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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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
COOK INLET KEEPER, )
) Supreme Court No. S-9730
Appellant, )
) Superior Court No.
v. ) 3AN-99-3482 CI
)
STATE OF ALASKA, OFFICE OF )
MANAGEMENT AND BUDGET, )
DIVISION OF GOVERNMENTAL )
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
Corporation.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
I. INTRODUCTION
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.
II. FACTS AND PROCEEDINGS
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
permit.
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
activities:
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
III. DISCUSSION
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)
(5).
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
activity:
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
permits.19
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
permits[.][21]
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
permits."26
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
standards.
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
permit.
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
requested.
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
IV. CONCLUSION
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
zone.
(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
chapter.
(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
phase
(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
regulations;
(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
sought;
(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.
