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Boyd v. State (6/26/2009) ap-2220

Boyd v. State (6/26/2009) ap-2220

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts.

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


DAVID T. BOYD, )
) Court of Appeals No. A-10058
Appellant, ) Trial Court No. 3PA-07-9236 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
) No. 2220 June 26, 2009
Appeal    from    the
          District  Court,  Third  Judicial  District,
          Palmer, John W. Wolfe, Judge.

          Appearances:  Jason L. Bergevin, Law Offices
          of   Royce  &  Brain,  Anchorage,  for   the
          Appellant.    Shawn  D.  Traini,   Assistant
          District   Attorney,  Roman   J.   Kalytiak,
          District  Attorney,  Palmer,  and  Talis  J.
          Colberg, Attorney General, Juneau,  for  the
          Appellee.

          Before:   Coats, Chief Judge, and Mannheimer
          and Bolger, Judges.

          BOLGER, Judge.

          David  T.  Boyd was convicted of operating an oversized
vehicle  on  the  state  highway system without  a  permit.1   He
          contends that the district court erred when it concluded that the
permit  requirements of 17 AAC 25.011 applied to the road  grader
he  was operating.  For the reasons explained here, we affirm the
district courts decision.
          Background facts and proceedings
          On  August  20, 2007, Boyd was operating a road  grader
on the Palmer-Wasilla  highway.  A commercial vehicle enforcement
officer  stopped  Boyd  to  determine  if  the  road  grader  was
oversized, and, if so, whether Boyd had a permit to operate it on
the  state highway system.  Under the Alaska Administrative Code,
permits are required for all vehicles wider than eight and a half
feet.2  Boyds road grader was nine and a half feet wide.  He  was
consequently  cited  for  operating the  road  grader  without  a
permit.
          At  a bench trial, Boyd presented evidence that he  was
using the road grader as part of a road maintenance contract with
the  Matanuska-Susitna  Borough.  Boyds  position  was  that  the
permit  requirements in 17 AAC 25.011 did not apply to  the  road
grader  because  it  was  special  mobile  equipment  and  not  a
commercial vehicle.
          District  Court Judge John W. Wolfe found that  17  AAC
25  applied  to both commercial and non-commercial  vehicles  and
that  the regulation required a permit for any oversized  vehicle
that was driven or moved on the state highway system, unless  the
vehicle fell under an exception.  He found that a road grader was
a  vehicle  and  that no exception applied.  Consequently,  Judge
Wolfe found Boyd guilty of operating an oversized vehicle on  the
state highway system without a permit.

          Why we conclude that 17 AAC 25 applies to road graders
          On  appeal,  Boyd renews his claim that the regulations
in  17 AAC 25 do not apply to road graders.  He contends that the
regulations  in  this  chapter apply only  to  the  operation  of
commercial motor vehicles on state highways, not road maintenance
equipment   or  other  vehicles  classified  as  special   mobile
equipment.3
          Boyds   claim   presents   a  question   of   statutory
construction.  Our goal when interpreting a statute or regulation
is  to  ascertain and implement the intent of the legislature  or
agency  that  promulgated  the  statute  or  regulation.4   Under
Alaskas  sliding scale approach to statutory interpretation,  the
plainer  the  language of the statute, the  more  convincing  any
contrary  legislative history must be. .  .  .  to  overcome  the
statutes plain meaning.5
          The  regulation Boyd was convicted of violating, 17 AAC
25.011,  by  its  plain language regulates all wheeled  vehicles,
including  vehicles defined as special mobile  equipment.6   Boyd
has cited no legislative or administrative history to support his
claim  that  17  AAC  25  as  a whole regulates  only  commercial
vehicles.   Given the plain language of the regulations  and  the
authorizing statutes, we reject Boyds interpretation.
          The  regulations in 17 AAC 25 are authorized  by  Title
19 of the Alaska Statutes.  These statutes make the Department of
Transportation   and  Public  Facilities  responsible   for   the
maintenance,  protection,  and  control  of  the  state   highway
          system.7  Among other things, the Department is authorized to
control  access to the states highways and to exercise any  other
power necessary to carry out this responsibility.8  Additionally,
the  Department may limit the weight, size, and load of  vehicles
that  travel  the  highways, except for certain farm  equipment.9
The  Department is required to issue special permits  authorizing
the operation of overweight and oversized vehicles.10
          These  statutes give the Department broad authority  to
regulate  vehicle  operations on state  highways  and  to  impose
restrictions on any aspects of vehicle operation.11   Nothing  in
the  authorizing statutes restricts the Departments authority  to
the regulation of commercial vehicles.
          Moreover,  a  road grader fits the legal definition  of
vehicle  that is, it is a  wheeled device capable of transporting
persons  or property on a highway.12  In contrast, a road  grader
does not fit the legal definition of a  commercial motor vehicle:
a  self-propelled  or  towed vehicle that is  used  to  transport
passengers or property for commercial purposes, upon a highway or
vehicular  way, that has a gross vehicle weight rating  or  gross
combination  weight  rating greater than  10,000  pounds,  or  is
designed to transport more than fifteen passengers, including the
driver.13  The regulations thus define vehicle more broadly  than
commercial  motor vehicle.  While the regulations in  17  AAC  25
mainly  govern this broader category of vehicles, some provisions
regulate  only  commercial  motor vehicles.14   Consequently,  we
reject  Boyds  claim that 17 AAC 25, as a whole,  regulates  only
commercial vehicles.
           This  conclusion is supported by the  Departments  own
interpretation  of  17 AAC 25.  When interpreting  a  regulation,
courts   normally  give  effect  to  an  administrative   agencys
interpretation  of its own regulation, unless that interpretation
is plainly erroneous or plainly inconsistent with the authorizing
statute  or  the  regulation itself.15  In 1989,  the  Department
issued   an   Administrative  Permit  Manual  for  oversize   and
overweight  permits.  This manual is still in force and  portions
of  it  have been adopted in 17AAC 25.16  This manual shows  that
the  Department has also interpreted 17 AAC 25 to apply  to  more
than just commercial motor vehicles.
          The  manual  applies  to  all  vehicles  traveling   in
Alaska.   It  requires a permit for any vehicle of  a  size  that
exceeds the maximum dimensions listed in 17 AAC 25.   As examples
of  the types of vehicles that require permits, the manual  lists
self-propelled cranes, off road construction equipment, or  other
road   maintenance  equipment.   The  manual  also   has   permit
provisions  for  equipment engaged in snow  removal.17   None  of
these   vehicles  fits  the  definition  of  a  commercial  motor
vehicle.18
          In  short, the regulations in 17 AAC 25 apply in  large
part  to  all  wheeled vehicles, and 17 AAC 25.011 in  particular
requires  that  all  oversized wheeled vehicles  obtain  permits.
There are no other regulations that apply to the use of oversized
or  overweight vehicles on state highways.  Hence, Boyds argument
that  17 AAC 25 applies only to commercial vehicles leads  to  an
unreasonable  result  that the Department does not regulate  non-
commercial  vehicles  in any way, regardless  of  the  damage  or
          destruction to the highway system caused by their size or weight,
or  the  threat  posed to the safety of the  public  using  those
highways.  This interpretation defeats the obvious administrative
purpose behind the regulations.19
          Boyd  notes that the section of the regulation  he  was
cited  for  violating is titled  Commercial Motor Vehicles:  Size
and Weight.  But under the rules of statutory construction, where
the  meaning of a statute or regulation is clear and unambiguous,
a  court  will  not  consider  the  heading  of  the  statute  or
regulation.20   The regulation governing permit requirements  for
oversized vehicles unambiguously applies to all wheeled vehicles,
including vehicles that are considered special mobile equipment.
          We  conclude that, except where otherwise specified, 17
AAC  25  regulates all wheeled vehicles operating  on  the  state
highway  system,  not just commercial motor vehicles.   The  road
grader  Boyd  was  operating  was an oversized  wheeled  vehicle.
Accordingly,  under 17 AAC 25 he needed a permit to  operate  the
road grader on the state highway system.
          Conclusion
          The district courts judgment is AFFIRMED.
_______________________________
     1 17 AAC 25.011.

