Alaska Community Action on Toxics v. Hartig ( 2014 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA COMMUNITY ACTION ON )
TOXICS, ALASKA SURVIVAL, and )
COOK INLETKEEPER, )
) Supreme Court Nos. S-14823/14863/
Appellants/Cross-Appellees, ) 14873
v. )
) Superior Court No. 3PA-11-01604 CI
LAWRENCE HARTIG, )
COMMISSIONER OF THE ALASKA ) OPINION
DEPARTMENT OF ENVIRONMENTA L)
CONSERVATION (in his official )
No. 6879 - March 21, 2014
capacity), and ALASKA DEPARTMENT )
OF ENVIRONMENTAL )
CONSERVATION, DIVISION OF )
ENVIRONMENTAL HEALTH, and )
ALASKA RAILROAD CORPORATION ,)
)
Appellees/Cross-Appellants. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Palmer, Kari Kristiansen, Judge.
Appearances: Paul H. Bratton, Law Offices of Paul H.
Bratton, Talkeetna, for Appellants/Cross-Appellees. Laura
Fox, Assistant Attorney General, Anchorage, and Michael C.
Geraghty, Attorney General, Juneau, for Appellees/Cross-
Appellants Lawrence Hartig, Commissioner, and the Alaska
Department of Environmental Conservation, Division of
Environmental Health. Brian J. Stibitz, Reeves Amodio
LLC, Anchorage, for Appellee/Cross-Appellant Alaska
Railroad Corporation.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
MAASSEN, Justice.
I. INTRODUCTION
This appeal involves the issuance of a permit by the State Department of
Environmental Conservation, Division of Environmental Health (the Department), to the
Alaska Railroad Corporation for the use of herbicides to control vegetation along a
railroad right-of-way. Two public interest organizations, Alaska Community Action on
Toxics (ACAT) and Alaska Survival, contend that the Department’s issuance of the
permit violated due process and the public notice requirement of AS 46.03.320; that the
Department abused its discretion in accepting the permit application as complete and in
denying standing and intervenor status to a third organization, Cook Inletkeeper; and that
ACAT and Alaska Survival should not have been ordered to pay the costs of preparing
the administrative record on appeal. The Department and the Railroad cross-appeal on
the issue of attorney’s fees, contesting the superior court’s conclusion that ACAT and
Alaska Survival were exempt from fees under AS 09.60.010(c) as constitutional litigants.
We conclude that the challenges to the permit are moot due to its expiration and changes
in the governing regulatory scheme. We affirm the agency’s decisions regarding costs;
the cross-appeals on attorney’s fees are withdrawn by agreement.
II. FACTS AND PROCEEDINGS
A. Facts
Federal safety regulations require that the Alaska Railroad Corporation
control the growth of vegetation along its tracks.1 In 2009, when the Railroad applied
for the permit involved in this case, it had not used herbicides to control the growth of
1
See 49 C.F.R. § 213.37 (2012).
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vegetation since 1983; it had used non-chemical methods such as “mechanized rail-based
brush cutters, off-rail hydro axing, [and] wayside manual cutting,” and it had
experimented with other alternatives “such as steam, infrared, hot water and burning.”2
In April 2009, however, the Federal Railroad Administration (FRA) expressed concern
about the condition of the Railroad’s tracks, especially vegetation growing between the
rails that these alternative abatement methods had failed to control. The FRA cited “947
defects and 74 violations for vegetation safety issues” since 1997, observed that track
conditions “continue to get worse,” and warned that “civil penalties may be assessed at
the maximum level of $16,000 per violation.” The FRA further advised that other
possible enforcement mechanisms included an emergency order that would remove non­
compliant tracks from service.
The Department has the statutory authority to “regulate and supervise the
distribution, application, or use of pesticides and broadcast chemicals . . . by a public
agency under the jurisdiction of the state” or to prohibit their use.3 A then-existing
regulation prohibited government entities from applying pesticides on state rights-of-way
without first obtaining a permit.4 The Railroad accordingly submitted an application to
the Department in May 2009, seeking a permit for the chemical treatment of its right-of­
way. It sought to apply an herbicide called AquaMaster and a surfactant called Agri­
2
The Railroad had applied for an herbicide permit in June 2006, but the
Department denied the request.
3
See AS 46.03.320.
4
18 Alaska Administrative Code (AAC) 90.500 (repealed March 7, 2013).
“Pesticides,” as broadly defined, include, among other things, insecticides, fungicides,
and herbicides.
