NORTHERN REGION FAIRBANKS AREA FORESTRY

Transcription

1 NORTHERN REGION FAIRBANKS AREA FORESTRY FOREST LAND USE PLAN AND FINAL BEST INTEREST FINDING AND DECISION FOR SKINNYS SPRUCE 4/6/2016 ADL#

2 Contents INTRODUCTION A. Purpose B. Five-Year Sale Schedule C. Location D. Title, Classification and Other Active or Pending Interests E. General Timber Sale Program Objectives II. LEGAL AUTHORITY III. ADMINISTRATIVE RECORD IV. SCOPE OF DECISION V. DISCUSSION OF ISSUES A. Physical Characteristic of the Sale Area B. Historic and Current Land Use C. Wildlife Habitat D. Fisheries and Water Quality E. Subsistence F. Recreation and Tourism G. Scenic Resources H. Cultural Resources I. Allowable Cut J. Silvicultural Prescription L. Erosion M. Mining N. Materials O. Economics VI. MARKET CONDITIONS VII. ALTERNATIVE ACTIONS VIII. PUBLIC NOTICE IX. FINAL FINDING AND DECISION X. SIGNATURE i

3 INTRODUCTION A. Purpose The purpose of this Forest Land Use Plan (FLUP) is to provide sufficient information for reviewers to ensure that the best interest of the State will be served by the Department of Natural Resources (DNR), Division of Forestry, Fairbanks Area, offering this proposed timber sale. This FLUP deals with site specific considerations of the sale. The boundaries and precise volume of the sale may be refined if and when the sale is developed. Site specific research has been completed on title considerations, land classifications, applicable land management plans, appropriate silvicultural techniques, regulatory and statutory requirements, and physical conditions that apply to the proposed sale area. The proposal is for the harvest of approximately (+/- 30%) 45 acres of land that is predicted to yield approximately (+/- 30%) 1,378 CCF of white spruce sawtimber and fuelwood. The sale design may be altered to mitigate potential conflicts. It will be the responsibility of the Forester-In- Charge to ensure that any purchaser of this sale harvests timber per the sale design and sale contract provisions and adheres to Alaska Forest Resources and Practices Act (AFRPA) best management practices. B. Five-Year Sale Schedule The general area and timber type that this proposed sale occupies has been shown as a potential sale area in the current Five-Year Schedule of Timber Sales (FYSTS) for Fiscal Years as required by AS It has been listed in previous schedules. C. Location The proposed sale units are located approximately 30 miles southwest of Fairbanks. At milepost 327 on the Parks Highway turn north and immediately east onto the secondary road. Continue for approximately 5.25 miles. At this point take the right fork which continues east for approximately 1.2 miles. From this point roughly 0.5 mile of new secondary road would need to be constructed to reach the second unit boundary. The proposed sale area is located within sections 8 and 17 of Township 2 South, Range 5 West, Fairbanks Meridian. The sale area is shown on the attached map and is within the United States Geological Survey 1:63,360 Quadrangle map titled Fairbanks C-4. D. Title, Classification and Other Active or Pending Interests The acquisition for the land upon which the sale is proposed is based on General Selection 17. There are no title restrictions on the area affecting the proposed harvest. The primary land classification for the area is Forestry per Classification Order NC The proposed sale area is within Unit 5A of the Tanana Valley State Forest (TVSF). E. General Timber Sale Program Objectives 1. Develop the State s Renewable Resources To follow the DNR s constitutional mandate to encourage the development of the State s renewable resources, making them available for maximum use consistent with 2

