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Akpik v. State (06/24/2005) sp-5915
Akpik v. State (06/24/2005) sp-5915
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
JOSEPH AKPIK, LYDIA )
SOVALIK, JOEB WOODS, and ) Supreme Court No. S-11078
ABRAHAM WOODS, )
) Superior Court No.
Appellants, ) 2BA-01-34 CI
)
v. )
)
STATE OF ALASKA, OFFICE ) O P I N I O N
OF MANAGEMENT AND BUDGET, )
DIVISION OF GOVERNMENTAL ) [No. 5915 - June 24, 2005]
COORDINATION AND ALASKA )
COASTAL POLICY COUNCIL; and )
PHILLIPS ALASKA, INC., )
)
Appellees. )
)
Appeal from the Superior Court of the State
of Alaska, Second Judicial District, Barrow,
Ben Esch, Judge.
Appearances: Nancy S. Wainwright, Law Offices
of Nancy S. Wainwright, Anchorage, for
Appellants. Bruce F. Anders, Assistant
Attorney General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for
Appellee State of Alaska. Kevin D. Callahan,
Patton Boggs LLP, Anchorage, for Appellee
ConocoPhillips Alaska, Inc.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
I. INTRODUCTION
Joseph Akpik, Lydia Sovalik, Joeb Woods, and Abraham
Woods (collectively Akpik) are landowners on the North Slope,
near the village of Nuiqsut. Phillips Alaska requested that the
Alaska Division of Governmental Coordination determine whether a
proposed exploratory drilling project near Nuiqsut was consistent
with the Alaska Coastal Management Program. The division gave
public notice that it would accept comments regarding Phillipss
proposed drilling project. Akpik attempted to submit comments
after the deadline for comments passed; the division rejected
these comments as untimely. The division then approved the
Phillips project. Akpik appeals, arguing that the division
failed to give proper public notice of the proposed drilling
project and erred in determining that it was consistent with the
coastal management plan. Because Phillips has now abandoned the
project and because Akpik raises no important legal issues that
are capable of avoiding future review, we hold that the case is
moot.
II. FACTS AND PROCEEDINGS
In August 2000 Phillips Alaska1 applied to the
Department of Natural Resources (the department) for a unit
expansion in the Colville River Delta Unit area, near Akpiks
land. The department gave public notice of the requested unit
expansion and set a deadline for public comments. It received
two sets of public comments on the proposed expansion, one from
Akpik and the other from the North Slope Borough. Akpik expressed
concern that the unit expansion would limit access to his land.
After considering the comments, the department approved the unit
expansion. Its decision noted that Phillips had also applied to
other agencies for drilling permits and that there would be an
opportunity for comments on those applications during the other
agencies review process. Akpik appealed the departments unit-
expansion decision; the Commissioner of Natural Resources
affirmed the decision. Akpik did not appeal this ruling to the
superior court.
While the department considered the unit expansion,
Phillips also applied to the Division of Governmental
Coordination (the division) for a consistency review, under the
Alaska Coastal Management Program, of a winter drilling
exploration project that Phillips proposed in the expanded unit.
The division gave public notice of the proposed drilling project
and set December 19, 2000, as the public comments deadline for
its consistency review. The division later suspended the comment
deadline for a brief period when another agency requested
supplemental information from Phillips; it then set the new
comment deadline at January 8, 2001.
Akpiks counsel contacted the division eight days after
the comment deadline, requesting information about submitting
comments on the drilling project. That same day, Akpiks counsel
faxed a set of comments to the division from Akpik. Akpik
submitted another set of comments the following week. The
division rejected all of Akpiks comments as untimely. It then
issued a final consistency determination approving the Phillips
drilling project. During the winter drilling season of 2000-01,
Phillips drilled one of five proposed wells and one sidetrack
well, then plugged and abandoned the project.
Meanwhile, Akpik appealed to the superior court the
divisions decision to reject his comments. He argued that,
because he had commented on the unit expansion, the Department of
Natural Resources should have notified the Division of
Governmental Coordination that he was interested in providing
comments on all projects within the unit expansion. Akpik also
argued that the division gave improper public notice of the
drilling project and therefore erred in rejecting his comments.
The superior court affirmed the divisions consistency
determination. The court ruled that the departments decision to
approve the unit expansion was the responsibility of a different
agency operating under different regulations and therefore the
department was not required to notify the division of Akpiks
interest. The superior court also ruled that the division gave
adequate public notice of the comment deadline, and thus properly
rejected Akpiks comments as untimely. Finally, the court
declared that any issue regarding the divisions consistency
determination was moot because Phillips had completed and
abandoned the project in 2001.
Akpik appeals.
III. STANDARD OF REVIEW
We apply our independent judgment in determining
mootness because, as a matter of judicial policy, mootness is a
question of law.2
IV. DISCUSSION
Akpiks challenges fall into two categories. First,
Akpik argues that the department should not have approved the
unit expansion without first determining whether it was
consistent with Alaskas coastal management program. Second, he
contends that the division failed to provide proper notice of the
comment period and thereby prevented him from commenting on the
drilling project. According to Akpik, this flaw invalidates the
divisions consistency determination.
A. The Unit Expansion
Akpik argues that because the departments decision to
approve the unit expansion noted that there were direct
environmental and other impacts to the coastal zone, the
department was required to determine whether the unit expansion
was consistent with the Alaska Coastal Management Program.
Alternatively, Akpik argues, the division was required to
determine whether the unit expansion was consistent with the ACMP
before it approved the Phillips drilling project; its failure to
do so amounted to improperly phasing the unit expansion.