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Dex5 to various sections of track in the 90 miles between Seward and Indian, as well as
the spur line to Whittier and 30 acres of land in its yard in Seward. The chemicals were
to be broadcast, with the spray confined to the eight-foot width of the track bed; the total
area treated was to be 58.8 acres. The proposal also allowed for a 100-foot buffer zone
around all bodies of water. The Railroad sought to begin applying the chemicals in June
2010.
Public notice and comment occurred from July 16 to September 15, 2009.
The Department then granted the Railroad’s application, and on April 30, 2010, it issued
Permit to Apply Pesticides #10-SOL-01, which was effective for two years commencing
June 9, 2010. The Department at the same time issued a 49-page response to concerns
raised by the public and an 18-page Decision Document explaining the basis for its grant
of the permit. The decision concluded in part that “[the Railroad] presented a complete
permit application to [the Department]” and that “existing scientific evidence and other
available information demonstrate that there will be no unreasonable adverse effect
expected from the proposed activity.”
B. Proceedings
1. Request for adjudicatory hearing and stay
On June 1, 2010, ACAT, Alaska Survival, and Cook Inletkeeper, along
with several other organizations that are no longer involved in the case, requested an
adjudicatory hearing. The groups argued that issuance of the permit violated the Alaska
Constitution as well as several statutes and regulations; that the Railroad’s permit
application was incomplete because it failed to provide basic and critical information;
5
A surfactant is a chemical solution that is mixed with the herbicide and
intended to improve its dispersal and application. According to the Department, the
surfactant Agri-Dex was “approved for aquatic use by Washington State” and was “not
expected to be [a source] of water contamination.”
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that grant of the permit would adversely affect environmental and human health; and that
the Department’s decision to grant the permit was arbitrary, especially in light of
available alternatives to the use of herbicides. Citing their due process rights and the
significant material facts in dispute, the groups also asked that operations under the
permit be stayed while they exhausted their administrative remedies.
On June 30, 2010, Commissioner Larry Hartig denied the requested stay
for the most part but granted it with respect to seven milepost locations alleged to be
within 200 feet of groundwater wells that the Railroad’s application had failed to
identify. The groups timely appealed the Commissioner’s decision to the superior court
and filed an emergency motion for a temporary restraining order. The superior court
affirmed the Commissioner’s decision, finding substantial evidence to support his
findings and affirming his assessment that the groups were unlikely to prevail on the
merits. But to ensure that the groups had the opportunity to appeal to this court, the
superior court stayed the herbicide operation until July 15, 2010.
This court denied the groups’ petition for review, and the Railroad applied
the chemicals in compliance with its permit.
In August 2010, the Department addressed the groups’ request for an
adjudicatory hearing, granting it in part and denying it in part. Although the Department
accepted that ACAT and Alaska Survival had standing, it found that Cook Inletkeeper,
along with other groups not involved in this appeal, failed to meet “the minimal burden
of explaining how their interests would be affected by the decision” as required by 18
AAC 15.200(a)(3)(A). The Department then ordered two separate proceedings: a
hearing on the existing record under 18 AAC 15.220(b)(3) and an adjudicatory hearing
under 18 AAC 15.220(b)(1). The hearing on the record was intended to address the
primarily legal issues of (1) whether the Department “reasonably exercised its discretion”
in accepting the Railroad’s application as complete; (2) whether the Railroad was
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required to list the water bodies within 200 feet of the proposed treatment area; and (3)
whether the Department applied statutes and regulations “in an unconstitutional manner”
during the permitting process. The adjudicatory hearing, an evidentiary proceeding, was
intended to decide the factual issues of whether herbicide application “in proximity to
any wells” and “in compliance with the permit” posed unreasonable risks to humans and
the environment.
Cook Inletkeeper, along with the other organizations denied standing,
requested reconsideration of the decision or, in the alternative, permission to intervene
under 18 AAC 15.225. The presiding administrative law judge denied both requests,
finding that the requesting groups failed to establish standing and failed to show that
ACAT and Alaska Survival would not adequately represent their interests.
