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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Railroad Corporation v. Native Village of Eklutna (09/01/2006) sp-6040

Alaska Railroad Corporation v. Native Village of Eklutna (09/01/2006) sp-6040, 142 P3d 1192

     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


ALASKA RAILROAD )
CORPORATION, ) Supreme Court No. S- 11619
)
Appellant, ) Superior Court No.
) 3AN-01-04169 CI
v. )
) O P I N I O N
NATIVE VILLAGE OF EKLUTNA )
and MUNICIPALITY OF ) No. 6040 - September 1, 2006
ANCHORAGE, )
)
Appellees. )
)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.

          Appearances:  William S. Cummings  and  Kelly
          McCann,  Ashburn  &  Mason,  Anchorage,   for
          Appellant.  Sara E. Heideman, Hedland Brennan
          &  Heideman,  Anchorage, for Appellee  Native
          Village   of   Eklutna.   Thomas   McDermott,
          Assistant  Municipal Attorney, and  Frederick
          H. Boness, Municipal Attorney, Anchorage, for
          Appellee Municipality of Anchorage.

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

          FABE, Justice.
          MATTHEWS,  Justice, with whom  BRYNER,  Chief
          Justice, joins, dissenting.

I.   INTRODUCTION
          The  Alaska Railroad wishes to remove granite rock from
a  quarry  on culturally significant land located in  the  Native
Village  of Eklutna.  In a 2004 decision, we concluded  that  the
legislature did not clearly indicate its intention to exempt  the
Railroad  from municipal zoning laws when it enacted  the  Alaska
Railroad Corporation Act, and that the Railroad must apply for  a
conditional use permit before it may operate the Eklutna  quarry.
Following  that  decision, the Alaska Railroad Board  enacted  an
emergency  regulation allowing it to remove rock from the  quarry
without applying for a conditional use permit.  The Railroad also
asked the legislature to clarify that the Railroad is exempt from
municipal  zoning  laws.   The legislature  declined  to  do  so,
instead  creating a task force to study the issue.  The  superior
court  granted summary judgment to the Native Village of Eklutna,
concluding that our 2004 decision required the Railroad to  apply
for  a  conditional  use permit.  The Railroad  appeals,  and  we
affirm.
II.  FACTS AND PROCEEDINGS
     A.   Native Village of Eklutna v. Board of Adjustment
          Our  2000 decision, Native Village of Eklutna v.  Board
of  Adjustment, forms the backdrop of this case.1  In that  case,
the  Native  Village  of Eklutna challenged  a  decision  by  the
Municipality  of Anchorage to grant a conditional use  permit  to
the  National  Bank  of Alaska, allowing the bank  to  operate  a
granite  mine on bank-owned property near Eklutna.2  We concluded
that  the  Municipality  had ignored  evidence  that  the  mining
operation would destroy one of two hills for which the village of
Eklutna was named, observing that [t]he historical value  of  the
twin  hills that gave Eklutna its name is a cultural factor  that
should  have  been considered by the Municipality.3  We  remanded
the  case to the Municipality for determination of how the mining
operation   would  impact  the  preservation  of   historic   and
archaeological  resources,  as  required  by  the   Municipalitys
comprehensive development plan.4
     B.   Alaska  Railroad  Corporation  v.  Native  Village   of
          Eklutna (Eklutna I)
          The  first appeal involving the Alaska Railroads mining
operations  in the Eklutna hills was Alaska Railroad  Corporation
v.  Native  Village of Eklutna (Eklutna I), which we  decided  in
2002.5   In  Eklutna I, we affirmed an injunction  against  Damco
Paving  Corporation,  which  had  procured  exclusive  rights  to
operate  an  Eklutna quarry owned by the Railroad.6   The  tribal
government and several residents of the Native Village of Eklutna
sought the injunction on the ground that the mining operation was
a  nonconforming  use for which Damco needed  a  conditional  use
permit  under Anchorage zoning laws.7  We concluded  that  Damcos
operation of the quarry did require a conditional use permit  and
affirmed entry of the injunction against Damco.8
     C.   Native   Village   of   Eklutna  v.   Alaska   Railroad
          Corporation (Eklutna II)
          Following  the  superior courts grant of an  injunction
against Damco in 1999, the Railroad began direct operation of the
quarry.9   Eklutna  moved  for  a  preliminary  injunction.   The
          superior court declined to issue a preliminary injunction and
instead  entered summary judgment for the Railroad on the  ground
that the Railroad was immune from local zoning ordinances.10  The
Municipality  of  Anchorage intervened and sought  a  declaration
that  the  Railroad  was  subject  to  municipal  zoning.   After
considering  the  Municipalitys  position,  the  superior   court
reinstated its grant of summary judgment in favor of the Railroad
in 2001.11
          On appeal, Eklutna and the Municipality argued that the
Railroad  was  not  immune from local land use  regulation  under
state  law.12  We held that the Alaska Railroad Corporation Act13
(ARCA) did not clearly indicate that the legislature intended  to
immunize the Railroad from local zoning ordinances.14  Among other
provisions,  we discussed AS 42.40.390, the section at  issue  in
the  current appeal.15  We concluded that AS 42.40.390 should not
be  read as a clear declaration that the legislature intended  to
shield  the  Railroad  from local land use  regulation.16   After
concluding  that  the  legislature  did  not  clearly  intend  to
immunize  the Railroad, we adopted a balancing of interests  test
to  be  applied  by  trial  courts when determining  whether  the
Railroad  is immune from municipal zoning requirements.17   Under
the  balancing  test, trial courts should weigh  the  nature  and
scope  of  the  instrumentality seeking  immunity,  the  kind  of
function  or land use involved, the extent of the public interest
to  be served thereby, the effect local land use regulation would
have upon the enterprise concerned and the impact upon legitimate
local interests.18  But we cautioned that trial courts should not
apply  the test unless the state has made a reasonable good faith
attempt to comply with local zoning laws.19  Thus, under the rule
articulated in Eklutna II, the Railroad should first apply for  a
conditional  use  permit  from the  Municipality  and  then  seek
judicial relief through application of the balancing test only if
the  Railroads efforts to procure a conditional use permit  prove
unsatisfactory.20
     D.   Emergency Rule 2004-E-1
          On  April  12, 2004, the Alaska Railroad Board  adopted
Emergency  Rule  2004-E-1.   The emergency  rule  authorized  the
Railroad to: (1) store processed materials at the Eklutna quarry;
and (2) remove stored materials from the quarry.  Both activities
require a conditional use permit under Anchorage zoning law.   In
its  statement  of  findings, the Railroad  Board  discussed  our
decision  in Eklutna II and concluded that the decision indicated
that  AS  42.40.390 in the Alaska Railroad Corporation Act  gives
the  Railroad Board authority to adopt exclusive rules  governing
Railroad  land  and . . . if the Board adopts  such  rules,  they
would  control  over  conflicting  local  regulations  .  .  .  .
Emergency Rule 2004-E-1 remained in effect for 120 days.21
     E.   The Railroads Request for Legislative Clarification
          Following  the promulgation of Emergency Rule 2004-E-1,
the Railroad lobbied the Alaska Legislature to enact a bill which
would  have explicitly exempted the Railroad from local land  use
laws.22  The proposed change was considered at hearings before the
Senate   Transportation   Standing  Committee   and   the   House
Transportation Standing Committee.
          Pat  Gamble,  President and CEO of the Alaska  Railroad
Corporation,  testified at a meeting of the Senate Transportation
Standing  Committee  on  April 29, 2004.  Gamble  described  this
courts decision in Eklutna II to the committee and indicated that
the decision required the Railroad to apply for a permit:
          The  Railroad,  as well as  any  other  state
          entity,  at the present time as of the  court
          decision  on the 12th of March is not  exempt
          from borough municipal planning and zoning. .
          .  . The court said that there is a test that
          should be applied with regard to planning and
          zoning issues whenever the Railroad confronts
          a  project that requires planning and  zoning
          and that test would be to apply for a permit.
          If  that  permit comes conditionally and  the
          conditions are not favorable to the Railroad,
          then  the  Railroad can litigate the decision
          and work that out in litigation on a case-by-
          case  basis for every individual project that
          it    would    have   going    in    whatever
          municipalities and boroughs it might.
          
