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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. or subject indices. Northern Alaska Environmental Center v. State; Dept. of Natural Resources (6/2/00) sp-5279

Northern Alaska Environmental Center v. State; Dept. of Natural Resources (6/2/00) sp-5279

     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.


CENTER and SIERRA CLUB,       )    Supreme Court No. S-9367
             Appellants,      )    Superior Court No.
                              )    4FA-99-1226 CI
     v.                       )
                              )    O P I N I O N
OF NATURAL RESOURCES, and     )    [No. 5279 - June 2, 2000]
JOHN T. SHIVELY, in his       )
official capacity as          )
Commissioner thereof, and     )
ASSOCIATION,                  )
             Appellees.       )

          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                    Ralph R. Beistline, Judge.

          Appearances: Thomas S. Waldo and Eric
          Jorgensen, Earthjustice Legal Defense Fund,
Juneau, and Steven C. Davis and Michael B. King, Lane Powell Spears
Lubersky, LLP, Seattle, Washington, for Appellants.  Mary Ann
Lundquist, Assistant Attorney General, Fairbanks, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee State of Alaska. 
John J. Burns and Thomas R. Manniello, Borgeson & Burns, PC,
Fairbanks, and Peter H. Haller and Leslie R. Schenck, Ater Wynne,
LLP, Seattle, Washington, for Appellee Golden Valley Electric

          Before:  Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.  

          FABE, Justice.

          The Department of Natural Resources granted Golden Valley
Electric Association a right-of-way permit for the construction of
an electric transmission line across sixty-five miles of state land
between Healy and Fairbanks.   DNR claims that this permit is
exempted from the best interest finding requirement of AS
38.05.035(e) due to its revocable nature.  Because the permit is
not revocable for purposes of AS 38.05.035(e)(6)(C), we reverse and
remand to DNR for a best interest finding. [Fn. 1]
          In 1993 the legislature appropriated $43.2 million for
the construction of a second electric transmission line between
Healy and Fairbanks (Northern Intertie). [Fn. 2]  In August 1996
Golden Valley Electric Association (Golden Valley), a not-for-
profit electric cooperative, applied to the Department of Natural
Resources (DNR), Division of Lands for a right-of-way permit to
build the Northern Intertie.  In its permit application, Golden
Valley sought a right-of-way 150 feet wide and sixty-five miles
long, encompassing an area of approximately 1,200 acres. 
          Because potential routes for the Northern Intertie
crossed federal lands, Golden Valley also sought approval from the
Bureau of Land Management (BLM).  BLM prepared an Environmental
Impact Statement for the proposed intertie that analyzed at least
seven alternative routes.  The Final Environmental Impact
Statement, issued in June 1998, recommended construction of the
Northern Intertie along the "Rex/South" route.
          In that same month, DNR issued its proposed decision,
which also recommended construction of the Northern Intertie along
the Rex/South route.  DNR explicitly relied on the Final
Environmental Impact Statement as the basis for its proposed
decision. [Fn. 3]  Following a month-long comment period, DNR