4 the public interest. Sustain and promote a healthy, long-term timber industry in the State, through providing a secure source of timber for harvest that produces raw materials for local manufacturing plants when practical while protecting other resources such as fish and wildlife. 2. Improve the State s Economy To help the State s economy by providing royalties to the State in the form of stumpage receipts, as well as contributions to local economies through wages, purchases, jobs, and business. 3. Improve Forest Health To improve forest growth and vigor by harvesting mature and or declining stands and replace them with new healthy regenerating stands. The stand replacement will be accomplished while protecting and maintaining other resource values. The actions authorized under this decision will follow the constitutional mandate of sustained yield and shall adhere to multiple use management as described in the Tanana Valley State Forest Management Plan. 4. Improve Wildlife Habitat Meet the statutory wildlife management objectives for the TVSF (AS (e)) that provides for the production of wildlife for a high level of sustained yield for human use through habitat improvement techniques to the extent consistent with the primary purpose of a state forest. II. LEGAL AUTHORITY The Division of Forestry is taking this action under the authority of AS (e) (Best Interest Finding); AS (Alaska Land Act Statutes); 11 AAC 71 (Timber Sale Statutes and Regulations); AS and 11 AAC 95 (Forest Resources and Practices Statutes and Regulations). III. ADMINISTRATIVE RECORD The Division will maintain an administrative record regarding the decision of whether or not to proceed with the action as proposed. This record will be maintained at the DOF s Fairbanks Office filed as. IV. SCOPE OF DECISION This best interest finding (PBIF) provides information for step three of a six-step process to design, sell, and administer timber sales. This BIF covers the sale of approximately 45 acres of spruce on state land in the Nenana Ridge area. The following list summarizes the overall process: Step 1: Regional planning. The Department of Natural Resources (DNR) develops area plans and state forest management plans to designate appropriate uses for state land, classify the land accordingly, and establish management guidelines for multiple use. These plans determine where timber sales are an allowed use, and what other uses must be considered when designing and implementing sales. Subsequent land use decisions must be consistent with the area plans. The area in this BIF is covered by the Tanana Valley State Forest Management Plan, and the BIF is consistent with this plan. 3

5 Step 2: Five-year Schedule of Timber Sales (AS ). A proposed timber sale must appear in at least one of the two Five-year Schedules preceding the sale. The land covered by this PBIF appeared in the Fairbanks Area 5 Year Schedule of Timber Sales FY Step 3: Best Interest Finding. DOF must adopt a final BIF before selling timber. A best interest finding is the decision document that: Establishes the overall area within which the timber sale may occur, Determines the amount of timber that will be offered for sale and the duration of the sale, Sets the overall harvest and reforestation strategy for the sale area, Determines whether the sale proposal complies with the Constitutional requirement to manage for sustained yield by evaluating the amount of timber in the sale and the annual allowable cut for the affected area, Selects the appropriate method of sale (i.e., competitive or negotiated sale), and Determines the appraisal method that will be used to determine the sale price. DOF is issuing a BIF covering the decision to sell approximately 45 acres of spruce from state lands within the Nenana Ridge area in a competitive sale for commercial use. This document is the BIF for Skinnys Spruce. A person affected by the final decision who provided timely written comment or public hearing testimony on the preliminary decision may appeal it, in accordance with 11 AAC 02. Step 4: Forest Land Use Plans (AS ). Prior to authorizing harvest of timber on any area greater than 10 acres, the DOF must adopt a site-specific Forest Land Use Plan (FLUP) for the harvest area. DOF is issuing a draft FLUP concurrently with the PBIF and will adopt the final FLUP following review of comments. FLUPs specify the site, size, timing, and harvest methods for harvest unit within the sale area. FLUPs also address sitespecific requirements for access construction and maintenance, reforestation, and multiple use management. FLUPs are based on additional field work, agency and community consultation, and site-specific analyses by the DOF, and are subject to public and agency review. Step 5: Timber sales and contracts. Following adoption of the final BIF, and completion of the FLUP, DOF will offer the timber for sale by auctioning a competitive sale. The Division will sign a contract with the winning bidder for each sale. The contract will include stipulations to ensure compliance with the best interest finding, FLUP, and statutory requirements. Step 6: Sale administration. DOF will administer the timber sale and conduct field inspections to ensure compliance with the final BIF, FLUP, timber sale contract, and applicable laws, including the Alaska Forest Resources and Practices Act and regulations (AS and 11 AAC 95), and forest management statutes and regulations in AS and 11 AAC 71. 4

