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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. South Anchorage Concerned Coalition, Inc. v. Municipality of Anchorage Board of Adjustments (12/14/2007) sp-6210

South Anchorage Concerned Coalition, Inc. v. Municipality of Anchorage Board of Adjustments (12/14/2007) sp-6210, 172 P3d 774

     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

SOUTH ANCHORAGE )
CONCERNED COALITION, INC., ) Supreme Court No. S- 12121
)
Appellant, ) Superior Court No. 3AN-04-9789 CI
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE ) No. 6210 - December 14, 2007
BOARD OF ADJUSTMENT, )
DAVID D. HULTQUIST and )
LESA L. HULTQUIST, )
)
Appellees. )
)
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial   District,  Anchorage,  Philip   R.
          Volland, Judge.

          Appearances:  Lawrence V. Albert,  Anchorage,
          for  Appellant.  Joshua M. Freeman, Assistant
          Municipal  Attorney,  and  James  N.  Reeves,
          Municipal Attorney, for Appellee Municipality
          of  Anchorage.  Donald W. McClintock and Dani
          Crosby, Ashburn & Mason, P.C., Anchorage, for
          Appellees Hultquist.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Bryner,  and Carpeneti, Justices.  [Matthews,
          Justice, not participating.]

          PER CURIAM.

