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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Dept. of Natural Resources v. Nondalton Tribal Council (1/20/2012) sp-6638

State, Dept. of Natural Resources v. Nondalton Tribal Council (1/20/2012) sp-6638

        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, email 
        corrections@appellate.courts.state.ak.us. 

                THE SUPREME COURT OF THE STATE OF ALASKA 

STATE OF ALASKA,                              ) 
DEPARTMENT OF NATURAL                         ) 
RESOURCES and Tom Irwin,                      ) 
Commissioner of Natural Resources,            ) 
                                              )       Supreme Court No.       S-13681 
               Petitioners,                   ) 
                                              )       Superior Court No.      3DI-09-00046 CI 
        v.                                    ) 
                                              )       O P I N I O N 
NONDALTON TRIBAL COUNCIL,                     ) 
Koliganek Village Council,                    )       No. 6638 - January 20, 2012 
New Stuyahok Traditional Council,             ) 
Ekwok Village Council, Curyung                ) 
Tribal Council, Levelock Village              ) 
Council, AIFMA Cooperative Inc.               ) 
d/b/a The Alaska Fishermen's                  ) 
Marketing Association, and Trout              ) 
Unlimited, Inc.,                              ) 
                                              ) 
               Respondents.                   ) 
                                              ) 

               Appeal from the Superior Court of the State of Alaska, Third 
               Judicial District, Dillingham, Fred Torrisi, Judge. 

               Appearances:      J. Anne Nelson, Assistant Attorney General, 
               John     T.   Baker,     Senior    Assistant    Attorney     General, 
               Anchorage,       and   Daniel   S.  Sullivan,    Attorney    General, 
               Juneau, for Petitioners.     Geoffrey Y. Parker, Law Office of 
                Geoffrey Y. Parker, and Thomas E. Meacham, Anchorage, 
                for Respondents. 

----------------------- Page 2-----------------------

               Before:     Carpeneti,   Chief   Justice,   Winfree,   Christen,   and 
                Stowers, Justices.   [Fabe, Justice, not participating.] 

                STOWERS, Justice. 

I.      INTRODUCTION 

                Six   tribal   councils,   joined   by   two   other   associations   (collectively   "the 

Tribes"), filed an action against the State of Alaska, Department of Natural Resources 

(DNR) in the superior court in Dillingham seeking declaratory judgment that the 2005 

Bristol Bay Area Plan (BBAP, the Plan) was unlawful.  DNR's motion to dismiss under 

Civil   Rule   12(b)(6) was denied and the superior court held that: (1) the BBAP is a 

regulation that must be promulgated under the Alaska Administrative Procedure Act 

(APA), and (2) Alaska Appellate Rule 602(a)(2) - which provides for a 30-day period 

in which to appeal a final agency decision - does not bar the Tribes' claims.   We 

granted DNR's petition for review and now hold Appellate Rule 602(a)(2) does not bar 

the Tribe's claims and the BBAP is not a regulation. 

II.     FACTS AND PROCEEDINGS 

        A.     Land Use Planning In Alaska:           History And Regulatory Landscape 

               DNR develops land use plans for state land pursuant to the Policy for Use 

and Classification of State Land Surface (Alaska Land Policy Act), which was enacted 
in 1978.1   At that time, the State's efforts to select its 103,350,000-acre statehood land 

entitlement were complicated by, and partially subordinated to, the rights of Alaska 

Natives   under   the   1971   Alaska   Native   Claims   Settlement   Act   (ANCSA)   to   select 
approximately 44 million acres of land.2       ANCSA also called for the federal withdrawal 

        1      Ch. 181,  5, SLA 1978, codified at AS 38.04. 

        2      Alaska Statehood Act, Pub. L. No. 85-508,  6(a)-(b), 72 Stat. 339, 340 

                                                                                    (continued...) 

                                                -2-                                             6638 

----------------------- Page 3-----------------------

of   up  to   80  million   acres   of   unreserved   public   land   for   inclusion  in   the   national 
conservation system.3  Additionally, local governments sought to finalize their municipal 

land entitlements.4     The State also faced intense pressure from its citizens to move state 

                                  5                                                           6 
land into private ownership.        Beyond Article VIII of the Alaska Constitution  and the 
land use classification statute,7 no large-scale planning program for the management of 

state lands existed at that time.8 

        2(...continued) 

(1958); Alaska Native Claims Settlement Act, Pub. L. No. 92-293,  11(a), 85 Stat. 688, 
696 (1971) (codified at 43 U.S.C.  1610(a) (2006)); see also Alaska v. Native Vill. of 
Venetie Tribal Gov't, 522 U.S. 520, 524 (1988). 

        3       Alaska   Native   Claims   Settlement   Act,   Pub.   L.   No.   92-293,      17(d)(2), 

85 Stat. at 709 (codified at 43 U.S.C.  1616(d)(2) (2006)). These became known as "the 
d-2 lands."    See, e.g., State v. Andrus, 429 F. Supp. 958, 963 (D. Alaska 1977).  The 
status of these lands was not resolved until after Congress enacted the Alaska National 
Interest    Land    Conservation      Act   in  1980.     See    Alaska    National    Interest   Lands 
Conservation Act, Pub. Law. No. 96-487,  101 et. seq., 94 Stat. 2371, 2374 (1980) 
(codified at 16 U.S.C.  3101 et seq. (2006)). 

        4       Joint Federal-State Land Use Planning Commission, AGENDA FOR STATE 

LANDS : RECOMMENDATIONS              TO  THE  PEOPLE     OF ALASKA       ON  THE  FUTURE      OF THEIR 
PUBLIC    LANDS, Part I, Recommendation 7 & Part II 48-50 (Dec. 1975) (hereinafter 
FSLUPC, AGENDA FOR  STATE LANDS). 

        5       See Thomas v. Bailey, 595 P.2d 1, 2-4 (Alaska 1979) for a description of 

the "Beirne Initiative," which Governor Hammond characterized as "a vast land give- 
away which could create an Oklahoma land rush in Alaska." 1978 Alaska House J. 629. 

        6       Article    VIII,   section   2  of  the   Alaska    Constitution    provides    for  the 

"utilization, development, and conservation of all natural resources belonging to the 
State, including land and waters, for the maximum benefit of its people." 

