rule 602 bars the Tribes' action.
36(...continued)
land."
37 This decision addressed only the seven counts at issue here; count 2 was
separately dismissed in another ruling.
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----------------------- Page 13-----------------------
III. DISCUSSION
A. Standard of Review
Whether an agency action is a regulation is a question of law that does not
involve agency expertise, which we review applying our independent judgment.38
Specifically, evaluating whether agency action falls within the statutory definition of a
regulation is a question for the court's specialized knowledge and experience.39
We note that the more deferential standards of review sometimes reserved
for agency interpretations are inappropriate here. As we explained in Jerrel v. State,
"[T]he threshold question in this case is whether the APA applies to DNR's action [at
all]. Because we must decide whether DNR's [action] is a regulation, we do not defer to
the agency's interpretation."40
We interpret Appellate Rule 602 de novo.41
B. Appellate Rule 602 Does Not Bar The Tribes' Action Because The
BBAP Is Not A Final Agency Decision, And Because It Lacks The
Requisite 30-Day Notice To Trigger Rule 602.
38 Alyeska Pipeline Serv. Co. v. State, Dep't of Envtl. Conservation , 145 P.3d
561, 564 (Alaska 2006) ("Whether an agency action is a 'regulation' requiring
rulemaking under the Alaska Administrative Procedure Act is a question of law that does
not involve agency expertise and that we therefore review applying our independent
judgment."); see also Burke v. Houston NANA, L.L.C., 222 P.3d 851, 867 (Alaska 2010);
Alaska Ctr. for the Env't v. State, 80 P.3d 231, 243 (Alaska 2003); Jerrel v. State, Dep't
of Natural Res., 999 P.2d 138, 141 (Alaska 2000); Kachemak Bay Watch, Inc. v. Noah,
935 P.2d 816, 821, 825 (Alaska 1997).
39 Jerrel, 999 P.2d at 141.
40 Id. (citing Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971)).
41 See Stone v. Stone, 255 P.3d 979, 982 (Alaska 2011) (citing Cameron v.
Hughes, 825 P.2d 882, 884 n.2 (Alaska 1992)) ("We interpret Alaska Appellate Rules
de novo.").
-13- 6638
----------------------- Page 14-----------------------
DNR argues that the Tribes' action is barred by Appellate Rule 602.
Appellate Rule 602(a)(2) requires that appeals to the superior court taken from
administrative decisions be made within 30 days "from the date that the decision
appealed from is mailed or otherwise distributed to the appellant."
By filing suit more than four years after the BBAP was adopted, the Tribes
clearly failed to meet the 30-day limit. The question is whether Appellate Rule 602
applies to bar their action.
Rule 602(a)(2) provides:
The 30-day period for taking an appeal does not begin to run
until the agency has issued a decision that clearly states that
it is a final decision and that the claimant has thirty days to
appeal. An appeal that is taken from a final decision that does
not include such a statement is not a premature appeal.[42]
We have interpreted this language strictly, and made explicit that "[f]or Appellate Rule
602(a)(2) to apply, an agency must clearly indicate that its decision is a final order and
that the claimant has thirty days to appeal."43 We have held that the superior court
abused its discretion in refusing to relax the 30-day limit under Rule 602(a)(2) when an
agency decision letter failed to include these required elements.44 Provided the agency
decision meets these criteria, however, we have strictly enforced the 30-day bar, even
against would-be appellants who attempt to file an appeal mere days after the deadline.45
42 Alaska R. App. P. 602(a)(2) (emphasis added).
43 Manning v. Alaska R.R. Corp ., 853 P.2d 1120, 1124 (Alaska 1993); see
also Skudrzyk v. Reynolds, 856 P.2d 462,463 (Alaska 1993) (quoting Manning, 853 P.2d
at 1124).
44 Manning, 853 P.2d at 1124.
45 See Powers v. State, Pub. Emps. Retirement Bd., 757 P.2d 65, 68
(continued...)