2. Administrative record costs
In October 2010, the Department sought payment from ACAT and Alaska
Survival in the amount of $5,443.95, the total cost of producing and certifying the
administrative record in preparation for the hearings. ACAT and Alaska Survival
responded with a request for a waiver, relying on their non-profit status and lack of
economic incentive to litigate. The Department then asked for a variety of financial
documents — tax returns, balance sheets, cash flow statements, operating statements,
annual budgets, and latest annual reports — that could support the groups’ claims of
financial need. Arguing that these requests could prove to be “unnecessarily
burdensome,” ACAT made what was effectively a request under the Public Records
Act6 that the Department produce records showing how it had handled other waiver
requests from comparable organizations. The Department produced these records in
November 2010, and a month later ACAT and Alaska Survival provided the Department
6
See AS 40.25.100 – .350; 2 AAC 96.
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with federal tax returns and mission statements.
In January 2011, the Department denied ACAT’s and Alaska Survival’s
waiver request because it found that both groups had substantial funds at their disposal
and were financially capable of paying the cost of the record. The Department explained
that compiling the record required a significant investment of time from several
individuals; it conceded, however, that its use of outside contractors had made the
compilation process less streamlined than it could have been, and it therefore reduced the
requested payment from $5,443.95 to $2,821.28, or $1,410.64 for each of the two
organizations.
ACAT and Alaska Survival moved to set aside these costs, arguing that
they were excessive, violated the groups’ due process rights, and violated the governing
regulations. An administrative law judge denied the motion in March 2011, deeming the
costs proper under 18 AAC 15.237. ACAT and Alaska Survival filed a motion for
reconsideration, which the administrative law judge largely denied except to grant
another reduction due to a clerical error, making the total due $2,335.88.7 The
administrative law judge further specified that, instead of splitting the cost equally
between the two groups, ACAT — with its greater financial resources — should be
responsible for 75 percent of it.
3. Voluntary dismissal of the adjudicatory hearing
In February 2011, ACAT and Alaska Survival moved to dismiss without
prejudice the claims that were to be addressed at the adjudicatory hearing — the claims
alleging that the herbicides would have adverse effects on humans and the environment.
7
In its brief on appeal, the Department notes an arithmetical mistake of
several hundred dollars in the administrative law judge’s calculation of the reduced
amount — a mistake in favor of ACAT and Alaska Survival — but the Department does
not request any relief on that basis.
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With another round of spraying set to begin in April 2011, the groups elected to bypass
the fact-finding adjudicatory step in favor of getting a final judgment that could be
appealed to the superior court in time to prevent the new application of herbicides. Both
the Department and the Railroad opposed the motion, contending that the dismissal of
the claims should be with prejudice. The administrative law judge granted the request
to dismiss without prejudice but explained that, while the groups were not precluded
from raising the factual issues in proceedings on future permits, the dismissal barred
them from raising the issues again in challenging the permit at issue here.
4. Administrative and superior court decisions regarding the
hearing on the record
The administrative law judge addressed the issues raised in the hearing on
the record in a written decision dated April 22, 2011. He upheld the Department’s
issuance of the permit, determining that (1) ACAT and Alaska Survival were not denied
due process; (2) they were not denied their constitutional rights of common use of natural
resources8 and of free access to public waters;9 and (3) the Department did not abuse its
discretion in treating the Railroad’s application as functionally complete despite some
deficiencies. The Commissioner adopted the administrative law judge’s decision as the
final decision of the Department.
The superior court affirmed the Department’s decision on June 29, 2012.
8
The Alaska Constitution, article VIII, section 3, provides: “Wherever
occurring in their natural state, fish, wildlife, and waters are reserved to the people for
common use.”
9
The Alaska Constitution, article VIII, section 14, provides: “Free access
to the navigable or public waters of the State, as defined by the legislature, shall not be
denied any citizen of the United States or resident of the State, except that the legislature
may by general law regulate and limit such access for other beneficial uses or public
purposes.”
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It also affirmed the administrative law judge’s earlier decision regarding the costs of the
administrative record, deciding that the Department had not acted arbitrarily in compiling
the record; had not violated ACAT’s and Alaska Survival’s due process rights by
demanding that they pay the costs; and did not err in compiling the record under its
regulations instead of under the Public Records Act, AS 40.25.122.
The Department and the Railroad then moved for attorney’s fees. The
superior court denied the motion; it reasoned that ACAT and Alaska Survival were
exempt from attorney’s fees under AS 09.60.010(c) because their appeal raised
constitutional issues, it was not frivolous, and they lacked an economic incentive to
litigate. The court also clarified the Department’s entitlement to the record costs,
ordering ACAT and Alaska Survival to pay their respective shares.
