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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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).