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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Friends of Willow Lake, Inc. v. State, Dept. of Transportation & Public Facilities, Division of Aviation & Airports (7/20/2012) sp-6691

Friends of Willow Lake, Inc. v. State, Dept. of Transportation & Public Facilities, Division of Aviation & Airports (7/20/2012) sp-6691

        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 



FRIENDS OF WILLOW LAKE, INC.,                    ) 

                                                 )    Supreme Court No. S-14018 

                       Appellant,                ) 

                                                 )    Superior Court No. 3AN-08-10650 CI 

        v.                                       ) 

                                                 )   O P I N I O N 

STATE OF ALASKA, DEPARTMENT                      )
 

OF TRANSPORTATION & PUBLIC                       )   No. 6691 - July 20, 2012
 

FACILITIES, DIVISION OF AVIATION )
 

& AIRPORTS, and BAL, INC., d/b/a                 )
 

WILLOW AIR,                                      )
 

                                                 ) 

                       Appellees.                ) 

                                                 ) 



               Appeal from the Superior Court of the State of Alaska, Third 

               Judicial District, Anchorage, Peter A. Michalski, Judge. 



               Appearances:      William F. Brattain II, Baker Brattain LLC, 

               Anchorage, for Appellant.        L. Anmei Goldsmith, Assistant 

               Attorney General, Anchorage, and John J. Burns, Attorney 

               General,   Juneau,   for   Appellee   State   of   Alaska. David   D. 

               Clark, Law Office of David Clark, Anchorage, for Appellee 

               BAL, Inc. 



               Before:     Carpeneti,     Chief   Justice,   Fabe,   Winfree,    and 

               Stowers,    Justices. [Christen, Justice, not participating.] 



               WINFREE, Justice. 



I.       INTRODUCTION 



               After the State of Alaska issued a plan for summer-use rules at Willow 


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Lake, which the State operates as a float plane facility, a non-profit corporation brought 



suit   against   the   State   and   a   float   plane   operator,   alleging: (1)   the   State's   plan   was 



unconstitutional,   improperly   issued,   and   preempted   by   federal   navigable   water   and 



aviation laws; and (2) the float plane operations created a public nuisance.   The superior 



court granted summary judgment on the basis that the corporation lacked standing to 



bring its claims, but further concluded that the use plan was properly issued and not 



preempted by federal navigable water law. We affirm the superior court's ruling that the 



use plan was not a regulation required to be promulgated under formal administrative 



procedures.     But   because   the   corporation   had   associational   standing   and   there   was 



insufficient development of the record for the preemption ruling, we reverse and remand 



for further proceedings. 



II.     FACTS AND PROCEEDINGS 



                Willow Lake is located west of the Parks Highway, across the highway 



from the Willow Airport. The State of Alaska, Department of Transportation and Public 



Facilities (DOT&PF) manages Willow Lake as a float plane facility.                   BAL, Inc., d/b/a 



Willow Air, uses Willow Lake for commercial flight operations. 



                In   October   2005   DOT&PF   held   a   public   meeting   to   address   concerns 



between lake-front (riparian) property owners and aircraft operators, specifically Willow 



Air. In October 2007 another public meeting was held to present findings from a Willow 



Lake noise study assessing aircraft noise and potential mitigation measures. 



                In a November 2007 letter, a DOT&PF commissioner expressed regret that 



"a local level resolution" had been unsuccessful and indicated that a use plan "must be 



developed and implemented to allow everyone the enjoyment [of] using the Lake that 



they have experienced over the years."           The commissioner stated that DOT&PF would 



not terminate commercial air operations or designate runways on the lake, the latter 



requiring adherence to federal airport criteria and the purchase of lands and buildings to 



                                                  -2-                                             6691
 


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

create unobstructed runway safety areas.   But he indicated DOT&PF intended to permit 



public use of the lake as long as it did not compromise aircraft safety. 



                In January 2008 DOT&PF held a public meeting to review a draft Willow 



Lake Use Plan (WLUP).            Later that month DOT&PF distributed a letter stating the 



WLUP would not be necessary "[i]f there is agreement and satisfaction on both sides as 



to   using   the   lake   and   everyone   agrees   to   maintain   vigilance,   cooperation,   and   self 



enforcement."      DOT&PF required the working plan, if one could be agreed on, to be 



presented by March 2008; otherwise a written plan would be necessary and the public 



would be "given an opportunity to develop the written plan that takes into consideration 



both   user   categories."     A   private   working   plan   was   not   presented,   and   DOT&PF 



eventually issued a final WLUP in April 2008. 



