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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, DNR v. Greenpeace, Inc. (06/18/2004) sp-5816

State, DNR v. Greenpeace, Inc. (06/18/2004) sp-5816

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   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,


MENT OF NATURAL RESOURCES,    )    Supreme Court No. S-10409
             Appellant,            )    Superior Court No. 3AN-00-
3648 CI
     v.                       )    O P I N I O N
GREENPEACE, INC., and BP      )    [No. 5816 - June 18, 2004]
             Appellees.            )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sigurd E. Murphy, Judge pro tem.

          Appearances:   Robert C.  Nauheim,  Assistant
          Attorney  General, Anchorage,  and  Gregg  D.
          Renkes,   Attorney   General,   Juneau,   for
          Appellant.  Nancy S. Wainwright, Law  Offices
          of   Nancy  S.  Wainwright,  Anchorage,   for
          Greenpeace,  Inc.  Jeffrey M. Feldman,  Susan
          Orlansky,   and  Ruth  Bostein,   Feldman   &
          Orlansky,   Anchorage,  for  BP   Exploration
          (Alaska) Inc.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          EASTAUGH, Justice.


          Greenpeace,  Inc.  argues  that  the  State  of  Alaska

deprived Greenpeace of due process when the state lifted its stay

of  a  temporary water use permit on one days notice.  The public

interest exception justifies our consideration of the due process

issue  although  it is technically moot.  We hold  that  although

lifting  the  stay  on one days notice denied Greenpeace  a  fair

opportunity  to be heard, its subsequent opportunity to  litigate

both  the  lifting of the stay and the permits merits cured  this

violation  of  due  process.  We therefore reverse  the  superior

court decision that held to the contrary.


          In  August  1999 BP Exploration (Alaska),  Inc.  (BPXA)

applied for a temporary water use permit (TWUP) to remove seventy

million gallons of water from the Lower Kuparuk River or adjacent

watershed during the winter of 1999-2000.  The water was to  come

from  the  Seal Island Mine site, a gravel pit next to the  Lower

Kuparuk  River, that fills each year during the spring  flood  of

the  Kuparuk River delta.  During the winter construction  season

the gravel pit has little, if any, hydrological connection to the

Kuparuk  River.  The application stated that the water  would  be

used  for  ice  road  construction  to  support  BPXAs  Northstar

project.  BPXA also applied to the Alaska Department of Fish  and

Game  (ADF&G)  for  a fish habitat permit under AS  16.05.870(b).

ADF&G  issued  the  fish  habitat permit but  limited  the  water

withdrawal  to  fifty-six  million  gallons.   In  reviewing  the

application, ADF&G concluded that the permitted water  withdrawal

during  the winter would remove fifteen percent of the  available

water  under  the ice and that an adequate amount of water  would

remain  for  the fish and their habitat.  The Alaska Division  of

Governmental Coordination reviewed BPXAs application for the TWUP

for  consistency with the Alaska Coastal Zone Management Program.

It  found  that the proposed permit was consistent  with  coastal

zone  policies  concerning  fish habitat.   Following  these  two

findings, the Water Resources Section of the Division of  Mining,

Land  and  Water  of  the Department of Natural  Resources  (DNR)

issued TWUP A00-10 to BPXA on December 16, 1999, permitting water

withdrawals  from  the  Kuparuk site  totaling  up  to  fifty-six

million gallons.  The permit was to expire July 1, 2000.

          On January 14, 2000 Greenpeace appealed the decision to

issue  TWUP A00-10.  Its appeal asked that TWUP A00-10 be revoked

because  of  the irreparable harm appellant has suffered  and  is

suffering  to its due process rights, and the actual  irreparable

physical  harm  occasioned  by the  adverse  impacts  to  coastal

resources  and  water  resources from the  unauthorized  and  the

approved  water  use  by BPXA.  Greenpeace  moved  for  expedited

consideration.  At that time 11 Alaska Administrative Code  (AAC)

02.060(a)  (1991)  provided for an automatic  stay  of  a  permit

decision  when  a  party  appealed the  permits  issuance.1   DNR

therefore stayed its decision to issue the permit, but on January

27  BPXA filed a motion asking the division director to lift  the

stay;  BPXA  also  asked  that  its  motion  be  given  expedited

consideration.   On January 27 DNR left a telephone  message  for

Greenpeaces representative informing him that Greenpeace had  one

day to oppose BPXAs request to lift the stay.  The representative

was out of town and did not receive the message for several days.

BPXA certified that it served Greenpeace by delivering a copy  of

BPXAs  request to lift the stay to Greenpeaces office on  January

27.   The  division director and the DNR commissioner lifted  the

stay on January 28 by decision issued that day.

          On  February 7 Greenpeace requested reconsideration  of

the decision to lift the stay.  Its request stated:

          [t]he limited time within which Appellant has
          to  submit  information, and  the  fact  that
          Appellant has not yet been able to review the
          administrative  record in this  appeal  means
          that   Appellant   cannot  submit   necessary
          additional  information until access  to  the
          administrative record is granted,  and  until
          Appellants hydrologist can review the records
          of DNR.
On  February  25 the commissioner denied reconsideration  of  the

decision  lifting  the  stay. His denial stated  that  Greenpeace

provides  no evidence that there is any actual imminent  risk  or

threat to fish and wildlife posed by the lifting of the stay, and

that  Greenpeace  relied on unsubstantiated  allegations  without

providing  any new information.  The denial letter  also  granted

Greenpeaces   request  for  additional   time   to   review   the

administrative record as well as access to that record.