Akpiks arguments lack merit. Under Alaska law, the
department rather than the division is the agency that must
approve a unit expansion.3 Here, the department gave public
notice regarding the unit expansion in August 2000. Akpik
submitted comments, and the department approved the unit
expansion in November 2000. Akpik failed to appeal that decision
to the superior court. He then belatedly attempted to challenge
the departments decision in his appeal from the divisions
consistency determination on the Phillips drilling project.
Because the division was not responsible for approving the unit
expansion or determining whether the expansion was consistent
with the ACMP, Akpik challenged the unit expansion in the wrong
appeal. By not appealing the departments decision, Akpik waived
his right to challenge the unit expansion.
B. The Phillips Drilling Project
Akpik next argues that the division did not properly
notify the public of the drilling project, so it erred in
rejecting his comments. He asserts that the notice should have
been published in the Arctic Sounder instead of the Anchorage
Daily News and the Fairbanks News-Miner because the Arctic
Sounder is a newspaper of general circulation in Nuiqsut,4
whereas the Daily News and the News-Miner are not. Akpik also
argues that the division was required to place the notice in
three public places in Nuiqsut, and was required to give public
notice again after it suspended and then reinstated the comment
deadline. Last, Akpik challenges the divisions final decision
that the drilling project was consistent with the ACMP, asserting
that the division failed to take a hard look at the whole
project and improperly allowed the use of general concurrences.
Phillips responds that these issues are now moot
because the project is completed and the permits have long since
expired. We will generally refrain from deciding questions where
the facts have rendered the legal issues moot.5 A claim is moot
if it has lost its character as a present, live controversy.6
Because Phillips completed the drilling in 2001, and then plugged
and abandoned its well, no relief can be granted to reverse the
divisions decision to allow the Phillips drilling project in 2000-
01.
Akpik argues that Phillips may still drill the
remaining wells approved by the division. But the division
limited the term of the project to the 2000-01 winter drilling
season by requiring that any wells drilled be completed by April
1[, 2001]. The period of the divisions approval has thus expired
and the issues raised by Akpik are moot.
Even when a case is moot, we may address certain issues
if they fall within the public interest exception to the mootness
doctrine. Akpik argues that the public interest exception
applies in this case. The exception consists of three factors:
(1) whether the disputed issues are capable of repetition, (2)
whether the mootness doctrine, if applied, may cause review of
the issues to be repeatedly circumvented, and (3) whether the
issues presented are so important to the public interest as to
justify overriding the mootness doctrine.7
Akpik argues that several of the issues he raises are
capable of repetition and might repeatedly circumvent review if
they are not addressed here. First he points to the issue
whether the department should have conducted a consistency review
of the unit expansion, arguing that the department will continue
to approve unit expansions without determining whether they are
consistent with the Alaska Coastal Management Program. But as we
noted above, Akpik failed to appeal the departments decision on
the unit expansion and cannot properly raise this issue in
proceedings arising from the divisions consistency decision.
Akpik next points to his contention that the division
failed to give proper public notice of the drilling project. He
contends that the division might continue to publish its
notifications in newspapers that are not of general circulation
in Nuiqsut or fail to provide local notice in Nuiqsut. Akpik
also contends that the divisions practice of suspending and re-
starting public comment periods without new public notice will
repeatedly evade review because exploratory drilling projects are
very short in duration, and thus will generally be completed
before a court can rule on the issue.
But as we noted in Fairbanks Fire Fighters Assn v. City
of Fairbanks, we have refused to apply the public interest
exception to unusual factual circumstances that were unlikely to
repeat themselves or situations where the applicable statute or
regulation was no longer in force . . . .8 The Alaska Statutes
have been amended to give the department, not the division,
authority over consistency reviews.9 As a result, the
regulations that governed the divisions consistency
determinations have been repealed.10 And the department has
adopted its own regulations governing consistency determinations.11
We see no sound basis for concluding that the specific issues
disputed here are likely to recur in future cases. Because the
public interest exception does not apply in these circumstances,
we conclude that Akpiks appeal is moot.
V. CONCLUSION
For these reasons, we AFFIRM the superior courts
decision.
_______________________________
1 Phillips Alaska is now known as ConocoPhillips Alaska,
Inc.
2 Ulmer v. Alaska Restaurant & Beverage Assn, 33 P.3d
773, 776 (Alaska 2001).
3 See AS 38.05.180(p) which provides in relevant part:
To conserve the natural resources of all or a
part of an oil or gas pool, field, or like
area, the lessees and their representatives
may unite with each other, or jointly or
separately with others, in collectively
adopting or operating under a cooperative or
a unit plan of development or operation of
the pool, field, or like area, or a part of
it, when determined and certified by the
commissioner to be necessary or advisable in
the public interest.
(Emphasis added.)
4 See City of St. Marys v. St. Marys Native Corp., 9 P.3d
1002, 1011 (Alaska 2000) (noting that a newspaper is one of
general circulation in a community when it contains news of
general interest to the community and reaches a diverse
readership ) (quoting Moore v. State, 553 P.2d 8, 21 (Alaska
1976)).
5 OCallaghan v. State, 920 P.2d 1387, 1388 (Alaska 1996)
(quoting Hayes v. Charney, 693 P.2d 831, 839 (Alaska 1985)).
6 Kodiak Seafood Processors Assn v. State, 900 P.2d 1191,
1195 (Alaska 1995).
7 Id. at 1196.
8 48 P.3d 1165, 1168 (Alaska 2002).
9 See AS 46.39.010, AS 46.39.096.
10 Alaska Reg. 170, pt. 2, July 2004 13-20 (repealing
6 AAC 50).
11 Alaska Reg. 170, pt. 2, July 2004 71-176 (adopting 11
AAC 110, 112, and 114).