Gamble  also  testified at a meeting of the House  Transportation
Standing Committee on May 4, 2004.  Again, Gamble stated that the
Railroad would be required to apply for a conditional use permit:
[W]hat the court has said is if you dont have the exemption, then
you  must apply for a permit in every case and if you dont  agree
with what you get back, you must litigate . . . .
          At the House Transportation Standing Committee meeting,
Representative Ogan wondered whether exempting the Railroad  from
municipal zoning ordinances would allow the Railroad to develop a
rock pit in the middle of a residential neighborhood or right  up
against it.  Gamble responded that it was not likely the Railroad
would  ever  try something like that.  Representative  Ogan  also
expressed  concern  that such an exemption  would  not  be  well-
received by the public. Gamble suggested enacting a sunset clause
and  said,  this does not affect Eklutna, that issue is  entirely
separate.   I  mean, we are not allowed to go in and  get  quarry
rock  out  of Eklutna regardless of what we decide here today  or
sign . . . .
          A number of people testified in opposition to providing
the  Railroad  a  broad exemption from zoning laws,  including  a
representative  from  a local land use planning  organization,  a
representative   from   the  Native   Village   of   Eklutna,   a
representative  from  the  Alaska  Native  Health  Board,  and  a
representative from the Alaska Municipal League.  Ultimately  the
legislature  deleted the proposed exemption  from  the  bill  and
established  a task force to consider and make recommendation  to
the legislature on whether and to what extent municipal planning,
platting,  and land use regulations should apply to interests  in
land owned by the Alaska Railroad Corporation.23  The bill forming
the  task force became effective June 5, 2004.24  The task  force
was  to  file  a  report  at the beginning of  the  twenty-fourth
legislative session, but it apparently failed to do so.25
     F.   The  Superior  Courts  Grant  of  Summary  Judgment  to
          Eklutna
          On  April  15,  2004,  after the Railroad  enacted  its
emergency rule, the Native Village of Eklutna filed a motion with
this  court requesting a stay of the emergency rule, or,  in  the
alternative, a remand to the superior court so that Eklutna could
challenge the enactment of the rule.  Eklutna withdrew the motion
for a stay after we denied the Railroads motion for rehearing  in
Eklutna II and the matter was returned to the superior court.  On
May  20,  2004,  Eklutna filed a motion for summary  judgment  in
superior  court, effectively seeking a ruling that  the  Railroad
could not enact rules under AS 42.40.390 without first attempting
to  comply with local land use regulations.  The Municipality  of
Anchorage intervened on behalf of Eklutna.
          Superior  Court  Judge  Mark Rindner  granted  Eklutnas
motion for summary judgment on July 7, 2004, concluding that  the
superior court was bound by our determination in Eklutna II  that
AS  42.40.390  does  not clearly exempt the Railroad  from  local
regulation.  Judge Rindner awarded Eklutna full attorneys fees as
a  public  interest  litigant  in the  amount  of  $19,989.   The
superior  court  entered judgment in favor  of  Eklutna  and  the
Municipality  on  October  28, 2004.  The  Railroad  appeals  the
superior courts decision.  The Municipality has joined Eklutna as
an appellee.
III. DISCUSSION
     A.   Standard of Review
          We  review  a  grant  of summary  judgment  de  novo.26
Questions of law are also reviewed de novo, and we adopt the rule
of law that is most persuasive in light of precedent, reason, and
policy.27   We  review  the superior courts  determination  of  a
litigants  public interest status for abuse of discretion.28   We
will overturn an award of attorneys fees if there was an abuse of
discretion or if the award is manifestly unreasonable.29
     B.   The  Public Interest Exception to the Mootness Doctrine
          Applies.
          A  preliminary question is whether this appeal is moot,
given  that  the  emergency  rule enacted  by  the  Railroad  has
expired.  A disputed claim is moot when its resolution would  not
result  in  any  actual  relief,  even  if  the  claiming   party
prevailed.30  If a challenged law or rule is repealed or expires,
a  case  is moot.31  Eklutna states in its brief that this matter
would  be  moot  except that it falls under the  public  interest
exception to the mootness doctrine.
          We  examine  the following three factors  to  determine
whether  the  public interest exception to the mootness  doctrine
applies:   (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.32  Here, the  disputed
issue  is capable of repetition because the Railroad could  enact
another  emergency rule in the future.  If the Railroad chose  to
do  so,  the  mootness doctrine could circumvent  review  because
every  emergency rule enacted by the Railroad must expire  within
          120 days by statute.33  Therefore, if Eklutna were to challenge a
future  emergency  rule  enacted by the Railroad,  the  challenge
would likely be rendered moot by expiration of the emergency rule
while  litigation is pending.  Finally, whether the Railroad  may
enact rules allowing it to circumvent local land use rules  is  a
matter  of public interest.  For these reasons, we conclude  that
the public interest exception to the mootness doctrine applies.
          The  Municipality  argues that  this  appeal  will  not
become  ripe  until  the Railroad applies for a  conditional  use
permit  and  is denied one.  That is not the issue in this  case,
which  stems  from Eklutnas challenge to the Railroads  emergency
rule.  The Municipality also argues that the issues in this  case
are  beyond  the scope of this courts remand because, under  this
courts  holding  in Eklutna II, the Railroad  must  apply  for  a
conditional  use  permit before the court will entertain  further
proceedings.   While  it is true that this court  will  not  hear
appeals  of  issues beyond the scope of the remand from  a  prior
appeal,34  this principle does not apply to this case.   Eklutna,
not  the  Railroad,  introduced this round  of  litigation.   The
important question here is not whether the Railroad has raised  a
new issue on remand, but whether there are any new issues in this
appeal.
     C.   Our Holding in Eklutna II Applies to this Case.
          The  Railroad  argues on appeal that a  reading  of  AS
42.40.390 allowing the Railroad to promulgate rules that conflict
with  local  ordinances  is  not inconsistent  with  this  courts
opinion  in  Eklutna II.  The Railroad focuses on  the  following
portion of our discussion of AS 42.40.390:
          This  provision presents some  evidence  that
          the   legislature  intended  to  exempt   the
          Railroad   from  local  zoning   laws.    Its
          reference  to exclusive rules might  indicate
          that  no other governments rules would  apply
          on  Railroad  land.  But the  term  exclusive
          could   also   be  read  as  a  choice-of-law
          provision   if the Railroad Board promulgated
          rules conflicting with local ordinances,  the
          Railroads  regulations would govern,  but  in
          the  absence of a conflict, local  rules  are
          unaffected.[35]
          