          On March 28, 2000 Greenpeace appealed the commissioners

denial  to  the superior court.  Greenpeace also filed  a  motion

asking  the  superior  court to stay DNRs decision  to  lift  the

automatic  stay pending the courts review of the  merits  of  the

appeal.  Greenpeace claimed, among other things, that in  lifting

the  stay  DNR  had denied Greenpeace due process and  improperly

failed  to  apply the criteria of AS 46.15.080.  On  May  4  BPXA

notified the division director and the commissioner that it would

no  longer  need  the  permit after May  8,  because  the  winter

construction  season had ended; it also stated that it  therefore

had  no  objection  to  reinstating  the  stay  on  May  8.   The

commissioner withdrew his decision lifting the stay as of May  9,

and  on  May 5 DNR and BPXA notified the superior court  that  it

need  not rule on Greenpeaces motion to stay the lifting  of  the

stay.   On May 8, 2000 the superior court decided that the motion

to stay was moot.  The court later characterized that decision as

denying the motion and noted that TWUP A00-10 expired on July  1,

2000.  This was the permits original expiration date.

          In July 2000 the commissioner and the division director

entered  their  final  decision  on  Greenpeaces  appeal  of  the

underlying  decision to issue the permit.  They  determined  that

the permit appeal was moot but nonetheless addressed the merits:

          Greenpeace does not allege any actual harm to
          the aquatic environment of the Kuparuk River.
          Nor   does   it   provide  any  evidence   of
          environmental harm.  Instead, its argument is
          that   the   Department  has  not   taken   a
          sufficiently  detailed look at the  potential
          for  environmental  harm.  These  contentions
          are without merit.
          As a preliminary matter, the water use permit
          does  not authorize withdrawal of water  from
          the  Kuparuk River.  It authorizes  temporary
          water  use from a gravel pit near the Kuparuk
          River.   This  gravel pit  fills  with  water
          during spring and summer high flow events  of
          the   Kuparuk  River.   Division  staff  have
          determined  that source of water  covered  by
          the  permit  has  no  appreciable  hydrologic
          connection to the Kuparuk River during winter-
          -the   period   of   water   withdrawal   and
          construction  activity.   Thus,   Greenpeaces
          allegations  concerning  the  potential   for
          adverse impact upon the fish and wildlife  in
          the Kuparuk area are misplaced.
          It  should  also be noted that the Department
          of  Fish  and Game (ADF&G), the state  agency
          with primary responsibility for fish and game
          management in Alaska, has expressly  approved
          the  water withdrawal authorized by TWUP A00-
          10  in  Title  16.  To the extent  Greenpeace
          believed  that the ADF&G permit  was  legally
          deficient  in  some respect,  it  could  have
          sought  to  appeal  that  decision.   It  has
          chosen not to do so.  The Department must  be
          able to rely on unchallenged findings of  its
          sister  agencies charged with  responsibility
          to  manage state resources.  It must also  be
          able  to rely on the expertise of that agency
          concerning   the   resources   it    manages.
          Greenpeace[s]   appeal[]  of  the   Divisions
          issuance  of a temporary water use permit  on
          the  grounds  that  it has  not  sufficiently
          considered the potential impact [on] fish and
          wildlife  habitat disregards  this  necessary
          division  of  administrative  responsibility.
          As  both  a  practical policy matter,  and  a
          legal matter, the Department has no reason to
          question ADF&Gs approval of the permit.
(Original emphasis.)  Greenpeace did not appeal this decision  to

the superior court.

          In  July 2001, while Greenpeaces superior court  appeal

of  the division directors and commissioners decision to lift the

stay  was  pending,  a new statute relating to issuing  temporary

water use permits became effective.2  Alaska Statute 46.15.155(e)

states that [t]he provisions of AS 46.15.080 do not apply to  the

issuance under this section of an authorization for temporary use

of  water.3   Alaska Statute 46.15.080 pertains to  findings  and

          considerations necessary for issuing a permit.

          DNR  also  amended  11  AAC  02.060,  effective  as  of

September  2001.4   In  part, the amendment  abolished  automatic

stays  during  appeals of permits that are  revocable  at  will.5

Instead, the amended regulation allows the commissioner to impose

a  stay in those disputes if the commissioner determines that the

public interest requires it.6

          After the statute and regulation were amended, DNR  and

BPXA  argued  in  the superior court that the  amendments  mooted

Greenpeaces  appeal from the administrative decision lifting  the


          In  Greenpeaces  appeal of DNRs decision  to  lift  the

stay,  the  superior court held on October 5, 2001 that  (1)  the

issues  were  not moot, because the public interest exception  to

the   mootness  doctrine  applied,  and  (2)  DNR  had   violated

Greenpeaces due process rights.  The court also decided that DNRs

decision  that concluded that lifting the stay was in the  public

interest  was  arbitrary and capricious and a  clear  error  [in]


          DNR  appealed the superior courts decision.  BPXA  gave

notice that it would join the appeal as an appellant.8


     A.   Standard of Review

          This  case  requires us to review the decision  of  the

superior court sitting as an intermediate appellate court.   When

the  superior court acts as an intermediate appellate court, [w]e

independently   review   the  merits  of   [the]   administrative

determination.9   We normally apply various standards  of  review

when  reviewing administrative decisions.10  But here we  do  not

need  to  review the merits of DNRs decision.  Instead,  in  this

case  we  address (1) a claim of mootness and (2) a  due  process

argument  by  reviewing  the constitutional  sufficiency  of  the

notice   DNR  gave  to  Greenpeace.   The  court  exercises   its

discretion  in  deciding whether to address a moot  issue.11   We

          review  questions  of law and issues of  constitutional

interpretation de novo.12

     B.   Public Interest Exception to Mootness

          DNR  argues that Greenpeaces appeal from DNRs  decision

is   moot  because   TWUP  A00-10  has  expired;  thus,  no  live

controversy  still exists.  DNR points out that  BPXA  terminated

water  use  under  the  disputed permit in  May  2000,  and  that

Greenpeace  did not file a superior court appeal from  DNRs  July

2000  final  decision that denied Greenpeaces agency appeal  from

the divisions decision to issue the permit.