6 V. DISCUSSION OF ISSUES A. Physical Characteristic of the Sale Area 1. Topography The first unit is on a predominantly south aspect. The hillside is uneven and consists of multiple rolling hogbacks. The elevation range of this unit is approximately 750 to 1,050 feet with slopes averaging 15 to 25%. The second unit located directly to the north lies on a western aspect. The hillside is uneven and consists of multiple rolling hogbacks. The elevation range of this unit is 750 to 1,000 feet with slopes averaging 20 %. 2. Soils Soils in the sale area are primarily classified as the Fairbanks Series. Fairbanks soils are productive upland silt loam soils that have formed in loess deposits. Fractured schist can underlie these soils at a relatively deep level of 30 to 40 inches. These are well drained soils with a high potential for erosion by water and wind when the organic mat is removed. 3. Waterbodies The sale area presents no obstacles that would prevent implementation of the best management practices of the AFRPA to maintain water quality. The timber sale is anticipated to have minimal impact on water quality, due to the location of the proposed unit in relationship to any significant surface water body. Access into both of the sale areas is of gentle grade of <5%. 4. Stand Conditions The timber stand and two units both consist primarily of fully mature white spruce with pockets of birch and aspen present. Most of the commercially viable white spruce is located along the tops of the hogbacks. The stands are at the maximum merchantable value and growth is starting to decline. Evidence of rot can be seen in pockets throughout the stand. B. Historic and Current Land Use The historic uses of land in the general area have been logging, hunting, trapping, and general trail use. The current uses of the area are recreation, wood cutting, hunting and trapping. There are recreational trails currently being used which cross the primary access road. C. Wildlife Habitat Wildlife typical of the interior are found here and during ground reconnaissance extensive moose sign was observed. Game trails are evident throughout the area. There are no known raptor nests within the proposed sale area. No critical wildlife habitat has been identified for this area (TVSF Management Plan), nor has any become apparent during ground reconnaissance. Treatments proposed for this stand are projected to enhance habitat conditions for ruffed grouse, moose, voles, hares, and ultimately, lynx, marten and fox. Snags will 5

7 be retained to provide late-successional wildlife habitat for hole nesting birds, woodpeckers, and other species requiring perching habitat. Snags are relatively unimportant to small mammals while partly decayed woody debri left from operations may be suitable ground habitat. D. Fisheries and Water Quality Best management practices will be implemented to ensure water quality standards in all water courses. Erosion will be mitigated by backfilling skid trails with debris and through the installation of water bars if necessary. Harvest operations will be avoided during spring break-up and extremely wet time periods to mitigate erosion issues, but water bars will be installed if deemed necessary. Road construction will be necessary to access the northern unit and maintenance of the existing road will be required. E. Subsistence The sale area is within the Fairbanks Nonsubsistence Use Area. The proposed sale of timber is anticipated to have no deleterious effects on subsistence activities. Subsistence activities of fishing, trapping, hunting and gathering of berries and other non timber forest products may occur on State owned lands. F. Recreation and Tourism Recreation use of this area is moderate, but not inconsistent with a timber sale. Primarily it consists of hunting and trapping activity, as well as some recreational snowmachining, ATV riding and dog mushing. Where trail use utilizes existing winter roads needed for access, sufficient snow cover will be left on the roads to enable continued winter recreational use. Cross trails will be kept free of either snow filled or brush filled berms. G. Scenic Resources The sale is located north of the of the Parks highway and is not anticipated to be visible from the highway. It may be visible from some ridge line and valley bottom trails. Leave trees and residuals will somewhat obscure the harvest area and help blend the cut border with existing landscape. H. Cultural Resources The TVSF Management Plan does not list any historic cultural or archaeological sites in the vicinity of the proposed harvest. During the course of activities associated with this timber sale, cultural and/or paleontological resources may be inadvertently discovered. Should such discovery occur, these sites shall be protected from further disturbance and OHA will be contacted immediately so that compliance with state laws governing cultural resources may begin. Under the Alaska Historic Preservation Act (AS 41.35), all burials on state land are protected. If burials or human remains are found, all land altering activities that would disturb the burial or remains shall cease and measures taken to protect it in 6

