Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Copeland v. Ballard (06/26/2009) sp-6382

Copeland v. Ballard (06/26/2009) sp-6382

     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

TOM COPELAND and RIKI OTT, )
) Supreme Court No. S- 12648
Appellants,)
) Superior Court No. 3AN 04- 06295 CI
v. )
) O P I N I O N
ERNESTA BALLARD, )
Commissioner, DEPARTMENT OF ) No. 6382 - June 26, 2009
ENVIRONMENTAL CONSERVATION, )
STATE OF ALASKA; BRITISH)
PETROLEUM OIL SHIPPING CO.; )
SEARIVER MARITIME, INC.;)
ALYESKA PIPELINE SERVICE CO.;)
TOM LAKOSH, )
)
Appellees.)
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Daniel J. Schally, Judge.

          Appearances:    Nancy  S.   Wainwright,   Law
          Offices  of  Nancy S. Wainwright,  Anchorage,
          for    Appellants.    Jennifer   L.   Schorr,
          Assistant  Attorney General,  Anchorage,  and
          Talis  J. Colberg, Attorney General,  Juneau,
          for   Appellee   State  of   Alaska.    Kevin
          Callahan,  Patton Boggs, LLP, Anchorage,  for
          Appellee SeaRiver Maritime, Inc.  Michael  W.
          Seville, Burr, Pease & Kurtz, Anchorage,  for
          Appellees  BP  Oil Shipping Co.  USA,  Alaska
          Tanker  Co., LLC, Polar Tankers,  Inc.,   and
          Tesoro Alaska Shipping Co., Inc.

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

          WINFREE, Justice.