        7       AS 38.04.065. 

        8       FSLUPC, AGENDA FOR  STATE LANDS, Part II, 19-38 (Dec. 1975). 

                                                  -3-                                             6638
 

----------------------- Page 4-----------------------

                ANCSA established the Joint Federal-State Land Use Planning Commission 

for Alaska (FSLUPC) to, among other things, "undertake a process of land-use planning" 

and "make recommendations . . . to . . . the Governor and legislature of the State as to 

changes in laws, policies and programs that the Planning Commission determines are 
necessary or desirable."9      To that end, the FSLUPC recommended that Alaska's land 

classification   system,   which   had   been   in   existence   since   statehood   and   focused   on 

"disposing of lands into private ownership and on producing revenue," be revised to be 

based instead on "an area wide comprehensive planning process" and "the best possible 
knowledge of land resources and their interrelationships."10 

                The   Alaska   Land   Policy   Act11    translates   the   constitutional   policies   of 

Article VIII of the Alaska Constitution into specific land management goals to guide 

DNR's land management decisions. It incorporates many of the recommendations of the 

FSLUPC, and is modeled in large part after the land planning provisions in the Federal 
Land Policy and Management Act of 1976.12 

                DNR is charged with managing the replenishable state resources under its 

jurisdiction in accordance with "the sustained yield principle, subject to preferences 

        9       43 U.S.C.  1616(a)(7)(A) & (H) (1976).  The FSLUPC ceased to exist on 

June 30, 1979.  See id.  1616(a)(10).  Subsection (a) is omitted from the current version 
of this statute.  See 43 U.S.C.  1616 (2006). 

        10      FSLUPC, AGENDA FOR STATE LANDS, Part I, Recommendations 1(a) and 

2 (Dec. 1975). 

        11      Codified at AS 38.04. 

        12      Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, 

90 Stat. 2743, 2744 (codified at 43 U.S.C.  1701 et seq. (2006)).  Compare 43 U.S.C. 
 1711, 1712 with AS 38.04.060 & .065. 

                                                  -4-                                           6638
 

----------------------- Page 5-----------------------

among beneficial uses."13        The Alaska Land Policy Act guides DNR by establishing the 

purposes and goals of making land available for private use, and for retaining state land 
in   public   ownership.14     It   also   prescribes   that   disposal   and   retention   decisions   be 

"determined through the inventory, planning, and classifications processes set out in 
AS   38.04.060-38.04.070."15          The   inventory   of   state   land   and   water   resources   must 

emphasize       "areas    of   potential    settlement,     economic      development,       and    critical 
environmental concern."16         In the adoption and revision of land use plans, DNR must: 

                 (1)   use   and   observe    the  principles    of  multiple    use   and 
                 sustained yield; 

                 (2) consider physical, economic, and social factors affecting 
                 the   area   and   involve    other    agencies    and   the   public   in 
                 achieving a systematic interdisciplinary approach; 

                 (3)  give   priority   to   planning   and   classification   in   areas   of 
                potential settlement, renewable and nonrenewable resource 
                 development, and critical environmental concern; 

                 (4) rely, to the extent that it is available, on the inventory of 
                 the state land, its resources, and other values; 

                 (5) consider present and potential uses of state land; 

                 (6) consider the supply, resources, and present and potential 
                use of land under other ownership within the area of concern; 

                 (7)  plan    for   compatible      surface   and    mineral    land   use 
                 classifications; and 

        13       Alaska Const. art. VIII,  4. 

        14       AS 38.04.010 identifies the public interest in making land available for 

private use.    AS 38.04.015 identifies the purposes for which state land is to be retained 
in public ownership. 

        15       AS 38.04.005(a). 

        16       AS 38.04.060(a). 

                                                    -5-                                              6638
 

----------------------- Page 6-----------------------

                (8)  provide     for  meaningful     participation    in  the  planning 
                process     by  affected   local   governments,   state     and   federal 
                agencies, adjacent landowners, and the general public.[17] 

Each regional plan must also identify and delineate: 

                (1)  areas   of   settlement   and   settlement   impact,   where   land 
                must be classified for various private uses, renewable and 
                nonrenewable         resource     development,       and    for   public 
                recreation, open space, and other public uses desirable in and 
                around settlement; and 

                (2) areas that must be retained in state ownership and planned 
                and     classified    for   various    uses    and    purposes     under 
                AS 38.04.015.[18] 

The state land use planning process also must result in the classification of land for 
surface use.19    Land classification orders are statutorily exempt from the APA.20                  The 

definitions     of  the  various    land   classification   categories,    however,     are  set  out   in 
regulations.21 

                In   sum,   DNR   adopts   and   revises   state   land   use   plans   under   AS   38.04, 

AS 38.05.300, and the regulations at 11 AAC 55.                  DNR implements land use plans 

        17      AS 38.04.065(b).       These requirements largely mirror those in the Federal 

Land Policy and Management Act of 1976.               See 43 U.S.C.  1712 (2006). 

        18      AS 38.04.065(c). 

        19      AS 38.04.065(e); AS 38.05.300. With limited exceptions, neither state land 

nor    state  interests  in  land   may   be   disposed    of   until   the  land  has  been  classified. 
11 Alaska Administrative Code (AAC) 55.040(i) (2005). 

        20      AS 38.05.020(b)(1) ("[O]rders by the commissioner classifying land, issued 

after January 3, 1959, are not required to be adopted under AS 44.62 (Administrative 
Procedure Act)."). 

        21       11 AAC 55.050-.230. For discussions of the land use planning process, see 

Alaska Survival v. State, 723 P.2d 1281, 1289-91 (Alaska 1986). 

                                                   -6-                                             6638
 

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pursuant to the statutory policy "to establish a balanced combination of land available 
for both public and private purposes."22 "The choice of land best suited for public and 

private   use   shall   be   determined   through   .   .   .   inventory,   planning,   and   classification 
processes."23 

        B.      The Bristol Bay Area Plan 
                DNR adopted the BBAP on April 19, 200524 after a two-year development 

process, replacing a 1984 version of the plan. The Plan "directs how [DNR] will manage 

state uplands, shorelands, tidelands, and submerged lands within the planning boundary," 

and "determines management intent, land-use designations, and management guidelines 

that apply to all state lands in the planning area."  (Emphasis added.)  The BBAP is one 
of 20 area plans in Alaska.25 

                The   BBAP   covers   almost   19   million   acres   partitioned   into   20   discrete 
regions of land, each subdivided into units.26         For each region, the BBAP presents three 

types of information: (1) an inventory and description of resources; (2) a management 

        22      AS 38.04.005(a). 

        23      Id. 

        24      DEPARTMENT   OF  NATURAL  RESOURCES, BRISTOL  BAY  AREA  PLAN   FOR 

STATE     LANDS      (2005),   available      at  http://dnr.alaska.gov/mlw/planning/areaplans/ 
bristol/index.htm (last visited Jan. 4, 2012) ("The Commissioner of the Department of 
Natural Resources adopts the revised Bristol Bay Area Plan (2005)   and finds that it 
meets the requirements of AS 38.04.065 and 11 AAC 55.010-55.030 for land use plans. 
The   Department   of   Natural   Resources   will   manage   state   land   within   the   planning 
boundaries consistent with this plan."). 