          DNR  also argues that this case does not fit within the

public interest exception to the mootness doctrine.  It maintains

that  Greenpeaces due process argument is dependent on the unique

facts of this case, which DNR contends are highly unlikely to  be

repeated.  DNR also asserts that 11 AAC 02.060  no longer imposes

an  automatic  stay of a DNR decision to issue a temporary  water

use permit.

          TWUP  A00-10  has  expired.  Disputes  concerning  that

permit  are consequently technically moot.  We generally  refrain

from  deciding  questions where events have  rendered  the  legal

issues moot.13  Yet  where the matter is one of public concern and

is  recurrent but is capable of evading review, there is a public

interest exception to the mootness doctrine.14  As we explained in

Hayes v. Charney:

          The  public  interest exception involves  the
          consideration  of  three  main  factors:   1)
          whether  the disputed issues are  capable  of
          repetition, 2) whether the mootness doctrine,
          if  applied, may repeatedly circumvent review
          of  the  issues  and, 3) whether  the  issues
          presented  are  so important  to  the  public
          interest   as   to  justify  overriding   the
          mootness doctrine.[15]
          It  appears to us that the disputed due process  issues

are  capable  of  repetition.  It is true  that  the  legislature

enacted  AS  46.15.155 after TWUP A00-10 was issued,  eliminating

the  requirement  to  apply the public interest  criteria  of  AS

          46.15.080(b) to decisions to issue temporary water permits.

Nonetheless the DNR commissioner may issue permits, and  issuance

decisions  can  still  be  stayed  under  11  AAC  02.060.    The

constitutional  sufficiency of procedures for resolving  disputes

about  imposing and vacating stays of temporary water use  permit

decisions  therefore remains a potentially recurring issue;  only

the factors to be considered during the appeal have changed.  DNR

has also amended 11 AAC 02.060, eliminating the automatic stay in

appeals  of permits that are revocable at will.  Future  disputes

will  no longer be governed by the version of 11 AAC 02.060  that

applied to this case.  Nevertheless, the amended regulation gives

the   commissioner  discretion  to  impose  stays  and  therefore

inherently gives the commissioner discretion to lift them.  It is

immaterial  that  a  decision to stay will be discretionary,  not

automatic,   for  TWUPs  that  are  revocable   at   will.    The

constitutionality of the procedures the commissioner follows when

deciding whether to lift stays will therefore continue to  be  an

important and potentially recurring issue.  Consequently,  during

any  appeal  of  a  TWUP,  these same procedural  issues  may  be

repeated,  even  though  the substantive  factors  governing  the

merits of the stay decision have changed.

          Because  TWUPs  are  necessarily temporary,  especially

those  for  seasonal  construction  of  ice  roads,  there  is  a

significant possibility they will expire before a stay or  permit

dispute is finally decided.16   Therefore, rigorous application of

the  mootness  doctrine  makes  it nearly  impossible  to  obtain

administrative  and  judicial  review  of  a  temporary   permit.

Greenpeaces  temporary permit appeal consequently  satisfies  the

second prong of the public interest exception test.

          This  brings us to the third prong.  Natural  resources

are  of  prime importance to the public.  Water is a key  natural

resource, listed in article VIII, sections 2 and 13 of the Alaska

Constitution.17   Likewise, concepts of fairness  underlying  the

right  to procedural due process are important.  Whether a matter

          of public interest can be resolved on one-days notice without

offending  due  process raises a question of  importance  to  the

public.   The  issues  here  are therefore  important  enough  to

warrant  review,  notwithstanding their technical  mootness.   We

conclude  that  this  appeal as to the constitutionality  of  the

procedure  followed  in  lifting the stay  satisfies  the  public

interest exception to the mootness doctrine.

          Greenpeace did not appeal from the merits of DNRs final

decision  to  issue TWUP A00-10, but that does not  foreclose  an

appeal  from  the procedural due process issues relating  to  the

stay.   The  issue whether the procedure DNR followed in  lifting

the  stay  satisfied  due  process  arises  separately  from  the

unpreserved question whether the permit should have been denied.

     C.   Greenpeaces Standing To Raise the Due Process Issue

          As a preliminary matter, DNR argues that Greenpeace did

not   have  a  protected  property  interest  at  stake  in   the

proceedings before DNR; it therefore asserts that no due  process

protection  applies.  DNR argues that Greenpeace has  no  more  a

property  interest in this matter than all Alaska  citizens,  and

that  this interest is not sufficient for due process protection.