I.   INTRODUCTION
          This  appeal  arises  from  opposition  to  a  proposed
residential  development  on  a  former  gravel  pit   in   south
Anchorage.  Approval of the development by the municipal planning
authority  was  contingent on submission of  evidence  indicating
that local groundwater supplies would not be contaminated by  the
development.   Evidence  to  that effect  was  submitted  by  the
developers  and  the  plats were approved.  The  South  Anchorage
Concerned  Coalition  contests the  integrity  of  that  evidence
generally and whether the agency was justified in relying  on  it
to  satisfy  requirements  that it pursue  further  investigation
before the plat could be approved.  Specifically at issue in this
appeal  are  (1) whether the superior court abused its discretion
in  refusing  to  apply the de novo standard  of  review  to  the
agencys  approval  of a development plat; (2) whether  the  court
erred in refusing to allow the Coalition to supplement the record
on  appeal;  and (3) whether the agency abused its discretion  in
approving  the plat in reliance on the data and reports submitted
by the developers.
II.  FACTS AND PROCEEDINGS
          In  December 2001 David and Lesa Hultquist submitted  a
plat  application to the Municipality of Anchorage Platting Board
to develop a 233-acre residential subdivision in an area known as
the Sand Lake Gravel Pits.  Gravel had been excavated at the site
since  the  1950s, significantly altering its natural topography:
the terrain is variable and uneven, and a majority of the site is
fifty  feet  lower than the surrounding landscape.  Additionally,
excavation  in  one  area exceeded the depth of  the  groundwater
table, exposing an aquifer pond.  Local residents served by wells
(which  tap  into aquifers) became concerned that development  of
the  area  would  contaminate the underlying groundwater  supply.
The   South   Anchorage  Concerned  Coalition   (the   Coalition)
represented those residents opposed to the development throughout
the platting process.
          In  support  of their plat application, the  Hultquists
submitted two reports prepared by their environmental consultant,
Terrasat,  Inc.,  which concluded that the  proposed  development
would not significantly impact the areas groundwater supplies.  A
public  hearing on the application was scheduled for March  2002.
In  advance of that hearing, municipal staff indicated  that  the
report  was  inadequate  in several respects;  they  advised  the
Hultquists to conduct further investigation to better define  the
characteristics of  the aquifers underlying the development  area
prior to the hearing.
          The  Platting  Board approved the  plat  at  the  March
hearing,  subject  to numerous conditions,  many  of  which  were
specific  to  better  understanding  and  protecting  the   sites
groundwater  resources.  Among these, Condition No.  31  required
that  the  Hultquists  submit[] the Hydrology  Report  to  Alaska
Department  of  Environmental Conservation [DEC] for  review  and
that  the  report, along with Municipal Assembly and  DEC  review
comments,  be submitted to the Platting Board for public  hearing
review  in  May  2002.   But  the DEC  had  earlier  declined  an
invitation  to assume authority over all water issues  associated
with  the  development; it was willing to provide  only  informal
support.   To  review Terrasats report, the Municipality  instead
retained  Shannon  &  Wilson, an environmental  consulting  firm.
Shannon & Wilson identified several areas of uncertainty  in  the
ground  water  resource  evaluation  and  opined  that  Terrasats
conclusions [were] premature.
          At  the second hearing in May 2002, the Platting  Board
received  numerous comments concerning the Hydrology  Report  and
whether  the  developers had met the conditions  of  the  earlier
approval.   Municipal staff testified that a series  of  meetings
had  occurred with staff from [DEC], [the] Department  of  Health
and  Human  Services (DHHS), OSWWS [Municipal On-Site  Water  and
Wastewater  Services],  Shannon & Wilson and  Terrasat,  Inc.  to
review  the preliminary hydrology report and subsequent revisions
to  the report.  Experts retained by the Coalition asserted  that
the  report still did not adequately address the nature of  risks
posed  by the development.  Neighbors likewise expressed  ongoing
concerns  that  the data . . . was insufficient to conclude  that
there  would be no adverse impact on the water quality  and  that
water  quality issues were not being adequately addressed by  the
Municipality.
          In its statement of findings and conclusions, submitted
on  June  5,  2002,  the Platting Board found  that  through  the
studies  done  by the Municipality and peer review,  as  well  as
rebuttal [of critique] of the Terrasat report, many concerns were
answered.  Based on these and other findings indicating that  the
underlying aquifer was confined and protected from the effects of
the   proposed  development,  the  Platting  Board  accepted  the
Hydrology  Report and concluded that the requirement of Condition
No.  31  has  been met . . . based on the conclusion of  all  the
involved  professionals from ADEC, OSWWS, DHHS, [and]  Shannon  &
Wilson  that  the  development plan . . . will  provide  adequate
protection  of  the  ground  water quality  in  this  area.    In
response  to  the  Coalitions complaint  that  Condition  No.  31
specifically required DEC review, the Platting Board first  noted
that  this  condition  was inserted in deference  to  the  public
opinion  and  the best effort was made to address  that  request.
The  Platting Board then indicated that it had the authority  and
ability to proceed without DEC review: the Board is charged  with
weighing the testimony and information presented to it.  Staff is
charged  with  completely  and accurately  reviewing  information
provided in the packet.  They have been hired for their positions
based  on rigorous qualification bases and interviews and .  .  .
are qualified.
          The Coalition appealed the Platting Boards decision  to
the  Board of Adjustment.  In a decision issued on May 13,  2003,
the Board of Adjustment largely affirmed approval of the plat but
remanded the matter to the Platting Board to require, among other
