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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Community Action on Toxics v. Hartig (3/21/2014) sp-6879

Alaska Community Action on Toxics v. Hartig (3/21/2014) sp-6879

        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    


ALASKA COMMUNITY ACTION ON                           )  

TOXICS, ALASKA SURVIVAL, and                         )  

COOK INLETKEEPER,                                    )  

                                                     )    Supreme Court Nos. S-14823/14863/ 

               Appellants/Cross-Appellees,           )    14873  

        v.                                           )  

                                                     )    Superior Court No. 3PA-11-01604 CI  

LAWRENCE HARTIG,                                     )  

COMMISSIONER OF THE ALASKA                           )    O P I N I O N  


CONSERVATION (in his official                        )
   No. 6879 - March 21, 2014  


capacity), and ALASKA DEPARTMENT )

OF ENVIRONMENTAL                                     )

CONSERVATION, DIVISION OF                            )

ENVIRONMENTAL HEALTH, and                            )



                Appellees/Cross-Appellants.          )


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

                 Judicial District, Palmer, Kari Kristiansen, Judge.  

                 Appearances:  Paul  H.  Bratton,  Law  Offices  of  Paul  H.  


                 Bratton, Talkeetna, for Appellants/Cross-Appellees.  Laura  

                 Fox, Assistant Attorney General, Anchorage, and Michael C.  



                 Geraghty,  Attorney  General,  Juneau,  for  Appellees/Cross- 

                 Appellants Lawrence Hartig, Commissioner, and the Alaska  


                 Department  of  Environmental  Conservation,  Division  of  

                 Environmental  Health.    Brian  J.  Stibitz,  Reeves  Amodio  

                 LLC,   Anchorage,   for   Appellee/Cross-Appellant   Alaska  

                 Railroad Corporation.  

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

                   Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and   

                   Bolger, Justices.   

                   MAASSEN, Justice.  


                   This appeal involves the issuance of a permit by the State Department of  

Environmental Conservation, Division of Environmental Health (the Department), to the  

Alaska Railroad   Corporation for the use of herbicides to control vegetation along a  

railroad right-of-way.  Two public interest organizations, Alaska Community Action on  

Toxics (ACAT) and Alaska Survival, contend that the Department's issuance of the  

permit violated due process and the public notice requirement of AS 46.03.320; that the  


Department abused its discretion in accepting the permit application as complete and in  


denying standing and intervenor status to a third organization, Cook Inletkeeper; and that  


ACAT and Alaska Survival should not have been ordered to pay the costs of preparing  


the administrative record on appeal.  The Department and the Railroad cross-appeal on  

the issue of attorney's fees, contesting the superior court's conclusion that ACAT and  

Alaska Survival were exempt from fees under AS 09.60.010(c) as constitutional litigants.  

We conclude that the challenges to the permit are moot due to its expiration and changes  


in the governing regulatory scheme.  We affirm the agency's decisions regarding costs;  

the cross-appeals on attorney's fees are withdrawn by agreement.  


          A.       Facts 

                    Federal safety regulations require that the Alaska Railroad Corporation  


control the growth of vegetation along its tracks.   In 2009, when the Railroad applied  

for the permit involved in this case, it had not used herbicides to control the growth of  


          1        See 49 C.F.R.  213.37 (2012).  

                                                             -2-                                                          6879  

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

vegetation since 1983; it had used non-chemical methods such as "mechanized rail-based  


brush  cutters,  off-rail  hydro  axing,  [and]  wayside  manual  cutting,"  and  it  had  



experimented with other alternatives "such as steam, infrared, hot water and burning." 

In April 2009, however, the Federal Railroad Administration (FRA) expressed concern  

about the condition of the Railroad's tracks, especially vegetation growing between the  


rails that these alternative abatement methods had failed to control. The FRA cited "947  

defects and 74 violations for vegetation safety issues" since 1997, observed that track  


conditions "continue to get worse," and warned that "civil penalties may be assessed at  

the  maximum  level  of  $16,000  per  violation."    The  FRA  further  advised  that  other  


possible enforcement mechanisms included an emergency order that would remove non- 

compliant tracks from service.   


                     The Department has the statutory authority to "regulate and supervise the  


distribution, application, or use of pesticides and broadcast chemicals . . . by a public  


                                                                                                               A then-existing  

agency under the jurisdiction of the state" or to prohibit their use. 

regulation prohibited government entities from applying pesticides on state rights-of-way  


                                                     The Railroad accordingly submitted an application to  

without first obtaining a permit. 


the Department in May 2009, seeking a permit for the chemical treatment of its right-of- 


way.  It sought to apply an herbicide called AquaMaster and a surfactant called Agri- 

           2         The Railroad had applied for an herbicide permit in June 2006, but the   

Department denied the request.  

          3          See AS 46.03.320.  

           4         18 Alaska Administrative Code (AAC) 90.500 (repealed March 7, 2013).  