The  Railroad also points to two footnotes  one included in  this
courts decision, the other in the dissent  and argues that  taken
together, the footnotes indicate that AS 42.40.390 must  be  read
as  allowing the Railroad, at a minimum, to adopt land use  rules
that  would  trump  conflicting local  ordinances.   The  dissent
examined a 1984 meeting of the Senate Transportation Committee at
which  the  committee considered whether to repeal AS  42.40.390.
In  particular, the dissent considered a memorandum  that  Tamara
Cook,  Deputy Director of the Division of Legal Services  of  the
Legislative  Affairs  Agency, wrote  to  the  committee.36   Cook
concluded  that AS 42.40.390 was either intended to grant  zoning
authority  to  the Railroad or to exclude railroad property  from
zoning regulations.37  In a footnote, the dissent suggested  that
the  court  had  offered  a third alternative   namely,  that  AS
42.40.390  was  a  choice-of-law provision mandating  that  rules
promulgated  by  the Railroad would govern  in  the  event  of  a
conflict.38  The court responded in a footnote of its own, stating
that   [t]he  Railroad  Board  has  not  promulgated   any   such
regulation.  Contrary to the dissents assertion . . . a choice-of-
law  rule  does  not  grant any immunity or authority,  but  only
resolves conflicts between laws.39
          Based on these footnotes, the Railroad argues that both
the  majority and the dissent agreed that if the Railroad was not
immune,  it  could, at a minimum, adopt rules that  would  govern
over  conflicting  local ordinances.  But the Railroads  argument
neglects  an  important  portion of our opinion  in  Eklutna  II.
Examining the same legislative history considered in the dissent,
we  analyzed some possible interpretations of AS 42.40.390.40  We
noted that various members of the Senate Transportation Committee
agreed that the provision was not intended to shield the Railroad
from local regulation.41  We observed that one senator stated that
the  provision was originally added to ensure that Railroad bonds
would  be  tax  exempt under a federal law, and  another  senator
advocated retaining the provision because the Railroads status as
a tax-exempt bonding authority was again in question.42
          Thus,  our  discussion in Eklutna II  of  AS  42.40.390
considered  a number of possible interpretations of the  statute.
But we did not decide which, if any, of these interpretations was
correct.  Regarding the possibility that the statute was intended
as  a  choice-of-law  provision, we stated  only  that  the  term
exclusive  could  also be read as a choice-of-law  provision  and
concluded  that  AS  42.40.390  is  not  a  clear  indication  of
legislative intent to exempt the Railroad from local zoning.43
          The dissents view44 is that no plausible alternative to
its  interpretation of the term exclusive rules in  AS  42.40.390
remains once we reject the theoretical interpretation of the term
exclusive  we  posited in Eklutna II.  Yet in  this  appeal,  the
Municipality  has offered yet another possible interpretation  of
AS  42.40.390:  that  it  was  intended  to  grant  the  Railroad
independent authority to convey Railroad land to third parties.45
The   Municipalitys  interpretation  reminds  us  that  too  much
attention  has been focused on the term exclusive  rules  in  the
first  sentence  of  AS  42.40.390 without examining  the  entire
context of the provision.46
          The entirety of AS 42.40.390 reads as follows:
          The board may adopt exclusive rules governing
          land  use by parties having interests  in  or
          permits  for  land owned or  managed  by  the
          corporation.   The  power conferred  by  this
          section  is exercised for the common  health,
          safety, and welfare of the public and to  the
          extent constitutionally permissible, may  not
          be  limited  by  the terms and conditions  of
          leases, contracts, or other transactions.
          
(Emphasis  added.)  This language expressly grants  the  Railroad
power to authorize and regulate activities by others on its land.
If  this passage were concerned with the relationship between the
Railroad and other government entities, then it would have stated
that  the  Railroad may adopt exclusive rules governing  its  own
conduct  on its land, rather than exclusive rules governing  land
use  by other parties having interests in or permits for Railroad
land.  And if this section were intended to confer immunity  from
compliance with local land use regulations, the second  sentence,
stating  that  the Railroads power is not to be  limited  by  the
terms and conditions of leases, contracts, or other transactions,
would   presumably   also  have  mentioned   local   regulations,
ordinances,  or  statutes.  The lack of  such  language,  not  to
mention  the  absence of the word immunity or any  derivative  or
equivalent,  lends  further weight to  the  inference  that  this
passage is not concerned with the resolution of conflicts between
rules adopted by the Railroad and local land use regulations.  It
is  instead  concerned with ensuring that the  Railroad  has  the
power  to control activities on its land even when its wishes  to
deviate from those of its permittees.
          The  dissent argues that this interpretation   that  AS
42.40.390  is concerned with regulating the relationship  between
the  Railroad and third parties on its land   dispenses with  the
term  exclusive.47  But when the term exclusive is  read  in  the
context  of  the entire provision, it appears that the  provision
was  aimed at ensuring that the Railroads power over its own land
is  exclusive  in  the sense that it cannot be abrogated  by  the
terms  and conditions of leases, contracts, or other transactions
entered into with parties having interests in or permits for land
owned  or  managed  by  the  corporation.   Merely  because   the
Railroads  powers over its own land are exclusive with regard  to
third   parties,  in  contrast  to  the  usual  situation   where
contracting  parties are free to bargain away their rights,  does
not imply that the Railroads powers are exclusive with regard  to
other  government entities.  Far from being absurd, as  suggested
by  the dissent,48 government entities must commonly contend with
conflicts  of jurisdiction, whether it be in matters of  property
law, commercial law, or environmental law.49
          We have observed that issues previously adjudicated can
only  be reconsidered where there exist exceptional circumstances
presenting a clear error constituting a manifest injustice.50  The
law  of the case doctrine precludes consideration of issues  that
have  been  adjudicated in a previous appeal in the same  case.51
Even  issues  not  explicitly discussed in  the  first  appellate
opinion,  but directly involved with or necessarily  inhering  in
the  decision  will  be considered the law of  the  case.52   The
doctrine is grounded in the principle of stare decisis.  We  will
overrule  a prior decision only when clearly convinced  that  the
rule  was  originally erroneous or is no longer sound because  of
changed  conditions, and that more good than  harm  would  result
from a departure from precedent.53
          The  Railroad  argues that this court  did  not  decide
whether  AS 42.40.390 is a choice-of-law provision in Eklutna  II
because  the  Railroad had not yet adopted a land use regulation.
But  the  Railroad is asking us to reconsider arguments  that  we
considered  in  Eklutna  II.   After analyzing  the  meaning  and
          legislative history of AS 42.40.390 at length, we concluded that
the meaning of the statute was not clear.54  This conclusion is in
keeping  with our overall holding in the case: that ARCA provides
no  clear  indication of the legislatures intent with  regard  to
local  land  use authority over the Railroad and that Alaska  law
does  not presume state immunity to local zoning.55  The lack  of
clarity in AS 42.40.390 and other ARCA provisions led us to adopt
a  balancing  of  interests test, as courts in at least  fourteen
other  jurisdictions have done when faced with  unclear  statutes
under similar circumstances.56  It does not appear that there are
any  changed circumstances that shed new light on the meaning  of
the  statute as it was originally enacted.  Nor are we  convinced
that  there  exist exceptional circumstances presenting  a  clear
error  constituting a manifest injustice.  We decline to  revisit
the issue here.
          The  Railroad also argues that our requirement that the
Railroad apply for a conditional use permit is clearly dicta with
respect  to AS 42.40.390.  But in fact, the requirement that  the
Railroad  must  attempt to comply with local  zoning  laws  is  a
central  element  of  the  balancing of interests  test  that  we
adopted  in  Eklutna  II.57   The  proper  interpretation  of  AS
42.40.390 was adjudicated at length in Eklutna II.  At the least,
the  meaning  of  AS  42.40.390 was  directly  involved  with  or
necessarily inhering in this courts decision in Eklutna II.58  For
these  reasons,  we apply the law of the case  doctrine  to  this
appeal  and affirm the superior courts grant of summary  judgment
to Eklutna.
     D.   The  Legislatures Response to the Railroads Request for
          a   Legislative  Clarification  Is  Probative  but  not
          Dispositive.
          
          Eklutna contends that the legislatures decision not  to
adopt  the  Railroads  proposed  amendment  to  AS  42.40.390  is
probative  in this case.  As we observed in Eklutna II,  [i]t  is
often an error to make much of legislative inaction.59  But in the
same opinion we considered the 1984 legislatures decision not  to
revise  AS 42.40.390 to clarify a possible grant of immunity  and
observed:   [I]n  this  context, with the  problem  and  solution
plainly  before it, we see the legislatures decision as at  least
suggesting that AS 42.40.390 was not intended as a shield against
local  regulation.60   The  2004 legislature  was  in  a  similar
position  that is, it had specific proposed legislation to add to
AS  42.40.390  which would have clarified that  the  Railroad  is
exempt from local zoning.  The legislature chose not to amend the
statute, but instead formed a task force.
          When  it  decided  not to adopt the Railroads  proposed
amendment,  the  2004 legislature was well aware of  this  courts
decision  in  Eklutna  II, as reflected in  the  minutes  of  the
transportation  committee hearings in  both  chambers.   And,  as
noted above, Gamble told the House Transportation Committee  that
the Railroad would not be allowed to get quarry rock from Eklutna
regardless  of the legislatures decision.  In fact,  when  Gamble
made  this statement, the Railroad had already  adopted Emergency
Rule  2004-E-I.  There is no indication in the committee  minutes
          that the legislators were aware of the emergency rule.  At one
point  in  the  House Standing Transportation Committee  hearing,
Representative Kookesh questioned Gambles characterization of the
status quo as being that the Railroad is exempt from local zoning
laws  and observed that the status quo is what the Supreme  Court
said  it  was.   Although Gamble engaged  in  a  discussion  with
Kookesh about the proper definition of the status quo, he did not
mention that the Railroad had promulgated an emergency rule  that
would  allow  it  to  remove rock from the  quarry.   Given  this
sequence  of  events, and the legislators apparent  understanding
that  the  Railroad was required to apply for a  conditional  use
permit under this courts decision in Eklutna II, we believe  that
the  legislatures  decision  not to clarify  the  meaning  of  AS
42.40.390 is probative in this case.  We note, however,  that  we
do  not  consider  a legislative decision of this  nature  to  be
dispositive standing on its own.
     E.   The  Superior  Court  Did  Not  Err  in  Awarding  Full
          Attorneys  Fees  to Eklutna Under the  Public  Interest
          Litigant Doctrine.
          
