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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Caywood v. State, Dept. of Natural Resources (11/23/2012) sp-6726

Caywood v. State, Dept. of Natural Resources (11/23/2012) sp-6726

       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 



ROBERT CAYWOOD, PAULA                     ) 

CAYWOOD, MICHAEL                          )      Supreme Court No. S-14253 

CAYWOOD, HAROLD BRYANT,                   ) 

ANN BRYANT, JUBAL BRYANT,                 )      Superior Court No. 3AN-09-10487 CI 

MELVIN GROVE, CHERYL                      ) 

GROVE, SETH GROVE, TOM                    )      O P I N I O N 

ANDERSON, BRAD KRUEGER,                   ) 

BRUCE CARTER, GREG SHAFFER, )                    No. 6726 - November 23, 2012 

JOHN BRADSHAW, STEPHEN R.                 ) 

JONES, JACK J. JONES, DANIEL              ) 

McCABE, RON WOODS, CRAIG,                 ) 

WOODS, JEFF WOODS, FRANK                  ) 

HOLLIS, WILLIAM EVERETT,                  ) 

DAVID DICKEY, DAVIE MALZAC, ) 

GREGORY E. DABNEY, and THE                ) 

ALASKA OUTDOOR ACCESS                     ) 

ALLIANCE,                                 ) 

                                          ) 

                 Appellants,              ) 

                                          ) 

       v.                                 ) 

                                          ) 

STATE OF ALASKA,                          ) 

DEPARTMENT OF NATURAL                     ) 

RESOURCES,                                ) 

                                          ) 

                Appellee.                 ) 

                                          ) 



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

              Judicial District, Anchorage, Daniel Schally, Judge pro tem.
 


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

                Appearances:      Darryl L. Thompson, Darryl L. Thompson, 

                P.C.,   Anchorage,   for   Appellants.     Cameron   M.   Leonard, 

                Senior Assistant Attorney General, Fairbanks, and John J. 

                Burns, Attorney General, Juneau, for Appellee. 



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

                Stowers, Justices, and Matthews, Senior Justice.* 



                MATTHEWS, Senior Justice. 



I.      INTRODUCTION 



                The Department of Natural Resources restricted the non-winter use of large 



vehicles on the Rex Trail.      The main question in this case is whether these restrictions 



are within the Department's authority.         Because the Department has broad authority to 



manage public lands in general and specific authority to manage rights-of-way such as 



the   Rex   Trail,   and   the   restrictions   do   not   violate   any   statutory   limitations   on   this 



authority, we conclude that they are authorized. 



II.     FACTS AND PROCEEDINGS 



        A.      Facts 



                The   Rex   Trail   is   a   route   extending   some   50   miles   between   the   Parks 



Highway and the Wood River north of the Alaska Range.                  Except for a portion about 



one-and-a-half      miles   in  length   nearest   the  Parks   Highway     the  trail  has  not  been 



improved.  The trail almost exclusively crosses state and federal land.   It was established 



in the early twentieth century as a transportation route to mining claims, and in light of 

its historic use, the Alaska Legislature has recognized it as an R.S. 2477 right-of-way.1 



        *       Sitting   by   assignment   made   under   article   IV,   section   11   of   the   Alaska 



Constitution and Alaska Administrative Rule 23(a). 



        1       See AS 19.30.400(d) (RST Number 0119).  The Rex Trail is referred to in 



                                                                                       (continued...) 



                                                  -2-                                              6726 


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

In the 1970s the trail was used for access to remote parcels that were made available for 



sale by the State.     The trail has also traditionally been used by hunters to gain access to 



productive moose habitat.   In 2004 the Board of Game legalized antlerless moose hunts 



on lands adjacent to the trail.       The amount of traffic on the trail increased substantially 



due to this hunt.    Many different types of vehicles use the Rex Trail including light 3- 



and   4-wheel   all-terrain   vehicles   (ATVs)   as   well   as   heavier,   large-tired   and   tracked 



vehicles. 



                In   2007    the  State  Department      of  Natural   Resources      (DNR)     received 



numerous complaints about the deteriorating condition of the trail.                   DNR personnel 



inspected the trail several times and determined that vehicular use of the trail was causing 



extensive rutting, with some ruts as deep as four feet. They noted that in some places the 



trail had essentially become a long channel filled with water.                In order to avoid ruts, 



vehicles would create new paths along the trail.             These new paths would themselves 



become rutted resulting in a continual process of widening and degradation.   The DNR 



observers concluded that the rutting of the trail made travel for ATVs and snowmachines 



both dangerous and difficult.  They also noted that the trail conditions were much worse 



than when they had checked the same route in the winter of 2002. 



