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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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, DEPART- )
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]
EXPLORATION (ALASKA) INC., )
)
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.
I. INTRODUCTION
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.
II. FACTS AND PROCEEDINGS
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
stay.
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]
judgment.7
DNR appealed the superior courts decision. BPXA gave
notice that it would join the appeal as an appellant.8
III. DISCUSSION
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
process.
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
Constitution.23
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
entail.[43]
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
that
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
violated.[49]
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
A00-10
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
capricious.
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
moot.
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
fees.
IV. CONCLUSION
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)
provided:
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
brief.
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
1995).
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)).