I.   INTRODUCTION
          Two  Cordova residents intervened in the administrative
appeal  of  an  agency decision approving contingency  plans  for
various  oil shipping entities, but then were dismissed from  the
proceedings  for  failure to pay record costs.   The  intervenors
appealed  to  the  superior  court,  which  affirmed  the  agency
decision.    Although  the  underlying  proceedings   have   been
completed  and the appeal to this court is technically moot,  due
process  questions  raised  by the intervenors  fall  within  the
public  interest  exception to mootness,  and  we  address  those
issues.
          We   generally,  but  with  some  caveats,  affirm  the
superior   courts   decision  to   uphold   the   agencys:    (1)
interpretation of its regulation allowing it to charge a  copying
fee  for the initial production of the record; (2) interpretation
of the term pro rata for purposes of charging for the compilation
of   the  record;  (3)  advance  payment  requirement;  and   (4)
timeliness in producing the record.  But we reverse in  part  the
decision  of  the  superior  court and  hold  that  the  agencys:
(1)  practice  of denying litigants access to the  agency  record
prior   to   its   certification  violates   due   process;   and
(2)  dismissal of the intervenors from the administrative  appeal
was an abuse of agency discretion.
II.  FACTS AND PROCEEDINGS
          Companies operating in many facets of the oil  industry
shipment,  exploration, production, or transfer  must submit  oil
discharge  prevention  and contingency  plans  to  the  State  of
Alaska,  Department  of  Environmental Conservation  (DEC)  on  a
regular basis.1  Contingency plans are plans to prevent, contain,
and  clean  up  oil  spills from oil tank vessels,  offshore  oil
exploration  or  production facilities, and  large  oil  terminal
facilities.2  DEC reviews and then approves contingency plans  if
they are consistent with statutory and regulatory requirements.3
          Tom  Lakosh  appealed DECs approvals of three  separate
contingency plans for oil tankers and shipping entities operating
in and around Valdez; the three appeals were consolidated into  a
single  proceeding.  Tom Copeland and Riki Ott moved to intervene
in  Lakoshs appeal of DECs approval of the Trans-Alaska  Pipeline
System  tanker discharge prevention and contingency  plans  (TAPS
Tanker C-Plan) but did not move to intervene in Lakoshs other two
appeals  of  contingency  plan  approvals.4   In  June  2003  DEC
Commissioner  Ernesta  Ballard granted the  intervention  motion,
stating that Copeland and Ott are now considered parties  to  the
proceeding I granted to Mr. Lakosh on February 21, 2003, and that
Lakosh,  Copeland, and Ott each would be responsible  for  paying
one-third of the record costs.
          Copeland,   Ott,   Lakosh,  and  DEC   negotiated   the
preparation  and certification of the administrative record  over
the  next  nine  months.   DEC provided  several  different  cost
estimates for record preparation, ranging from $1,270 to  $2,843.
Negotiations  culminated  in  a  January  2004  order  from   the
          Commissioner that Copeland, Ott, and Lakosh must pay the record
costs (choosing one of several options) by February 13, 2004,  or
face dismissal.
          On  February 10 Lakosh submitted payment for his  share
of the record costs.  On February 12 Copeland and Ott submitted a
letter  to the Commissioner with questions and objections to  the
record  preparation process.  The Commissioner did  not  respond.
On  February  20  DECs counsel gave Copeland and  Ott  notice  of
revised cost estimates for the record preparation.
          The  Commissioner dismissed Copeland and Ott  from  the
appeal  on  March  2  for  non-payment.  Copeland  and  Ott  then
requested reconsideration of the dismissal and submitted a  check
for  their two-thirds portion of the February 20 estimated record
preparation  costs  under one of the options  set  forth  in  the
Commissioners January 2004 order.  The Commissioner returned  the
check and affirmed Copeland and Otts dismissal from the appeal.
          Copeland  and  Ott appealed to superior court,  arguing
that the Commissioner violated their due process rights when  she
dismissed  them  from  the administrative appeal.   The  superior
court concluded that Copeland and Otts due process rights had not
been   violated   and   affirmed   their   dismissal   from   the
administrative  appeal proceeding.  Copeland and Ott  now  appeal
the  superior courts decision and its award of attorneys fees and
other costs to DEC.
          Lakosh  ultimately abandoned his appeal.  The  disputed
contingency plans expired and DEC approved new contingency plans.
III. STANDARD OF REVIEW
          In   this   case  the  superior  court  acted   as   an
intermediate  appellate  court, and  we  therefore  independently
review  the  merits  of [the] administrative determination.5   We
review  questions  of  mootness under  the  independent  judgment
standard.6   Dismissals of administrative appeals for failure  to
prosecute  are  generally reviewed under the abuse of  discretion
standard.7    However  we  use  our  independent  judgment   when
reviewing  a  lower courts interpretation of statutes  and  other
related  legal questions, and when determining whether  a  partys
procedural due process rights have been violated.8
IV.  DISCUSSION
          Copeland  and  Ott  claim that  DEC  violated  the  due
process  clause  of the Alaska Constitution9 by  dismissing  them
from  the administrative appeal.  [P]rocedural due process  under
the  state  constitution  requires  notice  and  opportunity  for
hearing  appropriate to the nature of the case. 10   Due  process
includes  the right to a neutral and unbiased decision-maker  who
presides  over  proceedings  that are  fair  and  that  have  the
appearance  of  fairness.11  Copeland and Ott contend  that  DECs
actions were arbitrary, biased, and unfair, culminating in  three
specific due process violations:  (1) arbitrary denial of  access
to   the   record  and  delay  in  preparation  of  the   record;
(2)   arbitrary   apportionment  of   the   record   costs;   and
(3) unconstitutional imposition of a litigation-ending sanction.
          We  first address whether Copeland and Otts claims are,
as DEC and the shipping companies argue, moot.
     A.   This Appeal Satisfies the Public Interest Exception  to
     the Mootness Doctrine, and We Will Consider Its Merits.
          
