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Kelso, AK Dept. Environ. Conservation v. Rybachek (3/8/96), 912 P 2d 536
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) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
DENNIS KELSO, ALASKA DEPARTMENT )
OF ENVIRONMENTAL CONSERVATION, ) Supreme Court Nos. S-
Appellant and ) Superior Court No.
Cross-Appellee, ) 4FA-90-140 CI
) O P I N I O N
STANLEY C. RYBACHEK and )
ROSALIE A. RYBACHEK, )
Appellees and ) [No. 4324 - March 8,
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Richard H. Erlich, Judge.
Appearances: Jacqueline F. Colson, Assistant
Attorney General, Fairbanks, Bruce M.
Botelho, Attorney General, Juneau, for
Appellant and Cross-Appellee. Stanley C.
Rybachek and Rosalie A. Rybachek, pro se,
North Pole. James S. Burling, Pacific Legal
Foundation, Sacramento, California, for
Amicus Curiae Livengood-Tolovana Mining
Before: Rabinowitz, Matthews, Compton and
Eastaugh, Justices. [Moore, Chief Justice,
This case concerns a request by a group of miners in
the Livengood/Tolovana Mining District that the Alaska Department
of Environmental Conservation (Department) downgrade water use
classifications in the Mining District. The Department denied
the request and the Mining District appealed. The superior court
remanded the case to the Department and ordered the Department to
conduct a use attainability analysis. The Department did so, and
downgraded some of the requested waterways. Two affected miners
appealed to the superior court. The superior court again
remanded for the collection of more data, but otherwise upheld
the agency's decision. Insofar as the superior court remanded to
the agency for further action we REVERSE. The superior court's
decision is otherwise AFFIRMED.
II. FACTS AND PROCEEDINGS
On January 31, 1983, the Livengood/Tolovana Mining
District (Miners) petitioned the Alaska Department of
Environmental Conservation to reclassify certain streams to
exclude all water quality uses except industrial.
Reclassification would have had the effect of lowering the
classification standards pertaining to the streams. After a
public hearing, the Department denied the Miners' petition on the
basis that there was substantial subsistence and recreational use
made of the Tolovana River, and that the river was also an
important fish habitat. Subsequently, the federal Environmental
Protection Agency (EPA) revised its water quality regulations,
adding a requirement that the states must perform a use
attainability analysis (UAA) before reclassifying waters to
eliminate designated uses. See 40 C.F.R. ' 131 effective
November 8, 1983.
Meanwhile, the Miners appealed the Department's denial
of the reclassification petition to the superior court. On
October 21, 1985, the court issued its decision, ruling that in
light of the new federal regulation, "prior to any
reclassification the State must conduct a [UAA] and must have
appropriate regulations for the conducting of such analysis,"and
that the State could not "deny a reclassification on the basis
they have not complied with Federal law or have not implemented
State regulations in order that they are able to comply." The
court ordered the Department to promulgate appropriate
regulations pertaining to UAAs; to conduct a UAA on the waters
the Miners had requested to be reclassified pursuant to the new
regulations; and to hold a hearing on the petition for
reclassification. The court did not rule on the other points
raised by the Miners, declaring them to be moot. Neither party
appealed from the superior court's decision.
On March 8, 1986, the Department issued a notice
soliciting public comment on the proposed changes to the
regulations which had been required by the court. After consider
ing the written and oral comments, the commissioner of the
Department signed an "order adopting, amending and repealing
regulations of the Department of Environmental Conservation" on
October 29, 1986; the Lieutenant Governor filed the regulations
on December 8, 1986.
The revised procedural regulations required the
Department to conduct at least one hearing and to comply with
federal reclassification regulations before proceeding with
reclassification of state waters. 18 AAC 70.055. The federal
regulations allow a state to eliminate a designated use only if
the state can demonstrate through a UAA that the use is not
presently existing and that certain conditions prevent the
attainment of that use. 40 C.F.R. ' 131.10. Because all fresh
waters in Alaska are classified for all water supply, water
recreation, and fish and wildlife uses unless otherwise specified
in 18 AAC 70.050(b), any change in the water quality
classification of a given body of water is necessarily a change
to 18 AAC 70.050(b).
In response to the court order of October 21, 1985, the
Department compiled a UAA comprised of field surveys, water
quality analyses, habitat observation, and biological surveys on
seventeen stream segments. Based on the data accumulated, the
Department determined which streams had "existing" and
"attainable" uses requiring more stringent controls than the
The Department found that for three streams, attain
ability was indeterminate because of a lack of information
establishing whether the streams' flows were intermittent. Where
the agency found suitable fish habitat but did not observe fish
during sampling, fish use was deemed attainable unless there was
a specific factor that rendered the stream unsuitable for fish
Pursuant to the third part of the court order, the
commissioner issued a public notice regarding the proposed
reclassifications. The notice also announced public hearings
which were held in Anchorage, Fairbanks and Minto.