        25      See Area Plans Online, http://dnr.alaska.gov/mlw/planning/areaplans/ (last 

visited Jan. 4, 2012). 

        26      Note that regions are numbered one through 22, but regions one and four 

do not exist. 

                                                   -7-                                             6638
 

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summary and guidelines; and (3) statements of management intent for each planning unit 

within the region.     The Plan as a whole is "the expression of how DNR will pursue" 

management of "state lands and resources within the planning area." Specifically, "[t]he 

area plan guides DNR decisions for leases, sales, and permits that authorize use of state 

lands. . . . DNR's actions will be based on the area plan." 

                The BBAP is a long-term planning document with an expected lifespan of 

20 years.  The required public involvement in the planning process took place over two 
years, and involved local meetings and opportunity for public comment.27               To implement 

the Plan on state lands, "DNR must 'classify' state lands to reflect the intent of 'land use 
designations' made by [the Plan],"28       which it did through Land Classification Order No. 

SC-04-002, also on April 19, 2005. 

        C.      Proceedings 
                On May 5, 2009, four tribal councils29 filed suit in the superior court in 

Dillingham against DNR and its commissioner, Tom Irwin.                    An amended complaint 
added two more tribal councils as plaintiffs,30 and a second amended complaint added 

        27      See    AS   38.04.065(a)     (providing    for  "local   governmental      and   public 

involvement"   in   adopting   or   revising   land   use   plans);   AS   38.05.945   (listing   notice 
requirements);      11   AAC     55.250    (specifying    notice   and   either   public   hearing    or 
solicitation of public comment). 

        28      See 11 AAC 55.040. 

        29      Nondalton   Tribal   Council,   Koliganek   Village   Council,   New   Stuyahok 

Traditional Council, and Ekwok Village Council. 

        30      Curyung Tribal Council and Levelock Village Council. 

                                                  -8-                                            6638
 

----------------------- Page 9-----------------------

two      additional     plaintiff   organizations.31        Collectively,      we    refer    to   these 

plaintiffs/respondents as "the Tribes." 

                The Tribes' amended complaint alleged eight causes of action; the seven 
at issue here (counts 1 and 3-8) challenged provisions of the BBAP itself.32               In essence, 

the   Tribes   alleged   that   DNR   unlawfully   adopted   the   BBAP,   and   sought   declaratory 

judgment     that the BBAP was "of no continuing legal force and effect." 

                DNR moved under Civil Rule 12(b)(6) to dismiss the amended complaint 

for failure to state a claim upon which relief could be granted.              DNR argued that the 

seven causes of action at issue here were barred because they were not brought within 

the proper limitations period, and that they were functionally administrative appeals that 

should have been raised before the agency.  Specifically, DNR alleged that because the 

Tribes sought review of DNR's decision, their claims should be treated as an appeal from 

an agency determination and barred 30 days following issuance of the determination 
under Appellate Rule 602(a)(2).33          DNR also noted that the Tribes had not exhausted 

        31      AIFMA Cooperative d/b/a the Alaska Independent Fisherman's Marketing 

Ass'n, and Trout Unlimited, Inc. 

        32      Count 2 alleged that DNR's adoption of land classification categories at 

 11 AAC 55.050-.230 for all uses listed in AS 38.04.015(1) except subsistence violated 
AS 38.04.065, AS 38.04.015, and AS 38.05.300.  The superior court ruled separately on 
this count, granting the State's motion to dismiss.  This count was not part of the petition 
for review and is not on appeal.         A separate ninth cause of action, alleging that DNR 
abused     its  discretion   in  adopting   the  BBAP,      was   added   in  the  Second     Amended 
Complaint, filed after the superior court decision on appeal here. 

        33      Alaska R. App. P. 602(a)(2) provides: 

                (2)Appeals from Administrative Agencies . An appeal may be 
                taken   to   the   superior   court   from   an   administrative   agency 
                within 30 days from the date that the decision appealed from 
                                                                                        (continued...) 

                                                   -9-                                            6638
 

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their administrative remedies because the Tribes could have challenged the BBAP by 

petitioning DNR to reclassify land under AS 38.05.300(a) and 11 AAC 55.270, and 

ultimately could have sought judicial review of that determination. 

                 The Tribes responded by arguing that the BBAP was a regulation as defined 
by    the  APA34     and    therefore    was   subject    to  judicial   review    at  any    time   under 

        33(...continued) 

                 is mailed or otherwise distributed to the appellant. If a request 
                 for agency reconsideration is timely filed before the agency, 
                 the notice of appeal must be filed within 30 days after the 
                 date   the   agency's     reconsideration     decision    is  mailed    or 
                 otherwise distributed to the appellant, or after the date the 
                 request for reconsideration is deemed denied under agency 
                 regulations whichever is earlier. The 30-day period for taking 
                 an appeal does not begin to run until the agency has issued a 
                 decision that clearly states that it is a final decision and that 
                 the claimant has thirty days to appeal. An appeal that is taken 
                 from a final decision that does not include such a statement 
                 is not a premature appeal. 

        34       The APA defines "regulation" in AS 44.62.640(a)(3) as follows: 

                 (3)   "regulation"     means    every    rule,  regulation,    order,   or 
                 standard      of   general     application      or   the    amendment, 
                 supplement,      or   revision   of   a  rule,  regulation,    order,   or 
                 standard adopted by a state agency to implement, interpret, or 
                 make specific the law enforced or administered by it, or to 
                 govern     its   procedure,   except   one   that   relates   only   to   the 
                 internal management of a state agency; "regulation" does not 
                 include a form prescribed by a state agency or instructions 
                 relating   to   the   use   of   the   form,   but   this   provision   is   not   a 
                 limitation upon a requirement that a regulation be adopted 
                under this chapter when one is needed to implement the law 
                under       which       the    form      is   issued;      "regulation" 
                 includes   "manuals,"   "policies,"   "instructions,"   "guides   to 
                                                                                           (continued...) 