It contends that Greenpeace is wrong in arguing on appeal that no

property  interest  is  required to entitle  a  litigant  to  due


          We  do  not  need  to decide whether Greenpeace  had  a

property   interest  in  the  DNR  permit  dispute.   In   State,

Department  of Natural Resources v. Universal Education  Society,

Inc.,  we  stated that an applicant for an offshore mining  lease

had  no  property right of which it was deprived by [DNR]s denial

of  the application.18  We nonetheless held that the applicant in

that  case was entitled to a full and fair opportunity to present

its  case  to  DNR.19   Once Greenpeace  challenged  TWUP  A00-10

administratively,  it was entitled to due process,  i.e.,  notice

and  an  opportunity to be heard, while the agency  resolved  the

permit dispute, including the stay issue.

     D.   Original Notice and Opportunity To Be Heard

          DNR   argues  that  it  gave  Greenpeace  a  meaningful

opportunity to be heard consistent with due process requirements.

DNR  contends  that it had to decide this case  quickly,  because

delay  could have imposed a substantial financial burden on  both

BPXA   and   the  state  and  could  have  interfered  with   the

construction schedule.

          Due process does not have a precise definition, nor can

it  be reduced to a mathematical formula.20  It expresses a basic

concept of justice

          such  as  our traditional conception of  fair
          play  and substantial justice, the protection
          of  the  individual  from  arbitrary  action,
          fundamental   principles   of   liberty   and
          justice, whether there has been a (denial of)
          fundamental   fairness,   shocking   to   the
          universal   sense  of  justice,  that   whole
          community sense of decency and fairness  that
          has  been woven by common experience into the
          fabric of acceptable conduct.[21]
When  due  process  is  required, there is  a  certain  level  of

procedural fairness that must be accorded to an affected party.22

In   addition,   the  Alaska  Constitution  can   offer   broader

protections  than corresponding provisions of the  United  States


          Administrative   proceedings  must  comply   with   due

process.24  We have stated that

          [t]he  crux of due process is opportunity  to
          be   heard   and  the  right  to   adequately
          represent ones interests.  Adequate notice is
          the  common vehicle by which these rights are
          guaranteed.   Where notice is inadequate  the
          opportunity   to  be  heard  can   still   be
          preserved   and  protected  if  a  contestant
          actually appears and presents his claim.[25]
Similarly,   we  have  stated  that  notice  must  be  reasonably

calculated  under all the circumstances to apprise the individual

of  the  pendency of the deprivation and to afford an opportunity

to present objections.26

          In  Doe  v.  State a summons ordered the  appellant  to

          appear before the court the following day, a Friday.27  At the

Friday  hearing defense counsel asked for a continuance, and  the

court  continued the hearing until Monday morning without  asking

counsel  whether that was enough time.28  We found that one  days

notice was insufficient to afford a reasonable time to prepare.29

We also found that two weekend days were insufficient for counsel

to  prepare the defense, especially considering that  he  had  to

prepare  another  minors defense in a drug  charge  trial.30   In

Johnson v. Johnson we stated that due process requires notice and

an opportunity to be heard prior to the deprivation of a property

interest protected by the fourteenth amendment.31  We nevertheless

decline  to establish a fixed minimum notice period, because  the

requirements of due process vary in different situations.32

          The United States Supreme Court has said that to comply

with  due process requirements, notice must be given sufficiently

in  advance  of  scheduled court proceedings so  that  reasonable

opportunity  to  prepare  will  be  afforded.33   The  Court  has

emphasized  that  the  hearing must  occur  before  the  property

interest  is taken away.  In Fuentes v. Shevin the Court reviewed

two statutes authorizing summary seizure of a persons goods under

a   writ  of  replevin  without  first  granting  notice  to  the

possessor.34  The Court held that these statutes deprived a person

of property without due process of law insofar as they denied the

right   to  be  heard  before  chattels  were  taken  from  their

possessor.35  The Court reasoned as follows:

          If  the right to notice and a hearing  is  to
          serve  its  full purpose, then, it  is  clear
          that  it  must be granted at a time when  the
          deprivation  can  still be prevented.   At  a
          later hearing, an individuals possessions can
          be  returned to him if they were unfairly  or
          mistakenly taken in the first place.  Damages
          may  even  be awarded to him for the wrongful
          deprivation.   But no later  hearing  and  no
          damage  award  can  undo the  fact  that  the
          arbitrary  taking  that was  subject  to  the
          right  of procedural due process has  already
          occurred.  This Court has not . . .  embraced
          the  general proposition that a wrong may  be
          done if it can be undone.[36]
          There  are exceptions to this general rule.  In Fuentes

the Court stated that due process requires  that an individual be

given  an opportunity for a hearing before he is deprived of  any

significant   property   interest,   except   for   extraordinary

situations  where some valid governmental interest  is  at  stake

that  justifies postponing the hearing until after the event.  37

These extraordinary situations must be truly unusual.38  The Court

has  outlined  when such situations had been found  to  exist  in

prior cases:

          First,  in  each case, the seizure  has  been
          directly  necessary  to secure  an  important
          governmental  or  general  public   interest.
          Second,  there  has been a special  need  for
          very  prompt  action.  Third, the  State  has
          kept  strict  control over  its  monopoly  of
          legitimate  force; the person initiating  the
          seizure   has  been  a  government   official
          responsible   for  determining,   under   the
          standards  of a narrowly drawn statute,  that
          it   was  necessary  and  justified  in   the
          particular  instance.  Thus,  the  Court  has
          allowed   summary  seizure  of  property   to
          collect  the internal revenue of  the  United
          States,  to meet the needs of a national  war
          effort,   to  protect  against  the  economic
          disaster  of a bank failure, and  to  protect
          the   public   from  misbranded   drugs   and
          contaminated food.[39]
The  Court  conceded  that due process  imposes  costs  in  time,

effort,  and  expense.40  Yet, [p]rocedural due  process  is  not

intended  to  promote  efficiency  or  accommodate  all  possible

interests: it is intended to protect the particular interests  of

the person whose possessions are about to be taken.41

          In  Mathews v. Eldridge the United States Supreme Court

established a sliding scale for determining the specific dictates

of  due process in a particular situation.42  It stated that  the

following three factors need to be considered:

          First,  the  private interest  that  will  be

          affected by the official action; second,  the

          risk  of  an  erroneous deprivation  of  such

          interest through the procedures used, and the

          probable  value,  if any,  of  additional  or

          substitute    procedural   safeguards;    and

          finally,  the Governments interest, including

          the  function  involved and  the  fiscal  and

          administrative burdens that the additional or

          substitute   procedural   requirement   would


Thus,  what  process  is due depends on the interest  implicated.

But  at  a  minimum, a litigant with standing to  raise  a  valid

question  of  public interest must be given  notice  and  a  fair

opportunity to be heard.

          DNR,  by  leaving  Greenpeace a  telephone  message  on

January  27,  2000, notified Greenpeace that it had  one  day  to

oppose  the  lifting of the stay.  The Greenpeace  representative

did not receive the message until several days later, because  he

was  out of town.  Although DNR gave Greenpeace prior notice that

the  stay  might be lifted, it gave Greenpeace only  one  day  to

respond.   One  day  was not enough time in which  to  prepare  a

response  under these circumstances.  If Greenpeaces  contentions

were   correct,  the  temporary  water  use  permit  would   have

threatened  fish  and  wildlife dependent on  the  Lower  Kuparuk

River.  Based on the Mathews sliding scale, the importance of the

issues  in  dispute and the consequences if DNR was in  error  in

issuing the permit entitled Greenpeace to time in which to oppose

lifting the stay.  Unlike Doe, this is a civil matter.  But as we

have  seen  above,  civil litigants also have a  right  to  prior

notice  and  a fair opportunity to be heard.  It does not  matter

that  this was an administrative matter, not yet before a  court,

or  that  Greenpeace was a public interest litigant.  Due process

and the notion of fairness still apply.

          Under   the  circumstances  presented  here,  such   an

accelerated  proceeding  was  not  justified.   BPXA  asked   for

expedited consideration of its motion to lift the stay,  but  the

circumstances  did  not require action within twenty-four  hours.

          Neither of the first two conditions enumerated in Fuentes existed

here.   The  permit allowed a private company to  take  a  public

resource.  There is no valid claim that extending the stay a  few

more  days  would have deprived BPXA of compensable rights  on  a

takings theory.

          Second,  no  emergency existed.  It  appears  from  the

record  that while the stay was in place, BPXA could  have  taken

water  from  the  Kuparuk Deadarm Mine Site,  two  miles  up  the

Kuparuk  River.   Dirk  Smit,  BPXAs Northstar  Project  Manager,

stated  in  an affidavit that [e]ven a short delay  in  ice  road

construction  could mean an entire years delay in  the  Northstar

development.  But this general assertion was not specific  enough

to explain why action within twenty-four hours was necessary.  If

project  schedules  were so critical that  immediate  action  was

required,  a more specific showing surely could have been  easily

made  discussing  such  facts as the construction  schedule,  the

workdays  available,  and  how  soon  work  could  begin.   Other

circumstances might also have been relevant.  A general assertion

that  even a short delay would be prejudicial is insufficient  to

cut  off  a  partys fair opportunity to be heard.   This  is  not

enough  evidence to support a conclusion that using the alternate

water source would have so seriously burdened BPXA and threatened

the  project to justify denying Greenpeace more than one  day  in

which  to be heard.  Moreover, if [e]ven a short delay threatened

the  entire  construction season as Smit  asserted,  and  if  the

matter  was truly as urgent as BPXA and DNR claim it was,  it  is

odd that BPXA waited until January 27 to ask DNR to lift the stay

imposed  on  January  14.   We  conclude  that  no  extraordinary

circumstances  existed that justified denying Greenpeace  a  fair

opportunity to be heard.

          DNR  consequently violated Greenpeaces right to  notice

and  fair  opportunity to be heard when DNR lifted  the  stay  on

January 28, only one day after BPXA asked DNR to do so.

     E.   Subsequent Notice and Opportunity To Be Heard

          We  next  consider whether this violation was cured  by

Greenpeaces  subsequent opportunities to  contest  the  stay  and

permit issues.

          Greenpeace  states  that it originally  asked  DNR  for

access  to  the  files on January 14, 2000.  It claims  that  DNR

ignored this request.  Greenpeace again asked for the files  when

it   requested  reconsideration  of  the  January  28   decision.

Greenpeace claims that DNR ignored this second request until  the

end  of  February,  by  which time most of BPXAs  water  use  was

complete.   Greenpeace consequently argues that  DNRs  action  on

reconsideration did not afford Greenpeace its day in court,  thus

denying it due process.