issued its decision, which recommended granting Golden Valley a
thirty-year right-of-way permit along the Rex/South route. 
Northern Alaska Environmental Center (Northern Center) appealed
DNR's decision to the Commissioner of Natural Resources.  After
briefing and oral arguments, the commissioner remanded the Northern
Intertie decision to DNR to address fully DNR's role in the
environmental assessment and route selection processes.
          On February 22, 1999, DNR issued its decision on remand. 
DNR concluded that the right-of-way permit was specifically
exempted from the AS 38.05.035(e) best interest finding requirement
[Fn. 4] because: (1) it was "a permit or other authorization
revocable by the commissioner," [Fn. 5] and (2) it did not dispose
of an interest in land.  Instead, DNR determined that AS
38.05.850(a) governed the issuance of the permit:  DNR "shall give
preference to that use of the land that will be of greatest
economic benefit to the state and the development of its
resources." [Fn. 6]  In making this determination, DNR considered
whether any competing uses of the Rex/South route would bring
greater economic benefit.  DNR ultimately concluded that the
"Northern Intertie [gave] the greatest economic benefit to the
state" and authorized the issuance of the right-of-way permit.
          Consistent with this decision on remand, DNR issued the
right-of-way permit to Golden Valley, effective February 22, 1999. 
The permit, entitled "Land Use Permit Under AS 38.05.850," contains
the following provision:  "This permit is not a property right.  It
is a temporary authorization, revocable by the state with or
without cause.  This permit is effective beginning February 22,
1999, and ending on February 21, 2004, unless sooner terminated at
the state's discretion."  Further, Golden Valley's "right-of-way
permit will be issued for a term of thirty years and will be
subject to renewal."
          Northern Center requested reconsideration of DNR's
decision on remand.  The commissioner rejected this request on
March 26, 1999.  Northern Center and Sierra Club filed an appeal in
superior court.  The superior court affirmed DNR's grant of the
right-of-way permit.
          Northern Center and Sierra Club appeal.
     A.   Standard of Review
          When the superior court acts as an intermediate court of
appeal, we give no deference to its decision. [Fn. 7]  Rather, we
review the merits of the administrative agency determination
directly. [Fn. 8]  The standard of review for agency decisions of
law depends on whether agency expertise is implicated.  We apply
the "reasonable basis" test to questions of law involving agency
expertise but apply the "substitution of judgment" test where no
expertise is involved. [Fn. 9]  The substitution of judgment
standard thus applies where the agency's expertise provides little
guidance to the court or where the case concerns "statutory
interpretation or other analysis of legal relationships about which
courts have specialized knowledge and expertise." [Fn. 10]
          The parties disagree about whether DNR's expertise is
implicated by its interpretation of AS 38.05.035(e).  The statutory
interpretations contested on appeal are: (1) whether the right-of-
way permit is a "disposal" of an "interest in land" within the
meaning of AS 38.05.035(e) and (2) whether the permit is
"revocable" within the meaning of AS 38.05.035(e)(6)(C). [Fn. 11] 

