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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Allen v. Alaska Oil and Gas Conservation Commission (07/21/2006) sp-6025

Allen v. Alaska Oil and Gas Conservation Commission (07/21/2006) sp-6025, 139 P3d 564

     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,


KASPER, DANCO ) Supreme Court No. S- 11519
INC., and DANCO ROYALTY ) Superior Court No.
Appellants, ) O P I N I O N
v. ) No. 6025 - July 21, 2006
Appellees. )
          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Patricia A. Collins, Judge.

          Appearances: James B. Gottstein, Law  Offices
          of   James   B.  Gottstein,  Anchorage,   for
          Appellants.    Robert  E.  Mintz,   Assistant
          Attorney  General, Anchorage,  and  Scott  J.
          Nordstrand, Acting Attorney General,  Juneau,
          for  Appellee Alaska Oil and Gas Conservation
          Commission.   William B. Rozell, Juneau,  and
          Barbara  F.  Fullmer, ConocoPhillips  Alaska,
          Inc., Anchorage, for Appellees ConocoPhillips
          Company and ConocoPhillips Alaska, Inc.

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

          CARPENETI, Justice.
          Monte Allen, George Kasper, and Danco International Oil
& Gas, Inc. (collectively Allen) obtained oil and gas exploration
leases  in 1986.  Allen retained the overriding royalty  interest
while  the  working  interest in the leases  was  transferred  to
several  oil companies, eventually coming under the sole  control
of  ConocoPhillips.  Although the leases are near the states most
productive gas field, the North Cook Inlet Unit (NCIU), no oil or
gas has been produced from the leases.  One day before the leases
were  to  expire,  Allen  petitioned  the  Alaska  Oil  and   Gas
Conservation  Commission  (commission) for  a  unitization  order
combining his leases into the NCIU and thus entitling  him  to  a
share of royalties from the NCIU.
          After  intervening litigation on the justiciability  of
the  petition, the commission denied Allens unitization  petition
on   the  merits.   Upon  thorough  and  thoughtful  review,  the
superior  court  denied Allens request for a trial  de  novo  and
then  affirmed the commissions decision on appeal.  Allens appeal
raises three main questions: (1) Is Allen entitled to a trial  de
novo  as  provided in AS 31.05.080? (2) Did the commission  apply
the proper statutory standard to Allens unitization petition? (3)
Did  the  commission breach any statutory duty to Allen?  Because
we  conclude that Allen is not entitled to a trial de novo,  that
the  commission applied the proper statutory standard  to  Allens
petition,  and  that the commission did not breach any  statutory
duty to Allen, we affirm the judgment of the superior court.
     A.   Facts
          A.   This case comes before us after protracted litigation.
Danco,  Inc., entered into two ten-year oil and gas  leases  with
the  State  of Alaska on September 1, 1986.1  Danco assigned  its
working interest in the leases to Amoco Production Co., which  in
turn  assigned  that  interest to  ARCO  Alaska,  Inc.   In  1992
Phillips  Petroleum  Co. obtained forty percent  of  the  working
interest  in  the  leases from ARCO Alaska.  After  a  series  of
mergers,  ConocoPhillips  Co. and its subsidiary,  ConocoPhillips
Alaska,  Inc.  (collectively ConocoPhillips)2  came  to  own  the
entire  working  interest.3   Dancos successor,  appellant  Danco
International Oil & Gas, Inc., is an overriding royalty  interest
owner  in the leases, as are co-appellants Monte Allen and George
          On  August 30, 1996   the day before the leases were to
expire   Allen  filed a petition for compulsory unitization  with
the  commission,  asking that the commission  use  its  authority
under  AS  31.05.110 to merge the leases into the  existing  NCIU
adjacent to the south and west of the leases.  Unitization  would
entitle  Allen  to a share of the oil and gas royalties  for  the
entire unit rather than solely for its own leases.5  The NCIU  is
the  leading natural gas field in Alaska, having produced  nearly
1.7  trillion  cubic feet as of March 2005.   Allen  argues  that
estimated  reserves  doubled  since  the  unit  was  established,
indicating that gas is being produced from under his leases.  The
          commission found that estimated reserves had not appreciably
increased  since  1975, eleven years before Danco  purchased  its
          The  commission denied Allens petition on  the  grounds
that  he lacked standing as an overriding royalty interest  owner
and  that  the petition was moot since the lease had expired  and