"Pesticides," as broadly defined, include, among other things, insecticides, fungicides,  


and herbicides.  

                                                                  -3-                                                           6879

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


Dex  to various sections of track in the 90 miles between Seward and Indian, as well as  


the spur line to Whittier and 30 acres of land in its yard in Seward.  The chemicals were  


to be broadcast, with the spray confined to the eight-foot width of the track bed; the total  


area treated was to be 58.8 acres.  The proposal also allowed for a 100-foot buffer zone  


around all bodies of water.  The Railroad sought to begin applying the chemicals in June  


                    Public notice and comment occurred from July 16 to September 15, 2009.  


The Department then granted the Railroad's application, and on April 30, 2010, it issued  


Permit to Apply Pesticides #10-SOL-01, which was effective for two years commencing  

June 9, 2010.  The Department at the same time issued a 49-page response to concerns  


raised by the public and an 18-page Decision Document explaining the basis for its grant  


of the permit.  The decision concluded in part that "[the Railroad] presented a complete  


permit application to [the Department]" and that "existing scientific evidence and other  

available  information  demonstrate  that  there  will  be  no  unreasonable  adverse  effect  

expected from the proposed activity."  

          B.        Proceedings  

                    1.        Request for adjudicatory hearing and stay   

                    On June 1, 2010, ACAT, Alaska Survival, and Cook Inletkeeper, along  


with several other organizations that are no longer involved in the case, requested an  


adjudicatory hearing.  The groups argued that issuance of the permit violated the Alaska  

Constitution  as  well  as  several  statutes  and  regulations;  that  the  Railroad's  permit  

application was incomplete because it failed to provide basic and critical information;  



                    A surfactant is a chemical solution that is mixed with the herbicide and  

intended to improve its dispersal and application.  According to the Department, the  


surfactant Agri-Dex was "approved for aquatic use by Washington State" and was "not  

expected to be [a source] of water contamination."  

                                                              -4-                                                           6879  

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

that grant of the permit would adversely affect environmental and human health; and that  

the  Department's  decision  to  grant  the  permit  was  arbitrary,  especially  in  light  of  

available alternatives to the use of herbicides.  Citing their due process rights and the  

significant material facts in dispute, the groups also asked that operations under the  

permit be stayed while they exhausted their administrative remedies.  

                    On June 30, 2010, Commissioner Larry Hartig denied the requested stay  

for the most part but granted it with respect to seven milepost locations alleged to be  


within  200  feet  of  groundwater  wells  that  the  Railroad's  application  had  failed  to  


identify.  The groups timely appealed the Commissioner's decision to the superior court  


and filed an emergency motion for a temporary restraining order.  The superior court  


affirmed  the  Commissioner's  decision,  finding  substantial  evidence  to  support  his  

findings and affirming his assessment that the groups were unlikely to prevail on the  


merits.  But to ensure that the groups had the opportunity to appeal to this court, the  

superior court stayed the herbicide operation until July 15, 2010.   


                   This court denied the groups' petition for review, and the Railroad applied  

the chemicals in compliance with its permit.   


                   In  August  2010,  the  Department  addressed  the  groups'  request  for  an  


adjudicatory hearing, granting it in part and denying it in part.  Although the Department  


accepted that ACAT and Alaska Survival had standing, it found that Cook Inletkeeper,  

along with other groups not involved in this appeal, failed to meet "the minimal burden  


of explaining how their interests would be affected by the decision" as required by 18  


AAC  15.200(a)(3)(A).    The  Department  then  ordered  two  separate  proceedings:    a  


hearing on the existing record under 18 AAC 15.220(b)(3) and an adjudicatory hearing  

under 18 AAC 15.220(b)(1).  The hearing on the record was intended to address the  

primarily legal issues of (1) whether the Department "reasonably exercised its discretion"  

in  accepting  the  Railroad's  application  as  complete;  (2)  whether  the  Railroad  was  

                                                             -5-                                                       6879

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

required to list the water bodies within 200 feet of the proposed treatment area; and (3)                               

whether the Department applied statutes and regulations "in an unconstitutional manner"     

during the permitting process. The adjudicatory hearing, an evidentiary proceeding, was        

intended to decide the factual issues of whether herbicide application "in proximity to                                                                             

any wells" and "in compliance with the permit" posed unreasonable risks to humans and                                                                            

the environment.  

                              Cook  Inletkeeper,  along  with  the  other  organizations  denied  standing,  


requested reconsideration of the decision or, in the alternative, permission to intervene  

under 18 AAC 15.225.  The presiding administrative law judge denied both requests,  

finding that the requesting groups failed to establish standing and failed to show that  

ACAT and Alaska Survival would not adequately represent their interests.  