          We review the agency's interpretation of such non-
technical statutory terms under the substitution of judgment
standard. [Fn. 12]  In State v. Aleut Corp., [Fn. 13] we reviewed
whether the Division of Lands had complied with AS 38.05.305 prior
to conducting a public land auction. [Fn. 14]  The Division of
Lands contended that the reasonable basis test applied to its
interpretations of "adjacent to," "other organized community," and
"local authorized planning agencies." [Fn. 15]  In rejecting the
reasonable basis approach, we concluded:
          The terms of AS 38.05.305 are not technical,
and mere familiarity in their application by the Division of Lands
does not render that agency any better able to discern the intent
of the legislature than the courts.  We will therefore apply our
own independent judgment as to whether the agency's interpretation
complies with the legislature's intent.[ [Fn. 16]]     
          In light of this precedent, we conclude that the
interpretation of the terms "disposal," "interest in land," and
"revocable" does not implicate agency expertise or broad policy
formulations.  Thus, we apply the substitution of judgment standard
to DNR's interpretation of these non-technical terms. [Fn. 17]
     B.   Because the Northern Intertie Permit Is Not Functionally
Revocable, AS 38.05.035(e) Requires a Best Interest Finding.

          DNR determined that a best interest finding was not
required under AS 38.05.035(e) because (1) the grant of the right-
of-way permit is not a "disposal" of an "interest in land," and (2)
the right-of-way permit is "revocable" and therefore exempted under
AS 38.05.035(e)(6)(C).  Northern Center challenges both
          This case presents issues of pure statutory
interpretation.  "Statutory construction begins with an analysis of
the language of the statute construed in view of its purpose." [Fn.
18]  We construe statutes "to give effect to the intent of the
legislature, with due regard for the meaning that the statutory
language conveys to others." [Fn. 19]  Thus, we construe terms
according to their common usage, unless a term has acquired a
peculiar meaning due to statutory definition or judicial
construction. [Fn. 20]
          1.   DNR's grant of a right-of-way permit is a
"disposal" of an "interest in land" under AS 38.05.035(e).
          Alaska Statute 38.05.035(e) provides:  "Upon a written
finding that the interests of the state will be best served, the
director [of the Division of Lands] may, with the consent of the
commissioner, approve contracts for the sale, lease, or other
disposal of available land, resources, property, or interests in
          Although DNR here asserts a contrary position, we note at
the outset that DNR regulations -- namely 11 AAC 55.040 --
specifically indicate that grants of rights-of-way or easements for
electric utility lines are disposals of an interest of land under
AS 38.05.035(e) subject to the best interest finding requirement.
[Fn. 21]  Notwithstanding this important admission, we will address
the parties' arguments in turn.
          First, DNR maintains that a revocable right-of-way permit
is not an "interest in land." [Fn. 22]  Indeed, both the permit
itself and the decision on remand state that the permit does not
convey an interest in land.  But focusing on substance rather than
form, we note that licenses, such as revocable land use permits,
[Fn. 23] are generally considered interests in land. [Fn. 24] 
Courts have generally denied licenses the status of interests in
land for the limited purposes of constitutional protections [Fn.
25] and compliance with the Statute of Frauds. [Fn. 26]  Given the
broad constitutional mandate to protect the public interest in
dispositions of state land, [Fn. 27] we construe "interests in
land" to include interests such as licenses.
          The parties also disagree about whether the grant of a
right-of-way permit is a "disposal" for purposes of AS
38.05.035(e).  Northern Center argues that the existence of a
specific exemption in AS 38.05.035(e)(6)(C) for permits indicates
that the definition of disposal would include permits in the
absence of such an exemption.  Indeed, a leading treatise on
statutory interpretation confirms this position: "statutory
exceptions exist only to exempt something that would otherwise be
covered." [Fn. 28]  This rule comports with our rules of statutory
          It is an established principle of statutory
construction that all sections of an act are to be construed
together so that all have meaning and no section conflicts with
another.  Further, where one section deals with a subject in
general terms and another deals with a part of the same subject in
a more detailed way, the two should be harmonized, if possible.[[Fn. 29]]