                                                   -10-                                              6638
 

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AS 44.62.300.35   The Tribes further argued that Appellate Rule 602(a)(2) only applies 

when an agency acts in an adjudicatory capacity and therefore does not bar their claims 

in this case, and also that they were not parties to the decision and therefore were not 

bound by the rule's 30-day limit because they did not participate in the process that 

resulted in DNR's adoption of the BBAP.   Finally, the Tribes argued that they were not 

required to exhaust administrative remedies before filing suit because:                  (1) adoption of 

the BBAP was not adjudicatory; (2) seeking reclassification was an inappropriate remedy 

because     the   Tribes   did   not  seek   to  reclassify    land;   and   (3)  the  Tribes    were   not 

challenging any particular classification of land, but rather claimed that DNR committed 

errors of law - and as such, there were no facts to develop, no agency expertise to 

apply, and administrative remedies were inappropriate. 

                 DNR filed a reply in support of its motion to dismiss, arguing that land use 
plans are not regulations because they implement DNR's quasi-executive discretion36 and 

        34(...continued) 

                 enforcement,"   "interpretative        bulletins,"   "interpretations," 
                 and the like, that have the effect of rules, orders, regulations, 
                 or   standards    of   general   application,   and   this  and   similar 
                phraseology   may   not   be   used   to   avoid   or   circumvent   this 
                 chapter; whether a regulation, regardless of name, is covered 
                by   this   chapter   depends   in   part   on   whether   it   affects   the 
                public or is used by the agency in dealing with the public[.] 

        35       AS 44.62.300 provides in relevant part that "[a]n interested person may get 

a judicial declaration on the validity of a regulation by bringing an action for declaratory 
relief in the superior court." 

        36       DNR claimed that land use plans are committed to DNR's discretion by 

AS 38.04.065(a), which provides that "the commissioner shall, with local governmental 
and public involvement under AS 38.05.945, adopt, maintain, and, when appropriate, 
revise regional land use plans that provide for the use and management of state-owned 
                                                                                           (continued...) 

                                                   -11-                                              6638
 

----------------------- Page 12-----------------------

are therefore not open to challenge under APA judicial review.                DNR attached to its 

reply a 2008 decision by Superior Court Judge Beverly Cutler ruling that a statutorily 

directed forest management plan was not a regulation under AS 44.62.640(a)(3). 

                Superior Court Judge Fred Torrisi denied DNR's motion to dismiss and 

concluded that the BBAP was a regulation under AS 44.62.640 and therefore was subject 
to judicial review under AS 44.62.300.37         The court also found that DNR had cited no 

precedent for applying Appellate Rule 602(a)(2) to bar a claim by someone who was not 

a party to the administrative proceeding at issue. 

                DNR petitioned this court for interlocutory review, arguing the superior 

court's decision that a statutorily mandated land use plan is a regulation was incorrect, 

and that it would lead to widespread judicial challenges to such plans and introduce 

uncertainty in state land planning activities.      DNR also challenged the superior court's 

Appellate Rule 602 decision. 

                The Tribes opposed granting the petition for review, arguing inter alia that 

the decision applied only to the BBAP and not to all land use plans, and that the superior 

court was correct in finding that the BBAP was a regulation. 

                The superior court stayed its proceedings pending the resolution of the 

State's   petition.  Additionally,   Pebble   Limited   Partnership   moved   to   intervene   as   a 

defendant in the superior court, but the case was stayed before oral argument was heard 

on this motion, and it does not participate in this appeal. 

                We granted the petition for review on the issues whether the BBAP is a 

regulation and whether Appellate Rule 602 bars the Tribes' action. 

        36(...continued) 

land." 

        37      This decision addressed only the seven counts at issue here; count 2 was 

separately dismissed in another ruling. 

                                                -12-                                             6638 

----------------------- Page 13-----------------------

III.    DISCUSSION
 

        A.	    Standard of Review 

                Whether an agency action is a regulation is a question of law that does not 
involve   agency   expertise,   which   we   review   applying   our   independent   judgment.38 

Specifically, evaluating whether agency action falls within the statutory definition of a 
regulation is a question for the court's specialized knowledge and experience.39 

               We note that the more deferential standards of review sometimes reserved 

for agency interpretations are inappropriate here.       As we explained in Jerrel v. State, 

"[T]he threshold question in this case is whether the APA applies to DNR's action [at 

all]. Because we must decide whether DNR's [action] is a regulation, we do not defer to 
the agency's interpretation."40 

               We interpret Appellate Rule 602 de novo.41 

        B.	    Appellate Rule 602 Does Not Bar The Tribes'   Action Because The 
               BBAP Is Not A Final Agency Decision, And   Because   It Lacks The 
               Requisite 30-Day Notice To Trigger Rule 602. 

        38     Alyeska Pipeline Serv. Co. v. State, Dep't of Envtl. Conservation , 145 P.3d 

561,    564  (Alaska   2006)   ("Whether     an  agency   action  is  a  'regulation'  requiring 
rulemaking under the Alaska Administrative Procedure Act is a question of law that does 
not involve agency expertise and that we therefore review applying our independent 
judgment."); see also Burke v. Houston NANA, L.L.C., 222 P.3d 851, 867 (Alaska 2010); 
Alaska Ctr. for the Env't v. State, 80 P.3d 231, 243 (Alaska 2003); Jerrel v. State, Dep't 
of Natural Res., 999 P.2d 138, 141 (Alaska 2000); Kachemak Bay Watch, Inc. v. Noah, 
935 P.2d 816, 821, 825 (Alaska 1997). 

        39     Jerrel, 999 P.2d at 141. 

        40     Id. (citing Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971)). 

        41     See Stone v. Stone, 255 P.3d 979, 982 (Alaska 2011) (citing Cameron v. 

Hughes, 825 P.2d 882, 884 n.2 (Alaska 1992)) ("We interpret Alaska Appellate Rules 
de novo."). 

                                              -13-	                                        6638
 

----------------------- Page 14-----------------------

                DNR   argues   that   the   Tribes'   action   is   barred   by   Appellate   Rule   602. 