          We  generally will not consider questions where  events
have rendered the legal issue moot.12  A claim is moot if it is no
longer  a present, live controversy or if the court system cannot
provide the relief the claimant seeks.13  We have previously found
cases  moot when agency-issued permits had expired but the permit
opponents  still  sought  declaratory judgment  that  the  agency
actions  were unlawful.14  We have emphasized that [m]ootness  is
particularly  important in a case seeking a declaratory  judgment
because  there  is  an added risk that the party  is  seeking  an
advisory  opinion.15  Our decision in Kodiak  Seafood  Processors
Association makes clear that when  as in this case  the challenge
is  to the procedures used by the agency and the relief sought is
a  declaratory  judgment, the claim is technically  moot  if  the
underlying permit has expired.16
          There  are exceptions to the general rule that we  will
not  hear  cases that are moot.17  The public interest  exception
requires considering and weighing three factors:  (1) whether the
disputed  issues  are  capable  of repetition,  (2)  whether  the
mootness doctrine, if applied, may cause review of the issues  to
be  repeatedly circumvented, and (3) whether the issues presented
are  so important to the public interest as to justify overriding
the mootness doctrine.18
          As  to  the first prong of this test, Copeland and  Ott
claim  that  agency  regulations, as  applied,  violate  the  due
process clause of the Alaska constitution and that this violation
is capable of repetition because DEC has consistently applied and
interpreted  its  regulations incorrectly  and  arbitrarily.   We
accept  this  as  sufficient for the first prong  of  the  public
interest exception to mootness.
          We  have  previously analyzed the second prong  whether
an  issue is likely to repeatedly evade review  by comparing  the
time it takes to bring the appeal with the time it takes for  the
appeal  to  become moot.19  We have also emphasized that  if  the
appeal  involves  a  threshold issue or agency interpretation  of
law,  we  will  view  this  requirement of  the  public  interest
exception more leniently.20  Current contingency plans have a five-
year  life  span.21   The appeal in this  case,  which  began  in
November 2002, demonstrates that it is unreasonable to assume  an
opponent to an approved contingency plan would be able to  appeal
the  agency decision within the five-year duration of  the  plan.
Copeland  and  Ott  also  raise  threshold  questions  about  the
production of the agency record and agency interpretations of law
that  could  deter future litigants.  This satisfies  the  second
prong of the public interest exception to mootness.
          The  third  prong  of  the  public  interest  exception
requires a showing that the issues presented are so important  to
the  public  interest  as  to  justify  overriding  the  mootness
doctrine.22  We have found this prong met when the case  involved
concepts  of  fairness  underlying the right  to  procedural  due
process,23  the  preservation of clean  water,24  or  situations,
otherwise moot, where the legal power of public officials was  in
question.25   This case involves two matters fundamental  to  the
          public interest.  The first is approval of contingency plans to
protect  Alaskas marine and coastal environments in the event  of
an  oil  spill, and given the potentially devastating effects  of
oil  spills on the ecology and economy of the state,  this  is  a
matter  of utmost importance to the public interest.  The  second
is  an  administrative procedures challenge grounded in  the  due
process clause, and given the need for transparency in governance
and  access to administrative records, this also is a  matter  of
importance  to  the  public  interest.   This  case   meets   the
requirements of the third prong of the public interest  exception
to mootness.
          We  therefore address the merits of Copeland  and  Otts
due process claims.
     B.   Due  Process Requires that Litigants Be Allowed  Agency
          Record Access.
          