Based on the UAA and the comments received, the
Department reached final conclusions on the Miners' request for
reclassification of the streams, and submitted its proposed
regulations to the Department of Law. The Department of Law made
further changes and filed the final revised use classifications
with the Lieutenant Governor's office. The amended use
classifications became effective on November 30, 1989. On
January 9, 1990, the Department transmitted its final decision on
the petition for reclassification, along with copies of the final
regulations, responses to comments, and a summary of the changes
made after public comments to the parties who had commented on
the reclassification action.
Stanley and Rosalie Rybachek, residents of Livengood
who have resided on patented mining property since 1961,
appealed the Department's January 9, 1990 decision insofar as it
partially denied the petition to reclassify certain streams. The
Rybacheks also challenged the validity of the Department's
reclassification regulation. On July 16, 1993, the superior
court issued a memorandum opinion and order which in part
affirmed the Department's reclassification decision and in part
remanded the decision to the Department. The court found that
the Department had adopted the reclassification regulation in
compliance with the 1985 order, in accordance with proper
procedures, and within the scope of its authority, and that the
regulation was not arbitrary.
The court questioned, however, the Department's
approach to maintaining designated uses where study results were
inconclusive, characterizing this as a "restrictive inference."
The court seemed troubled by the fact that the Department could
fail to collect certain data, and then refuse to reclassify a
water supply based on the lack of that data. The court observed
that the Department had "absolute discretion 1) to decide whether
to consider a reassignation; 2) to define the parameters of the
UAA; 3) to carry out the UAA design; and 4) to decide whether to
redesignate a use." Noting that the Department "holds all the
cards,"the court held that the Department's actions were to be
scrutinized under a "higher standard." While otherwise affirming
the Department's decision, the court remanded to the Department
the following question and instruction: "(1) In which situations
did the agency apply the restrictive inference; [and] (2) If
application of such a restrictive inference is due to a lack of
data that is required by the UAA, then the agency has the
obligation to produce the data."
The State has appealed the order of remand. The
Rybacheks cross-appealed, asserting that the superior court erred
in finding (1) that the Department had promulgated a proper
reclassification regulation; and (2) that certain waters were
appropriately not reclassified.
III. STANDARD OF REVIEW
The standard of review which should be employed in this
case is that applicable to review of administrative regulations.
This court has applied the "reasonable and not arbitrary"
standard to agency rule making decisions pertaining to the
adoption of regulations. Kelly v. Zamarello, 486 P.2d 906, 911
At the outset we note that the superior court's
decision is not a final decision from which an appeal of right
can be maintained since it remands the case to the Department for
further action. City & Borough of Juneau v. Thibodeau, 595 P.2d
626, 631 (Alaska 1979). However, we have considered the appeal
and the cross-appeal as petitions for review and made a
discretionary decision to grant the petitions.
Although this case is part of a controversy that has
been going on for over a dozen years and is procedurally somewhat
complicated, the legal questions presented are easily resolved.
Concerning the State's appeal, the question is whether the
superior court erred in imposing on the Department an obligation
to provide data in support of the Department's decision not to
downgrade state waters. We conclude that the court did err.
Under both state and federal law the State has
discretion in choosing whether to proceed with a reclassification
request. 18 AAC 70.055(b); 40 C.F.R. ' 131.10(g). If a state
designates uses which include those specified in section
101(a)(2) of the Clean Water Act1 (water recreation, fish,
shellfish and wildlife) it need not conduct a UAA. 40 C.F.R. '
The Clean Water Act requirement to perform a UAA,
therefore, arises exclusively from a state's choice to submit to
the EPA a use designation that does not include a use specified
in section 101(a)(2) of the Clean Water Act. It follows that a
state need not present any evidence in support of a decision not
to downgrade a water body by eliminating certain designated uses.
In addition to discretion over whether to proceed with
a reclassification request, the Department has discretion to
determine the extent and scope of any UAA that it decides to
perform, as long as it complies with 40 C.F.R. ' 131 and other
applicable state and federal statutes and regulations. 18 AAC
70.055. The State's discretion in conducting reclassifications
is limited by EPA oversight. In the present case, the EPA agreed
that the Department should maintain designated uses in cases
where unequivocal decisions regarding attainability of uses could
not be made due to lack of data.
The state reclassification regulation provides that, in
decisions regarding reclassification of state water, the Depart
ment will use information obtained at public hearings and other
sources that it considers appropriate. 18 AAC 70.055(a). The
statute which prescribes the hearing procedure for agency action
on such petitions states that the agency "shall consider all
relevant matter presented to it before adopting, amending, or
repealing a regulation." AS 44.62.210. However, neither the
statute allowing petitions for regulatory revision nor the
reclassification regulation imposes a burden on the State to
generate information in support of a decision to maintain
Thus the Department acted reasonably in denying the
reclassification petition. The UAA compiled by the Department
demonstrates that it considered each of the factors deemed
relevant under 18 AAC 70.055 and 40 C.F.R. ' 131.10(g) in
reaching its reclassification decisions. The Department relied
upon chemical, biological, and physical characteristics for each
stream segment in addition to information obtained at the public
hearings to determine existing and attainable uses.2 The
Department is not obligated by state or federal law to support
its decision not to downgrade water uses so long as the decision
is reasonable and not arbitrary.