Appellate     Rule    602(a)(2)    requires   that   appeals   to  the   superior   court   taken   from 

administrative   decisions   be   made   within   30   days   "from   the   date   that   the   decision 

appealed from is mailed or otherwise distributed to the appellant." 

                By filing suit more than four years after the BBAP was adopted, the Tribes 

clearly failed to meet the 30-day limit.           The question is whether Appellate Rule 602 

applies to bar their action. 

                Rule 602(a)(2) provides: 

                The 30-day period for taking an appeal does not begin to run 
                until the agency has issued a decision that clearly states that 
                it is a final decision and that the claimant has thirty days to 
                appeal. An appeal that is taken from a final decision that does 
                not include such a statement is not a premature appeal.[42] 

We have interpreted this language strictly, and made explicit that "[f]or Appellate Rule 

602(a)(2) to apply, an agency must clearly indicate that its decision is a final order and 
that the claimant has thirty days to appeal."43            We have held that the superior court 

abused its discretion in refusing to relax the 30-day limit under Rule 602(a)(2) when an 
agency decision letter failed to include these required elements.44             Provided the agency 

decision meets these criteria, however, we have strictly enforced the 30-day bar, even 
against would-be appellants who attempt to file an appeal mere days after the deadline.45 

        42      Alaska R. App. P. 602(a)(2) (emphasis added). 

        43      Manning v. Alaska R.R. Corp ., 853 P.2d 1120, 1124 (Alaska 1993); see 

also Skudrzyk v. Reynolds, 856 P.2d 462,463 (Alaska 1993) (quoting Manning, 853 P.2d 
at 1124). 

        44      Manning, 853 P.2d at 1124. 

        45      See    Powers     v.  State,  Pub.   Emps.     Retirement     Bd.,  757    P.2d   65,  68 

                                                                                         (continued...) 

                                                  -14-                                             6638
 

----------------------- Page 15-----------------------

              Neither the BBAP nor its associated Land Classification Order state that 

they are final decisions or that affected parties have 30 days in which to appeal them.  In 
fact, the BBAP effectively states that it is not a final decision.46  Moreover, DNR has 

neither argued nor offered evidence that either of these "decisions" were "mailed or 
otherwise distributed" to the Tribes.47 

              Because the BBAP and its associated land classification order lack explicit 

notice of their finality and of the 30-day period in which to appeal, the BBAP is not a 

final decision and Appellate Rule 602(a)(2) does not bar the Tribes' claims. 

       C.	    The Bristol Bay Area Plan Is Not A Regulation. 

              1.	    Land use plans such as the BBAP are neither required to be nor 
                     precluded from being adopted as regulations by statute. 

              DNR argues that land use classifications - and by extension land use plans 

- are explicitly defined as non-regulatory in AS 38.05.020(b)(1), which states "orders 

by the commissioner classifying land . . . are not required   to be adopted under [the 

APA]."    The Tribes counter that the aforementioned statutory language refers only to 

land classification orders, not to land use plans such as the BBAP. 

              Although the legislature specified that land classifications "are not required 
to be adopted" under the APA,48 this does not necessarily preclude their adoption as 

       45(...continued) 

(Alaska 1988) (upholding 30-day bar when appeal was four days late). 

       46     See, e.g., BBAP, Summary of Plan Actions, 1-11 ("Specific modifications 

[to the BBAP] may be made whenever conditions warrant them."); BBAP, Types of Plan 
Changes (listing the various types of changes envisioned). 

       47     Alaska R. App. P. 602(a)(2). 

       48     AS 38.05.020(b)(1). 

                                            -15-	                                      6638
 

----------------------- Page 16-----------------------

regulations, nor does it speak directly to land use plans.49           Therefore, the applicable 

statutory language does not resolve the issue whether land use plans are regulations, and 

we must look to the statutory definition of "regulation" in combination with case law to 

determine whether the BBAP is a regulation. 

               2.      The BBAP is not a regulation under the APA definition. 

               The    Tribes   argue,   and   the  superior   court  held,   that  the  BBAP     is  a 

"regulation" under the APA.        DNR disagrees. 

               The APA defines "regulation" broadly in AS 44.62.640(a)(3) to include: 

                every    rule,  regulation,    order,   or   standard    of  general 
                application or the amendment, supplement, or revision of a 
               rule, regulation, order, or standard adopted by a state agency 
               to implement, interpret, or make specific the law enforced or 
                administered by it, or to govern its procedure, except one that 
               relates only to the internal management of a state agency. 

Moreover, the label an agency attaches to the policy in question is not determinative: 

               "regulation" includes "manuals," "policies," "instructions," 
               "guides      to    enforcement,"       "interpretative     bulletins," 
               "interpretations," and the like, that have the effect of rules, 
               orders, regulations, or standards of general application, and 
                this and similar phraseology may not be used to avoid or 
               circumvent this chapter; whether a regulation, regardless of 
               name, is covered by this chapter depends in part on whether 
               it affects the public or is used by the agency in dealing with 
               the public.[50] 

        49     Land     use   plans   and   land   classification   are  closely   related.   Land 

classification is statutorily directed alongside land use plans in AS 38.04.065, and a land 
classification    order  implements   the    guidelines   in  a  land  use  plan,   often  explicitly 
incorporating the applicable land use plan as justification. 

        50     AS 44.62.640(a)(3) (emphasis added). 

                                                -16-                                          6638
 

----------------------- Page 17-----------------------

                Although the statutory definition of "regulation" in the APA is broad, we 
have   noted   that   "it   does   not   encompass   every   agency   practice   or   decision."51 To 

determine whether the BBAP is a regulation we must look to two indicia:                  (1) whether 

the BBAP implements, interprets, or makes specific the law enforced or administered by 

the agency; and (2) whether the BBAP affects the public or is used by the agency in 
dealing with the public.52 

                The BBAP satisfies the first indicium because it "implement[s], interprets[,] 
or make[s] specific the law enforced or administered" by DNR.53                  In fact, this is the 

essence of the Plan - it distills the factors set forth in AS 38.04.065 into a plan for a 

specific geographic region.       The parties agree that this indicium is not at issue in this 

case. 