the commission lacked the power to order retroactive unitization.
After the superior court affirmed, we reversed, holding that  the
overriding royalty interest made Allen an interested person  with
standing to petition for unitization,6 and holding that no  sound
reason justified the commissions position that it had no power to
order  retroactive unitization.7  We remanded to  the  commission
for a hearing on the merits of the unitization petition.8
     B.   Proceedings
              On  remand, the commission denied Allens  petition,
issuing  the final decision on February 8, 2002.  ConocoPhillips,
as  the  working interest owner, also appeared as a party  before
the  commission.  The commission found, among other things,  that
the leases do not contain any portion of the productive reservoir
of the NCIU, that unitization would not advance the management of
NCIU  reservoirs,  and that [n]one of the statutory  requirements
for   compulsory  unitization  had  been  met.   The   commission
reaffirmed  its  decision  after  a  limited  rehearing.    Allen
appealed to the superior court.  Allen moved for a trial de  novo
but  the  superior court denied the motion.  Allen then  filed  a
petition  for  review,  which  we denied.9   The  superior  court
subsequently affirmed the commissions decision.  Allen appeals.
          When   the  superior  court  acts  as  an  intermediate
appellate court, we undertake an independent review of the agency
determination, and may affirm the decision below  on  any  ground
supported by the record.10  We review questions of law, including
statutory  interpretation,  using our independent  judgment,  and
adopt  the  rule  of  law  that is most persuasive  in  light  of
precedent, reason, and policy.11  We review agency findings of law
requiring agency expertise under the reasonable basis standard.12
We  review  agency  findings of fact for substantial  evidence.13
Substantial  evidence is such relevant evidence as  a  reasonable
mind might accept as adequate to support a conclusion.14
     A.   Allen Is Not Entitled to a De Novo Superior Court Trial
          Under AS 31.05.080.
          Allen argues that AS 31.05.080(b) entitles him to a  de
novo  trial in the superior court on any legal or factual  issues
remaining  after the disposition of this appeal.  Alaska  Statute
31.05.080(b) provides, in relevant part:
          A party to the rehearing proceeding . . . may
          appeal from it to the superior court . . .  .
          The  trial  upon appeal shall  be  without  a
          jury,   and  the  transcript  of  proceedings
          before the commission, including the evidence
          taken in hearings by the commission, shall be
          received in evidence by the court .  .  .  in
          the  same  manner  as  if  the  evidence  was
          originally offered in the superior court .  .
          .  . The court shall determine the issues  of
          fact  and law and shall . . . enter its order
          either affirming or vacating the order of the
The commission argues that AS 31.05.080 is impliedly repealed  by
the  enactment  of  AS  22.10.020(d), which provides  that  [t]he
superior  court  has jurisdiction in all matters appealed  to  it
from a[n] . . . administrative agency when appeal is provided  by
law  . . . .  The hearings on appeal . . . shall be on the record
unless  the superior court, in its discretion, grants a trial  de
novo, in whole or in part.  Allen disputes that AS 31.05.080  was
repealed  by  implication because the legislature repeatedly  had
the chance to repeal the statute expressly but declined to do so.
As  Allen notes, the Twenty-Third Legislature considered but  did
not  enact a bill expressly repealing AS 31.05.080(b)s procedures
for  a new trial.16  For the reasons set out below, we agree with
the  commission  that  AS  22.10.020(d)  impliedly  repealed   AS
          Alaska  does  not  retain  the traditional  presumption
against  repeal by implication, but instead looks to  legislative
intent.17  In Peter v. State,18 we held that we should not commence
with  a presumption against implied repeal. We shall look to  the
purpose  indicated by the legislature . . . . If  enforcement  of
the  prior  statute  is  in  irreconcilable  conflict  with  such
purpose,  it will be held to have been impliedly repealed.19   In
Progressive Insurance Co. v. Simmons,20 we noted that Alaska  has
recognized  that  this presumption [against  implied  repeal]  is
artificial   and  potentially  at  odds  with  the   primacy   of
legislative  intent  .  .  .  .21   Two  potentially  conflicting
statutes,  we  said,  must  be interpreted  with  a  view  toward