          Alaskas  Public Records Act26 codifies the  common  law
rule that every interested person [is] entitled to the inspection
of public records, although it perhaps eliminates the requirement
that the person inspecting records be interested.27  But the  Act
creates an exception to the general policy of unencumbered access
to  public  records for those records used for, included  in,  or
relevant  to  litigation28 and provides that with  respect  to  a
person  involved in litigation, the records shall  be  sought  in
accordance with the rules of procedure applicable in a  court  or
an  administrative  adjudication.29  DEC argues  that  18  Alaska
Administrative Code (AAC) 15.237(b) requires the agency to notify
parties,  when  the record has been certified as  complete,  that
they  may  have  access to it and therefore that this  regulation
make[s] clear that the record was required to be certified before
Mr.  Copeland  and Ms. Ott could access it.30  Copeland  and  Ott
argue that this regulation, made applicable through AS 40.25.122,31
unconstitutionally denied them access in violation of  their  due
process rights.32
          When   assessing   whether  an  administrative   action
violates  the  due process clause of the Alaska Constitution,  we
use  the framework established by the United States Supreme Court
in Mathews v. Eldridge.33  We weigh:  (1) the private interest at
stake;  (2)  the risk of an erroneous deprivation of the  private
interest  and  the value of additional safeguards;  and  (3)  the
government   interest    noting   particularly   the   cost   and
administrative   burdens   entailed  by   additional   procedural
protections.34   In this case we have no trouble concluding  that
the agencys denial of access to the record violated due process.
          The  regulations  effect is to prevent  access  to  the
record  prior to certification.  As litigants, Copeland  and  Ott
have  a  strong  interest in accessing  the  record   it  is  the
platform  upon which they must build their case.  Access  to  the
record is also important when the parties attempt to negotiate  a
limited record for review in order to control costs, as they  did
here.   DEC has offered no valid governmental interest in denying
access,  asserting only that:  (1) the parties all had access  to
the  record  when  they participated in the plan review  process;
(2)  most of the record is irrelevant; and (3) the documents were
          publicly available during plan review  a statement that Copeland
and  Ott  dispute.   Although these assertions suggest  that  the
burden  of 18 AAC 15.237(b) may not be great, they do not explain
the  governments  interest in placing any  burden  whatsoever  on
accessing  the  record.  Because Copeland and Otts interests  are
significant  and  because  DEC  has  provided  no  countervailing
interests,  we hold that the regulation violates the due  process
clause of the Alaska Constitution.
     C.   When  Litigants  Are Required To Pay  Record  Costs  in
          Advance,  Due Process Requires Clear and Accurate  Cost
          and  Time Estimates and an Explanation of How Estimates
          Were Calculated.
          
          18 AAC 115.237(c) permits the agency to require advance
payment  of  costs.35  This does not on its face offend  the  due
process  clause of the Alaska Constitution, but Copeland and  Ott
have  argued  that the agency acted arbitrarily by:  (1)  issuing
conflicting  cost estimates; (2) presenting varying estimates  of
the  pages in the record; and (3) arbitrarily apportioning record
costs among the parties.
          We  recognize  that an agency often  will  be  able  to
provide  only an estimate of record preparation costs, given  the
size and complexity of many administrative records.  In this case
DEC  counsel was careful to explain the method of calculation  as
estimates of the length of the record and the costs changed.36  We
nevertheless  note that when an agency requires advance  payment,
it  would  be  arbitrary not to provide an  accurate  and  prompt
estimate of cost and size of the record as well as an explanation
of  how  each estimate was calculated.  If the cost of the record
is  being  shared  by  multiple parties, the agency  should  also
explain  its  method  of  apportioning costs.   Here  the  agency
followed  18  AAC 15.237(c)s direction for pro rata  cost-sharing
but  did  not  explain how it applied this method  to  the  three
consolidated appeals when Copeland and Ott were participating  in
only  one  of  the  three  appeals.   The  agency  erred  by  not
explaining this aspect of its calculations.
          Copeland   and   Ott  also  argue  that   the   agencys
interpretation of 18 AAC 15.237(c) is erroneous,  as  the  agency
interprets  that regulation to include copying costs as  part  of
the  costs of gathering and certifying the record.  We hold  that
the  agencys interpretation of the term gathering and  certifying
to  include  photocopying the record to create a master  copy  is
reasonable.
          Finally, Copeland and Ott argue that the agencys  delay
in  preparing and certifying the record violated due process.  We
agree  that  an  agencys  unreasonable  delay  in  preparing  and
certifying the record may violate a litigants due process rights.
We  also agree that an agency must be mindful of the implications
of  a  delayed  record and take reasonable steps to  provide  due
process  to an agency litigant.  The delay in this case, however,
was  not  attributable only to the agency, and it did  not  reach
constitutional proportions.
     D.   Dismissal  of  Copeland  and  Ott  Was  an   Abuse   of
          Discretion.
          
