State v. Nondalton Tribal Council

Decision Date20 January 2012
Docket NumberNo. 6638,6638
PartiesSTATE OF ALASKA, DEPARTMENT OF NATURAL RESOURCES and Tom Irwin, Commissioner of Natural Resources, Petitioners, v. NONDALTON TRIBAL COUNCIL, Koliganek Village Council, 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.
CourtAlaska Supreme Court

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.

Supreme Court No. S-13681

Superior Court No. 3DI-09-00046 CI

OPINION
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.
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 withdrawalof 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 land into private ownership.5 Beyond Article VIII of the Alaska Constitution6 and the land use classification statute,7 no large-scale planning program for the management of state lands existed at that time.8

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 preferencesamong 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(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 planspursuant 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 managementsummary 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 addedtwo 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...

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