Annual Report 2012 - Alaska Department of Law

Natural Resources
Through litigation, administrative proceedings, and advice to executive
branch agencies, the Natural Resources Section helps support the
responsible development of the State’s natural resources. The issues faced
by the section last year included the proposed listing of the stellar sea lion
under the Endangered Species Act; the calculation of the final judgment in
Carlson v. Commercial Fishing Entry Commission; and the assertion by the
State of its rights to certain roads and navigable waterways. One notable
success before the Alaska Supreme Court, described below, reversed a
lower court decision that would have required the Department of Natural
Resources (DNR) to readopt all of its land use area plans as regulations.
Bristol Bay Area Land Use Plan –
Nondalton Tribal Council v. State
• In 2009, five Bristol Bay area tribes
and two other groups sued DNR
challenging the 2005 Bristol Bay
Area Plan. The superior court held
that the area plan was actually
a “regulation” as defined by the
Administrative Procedure Act (APA).
• DNR has adopted numerous area
plans in Alaska through a process
that differs from the regulations
process. Under the superior
court’s holding that area plans are
regulations, DNR would have had
to readopt all area plans using APA
procedures.
• Instead of waiting for the superior
court to decide the remaining
issues in the case, the State sought
immediate review of this holding in
the Alaska Supreme Court.
• Fortunately, the Alaska Supreme
Court agreed with the State that area
plans are not regulations.
• On remand, the plaintiffs included
new claims in their complaint. After
the State moved to dismiss these
new claims, the plaintiffs agreed
to voluntarily dismiss the lawsuit in
exchange for DNR’s commitment to
treat their complaint as a petition to
reclassify land.
Annual Report 2012 ~ Alaska Department of Law 13