State v. Anderson

749 P.2d 1342, 1988 Alas. LEXIS 12, 1988 WL 8622
CourtAlaska Supreme Court
DecidedFebruary 5, 1988
DocketS-1824
StatusPublished
Cited by15 cases

This text of 749 P.2d 1342 (State v. Anderson) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Anderson, 749 P.2d 1342, 1988 Alas. LEXIS 12, 1988 WL 8622 (Ala. 1988).

Opinion

OPINION

BURKE, Justice.

The single question in this appeal is whether the Department of Environmental Conservation (DEC) can validly require its *1343 approval of potential subdivision plans as a prerequisite to the recording and sale of any lots in the subdivision. Jerry Anderson, an Alaskan land surveyor and real estate broker, filed a complaint against the DEC seeking a permanent injunction against the enforcement of 18 AAC 72.-065(e) and (f) (eff. 2/3/77; am. 3/30/85). On cross-motions for summary judgment, the superior court found that those regulatory provisions conflict with state statutes which give boroughs the authority to approve subdivision plats prior to recording, and that the adoption of those regulations was beyond the DEC’s statutory authority. Judge Charles Cranston issued a final judgment invalidating subsections (e) and (f) and permanently enjoining the DEC from enforcing them. The DEC appeals. We hold that the entire regulation is valid, and thus reverse.

THE REGULATORY SCHEME

Since 1973, the DEC has had in place regulations requiring a person proposing a subdivision to submit plans to the department for a review of wastewater disposal capabilities. Currently, 18 AAC 72.065 requires a subdivision developer’s plans to show proposed sewers, wastewater treatment works and disposal systems, drinking water sources, lot and street layout, the amount of sewage that would typically be generated, the location of storm sewers, and other detailed information relevant to effective wastewater disposal. 18 AAC 72.065(a). The regulation also provides that the DEC “will issue a decision,” and “will, in its discretion, attach terms and conditions to subdivision plans needed to ensure compliance with this chapter.” 18 AAC 72.065(b), (c). Further, the “subdivi-der shall include the terms and conditions of the [DEC’s] subdivision plan approval ... on the subdivision’s plat and instruments.” 18 AAC 72.065(d). There is no question here as to the DEC’s authority to enact or enforce the foregoing provisions.

This case concerns only the validity of 18 AAC 72.065(e) and (f). Those subsections provide:

(e) The department will place its approval of the plans on the subdivision’s final plat before recording. Department approval must appear on the plat of record and recorded instruments.
(f) A person creating a subdivision may sell, contract to sell, lease, or otherwise convey an interest in any lot within that subdivision only with plan approval for that subdivision under this section.

18 AAC 72.065(e), (f).

DISCUSSION

In assessing the validity of an administrative regulation, we follow the procedure set out in Kelly v. Zamarello, 486 P.2d 906 (Alaska 1971):

[W]here an administrative regulation has been adopted in accordance with the procedures set forth in the Administrative Procedure Act, and it appears that the legislature has intended to commit to the agency discretion as to the particular matter that forms the subject of the regulation, we will review the regulation in the following manner: First, we will ascertain whether the regulation is consistent with and reasonably necessary to carry out the purposes of the statutory provisions conferring rule-making authority on the agency. This aspect of review insures that the agency has not exceeded the power delegated by the legislature. Second, we will determine whether the regulation is reasonable and not arbitrary. This latter inquiry is proper in the review of any legislative enactment.

Id. at 911. Accord Chevron U.S.A. v. LeResche, 663 P.2d 923, 926 (Alaska 1983); Kenai Peninsula Fisherman’s Cooperative v. State, 628 P.2d 897, 906 (Alaska 1981). To be effective, a regulation adopted by a state agency must be “within the scope of authority conferred and in accordance with standards prescribed by other provisions of law.” AS 44.62.020. Further,

If, by express or implied terms of a statute, a state agency has authority to adopt regulations to implement, interpret, make specific or otherwise carry out the provisions of the statute, no regulation adopted is valid or effective un *1344 less consistent with the statute and reasonably necessary to carry out the purpose of the statute.

AS 44.62.030.

Therefore, in determining the validity of 18 AAC 72.066(e) and (f), we will ascertain (1) whether the regulation is within the scope of authority conferred on the DEC; i.e., whether it is consistent with and reasonably necessary to carry out the purposes of the enabling statutes, (2) whether it is reasonable, and (3) whether it directly conflicts with any other state statute.

Finally, in considering these elements, we begin with the presumption that the administrative regulations are valid, State v. Alyeska Pipeline Service Co., 723 P.2d 76, 78 (Alaska 1986); Union Oil of California v. State, Department of Natural Resources, 674 P.2d 1266, 1271 (Alaska 1978), 1 and the burden of proving invalidity is on the challenger, in this case, Anderson.

A. Is the Regulation Within the DEC’s Scope of Authority?

The state contends that 18 AAC 72.065(e) and (f) were promulgated pursuant to authority specifically delegated to the DEC by four statutes. Alaska Statute 44.46.-020 2 gives the DEC primary responsibility for the development of policies related to Alaska's environment and for the adoption and enforcement of regulations for preventing and abating “water, land, subsurface land and air pollution, and other ... potential sources of pollution.” This statute also gives the DEC the authority to adopt regulations for preventing public health nuisances and regulating sanitary practices in the interest of public health. AS 44.46.020(5).

Second, AS 46.03.020(10) grants the DEC the authority to adopt regulations providing for the control and prevention of pollution and for the protection of public water supplies. 3

The state also finds authority in AS 46.-03.050, which grants the DEC jurisdiction to prevent water pollution. 4 Finally, AS 46.03.090 is cited as authority; that statute specifically allows the DEC to require the submission of plans for waste disposal or treatment for subdivisions. 5

*1345

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Cite This Page — Counsel Stack

Bluebook (online)
749 P.2d 1342, 1988 Alas. LEXIS 12, 1988 WL 8622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-anderson-alaska-1988.