          In   limited   circumstances  where  an   extraordinary

situation, of the sort described in Fuentes, does not exist,  due

process may still be preserved by granting an opportunity  to  be

heard  after  the initial decision.  In Johnson  v.  Johnson  the

superior  court issued a memorandum decision modifying a  divorce

decree  because  circumstances had changed; the  court  did  this

without providing the parties an opportunity to submit briefs  or

argue  orally.44  The ex-wife moved the court to  reconsider  its

memorandum  decision and order, but after hearing  argument,  the

court  denied  her motion.45  The ex-wife then appealed  to  this

court,  which affirmed the order, albeit modifying it slightly.46

We  stated  that were this an appeal directly from the memorandum

decision . . . the due process violation would have been  readily

established, and the necessity of remand clear.47  We then stated


          Mrs.  Johnson,  however, moved  the  superior
          court to reconsider its decision on March 15,
          1974.  Pursuant to that motion, the plaintiff
          was  able  to file a supporting brief  and  a
          reply brief.  In addition, on April 11, 1974,
          she appeared through her counsel before Judge
          Taylor   and  made  substantially  the   same
          arguments she has made before this  court  on
          appeal.  Thereafter, the court, having  fully
          considered the matters relevant thereto,  and
          being  fully advised in the premises,  denied
          the motion for reconsideration.
               Thus,      despite     the      apparent
          constitutional prematurity of  [the]  .  .  .
          decision, this appeal does not come before us
          under  such circumstances that one party  has
          been completely deprived of either notice  or
          an  opportunity  for a full  hearing  on  the
          merits.  Rather, the question confronting the
          court is whether the opportunity to brief and
          argue  a  motion  for  reconsideration  of  a
          decision  suffices to satisfy  constitutional
          due process.[48]
We decided that

          the  plaintiff had her day in  court.   Under
          the  particular facts of this case where  the
          trial  court was enforcing the terms  of  the
          prior  decree, ample opportunity was afforded
          to   brief  and  argue  the  merits  and   to
          introduce  any evidence tending  to  disprove
          any of the trial judges adverse findings.
               .  . . Mrs. Johnson was not deprived  of
          any property rights without first having been
          afforded an opportunity to be heard.  We hold
          that the due process provisions of the United
          States  and  Alaska  Constitutions  were  not
In  Mitchell  v. W. T. Grant Co. the United States Supreme  Court

upheld  a  Louisiana sequestration procedure that  permitted  the

creditor  to  obtain  a writ of sequestration  without  providing

prior notice to the debtor.50  The Court reasoned that because the

statute  (1)  entitled the debtor to immediately seek dissolution

of  the  writ unless the creditor proved certain matters and  (2)

granted  damages  to  the  debtor under certain  conditions,  the

statute balanced the two parties constitutional interests.51  The

Court  stated that no hearing at a preliminary stage is necessary

as  long  as the requisite hearing is provided before  the  final

decision becomes effective: The usual rule has been (w)here  only

property  rights are involved, mere postponement of the  judicial

enquiry is not a denial of due process, if the opportunity  given

for ultimate judicial determination of liability is adequate. 52

          Even  after  DNR  lifted the stay,  Greenpeace  had  an

opportunity   to   present  its  case,  and  it  exercised   that

opportunity.   On  February  7  Greenpeace  requested  that   DNR

          reconsider the lifting of the stay; this request was similar to

Mrs.  Johnsons  superior court motion for reconsideration.   This

request  also  stated that Greenpeace had not yet  been  able  to

review the administrative record and asked for access to it.   On

February  25  the  commissioner denied  Greenpeaces  request  for

reconsideration  and stated that TWUP A00-10  was  available  for

review during business hours.  He also stated that Greenpeace (1)

failed to provide any countervailing evidence or argument on  the

points  BPXA raised in its motion to lift the stay and (2) relied

on  unsubstantiated  allegations that  do  not  provide  any  new

information   or   legitimate   reason   that   justifies    [the

commissioners]  reversing [his] original  decision  to  lift  the

automatic stay.  Thus, as in Johnson and Mitchell, Greenpeace had

opportunities  to contest DNRs decision, and it continued  to  do

so.   It simply failed to convince the commissioner that the stay

should be reimposed.  Lifting the stay on January 28 was not  the

commissioners final decision; although lifting the stay only  one

day  after  BPXA  asked  DNR  to do so violated  Greenpeaces  due

process rights, DNR nonetheless ultimately granted Greenpeace the

process it was due by reviewing its request for reconsideration.

          Greenpeace  contended  that DNR  denied  it  access  to

information,  but the commissioner in his letter of  February  25

informed  Greenpeace that it could view TWUP A00-10 and the  rest

of   the  administrative  record  during  business  hours.    The

commissioner  granted  Greenpeace  four  weeks  to   view   these

documents  and  submit any additional argument or evidence.   The

letter  provided a contact persons name and telephone number,  so

that  Greenpeace  could  make  the necessary  arrangements.   DNR

therefore  gave  Greenpeace  access to  the  relevant  documents.

Accordingly, the procedures DNR followed after it lifted the stay

preserved Greenpeaces right to due process.

     F.   Reviewability of the Merits of Lifting the Stay of TWUP


          DNR argues that the superior court erred in ruling that

because DNR did not apply statutory public interest criteria  for

issuing  a  permit, DNRs decision to lift the stay was  arbitrary

and   capricious.   DNR  also  argues  that  the  case  is  moot.

Greenpeace argues that the superior court correctly decided  that

DNR arbitrarily and capriciously ignored the public interest when

it lifted the automatic stay.

          Given the unusual circumstances of this case, we see no

justification for judicial review of the merits of  the  decision

to lift the stay.  The issue is certainly moot.  Deciding whether

the  commissioner  and  the  division director  were  correct  in

lifting  the stay would necessarily implicate the merits of  DNRs

decision to issue TWUP A00-10.  But Greenpeace did not appeal  to

the  superior  court from the final administrative  decision  the

commissioner  and  the  division director  issued  in  July  2000

denying Greenpeaces administrative permit appeal. And the  permit

itself  expired  in July 2000. Moreover, the controlling  statute

and  regulation  were  both amended in  2001,  after  the  permit

expired  and  before the superior court ruled on the stay  issue.

