Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cook Inlet Keeper v. State (5/3/2002) sp-5567

Cook Inlet Keeper v. State (5/3/2002) sp-5567

     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,


COOK INLET KEEPER,            )
                              )    Supreme Court No. S-9730
          Appellant,               )
                              )    Superior Court No.
          v.                  )    3AN-99-3482 CI
COORDINATION,            )
                              )    O P I N I O N
          Appellee,           )
FOREST OIL CORPORATION,       )    [No. 5567 - May 3, 2002]
          Intervenor-Appellee.     )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Larry D. Card, Judge.

          Appearances:  Michael J. Frank and Rebecca L.
          Bernard, Trustees for Alaska, Anchorage,  for
          Appellant.   Lisa  A.  Weissler  and  Kirsten
          Swanson,  Assistant  Attorneys  General,  and
          Bruce  M. Botelho, Attorney General,  Juneau,
          for Appellee State of Alaska.  Kyle W. Parker
          and  David  J. Mayberry, Patton  Boggs,  LLP,
          Anchorage, for Intervenor-Appellee Forest Oil

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

          BRYNER, Justice.

           Alaska  law  requires all projects  affecting  coastal

areas  to  be  reviewed for consistency with the  Alaska  Coastal

Management   Program.   The  state  issued  a  final  consistency

determination approving the installation and operation of  a  new

offshore exploratory drilling platform in the Cook Inlet over the

Redoubt  Shoals.   In  finding the project  consistent  with  the

Coastal  Program, the state excluded from its consistency  review

the platform's proposed discharges of various wastes - discharges

that  were  already  authorized under a  general  federal  permit

covering  exploratory  drilling discharges throughout  the  upper

Cook  Inlet  area.   Because the state had a  statutory  duty  to

conduct  a  project-specific consistency review encompassing  all

activities  for  which  the  Osprey  project  needed  a   permit,

including  a general permit that already existed, we reverse  and

remand for a new consistency determination.


           The  Alaska Coastal Management Act1 requires the state

to  establish  and enforce the Alaska Coastal Management  Program

(Coastal  Program),  which  protects Alaska's  coastal  areas  by

ensuring that commercial and industrial development is consistent

with  Alaska's environmental and cultural interests.2  Under  the

Act,  state  agencies  can  authorize activities  involved  in  a

project having significant impacts in Alaska's coastal areas only

if  the state determines that the project is consistent with  the

applicable  Coastal  Program standards.3  The  Alaska  Governor's

Office  of  Management and Budget is responsible for  determining

whether  projects  requiring approval  from  two  or  more  state

resource  agencies  are  consistent with  the  Coastal  Program;4

within  that  office,  the  responsibility  is  assigned  to  the

Division  of  Governmental  Coordination.5   The  Alaska  Coastal

Policy Council promulgates the Coastal Program's regulations  and

hears petitions for review of consistency determinations.6

            In   May  1998  Forcenergy  Inc.  -  now  Forest  Oil

Corporation  -   filed  with the state a  project  questionnaire,

permit  applications,  and  supporting  information  seeking   to

install  an exploration platform over the Redoubt Shoals in  Cook

Inlet  to  conduct  exploratory drilling for  oil  and  gas;  the

platform  would later be converted to a production  operation  if

Forest  Oil  discovered sufficient oil and gas reserves.   Forest

Oil  named the proposed platform "the Osprey," described it as  a

new  project, and stated that the company did not "currently have

any  State,  federal, or local permits related to the  activity."

Forest  Oil  noted  that the platform would discharge  wastewater

from  industrial or commercial operations, that it  would  use  a

disposal  system, that the wastewater discharge would exceed  500

gallons  per  day,  and that the company expected  to  request  a

mixing  zone  permit  -  a permit option when  discharges  exceed

Alaska  water  quality standards.7  It also listed as  pending  a

United  States  Environmental Protection Agency  (EPA)  discharge


           The  state  initiated  a  ninety-day  Coastal  Program

consistency review for the Osprey project by letter dated  August

26,  1998.  The state's letter initiating the review listed seven

permits  within  the  scope of the Osprey  project's  consistency

review   process,  including  an  individual  federal  wastewater

discharge permit.  The letter also stated that the EPA was in the

process  of  finalizing  a  general wastewater  permit  that  was

expected  to cover all discharges into the Cook Inlet by  various

exploratory drilling operations and that Forest Oil's  individual

wastewater permit application would be withdrawn in favor of  the

general permit if the general permit was issued first.