These rules of statutory interpretation support Northern Center's
argument that revocable permits are included within the term
          DNR contends that the grant of the right-of-way permit is
not a disposal because of its limited duration and subject matter.
First, DNR claims that the general and technical meanings of
disposal -- as defined in dictionaries, case law, and Alaska
Attorney General Opinions -- require a final and irreversible
conveyance of property rights. [Fn. 30]  Under the very terms of AS
38.05.035(e), however, a disposal need not be a permanent
conveyance of property rights.  Alaska Statute 38.05.035(e)
provides that the Division of Lands can, "with the consent of the
commissioner, approve contracts for the sale, lease, or other
disposal of available land, resources, property, or interests in
them."  By using this language the legislature manifested its
intent that "leases" be included in its definition of a "disposal." 
According to the doctrine of ejusdem generis, when a general word
follows a list of specific persons or things, the general word will
be construed to apply only to persons or things of the same type as
those specifically listed. [Fn. 31]  A "lease" is generally defined
as an "[a]greement under which the owner gives up possession and
use of his property . . . for definite term and at end of term
owner has absolute right to retake, control and use property." [Fn.
32]  Thus, under the principal of ejusdem generis, the term
"disposal" as used in AS 38.05.035(e) is not limited to final and
permanent conveyances of property rights but rather includes
property interests of limited duration such as permits and leases.
[Fn. 33]
          Second, DNR argues that the grant of a right-of-way
permit is not a disposal because it does not convey an exclusive
possessory interest.  DNR contends that, under the ejusdem generis
principle, the specific terms "sale" and "lease" require the
general term "disposal" to encompass only transfers of possessory
interests.  But leases do not necessarily convey such interests. 
Certain leases -- including leases of tideland, shoreland, and
submerged land; [Fn. 34] grazing leases; [Fn. 35] and mining leases
[Fn. 36] -- convey nonexclusive possessory interests.  A right-of-
way permit for a transmission line similarly constitutes a
nonexclusive possessory interest.  For example, the state could
concurrently grant a grazing lease on the Intertie right-of-way. 
Because both leases and right-of-way permits may convey
nonexclusive interests, DNR's ejusdem generis argument fails.
          Further, the legislature has clearly indicated that
disposals under the Alaska Land Act may convey a very narrow bundle
of interests.  Former subsection (a) of AS 38.05.321 provided: 
"The sale, lease or other disposal of state land classified as
agricultural land transfers only rights for agricultural purposes,
and all other interests in the land remain with the state unless
otherwise required by law." [Fn. 37]  Thus, the limited nature of
the rights transferred by the state does not remove the issuance of
a right-of-way permit from the scope of the term "disposal."
          DNR also argues that reading "disposal" to include right-
of-way permits would create an impermissible inconsistency in the
statutory framework.  Under AS 38.05.035(e), disposals require the
approval of the Commissioner of Natural Resources.  But under AS
38.05.850(a), rights-of-way, easements, and permits may be issued
"without the prior approval of the commissioner."  DNR argues that
these conflicting provisions indicate that right-of-way permits are
not included under AS 38.05.035(e).
          Northern Center contends that this framework "favors
overlapping applicability, not mutual exclusivity."  We agree.  In
order to give effect to each statutory provision, we interpret AS
38.05.850(a) as exempting certain disposals of interests in land --
permits, rights-of-way, and easements granted for particular
enumerated uses -- from the approval requirement. [Fn. 38]  Alaska
Statute 38.05.850 does not serve to exclude these grants from the
purview of AS 38.05.035(e) altogether.  We note that sales of an
interest in land worth no more than $50,000 and leases with an
average rental value of less than $5,000 similarly do not require
commissioner approval under AS 38.05.035(c)(4) but they are still
subject to the best interest finding requirement.  Applying
principles of statutory construction, we conclude that AS 38.05.850
exempts right-of-way permits from the approval requirement but does
not exempt such disposals from the AS 38.05.035(e) best interest
finding requirement.
          In conclusion, we hold that the issuance of a right-of-
way permit is a disposal of an interest in land for purposes of AS
          2.   The right-of-way permit is not revocable for
purposes of AS 38.05.035(e)(6)(C)'s exception.
          Although we conclude that the grant of a right-of-way
permit is considered a disposal of an interest in land for purposes
of AS 38.05.035(e), DNR need not make a best interest finding if
the permit is deemed revocable.  Under AS 38.05.035(e)(6)(C), a
written best interest finding is not required before the approval
of "a permit or other authorization revocable by the commissioner."
          Northern Center does not dispute that the right-of-way
permit is revocable by its own terms.  Rather it contends that the
cost and magnitude of the construction, as well as the claimed
importance of the Healy-Fairbanks intertie, render the permit not
"revocable in a practical, real world sense."
          In Wilderness Society v. Morton, [Fn. 39] the D.C.
Circuit encountered a similar argument.  Environmental groups
challenged the Department of Interior's intended grants of rights-
of-way and special land use permits for the construction of the
