Agencies May Repeal What They Can Enact: Alaska Supreme Court Affirms ADF&G Commissioner’s Implied and Delegated Authority Over Critical Habitat “Compatibility”

Agencies May Repeal What They Can Enact: Alaska Supreme Court Affirms ADF&G Commissioner’s Implied and Delegated Authority Over Critical Habitat “Compatibility”

Introduction

In State of Alaska Department of Fish & Game, Commissioner Douglas Vincent-Lang, in his Official Capacity v. Cook Inletkeeper, Friends of Kachemak Bay State Park, Kachemak Bay Conservation Society, and Alaska Quiet Rights Coalition (Alaska Supreme Court No. S-19006, Opinion No. 7788, Sept. 26, 2025), the Alaska Supreme Court resolved a high-profile dispute over the administrative power to regulate public uses in legislatively designated Critical Habitat Areas (CHAs). The case arose from the Alaska Department of Fish and Game’s (ADF&G) repeal of a regulation that had banned the use of personal watercraft (jet skis) within the Kachemak Bay and Fox River Flats CHAs. Conservation groups challenged the repeal as ultra vires, inconsistent with the statutory purpose of CHA protections, arbitrary, and procedurally tainted.

The superior court agreed with the challengers, reinstating the ban and awarding fees. The Alaska Supreme Court reversed. In a methodical opinion authored by Justice Pate, the Court held that: (1) the ADF&G Commissioner possessed implied rulemaking authority—supplemented by delegated authority from the Boards of Fisheries and Game—to promulgate the original ban and, therefore, to repeal it; (2) the CHA statute’s “compatibility” standard grants broad discretion to allow uses that do not cause significant adverse impacts, and is not a categorical prohibition on any use with any adverse effect; and (3) the repeal was reasonable and non-arbitrary under Alaska’s “hard look” review, even in the face of inconclusive science and divided staff views. The Court remanded with instructions to enter summary judgment for the State and to revisit prevailing party and fee awards.

Summary of the Opinion

  • Authority to regulate CHA uses: The Commissioner’s authority to “manage, protect, maintain, improve, and extend” fish and wildlife resources (AS 16.05.020) combined with express statutory responsibilities to implement the CHA approval system (AS 16.20.530) confers implied regulatory authority to determine compatibility of uses within CHAs.
  • Delegation from the Boards: The Boards’ statutory authority under AS 16.20.530(a) to determine which activities are subject to CHA permitting has been validly delegated to the Commissioner via jointly promulgated regulations (notably 5 AAC 95.420(b)), authorizing the Commissioner to determine whether particular activities are presumptively incompatible and require permits.
  • Power to repeal: The authority to adopt regulations necessarily implies the authority to amend or repeal them. The Commissioner could repeal the jet ski ban through the APA rulemaking process.
  • Statutory consistency: The repeal aligns with AS 16.20.500’s purpose (“protect and preserve habitat” and “restrict all other uses not compatible”). “Compatibility” is a flexible, discretionary standard; the CHA statutes contemplate allowing some uses with adverse effects when they do not cause significant adverse impacts.
  • Reasonableness and process: The Commissioner took the required “hard look,” considering scientific literature (including prior ADF&G reviews), technological changes, staff input, public comments, and interagency consultation with DNR. The repeal was not predetermined or arbitrary.
  • Management plan and interagency agreement: The repeal does not conflict with the Kachemak Bay/Fox River Flats Management Plan (incorporated by regulation) or the ADF&G–DNR cooperative agreement. Interagency agreements do not alter statutory authority, and differing rules under differing jurisdictions are not legal conflicts.
  • Disposition: Reversal of the superior court’s summary judgment; remand for entry of judgment in favor of the State and for a new determination of prevailing party/fees.