                The WLUP sets forth summer-use rules for Willow Lake's recreational and 



aircraft users.  Recreational users are required to look for and avoid aircraft and advised 



to avoid the lake's center, where aircraft take off and land.  Aircraft users are prohibited 



from operating in a particular area of the lake, and also are prohibited from operating 



within 100 feet of the shore unless taxiing, preparing to take off, landing, or staying 



within a designated warm-up area.          The WLUP also recommends that aircraft take off 



towards   the   south,   if   possible,   and   to   otherwise   take   off   and   land   in   a   "generally 



northerly/southerly direction." 



                Friends of Willow Lake, Inc. (FOWL) is a non-profit corporation "formed 



[in June 2008] for the express purpose of protecting the interest of the users of Willow 



Lake."     FOWL's   stated   purpose   is   "to   promote   the   preservation   and   protection   of 



common access, property rights and multi-use, including aviation activities, of Willow 



Lake."   Its members are Alaska residents and Willow Lake users.  Some members own 



riparian property on Willow Lake, but FOWL itself does not. 



                                                  -3-                                             6691
 


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              In September 2008 FOWL filed suit against DOT&PF and Willow Air, 



alleging:   (1) the WLUP violated the Alaska Constitution, was improperly issued, and 



was preempted by federal navigable water and aviation laws; and (2) Willow Air's use 



of high-performance propellers on its aircraft, with DOT&PF's authorization, created a 



public nuisance.   FOWL sought declaratory and injunctive relief. 



              DOT&PF moved for summary judgment, seeking declarations that:  (1) it 



had authority to promulgate the WLUP; and (2) FOWL lacked standing to bring suit. 



Willow Air moved to dismiss the suit on the basis that FOWL was not the real party in 



interest. FOWL opposed the motions. 



              The superior court granted DOT&PF's summary judgment motion and 



Willow Air's motion to dismiss on the basis that FOWL lacked both interest-injury and 



citizen-taxpayer standing.   The court also concluded that the rulemaking requirements 



of the Alaska Administrative Procedure Act (APA) were not applicable to the WLUP 



because the plan was discretionary action and "a common sense exercise of [DOT&PF's] 



authority on its own terms which [did] not add new requirements to the already existing 



law."  The court further ruled the WLUP "would not be void by virtue of the U.S. Coast 



Guard inland navigation rules because the Coast Guard does not consider Willow Lake 



a navigable water."   It later awarded DOT&PF and Willow Air Alaska Civil Rule 82 



attorney's fees and costs. 



              FOWL appeals, arguing the superior court erred in:        (1) ruling FOWL 



lacked standing; (2) concluding the WLUP was properly issued; (3) concluding Willow 



Lake was not under Coast Guard jurisdiction; and (4) awarding attorney's fees and costs 



against it.  FOWL also argues the WLUP conflicted with and was preempted by the 



Federal Aviation Act, an issue the superior court did not address. Because the parties did 



not address associational standing in the superior court or in their briefs to us, we asked 



for supplemental briefing on that issue. 



                                            -4-                                       6691
 


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III.    STANDARD OF REVIEW
 



                We review a grant of summary judgment de novo, with the facts reviewed 

in the light most favorable to the non-moving party.1           A grant of summary judgment is 



affirmed "when there are no genuine issues of material fact, and the prevailing party . . . 

[is] entitled to judgment as a matter of law."2      Issues of standing are questions of law that 



                       3                                                                  4 

we review de novo.       We review de novo questions of statutory construction,  including 



"whether   an   agency   action     constitutes   a   'regulation'   that   must   be   promulgated   in 

compliance with the APA."5  Whether a particular body of water is a navigable water of 



the United States is a question of federal law,6 which we review de novo.7 



        1       Fraternal Order of Eagles v. City & Borough of Juneau , 254 P.3d 348, 352 



(Alaska 2011) (quoting Rockstad v. Erikson , 113 P.3d 1215, 1219 (Alaska 2005)). 



        2       Id . (quoting Rockstad , 113 P.3d at 1219). 



        3       Law Project for Psychiatric Rights, Inc. v. State , 239 P.3d 1252, 1254-55 



(Alaska 2010) (citing Keller v. French , 205 P.3d 299, 302 (Alaska 2009)). 