          The  Railroad argues that the superior court  erred  in
granting full attorneys fees to Eklutna under the public interest
litigant doctrine.  The Railroad argues: (1) that AS 09.60.010(b)
prevents  Eklutna from claiming public interest litigant  status;
and  (2)  that  Eklutna  does not qualify as  a  public  interest
litigant.  We conclude that the superior court did not abuse  its
discretion when it determined that Eklutna was a public  interest
litigant.
          1.   Alaska Statute 09.60.010(b) does not apply to this
               case.
          The Railroad first argues that AS 09.60.010(b) prevents
Eklutna  from  claiming public interest litigant status.   Alaska
Statute 09.60.010 was amended in 2003 to state:
          Except  as  otherwise provided by statute,  a
          court  in this state may not discriminate  in
          the  award of attorney fees and costs  to  or
          against  a party in a civil action or  appeal
          based on the nature of the policy or interest
          advocated by the party, the number of persons
          affected by the outcome of the case,  whether
          a  governmental entity could be  expected  to
          bring  or participate in the case, the extent
          of the partys economic incentive to bring the
          case, or any combination of these factors.[61]
          
Eklutna does not disagree that this provision repeals the  public
interest  litigant doctrine, but argues that the  amendment  does
not  apply  to  Eklutna because this suit was  filed  before  the
amendment  came into effect.  Alternatively, Eklutna argues  that
the amendment is unconstitutional.
          As  both  parties acknowledge, AS 09.60.010(b)  applies
only  to  suits filed on or after September 11, 2003.62   Eklutna
contends that the provision does not apply to this action because
the  action  is part of Eklutnas original suit for an  injunction
          against the Railroad, which Eklutna filed in 2001.  The Railroad
argues  that Eklutnas challenge to Emergency Rule 2004-E-1  is  a
new  case and that Eklutna should have either filed a new  action
or  amended its original complaint to protest the emergency rule,
rather  than  filing a post-appeal motion for summary judgment.63
Judge Rindner agreed with Eklutna and concluded that the case was
filed  before September 11, 2003, as required by the language  of
the session law.64
          Eklutnas  position  is  that  this  case  has  been  an
equitable  action  from the beginning because Eklutna  sought  an
injunction, and once equitable jurisdiction attaches,  the  court
retains  continuing jurisdiction until the dispute  is  resolved.
This  is  the  general rule.65  The Railroad argues that  Eklutna
should  have  either filed a new action or amended its  complaint
after  the  Railroad  enacted Emergency Rule  2004-E-1,  but  the
Railroad does not explain why amending the 2001 complaint to  add
a  new  cause of action would be the equivalent of filing  a  new
case after the September 11, 2003 deadline.  Under Alaska law,  a
statute  of  limitations does not bar a party from  amending  the
original complaint so long as the amendment relates back  to  the
original  claim, filed before the limitations period  has  run.66
Although this case does not involve a statute of limitations, the
relating  back test  that is, whether the new claim involves  the
same transaction or occurrence alleged in the original complaint67
is useful by analogy.  Even if Eklutna had amended its complaint,
as  the  Railroad suggests it should have, the amended  complaint
would  have  been sufficiently related to the original  complaint
that  it  could be considered part of the same lawsuit.  We  also
note  that  Eklutna moved for summary judgment in  an  effort  to
enforce  this  courts decision in Eklutna II during  the  remand;
this  circumstance  reinforces our conclusion  that  this  appeal
stems  from  Eklutnas  original lawsuit  that  was  filed  before
September 11, 2003.  Having determined that AS 09.60.010(b)  does
not  bar  Eklutnas claim of public interest litigant  status,  we
need  not  consider  whether its enactment  violated  the  Alaska
Constitution.
          2.   The  superior  court did not abuse its  discretion
               when  it  determined  that  Eklutna  is  a  public
               interest litigant.
               