These  circumstances mooted the question whether DNR should  have

reinstated the stay.

          The public interest exception does not justify judicial

resolution  of the mooted issue.  The amendments to  the  statute

and  regulation  make it unlikely the issue will recur,  and  our

discussion  of the due process issue makes it unlikely  DNR  will

lift a stay without giving adequate notice.  It is also difficult

to  characterize the permit issue as so important as  to  warrant

review despite its mootness, given that Greenpeace did not appeal

the  permit  issue to the superior court.  We conclude  that  the

justifications  for  considering  the  moot  due  process   issue

discussed  in  Part  III.B do not apply  to  the  merits  of  the

decision  lifting the stay.  We also think that  the  stay  issue

should not be a proxy for resolving the unpreserved permit issue.

We  therefore  vacate the portion of the superior court  decision

that  held that DNRs decision to lift the stay was arbitrary  and


          We  decline  to  decide other ancillary questions  that

Greenpeace  invites us to answer, because we conclude  that  they

also  turn on the merits of the permit decision and are therefore


     G.   Attorneys Fees

          DNR  and BPXA argue that because they should have  won,

Greenpeace  should not be considered the prevailing party.   They

therefore  ask  that  we  vacate the  superior  courts  award  of

attorneys fees to Greenpeace.

          Because  we  conclude  that the due  process  violation

ultimately  did not prevent Greenpeace from being heard,  it  did

not  prevail on the due process issue.  And all other issues  are

moot.  We therefore vacate the superior courts award of attorneys



          The  public interest exception to the mootness doctrine

justifies judicial review of the due process issue, but  not  the

merits  of  the  decision  lifting the  stay.   Even  though  DNR

initially  violated Greenpeaces right to due process,  DNR  later

cured  that  violation  by  permitting  Greenpeace  to  move  for

reconsideration.   We  therefore  REVERSE  the  superior   courts

decision and VACATE Greenpeaces award of attorneys fees.

     1     The  regulation  also gave the  commissioner  and  the
director  the  authority  to  lift  an  automatic  stay  if   the
commissioner  or  the  director determined that  public  interest
required  it.  11 AAC 02.060(a) (1991).  Former 11 AAC  02.060(a)

          Timely   appealing  a  decision  within   the
          department  in accordance with  this  chapter
          stays  the  decision during  the  departments
          consideration  of the appeal or  request  for
          reconsideration   unless  the   director   or
          commissioner,  in  his  or  her   discretion,
          decides  that  the  public interest  requires
          that  the  decision or any part of it  should
          take  effect  on  the  date  stated  in   the
          decision  or, if that date has passed,  on  a
          date set by the director or commissioner.
     2    Ch. 100,  13, SLA 2001 (making the relevant sections of
the statute effective July 12, 2001).

     3    Ch. 100,  6, SLA 2001.

     4    11 AAC 02.060 (2003).

     5    11 AAC 02.060(c), (d) (2003).

     6    11 AAC 02.060(d) (2003).

     7    The court seemed to define public interest per criteria
set out in AS 46.15.080.

     8     Alaska Rule of Appellate Procedure 204(g) states  that
[a]  party  who  files a notice of appeal, whether separately  or
jointly,  is  an appellant under these rules.  All other  parties
are  deemed  to be appellees, regardless of their status  in  the
trial  court.   DNR appealed the superior courts decision.   BPXA
filed no notice of appeal.  DNR is therefore technically the only
appellant;  BPXA  and  Greenpeace are therefore  both  appellees.
Nevertheless, when the parties submitted their briefs, we treated
BPXA,  which  is aligned with DNR, as an appellant and  chose  to
allow  it  to  file  a brief responding to Greenpeaces  appellees

     9    Bruner v. Petersen, 944 P.2d 43, 47 n.5 (Alaska 1997).

     10     We  apply  the de novo standard if the administrative
agencys  expertise provides little guidance to the court,  or  if
the  case concerns statutory interpretation or other analysis  of
legal relationships about which courts have specialized knowledge
and  experience.  Kelly v. Zamarello, 486 P.2d 906,  916  (Alaska
1971); see also Tulkisarmute Native Cmty. Council v. Heinze,  898
P.2d  935,  940  (Alaska  1995) (Additionally,  interpreting  the
applicable statutory requirements for granting a permit extension
does  not  involve agency expertise. We consequently  review  the
issues  of  statutory  interpretation under the  substitution  of
judgment  standard.).  We limit our review of  an  administrative
regulation to  (1) whether the regulation is reasonable  and  not
arbitrary; and (2) whether the regulation is consistent with  the
statute  and  reasonably necessary to its  purposes.    Lauth  v.
State, 12 P.3d 181, 184 (Alaska 2000) (quoting Bd. of Trade, Inc.
v.  State,  Dept of Labor, Wage & Hour Admin., 968  P.2d  86,  89
(Alaska  1998)).  Whether the regulation is consistent  with  the
statute involves statutory interpretation, which is a question of
law,  to which we apply our independent judgment.  See Payton  v.
State,  938 P.2d 1036, 1041 (Alaska 1997).  We review an  agencys
interpretation  of its own regulation under the reasonable  basis
standard,  deferring to the agency unless it is plainly erroneous
and  inconsistent with the regulation.   Lauth, 12  P.3d  at  184
(quoting  Bd.  of  Trade,  968 P.2d at  89).   We  review  agency
discretionary actions not requiring formal procedures under   the
arbitrary   and  capricious  or  abuse  of  discretion  standard.
Tulkisarmute,  898 P.2d at 940 (quoting Olson v. State,  Dept  of
Natural Res., 799 P.2d 289, 293 (Alaska 1990)).