                The second indicium - the degree to which agency action must affect the 

public to qualify as a regulation - poses a nuanced question.              In order to answer this 

question, we begin by reviewing two prior cases that addressed this question:                  Kenai 

        51      Kachemak Bay Watch, Inc. v. Noah, 935 P.2d 816, 825 (Alaska 1997). 

        52      Id. (citing Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191, 1197 

(Alaska 1995);  Gilbert v. State, Dep't of Fish & Game, 803 P.2d   391, 396 (Alaska 
1990)); see also Burke v. Houston NANA, L.L.C., 222 P.3d 851, 867 (Alaska 2010); 
Alaska Ctr. for the Env't v. State, 80 P.3d 231, 243 (Alaska 2003); Jerrel v. State, Dep't 
of Natural Res., 999 P.2d 138, 143-44 (Alaska 2000).              These criteria are derived from 
related language in the definition of regulation under the APA at AS 44.62.640(a)(3). 

        53      AS 44.62.640(a)(3); Kachemak, 935 P.2d at 825. 

                                                 -17-                                           6638
 

----------------------- Page 18-----------------------

Peninsula Fisherman's Cooperative Association, Inc. v. State (Kenai),54 and Kachemak 

Bay Watch, Inc. v. Noah (Kachemak).55 

                        a.     Kenai Peninsula Fisherman's Cooperative Association, Inc. 
                               v. State (1981) 

                In Kenai, we held that the Board of Fisheries' management policies for 
Upper Cook Inlet were regulations as defined by the APA.56              At issue in Kenai were a 

"comprehensive management policy and a specific policy option" implemented by the 

Board     of  Fisheries   to  address   frequent   competition     over   salmon    stocks  between 
commercial and recreational fishermen in the Cook Inlet.57               The management policy 

effectively partitioned the salmon fisheries by species and by time between the two 
groups,58 whereas thepolicy option directed the closure of the Kenai commercial fishery 

if its late-season catch was below average.59       The year after the management policy and 

        54      628 P.2d 897 (Alaska 1981).
 

        55      935 P.2d 816 (Alaska 1997).
 

        56      628 P.2d at 899.
 

        57      Id.
 

        58      The policy provided, among other things, that:
 

                1. [Salmon] Stocks which normally move in the Cook Inlet 
                to   spawning    areas   prior  to  June   30,   shall  be  managed 
                primarily as a non-commercial resource. 

                2. [Salmon] Stocks which normally move in Cook Inlet after 
                June 30, shall be managed primarily as a non-recreational 
                resource until August 15 . . . . 
Id. at 900 n.3. 

        59      Id. 

                                                -18-                                           6638
 

----------------------- Page 19-----------------------

policy option were announced, the Board of Fisheries promulgated regulations based 
upon these directives.60 

                Plaintiff, a fisherman's cooperative association, challenged the management 

policy and policy option on various grounds, including alleging that they were in effect 
regulations   and   therefore   ought   to   have   been   adopted   under   the   APA.61  Similar   to 

DNR's      position   in  this  appeal,   the  Board   of  Fisheries   in  Kenai   asserted    that   the 

management policy and policy option were not regulations but instead "merely general 

guidelines, adopted for the convenience of the public and other state agencies, to inform 

them of the Board's thinking on critical management issues in areas within its delegated 
authority."62 

                Noting that "the label placed on a particular statement by an administrative 
agency does not determine the applicability of the APA,"63 and that the broad definition 

of "regulation" in AS 44.62.640 encompassed "many statements made by administrative 
agencies,   including   policies   and   guides   to   enforcement,"64    we   assessed   whether   the 

management policy and policy option fit both indicia of a regulation.65 

                With respect to the second indicium - namely, the extent to which the 

policy and policy option affected the public or were used by the agency in dealing with 

the public - we found that "the policy and the option served as a basis for decisions 

        60      Id. at 901. 

        61      Id. at 904. 

        62      Id. 

        63      Id. at 905. 

        64      Id. at 904-05. 

        65      Id. at 905. 

                                                 -19-                                            6638
 

----------------------- Page 20-----------------------

affecting commercial and recreational fishermen and were used by the Board in dealing 
with these groups."66    We cited two main examples in support of this conclusion: first, 

that the policy option actually resulted in the emergency closure of the Kenai fishery in 

September 1978; and second, that the management policy influenced and was cited as 
justification for regulations promulgated later.67 

               Because they satisfied both the broad APA definition and the first indicium 
of   a  regulation,68   we  concluded     that  "the  policy  and   the  option   make   specific 

management policies   . .   . and have the effect of regulations or standards of general 
application . . . . As such, they are regulations."69 

                       b.     Kachemak Bay Watch, Inc. v. Noah (1997) 

               In Kachemak, we held that DNR's identification of aquatic farm districts 
was not a regulation.70   At issue in Kachemak was the districting process itself:  Alaska 

Statute 38.05.855(a) required DNR to "identify districts in the state within which sites 

[could] be selected for the establishment and operation of aquatic farms and related 
hatcheries."71    Once   designated,   DNR   would   consider   applications   for   aquaculture 

       66      Id. 

       67      Id. at 905-06. 

       68      Id. at 905. 

       69      Id. at 906. 

       70      935 P.2d 816 (Alaska 1997). 

       71      Id. at 821. 

                                              -20-                                           6638 

----------------------- Page 21-----------------------

permits within each district.72        Plaintiff Kachemak Bay Watch argued that DNR was 

obliged to define these districts by regulation as opposed to internal decision-making.73 

                As in Kenai, we began by noting that the APA definition of a regulation is 

broad, and that the particular label an agency applied to its action would not preclude a 
finding that it was in fact a regulation.74       We then focused on the second indicium of a 

regulation - again, "whether the practice affects the public or is used by the agency in 
dealing with the public."75 

                We   observed   that   "   '[a]gencies   often   make   discretionary   decisions   not 
requiring formal procedures,' " which we described as "quasi-executive."76                    We stated 

that DNR itself "regularly makes decisions that are quasi-executive in nature and do not 

constitute regulation[s] under the APA even when one or more indices of a regulation 
are present."77     We noted several examples of such decisions,78   and pointed out that the 

        72      Id. at 819. 

        73      Id. at 821, 824-25. 

        74      Id. at 825 ("We have repeatedly rejected agencies' attempts to avoid the 

strictures   of   the   APA   by   claiming   their   actions   were   general   guidelines   or   policy 
statements, rather than regulations.") (citing Gilbert v. State, Dep't of Fish & Game, 803 
P.2d 391, 395-97 (Alaska 1990); Kenai, 628 P.2d at 904-06). 

