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2006 Alaska Attorney General Reports and Opinions 1 (2006)

handle is hein.sag/sagak0011 and id is 1 raw text is: MEMORANDUM

State of Alaska
Department of Law

The Honorable Mike Menge
Alaska Department of Natural

File No.:

January 11, 2006


From: Steven G. Ross
Assistant Attorney General
Natural Resources Section

DNR Deputy Commissioner's
Authority under AS 41.14.840
to Require the Submission and
Approval of Plans and
Specifications for a Fishway or
Other Device for Efficient Fish
Passage Prior to Construction of
Any Dam or Other Obstruction
Across a Fish Stream

On behalf of the Alaska Department of Natural Resources (DNR) Office of
Habitat Management and Permitting (OHMP),' your office has requested our opinion on
whether the deputy commissioner of DNR has authority under AS 41.14.840 to require
the submission and approval of plans and specifications for a fishway or other device for
efficient fish passage prior to the construction of any dam or other obstruction across a
stream frequented by fish.2 We have also considered the following related question:
Under what circumstances is it appropriate for the deputy commissioner to exercise
discretion under the statute?
As discussed below, it is our opinion the DNR deputy commissioner has this
authority under AS 41.14.840 and that the deputy commissioner has the ability to
exercise discretion under the statute so long as that discretion is exercised consistent with
the overarching statutory responsibility to ensure efficient fish passage and protect fish.
I     OHMP is an office within DNR that works to preserve the state's fishery resources
by protecting the areas fish need to complete their life cycles. In 2003, fishway
permitting and fish habitat permitting were transferred from the Alaska Department of
Fish and Game (ADF&G), Habitat and Restoration Division, to OHMP. See Executive
Order No. 107 (2003).
2     The statute actually uses the word built, which appears to have a broader definition
than the noun construction or the verb construct. See The American Heritage Dictionary
of the English Language 250, 404-05 (3d ed. 1992).


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