           The Railroad next argues that Eklutna does not qualify
as  a public interest litigant.  This court examines four factors
to  determine  whether a party qualifies for the public  interest
litigant  exception  to  Civil Rule 82.   The  factors  are:  (1)
whether  the  case  is  designed  to  effectuate  strong   public
policies; (2) whether the plaintiffs success will cause  numerous
people  to  benefit from the lawsuit; (3) whether only a  private
party could have been expected to bring the suit; and (4) whether
the  purported  public  interest litigant would  have  sufficient
economic incentive to file suit even if the action involved  only
narrow  issues lacking general importance.68  The Railroad argues
that  Eklutna  cannot  satisfy  the  third  factor  because   the
Municipality is a party to the action.
          The  superior court disagreed, noting that Eklutna  had
          been treated as a public interest litigant in related cases.
Eklutna  quotes from Spenard Action Committee v. Lot 3, Block  1,
Evergreen  Subdivision to support its contention that  under  the
public  interest litigant doctrine, where a municipality has  the
power  and ability to bring an action but declines to do so,  the
situation is one where for all practical purposes, only a private
party  could have been expected to bring [suit]. 69   In  Spenard
Action  Committee,  we  examined whether a  citizens  group  that
sought to abate prostitution was a public interest litigant.70  We
concluded  that  the  group was a public interest  litigant  even
though the Municipality of Anchorage could have enforced the anti-
prostitution laws because the Municipality refused to do so.71  In
this case, Eklutna asserts that it requested the Municipality  to
take  action  in  2001 to prevent the Railroad  from  mining  the
quarry.   The Municipality refused to do so, forcing  Eklutna  to
seek  an  injunction.  Eklutna also requested  the  Municipalitys
assistance  in  April 2004, after the Railroad enacted  Emergency
Rule  2004-E-1.  Again, the Municipality refused to take  action,
and   Eklutna  filed  its  own  summary  judgment  motion.    The
Municipality  did not intervene until later.  Eklutnas  attorney,
Sara  Heideman, sets forth these facts in an affidavit  and  they
are not disputed in the record before us.
          The Railroad argues that this case differs from Spenard
Action  Committee  because  in this  case  the  Municipality  has
intervened on behalf of Eklutna.  The Railroad concedes that  the
Municipality   participated  in  this  litigation   but   allowed
[Eklutna]  to carry the burden of the briefing, yet  argues  that
the Municipality, not the Railroad, should bear the costs of this
decision.72   Denying  Eklutna public  interest  litigant  status
merely  because  the  Municipality joined the  suit  later  would
defeat  the  purpose  of the public interest  litigant  doctrine,
which  is  designed to encourage plaintiffs to  bring  issues  of
public  interest to the courts.73  We conclude that the  superior
court  did not abuse its discretion when it awarded Eklutna  full
reasonable  attorneys  fees under the  public  interest  litigant
doctrine.74
IV.  CONCLUSION
          Because Eklutna II requires the Railroad to apply for a
conditional  use permit before operating the Eklutna  quarry,  we
AFFIRM the superior courts decision in its entirety.
MATTHEWS,  Justice,  with  whom  BRYNER,  Chief  Justice,  joins,
dissenting.
          In  my view AS 42.40.3901 is a direct legislative grant
to  the  Railroad of immunity from local zoning.   The  power  to
adopt  exclusive  rules  governing land  use  for  railroad  land
necessarily means that local governments that might otherwise  be
able  to regulate railroad lands are excluded.2  Today the  court
disavows the only alternative to this view that it offered in its
prior opinion.  The alternative interpretation was that the  term
exclusive could also be read as a choice-of-law provision  if the
Railroad   Board   promulgated  rules  conflicting   with   local
ordinances, the Railroads regulations would govern,  but  in  the
absence of a conflict, local rules are unaffected.3
          I  think  that the court at this point should recognize
that it has retracted, and thus changed, an important part of its
prior   opinion.   The  courts  retraction  means  that  it   was
originally mistaken in thinking that the grant of exclusive rule-
making  authority  to  the  Railroad left  some  room  for  local
regulation  of  railroad lands.  The court  should  now  construe
section  .390 in accordance with its plain language as  confirmed
by  clear legislative history and hold that section .390 excludes
railroad land from municipal zoning.
          Is  there  something  else  that  the  exclusive  rules
provision of section .390 could mean?  Todays opinion offers  two
new  alternatives.   But, as I discuss in the following  section,
neither is plausible.
                               I.
          As  the first new alternative, the court states that an
interpretation  offered by the  Municipality is another  possible
interpretation.4   The  Municipalitys  interpretation   is   that
section  .390  governs conveyances of railroad  lands.   But  the
explicit  subject  of section .390 is exclusive  rules  governing
railroad land use, not transfers of interests in railroad  lands.
The  important subject of transfers of interest in railroad lands
is   governed  by  other  sections  of  the  act,  primarily   AS
42.40.285(1)  and (4) and AS 42.40.350(c) and (d).5   Since  land
conveyances  and  land  use  are  separate  subjects  treated  in
separate  statutory sections, the view that section .390  governs
conveyances,  when  it  states that it governs  land  use,  seems
frivolous.
          The  second  new alternative interpretation offered  by
the  court is that the land use rules authorized by section  .390
are  to  ensure  that  the  Railroad has  the  power  to  control
activities on its land even when its wishes to deviate from those
of  its permittees, but that these land use rules are subject  to
local  land  use  regulations.6  It is of course  true  that  one
purpose  of  section  .390 is to ensure  that  the  Railroad  can
control  the  land use activities of its lessees  and  permitees.
The  power  thus  granted is a regulatory power  granted  to  the
Railroad  as  a  government entity.  It is to be exercised,  like
zoning, for the common health, safety, and welfare of the public,
(as  the second sentence of AS 42.40.390 makes clear) rather than
as  a  landlords power to specify in leases and permits how  land
should   be  used.   However,  the  second  part  of  the  courts
          interpretation, that the land use regulatory power granted to the
Railroad  by  section .390 is subject to the land use  regulatory
power  of  any municipality which encompasses railroad lands,  is
not a reasonably possible interpretation for three reasons.
          First, the interpretation reads the word exclusive  out
of section .390.   Since the Railroads power to regulate its land
is  exclusive,  it  follows  that a  municipality  may  not  also
regulate them.7
          Second, the interpretation requires us to believe  that
the  legislature intended that two separate governmental entities
a municipality and the Railroad  would both have the authority to
zone  railroad  land.  Imposing a system in which two  government
entities  have the authority to zone the same land  would  be  so
irrational as to be absurd, especially when there is no  built-in
mechanism  for resolving conflicts between the zoning  entities.8
The  interpretation thus conflicts with the rule of  construction
that statutes should not be interpreted to reach absurd results.9
          Finally,  this  interpretation is  not  only  textually
untenable  and  absurd  in  result, it also  conflicts  with  the
legislative history.  That history was examined in detail in  the
dissenting  opinion  in Eklutna II.10  To summarize  it  briefly,
section  .390 was originally drafted in a legislative session  in
which the Alaska Railroad Corporation Act was considered but  not
passed.   In 1984, when the act was passed, the Chairman  of  the
Senate  Transportation Committee was initially  uncertain  as  to
what  the section meant.  As todays opinion states, a legislative
attorney  advised  the  committee that section  .390  was  either
intended to grant zoning authority to the Railroad or to  exclude
railroad  property from zoning regulations.11  During  subsequent
meetings  concerning section .390 this interpretation  was  never
questioned,  although the desirability of retaining section  .390
was.  In the end, however, section .390 was approved when, on the
final day of committee deliberations Senator Halford argued  that
it  was  needed  to protect the railroads operations  from  local
zoning  restrictions.12   Senator  Gilman,  who  argued  for  the
deletion of section .390, said that it originally was put  in  to
establish some rationale for why the railroad should get  a  tax-
exempt  bonding  authority and opined that  this  was  no  longer
necessary.13   But  Senator Faiks argued that tax  exemption  was
still  a  problem.  Hers was the last word and section  .390  was
retained.  As the dissent in Eklutna II states:
          In  order to have tax-exempt bonding  status,
          it was believed that the Railroad needed land
          use regulation powers comparable to those  of
          a   local   government.   Such  powers   were
          granted.   It  does  not matter  whether  the
          powers  were  granted primarily so  that  the
          Railroad  could issue tax-free  bonds  or  so
          that  the Railroad would not be disturbed  in
          its operations by municipal zoning.  Whatever
          the  dominant motive may have been, the grant
          of  exclusive land use regulatory  power  was
          the same.[14]
          