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Neither the BBAP nor its associated Land Classification Order state that
they are final decisions or that affected parties have 30 days in which to appeal them. In
fact, the BBAP effectively states that it is not a final decision.46 Moreover, DNR has
neither argued nor offered evidence that either of these "decisions" were "mailed or
otherwise distributed" to the Tribes.47
Because the BBAP and its associated land classification order lack explicit
notice of their finality and of the 30-day period in which to appeal, the BBAP is not a
final decision and Appellate Rule 602(a)(2) does not bar the Tribes' claims.
C. The Bristol Bay Area Plan Is Not A Regulation.
1. Land use plans such as the BBAP are neither required to be nor
precluded from being adopted as regulations by statute.
DNR argues that land use classifications - and by extension land use plans
- are explicitly defined as non-regulatory in AS 38.05.020(b)(1), which states "orders
by the commissioner classifying land . . . are not required to be adopted under [the
APA]." The Tribes counter that the aforementioned statutory language refers only to
land classification orders, not to land use plans such as the BBAP.
Although the legislature specified that land classifications "are not required
to be adopted" under the APA,48 this does not necessarily preclude their adoption as
45(...continued)
(Alaska 1988) (upholding 30-day bar when appeal was four days late).
46 See, e.g., BBAP, Summary of Plan Actions, 1-11 ("Specific modifications
[to the BBAP] may be made whenever conditions warrant them."); BBAP, Types of Plan
Changes (listing the various types of changes envisioned).
47 Alaska R. App. P. 602(a)(2).
48 AS 38.05.020(b)(1).
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regulations, nor does it speak directly to land use plans.49 Therefore, the applicable
statutory language does not resolve the issue whether land use plans are regulations, and
we must look to the statutory definition of "regulation" in combination with case law to
determine whether the BBAP is a regulation.
2. The BBAP is not a regulation under the APA definition.
The Tribes argue, and the superior court held, that the BBAP is a
"regulation" under the APA. DNR disagrees.
The APA defines "regulation" broadly in AS 44.62.640(a)(3) to include:
every rule, regulation, order, or standard of general
application or the amendment, supplement, or revision of a
rule, regulation, order, or standard adopted by a state agency
to implement, interpret, or make specific the law enforced or
administered by it, or to govern its procedure, except one that
relates only to the internal management of a state agency.
Moreover, the label an agency attaches to the policy in question is not determinative:
"regulation" includes "manuals," "policies," "instructions,"
"guides to enforcement," "interpretative bulletins,"
"interpretations," and the like, that have the effect of rules,
orders, regulations, or standards of general application, and
this and similar phraseology may not be used to avoid or
circumvent this chapter; whether a regulation, regardless of
name, is covered by this chapter depends in part on whether
it affects the public or is used by the agency in dealing with
the public.[50]
49 Land use plans and land classification are closely related. Land
classification is statutorily directed alongside land use plans in AS 38.04.065, and a land
classification order implements the guidelines in a land use plan, often explicitly
incorporating the applicable land use plan as justification.
50 AS 44.62.640(a)(3) (emphasis added).
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Although the statutory definition of "regulation" in the APA is broad, we
have noted that "it does not encompass every agency practice or decision."51 To
determine whether the BBAP is a regulation we must look to two indicia: (1) whether
the BBAP implements, interprets, or makes specific the law enforced or administered by
the agency; and (2) whether the BBAP affects the public or is used by the agency in
dealing with the public.52
The BBAP satisfies the first indicium because it "implement[s], interprets[,]
or make[s] specific the law enforced or administered" by DNR.53 In fact, this is the
essence of the Plan - it distills the factors set forth in AS 38.04.065 into a plan for a
specific geographic region. The parties agree that this indicium is not at issue in this
case.