          Cook Inlet Keeper, which describes itself as "a member-

supported nonprofit organization dedicated to protecting  habitat

and  water  quality  in  the  Cook  Inlet  watershed,"  submitted

comments during the public comment period of the Osprey project's

consistency review process.  The public comment period ultimately

ended  on  July  30,  1999.  By then, the EPA had  finalized  and

issued   its  general  permit  authorizing  specified  wastewater

discharges for existing and future exploratory drilling  projects

throughout state waters within the upper Cook Inlet.  The general

permit  had  undergone its own consistency review process,  which

culminated  in  the  state's  issuance  of  a  final  consistency

determination  finding the general permit to be  consistent  with

the Coastal Program.

           In  its  comments on the Osprey project's  consistency

review,  Cook  Inlet Keeper acknowledged that the  EPA's  general

wastewater permit covered the Osprey's proposed operations.   But

Cook  Inlet  Keeper  asserted that state law - specifically,  the

standards  adopted  under  the Alaska Coastal  Management  Act  -

nonetheless  provided  greater  environmental  protection.   Cook

Inlet  Keeper  urged  the  state  to  prohibit  the  Osprey  from

discharging  toxic  wastes  created  during  exploration  because

discharging  the  wastes would not "maintain or enhance"  habitat

and  so  would  violate the Coastal Program's habitat  standard.8

Cook Inlet Keeper further asserted that the Osprey platform would

be  installed in an area of significant fresh water inputs and so

should  be held to the habitat standard's specific criterion  for

estuaries,  which  broadly  requires  avoidance  of  toxic  waste

discharges.9   Alternatively,  Cook  Inlet  Keeper  argued,   the

offshore  criterion  of the habitat standard would  prohibit  the

Osprey from discharging toxic wastes because fisheries would  not

be  maintained  or enhanced.10  Cook Inlet Keeper also  expressed

concerns  about  the Osprey's potential interference  with  whale

migration and feeding areas.

           On  September 2, 1999, about a month after the  public

comment  period closed, the state issued its proposed consistency

determination for the Osprey project.  The state found the Osprey

project to be consistent with the Coastal Program, provided  that

certain  conditions  were met.  But the state specifically  noted

that it had excluded the Osprey's wastewater discharge activities

from  the project's consistency review because the EPA's recently

issued exploratory discharge general permit already covered those


          Discharge  of water-based drill cuttings  and
          muds,  wastewater discharges, including  gray
          water,  treated  sewage and treated  effluent
          from  the  rig  oil/water separator  will  be
          regulated    by    the   U.S.   Environmental
          Protection  agency (EPA) Cook Inlet  National
          Pollutant   Discharge   Elimination    System
          (NPDES) General Permit.  This general  permit
          has  been previously reviewed for consistency
          with  the  [Coastal Program],  so  activities
          associated  with the general permit  are  not
          part of [the Osprey] consistency review.
           In September 1999 the state issued a final consistency

determination  for the Osprey project that essentially  conformed

to  its  earlier proposed consistency finding. Cook Inlet  Keeper

appealed  to  the  superior court; Forest Oil  intervened  as  an

appellee.   The   superior   court   affirmed   the   consistency

determination,  concluding that the state properly  excluded  the

Osprey's   exploration-related  discharges  from  the   project's

consistency  review process because those activities had  already

been  considered  and  found to be consistent  with  the  Coastal

Program  in  the state's consistency review that occurred  during

the EPA's general permit process.

           Cook  Inlet  Keeper appeals, arguing  that  the  state

impermissibly   omitted   the   Osprey's   wastewater   discharge

activities from the project's consistency review.11


     A.   Standard of Review

           When  we  consider  an administrative  appeal  from  a

decision rendered by the superior court acting as an intermediate

appellate   tribunal,  we  review  the  administrative   agency's

determination  directly.12  Because our decision in  this  appeal

turns  on  issues of statutory interpretation and  related  legal

questions   concerning  waiver  and  estoppel,   we   apply   our

independent judgment.13

                         B.   Exclusion of Federally Permitted Toxic
          Discharges from the Osprey Project's Consistency Review
          1.   Statutory and regulatory framework

           In  Hammond v. North Slope Borough,14 we described the

relevant effects of the Alaska Coastal Management Act as follows:

                The  Alaska Coastal Management Act,  AS
          46.40.010_.210,     provides     for      the
          establishment of an Alaska Coastal Management
          Program  (ACMP), which is partly designed  to
          ensure that the development of industrial and
          commercial enterprises is consistent with the
          environmental and cultural interests  of  the
          state.   AS 46.40.020.  The Act provides that
          the ACMP is to consist of standards issued by
          a   Coastal   Policy  Council  and   district
          management  programs established  by  coastal
          resource  districts.    AS  46.40.030.    The
          current ACMP establishes an Office of Coastal
          Management  which must, among  other  things,
          "review   state  and  federal   actions   for
          consistency    with   the   Alaska    coastal
          management   program,  subject   to   council
          review."      6   AAC   80.030(a)(3).     The
          regulations also provide that a state  agency
          may  authorize  uses  or  activities  in  the
          coastal  area  under its statutory  authority
          only  if  "the agency finds that the  use  or
          activity  is  consistent with the  applicable
          district  program and the standards contained
          in this chapter."   6 AAC 80.010(b) . . . .
               . . . .
                The ACMP consists of two elements:  the
          local   district  programs  and   the   state
          standards  found  in 6 AAC 80.040_.120.   The
          state  standards are extremely protective  of
          the  environment.  For example, in  areas  in
          which  there  is  a "substantial  possibility
          that  geophysical hazards may  occur,"  state
          agencies must ensure that measures have  been
          taken to minimize property damage and protect
          against  loss  of life before development  of
          the  area  may begin.   6 AAC 80.050.   State
          agencies  must  also  "recognize  and  assure
          opportunities   for  subsistence   usage   of
          coastal areas and resources."   6 AAC  80.120
          .  .  .  .   With regard to the  habitats  in
          coastal areas, they "must be managed so as to
          maintain or enhance the biological, physical,
          and  chemical characteristics of the  habitat
          which  contribute to its capacity to  support
          living resources."   6 AAC 80.130(b) . . .  .
          Agencies  must  also  "discourage  activities
          which  would  decrease  the  use  of  barrier
          islands  by coastal species, including  polar
          bears  and  nesting birds."   6 AAC 80.130(c)
                These  requirements, however,  are  not
          absolute.   Conflicting uses  and  activities
          may be allowed by the district or appropriate
          state agency if:
          (1)  there is a significant public  need  for
          the proposed use or activity;
          (2)  there is no feasible prudent alternative
          to  meet the public need for the proposed use
          or activity. . .;
          (3)   all  feasible  and  prudent  steps   to
          maximize conformance with the standards . . .
          will be taken.
           6 AAC 80.130(d) . . . .
                Thus, there are two alternative methods
          a  state  agency may use.  Either the  agency
          must find that all the specific environmental
          protections have been met or, if  there  will
          be  conflicting  uses, the agency  must  find
          that  the three pronged test delineated above
          has been satisfied.[15]
          2.   Analysis

           Cook Inlet Keeper asserts that the state violated this

process by completely excluding the Osprey's wastewater discharge

activities  from  the project's consistency review  process.   It

maintains  that when a project like the Osprey platform undergoes

a  consistency  review, the state must evaluate all  licensed  or

permitted  activities involved in the entire project,  regardless

of whether individual permits have already been issued.

           According  to  Cook Inlet Keeper,  the  entire  Osprey

exploratory  platform  is a single project encompassing  all  the

activities associated with the Osprey.  In particular, Cook Inlet

Keeper  contends, the Osprey's wastewater discharges are part  of

the  Osprey  project  because  they  are  reasonably  foreseeable

impacts of the platform's construction and operation.

          The state and Forest Oil respond that the EPA's general

permit authorizing exploratory drilling discharges covers all oil

and  gas  exploration in the Cook Inlet - including the  Osprey's

exploration activities.  Because the general permit underwent its

own  consistency  review process and was found to  be  consistent

with  the  Coastal  Program, they reason, the consistency  review

process  for  the  Osprey project had no need to  consider  these

already-permitted activities.

           But  Cook  Inlet Keeper answers that even  though  the

state  determined the EPA's general permit to be consistent  with

the  Coastal  Program,  the state has not  conducted  a  specific

consistency  review of the Osprey's discharge activities  in  the

particularized  context  of  the Osprey  project;  this  project-

specific  evaluation, Cook Inlet Keeper insists, is  mandated  by

law  and  necessary as a practical matter to enable the state  to

accurately  assess the environmental consequences of  the  Osprey

project as a whole.

            Cook   Inlet  Keeper's  arguments  have  merit.    In

contending  that  the issuance of a general permit  for  a  given

activity  exempts that activity from project-specific  review  in

future  projects,  the  state mistakenly conflates  two  separate

processes.   As the Alaska Coastal Management Act's  implementing

regulations make clear, the Act's consistency review requirements

apply independently of, and in addition to, any requirements that

attach  to  the  issuance  of  a permit  authorizing  a  discrete


               In authorizing uses or activities in the
          coastal  area under its statutory  authority,
          each  state  agency shall grant authorization
          if,  in  addition to finding that the use  or
          activity  complies with the agency's statutes
          and  regulations, the agency finds  that  the
          use   or  activity  is  consistent  with  the
          applicable district program and the standards
          contained in this chapter.[16]
By  distinguishing consistency review from compliance with agency

permitting  requirements, this regulation strongly suggests  that

an  activity  generally  found  to meet  permitting  requirements

cannot,   by  mere  virtue  of  already  having  been   generally

permitted,  evade  inclusion in a subsequent  consistency  review

process  that is statutorily mandated for a specific new  project

in which that activity will occur.