things,  that  the  developer (1) submit  additional  testing  of
potential  contaminants and mapping of aquifers and  water  flow;
(2)  address  the issue of recharging existing wells  and  septic
systems; and (3) hold a public hearing on the hydrology and water
quality issues.
          By  then, the DEC had taken an active interest  in  the
matter; it had reviewed the preliminary plat application and made
several  recommendations to further protect  and  monitor  ground
water  quality at the site.  It issued a report on May  12,  2003
(the  day before the Board of Adjustment issued its decision)  in
which  it  concurred that the exposed aquifer was not  contiguous
with the deeper confined aquifers that supply the areas wells and
thus  that  the impact of development on water quality  would  be
minimal.  The  DEC report had not been subjected  to  third-party
review,  and  it  is not clear that the Board of  Adjustment  was
aware  of this report when it remanded the matter to the Platting
Board for additional information.
          In  response to the Board of Adjustments requirement of
additional  testing,  mapping, and  consideration  of  the  water
quality  issue,  Terrasat  on behalf of the Hultquists   wrote  a
letter  recounting its earlier findings and reiterating that  the
development would not significantly impact ground water  quality.
Several  months later, Terrasat wrote a second letter  presenting
additional information in support of these conclusions.  It noted
several times in these letters that the DEC report was in  accord
with its own findings and conclusions.
          The Platting Board held a hearing in September 2003  to
review and deliberate the matters on remand.  It issued a written
decision  on October 1, 2003. Relying in large part  on  the  DEC
report,  the Platting Board found that the remand to address  the
hydrology  of  the  proposed  development  had  been  met.    The
Coalition criticized the DEC report, asserting, in sum,  that  it
failed  to  properly characterize subsurface conditions resulting
in  an  unsubstantiated conclusion that the  local  water  supply
would  not be impacted.  In response to the Coalitions criticisms
of  the DEC report and concerns that it had not been subjected to
third-party review, the Municipal Planning Department had earlier
recommended  that  the hearing be postponed to allow  for  third-
party review of the report, but this request was denied.
          The   Coalition  again  appealed  the  Platting  Boards
decision to the Board of Adjustment alleging, among other things,
that  the  Board erred by not requiring the satisfaction  of  the
three conditions in the Assembly remand with regard to protection
of  the area drinking water.  The Coalition also objected to  the
Boards  reliance on the unreviewed DEC report as satisfaction  of
the terms of the remand.
          In   its  decision  of  July  8,  2004,  the  Board  of
Adjustment affirmed the Platting Boards decision, concluding that
the   evidentiary  record  was  expanded  by  the  inclusion   of
information,  analyses and documents which  provided  substantial
evidence  to support the Platting Boards decision.  At issue,  it
seemed,   was   simply  whether  the  developers  had   submitted
additional  information, as previously directed.   The  Board  of
Adjustment found that it had.  Like the Platting Board, the Board
of  Adjustment  relied  heavily  on  the  DEC  report  (which  it
characterized as an independent third party review and report) as
[e]vidence in the record showing additional testing of  potential
contaminants.
          During pendency of that appeal, the Coalition moved  to
reopen  proceedings  before  the  Platting  Board  to  allow  for
consideration of forthcoming evidence: the Alaska legislature had
recently  committed funds to the University of  Alaska  Anchorage
(UAA) to perform an independent review of the DEC report and  all
other  existing records in order to fairly evaluate the potential
impacts  of the development.  The Hultquists opposed the  motion,
noting  that  the Board has already made clear it is  comfortable
with  the  record  before it.  The motion was  denied.   The  UAA
report  was ultimately produced on October 6, 2004, a year  after
the  Platting Boards approval of the plat and three months  after
the Board of Adjustments decision on appeal.
          The  Coalition  filed an appeal in superior  court  and
moved  for  a  trial de novo.  It asserted that the court  should
make its own findings based on the evidentiary record because the
Platting  Board  lacks  expertise  in  [the]  subject  matter  of
groundwater  hydrology  and evaluation of  contamination  to  the
groundwater drinking resource.  It also sought to supplement  the
record  on appeal with the UAA report and correspondence  related
to  the  requisition of that report, as well as  the  resumes  of
members  of  the Platting Board.  The superior court denied  both
motions  at  oral argument and later explained the reasoning  for
its decision in a written order.
          As  to whether the issues on remand had been adequately
addressed,  the  court  affirmed  the  Platting  Boards  decision
approving the plat.  More specifically, the court held  that  the
conditions  of remand requiring additional evidence  of  drinking
water  protection  were satisfied because there  was  substantial
evidence  that additional testing of potential contaminants  [had
been]  conducted  by ADEC and that an additional monitoring  well
had  been  installed.  Similarly, the court found that there  was
substantial evidence to support the Platting Boards finding  that
additional  mapping of the aquifers and of water  flow  had  been
performed.   Again,  the court cited the  DEC  report  issued  on
May  13, 2003, which presumably constituted new information.   As
for  the  requirement that the developer address the recharge  of
wells  and  septic  systems, the court noted  that  Terrasat  had
provided  additional discussion on the issue in  its  post-remand
letters.
          The Coalition appeals.
III. DISCUSSION
     A.   The Superior Court Did Not Abuse Its Discretion.
          1.   De novo review
          The  Coalition claims that the superior court erred  in
denying de novo review, arguing that the Platting Board lacks the