        B.      Proceedings 



                In May 2008 DNR's northern region manager issued a decision restricting 



vehicles weighing more than 1,500 pounds from using the Rex Trail every year from 



April    15   to  October    31.   The    stated  goals   of  the  restrictions   were    "to  slow   the 



degradation of access conditions, reduce the risks to public safety during trail travel, and 



to reduce the potential for more significant resource damage."                The restrictions did not 



        1       (...continued) 



this statute as the Kobi-Bonnifield Trail to Tatlanika Creek. 



                                                   -3-                                               6726 


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

include the 1.5 miles of the trail nearest the Parks Highway that have been hardened for 



general vehicle use.  As grounds for the decision, DNR indicated that heavy-vehicle use 



during the summer was particularly damaging: 



                In its current unimproved state, the Rex Trail is most suitable 

                for   safe,  reliable   travel  and   most   resistant   to  damage     in 

                winter, when frozen conditions and snow cover stabilize and 

                protect     wet,   permafrost-underlain        soils.   Traditionally, 

                summer       motorized    use   by  standard    ATVs     has   not  been 

                reliable   for   continuous   access   from   the   highway   to   Wood 

                River (due to presence of wetlands and river crossings), but 

                was possible in dry years/seasons, and certainly possible in 

                discontinuous sections of the trail. 



                In response to public reports of intense seasonal motorized 

                use,   increased   travel   with   large   off-road   vehicles   (such   as 

                Nodwells and large-tired "moose buggies") and degrading 

                travel conditions on the eastern Rex Trail, DNR conducted an 

                evaluation     of   information     including    DNR     field  work    (a 

                preliminary trail condition assessment), land records, current 

                statutes   and   regulations,   scientific   studies,   varying   public 

                reports and concerns, data from other agencies, and possible 

                trail  management       options.    The    report   documenting       this 

                preliminary evaluation (attached to this decision) noted that 

                the type and intensity of motorized use of the eastern Rex 

                [T]rail has changed in recent years, that travel conditions on 

                the trail are deteriorating due to seasonal rutting and thermal 

                degradation, and that public resources are being damaged and 

                wasted due to off-trail travel.       The report also noted that the 

                resource   damage   which   contributes   to   deteriorating   travel 

                conditions cannot be attributed to a single operator or vehicle 

                type - impacts are cumulative, and public interpretations of 

                "damage" vary.        Certain conditions on the trail and nearby 

                lands     observed      this   fall   and    winter,    however,      are 

                unquestionably due to the operation of wheeled and tracked 

                vehicles larger than standard ATVs or snowmachines.                Ruts 

                in excess of 3 feet deep with tracks too wide for an ATV or 

                snowmachine to span, and wide swaths of downed trees left 



                                                   -4-                                             6726
 


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

                in   newly-created   trails   originating   from   the   Rex   represent 

                forms of travel disruption and resource damage above and 

                beyond what is possible for traditional off-road vehicles.  The 

                poor trail conditions interfere with traditional travel both in 

                summer (which has always been variable, depending on wet 

                or dry years) and in winter, which has traditionally been very 

                reliable.    Most     of  the  summer     large  equipment     use   has 

                occurred   without   DNR   permitting,   in   violation   of   current 

                regulations.  The report listed several options for both short- 

                and   long-term   management;   this   decision   is   based   on   the 

                most feasible short-term management option evaluated, given 

                the available information.[2] 



                Robert Caywood and numerous other trail users (Caywood) appealed this 



decision to the DNR commissioner. The commissioner denied the appeals on August 27, 



2009. 



                Meanwhile, on August 25, 2009, the northern region manager amended the 



restrictions to allow tracked vehicles heavier than 1,500 pounds to use the trail on an 



individual permit basis.  This modification was made "so that DNR can monitor impacts 



of this additional use."     DNR explained that "[t]he goal of the monitoring program will 



be to gather trail/travel conditions, use and impact data, and to evaluate the usefulness 



of the program for making future management decisions." 



                Caywood also appealed the amended decision to the commissioner, who 



again denied the appeal.       Caywood then appealed both decisions to the superior court. 



The superior court affirmed the commissioner, and Caywood now brings the appeal to 



this court. 



