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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  

        corrections@appellate.courts.state.ak.us.  



                 THE SUPREME COURT OF THE STATE OF ALASKA  



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  

DEPARTMENT OF ENVIRONMENTAL)
  

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

                                             

capacity), and ALASKA DEPARTMENT )
  

OF ENVIRONMENTAL                                     )
  

CONSERVATION, DIVISION OF                            )
  

ENVIRONMENTAL HEALTH, and                            )
  

ALASKA RAILROAD CORPORATION ,)
  

                                                     )
 

                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.  



I.        INTRODUCTION  



                   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.  



II.       FACTS AND PROCEEDINGS  



          A.       Facts 



                    Federal safety regulations require that the Alaska Railroad Corporation  



                                                                       1  

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  



                                                                                                                                       2  

                                                                         

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  



                                                                                                           3  

                                                                                                               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  



                                                  4  

                                                     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-----------------------

      5 

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  



2010.  



                    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;  



          5  

                                                                                 

                    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  



organizations.   



                    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  

resources                                                                       



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  

purposes."   



                                                             -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.  



III.      STANDARDS OF REVIEW  



                    "We  resolve  issues  of  standing  and  mootness  using  our  independent  



                                                                                                            10 

                                                                                                                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  



                                                                                    11  

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-----------------------

                                                                     12  

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  



IV.        DISCUSSION  



           A.        The Issues On Appeal Are Largely Moot.  



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



                                                                                    14  

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



                                                                                                  15  

                                                                                                          

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)).  



           16  

                                                                                        

                      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  



                                                   18  

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  

                                                                                       

                                [19] 

                   opinion."  



                                                                                                    

                   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-----------------------

                                                  21  

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  



                                                                  23  

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,  



                                                                           24  

                                                                               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  



                                                                                                        25 

                                                                                                            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-----------------------

                                                                  26  

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  



                              27  

                                                                                               

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,  



http://www.alaskarailroad.com/corporate/Corporate/SafetySecurity/VegetationManag  

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-----------------------

                                                                        28  

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  



                                                                         31  

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  

            

                                                                                                                    (continued...)  



                                                                 -14-                                                            6879
  


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

                                                                       32  

                                                                                     

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  



                   33  

     

                                                    

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  



                35  

mootness. 



                                                    

                     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  



                                                                                                                                      36  

                                                                                                        

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.  



                                                                 -15-                                                           6879
  


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

                      37  

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  



                                                     38  

                                                         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  

                                                                                                 



                41  

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



                               42  

                                   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  

                                    



                                                                                                        43  

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-----------------------

             44  

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  

advisory."45  



                                                                                        

                    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  



                      46  

                                                                    

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-----------------------

            47  

                                                                                                          

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



                                                                                                                              48  

                            

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  



                                                                        51  

                                                                                                

 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  

                                                                    [52] 

                    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  



                                                         53  

 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  



             54  

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

 costs."                                                                                     



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



                   55  

 discretion.            



                       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-----------------------

                                                                                           59  

  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  



                                                                                                           61  

 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-----------------------

V.     CONCLUSION  



             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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