Alaska pipeline.  Because section 28 of the Mineral Leasing Act of
1920 [Fn. 40] limited pipeline rights-of-way to twenty-five feet on
either side, Alyeska Pipeline Service Company applied for a permit
for the additional area needed for pipeline construction. [Fn. 41] 
In its permit application, Alyeska recognized "that any
authorization to use the space . . . will remain at all times
revocable at will by the government, without cause or
justification." [Fn. 42]  Plaintiffs claimed that this permit would
violate 43 C.F.R. sec. 2920.3(a)(1) [Fn. 43] because it would not
truly be "revocable." [Fn. 44]
          Judge J. Skelly Wright, writing for the majority,
discussed two tests for revocability.  The first test "focuses on
the likelihood of revocation as opposed to the mere legal right to
revoke." [Fn. 45]  Under this test, a permit would not be revocable
where revocation would result in the destruction of the licensee's
sizable investments. [Fn. 46]  In such cases, the reserved right of
revocation belies the reality that the permit is functionally
irrevocable.  Judge Wright concluded that the permit failed this
first test: "the entire pipeline investment rests on continuing
availability of the [permit] area [for maintenance and servicing
purposes], and therefore, despite the fact that the application
states that the [permit] is revocable and temporary, it is for all
real purposes irrevocable." [Fn. 47]
          Under the second test, the court focuses on whether, upon
revocation, the licensee could remove the installed structures, or
otherwise vacate the land, without permanently damaging or
destroying the property for governmental use. [Fn. 48]  The
Wilderness Society court determined that the permit violated the
second test because the proposed gravel work pad could not "be
removed without producing permanent and deleterious changes in the
underlying land." [Fn. 49]  The court cited the harmful effects
with respect to vegetation, erosion, and the permafrost. [Fn. 50]
          Because the permit failed both tests, the court did not
decide which test controlled. [Fn. 51]  In finding the permit not
revocable, Judge Wright concluded that, when the permitted use is
not temporary or occasional, but is functionally permanent, "the
matter cannot be papered over merely by designating it as
'revocable' when it is not intended to be revocable and, in the
nature of things, is not in fact revocable." [Fn. 52]
          We endorse Judge Wright's functional analysis of
revocability in Wilderness Society and conclude that the revocable
permit exception to the best interest finding requirement applies
only if the permit is functionally revocable.  Revocability for
purposes of AS 38.05.035(e)(6)(C) should be assessed under a hybrid
approach [Fn. 53] which analyzes both (1) the likelihood of
revocation and (2) the long-term and harmful character of the
environmental impact.  Because of the "importance of our land
resources and of the concomitant necessity for observance of legal
safeguards in the disposal or leasing of state lands," [Fn. 54] we
must analyze the true nature of the proposed project and submit
functionally irrevocable permits to the scrutiny of a best interest
finding. [Fn. 55]
          After analyzing the Wilderness Society factors, we
conclude that the Northern Intertie permit is not functionally
revocable and is therefore subject to the AS 38.05.035(e) best
interest finding requirement.  Applying the first Wilderness
Society factor, the permit has a negligible likelihood of
revocation.  The Northern Intertie project involves an enormous
expenditure of resources, utilizing over $40 million in funds
appropriated by the legislature. [Fn. 56]  This massive investment
would be destroyed if DNR ever revoked the permit for the entire
right-of-way.  Moreover, DNR maintains that Northern Intertie
serves the public interest of providing Fairbanks with a more
reliable and less costly energy supply.  Thus, the cost and alleged
importance of the Northern Intertie support our conclusion that the
permit is not functionally revocable.
          Indeed, DNR and Golden Valley conceded in oral argument
that any revocation would most likely apply only to a small portion
of the right-of-way, resulting in the partial re-routing of the
Intertie and thus the disposal of even more state land.  This
concession further supports our view that the likelihood of DNR
revoking the permit for the entire project is extremely remote.
          Applying the second Wilderness Society factor, the
Northern Intertie project presents the likelihood of irreversible
ecological changes.  According to the Draft Environmental Impact
Statement, the Rex-South route requires the clearing of
approximately 1,319 acres of vegetation along its 97-mile path,
including 867 acres of wetlands.  Scientific research cited in the
Environmental Impact Statement indicates that such vegetative
clearing may result in the permanent thermal degradation of the
sensitive Tanana Flats permafrost.
          In light of the potential long-term environmental damage,
the sheer magnitude of the project and concomitant investment of
resources, and the asserted critical public importance, we hold
that the Northern Intertie right-of-way permit is not functionally
revocable and therefore is not exempted under AS 38.05.035(e)(6)(C)
from the best interest finding requirement.
          We REVERSE the decision of the Commissioner of the
Department of Natural Resources issuing the Northern Intertie
right-of-way permit to Golden Valley.  Because this permit is not
functionally revocable, it is not exempted from the best interest
finding requirement under AS 38.05.035(e)(6)(C).  Accordingly we
REMAND the case to DNR for a best interest finding in accordance
with AS 38.05.035(e).