        4       Smart v. State, Dep't of Health & Soc. Servs., 237 P.3d 1010, 1014 (Alaska 



2010) (quoting Pepper v. Routh Crabtree, APC , 219 P.3d 1017, 1020 (Alaska 2009)). 



        5       Id.  (citing Alaska Ctr. for the Env't v. State , 80 P.3d 231, 243 (Alaska 



2003)). 



        6       Alaska v. United States , 754 F.2d 851, 853 (9th Cir. 1985) (citing Utah v. 



United States, 403 U.S. 9, 10 (1971)). 



        7       Cf. Nunez v. Am. Seafoods, 52 P.3d 720, 721 (Alaska 2002) ("We also 



review de novo whether a fishing agreement complies with relevant federal admiralty 

law."). 



                                                  -5-                                            6691
 


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

IV.     DISCUSSION 



        A.      Associational Standing 



                1.       Overview 



                "Standing is a rule of judicial self-restraint based on the principle that courts 

should not resolve abstract questions or issue advisory opinions."8                However, "[t]he 



concept of standing has been interpreted broadly in Alaska,"9 with adversity being the 



basic  requirement.10      We recognize two general types of standing:              citizen-taxpayer 



standing     and   interest-injury    standing.11     We     also  recognize     that  under    special 



circumstances, a litigant may assert third-party standing to raise the rights of a third 

person.12    In Alaskans   for   a   Common   Language,   Inc.   v.   Kritz ,13  we   recognized   and 



specified criteria for associational standing, allowing a group to represent its members' 



interests; we stated that: 



        8       Law Project for Psychiatric Rights , 239 P.3d at 1255 (quoting Keller , 205 



P.3d at 302) (internal quotation marks omitted). 



        9       Fannon v. Matanuska-Susitna Borough , 192 P.3d 982, 985 (Alaska 2008) 



(quoting N. Kenai Peninsula Rd. Maint. Serv. Area v. Kenai Peninsula Borough , 850 

P.2d 636, 639 (Alaska 1993)). 



        10      Trs. for Alaska v. State, 736 P.2d 324, 327 (Alaska 1987) (citing Moore v. 



State, 553 P.2d 8, 24 n.25 (Alaska 1976)). 



        11      Law Project for Psychiatric Rights , 239 P.3d at 1255. 



        12      Id. (citing Foster v. State , 752 P.2d 459, 466 (Alaska 1988) (Moore, J., 



concurring)); see also State ex rel. Dep'ts of Transp. & Labor v. Enserch Alaska Constr., 

Inc. , 787 P.2d 624, 630 n.9 (Alaska 1989) (stating third-party standing may be asserted 

where   special   relationship   exists   between   plaintiff   and   third   party,   such   as   parent 

asserting minor child's constitutional rights, or when "the interested party's attempt to 

vindicate his rights would forfeit these very rights"). 



        13      3 P.3d 906, 915-16 (Alaska 2000). 



                                                  -6-                                            6691
 


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                 an   association   has   standing   to   bring   suit   on   behalf   of   its 

                 members       when:    (1)   its  members      would    otherwise     have 

                 standing to sue in their own right; (2) the interests it seeks to 

                 protect are germane to the organization's purpose; and (3) 

                 neither the claim asserted nor the relief requested requires the 

                 participation of individual members in the lawsuit.[14] 



                 2.      FOWL members have interest-injury standing. 



                 Interest-injury     standing     is  established    if  plaintiffs  "have    a  sufficient 



personal stake in the outcome of the controversy and an interest which is adversely 

affected by the complained-of conduct."15            The degree of injury need not be great - "an 



identifiable   trifle"   is   a   sufficient   basis   for   standing.16 The   affected   interest   may   be 



economic or intangible, such as an aesthetic or environmental interest.17 



                 FOWL       alleges    the  WLUP       violates   several    constitutional    provisions, 

specifically the protected common use of and free access to public waters.18                      Alleged 



infringement of constitutional rights is a significant injury to a proper interest,19 and 



FOWL's   members,   especially   its   riparian   landowners,   have   economic   and   aesthetic 



        14       Id. (citing Hunt v. Wash. State Apple Adver. Comm'n , 432 U.S. 333, 342-43 



(1977)). 