                              2.            Administrative record costs  


                              In October 2010, the Department sought payment from ACAT and Alaska  


Survival  in  the  amount  of  $5,443.95,  the  total  cost  of  producing  and  certifying  the  

administrative  record  in  preparation  for  the  hearings.    ACAT  and  Alaska  Survival  

responded with a request for a waiver, relying on their non-profit status and lack of  

economic incentive to litigate.  The Department then asked for a variety of financial  

documents -  tax returns, balance sheets, cash flow statements, operating statements,  


annual budgets, and latest annual reports - that could support the groups' claims of  


financial  need.                          Arguing  that  these  requests  could  prove  to  be  "unnecessarily  

burdensome,"  ACAT made what was effectively a request under the Public Records  

Act6 that the Department produce records showing how it had handled other waiver  

requests from comparable organizations.  The Department produced these records in  


November 2010, and a month later ACAT and Alaska Survival provided the Department  


               6              See AS 40.25.100 - .350; 2 AAC 96.  

                                                                                             -6-                                                                                            6879  

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

with federal tax returns and mission statements.   


                    In January 2011, the Department denied ACAT's and Alaska Survival's  


waiver request because it found that both groups had substantial funds at their disposal  


and were financially capable of paying the cost of the record. The Department explained  


that  compiling  the  record  required  a  significant  investment  of  time  from  several  

individuals;  it  conceded,  however,  that  its  use  of  outside  contractors  had  made  the  


compilation process less streamlined than it could have been, and it therefore reduced the  

requested  payment  from  $5,443.95  to  $2,821.28,  or  $1,410.64  for  each  of  the  two  


                    ACAT and Alaska Survival moved to set aside these costs, arguing that  


they were excessive, violated the groups' due process rights, and violated the governing  


regulations.  An administrative law judge denied the motion in March 2011, deeming the  

costs proper under 18 AAC 15.237.  ACAT and Alaska Survival filed a motion for  


reconsideration,  which  the  administrative  law  judge  largely  denied  except  to  grant  

another  reduction  due  to  a  clerical  error,  making  the  total  due  $2,335.88.7                                    The  

administrative  law  judge  further  specified  that,  instead  of  splitting  the  cost  equally  


between the two groups, ACAT - with its greater financial resources - should be  

responsible for 75 percent of it.  


                    3.        Voluntary dismissal of the adjudicatory hearing  

                    In February 2011, ACAT and Alaska Survival moved to dismiss without  


prejudice the claims that were to be addressed at the adjudicatory hearing - the claims  


alleging that the  herbicides would have adverse effects on humans and the environment.  

          7         In  its  brief  on  appeal,  the  Department  notes  an  arithmetical  mistake  of  


several hundred dollars in  the administrative law judge's calculation of the reduced  


amount - a mistake in favor of ACAT and Alaska Survival - but the Department does  

not request any relief on that basis.  

                                                              -7-                                                           6879  

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

With another round of spraying set to begin in April 2011, the groups elected to bypass  


the  fact-finding  adjudicatory  step  in  favor  of  getting  a  final  judgment  that  could  be  


appealed to the superior court in time to prevent the new application of herbicides.  Both  

the Department and the Railroad opposed the motion, contending that the dismissal of  


the claims should be with prejudice.  The administrative law judge granted the request  

to dismiss without prejudice but explained that, while the groups were not precluded  


from raising the factual issues in proceedings on future permits, the dismissal barred  

them from raising the issues again in challenging the permit at issue here.  

                   4.	       Administrative  and  superior  court  decisions  regarding  the  

                             hearing on the record  


                   The administrative law judge addressed the issues raised in the hearing on  


the record in  a written decision  dated April 22, 2011.   He upheld  the  Department's  


issuance of the permit, determining that (1) ACAT and Alaska Survival were not denied  


due process; (2) they were not denied their constitutional rights of common use of natural  

              8                                                   9  

                and of free access to public waters;  and (3) the Department did not abuse its  


discretion in treating the Railroad's application as functionally complete despite some  


deficiencies.  The Commissioner adopted the administrative law judge's decision as the  

final decision of the Department.  


                   The superior court affirmed the Department's decision on June 29, 2012.  

          8        The  Alaska  Constitution,   article  VIII,   section   3,   provides:    "Wherever  

occurring in their natural state, fish, wildlife, and waters are reserved to the people for  

common use."  

          9        The Alaska Constitution, article VIII, section 14, provides:  "Free access  

to the navigable or public waters of the State, as defined by the legislature, shall not be  


denied any citizen of the United States or resident of the State, except that the legislature  

may by general law regulate and limit such access for other beneficial uses or public  


                                                             -8-	                                                     6879

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

It also affirmed the administrative law judge's earlier decision regarding the costs of the  

administrative record, deciding that the Department had not acted arbitrarily in compiling  


the  record;  had  not  violated  ACAT's  and  Alaska  Survival's  due  process  rights  by  

demanding that they pay the costs; and did not err in compiling the record under its  

regulations instead of under the Public Records Act, AS 40.25.122.   