The second indicium - the degree to which agency action must affect the
public to qualify as a regulation - poses a nuanced question. In order to answer this
question, we begin by reviewing two prior cases that addressed this question: Kenai
51 Kachemak Bay Watch, Inc. v. Noah, 935 P.2d 816, 825 (Alaska 1997).
52 Id. (citing Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191, 1197
(Alaska 1995); Gilbert v. State, Dep't of Fish & Game, 803 P.2d 391, 396 (Alaska
1990)); see also Burke v. Houston NANA, L.L.C., 222 P.3d 851, 867 (Alaska 2010);
Alaska Ctr. for the Env't v. State, 80 P.3d 231, 243 (Alaska 2003); Jerrel v. State, Dep't
of Natural Res., 999 P.2d 138, 143-44 (Alaska 2000). These criteria are derived from
related language in the definition of regulation under the APA at AS 44.62.640(a)(3).
53 AS 44.62.640(a)(3); Kachemak, 935 P.2d at 825.
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Peninsula Fisherman's Cooperative Association, Inc. v. State (Kenai),54 and Kachemak
Bay Watch, Inc. v. Noah (Kachemak).55
a. Kenai Peninsula Fisherman's Cooperative Association, Inc.
v. State (1981)
In Kenai, we held that the Board of Fisheries' management policies for
Upper Cook Inlet were regulations as defined by the APA.56 At issue in Kenai were a
"comprehensive management policy and a specific policy option" implemented by the
Board of Fisheries to address frequent competition over salmon stocks between
commercial and recreational fishermen in the Cook Inlet.57 The management policy
effectively partitioned the salmon fisheries by species and by time between the two
groups,58 whereas thepolicy option directed the closure of the Kenai commercial fishery
if its late-season catch was below average.59 The year after the management policy and
54 628 P.2d 897 (Alaska 1981).
55 935 P.2d 816 (Alaska 1997).
56 628 P.2d at 899.
57 Id.
58 The policy provided, among other things, that:
1. [Salmon] Stocks which normally move in the Cook Inlet
to spawning areas prior to June 30, shall be managed
primarily as a non-commercial resource.
2. [Salmon] Stocks which normally move in Cook Inlet after
June 30, shall be managed primarily as a non-recreational
resource until August 15 . . . .
Id. at 900 n.3.
59 Id.
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policy option were announced, the Board of Fisheries promulgated regulations based
upon these directives.60
Plaintiff, a fisherman's cooperative association, challenged the management
policy and policy option on various grounds, including alleging that they were in effect
regulations and therefore ought to have been adopted under the APA.61 Similar to
DNR's position in this appeal, the Board of Fisheries in Kenai asserted that the
management policy and policy option were not regulations but instead "merely general
guidelines, adopted for the convenience of the public and other state agencies, to inform
them of the Board's thinking on critical management issues in areas within its delegated
authority."62
Noting that "the label placed on a particular statement by an administrative
agency does not determine the applicability of the APA,"63 and that the broad definition
of "regulation" in AS 44.62.640 encompassed "many statements made by administrative
agencies, including policies and guides to enforcement,"64 we assessed whether the
management policy and policy option fit both indicia of a regulation.65
With respect to the second indicium - namely, the extent to which the
policy and policy option affected the public or were used by the agency in dealing with
the public - we found that "the policy and the option served as a basis for decisions
60 Id. at 901.
61 Id. at 904.
62 Id.
63 Id. at 905.
64 Id. at 904-05.
65 Id. at 905.
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affecting commercial and recreational fishermen and were used by the Board in dealing
with these groups."66 We cited two main examples in support of this conclusion: first,
that the policy option actually resulted in the emergency closure of the Kenai fishery in
September 1978; and second, that the management policy influenced and was cited as
justification for regulations promulgated later.67
Because they satisfied both the broad APA definition and the first indicium
of a regulation,68 we concluded that "the policy and the option make specific
management policies . . . and have the effect of regulations or standards of general
application . . . . As such, they are regulations."69
b. Kachemak Bay Watch, Inc. v. Noah (1997)
In Kachemak, we held that DNR's identification of aquatic farm districts
was not a regulation.70 At issue in Kachemak was the districting process itself: Alaska
Statute 38.05.855(a) required DNR to "identify districts in the state within which sites
[could] be selected for the establishment and operation of aquatic farms and related
hatcheries."71 Once designated, DNR would consider applications for aquaculture
66 Id.
67 Id. at 905-06.
68 Id. at 905.
69 Id. at 906.
70 935 P.2d 816 (Alaska 1997).