            Added  support  for  this  proposition  is  found  in

statutory   provisions  requiring  project-specific   consistency

review.   Under  AS  44.19.145(a)(11), the Governor's  Office  of

Management and Budget must conduct a consistency review and  make

a  consistency determination "when a project requires  a  permit,

lease,   or  authorization  from  two  or  more  state   resource

agencies."17  A consistency review also must be performed when  a

project  requires a permit, lease, or authorization from  only  a

single   agency;  but  in  such  cases  the  issuing  agency   is

responsible  for  coordinating the project's consistency  review:

"If  a  consistency review is not subject to AS  44.19.145(a)(11)

because  the  project  for  which a consistency  review  is  made

requires  a permit, lease, or authorization from only  one  state

agency, that state agency shall coordinate the consistency review

of the project."18

          Read together, these statutory provisions unequivocally

establish  that  consistency review must  be  a  project-specific

process.   And  this  point  becomes  even  clearer  when   these

provisions   are  read  in  conjunction  with  the   above-quoted

regulation  requiring  the  state to  determine  consistency  "in

addition  to finding that the use or activity complies  with  the

agency's  statutes  and  regulations"  that  govern  issuance  of


            The  statutory  definition  of  "consistency  review"

further reinforces the project-specific nature of the consistency

review  process;  and  this definition also clarifies  that  each

consistency  review  determination  must  encompass  the   entire

project:  "  `[C]onsistency review' means  the  evaluation  of  a

proposed  project against the standards adopted  by  the  council

under  AS  46.40.040  and a district coastal  management  program

approved  by  the  council  under AS 46.40.060."20    Regulations

governing  the Division of Governmental Coordination  cement  the

latter  point  - that a consistency determination must  encompass

the  entire project it covers - by broadly defining "project"  to

encompass any

          activity  or use that will be located  in  or
          may affect the coastal zone of this state and
          that  is subject to consistency review  under
          16  U.S.C.  1456(c),  or  that  requires  the
          issuance  of  at  least  one  state   permit;
          "project"  includes each phase of  a  project
          when a land or water activity is developed or
          authorized in discrete phases, and each phase
          requires    a   state   decision    regarding

And   as   Cook  Inlet  Keeper  further  correctly  points   out,

additional, albeit less direct, support for the same point may be

found  in  6  AAC 50.050, which sets out two exclusive mechanisms

for   shortcutting   the  full  consistency  review   process   -

categorical  approval  (subsection (b)) and  general  concurrence

(subsection (c)).22  Neither of these shortcuts includes omitting

from  the  scope  of  a particular project's  consistency  review

process a project activity that happens to be preauthorized under

the terms of a general, area-wide permit.

          Other provisions similarly underscore the importance of

including within the scope of a project's consistency review  all

proposed  project  uses  and activities  for  which  permits  are

required, not just those for which permits have yet to be issued.

For  example, a state agency conducting a consistency review must

solicit  comments from any "coastal resource district in which  a

project  is  proposed  to be located or which  may  experience  a

direct and significant impact from a proposed project[.]"23   And

AS  46.40.210(7)(C)  includes within the definition  of  "use  of

direct  and  significant impact" any use or  associated  activity

that  "proximately contributes to a material change or alteration

in the natural or social characteristics of a part of the state's

coastal  area  and  in  which . . . the  use  would,  of  itself,

constitute  a  tolerable change or alteration  of  the  resources

within  the coastal area but which, cumulatively, would  have  an

adverse effect."