                    The Department and the Railroad then moved for attorney's fees.   The  

superior court denied the motion; it reasoned that ACAT and Alaska Survival were  

exempt  from  attorney's  fees  under  AS  09.60.010(c)  because  their  appeal  raised  


constitutional issues, it was not frivolous, and they lacked an economic incentive to  

litigate.    The  court  also  clarified  the  Department's  entitlement  to  the  record  costs,  

ordering ACAT and Alaska Survival to pay their respective shares.    


                   ACAT, Alaska Survival, and Cook Inletkeeper appealed to this court on the  


issues of the permit's validity and the record costs.  The Department and the Railroad  

cross-appealed on the issue of attorney's fees.  


                    "We  resolve  issues  of  standing  and  mootness  using  our  independent  


                                                                                                                When the  

judgment because, as matters of judicial policy, these are questions of law." 


superior court functions as an intermediate court of appeal in an administrative case, we  


directly review the merits of the administrative decision.                              "We review an agency's  

application  of  its  own  regulations  for  whether  the  agency's  decision  was  'arbitrary,  

          10       Ahtna  Tene  Nene  v.  State,  Dep't  of  Fish   &  Game, 288                        P.3d  452,  457  

(Alaska 2012) (quoting             Ulmer v. Alaska Rest. & Beverage Ass'n (ARBA)                         , 33 P.3d 773,  

776 (Alaska 2001)) (internal quotation marks omitted).  

          11       McKitrick v. State, Pub. Emp. Ret. Sys ., 284 P.3d 832, 837 (Alaska 2012).  

                                                             -9-                                                         6879  

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


unreasonable, or an abuse of discretion.' "                              This requires us to give deference to an  

administrative determination "if it has a reasonable basis in law and fact."13  


           A.        The Issues On Appeal Are Largely Moot.  

                     Except   for   issues   related   to   attorney's   fees   and   the   costs   of   the  


administrative record, the claims on appeal are moot.                                   "We generally will not consider  



questions 'where events have rendered the legal issue moot.' "                                       A claim is moot if there  

                                                   16                                                                              17 


is no "present, live controversy"                      or if it is impossible to provide the relief sought.                            In  

           12        Alaska Exch. Carriers Ass'n, Inc. v. Regulatory Comm'n of Alaska                                             , 202  

P.3d 458, 460-61 (Alaska 2009) (quoting Griffiths v. Andy's Body & Frame, Inc., 165  

P.3d 619, 623 (Alaska 2007)).  

           13        Storrs v. State Med. Bd., 664 P.2d 547, 554 (Alaska 1983).  

           14        In conjunction with its request for the rescission of the permit, ACAT and  


Alaska Survival argue the following issues on appeal:  the Commissioner's decision to  


affirm the permit despite failing to disclose the proximity of spray areas to water denied  


due process under article I, section 7 of the Alaska Constitution and violated the prior- 


notice safeguards of article VIII, section 10; the Commissioner abused his discretion by  


affirming the agency's issuance of the permit despite the failure to locate water wells; the  


Commissioner abused his discretion by affirming the agency's issuance of the permit on  


grounds that it was limited to areas not open to public access, as parts of the Railroad's  


right-of-way are public places for which posted notice is required; the Commissioner's  


denial of Cook Inletkeeper's standing violated its right to petition for review under article  


I, sections 1, 6, and 7 of the Alaska Constitution; and the Commissioner abused his  


discretion by denying Cook Inletkeeper standing to pursue the appeal.  

           15         Copeland  v.  Ballard,  210  P.3d  1197,  1201-02  (Alaska  2009)  (quoting  

Kodiak Seafood Processors Ass'n v. State , 900 P.2d 1191, 1195 (Alaska 1995)).  



                      Ulmer v. Alaska Rest. & Beverage Ass'n, 33 P.3d 773, 776 (Alaska 2001)  

(quoting Gerstein v. Axtell, 960 P.2d 599, 601 (Alaska 1998)).  

           17        Id.  

                                                                  -10-                                                            6879

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

State, Department of Natural Resources v. Greenpeace, Inc ., we noted that where the  


underlying temporary water use permit had expired, the disputes "concerning that permit  


are consequently technically moot."                    And in Copeland v. Ballard we observed:  

                   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.  


                   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  





                   The relief ACAT and Alaska Survival seek on this appeal is the rescission  

of the Railroad's permit.  But that permit, effective in June 2010, had a two-year term  

and expired on June 9, 2012.  Because the herbicide was applied during the life of the  

permit, which has now expired, any rescission that we grant would have no practical  

effect.  Under our case law, the claims are technically moot.  


         B.	       This Case Does Not Fall Under The Public Interest Exception To The  

                   Mootness Doctrine.   

                   Technical mootness notwithstanding, "we may choose to address certain  

issues if they fall under the public interest exception to the mootness doctrine."20                                  In  

determining whether the public interest exception applies, we consider 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  

         18        96 P.3d 1056, 1062 (Alaska 2004).  

         19        210 P.3d at 1202 (quoting Kodiak Seafood Processors , 900 P.2d at 1194-95  

(Alaska 1995)) (citing State, Dep't of Natural Res. v. Greenpeace, Inc., 96 P.3d at 1068  


and Kodiak Seafood Processors , 900 P.2d at 1196).  

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

                                                          -11-	                                                   6879

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


overriding the mootness doctrine."                    No single factor is dispositive, because "each is an  


aspect of the question of whether the public interest dictates that a court review a moot  


issue.  Ultimately, the determination of whether to review a moot question is left to the  

discretion of the court."22  

                   In  reviewing  the  first  factor  -  whether  the  issues  are  capable  of  

repetition - "we have refused to apply the public interest exception to unusual factual  


circumstances that were unlikely to repeat themselves or situations where the applicable  


statute or regulation was no longer in force."                        The Department argues that this factor  

is dispositive here; the circumstances that prompted the litigation are unlikely to be  


repeated because the regulations governing the application of herbicides were recently  

revised.  In March 2013 the Department repealed and readopted, with narrower language,  


                                                                               The Department also adopted an  

the regulation that requires the permit at issue here.  


entirely new regulation, 18 AAC 90.640 ("Pesticide applications on state land"), also  


effective in March 2013, that authorizes public entities such as the Railroad to bypass the  

permitting  process  if  they  instead  adopt  an  "integrated  pest  management  plan"  that  


                                                                                                            The Railroad  

satisfies certain requirements of publication, notice, and record-keeping. 

has  adopted  such  a  plan,  and  its  future  herbicide  use  therefore  falls  under  the  new  

          21       Id.   

          22       Id. (internal citation omitted).  

          23       Ahtna  Tene  Nene  v.  State,  Dep't  of  Fish  &  Game ,  288  P.3d  452,  459  


(Alaska 2012) (quoting Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532, 535  


(Alaska 2005)).  

          24       See 18 AAC 90.500 (effective March 7, 2013) (replacing broad requirement  


of  permit  with  requirement  of  permit  only  when  project  "affects  property  owned  

separately by two or more persons").  

          25        18 AAC 90.640(a).  

                                                            -12-                                                       6879

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


regulation rather than the permitting process.                        


                    ACAT and Alaska Survival note that the permitting regulations still exist  

and  that,  despite  the  Railroad's  integrated  pest  management  plan,  there  are  several  

possible scenarios in which the Railroad could still be required to seek a permit before  



applying herbicides.              ACAT and Alaska Survival accordingly conclude that this case  

meets the first factor because not only is the relevant regulation still in place, there could  

still be a future controversy involving its application to a Railroad herbicide permit.  


                    But those theoretical future uses of the permitting process, as well as being  

hypothetical, would not likely present the same factual and legal context as this case.  


The Railroad's 2010 permit has expired, the Railroad has published an integrated pest  


management plan that will govern its future use of herbicides on the track right-of-way,  


the Railroad will therefore not need a permit if it chooses to conduct the same operation  


again, and a future dispute over that operation will be controlled by the new regulation,  


18 AAC 90.640.  Thus, the particular factual and legal circumstances of this case are  

unlikely to be repeated, and ACAT and Alaska Survival fail to satisfy the first factor for  

the public interest exception to the mootness doctrine.  


                    But ACAT and Alaska Survival do satisfy the second factor - whether  the  

issue could repeatedly evade review.  We noted in  Copeland that we had "previously  


analyzed the second prong . . . by comparing the time it takes to bring the appeal with the  

          26        See      Alaska         Railroad          Corporation,            Vegetation           Management,  

ement/tabid/419/Default.aspx (last visited Feb. 27, 2014).  

          27        These  scenarios,  according  to  ACAT  and  Alaska  Survival,  include  "1)  

application of herbicides by state agencies to private lands owned separately by two or  


more persons; 18 AAC 90.500, 2) projects where herbicides are allowed to be used [on]  


the waters of the state; 18 AAC 90.505(1), and, 3) projects where herbicides are aerially  

sprayed; 18 AAC 90.505(2)."  

                                                             -13-                                                       6879

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


time it takes for the appeal to become moot."                                The permit at issue here was valid for  


two years, and full judicial review in that time was unlikely. The Department argues that  


because the regulations have since been revised to allow for five-year permit terms,29  


"future permitting disputes are unlikely to evade review."  We observed in Copeland,  


however, that the lengthy appeal in that case "demonstrate[d] 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."30  Such determinations are necessarily  


case specific, but the matter before us has already taken over three years, and it likely  


would have taken longer had ACAT and Alaska Survival not voluntarily dismissed their  


fact-based claims at the administrative level in order to expedite judicial review.  It is  


certainly possible that a future challenge to a pesticide permit - even a permit valid for  


five years - could evade appellate review.  Accordingly, the second factor of the public  


interest exception to the mootness doctrine is satisfied.  