          Copeland  and Ott argue that the agency:   (1)  had  an
obligation  to find willful noncompliance; (2) had an  obligation
to explore alternatives before dismissing them; and (3) failed to
do either.  They argue that there was no prejudice to the agency,
noting that the record costs were still unascertained at the time
of   dismissal.   DEC  responds  that  this  case  is  not  about
litigation-ending sanctions, but about Copeland and Otts lack  of
diligence and failure to prosecute their appeal fully.
          We   have   previously  expressed  a  policy   favoring
adjudication of cases on the merits, and we are reluctant to  bar
a  litigant  from  his day in court where an  alternative  remedy
would   suffice  to  make  the  adverse  party  whole.37   Before
dismissing litigants, we have held that a court  or agency   must
find  that the violation of an order was prejudicial or otherwise
unreasonable   and   must  explore  available   alternatives   to
dismissal.38  Copeland and Ott assert that their failure to  meet
the  deadline  was  due to their confusion over  the  conflicting
figures  and  fees, rather than to any willful  violation.   They
point  out that even at the time of the dismissal their questions
about  the  scope,  content  and  cost  of  the  record  remained
unanswered.  Given the lengthy correspondence over the record and
the varying cost and page estimates, this argument is convincing.
DEC has offered no evidence to countervail it.
          We  are reluctant to uphold litigation-ending sanctions
when there is no prejudice to the opposing party.39  In this case
there  was  no  prejudice to DEC.  The agency was  not  ready  to
gather  and certify the record at the time of Copeland  and  Otts
dismissal,  so  the missed deadline had no actual effect  on  the
agency.
          We  do  not  require . . . explicit findings concerning
alternative  sanctions, nor do we require . . . examin[ation  of]
every  single alternative remedy, but the agencys exploration  of
alternatives to dismissal must be reasonably thorough.40  In this
case  the  Commissioner outlined several options for  payment  of
record costs and warned that if Lakosh, Copeland, and Ott did not
take   one   of  the  actions  listed,  she  would  dismiss   the
adjudicatory hearing matter for failure of the requesting parties
to  proceed.   But  a  prospective warning of  dismissal  is  not
functionally  the  same  as exploring alternatives  to  dismissal
after  a  party has failed to comply with an order.  Because  the
agency  easily could have reinstated Copeland and Ott  once  they
submitted  payment for the record and because there  was  neither
prejudice nor evidence of willfulness on Copeland and Otts  part,
we hold that their dismissal was an abuse of discretion.41
V.   CONCLUSION
          For the foregoing reasons we AFFIRM in part and REVERSE
in  part the superior courts decision affirming DECs actions,  we
VACATE  the  judgment  entered  against  Copeland  and  Ott   for
attorneys fees and costs, and we REMAND to the superior court for
entry  of an appropriate attorneys fees and costs award in  favor
of Copeland and Ott.
_______________________________
     1    AS 46.04.030.

     2     Lakosh v. Alaska Dept of Envtl. Conservation, 49  P.3d
1111, 1113 n.2 (Alaska 2002).

     3    AS 46.04.030.

     4    The TAPS Tanker C-Plan record involved the applications
of  Tesoro,  Chevron, Alaska Tanker Co., SeaRiver  Maritime,  and
Polar  Tankers, collectively called Prince William Sound Tankers.
Lakoshs  other  two  appeals were of Western Pioneer  and  Valdez
Marine Terminals contingency plans.

     5    Bruner v. Peterson, 944 P.2d 43, 47 n.5 (Alaska 1997).

     6    Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532,
534   (Alaska  2005)  (We  apply  our  independent  judgment   in
determining  mootness because, as a matter  of  judicial  policy,
mootness is a question of law.).

     7     Baker  v.  Univ. of Alaska, 22 P.3d 440,  442  (Alaska
2001).

     8     Paxton  v.  Gavlak,  100  P.3d  7,  10  (Alaska  2004)
(internal citations omitted).

     9     Alaska  Const. art. I,  7 (No person shall be deprived
of life, liberty, or property, without due process of law.).

