In a suit filed May 5 in Dillingham, six federally recognized tribes have asked the Alaska Superior Court (Third Judicial District) to throw out the state’s 2005 Bristol Bay Area Plan produced by the Alaska Department of Natural Resources and declare it unlawful. If successful, the suit will require the state to prepare a new area plan, which could have ramifications for the future of state land management in the Bristol Bay drainage, according to plaintiffs’ attorneys Jeff Parker and Tom Meacham.

Suing the state are the Nondalton Tribal Council, Koliganek Village Council, New Stuyahok Traditional Coucnil, Ekwok Village Council, Curyung Tribal Council, and Levelock Village Council.

The Bristol Bay Area Plan applies to about 12 million acres of state-owned uplands and lands beneath rivers and lakes in the Bristol Bay drainages, including state lands at and in the vicinity of the potential Pebble Mine, as well as to about 7 million acres of state-owned tide and submerged lands, Parker said.

Nandalton Tribal Council, et. al. v. State DNR notes that area plans are required by state law, and typically guide management decision for about two decades. They classify state land according to “primary uses,” and keep those uses compatible through management guidelines and statements of intent that serve as policies, Parker said. The suit alleges that the 2005 plan, which replaced a 1984 version, drastically altered, without legal justification, the land-use designations, classifications and acreages assigned in the 1984 plan. The new plan fails to adequately protect subsistence, sport hunting and fishing, wildlife habitat and other renewable resources it purports to manage for public benefit. Plaintiffs argue that the 2005 plan “skewed away from the habitat protection of the 1984 Bristol Bay Area Plan,” and that the current plan leans “strongly toward encouraging, developing and protecting mining” on state-owned uplands discharging into to salmon-rich Bristol Bay waters.

Among other allegations, the Native organizations say DNR’s use of an “unlawful” definition of habitat has reduce the acreage classified as “wildlife habitat land” for fish and wildlife from 12 million acres in the 1984 plan to just 768,000 acres in the 2005 plan. Furthermore, the 2005 area plan unlawfully defines “anadromous waters” in a way that brings it into conflict with regulations under the Anadromous Fish Act. The current plan also unlawfully treats mining as a “co-designated use” without benefit of a legally required inventory supporting that broad designation, and it unlawfully makes habitat, subsistence and recreation “prohibited uses” whenever they irreconcilably conflict with mining or mineral exploration on 9.4 million acres, plaintiffs say.

Other inadequacies in the 2005 plan include the absence of a subsistence land classification category,and a definition of “recreation” that excludes sport hunting and sport fishing, conditions plaintiffs say are unlawful. Finally, plaintifs argue the 2005 plan unlawfully defines “subsistence uses” in a way that affords subsistence protections on too little land, exacerbating conflicts between rural and non-rural subsistence users.

Jack Hobson, president of the Nondalton Tribal Council, points out the conflicts created by the 2005 plan should upset both rural and urban lawmakers.

“How can DNR defend not having a subsistence land classification category when it has a public recreation land category that includes sport hunting and sport fishing? No rural legislator should support DNR on that issue,” Hobson said. “Similarly, how can DNR defend defining ‘recreation’ to expressly exclude sport fishing and sport hunting? No urban legislator should support DNR on that issue.”

In response, DNR has asserted the court lacks jurisdiction. State attorneys argue time has run out for filing claims with regard to all but one of the plaintiffs’ eight causes of action, and that such claims should have been made in 2005. DRN asserts that before the tribes could legally appeal to the Superior Court, they should have requested DNR reconsider the 2005 area plan. According to the state, however, that appeal had to have been filed within 20 days of the April 19, 2005, approval of the plan. Thus, say state lawyers, the plaintiffs’ causes of action are “time-barred.”

Plaintiffs have countered arguing that in this case state law allows for declaratory relief and contains no statute of limitation, and that the time rule only applies when DNR is acting in an adjudicatory capacity with respect to a particular person’s or entity’s rights and liabilities, and not when it is acting in a non-adjudicatory capacity, as when it approves area plans.

As an alternative to its “time-barred” argument, the state has also argued that plaintiffs failed to exhaust administrative remedies and that the state’s exhaustion doctrine should apply, effectively barring their case. The plaintiffs responded saying that doctrine does not apply in this case for several reasons, among them that the agency’s actions were non-ajudicatory in nature, and that the doctrine is only applicable to issues of fact. In the plaintiffs’ case, the arguments are solely over law, rather than disputed facts, according to Parker.

In the one remaining cause of action alleged by plaintiffs - that DNR’s regulations do not provide for or define a land-use category for subsistence, the state argues that plaintiffs have no claim because nothing in statute requires such a category. Instead, DNR says,state law only requires that area plans “accommodate” subsistence, something DNR argues the “wildlife habitat land” classification does. Plaintiffs counter that the state’s position is wrong.

As these things work, after the plaintiffs filed their lawsuit in May, the state responded with its arguments challenging the jurisdiction of the court. Plaintiffs have responded with a formal brief rebutting the state’s positions on jurisdiction, and now are awaiting an answering brief from the state, which is expected by July 31. Then it will be up to the court to weigh the arguments and render a ruling on the jurisdictional question.

Hal Spence
Homer

http://ourbristolbay.com/pdf/NondaltonTribalCouncil-v-StateDNR.pdf