        15       Keller , 205 P.3d at 304 (quoting Ruckle v. Anchorage Sch. Dist. , 85 P.3d 



1030, 1040 (Alaska 2004); Kritz , 3 P.3d at 915) (internal quotation marks omitted). 



        16       Trs. for Alaska, 736 P.2d at 327. 



        17       Id. (citing State v. Lewis, 559 P.2d 630, 635 (Alaska 1977)). 



        18       Article VIII, section 3 of the Alaska Constitution provides that the State's 



"waters   are   reserved   to   the   people   for   common   use."     And   article   VIII,   section   14 

provides all U.S. citizens "[f]ree access to the navigable or public waters of the State." 



        19       See Trask v. Ketchikan Gateway Borough, 253 P.3d 616, 620 (Alaska 2011) 



(finding     interest-injury     standing     established     because     plaintiff   alleged    her   First 

Amendment rights were violated by enforcement action aimed directly at her). 



                                                    -7-                                               6691
 


----------------------- Page 8-----------------------

interests in the WLUP's validity and enforcement.   Similarly, FOWL's public nuisance 



claim represents a sufficient injury to FOWL's riparian landowner members' interest in 



the quiet enjoyment of their land.  We therefore conclude that at least FOWL's riparian 



members would have interest-injury standing if they brought this suit; we do not need 



to address FOWL's argument that its members also have citizen-taxpayer standing. 



                3.      FOWL seeks to protect interests germane to its purpose. 



                DOT&PF does not challenge that FOWL seeks to protect interests germane 



to its purpose.  But Willow Air argues FOWL has no activities unrelated to this litigation 



and   so   cannot   claim   to   protect   common   access   to   Willow   Lake.   We   disagree   with 



Willow Air's premise. 



                The United States Supreme Court has recognized that "the primary reason 



people join an organization is often to create an effective vehicle for vindicating interests 

that they share with others."20     Another court has stated germaneness requires pertinence 



or   a   connection   but   does   not   go   so   far   as   to   require   that   the   issue   be   central   to   or 

substantially overlap with the organization's purpose.21               In Kritz the association was 



incorporated to   "promote the use of English as the official language of the State of 



Alaska"; we stated the enactment of a ballot initiative requiring the government to use 



English was "not only 'germane' to [the association's] organizational purposes, it [was] 

its primary organizational purpose."22 



                FOWL is a non-profit corporation whose stated purpose is "to promote the 



preservation and protection of common access, property rights and multi-use . . . [on] 



        20      Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am. 



v. Brock , 477 U.S. 274, 290 (1986). 



        21      Humane Soc'y of the U.S. v. Hodel , 840 F.2d 45, 56-57 (D.C. Cir. 1988). 



        22      Kritz , 3 P.3d at 915. 



                                                   -8-                                             6691
 


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Willow Lake."       FOWL's claims challenging the WLUP   not only are pertinent to its 



purpose, they are its primary organizational purpose.             While its public nuisance claim 



may   not   be   central   to   its   purpose,   it   is   pertinent   and   connected   to   preserving   and 



protecting common access to and enjoyment of Willow Lake. Accordingly, we conclude 



FOWL's claims are germane to its purpose. 



                4.      Participation of individual FOWL members is not required. 



                DOT&PF argues that associational standing's third prong is only "met if 



the issue in the case is a pure question of law that does not require factual testimony from 



the organization's members."  Although it acknowledges that FOWL's claims focus on 



constitutional and statutory issues, DOT&PF argues FOWL "also include[s] claims of 



damages that cannot be established without testimony from the common users about their 



injuries."  It argues FOWL cannot prevail without its members introducing evidence of 



injuries suffered, thus requiring their availability as witnesses.            Willow Air similarly 



argues member testimony is required to prove a public nuisance and any relief available 



to particular members. 



                In Kritz we stated "the constitutionality of the [ballot] initiative is a pure 



question of law which will not require direct testimony or other participation by [the 

organization's      incorporators]."23     But    contrary    to  DOT&PF's        and   Willow     Air's 



suggestions,   we   did   not   hold   that   associational   standing   is  only  proper   with   pure 



questions of law.      Because we had before us only a pure question of law, we did not 



address whether disputed factual issues meant an association could not satisfy this prong. 