            Moreover,   in  the  analogous  context   of   phased

consistency  review,  it is noteworthy that  the  issuance  of  a

permit  or  authorization based on a consistency review conducted

at  an early phase of a project does not exempt the permitted use

or  activity  from  further  review.  Even  though  AS  46.40.094

specifically allows the state discretion to segment projects into

progressive  phases and provides that each phase may undergo  its

own  consistency  review  and permitting process,  the  statutory

phasing mechanism expressly restricts this approach to situations

in which each successive phase must undergo further discretionary

review   and   the  reviewing  agency  conditions   its   current

consistency  determination by requiring that  a  new  consistency

determination  be made at each successive phase.24   The  phasing

statute  thus assures repeated consistency review  and  gives  no

indication  that  the  earlier consistency  determination  should

truncate  the  presumably  more  comprehensive  scope   of   each

successive  determination.   To the  contrary,  as  we  expressly

observed  when  we  interpreted  AS  46.40.094  in  Kachemak  Bay

Conservation  Society v. State, Department of Natural  Resources,

the  statute's  authorization  of  a  phased  consistency  review

process does not allow the state to avoid "thorough review  of  a

project  or  its potential effects by artificially  dividing  the

project," because it does not relieve the state "of its  duty  to

take  a continuing `hard look' at future development . . . .   To

the   contrary,  [the  state]  is  obliged,  at  each  phase   of

development,   to   issue   a  .  .  .   conclusive   consistency

determination  relating  to  that  phase  before   the   proposed

development may proceed."25

           Just  as with phased review under AS 46.40.094,  then,

the  division  of the Osprey project's actual permitting  process

into two distinct permitting segments -  one federal process  and

one   state  process  -   should  provide  no  occasion  for   an

artificially  segmented  consistency  review  process  in   which

neither  consistency review comprehensively considers or  finally

determines  the consistency of all permitted uses and  activities

included  in the whole project at issue.  For as we have observed

on   other  occasions,  "the  more  segmented  an  assessment  of

environmental  hazards, the greater the risk that  prior  permits

will compel [the state] to approve later, environmentally unsound


           Despite the state's and Forest Oil's protests  to  the

contrary, we find little danger of superfluity or inefficiency in

requiring  the  Osprey's  discharge  activities  to  undergo  two

separate  reviews for consistency with the Coastal Program.   The

two  separate  consistency reviews at issue here encompassed  two

separate  projects.  The first broadly focused on the consistency

of  the  EPA  general permit that authorizes  various  levels  of

discharges  by  exploratory platforms throughout the  upper  Cook

Inlet  region,  while  the second should have  more  specifically

focused on the consistency of the activities encompassed  by  all

necessary Osprey project permits - those already issued and those

still  to  be  issued.  Nor do the terms of  the  general  permit

purport  to  exempt  the Osprey project from a further,  project-

specific consistency review process.  To the contrary, Part VI(K)

of  the  EPA  general permit expressly states that "[n]othing  in

this permit must be construed to . . . relieve the Permittee from

any responsibilities . . . established pursuant to any applicable

state law or regulation[.]"

          To be sure, the general permit's review process covered

much ground that ordinarily would have been covered by the Osprey

project's  individualized review process had the Osprey's  review

process included Forest Oil's discharge activities.  And  by  the

same token, the favorable consistency determination given to  the

general  permit certainly might have provided a strong foundation

for   evaluating   the  consistency  of  Forest  Oil's   proposed

discharges in the context of the Osprey's project-specific review

process.   To  this extent, then, the evidence presented  in  the

earlier review and the state's evaluation of that evidence in its

first consistency determination could have illuminated the latter

process: the need for a second, project-specific review certainly

would  not  have  required the state to ignore the  first  or  to

redetermine issues that it had already fully considered.  But  on

the  other  hand,  the  mere existence of an earlier  consistency

determination  for the EPA's general permit could not  by  itself

justify  completely excluding the subject of wastewater discharge

activities from the Osprey project's project-specific consistency

review.   Nor could it excuse the state from complying  with  its

usual  duty  to take a hard look at the whole Osprey project  and

make  an  appropriately  explained determination  of  the  entire

project's   consistency   with  all  relevant   Coastal   Program


             Because    the    Osprey's   discharge    activities

unquestionably comprised part of the Osprey project, we hold that

a  complete  consistency  review for the  project  could  not  be

conducted without considering those activities.

     C.   Waiver and Res Judicata/Collateral Estoppel

           Forest Oil nonetheless protests that Cook Inlet Keeper

either  is  barred by the doctrines of res judicata or collateral

estoppel  from arguing for project-specific review or waived  its

right  to  raise  this argument by failing to raise  it  below.27

Neither argument has merit.

          Res judicata precludes subsequent litigation of a claim

that  could  have  been brought during a prior administrative  or

judicial adjudication that resulted in a final judgment.28  Here,

as  already noted above, the state conducted a consistency review

in  connection with the EPA's general permitting process for Cook

Inlet discharges; that review addressed a distinct "project"  and

had   a  markedly  different  scope  than  the  specific  project

addressed  in  the  state's separate consistency  review  of  the

Osprey  project.   As  a practical and legal matter,  Cook  Inlet

Keeper  could  not  have litigated the proposed Osprey  project's

specific  consistency with the Coastal Program in the  procedural

context  of  the general permit's consistency review.   Moreover,

Forest  Oil  identifies nothing from the record  of  the  state's

review process of the general permit that served timely notice on

Cook   Inlet  Keeper  or  other  interested  parties   that   its

consistency determination in that proceeding would not be subject

to  case-specific  re-evaluation as  part  of  the  usual  review

process  that  would  later be required for  any  newly  proposed

exploration  project involving discharges covered by the  general


          Nor does Forest Oil point to any specific issue of fact

or  law  that was actually and necessarily decided in the  former

review  proceeding so as to collaterally estop Cook Inlet  Keeper

from  raising  any  issues  it sought to  assert  in  the  Osprey

project's review proceedings. There are three necessary  elements

to a claim of collateral estoppel:

          (1)     the   issue  decided   in   a   prior
          adjudication was precisely the same  as  that
          presented in the action in question; (2)  the
          prior  litigation  must have  resulted  in  a
          final  judgment on the merits; and (3)  there
          must   be   "mutuality"  of  parties,   i.e.,
          collateral  estoppel may be invoked  only  by
          those  who  were  parties or privies  to  the
          action in which the judgment was rendered.[29]
Here,  even  assuming  that Forest Oil satisfied  its  burden  of

establishing  the  second and third elements, it  has  failed  to

establish the first.30

           Forest  Oil fares no better with its waiver  argument.

In  Trustees for Alaska v. State, Dep't of Natural Resources,  we

stated  that  a  party  must  meaningfully  raise  an  issue   in

administrative  proceedings so as to preserve it  for  appeal  by

alerting  the  agency to the party's position and  contentions.31

Here,  in  soliciting public comment on the Osprey  project,  the

state  noted  that,  if the general permit was  finally  approved

before  the conclusion of the Osprey project's consistency review

process,  Forest  Oil  would rely on the  EPA  general  discharge

permit  rather  than  on  the  project-specific  permit  it   had


           By  the time public comments were due, the EPA general

permit  had  been finally approved.  Responding  to  the  state's

request  for  comment,  Cook Inlet Keeper's comment  acknowledged

that  the  general permit covered the Osprey platform's discharge

activities but argued that the state had authority to apply  more

stringent  state-law standards.  The comment expressly noted  the

facial  inconsistency  between  the  Osprey  project's  discharge

activities  and the Coastal Program's general habitat standard.32

It went on to emphasize that the project's location would require

compliance  with  the habitat standards governing  estuarine  and

offshore  areas.33  The comment further reminded the  state  that

Forest  Oil  bore  the  burden  of proving  compliance  with  the

applicable  standards: "Regardless of the standard  applied,  the

applicant carries the burden of showing compliance with the ACMP,

and at a minimum, the applicant must make a conclusive showing of

`no  harm' in order to prove the project will `maintain'  habitat

and fisheries."34

           In  our view, these comments easily sufficed to  alert

both  the state and Forest Oil to Cook Inlet Keeper's contentions

and  position.   True, they only implicitly asserted  Cook  Inlet

Keeper's  present contention that Alaska law required a separate,

project-specific   consistency  determination.    But   when   it

submitted  its initial comment, Cook Inlet Keeper had no  obvious

need  to advance a more elaborate argument on this point:  before

the Osprey project's public comment period closed, the state gave

no  express notice of its intent to completely omit the  Osprey's

discharge  activities from the scope of the project's consistency

review  determination.  Given the apparently unprecedented nature

of  this  omission, Cook Inlet Keeper can hardly be  faulted  for

failing to predict the state's position.

          Finding no ground to sustain Forest Oil's claims of res

judicata,  collateral estoppel, or waiver,  we  must  vacate  the

final  consistency determination and remand for a new consistency

determination  that  considers the Osprey's discharge  activities

within the scope of the project's overall consistency review.35


           For  the foregoing reasons, we VACATE the Division  of

Governmental  Coordination's Final Consistency  Determination  of

September   14,   1999,  and  REMAND  for   a   new   consistency

determination in keeping with this opinion.