        2       State of Alaska, Department of Natural Resources, Division of Mining, 



Land and Water, Northern Region, Administrative Decision, Rex Trail - RST 119, ADL 

412566, ADL 401880 (May 12, 2008). 



                                                  -5-                                               6726 


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

III.    STANDARD OF REVIEW 



                Where   the   superior   court   has   acted   as   an   intermediate   appellate   court 

reviewing an agency decision, we review the agency decision directly.3 



                The questions in this case are whether the restrictions imposed on the use 



of the trail are (1) authorized by statute and (2) arbitrary or unreasonable.  The first 



question is a question of law to which we apply our own independent judgment without 

affording significant deference to the agency's decision.4         The second question involves 



a discretionary decision of the agency.         We review it deferentially, asking primarily 



whether the agency has taken a hard look at the problem under review and has engaged 

in reasoned decision making.5 



IV.     DISCUSSION 



        A.      Statutory And Regulatory Background 



                Under   the   Alaska   Land   Act,   the   Department   of   Natural   Resources   is 

charged with administering state lands.6       Within the Department, the Division of Mining, 



Land and Water bears this responsibility.7         Specifically, the director of the Division of 



Mining, Land and Water has the delegated authority to manage and control state lands.8 



        3      Interior Alaska Airboat Ass'n v. State, Bd. of Game , 18 P.3d 686, 689 



(Alaska 2001). 



        4       Stevenson v. Burgess, 570 P.2d 728, 731 (Alaska 1977). 



        5      Interior Alaska Airboat Ass'n , 18 P.3d at 690. 



        6       AS 44.37.020. 



        7       AS 38.05.005.     The Division of Mining, Land and Water is referred to as 



"division of lands" in the statute. 



        8       AS 38.05.035(a)(2) provides that the director shall "manage, inspect, and 



control    state  land  and   improvements      on   it  belonging   to  the  state  and  under    the 

                                                                                      (continued...) 



                                                 -6-                                           6726
 


----------------------- Page 7-----------------------

                Under AS 19.30.400(a), R.S. 2477 rights-of-way such as the Rex Trail are 



"available for use by the public under regulations adopted by the Department of Natural 

Resources . . . ."9  One such regulation is 11 Alaska Administrative Code (AAC) 51.100, 



which vests the commissioner with management authority and permits the commissioner 



to restrict right-of-way uses in order to protect public safety, the right-of-way, and the 

servient estate.10 



                The statute primarily in controversy in this case is AS 38.04.058 which 



provides: 



                The commissioner may, under terms agreed to in writing by 

                a grantee, lessee, or interest holder of state land, restrict the 



        8       (...continued) 



jurisdiction of the division." 



        9        This    is  not  true  if  the  particular  right-of-way   in  question   has   been 



transferred to the Department of Transportation and Public Facilities.              AS 19.30.400. 

This has not occurred with respect to the Rex Trail. 



        10      11 AAC 51.100(a) (2005) provides in relevant part: 



                The commissioner has management authority over the use of 

                any R.S. 2477 right-of-way that is not on the Alaska highway 

                system.  Certain land use actions on R.S. 2477 rights-of-way, 

                including    road   construction,   may    require   a  permit   under 

                11 AAC 96.010, or other authorization by the department. 

                Based on a written determination by the commissioner, the 

                commissioner will, in the commissioner's discretion, close or 

                restrict the use of an R.S. 2477 right-of-way over which the 

                commissioner has management authority in order to 



                        (1)    protect public safety; 



                        (2)    protect    the  right-of-way    and   servient   estate 

                against damage that may be caused by use during storms, 

                floods, thawing conditions, or construction and maintenance 

                operations . . . . 



                                                 -7-                                           6726
 


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

                use     of   an   easement     or   right-of-way      reserved     under 

                AS   38.04.050, 38.04.055, or other law   in   order   to   protect 

                public safety or property.       The commissioner may not agree 

                to   or  enforce    a  restriction   under   this  section   unless   the 

                restriction is narrowly tailored to achieve the protection of 

                public   safety   and   property   while   preserving   access   to   the 

                maximum extent practicable and the commissioner makes a 

                written finding identifying how the restriction will protect 

                public safety and public or private property. 