reconciling  conflict and producing a harmonious  whole.  22   In
general,  if  two  statutes conflict,  then  the  later  in  time
controls  over  the earlier, and the specific controls  over  the
general.23  At every step, however, [l]egislative intent  is  the
          We  have  recognized that an implied repeal is possible
when  a  statute  completely occupies the  field  of  a  previous
statute.   In Peter, we stated that if the later act  covers  the
whole  subject  of the earlier one and is clearly intended  as  a
substitute, it will operate . . . as a repeal of the earlier act.25
Here  there is sufficient evidence that the legislature  intended
its  enactments  to  be uniform and that AS  31.05.080(b)  should
yield.   As  was  the case in Keiner v. City of Anchorage,26  the
enactment of the later statute shows an obvious intent  that  the
field be occupied.27
          In  Keiner,  the Anchorage City Council,  acting  as  a
board of adjustment, found Keiners building to be a nuisance  and
ordered it demolished.28  Keiner appealed to the superior  court,
requesting  a  de novo jury trial.29  The request  was  denied.30
Keiner  argued before us that a 1949 statute granted him a  right
to  de  novo  trial.31  Similarly, Allen argues on the  basis  of
Keiner  that  the legislature intended only to restrict  de  novo
          trials where the statutory grant of such a trial was procedural
rather  than  substantive.  Allen misreads Keiner,  for  in  that
case,  citing  in  part to the language that now  constitutes  AS
22.10.020(d),  we held that the 1949 statute had  been  impliedly
repealed.   We  said that the 1949 statute does  not  govern  the
procedure in the superior court.32  We discerned an obvious intent
that  where  appeals  are taken from administrative  agencies  or
magistrate  courts there shall not be a trial de novo unless  the
superior   court  requires  it.33   This  procedure,  we   noted,
simplifies and expedites the handling of appeals.34  Keiner  thus
stands  for  the proposition that the jurisdictional statute,  AS
22.10.020(d),  explicitly overrode any  previous  ad  hoc  appeal
          Allen  argues that the legislatures thirteen amendments
of  AS 31.05, none of which altered AS 31.05.080(b), indicate the
legislatures reaffirmance of that subsection.  The commission and
ConocoPhillips respond that legislative inaction is a  weak  reed
to  lean  on  in construing a statute.  This is especially  true,
they   argue,  when  the  legislature  was  on  notice  that   AS
31.05.080(b)  had  likely been superseded.  Furthermore,  as  all
parties  agree, the commission ceased to exist as an  independent
agency between 1959 and 1978;35 during that period it was a  unit
of the Department of Natural Resources (DNR).  Thus the agency as
envisioned  by  AS  31.05.080(b) was abolished  at  the  time  of
          The  legislatures  inaction  admits  of  two  plausible
interpretations.   First,  that the  legislature  entertained  no
concern  as to AS 31.05.080(b), assuming that generalized  appeal
procedures  would apply to the commission as well.  Second,  that
the legislature was aware of AS 31.05.080(b)s import and opted to
retain it.  The introduction of repeal legislation in the Twenty-
Third   Legislature  would  militate  in  favor  of  the   second
interpretation  if  there  were  any  indication  that  the  full
legislature had considered and rejected the bill.36  It  appears,
however,  that the bill was only read once and that no  committee
hearings   were   held.37    We   therefore   favor   the   first
interpretation,  especially since the legislature  subjected  the
commission,  while it was part of the DNR, to the  Administrative
Procedure Act.38  Although the legislature declined to subject the
reconstituted  commission  to  the  Act,39  nothing  indicates  a
legislative intent to exclude the commission from the  procedures
specified by AS 22.10.020(d).  Furthermore, it seems that a right
to   trial  de  novo  would  be  wholly  inconsistent  with   the
legislatures creation of an independent commission with  a  great
deal of technical expertise.
          The superior court held that AS 31.05.080 did not grant
Allen a new trial because the Alaska Rules of Appellate Procedure
state  that  the  appellate rules supercede all other  procedural
methods  specified  in  the  Alaska  statutes  for  appeals  from
administrative  agencies  to  courts.   Allen  argues   that   AS
31.05.080  grants  a  substantive right to de  novo  trial,  thus
placing  his  petition beyond the ambit of the  Appellate  Rules.
Because  we conclude that AS 31.05.080 was impliedly repealed  by
the  enactment  of  AS  22.10.020,  we  decline  to  address  the
