Land plan appeal fails to sway DNR

State stands firm

Posted: Friday, May 19, 2000

State officials say they will make no changes to the new management plan for state-owned lands in the Kenai Peninsula Borough despite the pressure of a borough lawsuit.

"It's not going to happen," said Marty Rutherford, deputy commissioner of the Alaska Department of Natural Resources. "The plan is signed. It's done."

The Kenai Area Plan sets land-use classifications for state-owned land in the borough and determines which land the borough can select to complete the remaining 44,000 acres of its entitlement from the state.

John Baker, the state attorney who is handling the case, said that even before the appeal was filed, Natural Resources Commissioner John Shively offered to take all reasonable steps to resolve the borough's concerns -- if that could be done without violating the plan.

"But the state feels bound to honor the public participation that led to the area plan," Baker said. "As for the land which, as a result of the area plan, is not available for selection by the borough, the agency feels bound to honor the land classifications that are in the area plan."

Meanwhile, the case soon could start costing the borough money.

The court originally gave the state 40 days to compile its administrative record for the case. By court rules, the borough is liable for the cost, Baker said. However, neither side wanted to waste the time and money until the assembly decided whether to continue the appeal.

Both sides petitioned to extend the deadline until June 30. The court agreed, but now that deadline looms. Bruce Talbot, project manager for the Division of Mining, Land and Water, estimates that preparing the record will take at least six weeks and cost at least $30,000. He said colleagues in the Division of Oil and Gas, who have more experience with appeals, said it will take at least eight weeks.

"We can't put off preparing the record much longer," Baker said. "Standard practice is to require payment before we begin. In this case, you've got a massive record."

The appeal stems from Borough Mayor Dale Bagley's contention that the state has left mostly mountaintops, glaciers and wetlands for the borough and kept the best land for itself. In particular, he says, the borough should be allowed to select state land by Kenai and Trail lakes -- some of the peninsula's most valuable real estate. The plan recommends much of that for addition to state parks or for state retention for wildlife habitat and recreation.

On April 7, Bagley appealed the plan to Alaska Superior Court, but said he would withdraw the appeal if the assembly declined to support it. On May 2, the assembly postponed its decision. Several members said that would give the administration time to clarify its legal arguments to the assembly and negotiate concessions from the state.

The assembly has since met twice behind closed doors to discuss the appeal. In open session Tuesday, it tabled indefinitely a motion to support the appeal and planned a special meeting on the issue June 6 at 8 a.m.

"I'd like to see us negotiate with the state," Nikiski assembly member Jack Brown reiterated. "I think there are some legitimate questions about the borough's right to choose land. I think it would be in everyone's best interest to sit down one more time and see how close we are. We may not be that far apart. What I see at stake is millions of dollars worth of land that should be available to the borough."

Meanwhile, Bagley said, he is not withdrawing the appeal.

"We'll continue talking with the state," he said. "We have been talking on a regular basis."

Shively was traveling this week and could not be reached. Rutherford, though, said there have been no negotiations, and there will be no new concessions to the borough.

She said the borough has little chance of winning its appeal. The state took extensive public comments to write the plan and heard from numerous competing interests.

"I believe we made a good balance of those interests. We gave some very valuable land to the borough and retained good land for parks and habitat," she said. "It's a plan which has received a tremendous amount of support. The only problem is, the new (borough) administration didn't like it."

Any time there is litigation, there can be negotiations for an out-of-court settlement, she said.

"But we're not doing that," she said. "I'd be loathe to do that because we just finished a public process. We produced a document that reflects that balance of interests. I think it would be inappropriate to go down that road."

Bagley declined Tuesday to discuss the administration's case.

"I don't want to jeopardize anything that's been said in executive session," he said.

Borough Attorney Colette Thompson declined, too.

"We're in communication with the state. That's all I can say," she said. "If I tell you what I hope to succeed in, they'll read it in the paper and it takes all our leverage away."

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