                The United States Supreme Court has stated associational standing may be 



proper "so long as the nature of the claim and of the relief sought does not make the 



individual participation of each injured party indispensable to proper resolution of the 



        23      Id. at 915-16. 



                                                  -9-                                               6691 


----------------------- Page 10-----------------------

cause."24   It has further stated that this prong "is best seen as focusing on . . . matters of 



administrative convenience and efficiency, not on elements of a case or controversy 

within the meaning of the Constitution."25          Accordingly, federal courts have concluded 



that participation by some, but not all, individual members in a suit to provide discovery 

and testimony at trial does not provide a basis for denying associational standing.26               We 



agree. 



                FOWL's constitutional and statutory claims are mostly questions of law. 



The factual issues, if any, for these claims do not necessarily require the participation of 



individual members. While FOWL's public nuisance claim encompasses factual issues, 



primarily whether Willow Air's aviation operation creates "an unreasonable interference 

with a right common to the general public,"27 it does not necessarily require participation 



by   all   individual   members.    In   fact,   the   record   will   likely   center   around   the   study 



assessing aircraft noise at Willow Lake and potential mitigation measures. Furthermore, 



FOWL seeks declaratory and injunctive relief and not, as DOT&PF suggests, damages 

for its members.28     Accordingly, FOWL satisfies this prong of associational standing. 



        24      Warth v. Seldin, 422 U.S. 490, 511 (1975). 



        25      United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 



517 U.S. 544, 557 (1996). 



        26      See Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 601-02 



(7th Cir. 1993); Hosp. Council of W. Pa. v. City of Pittsburgh, 949 F.2d 83, 89-90 (3d 

Cir. 1991). 



        27      RESTATEMENT        (SECOND)  OF     TORTS       821B(1)   (1979)   (defining   public 



nuisance). 



        28      See Warth, 422 U.S. at 515 ("If . . . the association seeks . . . prospective 



relief, . . . the remedy, if granted, will inure to the benefit of those   members of the 

association actually injured.  Indeed, in all cases in which we have expressly recognized 

                                                                                        (continued...) 



                                                  -10-                                            6691
 


----------------------- Page 11-----------------------

               5.     Conclusion 



               We conclude FOWL has associational standing to bring this   suit on its 



members' behalf.      Should FOWL's claims change, the superior court is not foreclosed 



from considering anew the application of associational standing to the changed claims. 



       B.      APA's Rulemaking Requirements 



               The APA "establish[es] basic minimum procedural requirements for the 

adoption, amendment, or repeal of administrative regulations."29        It requires agencies to 



give notice of proposed actions,30 hold a public hearing and allow interested persons to 



submit comments,31 and file adopted regulations with the lieutenant governor.32            "The 



APA is meant to reduce the risk of arbitrary application and to inform the public of 

regulations."33  An agency's failure to satisfy the APA's procedural requirements renders 



its action invalid.34 



       28      (...continued) 



standing in associations to represent their members, the relief sought has been of this 

kind."). 



       29      AS 44.62.280. 



       30      AS 44.62.190; see also AS 44.62.200 (establishing content requirements 



for the notice given). 



       31      AS 44.62.210. 



       32      AS 44.62.040. 



       33      Squires v. Alaska Bd. of Architects, Eng'rs & Land Surveyors, 205 P.3d 



326, 335 (Alaska 2009). 



       34      Smart, 237 P.3d at 1017 (citing Jerrel v. State, Dep't of Natural Res. , 999 



P.2d 138, 144 (Alaska 2000)). 



                                              -11-                                         6691
 


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

                APA compliance is not required if an agency's action does not constitute 

a "regulation."35     The APA defines a regulation as "every rule, regulation, order, or 



standard of general application or [any] amendment, supplement, or revision" thereof.36 



"Although the definition of 'regulation' is broad, it does not encompass every routine, 

predictable interpretation of a statute by an agency."37           We examine the "character and 



use"   of   the   agency's   action38 -   "a   common   sense   interpretation   of   [a]   regulation's 



applicability" is not a regulation, so long as it does not provide "new requirements nor 

[make] the existing ones any more specific."39 



                1.      The WLUP is not a "regulation." 



                The    superior    court   concluded     the  WLUP      is  not  a  regulation,   noting 



DOT&PF is authorized to regulate airports, air navigation facilities, and   float plane 



facilities, and that the WLUP is "a common sense exercise of this authority on its own 

terms which does not add new requirements to the already existing law."40                       FOWL 



        35      Id. 



        36      AS 44.62.640(a)(3). 



        37      Smart, 237 P.3d at 1017 (quoting Alyeska Pipeline Serv. Co. v. State, Dep't 



of Envtl. Conservation, 145 P.3d 561, 573 (Alaska 2006)). 