Footnote 1:

     On December 17, 1999, after consideration of the case on an
expedited basis, we issued an order reversing the decision of the
Commissioner of the Department of Natural Resources and remanding
for a best interest finding.  We stated in our order that a full
opinion of the court would follow.

Footnote 2:

     See ch. 19, sec. 1, SLA 1993.

Footnote 3:

     Northern Alaska Environmental Center argues that DNR exercised
very little independent analysis or judgment in selecting this
alternative, but instead blindly followed BLM's decisions. 
Northern Center also questions the sufficiency and late revelation
of DNR's stated basis for selecting the Rex/South route.  We need
not address these arguments here but note that they may be relevant
to the best interest determination.

Footnote 4:

     Alaska Statute 38.05.035(e) provides: "Upon a written finding
that the interests of the state will be best served, the director
[of the Division of Lands] may, with the consent of the
commissioner, approve contracts for the sale, lease, or other
disposal of available land, resources, property, or interests in

Footnote 5:

     AS 38.05.035(e)(6)(C).

Footnote 6:

     AS 38.05.850(a).

Footnote 7:

     See Usibelli Coal Mine, Inc. v. State, Dep't of Natural
Resources, 921 P.2d 1134, 1141 (Alaska 1996); Tesoro Alaska
Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska

Footnote 8:

     See Usibelli, 921 P.2d at 1141; Tesoro, 746 P.2d at 903.

Footnote 9:

     See Usibelli, 921 P.2d at 1141 (quoting Handley v. State,
Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992)).  

Footnote 10:

     Kelly v. Zamarello, 486 P.2d 906, 916 (Alaska 1971); see also 
Hodges v. Alaska Constructors, Inc., 957 P.2d 957, 960 (Alaska
1998); Konecky v. Camco Wireline, Inc., 920 P.2d 277, 280 n.8
(Alaska 1996) (where the "issue to be resolved turns on statutory
interpretation rather than the formulation of fundamental policy
involving particularized expertise of administrative personnel,
. . . we shall independently consider the meaning of the statute");
Earth Resources Co. v. State, Dep't of Revenue, 665 P.2d 960, 965
n.8 (Alaska 1983) (issues of statutory construction fall "within
the special competency of this court").

Footnote 11:

     Because we decide this case under AS 38.05.035(e), we need not
address the parties' arguments regarding the interpretation of AS

Footnote 12:

     In contrast, where the agency interprets technical or esoteric
terminology, we have applied reasonable basis review.  See, e.g.,
Pan American Petroleum Corp. v. Shell Oil Co., 455 P.2d 12, 20
(Alaska 1969) (applying reasonable basis review to DNR's
interpretation of "commercial quantities" of oil or gas for
purposes of AS 38.05.180(a) "in light of the policy considerations
and the particularized complexity of the subject matter").

Footnote 13:

     541 P.2d 730 (Alaska 1975).

Footnote 14:

     See id. at 736.

Footnote 15:


Footnote 16:

     Id. at 737.

Footnote 17:

     We have similarly applied the substitution of judgment
standard to other DNR interpretations of the Alaska Land Act, AS
38.05.  See, e.g., AU Int'l, Inc. v. State, Dep't of Natural
Resources, 971 P.2d 1034, 1037, n.10 (Alaska 1999) (applying
standard to question of whether mining claim owner was deemed to
have "abandoned" its claims for purposes of AS 38.05.265); Kachemak
Bay Watch, Inc. v. Noah, 935 P.2d 816, 824 (Alaska 1997) (applying
independent judgment in determining which DNR actions under AS
38.05.855 were required prior to considering permit applications);
Tulkisarmute Native Community Council v. Heinze, 898 P.2d 935, 940
(Alaska 1995) (interpreting statutory requirements for granting
water rights permits involves no agency expertise and thus is
subject to the substitution of judgment standard); Longwith v.
State, Dep't of Natural Resources, 848 P.2d 257, 263 n.5 (Alaska
1993) (reviewing DNR interpretation of statutory requirements under
38.05.035 for the grant of preference rights); Alaskan Survival v.
State, Dep't of Natural Resources, 723 P.2d 1281, 1288 (Alaska
1986) (holding AS 38.04.065 requires regional planning prior to
land disposal); Moore v. State, 553 P.2d 8, 25-26 (Alaska 1976)
(applying substitution of judgment standard in determining whether
AS 38.05.305 applied to oil and gas leases). 

Footnote 18:

     Ganz v. Alaska Airlines, Inc., 963 P.2d 1015, 1017 (Alaska
1998) (citations omitted).

Footnote 19:

     City of Dillingham v. CH2M Hill Northwest, Inc., 873 P.2d
1271, 1276 (Alaska 1994) (citations omitted).

Footnote 20:

     See McDowell v. State, 957 P.2d 965, 970 (Alaska 1998).