          interplay between AS 31.05.080 and the Appellate Rules.  Any
rights  granted  by  AS 31.05.080, whatever their  nature,   were
extinguished along with the statute.
          Although  Allen  argued to the superior  court  in  the
alternative  that  he  was  entitled  to  de  novo  trial   under
constitutional due process or the superior courts discretion,  he
does  not  appeal the superior courts denial of de novo trial  on
those  grounds.   Thus we have no occasion to review  Allens  due
process claims or to review the superior courts exercise  of  its
          B.     The  Commission  Applied  the  Proper  Statutory
          Standard in Reaching Its Decision on Unitization.
          Allen  argues  that  the  commission,  in  making   its
determination  whether  unitization was  warranted,  applied  the
wrong  statutory standard.  The commission applied AS  31.05.110,
which  by  its  terms deals with involuntary unitization.   Allen
argues  that  the  commission was required by AS 31.05.110(q)  to
apply  the  standards  of AS 38.05.180 instead.   Alaska  Statute
38.05.180, which is administered by the DNR, applies to voluntary
          The  statute that the commission applied, AS 31.05.110,
has a number of relevant subsections.  The first, subsection (a),
provides   that  the  commission  has  jurisdiction,  power   and
authority,  and  it  is its duty to make and enforce  orders  for
unitization  even  where  the owners of  a  pool  do  not  agree.
Subsection  (b)  lays  out  the  four  criteria  for  involuntary
unitization.40  Subsection (c) provides that [o]nly so much of  a
pool or pools as has been defined and determined to be productive
on the basis of information available to the commission may be so
included  within  the  unit area.  This  subsection  goes  on  to
prescribe  detailed procedures for establishing and administering
a  unitization plan.  Subsection (o) states that expansion  of  a
unit  may  proceed  on  the same basis  as  formation.   Finally,
subsection  (q)  states  that  [t]his  section  applies  to   all
involuntary units formed in the state.  Subsections (a) and  (g)-
(p)  of  this section apply to all voluntary units formed in  the
state  and to a voluntary cooperative or unit plan of development
or operation entered into in accordance with AS 38.05.180(p).
          On  the  basis  of subsection (q), Allen  argues  that,
since  the  NCIU  was  originally  established  voluntarily,  the
commission  should have applied the standards of AS  38.05.180(p)
and  related regulations.  Alaska Statute 38.05.180(p) authorizes
DNR  to  approve voluntary unitization by holders of  DNR  leases
under  criteria  more relaxed than those of AS   The
relevant  DNR regulations are also more permissive, referring  to
potential  hydrocarbon accumulations rather  than  requiring,  as
does  AS  31.05.110(b), substantially more oil and gas  from  the
pool than would otherwise be recovered.42  By its terms, however,
AS  38.05.180(p)  applies only to voluntary  unitization.   Allen
does not have the consent of other members of the unit.  The  DNR
may approve or deny a unitization request, but appears to have no
authority to order unitization.
          Allen  seems  to be arguing that, since  the  NCIU  was
          originally established voluntarily, the commission should have
evaluated his unitization petition under the standards  that  the
DNR  uses  to  evaluate requests for voluntary unitization.   But
Allen  is seeking involuntary unitization.  Whether the NCIU  was
originally  established  voluntarily or involuntarily  is  of  no
moment.   Though  AS  31.05.110(b) applies  only  to  involuntary
units, any order by the commission would create a new involuntary
unit composed of the NCIU and the Allen leases rather than simply
expanding  the size of the NCIU.43  Thus the commission correctly
applied  AS  31.05.110.  As the superior court stated, Subsection
(q) merely directs voluntary versus involuntary inquiries towards
respective subsections, and reinforces the separation between the
Commission and the DNR.
          Allen  already  had  a chance to invoke  AS  38.05.180.
Prior to the commissions hearing on remand, DNR invited Allen  to
apply  under AS 38.05.180(p) for unit expansion.  Allen  declined
the invitation.  We decline to renew it.
     D.   The  Commissions  Factual Findings  Were  Supported  by
          Substantial Evidence.
          The commission argues that we need not consider whether
its  factual  determinations were based on  substantial  evidence
because  Allen  has failed to challenge the commissions  findings
before  this  court.  Indeed, Allens attorney  conceded  at  oral