                     However, ACAT and Alaska Survival fail to meet the third factor, which  

assesses whether the issues presented are important enough to the public interest to  


override the mootness doctrine.  We stated in Copeland that "[w]e have found this prong  


met when the case involved 'concepts of fairness underlying the right to procedural due  


process,' the preservation of clean water, or 'situations, otherwise moot, where the legal  


power of public officials was in question.' "                                We held that the issues presented in  

           28        Copeland v. Ballard, 210 P.3d 1197, 1202 (Alaska 2009).  

           29        See 18 AAC 90.530(c) ("A permit is not valid for more than five years after            

its effective date.").  

           30        Copeland, 210 P.3d at 1202.  

           31        Id. at 1203 (internal footnotes omitted) (quoting State, Dep't of Natural  

Res. v. Greenpeace, Inc., 96 P.3d 1056,1062-63 (Alaska 2004); Fairbanks Fire Fighters  



                                                                 -14-                                                            6879

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



Copeland satisfied two of these requirements.                              First, the case involved plans to protect  

the Alaskan environment from oil spills, "a matter of utmost importance to the public  


interest" because of "the potentially devastating effects . . . on the ecology and economy  




of the state."         Second, since the case involved a due process challenge to administrative  


procedures, we reasoned that "given the need for transparency in governance and access  

                                                                                                                                 34   In  


to administrative records, this also is a matter of importance to the public interest." 

Copeland,  ultimately,  we  considered  the  due  process  claims  despite  their  technical  




                     ACAT and Alaska Survival argue that the result in this case is governed by  

Copeland, because this case, too, presents both a claim for the "preservation of clean  



water" and a question of "fairness in procedural due process" in agency procedures. 


But we cannot disassociate our view of the third factor in this case from our analysis of  


the first, in which we concluded that the factual scenario before us is unlikely to be  


repeated given the changes in the regulatory structure.   The public interest does not  

require  us  to  give  an  advisory  opinion  on  the  permitting  process  that  governed  the  


Railroad's past application of herbicides, given the unlikelihood that the same process  


will govern it next time.  This case is less like Copeland than it is like another recent case  


in which we analyzed the mootness doctrine, Ahtna Tene Nene v. State, Department of  

           31        (...continued)

Ass'n, Local 1324 v. City of Fairbanks , 48 P.3d 1165, 1169 (Alaska 2002)). 

           32        Id.  

           33        Id.  

           34        Id.  

           35        Id.  

           36        See  id.  

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Fish & Game .  

                     In Ahtna , we declined to apply the public interest exception to the mootness   

doctrine  where  the  issues  were  "certainly  germane  to  the  public  interest"  but  were  


                                                         The appellants in Ahtna challenged a permit system  

"simply not ripe for adjudication."  


instituted by the Alaska Board of Game in 2009, regulating hunts for caribou and bull  

                                             39   The regulations were challenged in March 2009, and in  


moose in the Nelchina basin.  

October 2010 the Board of Game amended its permit system.40  The amended regulations  


went  into  effect  in  2011,  after  the  case  reached  this  court on  appeal  but  before  we  



decided it.          We found that the appeal was moot because the challenged regulation was  


                                   The appellants argued that the public interest exception should  

no longer in effect.                                                                             

apply, as a decision in the case would help settle a "source of ongoing litigation between  


the parties" regarding the "legitimacy of the community hunt enabling statute . . . and  



related  regulations  that  provide  different  hunting  opportunities."                                       In  assessing  this  


argument, we noted that it "ignore[d] the relief initially sought in this appeal and instead  


ma[d]e         broad       requests         for     premature          declaratory          judgments           regarding          the  


constitutionality of the community harvest system as a whole unrelated to any factual  

           37        288 P.3d 452, 459 (Alaska 2012).

           38        Id. at 460.

           39        Id. at 455.

           40        Id. at 456.  

           41        Id. at 457.  

           42        Id. at 458.  

           43        Id. at 459.  

                                                                 -16-                                                           6879

----------------------- Page 17-----------------------


dispute."          We  determined,  therefore,  that  any  opinion  on  the  validity  of  the  2009  

regulations  would  be  irrelevant  to  the  amended  scheme  and  would  be  "merely  



                    Here, ACAT and Alaska Survival seek relief from an expired permit  that  

the Railroad is unlikely to apply for again through the same regulatory process at any  



time in the foreseeable future.  In Ahtna , the challenged regulation was amended and no  



longer applied;          ACAT and Alaska Survival differentiate this case by pointing out that  


the permitting process is still in place and could be the source of future controversy  


appropriate for our review.  But again, we cannot ignore the factual setting in which we  

have  been  asked  to  review  the  regulations.    Indeed,  much  of  ACAT's  and  Alaska  

Survival's  briefing  on  the  public  interest  exception  airs  their  concerns  about  the  

Railroad's new integrated pest management plan.  They complain, for example, that the  

Railroad's new plan may not meet the "least possible hazard" standards of the new  

regulation;  that  the  Railroad  has  not  detailed  how  it  will  protect  water  and  the  

environment under the new regime; that the Railroad's plan may still be rejected as  

failing to meet the new regulatory requirements; and that, in general, there could be a  


number of flaws with the new regulations and their studied omission of public comment  

and permits for the use of pesticides.  