Footnote 21:

     This regulation permits certain disposals of interests in land
prior to classification, including "the granting of a right-of-way
or easement for a use that has been determined in the finding
required by AS 38.05.035(e) to have a minor or insignificant effect
on the land and resources; such uses might include . . . (ii) a
telephone, electric, or other utility line less than 1,500 feet in
length."  11 AAC 55.040(i)(6).

Footnote 22:

     See 1983 Informal Op. Att'y Gen. 4412, 4414 (Dec. 15, 1983)
(stating that revocable use permit "did not convey an interest in
land"); see also Cissna v. Stout, 931 P.2d 363, 368 (Alaska 1996)
("While opinions of the attorney general are entitled to some
deference, they are not controlling on matters of statutory

Footnote 23:

     A permit to use land revocable at the will of the grantor is
generally considered a license.  See Restatement of Property
514, 519 (1966); Jon W. Bruce & James W. Ely, Jr., The Law of
Easements & Licenses in Land  9.02[4], 10.06[1] (1988); 4 Powell
on Real Property sec. 34.25 (1997); 8 Thompson on Real Property
64.02(a) (1994); 3 Tiffany, Real Property sec. 833 (1939).

Footnote 24:

     See Restatement of Property sec. 512 cmt. c (1944) ("A
to use certain land constitutes an interest in that land.");
Thompson on Real Property sec. 64.02(b); see also Hubbard v. Brown,
785 P.2d 1183, 1186-87 (Cal. 1990) (recognizing that license may be
an interest in land for some purposes, such as taxation and
statutory tort immunity, but not for other purposes, such as
eminent domain).

Footnote 25:

     See Hubbard 785 P.2d at 1186 (use permit not an interest in
land for eminent domain purposes); 8 Thompson on Real Property sec.

Footnote 26:

     See Forge v. Smith, 580 N.W.2d 876, 883 (Mich. 1998) (licenses
need not comply with Statute of Frauds); 8 Thompson on Real
Property sec. 64.02(b).

Footnote 27:

     See Alaska Const. art. VIII, sec.sec. 1, 10; see also Preamble
Alaska Land Act, ch. 169, SLA 1959; Alyeska Ski Corp. v.
Holdsworth, 426 P.2d 1006, 1011 (Alaska 1967) (Article VIII, sec.
"reflects the framers' recognition of the importance of our land
resources and of the concomitant necessity for observance of legal
safeguards in the disposal or leasing of state lands.").

Footnote 28:

     2A Norman J. Singer, Sutherland Statutory Construction sec.
at 166 (5th ed. 1992).

Footnote 29:

     In re Hutchinson, 577 P.2d 1074, 1075 (Alaska 1978). 

Footnote 30:

     See Webster's New Collegiate Dictionary (1975) (defining
"dispose of" as "to deal with conclusively," "to transfer to the
control of another," and "to get rid of"); Black's Law Dictionary
471 (abr. 6th ed. 1990) (defining "dispose of" as "to exercise
finally in any manner, one's power of control over; to pass into
the control of someone else; to alienate, relinquish, part with, or
get rid of"); Assiniboine & Sioux Tribes v. Nordwick, 378 F.2d 426,
429 (9th Cir. 1967), cert. denied, 389 U.S. 1046 (1968) (describing
a disposal as "that final and irrevocable act by which the right of
a person, purchaser, or grantee, attaches, and the equitable right
becomes complete to receive the legal title by a patent or other
appropriate mode of transfer") (cited in 63C Am. Jur. 2d Public
Lands sec. 40 (1997)); 1980 Informal Op. Att'y Gen. 6402, 6403 at
(Dec. 22, 1980) (stating that "disposal" suggests irreversibility).

Footnote 31:

     See State Farm Fire & Cas. Co. v. Bongen, 925 P.2d 1042, 1046
n.8 (Alaska 1996) (quoting Black's Law Dictionary (6th ed. 1990)).

Footnote 32:

     Black's Law Dictionary 615 (abr. 6th ed.) (emphasis added).

Footnote 33:

     Cf. AS 38.05.810(g) (providing that the state retains
reversionary interest when it disposes of state land for public or
charitable use).

Footnote 34:

     See AS 38.05.075(c)-(d).

Footnote 35:

     See 11 AAC 60.130.

Footnote 36:

     See AS 38.05.255.