Analysis

Precedents Cited and Their Influence

  • Kelly v. Zamarello, 486 P.2d 906 (Alaska 1971). The foundational test for regulation validity: courts first ask whether the legislature intended to commit the subject matter to agency discretion; if yes, they then assess whether the rule is (1) consistent with and reasonably necessary to carry out the statutory purpose, (2) reasonable (i.e., not arbitrary), and (3) non-conflicting with other statutes. The Court used this framework to evaluate both authority and substantive validity. It also reaffirmed the presumption of validity, with the challenger bearing the burden.
  • State v. Anderson, 749 P.2d 1342 (Alaska 1988). Reinforces that validity requires consistency with enabling statutes and no direct conflicts with other statutes, and frames the “within the scope of authority” inquiry.
  • O’Callaghan v. Rue, 996 P.2d 88 (Alaska 2000). Key analogue for implied rulemaking: the Commissioner’s general authority to manage fish and game (AS 16.05.020) plus a specific statutory directive (there, salmon waste; here, CHA approvals) yields implied authority to adopt implementing rules. The Court used O’Callaghan to link AS 16.05.020 and AS 16.20.530 together as dual sources of implied rulemaking power.
  • Usibelli Coal Mine, Inc. v. State, Dep’t of Nat. Res., 921 P.2d 1134 (Alaska 1996) and Chevron U.S.A., Inc. v. LeResche, 663 P.2d 923 (Alaska 1983). Both support reading a broad grant of rulemaking authority together with specific statutory responsibilities to imply authority to regulate (e.g., royalty-setting, geophysical data). They reinforce the Court’s willingness to recognize implied authority where statutes interlock.
  • Warner v. State, Dep’t of Commerce & Economic Development, Real Estate Commission, 819 P.2d 28 (Alaska 1991). Illustrates the threshold “did the legislature commit this matter to the agency?” inquiry under the APA and Kelly, guiding the Court’s preliminary authority analysis.
  • County of Hudson v. Department of Corrections, 703 A.2d 268 (N.J. 1997); Motor Vehicle Manufacturers Association v. State Farm Mutual Auto Insurance Co., 463 U.S. 29 (1983). The Court invoked these to confirm the generally accepted principle that the power to promulgate includes the power to amend or repeal, especially as circumstances and administrations change. This undermined the superior court’s no-repeal-authority conclusion.
  • Marathon Oil Co. v. State, Dep’t of Nat. Res., 254 P.3d 1078 (Alaska 2011); Matanuska-Susitna Borough v. Hammond, 726 P.2d 166 (Alaska 1986); National Bank of Alaska v. State, Dep’t of Revenue, 642 P.2d 811 (Alaska 1982). These cases shape standards for deferential (“reasonable basis”) versus independent-judgment review of statutory interpretation and counsel weighing longstanding agency interpretations even under independent review.
  • Grunert v. State, 109 P.3d 924 (Alaska 2005); Ellingson v. Lloyd, 342 P.3d 825 (Alaska 2014); Interior Alaska Airboat Ass’n, Inc. v. State, Bd. of Game, 18 P.3d 686 (Alaska 2001). These anchor Alaska’s “hard look” review: courts scrutinize process, not policy, requiring reasoned decisionmaking but eschewing merits reweighing.
  • State v. Kenaitze Indian Tribe, 83 P.3d 1060 (Alaska 2004). Confirms agencies need not commission new studies if relevant information is already in the record and not “altogether lacking”; agencies may rely on expertise and existing materials.
  • Manning v. State, Dep’t of Fish & Game, 355 P.3d 530 (Alaska 2015) and Native Village of Elim v. State, 990 P.2d 1 (Alaska 1999). Warn against manipulating data to meet threshold prerequisites. The Court distinguished these because no public support threshold governed the repeal; comment tallies were not dispositive predicates.
  • State v. Dupier, 118 P.3d 1039 (Alaska 2005). The Court gave some weight to Attorney General opinions recognizing implied authority to implement permit programs in special areas, supporting the Commissioner’s role.

Legal Reasoning

1) Source and Scope of Authority

The Court first clarified the architecture of authority governing CHAs. While AS 16.20.500 states the overarching purpose—protect and preserve crucial habitat, restrict incompatible uses—the operational machinery is in AS 16.20.520–.530. The Boards can determine which activities must submit “plans and specifications” (AS 16.20.530(a)), and the Commissioner provides written approval as to the sufficiency of plans/specifications for anticipated uses (AS 16.20.530(b)).

Reading AS 16.20.530 alongside the Commissioner’s broad management mandate in AS 16.05.020, the Court held that ADF&G possesses implied rulemaking authority to implement the CHA approval system, including identifying activities that are presumptively incompatible and approving or disapproving them. That authority is reinforced by a valid delegation from the Boards to the Commissioner in jointly adopted regulations (notably 5 AAC 95.420(b)), which provide that the Commissioner “makes the final determination as to whether a specific activity is subject to” CHA permitting requirements. In short:

  • Implied authority: AS 16.05.020 + AS 16.20.530(b) = implied power to regulate compatibility and approve uses in CHAs.
  • Delegated authority: Under AS 16.20.530(a), the Boards’ authority to decide which activities are subject to permitting was delegated to the Commissioner by 5 AAC 95.400–.440 and 5 AAC 95.420(b).