2 17 AAC 25.011.

     3  See  13  AAC  40.010(52) (special mobile equipment  is  a
vehicle  which  is  not  designed  or  used  primarily  for   the
transportation  of  persons  or property  and  only  incidentally
operated or moved over a highway[.]).

     4  Millman  v. State, 841 P.2d 190, 194 (Alaska App.  1992);
see also State, Dept of Highways v. Green, 586 P.2d 595, 603 n.24
(Alaska  1978) (Administrative regulations which are  legislative
in character are interpreted using the same principles applicable
to statutes.).

     5  Peninsula Mktg. Assn v. State, 817 P.2d 917, 922  (Alaska
1991).

     6  See  17 AAC 25.900(50) (defining vehicle); 17 AAC  25.250
(defining  commercial motor vehicle as the meaning  given  in  AS
19.10.399).

7 AS 19.05.010.

     8 AS 19.05.040(5) & (13).

     9 AS 19.10.060(a).

     10   AS 19.10.060(b).

     11    See  also  17 AAC 25.100 (The Department  .  .  .  may
prohibit the operation of vehicles upon any highway or may impose
restrictions  on any aspect of vehicle operation on  any  highway
whenever the highway . . .  may be damaged or destroyed . . .  or
whenever . . . necessary . . .  in the interests of safety . .  .
.).

     12   17 AAC 25.990(50).

     13   17 AAC 25.250.

     14     See   17  AAC  25.200  (transportation  of  hazardous
materials); 17 AAC 25.210 (safe operation); 17 AAC 25.220  (hours
of  service); 17 AAC 25.230 (inspections); 17 AAC 25.240  (unsafe
or defectively equipped commercial motor vehicles); 17 AAC 25.310
(weigh stations and traffic stops).

     15    Green, 586 P.2d at 602 n.21; see also Wilson v. State,
Dept  of Corrections, 127 P.3d 826, 829 (Alaska 2006) (explaining
that  an  agencys  interpretation of a law  within  its  area  of
jurisdiction can help resolve lingering ambiguity in a challenged
regulation).

     16   See 17 AAC 25.320(b), 17 AAC 25.380(b).

     17    The  regulations set out permit fees for snow  removal
equipment.  17 AAC 25.380(b)(7).

     18   See AS 19.10.399.

     19    See  2A  Norman  J.  Singer  &  J.D.  Shambie  Singer,
Sutherland Statutes and Statutory Construction  46:7,  at  253-58
(7th  ed.  2007)  (stating that statutes should be  construed  to
avoid absurd results).

     20   See id.  47:14, at 341-42.

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