        38      Squires, 205 P.3d at 333 (quoting Jerrel , 999 P.2d at 143). 



        39      Alaska Ctr. for the Env't v. State , 80 P.3d 231, 244 (Alaska 2003) (finding 



an agency interpretation was not a "regulation" because it "was not an addition to a 

regulation   involving   requirements   of   substance.   .   .   it   was   the   interpretation   of   the 

regulation according to its own terms." (quoting Usibelli Coal Mine, Inc. v. State, Dep't 

of Natural Res., 921 P.2d 1134, 1149 n.24 (Alaska 1996))). 



        40      The     superior   court   also   stated   the  WLUP      was    discretionary    action, 



suggesting such action does not require compliance with the APA.                    The discretionary 

function exception immunizes the State from tort actions "based upon the exercise or 

                                                                                         (continued...) 



                                                  -12-                                             6691
 


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

argues the WLUP is a regulation and that it was not promulgated in compliance with the 



APA.  DOT&PF responds "that the WLUP is valid as a common sense synthesis of [its] 



pre-existing powers, rather than an expression of new rules." DOT&PF argues it "issued 



the WLUP in accordance with regulations providing [DOT&PF] with general police 



powers   over   rural   airports,"   and   these   police   powers     include   "broad   powers   over 



planning, operation, regulation, protection, and policing of airports." 



                In Alyeska Pipeline Service Co. v. State, Department of Environmental 



Conservation   we   held       an  agency's   policy   allowing   it   to   recoup   costs   incurred   in 

defending permit appeals was not a regulation requiring APA compliance.41  We stated 



that "obvious, commonsense interpretations of statutes do not require rulemaking,"42 but 



APA compliance is required for "cases in which an agency's interpretation of a statute 



is   expansive   or   unforeseeable,   or   in   cases   in   which   an   agency   alters   its   previous 

interpretation of a statute."43     We explained that "[n]early every agency action is based, 



implicitly or explicitly, on an interpretation of a statute or regulation authorizing it to act. 



A requirement that each such interpretation be preceded by rulemaking would result in 

complete ossification of the regulatory state."44 



                The legislature has given DOT&PF broad authority to "plan, establish, 



construct,   enlarge,   improve,   maintain,   equip,   operate,   regulate,   protect,   and   police 



        40      (...continued) 



performance       or  the  failure   to  exercise   or  perform    a  discretionary     function."     AS 

09.50.250(1).     It does not exempt agency regulatory action from APA compliance. 



        41       145 P.3d 561, 572-73 (Alaska 2006). 



        42      Id. at 573 (citing Alaska Ctr. for the Env't , 89 P.3d at 244). 



        43      Id. 



        44      Id. 



                                                   -13-                                             6691
 


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

airports."45  With this authority DOT&PF has promulgated regulations requiring persons 



using an airport to comply with posted instructions, requirements, and restrictions.46 



                DOT&PF's airport regulations require using a "public area only as the 



department designates for the activity, class of traffic, or mode of travel in which the 

person is engaged."47       In   addition, "[t]he department may . . . authorize, restrict, or 



prohibit air carrier operations . . . or other uses in designated areas of airport land."48 



Prior approval is required to "moor, load, unload, launch, operate, or test a boat or boat 

motor in a body of water that is part of an airport float plane facility."49            DOT&PF's 



regulations also require aircraft to confine their operation to "designated runways, water 

lanes, helipads, taxiways, taxi lanes, aprons, and aircraft parking areas."50              As found 



"necessary for safe and secure operation of the airport, the airport manager may by 



control device or order regulate, control, and direct the availability of a runway, water 

lane, helipad, taxiway, taxi lane, apron, and aircraft parking area on an airport."51 



                As in Alaska Center for the Environment , the WLUP is better characterized 



as   a  common      sense   interpretation   of  DOT&PF's       existing   regulations,    and   not  a 



regulation itself; it constitutes the official notice of airport instructions, requirements, and 



restrictions. Each airport, especially each float plane facility, requires individualized and 



        45      AS 02.15.060.
 



        46      17 Alaska Administrative Code (AAC) 45.020(a)(1)(C) (2009).
 