ACAT, Alaska Survival, and Cook Inletkeeper appealed to this court on the
issues of the permit’s validity and the record costs. The Department and the Railroad
cross-appealed on the issue of attorney’s fees.
III. STANDARDS OF REVIEW
“We resolve issues of standing and mootness using our independent
judgment because, as matters of judicial policy, these are questions of law.”10 When the
superior court functions as an intermediate court of appeal in an administrative case, we
directly review the merits of the administrative decision.11 “We review an agency’s
application of its own regulations for whether the agency’s decision was ‘arbitrary,
10
Ahtna Tene Nene v. State, Dep’t of Fish & Game, 288 P.3d 452, 457
(Alaska 2012) (quoting Ulmer v. Alaska Rest. & Beverage Ass’n (ARBA), 33 P.3d 773,
776 (Alaska 2001)) (internal quotation marks omitted).
11
McKitrick v. State, Pub. Emp. Ret. Sys., 284 P.3d 832, 837 (Alaska 2012).
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unreasonable, or an abuse of discretion.’ ”12 This requires us to give deference to an
administrative determination “if it has a reasonable basis in law and fact.”13
IV. DISCUSSION
A. The Issues On Appeal Are Largely Moot.
Except for issues related to attorney’s fees and the costs of the
administrative record, the claims on appeal are moot.14 “We generally will not consider
questions ‘where events have rendered the legal issue moot.’ ”15 A claim is moot if there
is no “present, live controversy”16 or if it is impossible to provide the relief sought.17 In
12
Alaska Exch. Carriers Ass’n, Inc. v. Regulatory Comm’n of Alaska, 202
P.3d 458, 460-61 (Alaska 2009) (quoting Griffiths v. Andy’s Body & Frame, Inc., 165
P.3d 619, 623 (Alaska 2007)).
13
Storrs v. State Med. Bd., 664 P.2d 547, 554 (Alaska 1983).
14
In conjunction with its request for the rescission of the permit, ACAT and
Alaska Survival argue the following issues on appeal: the Commissioner’s decision to
affirm the permit despite failing to disclose the proximity of spray areas to water denied
due process under article I, section 7 of the Alaska Constitution and violated the prior-
notice safeguards of article VIII, section 10; the Commissioner abused his discretion by
affirming the agency’s issuance of the permit despite the failure to locate water wells; the
Commissioner abused his discretion by affirming the agency’s issuance of the permit on
grounds that it was limited to areas not open to public access, as parts of the Railroad’s
right-of-way are public places for which posted notice is required; the Commissioner’s
denial of Cook Inletkeeper’s standing violated its right to petition for review under article
I, sections 1, 6, and 7 of the Alaska Constitution; and the Commissioner abused his
discretion by denying Cook Inletkeeper standing to pursue the appeal.
15
Copeland v. Ballard, 210 P.3d 1197, 1201-02 (Alaska 2009) (quoting
Kodiak Seafood Processors Ass’n v. State, 900 P.2d 1191, 1195 (Alaska 1995)).
16
Ulmer v. Alaska Rest. & Beverage Ass’n, 33 P.3d 773, 776 (Alaska 2001)
(quoting Gerstein v. Axtell, 960 P.2d 599, 601 (Alaska 1998)).
17
Id.
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State, Department of Natural Resources v. Greenpeace, Inc., we noted that where the
underlying temporary water use permit had expired, the disputes “concerning that permit
are consequently technically moot.”18 And in Copeland v. Ballard we observed:
We have previously found cases moot when agency-issued
permits had expired but the permit opponents still sought
declaratory judgment that the agency actions were unlawful.
We have emphasized that “[m]ootness is particularly
important in a case seeking a declaratory judgment because
there is an added risk that the party is seeking an advisory
opinion.”[19]
The relief ACAT and Alaska Survival seek on this appeal is the rescission
of the Railroad’s permit. But that permit, effective in June 2010, had a two-year term
and expired on June 9, 2012. Because the herbicide was applied during the life of the
permit, which has now expired, any rescission that we grant would have no practical
effect. Under our case law, the claims are technically moot.
B. This Case Does Not Fall Under The Public Interest Exception To The
Mootness Doctrine.