2) The Power to Enact Includes the Power to Repeal

Having authority to adopt 5 AAC 95.310, the Commissioner also necessarily had authority to repeal it. This follows the general administrative law principle that agencies may amend or rescind their own rules through proper APA procedures. The superior court’s contrary conclusion—treating the ban as an unslayable “zombie regulation”—misapprehended administrative power and the presumption that authority to promulgate carries with it the power to repeal.

3) Consistency with CHA Statutes: “Compatibility” Is a Balancing Standard

The Court rejected a categorical reading of AS 16.20.500 that would bar any use with any adverse effect. “Compatibility” is undefined, and the statutes themselves contemplate uses with recognized impacts—e.g., oil and gas leasing in some CHAs (see AS 16.20.605(c); AS 16.20.615(e)), hunting and fishing (AS 16.20.510), “construction work” (AS 16.20.530). The Court read “compatibility” to allow expert agency balancing, consistent with dictionary definitions and the CHA framework’s design.

The Kachemak/Fox River Flats Management Plan—incorporated by regulation (5 AAC 95.610)—buttressed this interpretation. It defines “minimize” as reducing effects to a level that does not have a “significant adverse impact” on fish, wildlife, or habitat, and seeks to maintain or improve public access consistent with habitat protection. The Commissioner’s view—that compatibility tolerates some adverse effects so long as significant adverse impacts are avoided—is consistent with the Plan’s goals and definitions.

4) Reasonableness and “Hard Look” Review

The Court’s review focused on process, not policy or outcome. It found that the Commissioner:

  • Considered existing scientific literature, including ADF&G’s 2000 and 2017 reviews, and recognized limits (few studies in comparable northern marine environments; technological improvements—e.g., four-stroke engines—reducing noise and emissions; operator behavior as a main risk factor).
  • Consulted staff (who were not uniform in opposition) and DNR; received and addressed public comments in the decisional document.
  • Used the statutory “compatibility” lens and the Plan’s “significant adverse impact” threshold to weigh whether jet skis’ impacts were likely to be meaningfully worse than comparable allowed uses.

The record did not establish predetermination by the Governor or the Commissioner. Emails cited by challengers showed policy interest and drafting steps typical of rulemaking, not a closed mind. Nor did the tallying of public comments create a procedural defect; there was no legal threshold of support to meet, and the Commissioner used comments qualitatively.

Finally, the repeal neither ignored nor conflicted with the Management Plan or the ADF&G–DNR cooperative agreement. Interagency agreements cannot alter statutory authority and, in any event, the Commissioner coordinated with DNR. That DNR’s rules may continue to bar jet skis in areas under its jurisdiction does not create a legal inconsistency; it reflects ordinary jurisdictional differentiation.

Impact

  • Administrative law in Alaska:
    • Confirms and strengthens the doctrine that implied rulemaking authority can arise from the combination of a broad management mandate and specific statutory implementation duties—and that this includes the power to repeal prior rules.
    • Reaffirms the presumption of validity for regulations and the challenger’s burden to show invalidity, as well as the “hard look” standard that scrutinizes process rather than substituting judicial policy preferences.
    • Clarifies that agency policy shifts—especially after elections or technological advances—are permissible if the agency explains itself and builds a record.
  • Environmental and resource management:
    • Defines “compatibility” in CHAs as a discretionary balancing standard keyed to avoiding significant adverse impacts, not a zero-impact requirement.
    • Validates the use of management plans, incorporated by regulation, as interpretive guides—especially their definitions and dual goals of habitat protection and compatible public use.
    • Signals that, so long as reasoned, agencies may reevaluate prior science without commissioning new studies, particularly where literature is inconclusive and conditions or technology have changed.
  • Interagency roles and delegations:
    • Affirms that Boards may delegate to the Commissioner the function of determining which activities are subject to CHA permitting (5 AAC 95.420(b)), and that such delegation will be respected when jointly promulgated.
    • Emphasizes that cooperative agreements cannot override statutes or regulations; overlapping jurisdiction may yield different rules in different parcels without legal conflict.
  • Litigation posture:
    • Sets a high bar for challengers alleging predetermination; documentary evidence must show more than interest or early drafting—it must reveal an agency refusal to consider evidence and comments.
    • Suggests that “comparative impact” reasoning (is the challenged use materially different from allowed uses?) will be a robust defense in CHA compatibility disputes.