          Under  that standard the court must  consider
          whether   the  decision  was   based   on   a
          consideration  of  the relevant  factors  and
          whether  there  has been  a  clear  error  of
          judgment.  .  . . Although this inquiry  into
          the facts is to be searching and careful, the
          ultimate standard of review is a narrow  one.
          The  court is not empowered to substitute its
          judgment for that of the agency.
Id.   (quoting  Citizens to Preserve Overton Park v.  Volpe,  401
U.S. 402, 416 (1971)).

     11     Tulkisarmute,  898 P.2d at 940 n.7  (Ultimately,  the
determination whether to review a moot question is  left  to  the
discretion of the court.) (quoting Doe v. State, 487 P.2d 47,  53
(Alaska 1971)).

     12     Revelle  v. Marston, 898 P.2d 917, 925  n.13  (Alaska

     13    Tulkisarmute, 898 P.2d at 940 n.7.

     14     Id.  (quoting  Hayes v. Charney, 693  P.2d  831,  834
(Alaska 1985)).

     15    Hayes, 693 P.2d at 834.

     16    The commissioners final permit decision here was issued
several weeks after TWUP A00-10 expired.

     17     Article  VIII,  section 2 of the Alaska  Constitution
provides:  The  legislature shall provide  for  the  utilization,
development, and conservation of all natural resources  belonging
to  the State, including land and waters, for the maximum benefit
of   its   people.   Article  VIII,  section  13  of  the  Alaska
Constitution provides:

          All surface and subsurface waters reserved to
          the people for common use, except mineral and
          medicinal    waters,    are    subject     to
          appropriation.   Priority  of   appropriation
          shall  give  prior right.  Except for  public
          water supply, an appropriation of water shall
          be  limited to stated purposes and subject to
          preferences among beneficial uses, concurrent
          or  otherwise, as prescribed by law,  and  to
          the general reservation of fish and wildlife.
     18     State, Dept of Natural Res. v. Universal Educ.  Socy,
Inc., 583 P.2d 806, 809 (Alaska 1978).

     19    Id. at 810.

     20     Green  v.  State, 462 P.2d 994, 996-97 (Alaska  1969)
(citations omitted).

     21    Id. (citations omitted).
     22    Nichols v. Eckert, 504 P.2d 1359, 1364 (Alaska 1973).

     23     Baker  v.  City  of Fairbanks, 471 P.2d  386,  401-02
(Alaska 1970).

     24     K & L Distribs., Inc. v. Murkowski, 486 P.2d 351, 357
(Alaska 1971).

     25     Matanuska Maid, Inc. v. State, 620 P.2d  182,  192-93
(Alaska 1980) (citations omitted).

     26    Miners Estate v. Commercial Fisheries Entry Commn, 635
P.2d 827, 832 (Alaska 1981).

     27    Doe v. State, 487 P.2d 47, 56 (Alaska 1971).

     28    Id.

     29    Id. at 57.

     30    Id.

     31     Johnson  v.  Johnson, 544 P.2d 65, 70  (Alaska  1975)
(citations omitted); see also Waiste v. State, 10 P.3d 1141, 1145
(Alaska 2000) (quoting Hoffman v. State, Dept of Commerce & Econ.
Dev.,  834  P.2d 1218, 1219 (Alaska 1992)) ( We have consistently
held  that, except in emergencies, due process requires the State
to  afford a person an opportunity for a hearing before the State
deprives   that   person  of  a  protected   property   interest.
(Original emphasis.)).

     32     See, e.g., Fairbanks N. Star Borough Assessors Office
v.  Golden  Heart  Utils., Inc., 13 P.3d 263, 274  (Alaska  2000)
(holding  that  providing notice on Friday to property  owner  of
assessors position for Monday hearing gave sufficient notice).

     33     In  re Gault, 387 U.S. 1, 33 (1967), cited in RLR  v.
State, 487 P.2d 27, 40 (Alaska 1971).

     34    Fuentes v. Shevin, 407 U.S. 67 (1972).

     35    Id. at 96.

     36     Id.  at 81-82 (quoting Stanley v. Illinois, 405  U.S.
645, 647 (1972)).

     37     Id.  at  82  (original emphasis) (quoting  Boddie  v.
Connecticut,  401  U.S. 371, 379 (1971)); see  also  Sniadach  v.
Family  Fin.  Corp.  of  Bay  View, 395  U.S.  337,  339  (1969);
Etheredge v. Bradley, 502 P.2d 146, 153 (Alaska 1972).

     38    Fuentes, 407 U.S. at 90.

     39    Id. at 91-92 (citations omitted).

     40    Id. at 92 n.22.

     41    Id.

     42    Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976).

     43    Id. at 335.

     44    Johnson v. Johnson, 544 P.2d 65, 68 (Alaska 1975).

     45    Id.

     46    Id. at 75.

     47    Id. at 71.

     48    Id.

     49    Id.

     50    Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974).

     51    Id. at 606-07.

     52    Id. at 611-12 (quoting Phillips v. Commr, 283 U.S. 589,
596-97 (1931)).