Technical mootness notwithstanding, “we may choose to address certain
issues if they fall under the public interest exception to the mootness doctrine.”20 In
determining whether the public interest exception applies, we consider three factors:
“(1) whether the disputed issues are capable of repetition, (2) whether the mootness
doctrine, if applied, may cause review of the issues to be repeatedly circumvented, and
(3) whether the issues presented are so important to the public interest as to justify
18
96 P.3d 1056, 1062 (Alaska 2004).
19
210 P.3d at 1202 (quoting Kodiak Seafood Processors, 900 P.2d at 1194-95
(Alaska 1995)) (citing State, Dep’t of Natural Res. v. Greenpeace, Inc., 96 P.3d at 1068
and Kodiak Seafood Processors, 900 P.2d at 1196).
20
Kodiak Seafood Processors, 900 P.2d at 1196.
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overriding the mootness doctrine.”21 No single factor is dispositive, because “each is an
aspect of the question of whether the public interest dictates that a court review a moot
issue. Ultimately, the determination of whether to review a moot question is left to the
discretion of the court.”22
In reviewing the first factor — whether the issues are capable of
repetition — “we have refused to apply the public interest exception to unusual factual
circumstances that were unlikely to repeat themselves or situations where the applicable
statute or regulation was no longer in force.”23 The Department argues that this factor
is dispositive here; the circumstances that prompted the litigation are unlikely to be
repeated because the regulations governing the application of herbicides were recently
revised. In March 2013 the Department repealed and readopted, with narrower language,
the regulation that requires the permit at issue here.24 The Department also adopted an
entirely new regulation, 18 AAC 90.640 (“Pesticide applications on state land”), also
effective in March 2013, that authorizes public entities such as the Railroad to bypass the
permitting process if they instead adopt an “integrated pest management plan” that
satisfies certain requirements of publication, notice, and record-keeping.25 The Railroad
has adopted such a plan, and its future herbicide use therefore falls under the new
21
Id.
22
Id. (internal citation omitted).
23
Ahtna Tene Nene v. State, Dep’t of Fish & Game, 288 P.3d 452, 459
(Alaska 2012) (quoting Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532, 535
(Alaska 2005)).
24
See 18 AAC 90.500 (effective March 7, 2013) (replacing broad requirement
of permit with requirement of permit only when project “affects property owned
separately by two or more persons”).
25
18 AAC 90.640(a).
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regulation rather than the permitting process.26
ACAT and Alaska Survival note that the permitting regulations still exist
and that, despite the Railroad’s integrated pest management plan, there are several
possible scenarios in which the Railroad could still be required to seek a permit before
applying herbicides.27 ACAT and Alaska Survival accordingly conclude that this case
meets the first factor because not only is the relevant regulation still in place, there could
still be a future controversy involving its application to a Railroad herbicide permit.
But those theoretical future uses of the permitting process, as well as being
hypothetical, would not likely present the same factual and legal context as this case.
The Railroad’s 2010 permit has expired, the Railroad has published an integrated pest
management plan that will govern its future use of herbicides on the track right-of-way,
the Railroad will therefore not need a permit if it chooses to conduct the same operation
again, and a future dispute over that operation will be controlled by the new regulation,
18 AAC 90.640. Thus, the particular factual and legal circumstances of this case are
unlikely to be repeated, and ACAT and Alaska Survival fail to satisfy the first factor for
the public interest exception to the mootness doctrine.
But ACAT and Alaska Survival do satisfy the second factor — whether the
issue could repeatedly evade review. We noted in Copeland that we had “previously
analyzed the second prong . . . by comparing the time it takes to bring the appeal with the
26
See Alaska Railroad Corporation, Vegetation Management,
http://www.alaskarailroad.com/corporate/Corporate/SafetySecurity/VegetationManag
ement/tabid/419/Default.aspx (last visited Feb. 27, 2014).
27
These scenarios, according to ACAT and Alaska Survival, include “1)
application of herbicides by state agencies to private lands owned separately by two or
more persons; 18 AAC 90.500, 2) projects where herbicides are allowed to be used [on]
the waters of the state; 18 AAC 90.505(1), and, 3) projects where herbicides are aerially
sprayed; 18 AAC 90.505(2).”