8 place. OHA and a law enforcement officer will be notified immediately to ensure that proper procedures for dealing with human remains are followed. I. Allowable Cut The Annual Allowable Cut (AAC) is the amount that can be harvested from forest land managed for forestry purposes in a year under sustained yield management. The AAC in the Fairbanks Area is outlined in the publication Timber Inventory of State Forest Lands in the Tanana Valley (Hanson, 2013). This sale complies with sustained yield/allowable cut principles outlined in the Fairbanks Area Five-Year Schedule of Timber Sales for FY The AAC for the Fairbanks Management Area is approximately 4,606 acres. The AAC will not be exceeded for this proposed sale. J. Silvicultural Prescription 1. Stand Silvics Merchantable tree species here in the Tanana Valley generally include white spruce, aspen, balsam poplar and birch. Silvicultural harvest systems that facilitate evenaged (natural) management are generally preferred. They mimic the ecological impact of wildfire and other disturbances and result in the greatest increase in site productivity. Even-aged management is normally accomplished through clear-cuts, patch cuts, and heavy partial cuts (such as seed tree or shelterwood systems) which open up the site to maximum solar gain. This management system results in the greatest production of both young hardwood, that is important to wildlife, and the spruce understory which is valuable years later as timber. Even-aged management techniques are utilized to provide young, vigorously growing stands in juxtaposition to older, undisturbed stands. Such placement of harvest units can optimize natural seeding and the edge effect. 2. Specific Management Objectives Utilize the current commercial value of this timber stand before existing defect leads to further damage and more stem rot and insects are introduced, and then return this site to a productive mixed forest at an equal or greater basal area than currently exists. The overall stand composition is primarily white spruce sawtimber and fuelwood. Attempt to improve vigor by replacing the aging older white spruce with younger faster growing trees. White spruce smaller than 6 inches would be reserved from harvest and would serve as future crop trees in any subsequent entry to the stand. Those trees that are younger, rather than just smaller, may benefit from release. The intent is to return the site to a productive, naturally even-aged, diverse mixed-species stand at an equal or greater basal area than currently exists. It is reasonable to assume that these objectives will be realized under the recommended prescription with some supplemental planting of white spruce if necessary. 3. Harvest Methods The sale will be harvested by a heavy partial cut (diameter limit) silvicultural system. All spruce 6 DBH or larger will be removed. Snags, aspen and birch will not be cut. Residual trees will be protected from damage during harvest operations. Harvesting will be by the whole tree yarding system. Slash disposal at the landings will be by burning or by salvage for fuel wood use. 7

9 4. Regeneration Scarification beyond the normal mechanical crushing associated with logging operations is anticipated to be included in the sale to encourage regeneration of the stand. Under this harvest system, natural regeneration of hardwoods should be increased due to increased light and soil temperatures. Birch and aspen, either as residuals from within the unit or adjacent trees outside of the unit, will provide abundant seed. White spruce will provide also provide a seed source. A regeneration survey will be conducted three years after any harvest to ensure a stocking level that meets the standards of 11 AAC (b 4). K. Transportation The proposed sale is located approximately 30 miles southwest of Fairbanks. At milepost 327 on the Parks Highway turn north and immediately east onto the secondary road. Continue for approximately 5.25 miles. At this point take the right fork which continues east for approximately 1.2 miles. From this point roughly 0.5 mile of new secondary road would need to be constructed eastward to reach the northern unit boundary. No new construction is needed for access to the southern unit as it is along the main access road. All secondary access road will be maintained to AFRPA standards. L. Erosion There are two soil erosion concerns: surface erosion and mass wasting of soil and debris. Road construction and poor maintenance of roads primarily causes surface erosion. To avoid erosion, debris will be placed back onto skid trails and water bars installed if necessary. Harvesting will be suspended during periods of thawing soil conditions to assure there is minimal soil disturbance. The location of skid trails will optimize skidding distances and provide for adequate landing areas. The other aspect of erosion (mass wasting and debris avalanches) normally occurs on slopes of more than 70 percent therefore is not a particular concern because the proposed timber sale area does not reach that grade. M. Mining This sub-unit of the TVSF has moderate levels mineral activity. More detailed information on subsurface resource use is found in the TVSF Management Plan. Other than possibly sharing the same access road, this sale will have no impact on the potential mining resources or mining activity in this area. N. Materials No rock materials will be required for the construction of access roads. O. Economics In addition to generating royalties to the State s general fund, the proposed sale will create economic benefits to the Fairbanks North Star Borough, the Community of Nenana, and to other locations in Alaska. The Borough business community will receive direct economic benefits from providing support services for the operators 8