          The  most  valuable  and  least  controversial  use  of
          legislative history is to show the problem, or the problems, that
the  legislature was addressing.  When the problem is known,  the
effect  of language that might otherwise be obscure often becomes
apparent.15  Here the history of section .390 shows that  it  was
meant to address two, and only two,  problems.  One was the  need
to  ensure  that the Railroad would be recognized as a tax-exempt
entity entitled to issue tax-free bonds.  The other was the  need
to  protect  the  Railroad  in  its operations  from  impediments
imposed  by local zoning.  Section .390 was the solution to  both
problems.   In order to establish the bona fides of the  Railroad
as  a  government  entity entitled to tax-exempt  treatment,  the
Railroad  was  granted exclusive land use regulatory  power.   In
order to protect the Railroad from operational interference  from
local  zoning, the Railroad was granted the same exclusive power.
The legislative history thus unmistakably shows that section .390
was  meant  as  a  grant to the Railroad of  exclusive  land  use
regulatory  power.  There is, quite simply, no history suggesting
that   concurrent  land  use  authority  was  intended   by   the
legislature,  much  less  concurrent authority  that  would  give
precedence to municipal zoning in case of a conflict.
          This  new  concurrent authority with  municipal  zoning
given  precedence  interpretation is  the  reverse  of  the  now-
rejected  alternative  interpretation offered  by  the  court  in
Eklutna  II.   That  alternative also posited  concurrent  zoning
authority  for  municipalities and the Railroad.   If  particular
railroad  land was covered by municipal zoning and  the  Railroad
had not passed land use regulations governing that land, it would
be  controlled  by  the municipal zoning regulations.   But  upon
passage  by  the Railroad of land use regulations  governing  the
land,  the railroad regulations would take precedence.  The  now-
rejected interpretation, in other words, read exclusive to  state
a  rule of priority rather than a rule of exclusion.  That is  an
unusual  interpretation of exclusive, but at least the  word  was
not completely ignored.  Currently, however, the court appears to
be  saying  that  a  municipality  and  the  Railroad  both  have
concurrent  zoning authority and in cases where both  have  acted
and  there  is a conflict the municipal regulations, rather  than
the  railroad regulations, prevail.  The word exclusive has  gone
missing.
                              II.
          I  also  think  that the court has made  a  fundamental
mistake  as  to  the nature of the balancing of  interests  test.
That test, which was first announced by the Supreme Court of  New
Jersey   in  Rutgers,  State  University  v.  Piluso,16   rejects
traditional  approaches  to  the problem  that  arises  when  one
government  entity  proposes an activity  that  may  violate  the
zoning  rules  of  another  government entity.   The  traditional
approaches inferred immunity from zoning based on (1) the  status
of  the competing entities (the superior sovereign test), (2) the
nature  of  the  proposed  activity (the governmental/proprietary
dichotomy), or (3) the fact that the proposed activity was or was
not  supported  by  the  power to condemn property  (the  eminent
domain  test).  The Rutgers balancing of interests  test  rejects
the  rote or ritualistic practice of inferring immunity based  on
          the presence or absence of the above factors.17  Instead, the
question  of  immunity  is  to be answered  by  considering  many
factors, including those on which the traditional approaches  are
based,  that may be relevant to the particular question of  which
governmental  entity should prevail.  The balancing of  interests
test  thus  rejects the practice of inferring legislative  intent
from  just  one factor, in favor of inferring legislative  intent
from  a  number of factors that are thought to be relevant  to  a
resolution  of  particular land use conflicts between  government
entities.18
          The  underlying premise of the balancing  of  interests
test   (and  the  traditional  approaches)  is  that  the   state
legislature has not actually addressed the subject of whether the
entity proposing the activity should or should not be subject  to
local  zoning.   The inquiry is in essence what  the  legislature
would  have  done  had  it considered the question.19   The  test
entails  a  search for hypothetical legislative intent  by  using
factors  relevant  to local and broader needs  [w]hen  the  state
legislature  is  silent on the subject because it wasnt  thinking
about the problem.20
          Since  there  can be no doubt that the legislature  was
thinking  about  the  problem of whether the Railroad  should  be
immune  from local zoning when it considered section .390,21  the
premise of the balancing of interests test is not satisfied here.
As a result, the courts duty is to determine what the legislature
meant  when  it  enacted  the  exclusive  rules  provision.   The
balancing  of  interests  test  is  a  rule  that  rejects   rote
inferences of immunity drawn from collateral legislation, but  it
is not a rule that changes a courts fundamental duty to interpret
statutes   that  directly  address  the  subject   of   immunity.
Balancing  of  interests applies in the  absence  of  a  directly
relevant  statute,  but  it  is not a rule  intended  to  resolve
ambiguities in statutes that address the subject of immunity.22
          The  Supreme  Court of New Jersey designed the  Rutgers
balancing  test to prohibit courts from using legal relationships
that  do not directly concern land use control to draw inferences
about  one  government entitys amenability to zoning by  another.
Todays  opinion has converted the Rutgers balancing test  into  a
rule of statutory construction precluding the immunization of one
entity  from  the  zoning power of another unless  the  land  use
control  law  states  the  immunization  objective  with  a  high
standard  of clarity.23  This conversion of the Rutgers balancing
test  into a clear-statement rule reflects a presumption in favor
of  local  zoning power over state land use.  Judicially  created
clear-statement  rules  are  based  on  a  presumption   that   a
particular result is disfavored, thus requiring laws  to  make  a
clear  statement  that  such a result is  intended.24   That  the
Rutgers  balancing  test cannot be interpreted  to  be  a  clear-
statement  rule  is  clear from the Rutgers  opinion.   Far  from
reflecting  a presumption disfavoring state land uses  when  they
conflict  with  local  zoning, the New  Jersey  court  stated  in
Rutgers that state functions and agencies would generally not  be
subject   to   restriction  or  control   by   local   land   use
regulations.25  The Rutgers court stated:
          With regard to a state university . . . there
          can    be   little   doubt   that,   as    an
          instrumentality  of the state  performing  an
          essential  governmental  function   for   the
          benefit  of all the people of the state,  the
          Legislature would not intend that its  growth
          and   development  should   be   subject   to
          restriction  or  control by  local  land  use
          regulation.   Indeed, such will generally  be
          true  in the case of all state functions  and
          agencies.[26]
          
          Rather  than use a rule of statutory construction  that
gives courts permission to ignore relevant statutes that speak to
the  question of the allocation of the power to control land  use
unless the courts find them to be clear  a rule that is not  part
of  the  Rutgers balancing test  the court should, in my opinion,
use  customary  rules  of statutory interpretation  in  order  to
determine  what the legislature actually meant when it  addressed
the  subject of the Railroads authority to adopt exclusive  rules
governing railroad land use.
          To  sum up, I think that the court erred in Eklutna  II
when  it  declined to interpret section .390 to  exempt  railroad
land  from  local zoning.  Such an interpretation is required  by
our   customary  touchstones  of  statutory  interpretation,  the
language  of  the  section as confirmed by  its  unusually  clear
legislative  history.27  The court has now found it necessary  to
recant  the only alternative interpretation of section .390  that
it  offered  in  Eklutna II.  I think this should signal  to  the
court  that it made a mistake in Eklutna II and that the  mistake
should now be corrected.  Instead, the court has offered two  new
alternative interpretations.  These new interpretations stray  so
far   afield   from   our   traditional  methods   of   statutory
interpretation  as to be completely implausible, in  my  opinion.
The  court  is able to justify its failure to reach a  conclusive
interpretation of the meaning of section .390 by creating a clear-
statement  rule of statutory construction.  This rule allows  the
court to brush aside any statute that addresses the land use rule-
making  authority of entities other than municipal zoning  boards
unless  the  statute  clearly exempts  the  other  entities  from
municipal  zoning.  This is a distortion of the Rutgers balancing
test.   Our established rules of statutory interpretation do  not
require  statutory clarity  where clarity exists there is  little
need  for the rules.  In my view, when a normal approach is taken
to  the  question  of  the  meaning  of  section  .390  only  one
interpretation is reasonably possible.
          For these reasons, I dissent.
_______________________________
     1    995 P.2d 641 (Alaska 2000).

     2    Id. at 641-43.

     3    Id. at 645.

     4    Id. (citing Anchorage Municipal Code (AMC) 21.50.020A).

     5    43 P.3d 588 (Alaska 2002).

     6    Id. at 590.

     7    Id.

     8    Id. at 598.

     9     Native Vill. of Eklutna v. Alaska R.R. Corp., 87  P.3d
41, 44 (Alaska 2004) (Eklutna II).

     10    Id.

     11    Id.

     12    Id. at 45.

     13    AS 42.40.010 et seq.

     14    Eklutna II, 87 P.3d at 45.

     15    AS 42.40.390 provides:

          The    board   [of   the   Alaska    Railroad
          Corporation]   may  adopt   exclusive   rules
          governing   land   use  by   parties   having
          interests  in  or permits for land  owned  or
          managed   by  the  corporation.   The   power
          conferred  by  this section is exercised  for
          the common health, safety, and welfare of the
          public  and  to  the extent  constitutionally
          permissible, may not be limited by the  terms
          and conditions of leases, contracts, or other
          transactions.
          
     16    Eklutna II, 87 P.3d at 47.

     17    Id. at 54-55.

     18     Id. (quoting Rutgers, State Univ. v. Piluso, 286 A.2d
697, 702 (N.J. 1972)).

     19    Id. at 55.

     20    Id.

     21    AS 42.40.190(b) provides that an emergency rule adopted
by  the  Railroad Board remains in effect for not more  than  120
days.

     22    The proposed legislation, contained in Senate Bill 395
and House Bill 560, would have amended AS 42.40.390 to provide:

               (b)   Municipal ordinances providing for
          planning,  platting, and land use  regulation
          adopted  under AS 29.35.180 or other  law  do
          not  apply  to  the land of  the  corporation
          unless  the land is leased to another  person
          by  the  corporation and the corporation  has
          not  retained a right to use the land  during
          the term of the lease.
          
     23    Ch. 46,  4(d), SLA 2004.

     24    Ch. 46, SLA 2004.

     25    Ch. 46,  4(d), SLA 2004.

     26    Eklutna II, 87 P.3d at 44.

     27    Id.

     28     Citizens Coalition for Tort Reform, Inc. v. McAlpine,
810 P.2d 162, 171 (Alaska 1991) (citing Johnson v. Tait, 774 P.2d
185, 190 (Alaska 1989)).

     29    Koyukuk River Tribal Task Force on Moose Mgmt. v. Rue,
63  P.3d  1019, 1020 (Alaska 2003) (citing Feichtinger v. Cooper,
893 P.2d 1266, 1268 (Alaska 1995)).

     30     Alaska Ctr. for Envt v. Rue, 95 P.3d 924, 929 (Alaska
2004).

     31     See, e.g., Burke v. Barnes, 479 U.S. 361, 363  (1987)
(concluding  that  issue  was moot because  bill  expired  during
pendency  of  appeal); Krohn v. State, Dept of Fish &  Game,  938
P.2d  1019,  1023  (Alaska 1997) (holding  that  issue  was  moot
because   Department   of  Fish  and  Game  repealed   challenged
regulations).

     32    OCallaghan v. State, 920 P.2d 1387, 1389 (Alaska 1996)
(citing  Peloza  v. Freas, 871 P.2d 687, 688 (Alaska  1994);  see
also  Alaska Ctr. for Envt, 95 P.3d at 929.  None of  the  public
interest  factors  is  dispositive, and  whether  to  invoke  the
exception lies with the discretion of the court.  Krohn, 938 P.2d
at 1021.

     33    See AS 42.40.190.

     34    See State, Commercial Fisheries Entry Commn v. Carlson,
65 P.3d 851, 873 (Alaska 2003).

     35    Eklutna II, 87 P.3d at 47.

     36    Id. at 63 (Matthews, J., dissenting).

     37    Id.

     38    Id. at 63 n.12.

     39    87 P.3d at 47 n.24.

     40    Id. at 47.

     41    Id. at 47-48.

     42    Id. at 47.

     43    Id. at 47-48 (emphasis added).

     44    Dissent at 26.

     45    Given that the Railroad is exempted by AS 42.40.920(11)
from  the  rules governing state land conveyancing in the  Alaska
Land  Act,  AS  38.05,  it makes sense to read  AS  42.40.390  as
conferring on the Railroad the power to enact rules governing how
it will lease or convey its land to others within, of course, the
constraints of other sections of the act.

     46      The  dissent  takes  issue  with  the  Municipalitys
interpretation because the dissent interprets the term  land  use
as  separate  from  land  conveyances  or  other  forms  of  land
transfers.   Dissent  at  27.  But the term  use  is  capable  of
including  conveyances and transfers of all kinds.  AS  42.40.390
also  uses  the terms interests and other transactions,  both  of
which  are general terms that can cover the full range  of  legal
relationships including conveyances.

     47    Dissent at 29, 32.

     48    Dissent at 29.

     49    As the dissent points out, the problems that arise when
one  government entity proposes an activity that may violate  the
zoning rules of another government entity are common and have led
to  the development of traditional approaches to resolving  these
problems    such   as   the   superior   sovereign   test,    the
governmental/propriety dichotomy, or the eminent domain test,  in
addition  to the balancing of interest test.  Dissent  at  32-33.
The  proliferation  of attempts to negotiate these  conflicts  of
jurisdiction  among  governmental entities  suggests  that  while
these   conflicts   may  be  difficult  to  resolve,   they   are
nevertheless common.

     50    Carlson, 65 P.3d at 859 (internal quotations omitted).

     51    Bowers Office Prods., Inc. v. Fairbanks N. Star Borough
School Dist., 918 P.2d 1012, 1014 (Alaska 1996).

     52    Id. (internal citations and quotations omitted).

     53    Carlson, 65 P.3d at 859 (internal quotations omitted).

     54    Eklutna II, 87 P.3d at 48.

     55    Id. at 45.

     56    Id. at 54.

     57    See Eklutna II, 87 P.3d at 55 (Resort to the balancing
of  interests  test  is  limited by two  threshold  requirements.
First,  because  the  test  aims to discern  legislative  intent,
direct  statutory  grants of immunity control  when  they  exist.
Second,  the court will not resolve conflicts under the balancing
test unless the state has made a reasonable good faith attempt to
comply with local zoning laws.) (internal citations omitted).

     58    See Bowers Office Prods., 918 P.2d at 1014 (discussing
law of the case doctrine) (internal quotations omitted).

     59     Eklutna II, 87 P.3d at 48 (citing Cmty. for  Creative
Non-Violence v. Reid, 490 U.S. 730, 749 (1989)).

     60    Id.

     61    AS 09.60.010(b); ch. 86, SLA 2003.

     62    See ch. 86,  4, SLA 2003.

     63    Although the Railroad did not challenge the procedural
posture  of  the case when Eklutna filed its motion  for  summary
judgment,  the  Railroad  did preserve the  right  to  make  this
argument in a stipulation with Eklutna.

     64    See ch. 86,  4, SLA 2003.

     65     See  18 Am. Jur. 2d Contribution  74 (2004)  (Once  a
court  of equity acquires jurisdiction of the subject matter,  it
will  retain  it  until full justice has been  done  between  the
parties.);  see also Foster v. State, 752 P.2d 459,  465  (Alaska
1988)  (stating  that  once  a  court  obtains  jurisdiction  for
equitable  purposes,  it may dispose of  all  issues  before  it,
whether equitable or legal).

     66    See, e.g., Brown v. Ely, 14 P.3d 257, 263 (Alaska 2000)
(construing Civil Rule 15(c)).

     67    Id.

     68     Citizens Coalition for Tort Reform, Inc. v. McAlpine,
810  P.2d 162, 171 (Alaska 1991) (citing Anchorage Daily News  v.
Anchorage Sch. Dist., 803 P.2d 402, 404 (Alaska 1990)).

     69    902 P.2d 766, 782 (Alaska 1995).

     70    Id.

     71    Id.

     72     The  Railroad does not contend that the fees  charged
were unreasonable.

     73    Anchorage v. McCabe, 568 P.2d 986, 990 (Alaska 1977).

     74     The Municipality argues that the Railroad should  pay
its  full  attorneys fees because the Railroads case  is  without
merit.   The  Municipality  provides  little  support  for   this
argument.

1    AS 42.40.390 provides:

               The  board  may  adopt  exclusive  rules
          governing   land   use  by   parties   having
          interests  in  or permits for land  owned  or
          managed   by  the  corporation.   The   power
          conferred  by  this section is exercised  for
          the common health, safety, and welfare of the
          public  and  to  the extent  constitutionally
          permissible, may not be limited by the  terms
          and conditions of leases, contracts, or other
          transactions.
          
     2     This  position  was  explained  in  more  detail,  and
supported  by legislative history, in the dissenting  opinion  in
Native Village of Eklutna v. Alaska Railroad Corp. (Eklutna  II),
87  P.3d 41, 62-69 (Alaska 2004) (Matthews, J., joined by Bryner,
J., dissenting).

     3    Id. at 47.

     4    Slip Op. at 14.

     5    These statutes provide:

AS 42.40.285(1) and (4):

               Unless  the  legislature  approves   the
          action by law, the corporation may not
               (1) exchange, donate, sell, or otherwise
          convey its entire interest in land;
               . . .
               (4) lease land for a period in excess of
          55  years unless the corporation reserves the
          right  to terminate the lease if the land  is
          needed for railroad purposes[.]
AS 42.40.350(c) and (d):
               (c)  The  corporation may lease, subject
          to  AS  42.40.285  and (d) of  this  section,
          grant   easements  in  or  permits  for,   or
          otherwise authorize use of portions  of  rail
          land.   However,  the  corporation  may   not
          convey  its  entire  interest  in  rail  land
          except   as   provided   in   AS   42.40.285,
          42.40.370(d) and 42.40.400.
               (d) A lease or disposal of land approved
          by  the legislature under AS 42.40.285 by the
          corporation to a party other than  the  state
          shall  be  made  at  fair  market  value   as
          determined  by  a qualified appraiser  or  by
          competitive bid.
          
     6    Slip Op. at 15-16.

7      In   response  to  this  point  the  court   states   that
exclusive  as used in the statute merely means that  lessees  and
permitees  do  not also have regulatory power to adopt  land  use
rules.   Slip Op. at 16.  But we know both as a matter  of  logic
and from the legislative history of section .390 that this is not
what the legislature had in mind.  Lessees and permittees do  not
have governmental land use regulatory authority.  Therefore there
is   no  need  to  exclude  them  from  its  exercise.  When  the
legislature  grants zoning power to municipalities  it  does  not
find  it necessary to state that the power is exclusive of powers
that  might otherwise be exercised by municipal lessees,  because
lessees  lack  zoning  power.  And we know from  the  legislative
history that section .390 was intended to grant the Railroad  the
land   use  regulatory  authority  of  a  government.   See   the
discussion of legislative history of section .390 infra at  pages
30-32.