substantive   expertise  required  to  competently  address   the
technical  issues  presented to it.   Noting  that  none  of  the
Platting  Board members have degrees or backgrounds  relevant  to
hydrology, the Coalition contends that the court should not defer
to  their findings of fact; rather, the Coalition would have  the
court  review the technical information for itself and  draw  its
own conclusions.
          This  would  be  a departure from the  norm.   A  court
normally  reviews  an  agencys decision on  the  record.1   While
Appellate  Rule  609  affords the superior  court  discretion  to
conduct  a  trial de novo,2 it is rarely warranted.3  This  court
has  upheld  or  directed application of  de  novo  review  where
certain  issues  are not within the expertise  of  the  reviewing
body;  where  the agency record is inadequate; where the  agencys
procedures are inadequate or do not otherwise afford due process;
or  where the agency was biased or excluded important evidence in
its  decision-making  process.4  We review  the  superior  courts
decision  not  to grant de novo review for abuse of  discretion.5
Under  this  deferential standard, we uphold the superior  courts
decision  unless we are left with a definite and firm  conviction
after  reviewing the whole record that the trial court  erred  in
its ruling.6
          The premise for the Coalitions de novo argument here is
that  the  Platting Board lacks expertise to decide  whether  the
development  will have an adverse impact on the areas groundwater
supply.   We agree with the superior court that this argument  is
without  merit.   The  Coalition has  misperceived  the  Platting
Boards  duty;  it is not to determine the actual  impact  of  the
development  on the areas groundwater.  The Platting Boards  duty
is,  more  broadly,  to  determine whether the  plat  application
conforms to the standards set forth in the municipal code.7  More
specifically, the Boards task on remand was to determine  whether
the  developers  had  met  the  burden  of  providing  additional
information  and ensuring that groundwater quality concerns  were
being  addressed.  For these endeavors, the Board members do  not
need  degrees  in  hydrology  or any other  surrogate  expertise.
Rather,  the Board must be collectively qualified to weigh[]  the
testimony  and information presented to it and to completely  and
accurately review[] information provided.  In this case,  several
reports were submitted and critiqued, and numerous experts in the
field of hydrology offered written and verbal comments; the Board
is  entitled to rely on these submissions and then to  apply  its
own  judgment in determining whether the codes requirements  have
been   met.    We  acknowledge  that  the  data  and  conclusions
ultimately  relied  on  by  the Board are  controverted:  experts
disagree.   But this does not mean that the Board is  incompetent
to   ultimately  determine  whether   based  on  the  information
provided  the plat application merits approval.
          The  Coalition  relies  heavily  on  our  decision   in
          Matanuska-Susitna Borough v. Lum to argue that the Board does not
meet policy-driven criteria for expertise.8  Lum is inapposite in
this  case because the appellant there had a statutory  right  to
trial de novo.9  The public policy issues discussed in that  case
and upon which the Coalition relies here  were set forth only  to
justify the legislatures departure from the norm of discretionary
trial de novo, not to establish a new standard for de novo review
in the absence of such a statute.10
          The Coalition is correct in asserting that the superior
court  has discretion to authorize de novo review, and also  that
de  novo  review  may  be granted when the administrative  agency
lacks  relevant  expertise; it follows that the  court  also  has
discretion  to  deny  de  novo  review.   It  acted  within   its
discretion in doing so here.
          2.   Supplementation of the record
          The  Coalition  also  claims that  the  superior  court
abused its discretion in not allowing it to supplement the record
with the UAA report.  The Coalition characterizes the report as a
comprehensive,  independent evaluation of  existing  reports  and
data  that  presents  new evidence that the  conclusions  of  the
earlier reports were not justified.  The Hultquists contend  that
the  court acted well within its discretion in denying submission
of  a  report  that  was  produced more than  a  year  after  the
conclusion of the administrative proceedings.11
          We  have interpreted Appellate Rule 609(b)(1) to  allow
the  superior court to consider additional evidence in the  event
that it decides to conduct a trial de novo in whole or in part.12
And  it may well be that de novo review is compelled in the first
place  by  the  need  to  consider new  material  evidence  where
evidence   was  improperly  excluded  during  the  administrative
proceedings or the agency lacked expertise so that the  appellant
was denied due process.13
          Having  already  found  that the superior  court  acted
within its discretion in denying de novo review, whether it erred
in not permitting the Coalition to supplement the record with the
UAA report is all but moot.  Absent procedural irregularities  at
the  administrative  level, or some indicia that  the  Coalitions
right  to due process in presenting its case was compromised,  we
can  only  justify requiring supplementation of the record  on  a
showing  that the proffered evidence would impact the outcome  of
the  case.14   We  recognize that the UAA report  undermines  the
conclusions that the Platting Board relied upon in approving  the
plat and that it disagrees with many of the Boards findings.  But
the  Coalition had every opportunity to present evidence refuting
the   developers   assertions   throughout   the   administrative
proceedings,  and  indeed it did so:  its  own  experts  provided
cogent written comments and oral testimony controverting the data
and  conclusions submitted by the Hultquists.  The UAA report  is
clearly  relevant,  and  it may well have influenced  the  Boards
decision.   But it does not purport to turn the outcome  of  this
case  on its head, and as a procedural matter, the Coalition  has
