State, Department of Natural Resources v. Nondalton Tribal Council
2012 Alas. LEXIS 14
| Alaska | 2012Background
- Six tribal councils and two associations (the Tribes) sued the State of Alaska, DNR, in Dillingham for declaratory judgment that the BBAP was unlawful.
- BBAP was challenged as an improper regulation subject to APA review; DNR moved to dismiss those claims under Civil Rule 12(b)(6).
- BBAP was adopted in 2005 after a two-year development process and covers state uplands, shorelands, tidelands, and submerged lands within Bristol Bay planning area.
- Land use plans require classification orders to implement plan designations; classification orders are exempt from the APA, but the plan itself is governed by AS 38.04 and related regulations.
- The Tribes argued the BBAP is a regulation under the APA and thus reviewable under AS 44.62.300; the superior court disagreed, and the State sought appellate review.
- The Alaska Supreme Court ultimately held that the BBAP is not a regulation and that Appellate Rule 602(a)(2) does not bar the Tribes’ action, reversing and remanding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BBAP is a regulation under the APA | Tribes: BBAP implements and enforces the law, so it is a regulation. | DNR: land use plans are not regulations under the APA. | BBAP is not a regulation. |
| Whether Appellate Rule 602(a)(2) bars the Tribes’ action | Rule 602(a)(2) does not bar since BBAP is not a final agency decision and notice was lacking. | Rule 602(a)(2) bars actions from final agency decisions with 30-day appeal period. | Rule 602(a)(2) does not bar the Tribes’ action. |
| Whether BBAP constitutes a final decision triggering Rule 602 notice requirements | BBAP lacked explicit finality notice and 30-day appeal window. | Agency decisions must provide finality notice to trigger Rule 602. | BBAP lacked finality notice; 602 notice requirements not triggered. |
Key Cases Cited
- Kenai Peninsula Fisherman's Coop. Ass'n, Inc. v. State, 628 P.2d 897 (Alaska 1981) (regulations may be found where policy affects public and guides later regulation)
- Kachemak Bay Watch, Inc. v. Noah, 935 P.2d 816 (Alaska 1997) (agency actions must alter rights or obligations to be a regulation; district identification alone not enough)
- Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (U.S. 2004) (land use plans do not bind agency actions unless mandating specific actions)
- Alyeska Pipeline Serv. Co. v. State, Dep't of Envtl. Conservation, 145 P.3d 561 (Alaska 2006) (regulation vs. non-regulation; standard of review for regulatory determinations)
- Jerrel v. State, Dep't of Natural Res., 999 P.2d 138 (Alaska 2000) (agency actions reviewed under independent judgment for regulation questions)