                The text of the statutes to which section .058 refers, AS 38.04.050 and 

AS 38.04.055, is set forth in the margin.11 



        11      AS 38.04.050 provides: 



                Wherever state land is surveyed for purposes of private use, 

                legal    rights-of-way     and   easements     shall  be   reserved   for 

                access   and,   where   appropriate, for   utility   services   to   each 

                parcel of land.     A right-of-way or easement shall be located 

                to assure adequate and feasible access for the purposes for 

                which the right-of-way or easement was intended.                 Where 

                necessary   and   appropriate   for   the   use   intended   or   where 

                required by local subdivision ordinances, the director shall 

                arrange for the development of surface access as part of the 

                land   availability   program.     The   direct   cost   of   local   access 

                development shall be borne by the recipient of the land unless 

                otherwise provided by state statutes or regulations. 



                AS 38.04.055 provides: 



                The commissioner shall reserve easements and rights-of-way 

                on and across land that is made available for private use as 

                necessary to reach or use public water and public and private 

                land.    An    easement     or  right-of-way     reserved    under    this 

                section shall include trails that have an established history of 

                use   for   commerce,   recreation,   transportation,   or   providing 

                access    to  a  traditional   outdoor    activity.   In   this  section, 

                "traditional     outdoor    activity"   has   the  meaning     given    in 



                                                   -8-                                             6726
 


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

                 Alaska Statute 38.04.200 limits the authority of the commissioner of the 



Department of Natural Resources to restrict traditional means of access for the purpose 



of   protecting     "aesthetic    values"    except    under   certain    conditions    and   for   certain 



            12 

purposes. 



        11	      (...continued) 



                 AS 38.04.200. 



        12	      AS 38.04.200 provides: 



                         (a)     The commissioner may not manage state land, 

                 water, or land and water so that a traditional means of access 

                 for traditional outdoor activities is restricted for the purpose 

                 of protecting aesthetic values of the land, water, or land and 

                 water or is prohibited unless the restriction or prohibition is 



                         (1)     for an area of land, water, or land and water that 

                 encompasses 640 contiguous acres or less; 



                         (2)     temporary in nature and effective cumulatively
 

                 less than eight months in a three-year period;
 



                         (3)     for the protection of public safety and public or 

                private property; 



                         (4)     for the development of natural resources and a 

                 reasonable   alternative   for   the   traditional   means   of   access 

                 across   the   land,   water,   or  land   and   water   for  traditional 

                 outdoor activities on other land, water, or land and water is 

                 available and approved by the commissioner; or 



                         (5)	    authorized by act of the legislature. 



                         (b)	    In this section, 



                         (1)     "aesthetic values" means those values that exist 

                 as an expression of the social or cultural viewpoint held by a 

                portion of the population; 



                         (2)	    "traditional means of access" means those types 

                                                                                           (continued...) 



                                                    -9-	                                             6726
 


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

                 Regulation 11 AAC 96.020, in effect since 1970, defines generally allowed 



uses   of   state   land   that   may   be   engaged   in   without   a   permit. These   include   using   a 



highway vehicle with a curb weight of up to 10,000 pounds and using a recreational off- 

road or all-terrain vehicle with a curb weight of up to 1,500 pounds.13 



        12       (...continued)
 



                 of transportation on, to, or in the state land, water, or land and
 

                 water, for which a popular pattern of use has developed; the
 

                 term    includes     flying,   ballooning,      boating,    using    snow
 

                 vehicles, operation of all-terrain vehicles, horseback riding,
 

                 mushing, skiing, snowshoeing, and walking;
 



                         (3)     "traditional     outdoor     activities"   means     those 

                 types of activities that people may use for sport, exercise, 

                 subsistence, including the harvest of foodstuffs, or personal 

                 enjoyment, including hunting, fishing, trapping, gathering, or 

                 recreational      mining,     and    that   have     historically     been 

                 conducted as part of an individual, family, or community life 

                 pattern on or in the state land, water, or land and water. 



        13       In relevant part 11 AAC 96.020 provides: 



                         (a)     A    permit    or   other   written    authorization     is 

                 required for uses and activities not appearing on the list in 

                 this   subsection.    Unless   otherwise   provided   in   (b)   of   this 

                 section   or   in   a   special   use   land   requirement   in   11   AAC 

                 96.014,     or  in  a  public   use   area   land   requirement     under 

                 11 AAC 96.016, the following land uses and activities, alone 

                 or in combination, are generally allowed uses on state-owned 

                 public    domain     land   without   any    permit    or  other   written 

                 authorization from the department, except that a land use or 

                 activity for a commercial recreation purpose requires prior 

                 registration under 11 AAC 96.018: 



                         (1)     travel or travel-related activities, as follows: 



                         (A)     hiking, backpacking, skiing, climbing, or other 

                 foot travel; 

                                                                                           (continued...) 