10 through sales of fuel, food, housing, medical and miscellaneous supplies. The sale is expected to benefit the local economy by providing jobs. The residents of the Borough will receive an indirect benefit through taxes paid to cities and the Borough by the operator and employees during the course of the timber harvest operation. The sale is expected to benefit the local economy by providing jobs. It will have a positive impact on local employment by generating significant man-hours of work associated with the harvest and transportation of wood products from this sale. Additionally the public may benefit from access to additional personal use fuel wood areas. VI. MARKET CONDITIONS Interior Alaska continues to have a strong demand for white spruce sawtimber and local lumber mills and loggers have adapted their strategies to meet that demand. Even as heating oil has dropped in price locally, it continues to be more costly in the interior than the national average therefore residents are looking for an alternative and the only affordable one is wood. Local businesses are currently producing wood pellets as an alternative to traditional firewood. This market addresses an ongoing air quality issue in the Fairbanks area because these manufactured pellets produce almost no emissions. As this market continues to grow, the demand for material will increase. Other businesses are also looking into the use of biomass as a feedstock for producing electricity and heating alternatives in rural Alaska. With improvements in wood stove technology for reducing emissions, firewood is also a viable alternative to heating oil. The demand for firewood has remained strong in the past few years and will likely continue to do so. Local suppliers of firewood continue to have a demand for accessible timber sales to deliver their product. Residential construction and commercial operations throughout Alaska still need sawn products to support their operations. Local businesses that produce these products continue to pay for the delivered material. These three markets create jobs in the forest products industry. Loggers, log truck drivers, commercial firewood cutters and mill workers all benefit from a sustainable timber market. This sale will provide the material needed to sustain these industries. As the economy continues to rebound there will be more demand for the products that this sector of the labor force provides. VII. ALTERNATIVE ACTIONS After a review of the material and information discussed above, the following alternatives have been considered: 1. To continue the sale(s) as proposed. This alternative meets the objectives of the Five-Year Schedule of Timber Sales and DNR S constitutional mandate. It also meets the silvicultural objective of improving forest vigor, provides for a value-added end product and creates additional jobs in 9

11 Alaska due to the combination of road building, logging, and trucking. This alternative also complies with the management objectives of the TVSF Management Plan for Unit 5A. 2. To modify the sale(s) by making them smaller or larger. The proposed sale unit is a logical setting for typical commercial logging equipment in Interior Alaska. The size of the sale is designed to be large enough to be economically viable considering access development and mobilization costs and distance to processing facilities. Sales of this size are appropriately balanced to maintain other resource values as well as provide economic benefits to the Tanana Valley. 3. Defer the sale of this timber to a later date. Deferring harvest to a later date would fail to meet many of the objectives of the sale program. One of the main objectives is to make State-owned timber consistently available to the timber industry. 4. Do not offer this timber for sale. This alternative would result in not meeting any of the objectives outlined for this management action. Utilization of the forest resource would not be achieved. There would be no significant contribution to the State and local economies. This alternative would delay the management objectives planned for the area, deny making a source of raw materials available to the local wood products industry, and would delay the harvest of mature trees, prior to the onset of disease or insect infestation. VIII. PUBLIC NOTICE The preliminary best interest finding and decision was publicly noticed in compliance with AS Notice was posted on the Alaska Online Public Notice System as well as both physical and electronic mailing lists. IX. FINAL FINDING AND DECISION After due consideration of all pertinent information and alternatives, the DNR has reached the following decision: To offer for sale approximately 45 acres of white spruce to provide sawtimber and fuelwood as proposed in Alternative 1 and described in the PBIF. The DOF finds that this decision satisfies the objectives stated in this document and it is in the best interest of the State to proceed with this action under its authority of AS (e) (Powers and Duties of the Director) & AS ; 11 AAC 71 (Timber Sale Statutes and Regulations; and AS and 11 AAC 95 (Forest Resources and Practices Statutes and Regulations). X. SIGNATURE Paul Keech, Fairbanks-Delta Area Forester Alaska Division of Forestry Date 10

12 Skinnys Spruce PBIF Comment Matrix Commenter Date Received Comment Action ADF&G Division of Habitat Jim Durst DEC, Division of Water Kevin Hanley DNR, DMLW, Northern Region Dianna Leinberger Alaska State Historic Preservation Office/Office of History and Archaeology Mckenzie S. Johnson 3/9/2016 2/10/2016 3/14/2016 4/16/2015 Change language in the Discussion of Issues to reflect the importance of snags on small mammals and that the area is in a Fairbanks Nonsubsistence Use designation. No significant concerns regarding water quality. Greater specificity should be given to whether roads are considered short term or long term with the understanding that DOF will coordinate with DMLW. Continue to allow for generally allowed uses (GAU, 11 AAC ) No reported cultural resource sites within the timber sale area. Changes reflect the comments in the final document. None. DOF will coordinate closer with DMLW on road designations and our current road standards are currently under review. DOF will continue to allow for generally allowed uses in accordance with 11 AAC DOF will report any finding of such sites. 11