        75      Kachemak, 935 P.2d at 825 (citing Kodiak Seafood Processors Ass'n v. 

State, 900 P.2d 1191, 1197 (Alaska 1995); Gilbert, 803 P.2d at 396). 

        76      Id.   (quoting   Olson   v.   State,   Dep't   of   Natural   Res.,   799   P.2d   289,   292 

(Alaska 1990)). 

        77      Id. at 825-26 (citing Olson, 799 P.2d at 292) (emphasis added). 

        78      Id. at 826 ("For instance, the Commissioner does not identify by regulation 

those lands made available for oil and gas leases, mineral leases, or timber sales.") (citing 
AS 38.05.180(b), AS 38.05.135-175, and AS 38.05.115). 
                                                  -21-                                                6638 

----------------------- Page 22-----------------------

identification of districts involved the exercise of agency discretion,79 and, moreover, that 

"[n]o . . . express requirement for regulations exists for the district identification process 
and we have no reason to believe such a requirement was intended."80 

                We also quoted Batterton v. Marshall,81 a 1980 decision by the United 

States Court of Appeals for the D.C. Circuit, which states: 

                 [M]any merely internal agency practices affect parties outside 
                the agency - often in significant ways. . . . [E]ven office 
                hours . . . necessarily require conformity on the part of the 
                public.     A   useful   articulation   of   the   exemption's   critical 
                 feature is that it covers agency actions that do not themselves 
                alter the rights or interests of parties, although it may alter 
                the manner in which the parties present themselves or their 
                viewpoints to the agency.[82] 

                Applying the Batterton principle - that agency action does not constitute 

                                                                                                83 
a regulation if it does not itself "alter the rights or interests of [the] parties"                - we 

concluded: 

                DNR's district identification decision affects the public in the 
                limited   manner   discussed   in  Batterton.         Whether   DNR's 
                identification of aquatic farm districts constituted a regulation 
                 as   that   term   is  defined     in  the   APA     presents    a  close 
                question. . . .   However, district identification does not alter 
                the rights of the parties, does not deprive any party of a fair 
                 opportunity for public participation, embodies no finding as 

        79      Id.
 

        80      Id. (citing Croft v. Pan Alaska Trucking, Inc., 820 P.2d 1064, 1066 (Alaska
 

1991)). 

        81       648 F.2d 694 (D.C. Cir.1980). 

        82      Id.    at  707   (emphasis     added)    (internal   citations   and   quotation     marks 

omitted). 

        83      Kachemak, 935 P.2d at 825 (quoting Batterton, 648 F.2d at 707). 

                                                   -22-                                              6638 

----------------------- Page 23-----------------------

                to a particular application and does not establish criteria by 
                which particular applications should be evaluated.[84] 

Instead, "[d]istrict identification [was] the first step in a lengthy, detailed public process 
of determining what aquatic farm will be allowed in what location."85               As such we held 

that it did not satisfy the second indicium and therefore did not constitute a regulation 

under the APA. 

                        c.	     The      BBAP        affects    the     public     in    the    limited 
                                Kachemak/Batterton sense. 

                The superior court in this case noted that in Kachemak we relied upon the 

fact that district identification "did not 'establish criteria by which particular applications 

should be evaluated,' which appears to be at odds with DNR's admission that the BBAP 

is the document by which it will be held accountable; the roadmap that will be referred 

to as future decisions are made."          The superior   court concluded that the BBAP is a 

regulation   because   it   "implements   the   policy   directives   of   AS   38.04.065,   making   it 

specific to the uplands of Bristol Bay, and sets policy to guide the department when 

making land use decisions in the future."          (Emphasis added.) 

                While the Tribes and the superior court are correct that the BBAP does 

more than merely identify districts, the relevant inquiry is whether it does enough to 

meaningfully affect the public and thereby satisfy the second indicium of a regulation. 

We conclude it does not. 

                We begin by noting that the BBAP certainly "affects the public or is used 
by [DNR] in dealing with the public"86 in a broad Kenai sense - namely that portions 

of the BBAP eventually may be implemented   and thereby affect the public through 

        84      Id. 

        85      Id. at 826. 

        86      AS 44.62.640(a)(3); Kachemak, 935 P.2d at 825. 

                                                  -23-                                              6638 

----------------------- Page 24-----------------------

regulations, and that the BBAP will likely guide public policy in years to come.87                    But 

we clarify today that, in light of our Kachemak decision, this nonspecific, downstream 

effect alone - that is, that an agency plan may eventually be implemented by regulation 

- is insufficient to demonstrate sufficient meaningful impact on the public to satisfy the 

second indicium of a regulation. 

                In Kenai, we found an effect on the public through both the emergency 

closure   of   the   fishery   and   the   fact   that   the   policy   dictated   the   substance   of   a   later 
regulation.88    We clarify that the first Kenai reason - the emergency closure - was 

sufficient to demonstrate a direct impact on the public and support our conclusion in that 
case that the agency actions were regulations.89            The second Kenai reason - that the 

statements of management intent gave rise to later regulations -   does   not by itself 
necessarily dictate sufficient impact on the public to satisfy the second indicium.90                 We 

therefore now explicitly adopt the Batterton analysis as presented in Kachemak as the 

defining principle underlying the second indicium of a regulation: an agency action does 

not satisfy the second indicium if it "does not alter the rights of the parties, does not 

deprive any party of a fair opportunity for public participation, embodies no finding as 

        87      See Kenai Peninsula Fisherman's Coop. Ass'n, Inc. v. State, 628 P.2d 897, 

905 (Alaska 1981). 