identified   no   compelling  legal  basis  for   requiring   its
consideration by the superior court.15
     B.    Substantial  Evidence  Supports  the  Platting  Boards
     Decision.
          The Coalition argues that substantial evidence does not
exist  to  support  the  Platting Boards determination  that  the
conditions on remand from the Board of Adjustment were met.  More
specifically,  the  Coalition  criticizes  the  Platting   Boards
reliance  on  the DEC report as evidence of compliance  with  the
requirement  that  additional  testing  be  undertaken  and   new
information provided.  As discussed above, it is not our place to
weigh  the  quality of the evidence relied upon by  the  Platting
Board;  at issue for the purposes of our review is simply whether
substantial  evidence exists.  The superior court found  that  it
did; having independently reviewed the record, we agree with  its
conclusion.
          1.   Standard of review
          When  the superior court acts as an intermediate  court
of  appeal  in an administrative matter, we independently  review
the  merits  of  the  agencys decision.16  We review  an  agencys
factual   findings  under  the  substantial  evidence   standard,
reversing  the  decision only if we cannot  conscientiously  find
that   the   evidence  supporting  [the  agencys   decision]   is
substantial.17 Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.18
          The  Coalition urges us to incorporate the Daubert test
into  our  standard of review and to independently  evaluate  the
admissibility or reliability of the expert testimony relied on by
the  agency  in  its  decision.19  Daubert  speaks  to  the  bare
admissibility  of  expert testimony; it has  no  bearing  on  the
standard of review here.  The admissibility of expert evidence is
more  appropriately  challenged when the evidence  is  presented.
Having failed to do so in proceedings below, the Coalition is not
at  liberty to ask us to evaluate the reliability of the evidence
here.
          2.   Conditions on remand
          In  its  remand  to the Platting Board,  the  Board  of
Adjustment directed the Board to require the submission . . .  of
additional  testing  of  potential contaminants  and  mapping  of
aquifers  and water flow and to require the developer to  address
the  issue of recharging existing wells.  These mandates were  at
once  objective  and therefore readily measurable  and  decidedly
vague.   At bottom, compliance was essentially predicated on  the
submission  of additional information; no standard of  scientific
certainty  was  required,  nor  was  there  a  requirement   that
conflicting evidence and assessments be reconciled, or even  that
issues be adequately addressed rather than just addressed.
          Admittedly,  the evidence submitted in  fulfillment  of
these  requirements was controverted and sparse;  the  Hultquists
rely heavily on the DEC report as the additional information,  as
well  as  the  boring  of  one new monitoring  well.   These  new
submissions were not subjected to third-party review and arguably
added  little  to  the  collective  understanding  of  the  areas
geohydrology  and  the risks presented by development.   But  the
Platting  Board  and  the Board of Adjustment  could  nonetheless
conclude that the terms of the remand were technically satisfied:
substantial evidence exists to support a finding that  additional
          information was presented and that issues were addressed.
Notably,  the  Board  of  Adjustment, which  itself  crafted  the
directives on remand, was satisfied by the Hultquists response to
that  mandate.   Here, substantial evidence both  supporting  and
opposing the Hultquists conclusions exists and was considered  by
the  Platting Board in its decision-making process.  In light  of
the  deferential standard we apply on appeal, we must affirm  the
Platting Boards finding.
          3.   Approval of the plat
          The  Coalition  also  argues that the  Platting  Boards
decision  to  approve  the  plat  offends  the  municipal   code.
Specifically,  the  Coalition asserts  that  the  plat  fails  to
promote the public, health, safety and welfare and to avoid  land
use incompatibilities with surrounding neighborhoods.20
          Whether  the plat application conforms to the standards
of  the  municipal code and merits approval is a question of  law
that   implicate[s]   specialized   agency   expertise   or   the
determination  of fundamental policies within the  scope  of  the
agencys  statutory function.21  We therefore review the  Platting
Boards  decision using the rational basis standard  of  review.22
This  standard is highly deferential and requires  only  that  we
find  that  the  agencys decision was reasonable,  regardless  of
whether we actually agree with it.23
          The  cited  mandates of the municipal code  are  fairly
subjective.   Of  note,  the  Coalition  misstates  the  code  as
requiring  that  a  plat  avoid land  use  incompatibilities;  in
reality,  it  only  requires that such  effects  be  mitigated.24
Broadly  speaking, we interpret the code not to require that  the
Platting Board ensure that there will be no adverse impacts,  but
rather  to  balance these against the projects  benefits  and  to
determine whether, in the aggregate, the public welfare  will  be
promoted.  To this end, three public hearings were held  in  this
case, numerous technical reports were submitted and reviewed, and
input  from  state and local agencies and concerned citizens  was
considered.   Procedurally, the Platting Board  appears  to  have
discharged its duty according to the terms of the municipal code,
and  we  agree  with the superior courts determination  that,  in
substance, the Platting Board had a rational basis for  approving
the plat.
IV.  CONCLUSION
          In  accord  with  our  analysis above,  we  AFFIRM  the
superior  courts denial of the Coalitions motion  to  conduct  de
novo  review  of  the record and to supplement  the  record.   We
further  hold that substantial evidence supports the decision  of
the  Platting Board to approve the plat, and therefore AFFIRM the
Boards decision.
_______________________________
     1     See  City of Fairbanks Mun. Utils. Sys. v.  Lees,  705
P.2d 457, 460 (Alaska 1985).

