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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nash v. Matanuska-Susitna Borough (9/3/2010) sp-6507

Nash v. Matanuska-Susitna Borough (9/3/2010) sp-6507, 239 P3d 692

     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

CHARLES NASH, )
) Supreme Court No. S- 13048
Appellant, )
) Superior Court No.
v. ) 3PA-05-01894 CI
)
MATANUSKA-SUSITNA )
BOROUGH, ) O P I N I O N
)
Appellee. ) No. 6507 - September 3, 2010
)
          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Palmer,
          Eric Smith, Judge.

          Appearances:  Peter R. Ehrhardt,  Kenai,  for
          Appellant.    John   Aschenbrenner,    Deputy
          Borough  Attorney, Shannon Bodalay, Assistant
          Borough  Attorney, and Nicholas  Spiropoulos,
          Borough Attorney, Palmer, for Appellee.

          Before:   Carpeneti,  Chief  Justice,   Fabe,
          Winfree,  and Christen, Justices.  [Eastaugh,
          Justice, not participating.]

          CARPENETI, Chief Justice.

I.   INTRODUCTION
          After a borough terminated a timber sale contract  with
a  forester,  the forester appealed first to the local  board  of
adjustment  and  appeals and then to the  superior  court.   Both
upheld  the  Boroughs termination of the contract.  The  forester
now  appeals  to  this  court, claiming that  the  board  hearing
violated  his right to due process by denying him the ability  to
call  witnesses.   The  forester  also  claims  the  timber  sale
contract  was  improperly terminated.  Because we find  that  the
board hearing did not provide a full and fair opportunity for the
forester  to be heard, we agree that the hearing did not  comport
with  due process.  Accordingly, the forester was entitled  to  a
trial  de novo on his contract claims in the superior court.   We
therefore remand the case to the superior court.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          1.   Timber sale contract between Borough and Nash
          On  September  25, 1998, the Matanuska-Susitna  Borough
(Mat-Su  or  MSB)  Assembly entered a timber sale  contract  with
Charles Nash, under which Nash would harvest timber in the Chijuk
Creek  Forest.   Nash  agreed  to  pay  the  Borough  $20.56/acre
harvested and to harvest at least 1,000 acres per year during the
contract  period, which extended from July 1, 1999  through  June
30, 2008.
          Before  Nash  began working, the Alaska  Department  of
Fish  and  Game  issued a notice of violation to the  Borough  on
December  2,  1998, charging that the Borough had violated  state
law  in  the manner in which it had previously built some  stream
crossings on Oilwell Road  the access road to the timber Nash was
to  harvest.   The  U.S. Army Corps of Engineers  also  issued  a
notice of violation regarding the same stream crossings.
          To  resolve  the road situation in light of the  stream
crossing violations, Nash attended a February 18, 1989,   meeting
between  officials  of the MSB Department of  Public  Works,  the
Upper Susitna Soil and Water Conservation District, and the Corps
of  Engineers.  The parties decided that work for the  violations
would  be the boroughs responsibility and work needed for logging
trucks  would  be the responsibility of Charlie  Nash.   Although
construction  and  maintenance of roads to the harvest  area  was
Nashs  responsibility  under the original timber  sale  contract,
Nash claims that the Road Agreement added to his responsibilities
or  at  least  changed  the scope of his contract.  Indeed,  Nash
claims that his construction of 11 miles of all-weather road made
up  the largest part of his $1.5 million investment in the Chijuk
timber project.
          2.   Events leading to MSBs termination of the contract
          Shortly   after   the  Oilwell  Road  Agreement,   Nash
requested,  and  was  given, permission to reduce  the  contracts
timber  harvest requirements so that he could work on  the  road.
In   his   request,  Nash  stated:  I  need  to  get   going   on
reconstructing  the road for the Chijuk Sale.   By  way  of  this
agreement, I would correct the problems that are open issues with
Fish  and Game.  He added:  Its a good deal for the Borough.   In
order  to accomplish this work, Im going to need a roll  back  in
the first years total harvested acres from 1,000 to 500.
          Still,  Nash did not meet even the reduced goal of  500
acres  harvested in the first year  in fact, he did  not  harvest
any  timber  before  June  30, 2000.  He  had,  however,  largely
completed work on two important bridges and was preparing  to  do
other  work  on  the road.  On June 28, 2000,  Nash  requested  a
second  change  to the timber sale contract in  the  form  of  an
extension  of  time  for  harvesting the first  500  acres  until
September 30, 2000.  The Borough manager approved the request.
          In  August 2000 it became apparent that Nash would  not
meet  the  new  deadline  and  a  third  accommodation  would  be
necessary.   In  recommending approval of an  extension,  borough
staff  noted  that the road being built was very good,  and  that
because  of  the quality of the road construction it was  in  the
Boroughs  best  interest  to grant Nash the  additional  time  he
requested  to  complete  the construction  of  Oilwell  Road  and
harvest  his timber.  On November 16, 2000, the Borough  approved
the  third  amendment of the contract, providing that Nash  would
harvest  500  acres by January 31, 2001, and an additional  1,000
acres  by June 30, 2001, and every contract year thereafter.
          By  January  15,  2001, Nash had  fully  completed  the
bridges, prepared the access road from the Moose Creek Bridge  to