13 I. APPEALS A person affected by this decision who provided timely written comment or public hearing testimony on this decision may appeal it, in accordance with 11 AAC 02. Any appeal must be received by 5/1/2016 and may be mailed or delivered to Mark Myers, Commissioner, Department of Natural Resources, 550 W. 7th Avenue, Suite 1400, Anchorage, Alaska 99501; faxed to , or sent by electronic mailto: dnr.appeals@alaska.gov. If no appeal is filed by that date, this decision goes into effect as a final order and decision on 5/11/2015. An eligible person must first appeal this decision in accordance with 11 AAC 02 before appealing this decision to Superior Court. A copy of 11 AAC 02 is enclosed. If you have any questions, please contact Kevin Meany, II. APPENDICES APPENDIX I. APPEAL AND REQUEST FOR RECONSIDERATION REGULATIONS Note: "Appeal" means a request to the commissioner to review a decision that the commissioner did not sign or cosign. "Request for reconsideration" means a petition or request to the commissioner to review an original decision that the commissioner signed or cosigned. TITLE 11. NATURAL RESOURCES. CHAPTER 02. APPEALS. 11 AAC APPLICABILITY AND ELIGIBILITY. (a) This chapter sets out the administrative review procedure available to a person affected by a decision of the department. If a statute or a provision of this title prescribes a different procedure with respect to a particular decision, that procedure must be followed when it conflicts with this chapter. (b) Unless a statute does not permit an appeal, an applicant is eligible to appeal or request reconsideration of the department's decision on the application. An applicant is eligible to participate in any appeal or request for reconsideration filed by any other eligible party. (c) If a statute restricts eligibility to appeal or request reconsideration of a decision to those who have provided timely written comment or public hearing testimony on the decision, the department will give notice of that eligibility restriction as part of its public notice announcing the opportunity to comment. (d) If the department gives public notice and allows a public comment period of at least 30 days on a proposed action, and if no statute requires opportunity for public comment, the department may restrict eligibility to appeal or request reconsideration to those who have provided timely written comment or public hearing testimony on the proposed action by including notice of the restriction as part of its public notice announcing the opportunity to comment. (e) An eligible person affected by a decision of the department that the commissioner did not sign or cosign may appeal the decision to the commissioner within the period set by 11 AAC (f) An eligible person affected by a decision of the department that the commissioner signed or cosigned may request the commissioner's reconsideration within the period set by 11 AAC (g) A person may not both appeal and request reconsideration of a decision. (Eff. 11/7/90, Register 116; am 9/19/2001, Register 159) 12

14 Authority: AS AS AS AS AS AS AS AS AS AS AS AS AS AS AS AAC COMBINED DECISIONS. (a) When the department issues a combined decision that is both a final disposal decision under AS (e) and any other decision, including a disposal decision combined with a land use plan decision, or a disposal decision to grant certain applications combined with a decision to deny others, the appeal process set out for a disposal decision in AS (i) - (m) and this chapter applies to the combined decision. (b) Repealed 12/27/2012. (Eff. 9/19/2001, Register 159; am 12/27/2012, Register 204) Authority: AS AS AS AS AS AS AS AS AAC FINALITY OF A DECISION FOR PURPOSES OF APPEAL TO COURT. (a) Unless otherwise provided in a statute or a provision of this title, an eligible person must first either appeal or request reconsideration of a decision in accordance with this chapter before appealing a decision to superior court. (b) The commissioner's decision on appeal is the final administrative order and decision of the department for purposes of appeal to the superior court. (c) The commissioner may order or deny a request for reconsideration within 30 calendar days after issuance of the decision, as determined under 11 AAC (c)-(e). If the commissioner takes no action during the 30-day period, the request for reconsideration is considered denied. Denial of a request for reconsideration is the final administrative order and decision of the department for purposes of appeal to the superior court. (d) If the commissioner timely orders reconsideration of the decision, the commissioner may affirm the decision, issue a new or modified decision, or remand the matter to the director for further proceedings. The commissioner's decision, other than a remand decision, is the final administrative order and decision of the department for purposes of appeal to the superior court. (Eff. 11/7/90, Register 116; am 9/19/2001, Register 159) Authority: AS AS AS AS AS AS AS AS AS AS AS AS AS AS AS AAC FILING AN APPEAL OR REQUEST FOR RECONSIDERATION. (a) An appeal or request for reconsideration under this chapter must (1) be in writing; (2) be filed by personal service, mail, fax, or electronic mail; (3) be signed by the appellant or the appellant's attorney, unless filed by electronic mail; an appeal or request for reconsideration filed by electronic mail must state the name of the person appealing or requesting reconsideration and a single point of contact to which any notice or decision concerning the appeal or request for reconsideration is to be sent; 13