argument that substantial evidence exists, remarking that we live
or  die on the de novo trial issue.  We note, however, that  many
of  Allens arguments contain implicit challenges to the existence
of  substantial  evidence.   In  any  case,  the  commission  has
exhaustively  explored the issue.  Its finding that  no  part  of
either  productive  reservoir  extended  under  the  leases   was
supported  by  extensive  testimony  and  review  of  proprietary
seismic  data.   The record contains thousands of pages  of  pre-
filed testimony and data, the vast majority of which supports the
commissions  findings.  We are thus of the firm belief  that  the
commissions   factual  findings  were  supported  by  substantial
     E.   The  Commission Did Not Breach Any Statutory Duties  To
          Investigate or Protect.
          Allen  argues  that  the  commission,  by  denying  his
petition, breached its duty to protect the correlative rights  of
persons  owning  interests  in the  tracts  of  land  affected.44
Correlative rights are the rights of owners of property overlying
a  pool  or  aquifer to a correspondent share of the minerals  or
subsurface water.  In Alaska oil and gas law, correlative  rights
are defined as
          the  opportunity afforded, so far  as  it  is
          practicable  to do so, to the owner  of  each
          property  in a pool to produce without  waste
          the  owners just and equitable share  of  the
          oil  or  gas, or both, in the pool; being  an
          amount,   so   far  as  can  be   practically
          determined, and so far as can practicably  be
          obtained without waste, substantially in  the
          proportion  that the quantity of  recoverable
          oil  or gas, or both under the property bears
          to  the total recoverable oil or gas or  both
          in the pool, and for such purposes to use the
          owners  just  and  equitable  share  of   the
          reservoir energy . . . .[45]
Alaska  law  gives  the  commission authority  to  protect  these
correlative  rights  by  requiring  a  plan  of  development  and
operation for a field or pool.46
          The  commission found that Allens leases do not contain
any  portion of the Tertiary System Gas Pool, which is  the  only
producing  pool in the NCIU, and that the leases  have  not  been
shown  to  contain any portion of the Tyonek Deep reservoir,  the
only  other  known  oil  or  gas  reservoir  in  the  NCIU.   The
commission  thus found unambiguously that Allens leases  are  not
being  drained.  Since correlative rights attach to the owner  of
each  property in a pool,47 Allen must have an interest  in  that
pool  before  he can assert correlative rights.  As there  is  no
drainage from Allens leases, there is no need to consider whether
correlative rights attach to Allens overriding royalty interest.
          Allen  also  argues  that the commission  breached  its
duties  under  AS  31.05.110  to  protect  Allens  rights  as  an
overriding  royalty owner.  Aside from the issue  of  correlative
rights,   discussed  above,  Allen  argues  that  the  commission
breached  its  duties  by failing to order unitization  under  AS
38.05.180(p).   The  commission  responds  that  it  breached  no
duties,  and  made  no  holdings about the extent  of  overriding
royalty  owners rights; it merely declined to consider  the  full
extent  of  the rights because there were no reserves  underlying
Allens   land.   As  discussed  above,  the  commission  properly
considered Allens petition under AS 31.05.110(b).  In  doing  so,
the  commission performed rather than breached its statutory duty
to  make  and  enforce orders in order to prevent .  .  .  waste,
insure  a  greater ultimate recovery of oil and gas, and  protect
the  correlative rights of persons owning interests in the tracts
of land affected . . . .48
          Finally,  Allen hints that the commission had potential
conflicts  of  interest,  noting  that  the  commission  and  the
Department  of  Natural  Resources are both  represented  by  the
Department of Law.  While it may be true that the commission  has
not   been  receptive  to  Allens  position,  especially  in  the
proceedings leading up to Allen I, Allen has not shown a conflict
that should exclude the commission from hearing the case.
          The superior court correctly denied Allens motion for a
trial  de  novo.   The  commission applied the  proper  statutory
standard to Allens petition.  The commission  did not breach  any
duties  owed to Allen.  We therefore AFFIRM the judgment  of  the
superior court.
     1      The  leases are designated Alaska Development  Leases
369100 and  369101.