1AS 46.40.010-.210 (2000).
2Hammond v. North Slope Borough, 645 P.2d 750, 761 (Alaska 1982).
3See  AS  46.40.094; AS 46.40.096; AS 46.40.210(3),  (7);  6  AAC
80.010(b) (2000); see also Hammond, 645 P.2d at 761.
4AS  44.19.145(a)(11); see also AS 46.40.094; AS 46.40.096; 6 AAC
50.030; Trs. for Alaska v. State, Dep't of Natural Res., 795 P.2d
805, 811 (Alaska 1990).
56  AAC 50.010(1); 6 AAC 50.030(a).  For simplicity's sake,  this
opinion  will  refer to the Division of Governmental Coordination
as the state.
6AS 46.40.040; AS 46.40.096; 6 AAC 50.370.
7AS 46.03.100 (requiring a permit); 18 AAC 70.015 (listing permit
options); 18 AAC 70.240 (providing mixing zones permit).
8See 6 AAC 80.130(b).
9See 6 AAC 80.130(c)(2).
10See 6 AAC 80.130(c)(1).
11Cook Inlet Keeper separately contends that the final consistency
determination  fails  to  address the violation  of  the  habitat
standard  that  would inevitably  result from towing  the  Osprey
platform  from  its  construction site  at  Port  Graham  to  its
installation  point  on the Redoubt Shoals.  But  the  platform's
towing  and installation have now been completed, and since  Cook
Inlet  Keeper  has failed to show that this issue  is  likely  to
recur   and  evade  future  review,  the  issue  appears  to   be
functionally  moot.  Cf. Smith v. Cleary, 24 P.3d  1245,  1251-52
(Alaska 2001).
12N.  Alaska Envtl. Ctr. v. State, Dep't of Natural Res., 2  P.3d
629, 633 (Alaska 2000).
13Id. (statutory interpretation); State, Dep't of Commerce & Econ.
Dev., Div. of Ins. v. Schnell, 8 P.3d 351, 359 (Alaska 2000) (res
judicata);  Wall  v.  Stinson, 983 P.2d 736,  739  (Alaska  1999)
(collateral estoppel); Trs. for Alaska v. State, Dep't of Natural
Res., 865 P.2d 745, 747-48 (Alaska 1993) (waiver).
14645 P.2d 750 (Alaska 1982).
15Id. at 761-62 (internal emphasis omitted).
166 AAC 80.010(b) (emphasis added).
17AS 44.19.145(a)(11) (emphasis added).  The  full
          text  of  paragraph  .145(a)(11)  is  as
          follows:         (a)   The  [Office   of
          Management and Budget] shall
          . . . .

               (11) render, on behalf of the state, all
          federal   consistency   determinations    and
          certifications authorized by 16  U.S.C.  1456
          (Sec.  307,  Coastal Zone Management  Act  of
          1972),  and each conclusive state consistency
          determination  when  a  project  requires   a
          permit, lease, or authorization from  two  or
          more state resource agencies.
18AS 46.40.096(b) (emphasis added).
196 AAC 80.010(b) (emphasis added).
20AS 46.40.210(3).
216 AAC 50.990(22).  Under 6 AAC 50.990(7), " `consistency review'
has the meaning given in AS 46.40.210."
226 AAC 50.050 provides:

               (a)  The consistency review of a project
          will  be expedited as provided in (b) or  (c)
          of  this  section  if the project  meets  the
          requirements of one of those subsections.
                (b)   A  project which requires one  or
          more  state or federal permits, each of which
          appears  on the list published under  (e)  of
          this  section listing permits which have been
          categorically  approved  by  DGC   as   being
          consistent  with the ACMP, is  considered  to
          have  been conclusively determined by DGC  to
          be consistent with the ACMP. A permit will be
          categorically approved if DGC determines that
          the  activity authorized by the  permit  will
          have  no  significant impact in  the  coastal
                (c)   A  project which requires one  or
          more    state   or   federal   permits    not
          categorically approved as provided in (b)  of
          this  section  will be considered  consistent
          without  further  review,  if  it  meets  the
          requirements   of   a   general   concurrence
          determination contained on the list published
          under   (e)  of  this  section.  A   "general
          concurrence  determination" is a  consistency
          determination  for a type  of  project  which
          includes  only routine activities, and  which
          can  be effectively made consistent with  the
          ACMP by imposing standard stipulations on the
          applicable permit. If a subsequent project of
          any  applicant  fits  the  description  in  a
          general   concurrence   determination,    the
          project  will  be considered consistent  with
          the  ACMP  if  it  complies with  the  stated
          standard stipulations.
                (d)   A  project which requires one  or
          more  state or federal permits, and which  is
          not within the categories described in (b) or
          (c) of this section, is subject to review  as
          an  individual  project as provided  in  this
                (e)  DGC will publish a list of permits
          which  have  been categorically  approved  as
          being consistent with the ACMP, and a list of
          general concurrence determinations, and  will
          identify  on  each  list  those  permits   or
          projects   for   which  a   coastal   project
          questionnaire  is  not  necessary.  DGC  will
          amend  these lists as necessary  on  its  own
          initiative,  or on the request of  a  coastal
          resource district or a resource agency  based
          on  new information regarding the impacts  of
          these    activities,   including   cumulative
          impacts. Before publishing or amending  these
          lists, DGC will distribute the proposed lists
          or  amendments  for  comment  in  the  manner
          provided  in  6  AAC  50.070  for  a  project
          consistency review.
23AS 46.40.096(d)(1), (g).
24AS 46.40.094(a), (b)(1); see also Kachemak Bay Conservation Soc.
v.  State, Dep't of Natural Res., 6 P.3d 270, 289 (Alaska  2000).
AS 46.40.094(a) and (b) provide:
          (a)  The provisions of this section apply  to
          a  use  or  activity for which a  consistency
          determination is required if