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time it takes for the appeal to become moot.”28 The permit at issue here was valid for
two years, and full judicial review in that time was unlikely. The Department argues that
because the regulations have since been revised to allow for five-year permit terms,29
“future permitting disputes are unlikely to evade review.” We observed in Copeland,
however, that the lengthy appeal in that case “demonstrate[d] that it is unreasonable to
assume an opponent to an approved contingency plan would be able to appeal the agency
decision within the five-year duration of the plan.”30 Such determinations are necessarily
case specific, but the matter before us has already taken over three years, and it likely
would have taken longer had ACAT and Alaska Survival not voluntarily dismissed their
fact-based claims at the administrative level in order to expedite judicial review. It is
certainly possible that a future challenge to a pesticide permit — even a permit valid for
five years — could evade appellate review. Accordingly, the second factor of the public
interest exception to the mootness doctrine is satisfied.
However, ACAT and Alaska Survival fail to meet the third factor, which
assesses whether the issues presented are important enough to the public interest to
override the mootness doctrine. We stated in Copeland that “[w]e have found this prong
met when the case involved ‘concepts of fairness underlying the right to procedural due
process,’ the preservation of clean water, or ‘situations, otherwise moot, where the legal
power of public officials was in question.’ ”31 We held that the issues presented in
28
Copeland v. Ballard, 210 P.3d 1197, 1202 (Alaska 2009).
29
See 18 AAC 90.530(c) (“A permit is not valid for more than five years after
its effective date.”).
30
Copeland, 210 P.3d at 1202.
31
Id. at 1203 (internal footnotes omitted) (quoting State, Dep’t of Natural
Res. v. Greenpeace, Inc., 96 P.3d 1056,1062-63 (Alaska 2004); Fairbanks Fire Fighters
(continued...)
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Copeland satisfied two of these requirements.32 First, the case involved plans to protect
the Alaskan environment from oil spills, “a matter of utmost importance to the public
interest” because of “the potentially devastating effects . . . on the ecology and economy
of the state.”33 Second, since the case involved a due process challenge to administrative
procedures, we reasoned that “given the need for transparency in governance and access
to administrative records, this also is a matter of importance to the public interest.”34 In
Copeland, ultimately, we considered the due process claims despite their technical
mootness.35
ACAT and Alaska Survival argue that the result in this case is governed by
Copeland, because this case, too, presents both a claim for the “preservation of clean
water” and a question of “fairness in procedural due process” in agency procedures.36
But we cannot disassociate our view of the third factor in this case from our analysis of
the first, in which we concluded that the factual scenario before us is unlikely to be
repeated given the changes in the regulatory structure. The public interest does not
require us to give an advisory opinion on the permitting process that governed the
Railroad’s past application of herbicides, given the unlikelihood that the same process
will govern it next time. This case is less like Copeland than it is like another recent case
in which we analyzed the mootness doctrine, Ahtna Tene Nene v. State, Department of
31
(...continued)
Ass’n, Local 1324 v. City of Fairbanks, 48 P.3d 1165, 1169 (Alaska 2002)).
32
Id.
33
Id.
34
Id.
35
Id.
36
See id.
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Fish & Game.37
In Ahtna, we declined to apply the public interest exception to the mootness
doctrine where the issues were “certainly germane to the public interest” but were
“simply not ripe for adjudication.”38 The appellants in Ahtna challenged a permit system
instituted by the Alaska Board of Game in 2009, regulating hunts for caribou and bull
moose in the Nelchina basin.39 The regulations were challenged in March 2009, and in
October 2010 the Board of Game amended its permit system.40 The amended regulations
went into effect in 2011, after the case reached this court on appeal but before we
decided it.41 We found that the appeal was moot because the challenged regulation was
no longer in effect.42 The appellants argued that the public interest exception should
apply, as a decision in the case would help settle a “source of ongoing litigation between
the parties” regarding the “legitimacy of the community hunt enabling statute . . . and
related regulations that provide different hunting opportunities.”43 In assessing this
argument, we noted that it “ignore[d] the relief initially sought in this appeal and instead
ma[d]e broad requests for premature declaratory judgments regarding the
constitutionality of the community harvest system as a whole unrelated to any factual
37
288 P.3d 452, 459 (Alaska 2012).
38
Id. at 460.
39
Id. at 455.
40
Id. at 456.
41
Id. at 457.
42
Id. at 458.
43
Id. at 459.