71 Id. at 821.
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permits within each district.72 Plaintiff Kachemak Bay Watch argued that DNR was
obliged to define these districts by regulation as opposed to internal decision-making.73
As in Kenai, we began by noting that the APA definition of a regulation is
broad, and that the particular label an agency applied to its action would not preclude a
finding that it was in fact a regulation.74 We then focused on the second indicium of a
regulation - again, "whether the practice affects the public or is used by the agency in
dealing with the public."75
We observed that " '[a]gencies often make discretionary decisions not
requiring formal procedures,' " which we described as "quasi-executive."76 We stated
that DNR itself "regularly makes decisions that are quasi-executive in nature and do not
constitute regulation[s] under the APA even when one or more indices of a regulation
are present."77 We noted several examples of such decisions,78 and pointed out that the
72 Id. at 819.
73 Id. at 821, 824-25.
74 Id. at 825 ("We have repeatedly rejected agencies' attempts to avoid the
strictures of the APA by claiming their actions were general guidelines or policy
statements, rather than regulations.") (citing Gilbert v. State, Dep't of Fish & Game, 803
P.2d 391, 395-97 (Alaska 1990); Kenai, 628 P.2d at 904-06).
75 Kachemak, 935 P.2d at 825 (citing Kodiak Seafood Processors Ass'n v.
State, 900 P.2d 1191, 1197 (Alaska 1995); Gilbert, 803 P.2d at 396).
76 Id. (quoting Olson v. State, Dep't of Natural Res., 799 P.2d 289, 292
(Alaska 1990)).
77 Id. at 825-26 (citing Olson, 799 P.2d at 292) (emphasis added).
78 Id. at 826 ("For instance, the Commissioner does not identify by regulation
those lands made available for oil and gas leases, mineral leases, or timber sales.") (citing
AS 38.05.180(b), AS 38.05.135-175, and AS 38.05.115).
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identification of districts involved the exercise of agency discretion,79 and, moreover, that
"[n]o . . . express requirement for regulations exists for the district identification process
and we have no reason to believe such a requirement was intended."80
We also quoted Batterton v. Marshall,81 a 1980 decision by the United
States Court of Appeals for the D.C. Circuit, which states:
[M]any merely internal agency practices affect parties outside
the agency - often in significant ways. . . . [E]ven office
hours . . . necessarily require conformity on the part of the
public. A useful articulation of the exemption's critical
feature is that it covers agency actions that do not themselves
alter the rights or interests of parties, although it may alter
the manner in which the parties present themselves or their
viewpoints to the agency.[82]
Applying the Batterton principle - that agency action does not constitute
83
a regulation if it does not itself "alter the rights or interests of [the] parties" - we
concluded:
DNR's district identification decision affects the public in the
limited manner discussed in Batterton. Whether DNR's
identification of aquatic farm districts constituted a regulation
as that term is defined in the APA presents a close
question. . . . However, district identification does not alter
the rights of the parties, does not deprive any party of a fair
opportunity for public participation, embodies no finding as
79 Id.
80 Id. (citing Croft v. Pan Alaska Trucking, Inc., 820 P.2d 1064, 1066 (Alaska
1991)).
81 648 F.2d 694 (D.C. Cir.1980).
82 Id. at 707 (emphasis added) (internal citations and quotation marks
omitted).
83 Kachemak, 935 P.2d at 825 (quoting Batterton, 648 F.2d at 707).
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to a particular application and does not establish criteria by
which particular applications should be evaluated.[84]
Instead, "[d]istrict identification [was] the first step in a lengthy, detailed public process
of determining what aquatic farm will be allowed in what location."85 As such we held
that it did not satisfy the second indicium and therefore did not constitute a regulation
under the APA.
c. The BBAP affects the public in the limited
Kachemak/Batterton sense.