                (1)   at the time the proposed  use  or
          activity  is initiated, there is insufficient
          information   to  evaluate   and   render   a
          consistency determination for the entirety of
          the proposed use or activity;

                (2)   the  proposed use or activity  is
          capable  of  proceeding  in  discrete  phases
          based upon developing information obtained in
          the course of a phase;  and

                 (3)   each  subsequent  phase  of  the
          proposed  use  or  activity  is  subject   to
          discretion to implement alternative decisions
          based upon the developing information.

          (b)  When a use or activity is authorized  or
          developed  in discrete phases and each  phase
          will  require decisions relating to a permit,
          lease,  or  authorization for that particular
          phase,   the  agency  responsible   for   the
          consistency determination for the  particular

                (1)  may, in its discretion, limit  the
          consistency  review to that particular  phase
          if, but only if,

                (A)  the agency or another state agency
          must   carry  out  a  subsequent  consistency
          review  and  make a consistency determination
          before a later phase may proceed;  and

                      (B)    the   agency   responsible
          conditions its consistency determination  for
          that  phase on a requirement that  a  use  or
          activity authorized in a subsequent phase  be
          consistent with the Alaska coastal management
          program;  and
                (2)  shall, when the consistency review
          is  limited  under  (1) of  this  subsection,
          conduct   the  consistency  review  for   the
          particular  phase  and make  the  consistency
          determination based on

                  (A)     applicable    statutes    and

                (B)   the facts pertaining to a use  or
          activity    for    which   the    consistency
          determination is sought that are

                 (i)    known   to  the  state   agency
          responsible  or  made a part  of  the  record
          during the consistency review;  and

                 (ii)   material  to  the   consistency
          determination;  and

                 (C)    the   reasonably   foreseeable,
          significant  effects of the use  or  activity
          for  which  the consistency determination  is

                (3)  shall, when the consistency review
          is  limited  under  (1) of  this  subsection,
          describe in the consistency determination the
          reasons   for  its  decision  to   make   the
          consistency  determination  for  the  use  or
          activity in phases.
25Kachemak  Bay  Conservation Soc., 6 P.3d at 290,  294  (initial
internal emphasis added).
26Trs. for Alaska v. State, Dep't of Natural Res., 851 P.2d 1340,
1344  (Alaska 1993) (citing Trs. for Alaska v. Gorsuch, 835  P.2d
1239, 1246 n.6 (Alaska 1992)); see also Kachemak Bay Conservation
Soc., 6 P.3d at 293-94.
27The  state  does not appear to join Forest Oil's  arguments  on
these points.
28See  Calhoun v. State, Dep't of Transp. & Pub. Facilities,  857
P.2d 1191, 1195-96 (Alaska 1993).
29Briggs  v. State, Dep't of Pub. Safety, Div. of Motor Vehicles,
732 P.2d 1078, 1081-82 (Alaska 1987).
30See generally Johnson v. Alaska State Dep't of Fish & Game, 836
P.2d 896, 908 (Alaska 1991) (stating that administrative findings
should  only be used preclusively if doing so would be  fair  and
that  fairness  minimally  requires that  the  prior  proceedings
included "the essential elements of adjudication").
31865  P.2d 745, 748 (Alaska 1993) (citing Vermont Yankee Nuclear
Power Corp. v. NRDC, 435 U.S. 519 (1978)).
32See 6 AAC 80.130(b).
33See 6 AAC 80.130(c)(1), (2).
34The comment additionally noted a factor that has not arisen  in
subsequent  proceedings and seems to have no lasting significance
in  the  context  of  this appeal: the need to  ensure  that  the
project's  activities not interfere with beluga  whale  migration
and feeding, a concern that prompted Cook Inlet Keeper to ask the
state to require the National Marine Fisheries Service to approve
Forest Oil's plan of operations.
35Our decision makes it unnecessary to give detailed attention to
Cook   Inlet   Keeper's  argument  that  the  final   consistency
determination should have applied the tripartite test  of  6  AAC
80.130(d)  by  considering the existence  of  significant  public
need,  a  feasible prudent alternative, or additional steps  that
could  be  taken  to maximize conformance of the  Osprey  to  the
habitat  standard.  Because the new consistency determination  on
remand  will  be  based  on  all  project  activities,  including
discharges,  the determination must include appropriate  findings
under 6 AAC 80.130.