     10     Carvalho v. Carvalho, 838 P.2d 259, 262 (Alaska 1992)
(quoting  Aguchak  v. Montgomery Ward Co., 520  P.2d  1352,  1356
(Alaska 1974)).

     11    State v. Lundgren Pac. Constr. Co., 603 P.2d 889, 895-
96 (Alaska 1979).  We will review administrative proceedings to:

          [A]ssure  that  the  trier  of  fact  was  an
          impartial  tribunal, that  no  findings  were
          made except on due notice and opportunity  to
          be  heard, that the procedure at the  hearing
          was  consistent with a fair trial,  and  that
          the  procedure was conducted in  such  a  way
          that  there is an opportunity for a court  to
          ascertain whether the applicable rules of law
          and procedure were observed.
          
Robles  v.  Providence  Hosp., 988 P.2d 592,  596  (Alaska  1999)
(quoting  In re Hanson, 532 P.2d 303, 305 (Alaska 1975) (internal
quotation marks omitted)).

     12    Kodiak Seafood Processors Assn v. State, 900 P.2d 1191,
1195 (Alaska 1995).

     13    Ulmer v. Alaska Rest. & Beverage Assn, 33 P.3d 773, 776
(Alaska  2001)  (quoting Gerstein v. Axtell, 960  P.2d  599,  601
(Alaska 1998)).

     14     See, e.g., State, Dept of Natural Res. v. Greenpeace,
Inc.,   96   P.3d  1056,  1068  (Alaska  2004);  Kodiak   Seafood
Processors, 900 P.2d at 1196.

     15    Kodiak Seafood Processors, 900 P.2d at 1195.

     16    Id. at 1194-95.

     17    See, e.g., Fairbanks Fire Fighters Assn, Local 1324 v.
City of Fairbanks, 48 P.3d 1165, 1168 (Alaska 2002).

     18    Kodiak Seafood Processors, 900 P.2d at 1196.

     19     E.g.,  Ulmer, 33 P.3d at 778 (Although  such  appeals
typically must be decided by election day to avoid becoming moot,
there is no reason to believe that we cannot resolve such appeals
in  a  timely  fashion.  Indeed, we have frequently  done  that.)
(internal citations omitted).

     20     Fairbanks Fire Fighters Assn, Local 1324, 48 P.3d  at
1168  (Arbitrability is a threshold question; thus, the  harm  is
caused  by the means of resolution and not the resolution itself.
Therefore,  we  find  that  this  requirement  [that  the   issue
continually evade review] is met.); Alaska Ctr. for the  Envt  v.
Rue,  95  P.3d 924, 930 (Alaska 2004) ([D]enying review based  on
mootness  seems likely to hamper or delay future review  of  this
issue:   even  if forceful new evidence of threatened  extinction
arises,  the  commissioners current position may well  discourage
new  petitions and will likely prevent any realistic  possibility
of endangered-species listing.).

     21     See  Dept of Envtl. Conservation, Approval Notice  of
Alaska  Tanker  Company,  LLC Integrated  Vessel  Response  Plan,
October 31, 2007 (stating that approval for the plan will  expire
as of November 1, 2012).

     22    Kodiak Seafood Processors, 900 P.2d at 1196.

     23    Greenpeace, 96 P.3d at 1062-63.

     24    Id.

     25     Fairbanks Fire Fighters Assn, 48 P.3d at 1169 (citing
Legislative  Council  v. Knowles, 988 P.2d  604,  606-07  (Alaska
1999)); see also Kodiak Seafood Processors Assn, 900 P.2d at 1196
([T]he  scope  of the Commissioners power is an issue  of  public
interest.).

     26    AS 40.25.110-.295.

     27    City of Kenai v. Kenai Peninsula Newspapers, Inc., 642
P.2d 1316, 1319-20 (Alaska 1982) (internal citations omitted).

     28    AS 40.25.122.

     29     Id.   This  provision implies that  the  agency  must
develop  regulations  to  govern access  to  the  record  by  the
litigating parties.  Both parties point to 18 AAC 15.237  as  the
DEC  regulation  governing  access to the  record  by  litigating
parties.

