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Stein et al v. Dept. of Environmental Conservation (2/5/93), 846 P 2d 123
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
DON STEIN, GLENN BOUTON, LELA )
BOUTON, KENNETH H. MANNING, ) Supreme Court No. S-4247
STANLEY C. RYBACHEK, and )
ROSALIE A. RYBACHEK, ) Trial Court No.
) 4FA-88-2003 CI
) O P I N I O N
DENNIS KELSO, ALASKA DEPARTMENT)
OF ENVIRONMENTAL CONSERVATION, )
Appellees. ) [No. 3927 - February 5, 1993]
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Jay Hodges, Judge.
Appearances: Donald Stein, pro se,
Fairbanks. Glenn & Lela Bouton, pro se,
Fairbanks. Kenneth H. Manning, pro se,
Fairbanks. Stanley & Rosalie Rybachek, pro
se, North Pole. John A. McDonagh, Assistant
Attorney General, Fairbanks, Charles E. Cole,
Attorney General, Juneau, for Appellees.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
This administrative appeal arises out of the Department
of Environmental Conservation's ("DEC") certification of two
draft National Pollution Discharge Elimination System ("NPDES")
permits issued by the Environmental Protection Agency ("EPA").
An independent deciding officer, appointed by DEC to review the
certification process, conducted an adjudicatory hearing and
approved the certification. Six placer miners appealed the
decision, arguing that the limited scope of the hearing deprived
them of a property interest without just compensation or due
process of law. The superior court determined that no constitu
tional violations had occurred and affirmed the deciding
officer's ruling. We also affirm.
I. BACKGROUND AND PRIOR PROCEEDINGS
Under the Clean Water Act,1 any person wishing to
discharge pollutants into the waters of the United States must
first obtain a NPDES permit from EPA. We outlined the NPDES
certification process in Miners Advocacy Council, Inc. v. State,
778 P.2d 1126 (Alaska 1989), cert. denied, 493 U.S. 1077 (1990):
EPA may not issue an NPDES permit unless
the resulting discharge will comply with
state water quality standards. 33 U.S.C.
1311(b)(1)(C), 1342. Before EPA may issue a
permit, it must also provide the state in
which the discharge originates with an
opportunity to review the draft NPDES permit
to determine whether the permit's terms
ensure compliance with the state's water
quality standards. 33 U.S.C. 1341(a), (d).
A state then has three options. It may deny
certification of the NPDES permit, thereby
precluding EPA from issuing the permit. 33
U.S.C. 1341(a)(1). The state may waive
certification, thereby removing itself from
the permitting process. Id. Finally, the
state may certify the draft permit, and may
include in its certification any conditions
more stringent than those in the draft permit
which the state determines are necessary to
comply with state or federal water quality
standards. 33 U.S.C. 1341(a)(2). EPA must
incorporate more stringent conditions
suggested by a state into the final NPDES
778 P.2d at 1129 (footnotes omitted).
In February 1987 EPA sent a single NPDES draft permit
to the state for certification. EPA proposed to issue the permit
to 368 placer miner applicants.2 EPA sent a second draft permit
for certification in April 1987 intended to cover an additional
50 placer miner applicants. Both permits contained settleable
solids effluent limits of 0.2 ml/l. In other words, miners
receiving these permits are prohibited from discharging
wastewater from their mining operations containing pollutant
concentrations greater than 0.2 ml/l. See generally Miners
Advocacy Council, 778 P.2d at 1129 & nn.4-5.
DEC certified both permits and sent EPA Certificates of
Reasonable Assurance. Both permits were certified without change
because DEC was "reasonably assured"that the permits, as drafted
by the EPA, complied with Alaska's water quality standards. See,
e.g., Miners Advocacy Council, 778 P.2d at 1135-40.
Following the certification, individual miners, mining
industry representatives and an environmental organization
requested an adjudicatory hearing to review the DEC
certifications. The DEC appointed attorney Mark Ashburn to serve
as the independent deciding officer. The miners were concerned
that the effluent limits contained in the NPDES permits were too
stringent while the environmental group wanted even more
stringent limits. The individual miners involved in this appeal
also attempted to assert what amounted to an inverse condemnation
claim, arguing that the effluent limits were so strict that they
were being deprived of a property interest without just
compensation or due process of law.
On a motion by DEC, Ashburn agreed to limit the
hearing's scope to two inquiries relevant to the certification
process: 1) whether DEC followed appropriate procedures in
conducting the 1987 certification; and 2) whether DEC properly
determined that the terms of EPA's draft permit reasonably
assured compliance with state water quality standards. This
ruling effectively denied the miners an opportunity to pursue
their takings claims within the context of a certification
appeal. The miners were also precluded from presenting evidence
of the certification's detrimental impact on their livelihood
because the deciding officer concluded that such individual
concerns had no bearing on whether the NPDES permits reasonably
assured compliance with state water quality standards.
Following the hearing, Ashburn upheld DEC's
certification of the 1987 draft NPDES permits. Certain
individual miners appealed Ashburn's decision to the superior
court, which again upheld the DEC's certification. The superior
court awarded the state $3600 in attorneys' fees after ruling
that the miners did not qualify as public interest litigants.
The miners now appeal to this court.
A. DECIDING OFFICER ASHBURN'S CONDUCT OF THE HEARING
DID NOT DEPRIVE THE MINERS OF PROCEDURAL DUE PROCESS.
The miners argue that deciding officer Ashburn's
decision to limit the scope of the adjudicatory hearing deprived
them of a meaningful opportunity to be heard on a matter which
adversely affected their livelihood. They cite Ashburn's refusal
to hear argument on the loss of their water rights and his
decision not to require certain state employees to testify.
The deciding officer in an administrative hearing has
the responsibility to conduct a trial-like adjudication in a fair
manner and to make decisions needed to expedite the adjudication,
including regulating the conduct of discovery and ruling on the
admission and exclusion of evidence. See AS 44.62.450; AS
44.62.630. The deciding officer's functions and responsibilities
are analogous to those of a trial judge, and the deciding
officer's decisions to admit or exclude evidence are, therefore,
reviewable for an abuse of discretion. Hutchins v. Schwartz, 724
P.2d 1194, 1197 (Alaska 1986). However, the "determination
whether a state action or procedure violates the due process
protections of the state and federal constitutions is a question
of law, and we review the matter using our independent judgment."
Carvalho v. Carvalho, 838 P.2d 259, 261 n.4 (Alaska 1992).
In Carvalho, we stated that:
procedural due process under the state
constitution requires `notice and opportunity
for hearing appropriate to the nature of the
case.' . . . [T]he due process clause of the
federal constitution requires that every
`shall have the
protections of [a] day in court,
and the benefit of the general law,
a law which hears before it
condemns, which proceeds not
arbitrarily or capriciously, but
upon inquiry, and renders judgment
only after a trial . . . .' More
specifically, due process requires
notice and an opportunity to be
heard prior to the deprivation of a
property interest protected by the
Id. at 262 (citations and footnote omitted) (quoting in part
Johnson v. Johnson, 544 P.2d 65 (Alaska 1975)).
Applying these well-established principles to the
present case, it becomes apparent that the miners' due process
argument is flawed because it is based on a misunderstanding of
the NPDES permit certification process.3 When certifying a NPDES
draft permit, the state is authorized by federal regulation to
add conditions which are more stringent than those contained in
the draft permit. 40 C.F.R. 124.53(e)(2) (1991). The state is
also allowed to note in its certification whether the EPA could
lower any limits and remain within state law.4 40 C.F.R.
124.53(e)(3) (1991). However, federal regulations prohibit the
state from conditioning or denying certification on the grounds
that state law authorizes less stringent conditions than those
contained in the EPA draft permit. 40 C.F.R. 124.55(c) (1991).
In this case, DEC certified the draft permits without
adding any new conditions. DEC did this because the EPA's draft
permits had already incorporated an effluent limit of 0.2 ml/l
which DEC had previously determined was the maximum limit
permissible in order to provide "reasonable assurances"that all
permit users comply with state water quality standards. See
Miners Advocacy Council, 778 P.2d at 1130 n.7. The miners sought
review of the DEC certifications because they wanted to loosen
the effluent limits so that they could discharge wastewater
containing a higher concentration of pollutants. The miners
evidently refused to accept the fact that DEC was powerless to
loosen the effluent limits set out in the draft permits.