     2    Alaska R. App. P. 609(b)(1).

     3     See Sw. Marine, Inc. v. State, Dept of Transp. &  Pub.
Facilities, Div. of Alaska Marine Highway Sys., 941 P.2d 166, 179
(Alaska 1997).

     4     See Treacy v. Municipality of Anchorage, 91 P.3d  252,
270  (Alaska  2004) (citing Eufemio v. Kodiak Island  Hosp.,  837
P.2d  95,  102  (Alaska 1992); Lees, 705 P.2d at  460;  State  v.
Lundgren Pac. Constr. Co., 603 P.2d 889, 896 (Alaska 1979)).

     5     Christensen  v. NCH Corp., 956 P.2d 468,  473  (Alaska
1998).

     6    Id.

     7     Anchorage Municipal Code (AMC) 21.75.010(A)(2) (1996),
for  one, states that the Platting Board can only approve a  plat
if it finds that the plat promotes the public, health, safety and
welfare.   See  also  AMC 21.10.020 (describing  the  powers  and
duties of the Platting Board).

     8     Matanuska-Susitna Borough v. Lum, 538  P.2d  994,  994
(Alaska 1975).

     9    Id. at 996.

     10    Id. at 1000-01.

     11     The Hultquists also argue that the UAA report has not
been  subjected  to the rigors of the administrative  process  or
third-party review.  The Hultquists state that to remedy this  by
remanding  the  case  to  the Platting Board,  as  the  Coalition
suggests,  would  be  impossible,  not  to  mention  inordinately
expensive.  But the Hultquists have themselves relied heavily  on
evidence (namely the DEC report) that was not subjected  to  such
rigors  or  review.   Moreover, we note that the  UAA  report  is
itself a review; it does not purport to present new data so  much
as to comment on existing data and the conclusions that have been
drawn from that data.

     12     Sw.  Marine,  Inc., 941 P.2d at  179;  Lundgren  Pac.
Constr. Co., 603 P.2d at 896 n.18.

     13     Eufemio, 837 P.2d at 102; Lundgren Pac. Constr.  Co.,
603 P.2d at 895-96.

     14    See Sw. Marine, Inc., 941 P.2d at 179-80.

     15    The Coalitions reliance on Native Village of Eklutna v.
Board  of  Adjustment, 995 P.2d 641, 645-46 (Alaska 2000),  makes
little  sense;  there, having already remanded the  case  to  the
agency  for lack of substantial evidence supporting its findings,
we simply directed the agency to exercise . . . its discretion in
deciding  whether to admit a report that had not previously  been
considered.  Id. at 645-46.

     16    Williams v. Abood, 53 P.3d 134, 139 (Alaska 2002).

     17    Robinson v. Municipality of Anchorage, 69 P.3d 489, 493
(Alaska  2003) (citation omitted); see also Williams, 53 P.3d  at
139 (citation omitted).

     18    Leigh v. Seekins Ford, 136 P.3d 214, 216 (Alaska 2006)
(citation omitted).

     19     See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993);  see also State v. Coon, 974 P.2d 386, 395 (Alaska  1999)
(adopting the Daubert standard).

     20    See AMC 21.75.010(A)(2)-(3).

     21    Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746
P.2d 896, 903 (Alaska 1987).

     22    Id.

     23    Id.

     24    AMC 21.75.010(A)(3).

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