     2     ConocoPhillips Co. owns forty percent of  the  working
interest  while  ConocoPhillips Alaska, Inc. owns sixty  percent.
ConocoPhillips Alaska is a subsidiary of ConocoPhillips Co.

     3     ConocoPhillips was known as Phillips  Petroleum  until
2002.  Phillips Petroleum purchased ARCO Alaska in 2000, renaming
it  Phillips  Alaska, Inc.  Phillips Alaska  has  been  known  as
ConocoPhillips Alaska, Inc. since 2002.

     4     The original petition to the commission was brought by
Allen and Danco.  The present appeal is brought by Allen, Kasper,
and  Danco International Oil & Gas, and Danco Royalty Partnership
Ltd.  These parties collectively are referred to as Allen in this

     5     Alaska  Statute 31.05.110(c) describes the  procedures
for unitization:

          [E]ach  plan  of  unitization  shall  contain
          fair, reasonable and equitable provisions for
          . . . (2) the division of interest or formula
          for  the apportionment and allocation of  the
          unit  production, among and  to  the  several
          separately owned tracts within the unit  area
          such   as   will  reasonably  permit  persons
          otherwise entitled to share in or benefit  by
          the  production  from such  separately  owned
          tracts   to  produce  and  receive,   instead
          thereof, their fair, equitable and reasonable
          share   of  the  unit  production  or   other
          benefits  of  it; a separately  owned  tracts
          fair, equitable, and reasonable share of  the
          unit  production  shall be  measured  by  the
          value  of  each such tract for  oil  and  gas
          purposes  and its contributing value  to  the
          unit  in  relation to like  values  of  other
          tracts  in  the  unit,  taking  into  account
          acreage,   the  quantity  of  oil   and   gas
          recoverable   from  it,   location   on   the
          structure, its probable productivity  of  oil
          and  gas  in  the absence of unit operations,
          the  burden of operations to which the  tract
          will  or  is likely to be subjected,   or  so
          many   of   these  factors,  or  such   other
          pertinent    engineering,    geological    or
          operating   factors  as  may  be   reasonably
          susceptible of determination; unit production
          as  that  term is used in this chapter  means
          all  oil  and gas produced from a  unit  area
          from  the effective date of the order of  the
          commission  creating the unit  regardless  of
          the  well or tract within the unit area  from
          which the same is produced . . . .
     6      Allen v. Alaska Oil & Gas Conservation Commn, 1  P.3d
699, 701-02 (Alaska 2000) (Allen I).