                                                    -10-                                              6726
 


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

        B.      The Restrictions Are Authorized By Law. 



                The northern region manager relied on AS 38.04.058 and 11 AAC 51.100 



as the authority for the initial restrictions.      The commissioner's decision of August 27, 



2009 relied on the same statutory section and regulation. 



                In his brief before us, Caywood's primary focus is on AS 38.04.058.  He 



contends that this statute only applies where a grantee, lessee, or interest holder of state 



land is involved, and only then when the grantee, lessee, or interest holder agrees in 



writing with the restrictions imposed by DNR.             He argues: 



                Reasonable application of this statute would be applying it to 

                situations where the State enters into a mineral lease and both 

                the lessee and the State agree to certain restrictions on an 

                easement running through the leasehold interest because it 

                would be unsafe for the public to cross the area in light of the 

                use of heavy equipment, explosives or strip mining on the 

                leasehold. 



        13      (...continued) 



                        (B)     bicycling; 



                        (C)     travel by horse or dogsled or with pack animals; 



                        (D)     using a highway vehicle with a curb weight of 

                up   to   10,000   pounds,   including   a   pickup   truck   and   four- 

                wheel-drive vehicle, on or off an established road easement, 

                if the use off the road easement does not cause or contribute 

                to water quality degradation, alteration of drainage systems, 

                significant rutting, ground disturbance, or thermal erosion; 



                        (E)     using a recreational-type off-road or all-terrain 

                vehicle with a curb weight of up to 1,500 pounds, including 

                a snowmachine and four-wheeler, on or off an established 

                road easement if use off the road easement does not cause or 

                contribute to water quality degradation, alteration of drainage 

                systems, significant rutting, ground disturbance, or thermal 

                erosion . . . . 



                                                  -11-                                            6726
 


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

Such   limited   applications,   Caywood   argues,   bear   no   resemblance   to   the   restrictions 



imposed on the 50-mile-long Rex Trail; therefore section .058 does not authorize the Rex 



Trail restrictions. 

                We agree that section .058 is a statute of limited application.14         It does not 



apply to this case because, among other reasons, the restrictions here were not mutually 



agreed   upon   between   the   commissioner   and   interested   grantees,   lessees,   or   interest 



holders.  We thus agree that section .058 does not supply authority to restrict the use of 



the Rex Trail. 



                But our conclusion that the restrictions on the Rex Trail could not be based 



on section .058 does not mean that the restrictions are not authorized.  They clearly are 



authorized under 11 AAC 51.100(a).  This regulation, as noted above, was promulgated 



under AS 19.30.400(a).        It recognizes the commissioner's management authority over 



R.S. 2477 rights-of-way. Specifically, the commissioner is authorized to restrict right-of- 



        14      Section .058 was added to chapter 4 of title 38 as part of a general revision 



of the statutes concerning public lands.  See Ch. 152,  14, SLA 1984.   Section .058 was 

based    on   an  amendment   suggested       by  a  large  land   owner,   Sealaska    Corporation. 

Sealaska explained the purpose of the new section as follows: 



                Under existing law, Alaska Department of Natural Resources 

                is   authorized    to   reserve   easements     across    state  lands 

                (including tidelands) as part of a land disposal or tideland 

                lease.   Existing     law   does   not  provide    authority   for  the 

                department to condition a reserved   easement or to restrict 

                public access in order to protect property or public safety. 

                This   amendment will allow the private owner or lessee to 

                cooperate with the department in setting terms and conditions 

                for public use of reserved easements to protect property or 

                public safety. 



Written testimony of Robert Loescher on S.B. 375 Before the Sen. Resources Comm., 

13th Leg., 2nd Sess. (Feb. 20, 1984). 



                                                 -12-                                           6726
 


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

way uses as necessary to promote public safety, or to protect the right-of-way or the 



servient estate from damage caused by use during thawing conditions.                  In this case the 



written decision of the DNR northern region manager, ratified by the commissioner's 



decisions on appeal, indicates that these conditions have been satisfied. 