The superior court in this case noted that in Kachemak we relied upon the
fact that district identification "did not 'establish criteria by which particular applications
should be evaluated,' which appears to be at odds with DNR's admission that the BBAP
is the document by which it will be held accountable; the roadmap that will be referred
to as future decisions are made." The superior court concluded that the BBAP is a
regulation because it "implements the policy directives of AS 38.04.065, making it
specific to the uplands of Bristol Bay, and sets policy to guide the department when
making land use decisions in the future." (Emphasis added.)
While the Tribes and the superior court are correct that the BBAP does
more than merely identify districts, the relevant inquiry is whether it does enough to
meaningfully affect the public and thereby satisfy the second indicium of a regulation.
We conclude it does not.
We begin by noting that the BBAP certainly "affects the public or is used
by [DNR] in dealing with the public"86 in a broad Kenai sense - namely that portions
of the BBAP eventually may be implemented and thereby affect the public through
84 Id.
85 Id. at 826.
86 AS 44.62.640(a)(3); Kachemak, 935 P.2d at 825.
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regulations, and that the BBAP will likely guide public policy in years to come.87 But
we clarify today that, in light of our Kachemak decision, this nonspecific, downstream
effect alone - that is, that an agency plan may eventually be implemented by regulation
- is insufficient to demonstrate sufficient meaningful impact on the public to satisfy the
second indicium of a regulation.
In Kenai, we found an effect on the public through both the emergency
closure of the fishery and the fact that the policy dictated the substance of a later
regulation.88 We clarify that the first Kenai reason - the emergency closure - was
sufficient to demonstrate a direct impact on the public and support our conclusion in that
case that the agency actions were regulations.89 The second Kenai reason - that the
statements of management intent gave rise to later regulations - does not by itself
necessarily dictate sufficient impact on the public to satisfy the second indicium.90 We
therefore now explicitly adopt the Batterton analysis as presented in Kachemak as the
defining principle underlying the second indicium of a regulation: an agency action does
not satisfy the second indicium if it "does not alter the rights of the parties, does not
deprive any party of a fair opportunity for public participation, embodies no finding as
87 See Kenai Peninsula Fisherman's Coop. Ass'n, Inc. v. State, 628 P.2d 897,
905 (Alaska 1981).
88 Id. at 905-06.
89 Id.
90 Regulations may cite to and even incorporate pre-existing guidelines and
policy statements; this fact alone is insufficient to brand those earlier statements
regulations as well. Regulations are open to judicial review at any time under
AS 44.62.300. As such, so long as a properly promulgated regulation implements a
policy that can be enforced against the public at some point, it is unnecessary to extend
the classification of "regulation" any further upstream.
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to a particular application and does not establish criteria by which particular applications
should be evaluated."91
The BBAP will be implemented and will affect the public chiefly through
downstream "administrative actions such as leases, permits, land conveyances,
classification orders, and mineral orders." Some land use plans in fact already have been
adopted as regulations, and can presumably therefore be challenged under
AS 44.62.300.92 The BBAP has not. The BBAP is not itself "enforceable" against the
public in a meaningful way until implemented by further agency action, and therefore
cannot itself govern the conduct or rights of the public.93
91 Kachemak, 935 P.2d at 825.
92 See, e.g., Susitna Basin Recreation Rivers Management Plan, adopted as
regulation at 11 AAC 09.005 (2005); Wood-Tikchik State Park Management Plan,
adopted as regulation at 11 AAC 20.365 (2005).
93 See also DEPARTMENT OF NATURAL RESOURCES, BRISTOL BAY AREA PLAN
FOR STATE LANDS 1-9 (2005), available at http://dnr.alaska.gov/mlw/planning/areaplans/
bristol/index.htm (last visited Jan. 4, 2012) (titled "What the Plan Won't Do" and stating
the BBAP is "not the only way in which land management goals are implemented" and
does not regulate, for instance, public activities that do not require a written authorization
on state land, such as "hiking, camping, boating, hunting, and fishing").
We also note that although it guides future DNR policy, the BBAP is likely
not enforceable by the public against DNR either. The U.S. Supreme Court decision
Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004), is instructive on this point.