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dispute.”44 We determined, therefore, that any opinion on the validity of the 2009
regulations would be irrelevant to the amended scheme and would be “merely
advisory.”45
Here, ACAT and Alaska Survival seek relief from an expired permit that
the Railroad is unlikely to apply for again through the same regulatory process at any
time in the foreseeable future. In Ahtna, the challenged regulation was amended and no
longer applied;46 ACAT and Alaska Survival differentiate this case by pointing out that
the permitting process is still in place and could be the source of future controversy
appropriate for our review. But again, we cannot ignore the factual setting in which we
have been asked to review the regulations. Indeed, much of ACAT’s and Alaska
Survival’s briefing on the public interest exception airs their concerns about the
Railroad’s new integrated pest management plan. They complain, for example, that the
Railroad’s new plan may not meet the “least possible hazard” standards of the new
regulation; that the Railroad has not detailed how it will protect water and the
environment under the new regime; that the Railroad’s plan may still be rejected as
failing to meet the new regulatory requirements; and that, in general, there could be a
number of flaws with the new regulations and their studied omission of public comment
and permits for the use of pesticides.
We conclude that ACAT and Alaska Survival are making for the same kind
of “broad requests for premature declaratory judgments . . . unrelated to any factual
44
Id.
45
Id. at 460.
46
Id. at 458.
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dispute”47 that Ahtna sought to avoid. While the water quality and procedural due
process concerns raised in this appeal are “certainly germane to the public interest,”48
they are based in the permitting process that has been rendered irrelevant to future
disputes by the Railroad’s election to adopt an integrated pest management plan pursuant
to the new regulation; possible issues with the new regulation are “simply not ripe for
adjudication in this case.”49 Issues that would require us to issue an advisory opinion on
facts and law that are now largely irrelevant are simply not important enough to the
public interest to justify overriding the mootness doctrine.
Having weighed the three factors, we decline to apply the public interest
exception to the mootness doctrine in this case. We therefore do not reach any of the
challenges to the expired permit itself.50
C. The Agency’s Assessment Of Record Costs Was Not Arbitrary,
Unreasonable, Or An Abuse Of Discretion.
The remaining issues involve the costs of preparing the record for the
administrative appeal, which were assessed against ACAT and Alaska Survival. The
groups present three arguments in support of their claim that the costs should have been
waived in their entirety: (1) the Department compiled the record arbitrarily and
inefficiently; (2) the denial of a waiver based on the groups’ public interest status
47
See id. at 459.
48
See id. at 460.
49
See id.
50
At oral argument, both the Department and the Railroad agreed that their
cross-appeals on the issue of attorney’s fees could be considered withdrawn if we
decided that the other issues on appeal (except for those involving the cost of the
administrative record) were moot. Given our decision on mootness, therefore, we do not
need to address the cross-appeals.
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violated their right to equal protection under article I, section 1 of the Alaska
Constitution; and (3) the denial of the waiver violated due process. We affirm the
agency decision.
1. It was not an abuse of agency discretion to require ACAT and
Alaska Survival to pay the administrative record costs.
ACAT and Alaska Survival first claim that the Department abused its
discretion “by arbitrarily compiling the record.” Under the Public Records Act, the
issue is governed by the agency’s own regulations.51 The pertinent regulation requires
that Department staff prepare the record, to
include the permit application and supporting
documentation, written and electronic correspondence
concerning the proposed action, additional information
submitted by the applicant to the department, public
comments and information submitted to the department on
the proposed decision, tapes or transcripts of any public
hearing, the department’s decisional documents, and other
materials that the department considered or relied upon in
making the department’s decision.[52]
The regulations further provide that a person may obtain a copy of the record “at the
requesting party’s expense” and that “[t]he requestor shall pay the cost of gathering and
certifying the agency decision record.”53 Finally, the regulations provide that “[t]he
department will waive all or part of the cost of gathering and certifying the record if the
51
AS 40.25.122 (“[W]ith respect to a person involved in litigation, the records
sought shall be disclosed in accordance with the rules of procedure applicable in a court
or an administrative adjudication. In this section, ‘involved in litigation’ means a party
to litigation or representing a party to litigation, including obtaining public records for
the party.”).
52
18 AAC 15.237(a).
53
18 AAC 15.237(b) and (c).
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requestor demonstrates, to the department’s satisfaction, an inability to pay those
costs.”54 We review the Department’s application of these regulations to determine
whether its demand for costs in this case was arbitrary, unreasonable, or an abuse of
discretion.55
ACAT and Alaska Survival claim the Commissioner abused his discretion
in several ways. First, they allege that the Department failed to maintain a “discreet and
identifiable agency record” and that they should not be held “responsible for the costs
of constructing the record after the fact.” They claim that “[i]t was the agency’s duty
. . . to see that correspondence dealing with the permit was sequestered into a separate
file as part of the permit issuance record.” But they cite no legal basis for such a duty
(other than the constitutional provisions we discuss below). The regulations explicitly
refer to “gathering,”56 “certifying,”57 and “prepar[ing] the agency decision record,”58
implying that the necessary materials may be found in diverse places and must be
collected and organized for purposes of appellate review, a process that is likely to
involve time and expense on the part of the agency. We see no basis on this record for
us to impose a particular record-keeping plan on an executive agency.
ACAT and Alaska Survival also argue that the record compilation was
inefficient and could have been more streamlined. They cite the relatively high rates
charged by an independent consultant and high-level agency employees for retrieving
54
18 AAC 15.237(c).
55
See Alaska Exch. Carriers Ass’n, Inc. v. Regulatory Comm’n of Alaska, 202
P.3d 458, 460-61 (Alaska 2009).
56
See 18 AAC 15.237(c).
57
See id.
58
See 18 AAC 15.237(a).
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record materials and emails, asserting that clerical staff could have performed the task
more cheaply; they also express doubt that all of the “emails scattered throughout
various contractor and employee inboxes could have actually been considered [in] the
decision-making process” and assert that they were thus required to pay for the
collection and copying of irrelevant materials. But whatever merit there may be in these
arguments, the Department conceded that it “may not have been as streamlined in its
collection efforts . . . as it would be for future efforts,” and it voluntarily reduced the
assessed cost “by the amount commensurate with that part of the process.” This resulted
in a near halving of the cost, from $5,443.95 to $2,821.28, an amount the administrative
law judge found was “not excessive given the complexity of the issues related to this
pesticide permit.” On the groups’ motion to reconsider, the administrative law judge
reduced the amount further (because of an arithmetical error) to $2,335.88, to be
allocated between ACAT and Alaska Survival. He also found that the Department’s
initial calculation had been based on “the actual cost of collecting the documents as it
was required to do by regulation,” and that while the process may have been inefficient,
it was not arbitrary.
Given these findings, and given the significant reduction that the
Department voluntarily made to reflect its admitted inefficiencies, we cannot say that
the Department acted unreasonably or arbitrarily or that it abused its discretion in its
assessment of the costs of the record.
2. The appellants’ constitutional claims are waived.
ACAT and Alaska Survival also assert that the assessment of record costs
violates their equal protection rights because the Public Records Act and 18 AAC
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15.237(c) differentiate between litigants and other requestors.59 They did not raise this
argument below. The administrative law judge addressed equal protection arguments
raised in two other contexts: one involving the groups’ public records request for
additional information and one alleging that the Department “treats litigants differently
based on the issues raised in the hearing request.” These are different arguments than
the one alleged here. Generally, we will not consider arguments on appeal that were not
raised below.60 Because ACAT’s and Alaska Survival’s equal protection argument was
not raised below, we decline to address it.
ACAT and Alaska Survival also make a perfunctory due process
argument: “It is a denial of due process to expect the citizen’s group to pay the agency
for performing work after the fact that was already part of the agency’s responsibility
as part of its delegated decision-making process.” They provide no further legal
analysis. “Points that are inadequately briefed are considered waived.”61 The failure
to analyze this constitutional issue amounts to its abandonment.
59
For example, under the Public Records Act someone who requests copies
of records need not pay the personnel costs involved in “complet[ing] the search and
copying tasks” until they exceed five person-hours per calendar month, AS 40.25.110(c);
but no such exemption for the first five person-hours applies to a request made by a party
to an administrative appeal in the Department, see 18 AAC 15.237(b), (c).
60
Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1255 n.61 (Alaska 2001) (“This
court will not consider arguments on appeal that were not raised below unless the new
issues either establish plain error or do not depend on new or controverted facts, are
closely related to the appellant’s arguments at trial, and could have been gleaned from
the pleadings.”).
61
Great Divide Ins. Co. v. Carpenter ex rel. Reed, 79 P.3d 599, 608 n.10
(Alaska 2003) (citing State v. O’Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska
1980) (“When, in the argument portion of a brief, a major point has been given no more
than cursory statement, we will not consider it further. Failure to argue a point
constitutes an abandonment of it.”)).
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V. CONCLUSION
The appeal is DISMISSED as to those issues that are moot (the direct
challenges to the permit). We otherwise AFFIRM the decision of the superior court.
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