The Rybacheks' first contention is that the
Department's reclassification regulation, 18 AAC 70.055, is not a
"real regulation"because it "sets not meaningful standards" and
"leaves everything to the 'discretion' of the administrator."
We view this contention as raising the question whether
the reclassification regulation is valid. In answering this
question, we accord the regulation a presumption of validity:
the challenger to the regulation has the burden of demonstrating
invalidity. State, Dep't of Revenue v. Cosio, 858 P.2d 621, 624
(Alaska 1993). In order to be valid a regulation must be
consistent with the authorizing legislation and be reasonable and
not arbitrary. Id. Further, we do not "substitute our judgment
for that of the agency with respect to the efficacy of the
regulation nor review the 'wisdom' of a particular regulation."
Under the appropriate statutory sections, the State has
broad discretion in developing water quality regulations. The
legislature has empowered the Department to "adopt regulations
. . . providing for control, prevention, and abatement of air,
water, or land or subsurface land pollution . . . ." AS
46.03.024(10)(A). The Department may "adopt standards . . . and
determine what qualities and properties of water indicate a
polluted condition"that may be harmful to humans or animals or
"to the use of waters for domestic, commercial, industrial,
agricultural, recreational or other reasonable purposes." AS
46.03.070. The Department may establish water quality standards,
may establish classes of waters based on quality, and may modify
those classifications. AS 46.03.080.
The language of these statutory provisions grants the
Department discretion to undertake a wide range of actions
related to water quality including promulgating procedural
regulations, determining the acceptable levels of pollution
allowed in the state's water bodies, and designating
classifications of water bodies. 18 AAC 70.055 is in accordance
with these purposes.
The stated intent of the legislature in enacting the
above statutory provisions was to "conserve, improve, and protect
[the state's] natural resources and environment and control
water, land, and air pollution . . . ." AS 46.03.010(a). By
promulgating 18 AAC 70.055, the Department complied with the
legislative intent. The regulation requires the Department to
conduct a public hearing, comply with the EPA's regulation at 40
C.F.R. ' 131, and comply with other applicable state and federal
law before amending water quality standards.
The applicable federal law is the Clean Water Act
(CWA), which requires states to adopt water quality standards and
allows for EPA oversight of those standards. 33 U.S.C. ' 1313,
CWA ' 303. See also 40 C.F.R. 131.5, 131.20-.21. If a state
does not revise its standard in compliance with the CWA, the EPA
will promulgate a replacement standard. 33 U.S.C. '' 303(c)(3)-
Given the EPA oversight, the Department reasonably
adopted as Alaska's standard the EPA regulation governing
reclassification. It was to be expected that the EPA would
consider any regulation incorporating its own reclassification
scheme to be in compliance with CWA requirements. Thus we
conclude that the regulation is reasonable and not arbitrary.3
The Rybacheks also argue that the trial court erred in
determining that the Department reasonably denied the reclassifi
cation request as to certain water bodies. We determine this
issue summarily. Our review of the record has convinced us that
the Department reasonably based its substantive reclassification
decisions on the information it collected and analyzed in
accordance with the factors enumerated in applicable federal and
state regulations. Thus the superior court did not err when it
determined that the State had reasonably denied the reclassifi
cation requests as to those streams which the Department declined
For the above reasons, the trial court's order of July
15, 1993, is REVERSED insofar as it remands this case to the
Department for further action and AFFIRMED in all other respects.
1 33 U.S.C. ' 1251.
2 The Department concluded that where a stream segment
was otherwise capable of supporting fish, the fish and wildlife
use would be retained even if the agency found no fish on the
particular days that it sampled the stream segment. This seems
reasonably in accord with state and federal policies against
downgrading uses. On streams that had possible but undocumented
intermittent flows, the agency maintained the uses.
In support of the Department's method of analysis, the
EPA agreed that the agency must not delete uses in situations
where unequivocal data were not available. The EPA stated that
the Department could not rely on intermittent flows alone to
justify deleting uses, and that the fish and wildlife uses
included wildlife other than fish.
3 The Rybacheks argue that the State's rationale for
deleting the prior reclassification criteria does not appear in
the record. However, the Department explained that it was
deleting the previous reclassification section because that
section only addressed "the presence or absence of a use" and
federal regulations required that attainability be considered in
addition to whether the use was existing.
4 To the extent that the Rybacheks raise or attempt to
raise other points in their briefs, these points are inadequately
presented and are deemed waived.