     7     Id. at 703.

     8     Id. at 705.

     9     Danco  Intl  Oil  &  Gas, Inc. v.  Alaska  Oil  &  Gas
Conservation Commn, No. S-10927 (order of March 14, 2003).

     10     Conkey  v.  State,  Dept of  Admin.,  Div.  of  Motor
Vehicles,  113  P.3d 1235, 1237 (Alaska 2005); Leuthe  v.  State,
Commercial Fisheries Entry Commn, 20 P.3d 547, 550 (Alaska 2001).

     11      Alaska Civil Liberties Union v. State, 122 P.3d 781,
785  (Alaska 2005); see also State v. Dupier, 118 P.3d 1039, 1044
(Alaska 2005).

     12     Leuthe, 20 P.3d at 550.

     13     Id.; Conkey, 113 P.3d at 1237.

     14     George Easley Co. v. Estate of Lindekugel,  117  P.3d
734,  740  (Alaska  2005)  (internal  quotation  marks  omitted);
Thornton v. Alaska Workmens Comp. Bd., 411 P.2d  209, 210 (Alaska

     15     AS 31.05.080(b); ch. 40,  11, SLA 1955.

     16    House Bill (H.B.) 290, 23rd Leg., 1st Sess. (2003).

     17      Compare  1A  Norman  Singer,  Sutherland   Statutory
Construction  23:9, at 459-60 (A statute cannot be interpreted as
abrogating existing law by implication alone) (6th ed. 2002 rev.)
with  Warren  v.  Thomas, 568 P.2d 400, 403  (Alaska  1977)  (The
implied  repeal of an act is disfavored and will  be  limited  to
that  which  is  necessary  to  carry  out  the  intent  of   the

     18    531 P.2d 1263 (Alaska 1975).

     19    Id. at 1268.

     20    953 P.2d 510 (Alaska 1998).

     21    Id. at 516.

     22     Id. (quoting City of Anchorage v. Scavenius, 539 P.2d
1169, 1174 (Alaska 1975)).

     23     Compare Singer,  23:9, at 459 (when two statutes  are
repugnant . . . the later act . . . operates to the extent of the
repugnancy  to  repeal  the  first) with  id.  at  460  (standard
statutory construction requires that a court adopt as controlling
that   provision  more  closely  associated  with  the   specific
substance of the controversy).

     24      Simmons,  953  P.2d  at  516  (quoting  Hafling   v.
Inlandboatmens Union of the Pac., 585 P.2d 870, 876 n.20).

     25     Peter, 531 P.2d at 1267.  See also Singer,  23:9,  at
471-74 (When a subsequent enactment covering a field of operation
co-existent  with  a  prior  statute  cannot  by  any  reasonable
construction  be  given effect while the  prior  law  remains  in
existence  because  of irreconcilable conflict  between  the  two
acts, the later legislative expression prevails and the prior law
yields to the extent of the conflict.).

     26    378 P.2d 406 (Alaska 1963).

     27    Id. at 410.  Our decision in Matanuska-Susitna Borough
v.  Lum, 538 P.2d 994 (Alaska 1975), issued several months  after
Peter, did not determine whether special statutes can be repealed
by  general  statutes.  Lum offered the unusual  circumstance  in
which  the  legislature enacted a specific guarantee of  de  novo
review  of school board decisions for tenured teachers, then  re-
enacted  the  generally applicable statute under  which  de  novo
review  is left to the superior courts discretion.  However,  the
general  statute was already present when the legislature created
the  specific guarantee for tenured teachers.  Lum, 538  P.2d  at
998-1001.   Thus,  the legislative history in  Lum  indicated  an
intent  to  create a specific right for tenured  teachers  as  an
exception to the existing general procedure.