15 (4) be correctly addressed; (5) be timely filed in accordance with 11 AAC ; (6) specify the case reference number used by the department, if any; (7) specify the decision being appealed or for which reconsideration is being requested; (8) specify the basis upon which the decision is challenged; (9) specify any material facts disputed by the appellant; (10) specify the remedy requested by the appellant; (11) state the address to which any notice or decision concerning the appeal or request for reconsideration is to be mailed; an appellant may also provide a telephone number where the appellant can be reached during the day or an electronic mail address; an appeal or request for reconsideration filed electronically must state a single address to which any notice or decision concerning the appeal or request for reconsideration is to be mailed; (12) identify any other affected agreement, contract, lease, permit, or application by case reference number, if any; and (13) include a request for an oral hearing, if desired; in the appeal or request for reconsideration, the appellant may include a request for any special procedures to be used at the hearing; the appeal or request for reconsideration must describe the factual issues to be considered at the hearing. (b) At the time an appeal is filed, and up until the deadline set out in 11 AAC (a) to file the appeal, an appellant may submit additional written material in support of the appeal, including evidence or legal argument. (c) If public notice announcing a comment period of at least 30 days was given before the decision, an appellant may not submit additional written material after the deadline for filing the appeal, unless the appeal meets the requirement of (a) of this section and includes a request for an extension of time, and the department determines that the appellant has shown good cause for an extension. In considering whether the appellant has shown good cause, the department will consider factors including one or more of the following: (1) comments already received from the appellant and others; (2) whether the additional material is likely to affect the outcome of the appeal; (3) whether the additional material could reasonably have been submitted without an extension; (4) the length of the extension requested; (5) the potential effect of delay if an extension is granted. (d) If public notice announcing a comment period of at least 30 days was not given before the decision, an appellant may submit additional written material after the deadline for filing the appeal, if the appeal meets the requirements of (a) of this section and includes a notice of intent to file the additional written material. The department must receive the additional written material within 20 days after the deadline for filing the appeal, unless the appeal also includes a request for an extension of time, and the department determines that the appellant has shown good cause for an extension. In considering whether the appellant has shown good cause, the department will consider factors including one or more of the following: (1) comments already received from the appellant and others; (2) whether the additional material is likely to affect the outcome of the appeal; (3) whether the additional material could reasonably have been submitted without an extension; (4) the length of the extension requested; (5) the potential effect of delay if an extension is granted. (e) At the time a request for reconsideration is filed, and up until the deadline to file a request for reconsideration, an appellant may submit additional written material in support of the request for 14