Nonetheless, the law is clear on this matter, and deciding
officer Ashburn had no authority to order DEC to provide the
relief the miners requested. Thus, it was well within Ashburn's
discretion to limit the scope of the hearing to only those
matters upon which he could provide effective relief.
Furthermore, as DEC points out, Ashburn allowed the
miners who appeared at the hearing to present all of the
testimony they were prepared to present, despite their failure to
comply with certain prehearing orders concerning witness lists
and other procedural matters. The record is clear therefore that
the miners were provided with a meaningful opportunity to be
heard on those matters which were properly before the deciding
B. THE SUPERIOR COURT DID NOT ERR IN AWARDING
ATTORNEY'S FEES TO THE STATE.
The superior court awarded $3600 in attorney's fees to
the state as the prevailing party on appeal. See Appellate Rule
508(e). The miners argue that these fees were wrongly awarded
because they should be considered public interest litigants.
We apply an abuse of discretion standard "in reviewing
a trial court's finding that a litigant has a public interest
status" for attorney's fee purposes. Anchorage Daily News v.
Anchorage School District, 803 P.2d 402, 404 n.2 (Alaska 1990)
(quoting Citizens for the Preservation of the Kenai River, Inc.
v. Sheffield, 758 P.2d 624, 626 (Alaska 1988)).
In Anchorage Daily News, we listed four criteria to be
used in identifying public interest litigants:
(1) Is the case designed to
effectuate strong public policies?
(2) If the plaintiff succeeds
will numerous people receive
benefits from the lawsuit?
(3) Can only a private party
have been expected to bring the
(4) Would the purported
public interest litigant have
sufficient economic motive to file
suit even if the action involved
only narrow issues lacking general
Anchorage Daily News, 803 P.2d at 404.
The miners claim that they satisfy all four of these
criteria. Notably, they claim their appeal effectuates the
strong public policy of ensuring due process and guarding against
an agency's abuse of discretion. However, the state correctly
notes that the relief sought by the miners was personal, not
public, in nature. The miners' own pleadings show that they
sought a ruling that they had "lost their property rights and
must be justly compensated." Although the miners now maintain
that they would not receive any direct economic benefit from a
favorable decision concerning DEC certification procedures, this
assertion is in direct contradiction to their requested relief.
The superior court did not abuse its discretion in
ruling that the miners failed to establish public interest
litigant status. The superior court's decision, upholding the
decision of the deciding officer, is affirmed in full.
1. The Clean Water Act was originally enacted as the
Federal Water Pollution Control Act Amendments of 1972, Pub. L.
No. 92-500, 2, 86 Stat. 816 (codified as amended at 33 U.S.C.
2. In Miners Advocacy Council, we rejected a challenge to
such group or "blanket"certifications holding that "[i]n the
absence of any statutory or regulatory requirement that DEC
certify draft NPDES permits on an individual basis, we conclude
that DEC may issue a blanket certification for draft NPDES
permits covering a number of permittees, provided the
certification ensures that Alaska water quality standards will be
met."Id. at 1133.
3. Many of the miners' arguments are based on the
misapplication of state and federal regulations and statutes as
well as misstatements of our prior case law, particularly our
holdings in Miner's Advocacy Council. See Miners Advocacy
Council, 778 P.2d at 1133-40. These arguments are so clearly
frivolous that we will not analyze them in detail. Suffice it to
say that nothing in Miner's Advocacy Council supports the miners'
contention that DEC must consider individual socio-economic
factors in making its certification decisions.
4. However, contrary to the miners' argument on appeal,
the regulation does not require the state to inform EPA of
conditions that can be made less stringent without violating
state water quality standards. See 40 C.F.R. 124.53(e)(3).
5. Both sides argue the merits of the miners' regulatory
takings claim. However, we will not address the merits of a
claim that is not properly a part of this administrative appeal.
Deciding officer Ashburn had no authority to award the miners
compensation for the alleged taking and ruled as much in limiting
the scope of the hearing.