                In addition, insofar as the right-of-way crosses state land and also because 



it is a state-owned interest in land, the general management authority delegated to the 



Division of Mining, Land and Water under AS 38.05.035(a)(2) serves as authority for 



the restrictions.   In its brief on appeal before this court the State has relied on section 



.035(a)(2),   and   other   related   provisions   of   the   Alaska   Land   Act,   arguing    that   the 



management of trails across state land falls under the general statutory duties and powers 



of   DNR.     We   agree.    We   also   note   that   even   though   DNR's   general   management 



authority was not relied upon by the agency in imposing the restrictions such authority 

nonetheless can serve as a basis for affirming the agency.15 



        C.      The Restrictions Are Not Arbitrary Or Unreasonable. 



                Caywood acknowledges that AS 38.04.200 permits restricting traditional 



means of access for the protection of public safety and property, but he argues that the 



protection of public safety and property rationale in this case is merely a ruse and the 



restrictions are "not supported by substantial evidence of restrictions necessary for public 



safety or protection of property." 



                The State responds to Caywood's reliance on AS 38.04.200 on a number 



of grounds.     One is that the statute only applies to   restrictions on access imposed to 



protect aesthetic values and the restrictions here were   not imposed for this purpose. 



"Aesthetic values" in section .200 are defined to mean "those values that exist as an 



        15      A reviewing court when affirming an administrative appeal may rely on 



legal grounds different from those actually used by the agency.                 Plumber v. Univ. of 

Alaska Anchorage , 936 P.2d 163, 165 n.1 (Alaska 1997). 



                                                  -13-                                              6726 


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

expression of the social or cultural viewpoint held by a portion of the population."16  The 



State contends that the restrictions on the Rex Trail were imposed for the purpose of 



protection of public safety and public property and that these purposes do not fall within 



the meaning of aesthetic values under the statute. 



                We agree with the State on this point.  Further, even if restrictions to protect 



public safety and property could also be categorized as for the protection of aesthetic 



values, subsection (a)(3) of section .200 excepts restrictions for the purpose of protecting 



public safety and property from the coverage of the act. 



                Caywood's   point   that   the   restrictions   are   not   supported   by   substantial 



evidence misconceives the substantial evidence standard.                 We review administrative 

adjudications to determine whether they are supported by substantial evidence.17                Policy 



decisions such as whether to impose restrictions on the use of state land are reviewed 



        16      AS 38.04.200(b)(1). 



        17      See State, Alcoholic Beverage Control Bd. v. Decker, 700 P.2d 483, 486 



(Alaska 1985): 



                Although AS 44.62.570(c) enables us to independently weigh 

                the evidence by a two-part standard, we   have consistently 

                adhered to the substantial evidence on the whole record test 

                under AS 44.62.570(c)(2) for reviewing administrative fact 

                findings in quasi judicial proceedings subject to the APA. . . . 

                Application      of  the  substantial    evidence    test  prevents    a 

                dislocation     of  the  respective    functions   of  administrative 

                agencies and the courts. . . . 



                        On the other hand, we apply the reasonable basis test 

                when     reviewing    an   agency's    discretionary    public   policy 

                decisions. 



                                                 -14-                                            6726
 


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

under the deferential reasonable basis test.18       Under this test we ask whether the decision 



is reasonable and not arbitrary.19  In making this determination courts may not "substitute 



their judgment for the judgment of the agency."20           Rather "review consists primarily of 



ensuring that the agency has taken a hard look at the salient problems and has genuinely 

engaged in reasoned decision making."21 



                We consider Caywood's argument that the restrictions are not based on 



substantial evidence to raise the question of whether the restrictions are reasonable and 



not arbitrary.   The question is easily answered.   The record amply supports the agency's 



decision that deep rutting along the Rex Trail presents a safety hazard, especially in 



winter to travelers on snowmachines. There is also record support for the conclusion that 



heavy vehicles are responsible for the worst of the rutting along the Rex Trail and that 



the resulting level of degradation is unacceptable.  Further, the record reflects that DNR 



has given considerable attention and study to the question of whether restrictions should 



be imposed on the use of the Rex Trail and if so what they should be.                     The agency 



therefore has satisfied the "hard look" and reasoned decision-making requirements of the 



reasonable basis standard. 



V.      CONCLUSION 



                For these reasons the judgment of the superior court affirming the decisions 



of the Department of Natural Resources is AFFIRMED. 



        18      Galt v. Stanton, 591 P.2d 960, 963 (Alaska 1979). 



        19      Interior Alaska Airboat Ass'n v. State, Bd. of Game , 18 P.3d 686, 690 



(Alaska 2001). 



        20      Id . 



        21      Id. 



                                                  -15-                                              6726 

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