16 reconsideration, including evidence or legal argument. No additional written material may be submitted after the deadline for filing the request for reconsideration. (f) If the decision is one described in 11 AAC (c), an appellant who believes a stay of the decision is justified may ask for a stay as part of the appeal or request for reconsideration. The appellant must include an argument as to why the public interest requires a stay. (Eff. 11/7/90, Register 116; am 9/19/2001, Register 159) Authority: AS AS AS AS AS AS AS AS AS AS AS AS AS AS AS Editor's note: The address for an appeal or request for reconsideration by personal service and by mail is: Department of Natural Resources, Commissioner's Office, 550 W. 7th Avenue, Suite 1400, Anchorage, Alaska The number for an appeal or request for reconsideration by fax is: The electronic mailing address for an appeal or request for reconsideration by electronic mail is: dnr.appeals@alaska.gov. 11 AAC TIMELY FILING; ISSUANCE OF DECISION. (a) To be timely filed, an appeal or request for reconsideration must be received by the commissioner's office within 20 calendar days after issuance of the decision, as determined under (c) or (d) of this section, unless another period is set by statute, regulation, or existing contract. If the 20th day falls on a day when the department is officially closed, the appeal or request for reconsideration must be filed by the next working day. (b) An appeal or request for reconsideration will not be accepted if it is not timely filed. (c) If the appellant is a person to whom the department delivers a decision by personal service or by certified mail, return receipt requested, issuance occurs when the addressee or the addressee's agent signs for the decision. If the addressee or the addressee's agent neglects or refuses to sign for the certified mail, or if the address that the addressee provided to the department is not correct, issuance by certified mail occurs when the decision is deposited in a United States general or branch post office, enclosed in a postage-paid wrapper or envelope, addressed to the person's current address of record with the department, or to the address specified by the appellant under 11 AAC (a)(11). (d) If the appellant is a person to whom the department did not deliver a decision by personal service or certified mail, issuance occurs (1) when the department gives public notice of the decision; or (2) if no public notice is given, when the decision is signed; however, the department may state in the decision a later date of issuance and the corresponding due date for any appeal or request for reconsideration. (e) The date of issuance constitutes delivery or mailing for purposes of a reconsideration request under AS (d) or AS (a). (Eff. 11/7/90, Register 116; am 9/19/2001, Register 159) Authority: AS AS AS AS AS AS AS AS AS AS AS AS AS AS AS

17 11 AAC HEARINGS. (a) The department will, in its discretion, hold a hearing when questions of fact must be resolved. (b) The hearing procedure will be determined by the department on a case-by-case basis. As provided in 11 AAC (a)(13), any request for special procedures must be included with the request for a hearing. (c) In a hearing held under this section (1) formal rules of evidence need not apply; and (2) the hearing will be recorded, and may be transcribed at the request and expense of the party requesting the transcript. (Eff. 11/7/90, Register 116) Authority: AS AS AS AS AS AS AS AS AS AS AS AS AS AAC STAYS; EXCEPTIONS. (a) Except as provided in (c) and (d) of this section, timely appealing or requesting reconsideration of a decision in accordance with this chapter stays the decision during the commissioner's consideration of the appeal or request for reconsideration. If the commissioner determines that the public interest requires removal of the stay, the commissioner will remove the stay and allow all or part of the decision to take effect on the date set in the decision or a date set by the commissioner. (b) Repealed 9/19/2001. (c) Unless otherwise provided, in a statute or a provision of this title, a decision takes effect immediately if it is a decision to (1) issue a permit, that is revocable at will; (2) approve surface operations for a disposal that has already occurred or a property right that has already vested; or (3) administer an issued oil and gas lease or license, or an oil and gas unit agreement. (d) Timely appealing or requesting reconsideration of a decision described in (c) of this section does not automatically stay the decision. However, the commissioner will impose a stay, on the commissioner's own motion or at the request of an appellant, if the commissioner determines that the public interest requires it. (e) A decision takes effect immediately if no party is eligible to appeal or request reconsideration and the commissioner waives the commissioner's right to review or reconsider the decision. (Eff. 11/7/90, Register 116; am 9/19/2001, Register 159) Authority: AS AS AS AS AS AS AS AS AS AS AS AS AS AS AAC WAIVER OF PROCEDURAL VIOLATIONS. The commissioner may, to the extent allowed by applicable law, waive a requirement of this chapter if the public interest or the interests of justice so require. (Eff. 11/7/90, Register 116; am 9/19/2001, Register 159) Authority: 16

18 AS AS AS AS AS AS AS AS AS AS AS AS AS AS AS AAC DEFINITIONS. In this chapter, (1) "appeal" means a request to the commissioner to review a decision that the commissioner did not sign or cosign; (2) "appellant" means a person who files an appeal or a request for reconsideration. (3) "commissioner" means the commissioner of natural resources; (4) "decision" means a written discretionary or factual determination by the department specifying the details of the action to be allowed or taken; (5) "department" means, depending of the particular context in which the term is used, the Department of Natural Resources, the commissioner, the director of a division within the Department of Natural Resources, or an authorized employee of the Department of Natural Resources; (6) "request for reconsideration" means a petition or request to the commissioner to review an original decision that the commissioner signed or cosigned. (Eff. 11/7/90, Register 116; am 9/19/2001, Register 159) Authority: 17

19 AS AS AS AS AS AS AS AS AS AS AS AS AS AS AS Little Ag Spruce FLUP/Preliminary Finding NC-1289-F 1