Complex Concepts Simplified

  • Implied rulemaking authority: Even if a statute does not say “the Commissioner may make regulations,” courts may infer that power when (a) an agency has a broad management duty (here, AS 16.05.020) and (b) is assigned specific implementation tasks (here, approving and conditioning uses in CHAs under AS 16.20.530). The two together can imply authority to make rules that administer the scheme.
  • Delegation by regulation: The Boards of Fisheries and Game can delegate pieces of their statutory role to the Commissioner by jointly adopting regulations that assign those tasks. 5 AAC 95.420(b) is such a delegation: it makes the Commissioner the decider of whether particular activities are subject to CHA permitting.
  • Compatibility: This is the statutory standard for allowing uses in CHAs. It is not “no impact ever.” It permits uses that do not cause significant adverse impacts on fish, wildlife, or habitat, based on expert judgment and evidence.
  • “Hard look” review: Courts ensure agencies took a serious, reasoned look at the facts and policy factors, including scientific literature, staff input, and public comment. Courts do not reweigh the merits or pick winners; they police process and rational connection.
  • Arbitrary and capricious: A decision is arbitrary if the agency ignored important aspects of the problem, contradicted the evidence, or offered an explanation that runs counter to the record. A rational, evidence-based explanation usually defeats such claims.
  • Management plan as law: When a management plan is incorporated by regulation, it can guide statutory interpretation and constrain discretion, particularly where it defines terms (e.g., “minimize,” “significant adverse impact”) and sets goals.
  • Interagency cooperative agreements: These are coordination tools; they do not, by themselves, alter statutory authority or override duly promulgated regulations.
  • Presumption of validity and burden of proof: Regulations are presumed valid. The challenger must show they are inconsistent with governing statutes, unreasonable, or in conflict with other laws.

What This Opinion Does Not Do

  • It does not decide any issue about hunting, fishing, or the Boards’ exclusive authority to regulate the taking of fish and game in CHAs (AS 16.20.510).
  • It does not foreclose future challenges if new, CHA-specific science shows significant adverse impacts from particular uses.
  • It does not supplant DNR’s separate authority to regulate uses in state parks or DNR-managed parcels within/near CHAs; differences across jurisdictions may persist.

Practical Guidance

  • For agencies:
    • When reversing course, explicitly identify the statutory touchpoints, the management plan’s definitions, and any technological or contextual changes.
    • Use comparative analysis: explain how the newly allowed use compares to other allowed uses in impact profiles.
    • Document consideration of scientific uncertainty; explain why new studies are or are not necessary, and address gaps candidly.
    • Address public comment substantively (themes, concerns), but do not treat vote-counting as a predicate.
  • For challengers:
    • Target the statutory consistency showing by demonstrating significant adverse impacts under plan definitions, ideally with CHA-specific evidence.
    • On arbitrariness, focus on omitted factors, ignored evidence, or internal inconsistencies, rather than policy disagreement alone.

Conclusion

The Alaska Supreme Court’s decision cements two important principles in Alaska administrative and environmental law. First, when the legislature creates a specialized resource management framework like CHAs, it may leave substantial room for expert agencies to define “compatibility” through rulemaking—authority that can be implied from a blend of general management powers and specific implementation duties, and that includes the power to repeal as well as to enact. Second, “compatibility” in CHAs is a balancing standard focused on preventing significant adverse impacts, not a rigid bar against any use with any impact. Where an agency builds a reasoned record that wrestles with scientific uncertainty, stakeholder input, and management plan goals, courts will not substitute their own policy judgments.

By reversing the superior court and directing entry of summary judgment for the State, the Court reaffirms agency flexibility to adapt regulations to evolving technology, science, and policy priorities, provided they adhere to statutory purpose, reasoned decisionmaking, and proper procedure. This opinion will guide future disputes at the intersection of habitat protection and public use across Alaska’s special areas.

Case Details

Comments