the   Kroto Creek Bridge, and begun to cut some trees.   However,
his  progress was still not up to the contracts requirements, and
on  January  31,  2001, the Borough approved a  fourth  amendment
pushing  back the date for the harvest of the first 500 acres  to
February 28, 2001.
          However, Nash still did not meet his requirements,  and
on  June  25, 2001, the Borough officially notified Nash that  he
was  in breach of the timber sale contract. Eventually, the fifth
amendment  to  the contract and all subsequent ones  were  issued
under a notice of breach  that is, the extensions allowed Nash to
continue  harvesting timber, but did not relieve him of being  in
breach  of contract.  Ultimately the Borough would approve  eight
amendments  under breach, bringing the total contract  amendments
to 12.
          Nash  claims to have completed work on the road  during
the  summer of 2001.  Meanwhile, he subcontracted with RK  Custom
LLC  to help him log and mill the timber.  RK actively logged the
area,  and  appears  to have been responsible  for  much  of  the
logging that was completed.  However, relations between Nash  and
RK eventually broke down to the point that RK exercised an option
in  its contract with Nash, granting RK an assignment of part  of
the  timber sale.  Nash had granted the option to RK earlier,  as
capital to collateralize a loan for sawmill equipment.  RK  noted
that it had no other recourse but to take this assignment because
Nash  continues to fail at meeting production levels as  outlined
in all agreements.
          On  February 11, 2002, the Alaska Division of  Forestry
sent  Nash a letter reminding him that he had failed to submit  a
required annual operations plan.  The division also informed  him
that  he would be in violation of the State Forest Practices  Act
if he did not remove felled white spruce that was piled along the
logging  roads  by  June 1, 2002.  The state was  concerned  that
downed  logs  could  facilitate the spread  of  the  spruce  bark
beetle,  but  Nash  had  stopped removing  the  logs  in  January
pursuant   to   borough  order  because  he  had  not   submitted
certificates  of  insurance  for  his  contractors.          Nash
provided a certificate of insurance around February 22,  but  was
ordered  to  cease all activity on February 28, 2002, because  he
had  not  provided  the Borough with a notice of  operations  (as
required  by  the  contract  when  operations  resumed  after   a
shutdown).  Nash provided the required notice on March 6, 2002.
          Another factor delaying removal of the felled logs  was
the closure of Oilwell Road during spring breakup in 2002 due  to
washouts.  Unusual weather, including a heavy April 18 snowstorm,
appear  to  have made road conditions unusually bad that  spring.
Nash claimed before the board of adjustment and appeals that  the
delay  in reopening the road caused us great hardship because  we
missed the normal June and early July markets for spruce sales to
local mills.
          On  July  8,  2002,  the  Alaska Division  of  Forestry
informed  the Borough that failure to remove the logs by  October
24  would constitute a violation of the Forest Practices Act.  By
letter  dated  July 22 the Borough informed Nash that  he  should
take  out downed logs.  Borough staff estimated there were  about
2,000  logs  in  Nashs portion of the sale area needing  removal.
Nash  told  the  board  of adjustment and appeals  that  he  then
started hauling right away, but he found the original 6 1/2 miles
of road that is fully maintained by the Borough (the portion that
extends from Petersville Road to the Moose Creek Bridge) [to  be]
in awful condition.
          On  July  31,  2002,  Nash filed a new  operating  plan
stating  that his initial focus would be on hauling  downed  logs
rather than harvesting.  The Borough responded that this plan did
not  meet the contractual requirements because it did not provide
sufficient  detail  of  planned  operations.   Accordingly,   the
Borough  would not approve any activities other than  removal  of
the fallen spruce logs.
          On  September 12, 2002, MSB issued Nash and RK a notice
of  termination stating that the contract had been breached  both
with regard to removal of downed logs and failure to meet harvest
level  requirements.  This letter stated that  RK  and  Nash  had
until  October  22, 2002, to cure the breach by  paying  for  and
harvesting 400 acres and removing about 2,060 spruce  logs.   The
letter  indicated that MSB is not inclined to grant  any  further
extensions in order to cure the breach of this contract.  The MSB
has  previously granted twelve (12) extensions in order  to  cure
previous breaches.
          On  October 24, 2002, borough staff performed  a  final
inspection  for contract termination.  Staff inspected  the  sale
area  and  noted that no new acres had been harvested  since  the
September  12  notice of termination and that about 1,500  spruce
logs remained on the ground.  The next day, the Borough sent Nash
and RK a notice of termination of the contract.  It informed Nash
that  he  was  no  longer authorized to enter  the  property  for
forestry  work  and  must  remove  his  equipment.   The  Borough
subsequently removed some of Nashs equipment and demanded payment
of some removal charges before it would release it to him.
     B.   Proceedings
          1.   Board of Adjustment and Appeals
          Although  the  Boroughs contract  termination  did  not
mention  any  administrative appeal process, Nash  was  concerned
about  meeting  exhaustion requirements and  therefore  filed  an
appeal  with  the  local board of adjustment and  appeals.   Both
parties submitted briefing to the board on January 24, 2003.