                    We conclude that ACAT and Alaska Survival are making for the same kind  


of  "broad requests for premature declaratory judgments . . . unrelated to any factual  

          44        Id.   

          45        Id. at 460.  

          46        Id. at 458.  

                                                             -17-                                                           6879  

----------------------- Page 18-----------------------



dispute"         that  Ahtna  sought to  avoid.              While the water quality  and  procedural  due  



process concerns raised in this appeal are "certainly germane to the public interest," 

they  are  based  in  the  permitting  process  that  has  been  rendered  irrelevant  to  future  


disputes by the Railroad's election to adopt an integrated pest management plan pursuant  


to the new regulation; possible issues with the new regulation are "simply not ripe for  

                                      49  Issues that would require us to issue an advisory opinion on  

adjudication in this case."                                                                     

facts and law that are now largely irrelevant are simply not important enough to the  

public interest to justify overriding the mootness doctrine.  

                    Having weighed the three factors, we decline to apply the public interest  

exception to the mootness doctrine in this case.  We therefore do not reach any of the  

challenges to the expired permit itself.50  

           C.	       The  Agency's  Assessment  Of  Record  Costs  Was  Not  Arbitrary,  

                     Unreasonable, Or An Abuse Of Discretion.  

                     The remaining issues involve the costs of preparing the record for the  

 administrative appeal, which were assessed against ACAT and Alaska Survival.  The  


 groups present three arguments in support of their claim that the costs should have been  

 waived  in  their  entirety:    (1)  the  Department  compiled  the  record  arbitrarily  and  


 inefficiently; (2)  the  denial of a  waiver  based  on  the  groups'  public  interest  status  

          47	       See id. at 459.  

          48	       See id. at 460.  

          49	       See id.  

          50        At oral argument, both the Department and the Railroad agreed that their             

cross-appeals  on  the  issue   of   attorney's  fees  could  be  considered  withdrawn  if  we  

decided  that  the  other  issues  on  appeal  (except  for  those  involving  the  cost  of  the  

administrative record) were moot. Given our decision on mootness, therefore, we do not  


need to address the cross-appeals.  

                                                             -18-	                                                       6879

----------------------- Page 19-----------------------

 violated  their  right  to  equal  protection  under  article  I,  section  1  of  the  Alaska  

 Constitution; and (3) the denial of the waiver violated due process.  We affirm the  

 agency decision.  


                    1.	      It was not an abuse of agency discretion to require ACAT and  


                             Alaska Survival to pay the administrative record costs.  

                    ACAT and Alaska Survival first claim that the Department abused its  

 discretion "by arbitrarily compiling the record."  Under the Public Records Act, the  



 issue is governed by the agency's own regulations.                        The pertinent regulation requires  

 that Department staff prepare the record, to  

                    include        the      permit       application          and      supporting  

                    documentation,   written   and   electronic   correspondence  

                    concerning  the  proposed  action,  additional  information  

                    submitted   by   the   applicant   to   the   department,   public  

                    comments and information submitted to the department on  

                    the  proposed  decision,  tapes  or  transcripts  of  any  public  

                    hearing, the department's decisional documents, and other  

                    materials that the department considered or relied upon in  


                    making the department's decision.  

 The regulations further provide that a person may obtain a copy of the record "at the  


 requesting party's expense" and that "[t]he requestor shall pay the cost of gathering and  


 certifying the agency decision record."                     Finally, the regulations provide that "[t]he  


 department will waive all or part of the cost of gathering and certifying the record if the  

         51        AS 40.25.122 ("[W]ith respect to a person involved in litigation, the records  

sought shall be disclosed in accordance with the rules of procedure applicable in a court  


or an administrative adjudication.  In this section, 'involved in litigation' means a party  


to litigation or representing a party to litigation, including obtaining public records for  


the party.").  

         52        18 AAC 15.237(a).  

         53        18 AAC 15.237(b) and (c).  

                                                          -19-	                                                   6879

----------------------- Page 20-----------------------

 requestor  demonstrates,  to  the  department's  satisfaction,  an  inability  to  pay  those  


                 We review the Department's application of these regulations to determine  


 whether its demand for costs in this case was arbitrary, unreasonable, or an abuse of  



                       ACAT and Alaska Survival claim the Commissioner abused his discretion   

 in several ways. First, they allege that the Department failed to maintain a "discreet and                

 identifiable agency record" and that they should not be held "responsible for the costs     

 of constructing the record after the fact."  They claim that "[i]t was the agency's duty  


  . . . to see that correspondence dealing with the permit was sequestered into a separate  


 file as part of the permit issuance record."  But they cite no legal basis for such a duty  

 (other than the constitutional provisions we discuss below).  The regulations explicitly  

                                   56                       57                                                                              58 

 refer to "gathering,"                 "certifying,"           and "prepar[ing] the agency decision record,"  

 implying  that  the  necessary  materials  may  be  found  in  diverse  places  and  must  be  

 collected and organized for purposes of appellate review, a process that is likely to  


 involve time and expense on the part of the agency.  We see no basis on this record for  


 us to impose a particular record-keeping plan on an executive agency.  