        47      17 AAC 45.020(a)(3)(A).
 



        48      17 AAC 45.020(c). 



        49      17 AAC 45.020(h). 



        50      17 AAC 45.030(b). 



        51      Id. 



                                                 -14-                                           6691
 


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

common sense interpretations of DOT&PF's regulations to facilitate and ensure its safe 



and secure operation.      Otherwise any slight change in runways or taxi lanes or general 



rules pertaining to the public use of an airport would require promulgation pursuant to 



the APA, which would "result in complete ossification" of airport operations. 



                2.      17 AAC 45.140 did not require compliance with the APA. 



                FOWL notes DOT&PF's authority to develop a program to minimize local 

effects   of   aircraft   noise,52  and   argues   DOT&PF   has   not   "disputed   the   WLUP   was 



adopted, in part, to respond to and address the excessive noise complaint concerns of the 



landowners, . . . as reflected in the 2007 Noise Study."  FOWL argues the superior court 



failed to consider DOT&PF's non-compliance with 17 AAC 45.140, requiring DOT&PF 

to "follow the procedures of [the APA] in developing a noise compatibility program."53 



                DOT&PF argues it was not required to comply with 17 AAC 45.140 in 



adopting the WLUP.  It argues a "noise compatibility program" is not required for every 



action it takes with respect to aircraft noise.   DOT&PF states 49 U.S.C.  47504 invites 



airport operators to take preliminary steps to address noise problems before developing 



a noise compatibility program, "such as controlling the operation of aircraft to reduce 



noise   around   the   airport   and   restricting   the   use   of   the   airport   by   a   type   or   class   of 



aircraft."  DOT&PF argues its "powers include controlling air traffic patterns (such as 



restricting take offs and landings to north-south) and restricting the use of an airport by 



        52      17 AAC 45.140(a) (2009) states: 



                If [DOT&PF] determines that it is in the best interest of the 

                state and of members of the public living or working in areas 

                near the airport that are or may be affected by noise from 

                aircraft   using   the  airport,   the  department   will   develop     a 

                program to improve compatibility between the operation of 

                those aircraft and the surrounding community. 



        53      17 AAC 45.140(b). 



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type of aircraft (or by choosing  not to restrict   aircraft)."        Because the WLUP "only 



attempts to mediate the conflicting uses of Willow Lake in a way that takes into account 



the noise concerns of some of the lake users," DOT&PF argues "17 AAC 45.140 does 



not require that a noise compatibility program be developed for the WLUP." 



                DOT&PF has the better argument. Noise compatibility programs under 14 



C.F.R.  150.23 are voluntary regulations prescribing airport planning procedures for 

federal funding of noise compatibility measures.54          Under 17 AAC 45.140(a) DOT&PF 



has discretion to develop a noise compatibility program,55 and APA compliance is only 



required if DOT&PF decides to develop a noise compatibility program. But DOT&PF's 



regulations contemplate preliminary steps to reduce aircraft noise before development 



of   a   noise   compatibility    program.      In   addition,    17  AAC      45.030(c)    expressly 



acknowledges that DOT&PF may issue orders affecting aircraft noise.                    We therefore 



agree with DOT&PF that the WLUP is not a noise compatibility program. 



        C.      Coast Guard Inland Navigation Rules 



                The   United   States   Coast   Guard   Inland   Navigation   Rules   "apply   to   all 

vessels upon the inland waters of the United States."56             These rules are "designed to 



prevent collision[s]" and "anyone who undertakes operation of vessels on navigable 



        54      See 14 C.F.R.  150.23(a) (2011) ("Any airport operator who has submitted 



an   acceptable   noise   exposure   map   .   .   .  may .   .   .   submit   .   .   .   a   noise   compatibility 

program." (emphasis added)); see also  49 U.S.C.  47108(b)(3) (describing projects 

receiving federal assistance under chapter 475, which establishes federal standards for 

noise exposure maps and noise compatibility programs). 



        55      17 AAC 45.140(a) ("If [DOT&PF] determines that it is in the best interest 



of the state and [relevant public], the department will develop a program . . . ." (emphasis 

added)). 



        56      33 U.S.C.  2001(a) (2006). 