     8     In  response  to  this  point the  court  states  that
government  entities  must  commonly contend  with  conflicts  of
jurisdiction.  Slip Op. at 16.  This generality is  correct,  but
it  does  not detract from the point that it would be  absurd  to
give  two separate government entities the authority to zone  the
same  land.   The court offers neither a rationale  for,  nor  an
example of, a statute that bestows conflicting zoning authority.

     9    Sherman v. Holiday Constr. Co., 435 P.2d 16, 19 (Alaska
1967)  (it is a judicial duty to construe statutes so as to avoid
results glaringly absurd).

     10    87 P.3d at 62-69 (Matthews, J., joined by Bryner,  J.,
dissenting).

     11   Slip Op. at 12-13.

     12   Eklutna II, 87 P.3d at 63-64 (dissenting opinion).

     13   Id. at 64.

     14   Id.

15    See,  e.g.,  2A  Norman  J.  Singer,  Sutherland  Statutory
Construction  4502, at 15 (6th ed. 2000) (Before the true meaning
of a statute can be determined where there is genuine uncertainty
concerning  its application, consideration must be given  to  the
problem  in society to which the legislature addressed  itself.);
Stephen   Breyer,   On  the  Uses  of  Legislative   History   in
Interpreting  Statutes,  65 S. Cal. L. Rev.  845,  848-49  (1992)
(noting  that  legislative history helps a court  understand  the
context and purpose of a statute which can clarify ambiguity  and
can  help to avoid[] absurd results); City of Rancho Palo  Verdes
v.  Abrams,  125 S. Ct. 1453, 1459 (2005) (concurring opinion  of
Breyer,   J.,   joined  by  three  other  justices)   (advocating
examination  of  context, not just literal text  as  a  guide  to
Congress  intent)  (discussed  in ICHRRA  v.  Fairbanks  N.  Star
Borough,  135  P.3d 1000, 1010 n.5 (Alaska 2006)  (Matthews,  J.,
concurring)).

     16   286 A.2d 697 (N.J. 1972).

     17   Id. at 701.

     18    Id. at 702.  Because immunity, or the lack thereof, is
inferred  from  a number of factors that may be relevant  to  the
ultimate  policy  decision  as to the location  of  a  particular
project, it is easy to see why the balancing test is preferred by
many  authorities  to the traditional approaches  that  focus  on
factors that may be irrelevant to a rational policy choice.   The
drawback  of  the  balancing test is that ultimately  the  policy
choice is made by courts, rather than by executive or legislative
authorities.   Issues  involving balancing local  interests  with
state-wide  needs are not readily amenable to judicial  analysis.
This  drawback can be avoided where the balancing decision  maker
is an agency that is legally competent to make complicated policy
choices.  The American Law Institutes Model Land Development Code
creates  regional agencies to make such decisions, and  a  state-
wide  board  to hear appeals from regional agencies.   See  Model
Land  Dev.  Code  7-304-504 (1975).  The general Alaska statutory
system  also avoids setting up the courts as the ultimate  policy
decision maker in inter-governmental zoning disputes, without the
bureaucratic  overlay of the Model Code.  Under AS 35.30.020  and
.030  state  agencies are required to comply  with  local  zoning
subject  to a waiver in cases of overriding state interest.   The
governor  makes  the decision as to whether an  overriding  state
interest exists.  But this sensible system does not apply to  the
Railroad  because a provision of the Alaska Railroad  Corporation
Act  states  that  AS  35 does not apply  to  the  Railroad.   AS
42.40.920(b)(3).  It is one of the ironies of this case that  the
legislative  efforts to make the Railroad less subject  to  local
zoning control than other state agencies  the status quo for  the
Railroad  as a former federal entity was that it was not  subject
to  local  zoning   has  resulted in the Railroad  becoming  more
subject  to  local control; or, at least, that it must  endure  a
less  certain (and more expensive and time-consuming)  method  of
obtaining   an  overriding  state  interest  waiver  than   other
agencies.

     19   City of Crown Point v. Lake County, 510 N.E.2d 684, 689
(Ind. 1987).

     20    City  of  Temple  Terrace  v.  Hillsborough  Assn  for
Retarded Citizens, 322 So. 2d 571, 578-79 (Fla. App. 1975).

     21   See supra pages 30-32.

     22    E.g.,  City  of Rapid City v. Pennington  County,  669
N.W.2d  120 (S.D. 2003).  This case involved a dispute between  a
county that proposed to locate a jail-work release facility in  a
city  in  violation  of the citys zoning and comprehensive  plan.
The  governing statute provided that no public building shall  be
constructed  without  city  planning  commission  approval,   but
another section provided that planning commission disapproval may
be  overruled by the board authorizing the building.  Id. at  122
(discussing  SDCL  11-6-19 and 11-6-21).   Over  a  dissent  that
argued  that  South  Dakotas previously  adopted  balancing  test
should  apply, the court construed the statute to mean  that  the
county was not subject to the citys zoning ordinance with respect
to  the creation of the jail-work release facility.  Id. at  124-
26.

     23    This  is  evident  from the introductory  language  of
todays  opinion where the court, in explaining Eklutna II, states
that  because  the  legislature  did  not  clearly  indicate  its
intention to exempt the Railroad from municipal zoning laws  when
it enacted the Alaska Railroad Corporation Act . . . the Railroad
must apply for a conditional use permit under the zoning code  of
the Municipality of Anchorage.  Slip Op. at 2 (emphasis added).

     24   See Blatchford v. Native Vill. of Noatak, 501 U.S. 775,
790  (1991)  (Blackmun, J., dissenting) (noting, in  disapproval,
that  so-called  clear-statement rules are  designed  as  hurdles
against disfavored results) (internal quotations omitted); Dan M.
Kahan,  Is Chevron Relevant  to Federal Criminal Law?, 110  Harv.
L.  Rev. 469, 504 (1996) (reporting that in the face of a  clear-
statement rule, only express [legislative] action will suffice to
establish the disfavored reading).

     25   Rutgers, 286 A.2d at 703.

     26   Id. (emphasis added).

     27    See,  concerning  our customary methods  of  statutory
interpretation, Homer Elec. Assn v. Towsley, 841 P.2d 1042, 1043-
44 (Alaska 1992):

               Generally,  the most reliable  guide  to
          the  meaning of a statute is the words of the
          statute  construed in accordance  with  their
          common  usage.  Lagos v. City  &  Borough  of
          Sitka,  823  P.2d  641,  643  (Alaska  1991).
          However,  even  where the statutory  language
          considered   alone  seems   to   leave   room
          reasonably   for   only   one   meaning,   we
          nonetheless  may consult legislative  history
          and  the  rules  of  statutory  construction,
          realizing that sometimes language that  seems
          clear  in  the abstract takes on a  different
          meaning when viewed in context.  North  Slope
          Borough  v. Sohio Petroleum Corp.,  585  P.2d
          534,  540  (Alaska 1978); State v. Alex,  646
          P.2d  203,  208 n.4 (Alaska 1982).   In  such
          cases  the legislative history and  rules  of
          construction  must present a compelling  case
          that  the literal meaning of the language  of
          the  statute  is  not  what  the  legislature
          intended.  University of Alaska v. Geistauts,
          666 P.2d 424, 428 n.5 (Alaska 1983) (Where  a
          statutes    meaning   appears    clear    and
          unambiguous,  .  .  . the party  asserting  a
          different meaning has a correspondingly heavy
          burden  of demonstrating contrary legislative
          intent.); State v. Alex, 646 P.2d at 208  n.4
          (under  Alaskas  sliding-scale  approach   to
          statutory interpretation, the more plain  the
          language  of the statute the more  convincing
          the  evidence of contrary legislative  intent
          must be).
          
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