     28    Keiner, 378 P.2d at 408.

     29    Id.

     30    Id.

     31    Id. at 410; former AS 29.10.213-.243.

     32    Keiner, 378 P.2d at 410.

     33    Id.

     34    Id.

     35     Ch. 64,  16, SLA 1959 (creating Department of Natural
Resources  and  transferring  to  it  commissions  function   and
authority);  ch. 158,  1, SLA 1978; AS 31.05.005 (re-establishing
commission  as  independent  agency);  ch.  158,   5,  SLA   1978
(changing statutory references from DNR to commission).

     36     H.B.  290,  23rd Leg., 1st Sess.  (2003).   The  bill

          Section  1.  AS 31.05.080(b) is repealed  and
          reenacted to read:
          (b)  A party to the rehearing proceeding  who
          is  dissatisfied with the disposition of  the
          application for rehearing may appeal from the
          decision  as  to  the  disposition   to   the
          superior  court.  The questions  reviewed  on
          appeal are limited to the questions presented
          to  the  commission  by the  application  for
          *  Sec. 2. AS 31.05.025(b), 31.05.080(c), and
          31.05.080(d) are repealed.
          *  Sec.  3. This Act takes effect immediately
          under AS 01.10.070(c).
     37    See 2003 House Journal 1202.

     38     Former AS 44.62.330(a)(18), repealed by ch. 94,   49,
SLA  1980  (subjecting  to  the APA  the  Department  of  Natural
Resources as to functions relating to the conservation of oil and

     39     Ch.  94,   49,  SLA 1980 (effective Sept.  17,  1980)
(repealing former AS 44.62.330(a)(18)).  This was followed  by  a
major  revision of the Appellate Rules.  See SCO  439,  Nov.  15,
1980  (enacting Alaska R. App. P. 601-611 (providing in part  for
appeals to the superior court from administrative agencies)).

     40    The four criteria are:

          (1)  the  unitized management, operation  and
          further development of a pool or portion of a
          pool  is  reasonably necessary  in  order  to
          effectively   carry   on  pressure   control,
          pressure-maintenance     or      repressuring
          operations,    cycling   operations,    water
          flooding  operations, or any  combination  of
          these,  or  any  other form of  joint  effort
          calculated  to  substantially  increase   the
          ultimate  recovery of oil and  gas  from  the
          pool; (2) one or more of the unitized methods
          of  operation  as  applied  to  the  pool  or
          portion  of it is feasible, and will  prevent
          waste  and  will with reasonable  probability
          result   in   the   increased   recovery   of
          substantially more oil and gas from the  pool
          than  would otherwise be recovered;  (3)  the
          estimated   additional  cost,  if   any,   of
          conducting  such operations will  not  exceed
          the  value of the additional oil and  gas  so
          recovered;   and  (4)  the  unitization   and
          adoption  of  one  or more  of  the  unitized
          methods of operation is for the common good.
     41    AS 38.05.180(p) provides:

          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.  The commissioner  may,
          with  the  consent of the holders  of  leases
          involved,   establish,  change,   or   revoke
          drilling, producing, and royalty requirements
          of  the  leases  and adopt  regulations  with
          reference to the leases, with like consent on
          the  part of the lessees, in connection  with
          the   institution   and   operation   of    a
          cooperative  or unit plan as the commissioner
          determines necessary or proper to secure  the
          proper protection of the public interest. The
          commissioner may not reduce royalty on leases
          in connection with a cooperative or unit plan
          except  as  provided in (j) of this  section.
          The  commissioner may require a lease  issued
          under  this  section to contain  a  provision
          requiring  the  lessee  to  operate  under  a
          reasonable cooperative or unit plan, and  may
          prescribe a plan under which the lessee  must
          operate. The plan must adequately protect all
          parties in interest, including the state.
     42     11 AAC 83.356(a) provides: A unit must encompass  the
minimum  area required to include all or part of one or more  oil
or  gas  reservoirs,  or  all or part of one  or  more  potential
hydrocarbon accumulations.

     43    See AS 31.05.110(a) & (o).

     44    AS 31.05.110(a).

     45    AS 31.05.170(2).

     46    AS 31.05.030(d)(9).

     47    AS 31.05.170(2).

     48    AS 31.05.110(a).

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