Footnote 37:

     Ch. 1, sec. 7, FSSLA 1996.

Footnote 38:

     A right-of-way is a class of easement.  See Wessells v. State,
Dep't of Highways, 562 P.2d 1042, 1046 n.5 (Alaska 1977); Jon W.
Bruce & James W. Ely, Jr. The Law of Easements & Licenses in Land
 1.06[1] (1988).

          An easement is an "interest in land owned by another
person, consisting in the right to use or control the land, or an
area above or below it, for a specified limited purpose."  Black's
Law Dictionary 527 (7th ed. 1999).  See also Restatement of
Property sec. 450, cmts. a-d; 4 Powell on Real Property sec.
Thompson on Real Property sec. 60.02; AS 44.88.900(12) (defining
property" as "land and rights and interests in land, including,
without limitation, interests less than full title such as
easements, uses, leases, and licenses").

Footnote 39:

     479 F.2d 842 (D.C. Cir. 1973) (en banc).

Footnote 40:

     30 U.S.C. sec. 185.

Footnote 41:

     See Wilderness Society, 479 F.2d at 848-53.  Alyeska sought
the permit for "additional access and construction space" parallel
to the right-of-way.  Id. at 850.  This permit in effect would have
widened the right-of-way 11 feet on one side and 35 feet on the
other.  See id.

Footnote 42:

     Id. at 851.

Footnote 43:

     43 C.F.R. sec. 2920.3(a)(1)(1972) provided:  "A special land
permit will be revocable in the discretion of the authorized
officer at any time, upon notice, if in his judgment the lands
should be devoted to another use, or the conditions of the permit
have been breached."  See Wilderness Society, 479 F.2d at 870.

Footnote 44:

     See Wilderness Society, 479 F.2d at 870.

Footnote 45:

     Id. at 871.

Footnote 46:

     See id. at 871-72.

Footnote 47:

     Id. at 873.  DNR points out that the likelihood-of-revocation
test was rejected in a later D.C. Circuit opinion.  In Wilson v.
Block, 708 F.2d 735 (D.C. Cir. 1983), the D.C. Circuit addressed a
challenge to a land use permit issued by the U.S. Forest Service. 
The plaintiffs argued that, despite the facial revocability of the
permit, the permit was not in fact revocable "because the Forest
Service is unlikely to revoke it before the term of the permit
expires."  Id. at 760.  Fully cognizant of the Wilderness Society
case, the court responded:  "The short answer is that the Forest
Service has power to revoke."  Id. at 760 n.21. While this may
lessen the precedential value of Wilderness Society within the D.C.
Circuit, such a statement devoid of analysis and citation in no way
diminishes the persuasive force of the en banc Wilderness Society
opinion joined by such eminent jurists as Judges Bazelon,
Leventhal, and Wright.

Footnote 48:

     See Wilderness Society, 479 F.2d at 872.

Footnote 49:

     Id. at 874.

Footnote 50:

     See id. at 874-75.

Footnote 51:

     See id. at 872.

Footnote 52:

     Id. at 875. 

Footnote 53:

     The two Wilderness Society tests are not mutually exclusive
and can properly be applied in tandem.  In fact, Judge Wright
explicitly considered the permanent and detrimental nature of the
proposed gravel pad in his discussion of the likelihood-of-
revocation test.  See id. at 873-75.

Footnote 54:

     Alyeska Ski Corp. v. Holdsworth, 426 P.2d 1006, 1011 (Alaska

Footnote 55:

     This test for revocability does not conflict with our
reasoning in Swindel v. Kelly, 499 P.2d 291 (Alaska 1972).  In
determining whether a permit is revocable, we look not only at its
express terms but also at the "true intent of the agreed upon
license."  Id. at 296 n.16.  In Swindel, we determined that the
terms of the expressly revocable land use permit were determinative
in the context where the project required little investment and
produced no discernible public benefit.  Id. at 293 nn.2-3, 295
n.15, 296.  But where a project is enormously expensive and
important to the public, the parties' true intent may not be
manifested in the permit's express power to revoke.  In such cases,
the court may properly look beyond the express terms of the permit
without running afoul of Swindel.

Footnote 56:

     See ch. 19, sec. 1 SLA 1993.