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waters is charged with knowledge of [them] and a mandatory duty to obey them."57 



They define inland waters as "the navigable waters of the United States shoreward of the 



navigational demarcation lines dividing the high seas from harbors, rivers, and other 

inland waters of the United States."58        The Coast Guard defines navigable waters of the 



United States, in relevant part, as: 



                        Internal waters of the United States not subject to tidal 

                influence that: 



                                (i) Are or have been used, or are or have 

                        been susceptible for use,   by themselves or in 

                        connection with other waters, as highways for 

                        substantial     interstate   or  foreign    commerce, 

                        notwithstanding          natural      or    man-made 

                        obstructions that require portage, or 



                                (ii) A governmental or non-governmental 

                        body,       having      expertise      in    waterway 

                        improvement,        determines     to  be   capable    of 

                        improvement at a reasonable cost (a favorable 

                        balance between cost and need) to provide, by 

                        themselves or in connection with other waters, 

                        as highways for substantial interstate or foreign 

                                     [59] 

                        commerce. 



        57      Turecamo Mar., Inc. v. Weeks Dredge No. 516, 872 F. Supp. 1215, 1229 



(S.D.N.Y. 1994) (citations omitted). 



        58      33 U.S.C.  2003(o) (2006). 



        59      33 C.F.R.  2.36(a)(3) (2011). For purposes of the Inland Navigation Rules 



and their applicability under the commerce clause, the definition of navigability "focuses 

upon historic navigability and capability of navigability." 1 THOMAS J. SCHOENBAUM , 

ADMIRALTY AND MARITIME LAW  3-3, at 129 (5th ed. 2011) (emphasis in original).  "In 

contrast, navigability for the purpose of admiralty jurisdiction [in federal courts] should 

focus upon current navigability and the possibility of interstate travel by water."  Id. 



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                The superior court ruled the WLUP "would not be void by virtue of the 



U.S. Coast Guard inland navigation rules because the Coast Guard does not consider 



Willow Lake a navigable water."  The court based its ruling on an exhibit listing Willow 



Creek, but not Willow Lake, as a navigable internal water. 



                FOWL argues the superior court erred by "simply assum[ing] that since 



Willow   Lake   was   not   on   the   list   of   waterbodies   under   Coast   Guard   jurisdiction,   its 



inquiry was over." It argues that as a navigable water, the Inland Navigation Rules apply 



to float planes on Willow Lake, preempting and taking priority over conflicting state 



laws, regulations, or practices.      In particular, FOWL argues the WLUP conflicts with 



Coast Guard right-of-way rules. 



                Because the record is insufficiently developed on this point, we are unable 



to determine whether Willow Lake is a navigable inland water subject to the Inland 



Navigation Rules. As DOT&PF conceded at oral argument before us, the mere omission 



of Willow Lake from the Coast Guard's list of navigable internal waters is not sufficient 



evidence to support a ruling as a matter of law.           Accordingly, we vacate the superior 



court's ruling and remand the issue for greater development and further consideration 



by the superior court. 



        D.      Federal Aviation Administration Preemption 



                FOWL argues the WLUP is invalid because it is preempted by Federal 



Aviation Administration rules and regulations.           The superior court did not address this 



argument.      We     leave  the  unaddressed      claim   of  Federal   Aviation    Administration 



preemption for the superior court's consideration on remand. 



        E.      Attorney's Fees 



                Because we conclude FOWL had associational standing and reverse the 



superior    court's   summary     judgment   orders   on    that   basis,   we   vacate   the   award  of 



attorney's fees. This decision renders moot FOWL's argument that it should be regarded 



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as a public interest litigant and therefore not liable for attorney's fees; we do not address 

this argument.60 



V.      CONCLUSION 



               We AFFIRM the superior court's ruling that the WLUP is not a regulation 



and was not required to be promulgated under the APA.               We REVERSE the superior 



court's   ruling   that   FOWL   lacked   standing   to   maintain   its   suit,   VACATE   its   ruling 



regarding the Inland Navigation Rules, and VACATE the award of attorney's fees.  We 



REMAND to the superior court for further proceedings. 



        60      Cf. State v. Native Vill. of Nunapitchuk, 156 P.3d 389, 406 (Alaska 2007) 



(noting AS 09.60.010(b) "abrogates, in part, the public interest litigant exception"); but 

see AS 09.60.010(c) (establishing constitutional right litigation exception to Rule 82). 



                                                -19-                                            6691 

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