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Alaska Best Interest Finding Process (3-AK-i)

In order for the state of Alaska to sell, lease, or otherwise "dispose" of state land, the director of the Alaska Department of Natural Resources’s Division of Mining, Land and Water (DMLW) must first determine in a written finding that the disposal is in the state’s best interests. In the written Best Interest Finding, the DMLW considers and discusses certain topics required by law, such as the reasonable foreseeable effects of the disposal on the area’s fish and wildlife, historic and cultural resources, and Alaska communities.


Best Interest Finding Process Process

3-AK-i.1 to 3-AK-i.2 - Will the Project Involve the Sale, Lease or Other Disposal of State Land?

AS 38.05.035(e)’s requirement for a Best Interest Finding applies only to the sale, lease or other disposal of state-owned lands, resources, and property, or interests in them.


3-AK-i.3 - Did the Division of Mining, Land and Water Issue a Revocable Permit or a ROW for Roads, Transmission, Etc?

A written Best Interest Finding is not required before the approval of:

  • A contract for a negotiated sale authorized under AS 38.05.115;
  • A lease of land for a shore fishery site under AS 38.05.082;
  • A permit or other authorization revocable by the commissioner (however, a finding is required before issuing a geothermal permit. See 11 AAC 84.790(b);
  • A surface use lease under AS 38.05.255; or
  • A permit, right-of-way, or easement under AS 38.05.850.
  • Includes permits, rights-of-way, and easements on state land for roads, trails, ditches, field gathering lines or transmission and distribution pipelines not subject to Alaska Stat. ch. 38.35, telephone or electric transmission and distribution lines, log storage, oil well drilling sites and production facilities for the purposes of recovering minerals from adjacent land under a valid lease. AS 38.05.035(e)(6).


3-AK-i.4 - Request Information from Agencies, Local Governments, and Native Corporations

The process of developing a best interest finding begins with a request for information from agencies, local governments, and Native corporations. The DMLW requests information and data about the region’s property ownership status, peoples, economy, current uses, subsistence, historic and cultural resources, fish and wildlife, and other natural resource values.


3-AK-i.5 - Preliminary Written Finding

The DMLW uses the information obtained from the agencies, local governments and Native Corporations, as well as other relevant information that becomes available, to develop a preliminary written finding. The preliminary written finding describes the state-lands at issue, considers and discusses the potential effects of the disposal, describes measures to mitigate those effects, and constitutes the DMLW’s determination that the interests of the state will be best served by the disposal. AS 35.05.035(e)(5)(A).


3-AK-i.6 - Public Notice and Comment

Once complete, the DMLW makes the preliminary written finding available to the public and provides an opportunity for public comment. AS 35.05.035(e)(6).

The DMLW must give notice of the disposal of state lands at least 30 days before the action by publication in newspapers of statewide circulation and in newspapers of general circulation in the vicinity of the proposed action and by one or more of the following methods:

  • Publication through public service announcements on the electronic media serving the area affected by the action;
  • Posting in a conspicuous location in the vicinity of the action;
  • Notification of parties known or likely to be affected by the action; or
  • Another method calculated to reach affected persons.

AS 38.05.945(b).

The DMLW must also provide notice of the disposal of state lands at least 30 days before the action to the following:

  1. A municipality if the land is within the boundaries of the municipality, to a coordinating body established by community councils in a municipality if the coordinating body or a community council within the area served by a coordinating body requests notice in writing: if there is no coordinating body within the municipality, notice shall be provided to each community council established by the charter or ordinance of the municipality if the land is located within the boundaries of the municipality and if the community council requests notice in writing;
  2. A regional corporation if the boundaries of the corporation as established by 43 U.S.C. 1606(a) (sec. 7(a), Alaska Native Claims Settlement Act) encompass the land and the land is outside a municipality;
  3. A village corporation organized under 43 U.S.C. 1607(a) (sec. 8(a), Alaska Native Claims Settlement Act) if the land is within 25 miles of the village for which the corporation was established and the land is located outside a municipality;
  4. The postmaster of a permanent settlement of more than 25 persons located within 25 miles of the land if the land is located outside a municipality, with a request that the notice be posted in a conspicuous location;
  5. A nonprofit community organization or a governing body that has requested notification in writing and provided a map of its boundaries, if the land is within the boundaries.

AS 38.05.945(c).


The DMLW must also provide notice of the disposal of state lands at least 30 days before the action to the following:

  1. Regional fish and game councils established under AS 16.05.260 ; and
  2. Coastal resource service areas organized under AS 46.40.110 - 46.40.210.

AS 38.05.945(d).


3-AK-i.7 - Public Hearings (If Applicable)

In addition, AS 38.05.946 provides that a municipality, an Alaska Native Claims Settlement Act (ANCSA) corporation, or nonprofit community organization may hold a hearing, which the commissioner of the Alaska Department of Natural Resources (commissioner) or his representative shall attend. The commissioner may also hold a public hearing, at his or her discretion.


3-AK-i.8 - Review and Revise Preliminary Written Finding as Needed

Once the public comment period is complete, the DMLW takes a hard look at the relevant facts and—considering issues known at the time, any comments received, and any mitigating factors—revises the preliminary written finding as needed.

The director of the DMLW (director) may impose additional conditions or limitations in a contract for the disposal of state lands as the director deems necessary, with the consent of the commissioner of the Alaska Department of Natural Resources, to best serve the interests of the state. AS 38.05.945(d).


3-AK-i.9 - Final Best Interest Finding

The DMLW determines whether or not, on balance, the lease, sale, or disposal of state land is or is not in the state’s best interest and issues a final written finding. The final written finding describes the state-lands at issue, discusses material issues that were raised during the public comment period, considers and discusses the potential effects of the disposal, describes measures to mitigate those effects, and constitutes the Director’s determination that the interests of the state will be best served by the disposal. AS 35.05.035(e)(5)(A).


3-AK-i.10 - File Request Reconsideration (Optional)?

Any person who “meaningfully participated” in the administrative review process can file a request for reconsideration by the commissioner within 20 days after the DMLW issues the final written finding. 11 AAC 02.900. The term "meaningfully participated" means that the person: (1) submitted written comment during a public comment period; or (2) presented oral testimony at a public hearing. AS 38.05.035(i).


3-AK-i.11 to 3-AK-i.12 – Does the Commissioner Affirm or Modify the DMLW’s Final Written Finding?

The commissioner may affirm the DMLW’s decision, issue a new or modified decision, or remand the matter to the DMLW for further proceedings. 11 AAC 02.020(d).


3-AK-i.13 – Appeal Final Administrative Order to the Superior Court (Optional)

The commissioner’s decision to affirm the DMLW’s decision, or to issue a new or modified decision, is considered the final administrative order. Any person who: 1) meaningfully participated in the administrative review process; and 2) requested reconsideration of the director’s final written finding, may appeal the commissioner’s final administrative order to the superior court, in accordance with 11 AAC 02.900 – Appeal and Request for Reconsideration Regulations.




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