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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Licht v. Irwin (1/18/2013) sp-6744

Licht v. Irwin (1/18/2013) sp-6744

        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, email  


MARY LICHT as personal                          ) 

representative of the Estate of                 )       Supreme Court No. S-14318 

Gordon Haber, FRIENDS OF                        ) 

ANIMALS, INC., and BARBARA                      )       Superior Court No. 3AN-09-06759 CI 

BREASE,                                         ) 

                                                )       O P I N I O N 

                        Appellants,             ) 

                                                )       No. 6744 - January 18, 2013 

        v.                                      ) 


THOMAS E. IRWIN, Commissioner                   ) 

of the Department of Natural                    ) 

Resources, State of Alaska,                     ) 


                        Appellee.               ) 


                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Philip R. Volland, Judge. 

                Appearances:  Tanya R. Schultz, Holmes Weddle & Barcott, 

                P.C., Anchorage, for Appellants.         Colleen J. Moore, Senior 

                Assistant Attorney General, Anchorage, and John J. Burns, 

                Attorney General, Juneau, for Appellee. 

                Before:      Carpeneti,     Chief    Justice,  Fabe,    Winfree,    and 

                Stowers, Justices. 

                CARPENETI, Chief Justice. 

----------------------- Page 2-----------------------


                In 2009 the Department of Natural Resources issued two decisions, one 

removing the classification of certain lands as wildlife habitat and the other allowing for 

the conveyance of these lands to the Denali Borough for further development. A wildlife 

biologist and   others submitted   comments challenging   the Department's actions;   the 

biologist's comments and requests for reconsideration were denied and he filed an appeal 

in the superior court. While the appeal was pending, the wildlife biologist died in a plane 

crash and his sister, the personal representative of his estate, filed a motion to substitute 

an individual and an organization as appellants   in   this   case.          The court allowed for 

substitution of the personal representative, but prohibited the substitution of third parties; 

after the personal representative declined to personally continue the appeal, the superior 

court dismissed the case.       The personal representative now appeals. 

                We conclude that the superior court correctly articulated the proper test for 

substitution   on   appeal,   but   because   it   did   not   acknowledge   the   comments   that   the 

proposed appellant submitted during agency proceedings, we remand for the court to 

consider     whether    these  comments      indicate   the  proposed     appellant   was   entitled   to 

prosecute   in   the   review   proceeding   below,   thereby   making   her   a   proper   party   for 

substitution.  We affirm the superior court's conclusion that the personal representative 

could not transfer or assign her right to appeal. 


                On   January   20,   2009,   the   Commissioner   of   the   Department   of   Natural 

Resources, Thomas E. Irwin , issued a decision adopting an Amendment to the Tanana 

Basin Area Plan (Tanana Amendment), which reclassified approximately 26,765 acres 

of land within the Denali Borough.   The commissioner simultaneously issued a separate 

final finding and decision approving the conveyance of approximately 21,412 acres of 

state   land   to   the   Denali   Borough   under   the   Municipal Entitlement   Act.    These   two 

                                                  -2-                                             6744

----------------------- Page 3-----------------------

decisions effectively reclassified certain lands to make them conveyable to the Denali 

Borough by removing their previous wildlife habitat designation and accompanying 

restrictions on development, thereby making it possible to transfer them out of state 


                During the process leading up to these decisions, the Department of Natural 

Resources (DNR or the Department) gave the public approximately 60 days to submit 

comments on proposed Tanana Amendment and preliminary decision.  Comments were 

due on July 31, 2008, by 5:00 p.m.   Wildlife biologist Dr. Gordon Haber and almost 50 

other people submitted written comments during this period.   Barbara Brease, a resident 

of Healy, attended a public meeting on the Tanana Amendment and attempted to submit 

written comments during   this period.          Her email arrived on time, but an attachment 

containing her substantive comments was not received.                After being notified that the 

attachment was not received, Brease resent it at 5:38 p.m. on July 31.                  Because her 

comments were not received before the 5:00 p.m. deadline, they were not considered by 

DNR.     Brease   did   not   make   further   attempts   to   participate   in   this   decision-making 

process   after   being   informed   that   her   email   would   not   be   considered. Dr.   Haber's 

comments were timely received by DNR and he later submitted additional comments in 

December 2008. 

                After the commissioner's final decision was issued on January 20, 2009, 

Dr. Haber timely filed a request for reconsideration arguing that it was in the State's best 

interest to preserve the areas as wildlife habitat due to the areas' importance to the native 

wildlife populations, the economic return to Alaska from tourism and other activities, and 

the ecological implications of development.           The commissioner denied this request on 

March 24, 2009.  Dr. Haber appealed this denial to the superior court on April 22, 2009. 

He argued that the agency's decisions were "arbitrary, capricious and without substantial 

support in the record" and asserted that the lands should be retained in public ownership 

                                                  -3-                                            6744

----------------------- Page 4-----------------------

because   DNR   may   not   abdicate   its   "primary   responsibility   and   legal   obligation   to 

manage, protect and preserve wildlife habitat lands in the highest and best public interest 

of all Alaskans."      Dr. Haber filed his opening brief in that case on September 17, 2009, 

noting that it was his intent "to ensure that DNR provides the borough's entitlement 

[under the Municipal Entitlement Act] in a way . . . that does not hurt broader interests 

of the state and ultimately the borough itself."  Specifically, he argued that DNR and the 

commissioner "violated AS 38.05.035(e)(2)[1] and AS 38.04.065(b)(4-6),[2] the statutory 

provisions that contain requirements for the reclassification and conveyance of state 

lands as well as various duties of the DNR Commissioner when issuing decisions." 

Dr. Haber died in a plane crash in Denali National Park on October 14, 2009. 

         1       AS 38.05.035(e)(2) states: 

                 [T]he director shall discuss in the written finding prepared 

                 and issued under this subsection the reasons that each of the 

                 following was not material to the director's determination 

                 that the interests of the state will be best served: 

                          (A) facts pertaining to the land, resources, or property, 

                 or an interest in them other than those that the director finds 

                 material under (1)(B)(ii) of this subsection . . . . 

         2       AS 38.04.065(b) provides: 

                         In     the   adoption      and    revision     of   regional     and 

                 site-specific land use plans, the commissioner shall . . . 

                          . . . . 

                          (4)  rely,   to  the   extent   that   it  is  available,  on   the 

                 inventory of the state land, its resources, and other values; 

                          (5) consider present and potential uses of state land; 

                          (6)  consider   the   supply,   resources,   and   present   and 

                 potential use of land under other ownership within the area of 

                 concern . . . . 

                                                     -4-                                                6744

----------------------- Page 5-----------------------

                On October 29, 2009, DNR filed a notice of death of appellant and motion 

to dismiss appeal.  On January 28, 2010, Dr. Haber's sister, Mary Licht, appeared as the 

personal representative of Dr. Haber's estate and moved, under Alaska Appellate Rule 

516(a) and Alaska Civil Rule 25(a), to substitute Barbara Brease and Friends of Animals, 

Inc. as appellants in the case.  DNR opposed the motion to substitute, Licht replied, and 

DNR responded.  Both parties agreed that the motion raised two legal questions of first 

impression in Alaska:        (1) When a public   interest   litigant files a timely appeal of a 

governmental policy decision, does the appeal survive the death of the appellant or is it 

abated?,   and   (2)   Assuming   the   appeal   can   continue   after   the   death   of   the   original 

appellant, who may be a proper party to continue the appeal?                Licht did not argue that 

she should be substituted to continue Dr. Haber's appeal, but rather asked for Brease and 

Friends of Animals to be substituted directly, or indirectly through a two-step process 

where she would be substituted as personal representative and then transfer her right to 

continue the appeal to Brease and Friends of Animals. 

                In January 2011, the superior court ruled that the appeal survived the death 

of the appellant, and granted appellants' request that Licht replace Dr. Haber.  But the 

court denied the request for substitution by Brease and Friends of Animals.                   Because 

Licht   never    asked   to  be  substituted    herself,   DNR    moved     for  reconsideration     and 

requested dismissal of the appeal.  In April the superior court granted the Department's 

request for reconsideration and denied the motion to substitute in full.              Licht appeals. 


                We interpret "our civil [and appellate] rules de novo, adopting the rule of 

law which is most persuasive in light of precedent, policy, and reason."3              The matters of 

        3       Kellis v. Crites , 20 P.3d 1112, 1113-14 (Alaska 2001) (internal quotation 

marks omitted). 

                                                  -5-                                               6744 

----------------------- Page 6-----------------------

first impression presented in this appeal - whether a timely appeal survives the death 

of the appellant and, if it does, who is a proper party to continue the appeal - are 

questions of law to which we apply our independent judgment.4 


        A.      It Was Error To Deny The Motion To Substitute. 

                Alaska Appellate Rule 516(a) dictates the procedure for substitution in case 

of the death of a party during an appeal.         This rule provides: 

                The death of a party in a civil action or proceeding shall not 

                affect any appeal taken or petition for review made, or the 

                right to take an appeal or to seek review, except as limited by 

                [time].    The   proper   representatives   of   the   estate,   or   in   the 

                personalty or realty, of the deceased party, according to the 

                nature of the case, may voluntarily appear and be substituted 

                as parties for the decedent, or substitution may be effected as 

                in   the   case   of   death   of   a   party   pending   an   action   in   the 

                superior court.[5] 

Substitution in the "case of death of a party pending an action in the superior court" is 

governed by Alaska Civil Rule 25(a), which provides:                "If a party dies and the claim is 

not thereby extinguished, the court may order substitution of the proper parties.  The 

motion for substitution may be made by the successors or representatives of the deceased 

party or by any party." 

        4       Smallwood v. Cent. Peninsula Gen. Hosp., Inc., 227 P.3d 457, 459 (Alaska 

2010) (internal citations omitted); see also  Stevens v. State, Alcoholic Beverage Control 

Bd. , 257 P.3d 1154, 1156 (Alaska 2011) (quoting Squires v. Alaska Bd. of Architects, 

Eng'rs     &   Land    Surveyors ,    205   P.3d   326,   332   (Alaska    2009))    ("We    apply   our 

independent judgment to questions of law that do not involve agency expertise, including 

constitutional questions."). 

        5       Alaska R. App. P. 516(a). 

                                                   -6-                                            6744

----------------------- Page 7-----------------------

               The superior court determined that substitution of parties in this case would 

necessarily depend on an interpretation of both Appellate Rule 516 and Civil Rule 25. 

DNR argued that Appellate Rule 516 did not apply because Dr. Haber was defending 

"intangible" interests that were unique to him and that the appeal should therefore be 

treated as a civil claim or action originating in the trial court.  The superior court rejected 

this argument, concluding that the case must be analyzed under the Appellate Rules as 

well as Alaska Civil Rule 25, because it was not an original claim or action in the trial 

court, but rather an administrative appeal properly governed by the Appellate Rules. 

However, Appellate Rule 516(a) states that "substitution may be effected as in the case 

of death of a party pending an action in the superior court," so Alaska Civil Rule 25 still 

affects   the outcome of this dispute.    The superior court ultimately concluded, under 

relevant case law, that it was authorized to allow substitution according to its "sound 

discretion."6  We agree with the superior court. 

               1.	    The personal representative of a deceased appellant is not the 

                      only proper party for substitution on appeal. 

               The principal question raised by this appeal regards who may be a proper 

party for substitution in this appeal.  Both sides acknowledge that Appellate Rule 516(a) 

would allow the personal representative to voluntarily appear and be substituted for the 

appellant.  The question is whether the language of Appellate Rule 516(a), allowing for 

substitution by "[t]he proper representatives of the estate . . . according to the nature of 

the case" or as it "may be effected as in the case of death of a party pending an action in 

the superior court," permits the substitution of anyone other than the legal representative 

       6       See Compton v. Chatanika Gold Camp Props., 988 P.2d 598, 601 (Alaska 

1999) (quoting State v. 18,018 Square Feet, More or Less, 621 P.2d 887, 889 (Alaska 

1980) ("Whether or not a party should be substituted for another rests in   the sound 

discretion of the trial court.")). 

                                              -7-	                                          6744 

----------------------- Page 8-----------------------

of   the   deceased   appellant.      As   noted   above,   Alaska   Civil   Rule   25   gives   the   court 

discretion     to  order   substitution    of  "the   proper    parties,"   and   states  the  motion     for 

substitution may be made by the "successors or representatives of the deceased party or 

by any party." 

                 The superior court determined the correct rule to apply in this case is "the 

general rule that the proper party to maintain   appellate review after the death of an 

appellant is the individual who would be entitled to prosecute or defend in the review 

proceeding." Licht disagrees, arguing that "[w]hile the civil rules provide the procedural 

guidelines for substitution on appeal, they do not control or limit who may be substituted 

for a decedent/appellant in a given case."  Licht emphasizes the public interest nature of 

this appeal, which she claims does not justify expenditure of estate resources to continue 

the suit, but does provide a basis for other concerned citizens to continue the litigation. 

 Licht argues that only a broad approach to substitution could prevent the unjust result 

where "appeals of DNR decisions affecting state lands and resources . . . die with the 

appellant seeking to vindicate the public interest in the proper development and disposal 

of state lands."    Licht asserts that this injustice would be especially harsh in cases like 

this   one   where   willing   members   of   the   public   are   volunteering   to   substitute   for   the 

decedent, the personal representative of the estate wishes the appeal to continue, and the 

State would not be prejudiced from allowing the substitution. 

                 Licht argues that the rule adopted by the superior court improperly limits 

"the    class  of   those   who    could   substitute    for  Dr.   Haber    on   appeal   to  those    with 

independent standing to appeal or request reconsideration of DNR's decision within the 

agency; that is, those who submitted timely written comment during the agency process 

                                                    -8-                                               6744

----------------------- Page 9-----------------------

and were affected by the final decision."7        She argues that a person seeking to substitute 

for a deceased appellant should not need to establish independent standing because: 

(1)   the   new  appellant   would   have   to   carry   forward   the   arguments   of   the   original 

appellant; (2) requiring a substitute to show independent standing would undermine the 

right to appeal, because standing aims to ensure adversity and the original appellant 

already     fulfilled  that   requirement;   and   (3)  the  requirement   that   an   appellant   have 

participated at the agency level only ensures no new issues are brought on appeal, but 

there is no danger of that upon substitution because the substitute must adhere to the 

appellant's original arguments.          Licht maintains that the superior court's independent 

standing requirement "so limits the potential pool of those who can be substituted as to 

make substitution nearly impossible when the personal representative is unwilling or 

unable to carry on an appeal" and forecloses "vindication of the public interest through 

judicial review in contravention of policy."          Licht argues that this result is so perverse 

and incongruous with the need to ensure that state lands and resources are disposed of 

in the best interests of the public that the superior court's decision must be overturned. 

        7       Licht is referring to the eligibility requirements found in AS 38.05.035(I), 

the provision of the Alaska Land Act delineating who may appeal a final written finding 

of the Department of Natural Resources.            This statute provides: 

                        A person is eligible to file an administrative appeal or 

                a request for reconsideration if the person 

                        (1) meaningfully participated in the process set out in 

                this chapter for receipt of public comment by 

                                (A)    submitting    written   comment      during   the 

                period for receipt of public comment; or 

                                (B)    presenting     oral  testimony     at  a   public 

                hearing, if a public hearing was held; and 

                        (2) is affected by the final written finding. 

                                                   -9-                                            6744

----------------------- Page 10-----------------------

                 Licht cites Mallick v. International Brotherhood of Electrical Workers 8  as 

instructive on the appropriate rule of law to adopt in order to determine appropriate 

parties.   Mallick was a union member who succeeded on his labor claim against the 

union, but died ten days after judgment was entered.9                   The union appealed and, after 

filing   notice   of   his   death,   asked   that   the   judgment   be   vacated.10  Three   other   union 

members   moved   to   be   substituted   for   Mallick   and   the   court   granted   the   motion   to 

substitute in order to "prevent frustration of the deterrence goals" of the statute under 

which he brought his claim.11  The court held that the right to disclosure, which Mallick 

sought to vindicate with his suit, was shared by all union members, that no law explicitly 

barred substitution, and that it would rely on the flexibility and discretion inherent in the 

Rules of Appellate Procedure to ensure the fair and efficient administration of justice.12 

Licht urges the court to apply the same flexibility and discretion here because the right 

to   proper   disposal   of   lands,   which   Dr.   Haber   sought   to   vindicate,   is   shared   by   all 

members of the public. 

                 DNR   responds   that   the   superior   court's   enumerated   rule   is   too   broad 

because "there is no indication in [Civil Rule 25], federal law, or the law of other states 

that   anyone   other   than   a   legal   representative   is   a   'proper   party'   to   substitute   for   a 

deceased party."        DNR acknowledges that Appellate Rule 516 provides a means for 

another party to involuntarily substitute a personal representative, but contends that "it 

         8       814 F.2d 674 (D.C. Cir. 1987). 

         9       Id . at 675. 

         10      Id . 

         11      Id . at 675-78. 

         12      Id at 678-79. 

                                                     -10-                                                6744

----------------------- Page 11-----------------------

does not provide for the substitution of unrelated third parties."              DNR explains that Dr. 

Haber was eligible to appeal its decision only because he was "personally affected by the 

. . . decision" so his interests in that decision were "personal, intangible interests that, like 

a   defamation   claim,   should   not   survive   the   appellant's   death."        Even   if   the   claim 

survives, DNR maintains that "[w]here there are no personalty or realty rights involved," 

the only parties that can be substituted into the appeal are the proper representatives of 

the estate. DNR relies on the Code of Civil Procedure, which provides that "[i]n the case 

of the death or disability of a party to an action, the court may . . . allow the action to be 

continued by or against that party's personal representatives or successor in interest,"13 

and   cases   from   other   jurisdictions   to   support   its   proposition   that   only   the   personal 

representative may be substituted. 

                 DNR attempts to distinguish Mallick ,14 the "one case where an unrelated 

third party was allowed to substitute for a deceased appellant," by arguing that the union 

members in Mallick could have joined or intervened in the action before Mallick's death 

and even if the case were dismissed, those third parties could subsequently have filed an 

identical claim against the union.15  Conversely, DNR asserts that because neither Brease 

nor Friends of Animals was eligible to appeal the Department's decision when it was 

issued, they cannot intervene in Dr. Haber's action, they could not file their own claim 

if this appeal were dismissed, and they cannot substitute as parties now. 

                 We believe the superior court applied the correct test:   The proper party to 

maintain appellate review after the death of an appellant is an individual who would be 

        13       AS 09.15.040. 

        14       814 F.2d 674 (D.C. Cir. 1987). 

        15      Id . at 676-79. 

                                                   -11-                                                 6744 

----------------------- Page 12-----------------------

entitled to prosecute or defend in the review proceeding below.                   This rule strikes the 

appropriate balance between the competing interests inherent in allowing the appeal to 

survive the death of the appellant and ensuring that any substitute into the action is a 

proper party that is similarly affected by the decision. 

                 2.      Brease may be a proper party for substitution. 

                 The superior court explained that Dr. Haber's appeal was "governed by 

11   AAC   02.010(a),   which   articulates   the   review   procedures   available   to   'a   person 

affected by a decision,' promulgated by the DNR.   This provision necessarily limits the 

definition   of a   'proper   party'   to   an   individual who, similar   to   Dr.   Haber,   has   been 

affected by the reclassification of land for which he sought review."   The superior court 

concluded that Licht "failed to provide . . . sufficient evidence to indicate that Brease or 

Friends of Animals, Inc. were affected by the DNR's decision."  The court noted that Dr. 

Haber had "commented extensively" throughout the DNR review process, relying on his 

own work as a wildlife biologist, and "[t]hus, when [he] appealed the DNR's decision, 

he   argued   that   his   own   participation   in   the   DNR's   administrative   process   had   been 

arbitrarily overlooked in violation of AS 38.05.035(e)(2) and AS 38.04.065(b)(4-6)." 

The superior court acknowledged that Licht's counsel indicated that "Brease may have 

commented on the amendment proposal, but did so late." It added that "[n]o information 

about the basis or substance of Brease's comments was submitted to this court."  Given 

the lack of evidence that Brease and Friends of Animals were "similarly affected by 

DNR's decision," the court concluded "they cannot be considered 'proper parties' for 


                 We disagree with the superior court's conclusion, however, because the 

court   in   fact   was   presented   with   information     regarding     the  substance   of   Brease's 

comments.       The comments themselves were part of the record.                For reasons unclear to 

us,   the   superior   court failed   to   notice   or   consider   these   comments.    Indeed,   at   oral 

                                                   -12-                                              6744

----------------------- Page 13-----------------------

argument,   DNR   conceded   that   the   documents   containing   the   substance   of   Brease's 

comments were in the record.           Moreover, DNR conceded at oral argument that if the 

legal test adopted by the superior court were correct - which we have concluded is the 

case - the documents   would   have to be reviewed to see if the parties are similarly 

situated.   Thus, we remand for the superior court to apply the test after considering all 

the evidence presented. 

        B.	     A Personal Representative May Not Transfer Or Assign Her Interest 

                In An Appeal. 

                In the superior court proceedings, Licht requested either direct substitution 

by   Brease   and   Friends   of   Animals,   or   for   the   court   to   employ   a   "two-step   process 

whereby Licht is substituted as personal representative and her right to continue the 

appeal   is   then   transferred   or   assigned   to   Barbara   Brease   and   Friends   of   Animals." 

Although there is no case law directly addressing this alleged right to transfer an appeal, 

Licht bases her argument on Alaska Civil Rule 25(c),16	 Alaska Appellate Rules 51617 and 

521,18 and general policy arguments. 

                The superior court noted that "[t]here is not a clear procedural avenue for 

transferring an appellant's interest in an appeal. Civil Rule of Procedure 25(c) addresses 

        16      Alaska Civil Rule 25(c) provides for transfer in civil cases originated in the 

superior court:    "[I]n case of any transfer of interest, the action may be continued by or 

against the original party, unless the court upon motion directs the person to whom the 

interest is transferred to be substituted in the action or joined with the original party." 

        17      Alaska Appellate Rule 516 states:  "The death of a party in a civil action or 

proceeding shall not affect any appeal taken or petition for review made, or the right to 

take an appeal or to seek review, except as limited by [time]." 

        18      Alaska Appellate Rule 521 provides: "These rules are designed to facilitate 

business and advance justice. They may be relaxed or dispensed with by the appellate 

courts where a strict adherence to them will work surprise or injustice." 

                                                  -13-	                                            6744

----------------------- Page 14-----------------------

transfers of interest at trial, but is of little help in addressing   Licht's motion."   The 

superior court made no other mention of Licht's asserted right to transfer her interest in 

this appeal, implicitly concluding that it could not be done under the procedural rules. 

                 Licht argues that the court abused its discretion in determining that because 

no procedure for transfer or assignment existed in the Alaska Appellate Rules, "it could 

not be done."      She contends that there is "no reason not to apply the transfer of interest 

procedure found in Civil Rule 25(c) to Dr. Haber's appeal and movants' request for 

substitution" and contrasts this public interest appeal to other cases, like tort claims, 

where   it   is   appropriate   to   prohibit   the   transfer   of   an   interest   in   order   to   "prevent 

unscrupulous people from purchasing causes of action and trafficking in lawsuits for pain 

and suffering."       Licht argues that policy clearly favors allowing transfer or assignment 

of   the   interest   in   this   suit   because   it   would   sustain   "(1)   the   right   to   appeal,   (2)   the 

preference in Appellate Rule 516 for the death of a party not to affect an appeal, (3) the 

instruction in Appellate Rule 521 to construe all appellate rules so as to advance justice, 

(4) the policy supporting judicial review of agency decisions and, especially those that 

implicate Article VIII, Section 10, of the Alaska Constitution, and (5) the public interest 

sought to be vindicated in Haber's appeal."                Therefore, Licht claims the court should 

relax its procedural rules to allow this two-step substitution and transfer to occur. 

                 DNR   attacks   Licht's   policy   arguments   and   maintains   that   "   'indirect' 

substitution contravenes the rules for direct substitution" and "would be nothing more 

than    an   end-run     around    the   rules  and    law   governing      direct   substitution."      The 

Department emphasizes that the law "specifically provides for limited standing in appeals 

from   DNR   decisions"   and   these   policies   ensure   that   only   persons   who   are   actually 

affected by an agency decision may challenge it and provide the agency an opportunity 

to correct any errors before judicial intervention occurs.                 DNR contends that because 

neither Brease nor Friends of Animals was eligible to appeal DNR's decision in this case, 

                                                    -14-                                               6744

----------------------- Page 15-----------------------

they should not be able to assume Licht's interest in the appeal now because "there is a 

strong     policy   against   allowing     unqualified     persons    to  participate    in  appeals    of 

administrative decisions."  DNR also warns of opening the floodgates to new litigation 

by creating a right to transfer an interest in an appeal.   Even though Licht argues that the 

Department would not be prejudiced by this substitution because Brease and Friends of 

Animals would be limited to pursuing the points on appeal already raised and briefed by 

Dr. Haber, such a limitation would be impossible to enforce and would "eviscerate all 

rules of standing and eligibility, and would allow parties without a personal stake in the 

matter to litigate issues and perhaps pursue agendas." 

                DNR argues that Licht mistakes whose right to appeal would be furthered 

by permitting indirect substitution.         The Department contends that because only Dr. 

Haber's right to appeal is at issue here, Licht must decide whether his interest in the 

appeal is sufficient to justify having the estate continue the appeal.  Because the personal 

representative may continue the appeal, prohibiting transfer does not offend Appellate 

Rule 516, it simply bars "unrelated, ineligible third parties" from continuing the appeal. 

Preventing transfer would not offend the policy in favor of judicial review of DNR 

decisions because Brease and many others had "a full and fair opportunity to participate 

in a public process leading to this decision and to appeal from the final decision.                 Any 

one of the almost 50 people who submitted   comments on the proposed amendment 

decision likely could have requested reconsideration and then appealed, but didn't . . . ." 

Thus, DNR maintains that Licht's policy arguments are misplaced and do not further the 

public interest. 

                There is no explicit procedure for transferring one's interest in an appeal. 

Although   Civil   Rule   25(c)   permits   transfer   of   an   interest   in   civil   proceedings,   as 

previously mentioned, this case involves an appeal and is governed by the Appellate 

Rules of Procedure.  Even in claims originating in the trial court, the court has discretion 

                                                  -15-                                             6744

----------------------- Page 16-----------------------

to allow transfer or order the parties to be joined instead.19  Licht requests something 

substantially different, however:   By allowing a personal representative to transfer or 

assign his or her right to appeal, the party would have discretion to choose who can 

continue the appeal, not the court.   Both sides largely rely on broad policy arguments to 

support their claims, but these policies can   be satisfied by the procedures for direct 

substitution.  DNR rightly emphasizes that allowing transfer in this case would create an 

end-run around the normal rules affecting substitution.   Thus, the superior court did not 

err in concluding Licht could not transfer or assign her right to appeal. 


              Because the superior court enumerated the correct legal test but overlooked 

the evidence of Brease's substantive comments in the record, we REMAND for the court 

to reapply the law given all the evidence presented.     We AFFIRM the superior court's 

ruling that a party may not transfer or assign its right to appeal. 

       19     See Alaska Civil Rule 25(c). 

                                           -16-                                        6744 

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