        88      Id. at 905-06. 

        89      Id. 

        90      Regulations may cite to and even incorporate pre-existing guidelines and 

policy    statements;    this  fact  alone   is  insufficient   to  brand    those   earlier  statements 
regulations     as  well.   Regulations       are  open    to  judicial  review    at  any   time   under 
AS 44.62.300.       As such, so long as a properly promulgated regulation implements a 
policy that can be enforced against the public at some point, it is unnecessary to extend 
the classification of "regulation" any further upstream. 
                                                  -24-                                                6638 

----------------------- Page 25-----------------------

to a particular application and does not establish criteria by which particular applications 
should be evaluated."91 

               The BBAP will be implemented and will affect the public chiefly through 

downstream       "administrative    actions  such   as  leases,  permits,   land   conveyances, 

classification orders, and mineral orders." Some land use plans in fact already have been 

adopted     as   regulations,   and   can    presumably     therefore   be   challenged    under 
AS 44.62.300.92    The BBAP has not.      The BBAP is not itself "enforceable" against the 

public in a meaningful way until implemented by further agency action, and therefore 
cannot itself govern the conduct or rights of the public.93 

        91     Kachemak, 935 P.2d at 825. 

        92     See, e.g., Susitna Basin Recreation Rivers Management Plan, adopted as 

regulation   at   11   AAC   09.005   (2005);   Wood-Tikchik   State   Park   Management   Plan, 
adopted as regulation at 11 AAC 20.365 (2005). 

        93     See also DEPARTMENT OF NATURAL RESOURCES, BRISTOL BAY AREA PLAN 

FOR STATE LANDS 1-9 (2005), available at http://dnr.alaska.gov/mlw/planning/areaplans/ 
bristol/index.htm (last visited Jan. 4, 2012) (titled "What the Plan Won't Do" and stating 
the BBAP is "not the only way in which land management goals are implemented" and 
does not regulate, for instance, public activities that do not require a written authorization 
on state land, such as "hiking, camping, boating, hunting, and fishing"). 

               We also note that although it guides future DNR policy, the BBAP is likely 
not enforceable by the public against DNR either.          The U.S. Supreme Court decision 
Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004), is instructive on this point. 
In Norton, plaintiffs brought suit to compel an agency to act in accordance with its land 
use plan.   Id.  at 67-69.  The Supreme Court declined to enforce the plan, stating that 
federal land use plans do not create "legally binding commitment[s]" even though they 
"guide and control future management actions . . . for resources and uses." Id. at 69, 72. 
The Court went on to state: 

               Of course, an action called for in a plan may be compelled 
               when the plan merely reiterates duties the agency is already 
               obligated to perform, or perhaps when language in the plan 
                                                                                  (continued...) 
                                              -25-                                           6638 

----------------------- Page 26-----------------------

                 The state land management process at issue here is similar to theKachemak 

aquatic farm district identification because both involve substantial DNR discretion in 

the early stages and later coalesce into actions affecting the public (e.g., permitting, 

disposal,     leasing)    through    downstream        agency    action.     Land     use   plans   are   an 

intermediate step in this process:           statutes establish policies that land use plans must 

apply, and land use plans interpret these policies to guide the agency itself, but the public 

is directly affected only by later regulations and other agency action that may follow 

from the plans.   Thus, the BBAP is an interim measure that guides DNR's behavior, not 

that of the public. 

                 The   Tribes   argue   that   comparing   the   BBAP   to   the  Kachemak         district 

identification plan is incorrect. They assert the analogous "planning area identification" 

        93(...continued) 

                 itself  creates    a  commitment       binding    on  the   agency.    But 
                 allowing general enforcement of plan terms would lead to 
                 pervasive interference with [the agency's] own ordering of 
                 priorities.    For    example,     a   judicial    decree    compelling 
                 immediate preparation of all of the detailed plans called for 
                 in   the   [plan   at   issue]   .   .   .   would   ultimately   operate   to   the 
                 detriment       of   sound      environmental        management.        Its 
                 predictable consequence would be much vaguer plans from 
                 [the agency] in the future - making coordination with other 
                 agencies more difficult, and depriving the public of important 
                 information concerning the agency's long-range intentions. 

Id. at 71-72.    The BBAP similarly provides guidelines and does not mandate specific 
action.  While the BBAP does, at times, contain mandatory language - for instance, it 
provides that "[a]ll state lands in the planning area will be classified consistent with the 
land use designations in this plan" (emphasis added) - classification "consistent with" 
the BBAP does not mandate a specific course of action.  Anointing the BBAP and similar 
plans    as  regulations     would    not   only   make    them    subject   to  judicial   review    under 
AS   44.62.300,   but   also   presumably   to   actions   for   enforcement   of   the   type   the   U.S. 
Supreme Court declined to grant in Norton . 
                                                   -26-                                                 6638 

----------------------- Page 27-----------------------

in Bristol Bay in fact antedated the BBAP and occurred in 1980, and they point out that 

whereas the Kachemak  plan merely identified districts, the BBAP does considerably 

more than this by "establish[ing] goals, guidelines, policies, [and] standards of general 

application."    The Tribes also cite various BBAP excerpts as purported evidence of its 

public impact. But the materials the Tribes cite on this point actually state that the BBAP 

"guides DNR decisions," that "DNR's actions will be based on the   area   plan," and 

otherwise suggest that the Plan at some future date will guide DNR's actions in dealing 

with the public - not that the Plan itself directly binds the public.             (Emphasis added.) 

Moreover, DNR points out that although the Tribes repeatedly claim that the BBAP 

affects the public, they "fail to offer a single example of how the Plan has been applied 

to them, or any other member of the public, despite the fact that the Plan has been in 

place since April, 2005." 

                We based our Kenai decision in part on the fact that an emergency order 

based on a policy option had in fact closed down a fishery and thereby directly affected 
the public.94   No such direct public impact is alleged here, and DNR persuasively argues 

that none could occur absent further agency action.              The BBAP affects the public in a 

limited   way   -   for   instance,   it   may   "alter   the   manner   in   which   the   parties   present 
themselves or their viewpoints to the agency"95 - but it does not itself "alter the rights 

or   interests   of  the  parties,"96  and   thus   does   not  satisfy  the  second    indicium     of  a 

regulation.    We therefore hold that the BBAP is not a regulation under the APA. 

        94       Kenai Peninsula Fisherman's Coop. Ass'n, Inc. v. State, 628 P.2d 897, 

905-06 (Alaska 1981). 

        95      Kachemak, 935 P.2d at 825 (quoting Batterton v. Marshall, 648 F.2d 694, 

707 (D.C. Cir. 1980)). 

        96       Id. (quoting Batterton, 648 F.2d at 707). 

                                                  -27-                                               6638 

----------------------- Page 28-----------------------

IV.    CONCLUSION 

              Because it was error for the superior court to conclude that the Bristol Bay 

Area Plan is a regulation, we REVERSE the superior court's ruling that the BBAP is a 

regulation and REMAND for further proceedings consistent with this opinion. 

                                           -28-                                     6638
 
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