                       ACAT and Alaska Survival also argue that the record compilation was  

 inefficient and could have been more streamlined.  They cite the relatively high rates  


 charged by an independent consultant and high-level agency employees for retrieving  

           54         18 AAC 15.237(c).  

           55         See  Alaska Exch. Carriers Ass'n, Inc. v. Regulatory Comm'n of Alaska , 202  

P.3d 458, 460-61 (Alaska 2009).  

           56         See  18 AAC 15.237(c).  

           57         See id.  

           58         See  18 AAC 15.237(a).  

                                                                    -20-                                                               6879

----------------------- Page 21-----------------------


record materials and emails, asserting that clerical staff could have performed the task  

more  cheaply;  they  also  express  doubt  that  all  of  the  "emails  scattered  throughout  

various contractor and employee inboxes could have actually been considered [in] the  

decision-making  process"  and  assert  that  they  were  thus  required  to  pay  for  the  


collection and copying of irrelevant materials. But whatever merit there may be in these  

arguments, the Department conceded that it "may not have been as streamlined in its  

collection efforts . . . as it would be for future efforts," and it voluntarily reduced the  


assessed cost "by the amount commensurate with that part of the process."  This resulted  


in a near halving of the cost, from $5,443.95 to $2,821.28, an amount the administrative  

law judge found was "not excessive given the complexity of the issues related to this  

pesticide permit."  On the groups' motion to reconsider, the administrative law judge  


reduced  the  amount  further  (because  of  an  arithmetical  error)  to  $2,335.88,  to  be  


allocated between ACAT and Alaska Survival.  He also found that the Department's  


initial calculation had been based on "the actual cost of collecting the documents as it  


was required to do by regulation," and that while the process may have been inefficient,  

it was not arbitrary.  


                    Given  these  findings,  and  given  the  significant  reduction  that  the  

Department voluntarily made to reflect its admitted inefficiencies, we cannot say that  


the Department acted unreasonably or arbitrarily or that it abused its discretion in its  

assessment of the costs of the record.  

                    2.        The appellants' constitutional claims are waived.  


                    ACAT and Alaska Survival also assert that the assessment of record costs  


violates  their  equal  protection  rights  because  the Public  Records  Act  and  18  AAC  

                                                            -21-                                                        6879

----------------------- Page 22-----------------------


  15.237(c) differentiate between litigants and other requestors.                              They did not raise this  


 argument below.  The administrative law judge addressed equal protection arguments  

 raised  in  two  other  contexts:    one  involving  the  groups'  public  records  request  for  


 additional information and one alleging that the Department "treats litigants differently  


 based on the issues raised in the hearing request."  These are different arguments than  


 the one alleged here. Generally, we will not consider arguments on appeal that were not  

                     60  Because ACAT's and Alaska Survival's equal protection argument was  

 raised below.                                                                                              

 not raised below, we decline to address it.  


                     ACAT  and  Alaska  Survival  also  make  a  perfunctory  due  process  


 argument:  "It is a denial of due process to expect the citizen's group to pay the agency  


 for performing work after the fact that was already part of the agency's responsibility  


 as  part  of  its  delegated  decision-making  process."    They  provide  no  further  legal  


 analysis.  "Points that are inadequately briefed are considered waived."                                      The failure  

 to analyze this constitutional issue amounts to its abandonment.  

          59        For example, under the Public Records Act someone who requests copies  

of records need not pay the personnel costs involved in "complet[ing] the search and  

copying tasks" until they exceed five person-hours per calendar month, AS 40.25.110(c);  

but no such exemption for the first five person-hours applies to a request made by a party  


to an administrative appeal in the Department, see  18 AAC 15.237(b), (c).  

          60        Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1255 n.61 (Alaska 2001) ("This  


court will not consider arguments on appeal that were not raised below unless the new  

issues either establish plain error or do not depend on new or controverted facts, are  


closely related to the appellant's arguments at trial, and could have been gleaned from  


the pleadings.").  

          61        Great Divide Ins. Co. v. Carpenter ex rel. Reed, 79 P.3d 599, 608 n.10  

(Alaska 2003) (citing State v. O'Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska  

1980) ("When, in the argument portion of a brief, a major point has been given no more  


than  cursory  statement,  we  will  not  consider  it  further.    Failure  to  argue  a  point  

constitutes an abandonment of it.")).  

                                                             -22-                                                       6879

----------------------- Page 23-----------------------


             The appeal is DISMISSED as to those issues that are moot (the direct  

challenges to the permit).  We otherwise AFFIRM the decision of the superior court.  

                                        -23-                                   6879

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