          Nash had hoped to present witnesses who could attest to
the  poor state of the Boroughs portion of the road and to  Nashs
compliance  with  the  Boroughs downed timber  requirements.   In
addition to those who would attend in person, Nash hoped to  have
one witness testify telephonically.  In an affidavit, Nash states
that  when he inquired about having witnesses, the borough  clerk
told him that the board hearing would not provide a general forum
for  witness testimony, but interested parties could be heard  at
the  hearing if they had previously testified before the planning
and zoning commission.  While the Board of Adjustment and Appeals
usually  handled appeals from the planning and zoning commission,
Nash  says  that he explained that his appeal had  had  no  prior
proceedings  and  that therefore his proposed witnesses  had  not
previously testified.  Because the issue was important  to  Nash,
he  asked  the  clerk to ask the board chair  if  he  could  call
witnesses  on his behalf.  On January 28 the clerk informed  Nash
that the chair had confirmed that witnesses could not testify  at
the  hearing.   It appears the decision was made by the  chairman
based on Mat-Su Borough Code 15.39.190, which provides that  only
interested parties may testify.  That code allows exceptions, but
they are discretionary.
          Since  witnesses were not allowed, Nash filed a  motion
on January 29 requesting oral argument by interested parties.  He
requested  that  he be allowed to call people  to  speak  on  his
behalf as interested parties and that the board decide the matter
before  the  board  hearing so Nash could make  arrangements  for
witnesses  to  take the day off work and travel to  the  hearing.
Nash  requested that the board postpone the hearing if  it  could
not  decide his motion before the hearing.  Nash argued that  the
interested party requirement stemmed from the boards normal  role
of  reviewing  planning  and zoning commission  hearings  and  is
misplaced in the contract review setting.  Nash also pointed  out
that  it  would  be unfair to those expecting to testify,  and  a
violation  of due process, not to know in advance who  could  and
could  not  testify.  Nash asked for a response  by  January  31,
which was the deadline for interested parties to notify the board
that they wish to speak.
          Nash  received  no  response  to  his  motion,  despite
repeated calls to the clerks office.  In order to meet the boards
advance  notice requirement, he nonetheless faxed a list of  five
people  who wished to speak as interested parties.  Still he  did
not  hear  from the board; thus Nash did not know if  the  people
whose names he had submitted could testify, and thus whether they
should take the day off work to attend the hearing.
          At the February 7, 2003, hearing, the board chair began
by  addressing the issue of interested parties.  The board called
the  persons  on Nashs list of interested parties, but  only  one
person  Nashs father  was present.  The board agreed to hear  his
testimony  because Nashs father had invested in the  project  and
was thus an interested party.
          When  Nash  was  allowed  to  address  the  motion,  he
summarized  his difficulty getting an answer from the  board  and
the  hardship  imposed by requiring people to take off  work  and
travel  great  distances  to  attend  the  hearing  without   any
assurance  they  would  be able to present  testimony.   He  also
stated  that he had at least one witness who was not present  but
who  was willing to testify telephonically.  The Borough attorney
argued  that  Nash had no standing to assert these  hardships  on
behalf  of  others.  Nash responded that he had never  been  told
that  potential  witnesses had to apply  personally.   The  board
upheld  the  Boroughs objection based on standing.   Accordingly,
none  of the people Nash wished to testify had an opportunity  to
testify except his father.
          However,  one witness who was not on Nashs list,  Billy
Schuyler,  supervisor for the Susitna Soil and Water Conservation
District,  was  present and requested the opportunity  to  speak.
Schuyler worked with Nash on Oilwell Road and could testify about
whether the Borough made it impossible for Nash to perform  under
the  contract.  The board debated whether Schuyler should be able
to  speak,  with the chair strictly opposed and the  other  board
members  willing  to  hear  additional  information.   The  board
ultimately allowed Schuyler to testify as a special exception, in
part  because he had taken time off from work and driven  on  icy
roads since 2:00 a.m. to attend the meeting.
          Having  thus resolved Nashs motion to allow  testimony,
the board considered the Boroughs motion to present testimony  of
a  borough staff member. Although a board member pointed out that
this  was  essentially what Nash was attempting to do, the  board
accepted  the Boroughs evidence.  It justified this  decision  by
distinguishing between a witness who could speak as  an  employee
of  the Borough (a party to the matter), and the persons on Nashs
proposed list, who were merely interested parties.  Nash objected
to introduction of the affidavit on the ground that supplementing
the record at the last minute denied him an opportunity to reply.
In  addition, a board member questioned whether it  was  fair  to
allow  the  Borough to offer testimony from an absent person  but
deny   Nash   similar  opportunity  to  present  testimony   from
interested  persons  at  a later date.   The  board  allowed  the
Boroughs affidavit nonetheless.
          At   the   hearing  two  borough  staff  members   gave
presentations,  then Nash briefly stated his side  of  the  case.
Nash  walked out of the proceedings before the Borough  attorneys
argument.   He was accompanied by his father, who ultimately  did
not  testify.  Schuyler was allowed to speak, and testified  that
Nashs  failure  to perform under the contract resulted  from  the
hurdles the Borough placed before him.
          The  same  day  as  the hearing, the board  released  a
written, four page decision upholding the Boroughs termination of
the  contract.   The  decision stated  the  boards  findings  and
conclusion,  but  did  not  discuss  the  evidence  or  rationale
supporting those findings.
          2.   Superior Court
          On  March  10, 2003, Nash sued the Borough in  superior
court  for  breach  of contract, breach of good  faith  and  fair
dealing,  intentional interference with chattels, and intentional
interference with contract.  He argued that he deserved  a  trial
de  novo  because  the board deprived him  of  a  fair  and  full
hearing.
          The  Borough moved for judgment on the pleadings and  a
motion to designate the matter as an appeal and dismiss.  After a
hearing  on  September 15, 2003, Superior Court Judge Eric  Smith
ruled   that   Nashs  contract-based  claims  for  damages   were
functionally an administrative appeal.  But the court ruled  that
it  was  not  clear  from  the  pleadings  whether  the  Boroughs
administrative procedures afforded the [p]laintiff  due  process.
The  court therefore requested additional briefing on whether the
case required a trial de novo.
          The  superior  court eventually found  that  the  board
hearing  complied  with  the requirements  of  due  process.   In
finding that the board provided due process, the court found that
borough  personnel explained to Nash that only interested parties
could  speak.   The court also found that Nashs motion  regarding
interested  parties  could  not have been  addressed  before  the
hearing  because  the  board could not  meet  before  then.   The
superior  court concluded that there was no due process violation
concerning the boards limitations on testimony, because the board
allowed  all who were present at the meeting (Schuyler and  Nashs
father) to testify.
          The  superior court concluded that Nashs problems  were
his  own making, and that the borough code simply did not  permit
the  borough clerk or board chair to give Nash the assurances  he
wanted.  The superior court further concluded:
          It  is  true  that Mr. Nash was not  able  to
          depose  witnesses, to serve  interrogatories,
          to request materials, or to cross-examine the
          witnesses.   But  there is no requirement  in
          the  case  law that an administrative  appeal
          must  always  follow all  of  the  procedures
          afforded  a party in a civil trial.   Rather,
          the  focus is on whether Mr. Nash received  a
          fair and full opportunity to make his case in
          the  context  of a regulatory rather  than  a
          judicial decision.  In such a context,  there
          is  no  requirement that the [board]  provide
          for discovery or cross-examination.
          Due  process  thus resolved, the parties addressed  the
merits of the boards decision.  On October 6, 2005, Nash moved to
supplement the administrative record to include the Oilwell  Road
Agreement of March 24, 1999.  The court granted this motion.   On
April  17,  2006,  the  court  ruled  that  it  would   hold   an
evidentiary  hearing  to  determine  the  meaning  of  the   road
agreement,  and  will  then  fold  its  findings  regarding   the
agreement  into its evaluation, as an administrative  appeal,  of
the [board] decision.
          On  February 25, 2008, after the hearing regarding  the
road agreement,  the superior court issued an order upholding the
Boroughs  termination of the contract.  The superior court  found
that  the  road agreement was a cooperative agreement delineating
certain  voluntary undertakings by the signatories  and  did  not
explicitly  or  implicitly modify the timber sale  contract.   It
also concluded that the boards decision to uphold the termination
of  the contract was supported by substantial evidence, primarily
because Mr. Nashs failure to perform on the contract provided  an
adequate basis for the Borough to terminate the contract.
          Nash  now appeals, arguing that the board violated  his
due process rights and that the Borough improperly terminated the
contract.
III. STANDARD OF REVIEW
          We  review  for  abuse of discretion a superior  courts
decision to conduct an administrative review instead of  a  trial
de novo.1  To find an abuse of discretion, we must be left with a
definite  and  firm conviction after reviewing the  whole  record
that the trial court erred in its ruling. 2
          Where  the superior court conducts a partial  trial  de
novo,  we  review the courts findings and conclusions.3   Factual
findings  by  the superior court are reviewed under  the  clearly
erroneous standard,4 while legal issues are reviewed de novo.5
IV.  DISCUSSION
          Nash argues that, because the board proceedings did not
afford him due process, the superior court erred in denying him a
full trial de novo.  He argues in the alternative that the timber
sale  contract  entitled him to trial de novo.  He  also  asserts
that  the  road agreement modified the timber sale  contract  and
that  the  contract was improperly terminated.  Because we  agree
with  his due process claim and remand for a full trial de  novo,
we  do  not decide whether the road agreement modified the timber
sale  contract, whether the timber sale contract entitled him  to
trial  de  novo, or whether the timber sale contract was properly
terminated.
     
     Nash Did Not Receive Due Process In The Board Proceeding.
          Nash  argues  that the board violated his  due  process
rights   in   several  ways:  by  failing  to  provide  discovery
procedures, by restricting his right to present witnesses, and by
generally failing to properly handle the hearing.
          The  Borough argues that the procedures were sufficient
to  satisfy  the requirements of due process and  that  Nash  has
failed  to make a requisite showing of prejudice.  It points  out
that  Nash was in fact allowed to call all of the individuals  he
requested on his witness list, except for those who did not  show
up to the hearing.
          The  superior  court determined that Nash had  received
adequate  procedural opportunities to present his case, and  that
the problems he experienced at the administrative hearing were of
[his]  own  making.  Accordingly, the court found that the  board
afforded  Nash due process.  The court denied Nash full trial  de
novo on his contract claims.6
          Article   I,  section  7  of  the  Alaska  Constitution
guarantees  the  right  of  due  process.   Due  process  in  the
administrative context does not demand that every hearing comport
to  the  standards  a  court would follow, but  rather  that  the
administrative process afford an impartial decision-maker, notice
and  the opportunity to be heard, procedures consistent with  the
essentials  of  a  fair  trial,  and  a  reviewable  record.7   A
violation of due process should be alleged with particularity and
a  showing  of  prejudice.8   We stated  in  Keiner  v.  City  of
Anchorage9 that a party is entitled to a trial de novo, in  whole
          or in part, if he [has] been denied the opportunity to present to
the [Board] relevant and material evidence supporting his claim .
. . .10
          We  agree  with  Nash  that his  inability  to  present
witness  testimony to the board violates these standards  of  due
process.   We cannot find due process in a hearing where  parties
do  not know if they will be allowed to call witnesses until  the
hearing  has actually begun.  Accordingly, we cannot  agree  with
the  conclusion  that  Nashs problems were  of  his  own  making.
Rather,  the  record  indicates a series of  irregularities  that
effectively denied Nash notice and the opportunity to  be  heard,
and  the  board failed to provide procedures consistent with  the
essentials of a fair trial.
          The  boards  procedures  for  testimony,  letting  only
interested   parties   testify,  is  not  consistent   with   our
requirements  for  due  process.  While a  hearing  need  not  be
identical  to  a  judicial proceeding, the  boards  exclusion  of
witnesses  who are not interested parties narrows the  record  to
something markedly less than a full opportunity to be heard,  and
prevents  a  party  from presenting relevant, material  evidence.
The  present  case  was  relatively complex,  involving  contract
performance  over the span of a decade; investments allegedly  of
well  over  one million dollars; and the involvement  of  private
parties,  the  federal  government, state government,  and  local
government.  In light of these complex issues, Nash was  prepared
to  present  testimony  from witnesses  who  would  knowledgeably
address  topics from the terrible condition of the MSB maintained
portion  of  [Oilwell] Road . . . to the absence of any  [F]orest
[P]ractices  [A]ct violations on the sale.  However, by  limiting
testimony  to only interested parties, the board prohibited  Nash
from  presenting this relevant and material evidence.  We believe
that  such  a narrow hearing effectively rendered Nash unable  to
present his case  precisely the due process violation that Keiner
contemplated would justify a trial de novo.11
          Moreover,  it  is inappropriate for a  claimant  in  an
administrative  hearing not to know in  advance  if  he  will  be
allowed  to  call  witnesses  at  the  hearing.   Adequate,  fair
procedures should provide notice as to who may testify.  While it
is  understandable that uncertainties might arise  from  time  to
time, we believe the resolution of the uncertainty in the present
case  was  inadequate.  Nash filed a motion  asking  for  special
permission to call witnesses, as appears permissible under Mat-Su
Borough  Code  15.39.190.  But the board did not  respond.   Nash
requested,  in the alternative, that if a decision could  not  be
made  in  advance of the board meeting, that the board delay  the
hearing on the merits until a later date.  This would have been a
prudent  course of action, and the record does not show  why  the
board  did  not grant Nashs request.  In short, we  cannot  agree
with the superior court that Nashs problems resulted from his own
doing;   rather,   we   conclude  that  the  boards   limitations
effectively  denying advance notice as to who may  testify   were
too restrictive.
          The  Borough unconvincingly contends that there was  no
denial  of witness testimony since those present were all allowed
          to speak.  To the contrary, the paucity of witnesses present was
more likely a result of the boards inability to decide in advance
who  would  be  able  to  testify, and  was  thus  indicative  of
procedures  inconsistent with the essentials  of  a  fair  trial.
Nash  repeatedly asked for assurances as to which witnesses would
be  able  to  speak,  and whom he should ask  to  travel  to  the
hearing.   Yet  by  the time of the hearing,  it  was  not  clear
whether  the board would allow any witnesses.  In addition,  Nash
claims that the borough clerk had already told him that witnesses
would  not  be allowed to speak.  Even if the clerks  answer  was
more  equivocal than Nash understood it to be, it is  clear  that
the  Borough had not indicated, with any degree of certainty, who
would be allowed to testify.12  Thus, the Boroughs argument  that
the  matter came down to merely who was or was not present is not
persuasive.
          It is true that one witness (Schuyler, with the Susitna
Soil and Water Conservation District) appeared at the hearing and
the  Borough did allow him to testify.  But the barrier  Schuyler
faced  in  testifying  was  itself problematic.   Throughout  the
hearing   the   chair  was  resistant  to  Schuylers  testifying,
asserting that Schuyler should not be allowed to testify  because
he  was  not  an interested party.  This undermines the  Boroughs
contention  that  it   would,  in all  likelihood,  have  allowed
witnesses  to  testify  as long as they were  present.   Further,
Schuylers  testimony demonstrates the lack of clarity behind  the
boards  interested party requirement:  The fact that a government
employee   with  obviously  relevant  testimony  to   offer   was
reluctantly  granted  a special exception   even  though  not  an
interested party  lends support to Nashs contention that  he  had
no  guarantee that any of his desired witnesses would be  allowed
to speak.13
          An  additional procedural flaw is evident in the boards
ruling  that Nash had no standing to object to the boards refusal
to  allow  a  witness  to testify.14  A party  cannot  be  denied
standing  to argue an issue as fundamental as what testimony  may
be  presented.15   We  find  no basis  for  the  boards  decision
regarding  standing, and it is certainly not procedure consistent
with the essentials of a fair trial.
          We  are  also troubled by the boards acceptance  of  an
affidavit  from the Borough soon after denying Nashs requests  to
allow  witnesses  to  testify.  The affidavit  was  from  a  city
employee,  testifying  to the merits, and was  allowed  into  the
record  so  that the employee would not have to leave his  office
during  a busy day.  In our view, the affidavit was quite similar
to  Nashs request regarding witness testimony, and the board  had
no  basis  to  reject Nashs request while allowing the  Boroughs.
Coming  on  the  heels  of the chairs utter resistance  to  Nashs
witnesses,  the  boards  asymmetric  allowance  of  the  Boroughs
affidavit  appears  to  fall  short of  the  procedural  fairness
required for due process.
          In  sum, we find that the board did not afford  Nash  a
full  opportunity  to be heard nor provide procedures  consistent
with  the  essentials of a fair trial.  Rather, he was prohibited
from  presenting  relevant, material evidence,  and  was  thereby
          effectively denied due process.  Under these circumstances, a
trial de novo is appropriate in the superior court.16
V.   CONCLUSION
          In  light  of the boards restrictions on testimony,  we
find   that  its  hearing  did  not  comport  with  due  process.
Accordingly,  we REVERSE the superior courts due  process  ruling
and REMAND for a trial de novo.
_______________________________
     1     Treacy v. Municipality of Anchorage, 91 P.3d 252,  270
(Alaska 2004).

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

     3     City of Nome v. Catholic Bishop of N. Alaska, 707 P.2d
870, 875 (Alaska 1985).

     4    Id. at 876.

     5    Jacob v. State, Dept of Health & Soc. Servs., Office of
Childrens  Servs.,  177  P.3d 1181, 1184 (Alaska  2008)  (quoting
Guinn v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).

     6     The  court did grant a de novo hearing on whether  the
road  agreement modified the contract, since that issue  was  not
addressed before the board.

     7     Keiner  v.  City  of Anchorage, 378 P.2d  406,  409-10
(Alaska  1963)  (citing  St. Joseph Stock  Yards  Co.  v.  United
States,  298  U.S. 38, 73 (1936) (Brandeis, J., concurring:   The
inexorable safeguard which the due process clause assures is, not
that  a  court  may examine whether the findings as to  [specific
facts] are correct, but that the trier of the facts shall  be  an
impartial tribunal; that no finding shall be made except upon due
notice  and  opportunity to be heard; that the procedure  at  the
hearing shall be consistent with the essentials of a fair  trial;
and  that it shall be conducted in such a way that there will  be
opportunity for a court to determine whether the applicable rules
of law and procedure were observed.)).

     8    Keiner, 378 P.2d at 409.

     9    Id. at 406.

     10    Id. at 409; see also State v. Lundgren Pac. Const. Co.,
603  P.2d 889, 895-96 (Alaska 1979) (finding a right to trial  de
novo where administrative procedure did not afford due process).

     11    See 378 P.2d at 409.

     12    Moreover, that Nash had to rely on oral guarantees from
the   borough  clerk  is  itself  indicative  of  an   inadequate
procedural framework.

     13     Indeed, Schuyler only testified over the objection of
the  chair,  and  as  a special exception, because  Schuyler  had
traveled since 2:00 a.m. over icy roads to attend the hearing  in
the  words  of one board member who argued in favor  of  allowing
Schuyler to speak, We are still in Alaska.

     14     The  board reached this strange ruling on the  ground
that only a witness could assert a right to testify, not a party.

     15     See Keiner, 378 P.2d at 409 (requiring essentials  of
fair  trial and noting that new trial is remedy where  party  was
not allowed to present relevant and material evidence).

     16     We  do  not  address  Nashs argument  that  the  road
agreement  modified the timber sales agreement  because  relevant
evidence  on  this  issue may emerge during the  de  novo  trial.
Accordingly,  we  vacate the superior courts conclusion  that  no
modifications had occurred and remand this matter for trial.

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