In Norton, plaintiffs brought suit to compel an agency to act in accordance with its land
use plan. Id. at 67-69. The Supreme Court declined to enforce the plan, stating that
federal land use plans do not create "legally binding commitment[s]" even though they
"guide and control future management actions . . . for resources and uses." Id. at 69, 72.
The Court went on to state:
Of course, an action called for in a plan may be compelled
when the plan merely reiterates duties the agency is already
obligated to perform, or perhaps when language in the plan
(continued...)
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The state land management process at issue here is similar to theKachemak
aquatic farm district identification because both involve substantial DNR discretion in
the early stages and later coalesce into actions affecting the public (e.g., permitting,
disposal, leasing) through downstream agency action. Land use plans are an
intermediate step in this process: statutes establish policies that land use plans must
apply, and land use plans interpret these policies to guide the agency itself, but the public
is directly affected only by later regulations and other agency action that may follow
from the plans. Thus, the BBAP is an interim measure that guides DNR's behavior, not
that of the public.
The Tribes argue that comparing the BBAP to the Kachemak district
identification plan is incorrect. They assert the analogous "planning area identification"
93(...continued)
itself creates a commitment binding on the agency. But
allowing general enforcement of plan terms would lead to
pervasive interference with [the agency's] own ordering of
priorities. For example, a judicial decree compelling
immediate preparation of all of the detailed plans called for
in the [plan at issue] . . . would ultimately operate to the
detriment of sound environmental management. Its
predictable consequence would be much vaguer plans from
[the agency] in the future - making coordination with other
agencies more difficult, and depriving the public of important
information concerning the agency's long-range intentions.
Id. at 71-72. The BBAP similarly provides guidelines and does not mandate specific
action. While the BBAP does, at times, contain mandatory language - for instance, it
provides that "[a]ll state lands in the planning area will be classified consistent with the
land use designations in this plan" (emphasis added) - classification "consistent with"
the BBAP does not mandate a specific course of action. Anointing the BBAP and similar
plans as regulations would not only make them subject to judicial review under
AS 44.62.300, but also presumably to actions for enforcement of the type the U.S.
Supreme Court declined to grant in Norton .
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in Bristol Bay in fact antedated the BBAP and occurred in 1980, and they point out that
whereas the Kachemak plan merely identified districts, the BBAP does considerably
more than this by "establish[ing] goals, guidelines, policies, [and] standards of general
application." The Tribes also cite various BBAP excerpts as purported evidence of its
public impact. But the materials the Tribes cite on this point actually state that the BBAP
"guides DNR decisions," that "DNR's actions will be based on the area plan," and
otherwise suggest that the Plan at some future date will guide DNR's actions in dealing
with the public - not that the Plan itself directly binds the public. (Emphasis added.)
Moreover, DNR points out that although the Tribes repeatedly claim that the BBAP
affects the public, they "fail to offer a single example of how the Plan has been applied
to them, or any other member of the public, despite the fact that the Plan has been in
place since April, 2005."
We based our Kenai decision in part on the fact that an emergency order
based on a policy option had in fact closed down a fishery and thereby directly affected
the public.94 No such direct public impact is alleged here, and DNR persuasively argues
that none could occur absent further agency action. The BBAP affects the public in a
limited way - for instance, it may "alter the manner in which the parties present
themselves or their viewpoints to the agency"95 - but it does not itself "alter the rights
or interests of the parties,"96 and thus does not satisfy the second indicium of a
regulation. We therefore hold that the BBAP is not a regulation under the APA.
94 Kenai Peninsula Fisherman's Coop. Ass'n, Inc. v. State, 628 P.2d 897,
905-06 (Alaska 1981).
95 Kachemak, 935 P.2d at 825 (quoting Batterton v. Marshall, 648 F.2d 694,
707 (D.C. Cir. 1980)).
96 Id. (quoting Batterton, 648 F.2d at 707).
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IV. CONCLUSION
Because it was error for the superior court to conclude that the Bristol Bay
Area Plan is a regulation, we REVERSE the superior court's ruling that the BBAP is a
regulation and REMAND for further proceedings consistent with this opinion.
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