     30    18 AAC 15.237(b) states:

          Within thirty days after the expiration . . .
          of  the  time  for intervention  .  .  .  the
          manager  for the department program  involved
          in  the contested decision shall certify  the
          agency  decision  record  as  complete.   The
          program  manager shall at the same time  also
          serve  notice on all parties that the  agency
          decision  record is available for  inspection
          and copying at the requesting partys expense.
          
     31      AS  40.25.122  refers  to  the  rules  of  procedure
applicable in a court or an administrative adjudication.

     32    We have previously noted that the litigation exception
of  the  Act  somewhat  inexplicably limits access  to  otherwise
public  records.  Brady v. State, 965 P.2d 1, 18  (Alaska  1998).
We  have  also noted that an equal protection challenge  to  this
statute   might  prevail.   Id.  at  19-20  (noting  that   equal
protection  challenge  to AS 09.25.122,  now  re-numbered  as  AS
40.25.122, is plausible, but holding the plaintiff in  that  case
had  waived the argument).  Because Copeland and Ott do not raise
these arguments, we do not consider them here.

     33    City of Homer v. State, Dept of Natural Res., 566 P.2d
1314,  1319 (Alaska 1977) (quoting Mathews v. Eldridge, 424  U.S.
319, 334-35 (1976)).

     34    Id.

     35    18 AAC 15.237(c) provides:
          
          The requestor shall pay the cost of gathering
          and  certifying  the agency decision  record,
          including    the    reasonable    cost     of
          transcription  of  the tapes  of  any  public
          hearing or other permit conference.  If  more
          than   one   requestor  are   parties,   each
          requestor  shall  bear, on a pro-rata  basis,
          the  cost  of  gathering and  certifying  the
          agency  permit  record,  unless  the  hearing
          officer  grants another percentage allocation
          among  the  requestors.  The  department  may
          require  advance  payment  of  the  costs  of
          gathering   and  certifying  the  record   as
          reasonably  estimated by the department.   If
          the  department requires advance payment, the
          cost  of gathering and certifying the  agency
          decision  record  must  be  paid  before  any
          further proceedings under this chapter.   The
          department will waive all or part of the cost
          of gathering and certifying the record if the
          requestor  demonstrates, to  the  departments
          satisfaction,  an  inability  to  pay   those
          costs.
          
     36    We note that Copeland and Ott have also argued that DEC
counsel played a dual role:  custodian of the records and counsel
to  DEC.   Absent  a  showing of bias, this dual  role  does  not
violate  due  process.  See Bruner, 944 P.2d at  49;  Stigall  v.
Anchorage Mun. Police & Fire Ret. Bd., 718 P.2d 943, 946  (Alaska
1986);  Amerada Hess Pipeline Corp. v. Alaska Pub.  Util.  Commn,
711   P.2d  1170,  1180  (Alaska  1986).   Administrative  agency
personnel  are  presumed impartial unless a  party  shows  actual
bias.   AT&T  Alascom  v. Orchitt, 161 P.3d  1232,  1246  (Alaska
2007).   Here Copeland and Ott have shown no evidence of bias  on
the part of DEC counsel.

     37    Zeller v. Poor, 577 P.2d 695, 697 (Alaska 1978).

     38     Power Constructors, Inc. v. Acres Am., 811 P.2d 1052,
1055-56 (Alaska 1991).

     39     Anderson v. State, Comml Fisheries Entry  Commn,  654
P.2d  1320,  1322 (Alaska 1982) (noting that the agency  made  no
showing  that  the minimal (seventeen day) delay  worked  to  its
disadvantage).

     40    Power Constructors, 811 P.2d at 1055.

     41    Copeland and Ott also argued that their dismissal was a
violation  of  the due process clause of the Alaska Constitution.
Because we find that their  dismissal was an abuse of discretion,
we  do not reach the separate question of whether their dismissal
was unconstitutional.

This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC