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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Vonder Haar v. State, Dept. of Administration, Division of Motor Vehicles (5/1/2015) sp-7005

Vonder Haar v. State, Dept. of Administration, Division of Motor Vehicles (5/1/2015) sp-7005

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                 

         corrections@akcourts.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



PAIGE VONDER HAAR,                                  )  

                                                    )        Supreme Court No. S-15385  

                          Appellant,                )  

                                                    )        Superior Court No. 4FA-12-02476 CI  

                 v.                                 )  

                                                    )        O P I N I O N  

STATE OF ALASKA,                                    )  

DEPARTMENT OF                                       )        No. 7005 - May 1, 2015  

ADMINISTRATION, DIVISION OF                         )  

MOTOR VEHICLES,                                     )  

                                                    )  

                          Appellee.                 )  

                                                    )  



                 Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                 Fourth  Judicial  District,  Fairbanks,  Patrick  S.  Hammers,  

                 Judge pro tem.  



                 Appearances:  Michael A. Stepovich, Stepovich & Vacura  

                 Law Office, Fairbanks, for Appellant.  Harriet Dinegar Milks,  

                 Assistant  Attorney  General,  Juneau,  David  A.  Wilkinson,  

                                                                    

                 Assistant  Attorney  General,  Fairbanks,  and  Michael  C.  

                 Geraghty, Attorney General, Juneau, for Appellee.  



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

                              

                 Bolger, Justices.   



                 MAASSEN, Justice.  


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

I.        INTRODUCTION
  



                                            

                   The owner of a "1972 Noland car" sought to title and register it as a "low- 



                                                                                                             

speed vehicle," a special category of vehicles deemed roadworthy under Alaska law.  



The vehicle lacked a previous title, registration, or any other document from which its  



                                                                      

compliance with the applicable safety standards could be inferred.  A cursory inspection  

failed to satisfy the Department of Administration, Division of Motor Vehicles (DMV),1  



                                                                                                                     

that the vehicle met those standards, and the DMV refused to title and register it as a low- 



speed vehicle.  Following an evidentiary hearing, a hearing officer upheld that decision,  



which was affirmed again on appeal to the superior court.  The owner appeals to this  



court.   



                                                                                                               

                   We affirm the superior court's decision to affirm the decision of the hearing  



                                                                                           

officer.  We conclude that substantial evidence supported the hearing officer's finding  



                                                                                           

that the vehicle had not been shown to be safe for roadway use and that the decision not  



to title or register it therefore had a reasonable basis.  



II.       FACTS AND PROCEEDINGS  



                                                                 

                   Paige Vonder Haar purchased a vehicle from a seller in Oregon in 2007.  



                                                                  

The parties label the vehicle variously as an "electric car" or a "customized golf cart,"  



depending on their perspective.  Paige's husband David testified that it was one of a  



                                                                  

number of vehicles built by Dale Noland for Disneyland "to move passengers and their  



                                                                                                         

luggage from hotels and places in the park."   The Vonder Haars were not given any  



                                                                                              

documents of title or registration at the time of purchase, but the bill of sale described it  



as  a  "1972  Noland  car"  (though  it  appears  the  vehicle  may  actually  have  been  



manufactured  in  1971).    The  vehicle  model  was  identified  as  "Ambassador."    The  



          1        See 2 Alaska Administrative Code (AAC) 92.990(a)(2) (2012) (" 'division'  



means the division of motor vehicles in the department"); see also 2 AAC 92.990(a)(1)  

                             

(" 'department' means the Department of Administration").  



                                                             -2-                                                      7005
  


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

Vonder Haars intended that their son would use the vehicle "to sell ice cream on the  

                                                                         



streets in Fairbanks."   



                                                                                                        

                   Alaska law permits the operation of low-speed vehicles on public roads that  

                                    2   In addition to specifying minimum and maximum speeds for  

have certain speed limits.    



                     3  

such  vehicles,   Alaska  law  requires  that  they  meet  "weight,  equipment,  and  safety  



                         

standards set by the [D]epartment [of Administration] by regulation; weight, equipment,  



                                                                                                                             4  

                                                                                 

and safety standards shall be consistent with, and may not exceed, federal standards." 



The  Department  of  Administration  has  not  promulgated  regulations  for  low-speed  

                                                                                        

vehicles, but federal regulations detail safety standards for them,5 and the parties to this  

                                                                                 



appeal agree that, in the absence of state regulations, state law should be interpreted as  

                                                     



incorporating these federal standards.  



                   In 2009 David attempted to title and register the Noland car as a low-speed  



vehicle.    He  applied  at  the  DMV  office  in  Fairbanks;  because  he  lacked  the  usual  



documentation,  a  DMV  employee  inspected  the  vehicle  for  compliance  with  safety  



standards.  



                                                

                   The employee did not find a Vehicle Identification Number (VIN), any  



indication  that  the  vehicle  came  from  a  manufacturer  that  follows  federal  safety  



                                                                                      

standards, or any other visible assurance that the vehicle met those standards.  David  



          2        AS 28.35.261.  



          3        AS 28.90.990(a)(16).  At the time of the events in this case, low-speed  



vehicles were defined at AS 28.90.990(a)(15).  In 2014 the subsections were reordered  

                                     

alphabetically  without  change  to  the  definition  of  low-speed  vehicle.    Compare  AS  

28.90.990, with former AS 28.90.990 (2012); see also Revisor's notes, AS 28.90.990  

(2014).  



          4        AS 28.90.099(a)(16).  



          5        49 C.F.R.  571.500 (2014).  



                                                             -3-                                                       7005
  


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

                                                                                                

asked for a second inspection. An Alaska State Trooper took a look at the vehicle, noted  



                                                                                                           

its lack of doors, opined that "[i]f you got hit in this, you'd be killed," and declared the  



                                                            6  

vehicle unsafe to drive on the road.   DMV informed the Vonder Haars that the vehicle                           



could not be registered as a low-speed vehicle, though it could be registered for off-road  

                                                                                



use.  



                                                                                                    

                       Later in 2009, Paige obtained a surety bond and appraisal for the vehicle  



                                                                                                                          

and succeeded in having it titled and registered as a low-speed vehicle at a satellite DMV  

               7  The satellite location was operated by a private contractor, who did not inspect  

location.    

the Vonder Haars' vehicle for compliance with safety standards.8  

                                                                                                                 



                       In  2010  the  Department  wrote  Paige  a  letter,  informing  her  that  it  had  



cancelled the vehicle's title upon learning that it "may be a customized golf cart" and  

                                                                                                                                     



explaining that "[t]he DMV does not title or register golf carts."  The letter informed  

                                                  



Paige that she should take the vehicle to the Fairbanks DMV office for an inspection  

                   



within 15 days. It also informed her that she had a right to an administrative hearing, that  

                                



she had 15 days in which to ask for one, and that her failure to do so would "waive [her]  



right to a hearing and the [DMV's] cancellation of the title [would] be affirmed and  



           6           There is no indication in the record that the trooper was basing his opinion       



on the applicable legal standards, and we give it no weight.  



           7           A person who lacks sufficient evidence of ownership (in this case, a prior  



title) may apply for title after posting a bond to indemnify others who might have an  

                                                                                                                   

interest in the vehicle.  AS 28.10.216(a)(2)(A), (b).  The bond must be based on a "bona  

                                                                                                 

fide  appraisal  which  reasonably  conforms  with  nationally  recognized  used-vehicle  

valuations," and "[t]he appraisal must be for a complete, street legal vehicle physically  

                                                                                 

present in this state."  2 AAC 92.010(b) (2012).  



           8  

                                                                                                                                

                       Because the contractor's computer system did not recognize "Noland" as  

a  make  of  vehicle,  the  title  and  registration  listed  the  make  as  "Ambassador,"  and  

because the computer system would not accept model years prior to 1972, 1972 was  

listed as the model year.  



                                                                        -4-                                                                7005
  


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

final."      According  to  David,  the  Vonder  Haars  never  received  the  letter.                                In  2011,  

                                                                                                                      



however, when the Vonder Haars attempted to renew the vehicle's registration, they  



were  informed  that  its  earlier  title  and  registration  had  been  revoked  and  that  their  



application for a new title and registration was denied.  



                                                                                                                  

                    The Vonder Haars then requested an administrative hearing, which was  



                                                                         

held in August 2012.  David testified  that  the  vehicle was capable of traveling at a  



                                                          

minimum speed of 20 miles per hour and a maximum speed of 25 miles per hour.  He  



testified that the vehicle was equipped with headlights, "stop lamps"  (that is, "back  



                                                       

lights" that are "like brake lights"), reflectors, exterior mirrors on both sides, a parking  



brake, seatbelts, and a windshield.  



                                                                                                                          

                    The hearing officer found that the vehicle could not be registered as a low- 



speed vehicle because the Department had determined it was "unsafe to be driven or  



                                                                         

moved on a highway."  She found "that the cart was not manufactured for highway use  



                                                                                                                  

based on its custom build, the lack of [a manufacturer's certificate of origin], and the lack  



                    

of a 17 digit VIN."  She further found "that the cart does not meet the requirements to  



                                                              

title  and  registration  for  purposes  of  a  low-speed  cart  due  to  the  lack  of  a  known  



manufacturer."  She therefore upheld the Department's revocation of title.  



                                                                                                         

                    Paige appealed to the superior court, which reviewed the agency's decision  



                                                                                

under the "reasonable basis" standard, applying the "substantial evidence" standard to  



                                                                   

the underlying findings of fact. The superior court found that the agency's determination  



that the Vonder Haars' vehicle did not meet the applicable standards for low-speed  



                                                                                                  

vehicles was supported by substantial evidence and the decision not to title and register  



it was reasonable; it therefore affirmed the hearing officer's decision.  



                    Paige appealed to this court.  



                                                               -5-                                                         7005
  


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

III.      STANDARDS OF REVIEW  



                                                                                                            

                    "Where the superior court acts as an intermediate court of appeal for an  



administrative   decision,   we   directly   and   independently   review   the   underlying  



                                                                 

administrative decision, and may affirm the decision below on any ground supported by  

the record."9  



                    We review factual findings made by an administrative agency using the  



                                                                                          

"substantial evidence" standard, under which "findings will be upheld so long as there  



is enough relevant evidence to allow a reasonable mind to adequately support such a  



                   10  

conclusion."             "  '[W]e  will  not  reweigh  conflicting  evidence,  determine  witness  



credibility, or evaluate competing inferences from testimony,' as these functions are  

reserved to the agency."11  



                                                                                                 

                    "We  review  questions  of  law  involving  agency  expertise  under  the  



reasonable  basis  test  and  where  no  expertise  is  involved  under  the  substitution  of  



                       12  

judgment  test."             "When  applying  the  reasonable  basis  test,  we  'seek  to  determine  



                                                                                            

whether the agency's decision is supported by the facts and has a reasonable basis in law,  



          9         Conkey v. State, Dep't of Admin., Div. of Motor Vehicles                           , 113 P.3d 1235,  



 1237 (Alaska 2005).  



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

                                                        

(quoting Rhines v. State , 30 P.3d 621, 624 (Alaska 2001)) (internal  quotation mark  

omitted).  



          11  

                                                                                     

                    Id.  (alteration in original) (quoting Lindhag v. State, Dep't of Natural Res. ,  

 123 P.3d 948, 952 (Alaska 2005)).  



          12  

                                                  

                    Titus v. State, Dep't of Admin., Div. of Motor Vehicles, 305 P.3d 1271, 1276  

(Alaska 2013).  



                                                              -6-                                                       7005
  


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

                                                                                                                      13  

even if we may not agree with the agency's ultimate determination.' "                                                      "Under the  



substitution of judgment standard, we may 'substitute [our] own judgment for that of the  

agency even if the agency's decision had a reasonable basis in law.' "14  



IV.        DISCUSSION  



           A.         Low-Speed Vehicles And Alaska Motor Vehicle Law  



                      Alaska law allows the use of "low-speed vehicles" on public roads with  



                                                                                                                     15 

                                                                   

maximum speed limits of 35 or 45 miles per hour depending on location.                                                    A low-speed  



                                                                                                                          

vehicle  must  be  "manufactured  to  be  capable  of  propelling  itself  and  achieving  a  



                                

minimum speed of 20 miles an hour," must not have "been modified to have a maximum  



speed greater than 25 miles an hour," and must meet "weight, equipment, and safety  



                                                                                  

standards set by the department by regulation[,] . . . [standards that] shall be consistent  



                                                                           16  

with, and may not exceed, federal standards."                                   



                      The   federal   safety   standards   for   low-speed   vehicles   are   found   at  

                                                                                                                      



                                    17                                                                               18 

49  C.F.R.    571.500.                   The  parties  agree  that  these  standards  apply.                               The  federal  



           13         Davis Wright Tremaine LLP v. State, Dep't of Admin.                                     , 324 P.3d 293, 299   



(Alaska 2014) (quoting Tesoro Alaska Petrol. Co. v. Kenai Pipe Line Co.                                               , 746 P.2d 896,  

903 (Alaska 1987)).  



           14         Id.  (alteration in original) (quoting Tesoro Alaska, 746 P.2d at 903).  



           15         AS 28.35.261.  



           16         AS 28.90.990(a)(16).  



           17  

                                                                                        

                      Although the United States Department of Transportation has since added  

additional rear visibility requirements for low-speed vehicles to 49 C.F.R.  571.500, see  

Standard No. 500; Low-speed vehicles, 79 Fed Reg. 19,249 (Apr. 7, 2014) (codified at  

                                                                                                             

49 C.F.R.  571.500  S5(b)(11)), we apply the 2011 version of the regulation in effect  

                                                                                                                                 

at the time of the events at issue here.  



           18  

                                                                                          

                      Because both parties refer to 49 C.F.R.  571.500 as stating the applicable  

                                                                                                                        (continued...)  

                                                                     -7-                                                              7005
  


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

                                                                 

standards, like Alaska's statute, require that a low-speed vehicle have a maximum speed  



                                                    19 

                                                       but unlike Alaska's statute, the federal standards  

of not more than 25 miles per hour; 



                                            

also mandate "[g]eneral test conditions" and procedures under which this maximum  



                                          20  

speed must be demonstrated.                   Federal standards mandate that low-speed vehicles have  



                                                                                                          21 

                                                                                                             - and they  

certain equipment - such as headlamps, turn signal lamps, and seat belts 



                                                                               22  

                                                                                                

provide detailed specifications for some of these items.                           Federal standards also require  

that low-speed vehicles have a 17-character VIN.23  



                                                

                   Under Alaska law the Department of Administration may refuse to issue  

a certificate of title or may revoke a previously issued title under certain conditions.24  



It  may  also  refuse  to  issue  a  vehicle's  registration  or  may  revoke  a  registration  for  



reasons including that "the vehicle is determined to be mechanically unsafe to be driven  



                                                                                                                            25  

                                                    

or moved on a highway, vehicular way or area, or other public property in the state." 



          18(...continued)  



law, we do not need to decide whether reading AS 28.90.990 as incorporating the federal  

                                                                    

standards  is  a  permissible  construction  of  the  statute  absent  the  adoption  of  state  

                                                                                                                   

standards, as the statute plainly contemplates.   



          19       49 C.F.R.  571.500  S5(a) (2011).  



          20       Id.  S6, S7.  



          21       Id.  S5(b).  



          22       See, e.g., id.  S5(b)(8), (10).  



          23       Id.  S5(b)(9) (referencing 49 C.F.R.  565.23(b), which requires a 17- 



character VIN).  



          24       AS  28.10.221(a)  (stating  that  "[t]he  department  may  refuse  to  issue  a  



certificate of title and may suspend or revoke a previously issued certificate of title").  



          25  

                                                                                                       

                   AS 28.10.041(a)(4); see also AS 28.10.051(a)(1) ("The department may  

                                                                                   

suspend or revoke the registration of a vehicle . . . [when] the department determines that  

                                                                                                           (continued...)  

                                                             -8-                                                       7005
  


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

          B.	       The Department's Decision Not To Title And Register The Vonder  

                   Haars' Vehicle As A Low-Speed Vehicle Had A Reasonable Basis.  



                   Paige challenges the Department's decision that the vehicle was not eligible  



                                                                       26  

for title and registration as a low-speed vehicle.                         She contends that the Department  



                                                                                                           

could not lawfully rely on the lack of a VIN, a manufacturer's certificate of origin, and  



a known manufacturer in denying title and registration.  She argues that she produced  



                                                           

evidence sufficient to prove compliance with the applicable safety standards and that the  



hearing officer erred in ruling otherwise.  



                                                               

                   We conclude that substantial evidence supported the agency's finding that  



                                                                                                                            27  

                                                 

the vehicle was not roadworthy, though not in the way the hearing officer explained. 



                                                       

In support of her conclusion that the Department properly denied title and registration,  



                                                                                               

the hearing officer found "that the cart was not manufactured for highway use based on  



                                                                                                              

its custom build, the lack of [a manufacturer's certificate of origin], and the lack of a 17  



                                                      

digit VIN."  She also found that the vehicle could not be titled and registered as a low- 



                                       

speed vehicle "due to the lack of a known manufacturer."  But Paige is correct that the  



       

law does not require a low-speed vehicle to be "manufactured for highway use," have  



a manufacturer's certificate of origin, or come from "a known manufacturer."  These may  



          25(...continued)  



the registration or certificate, plate, or permit was fraudulently procured or erroneously  

issued.").  



          26       Although there are several discrete agency actions at issue here - the  



initial refusal to title and register the vehicle, revocation of the subsequently issued title  

                                                                                                                

and registration, and the refusal to issue a new title and registration -Paige argued those  

issues at the administrative hearing, in the superior court, and before us as dependent  

upon the same question of compliance with the applicable safety standards.  We address  

                                                                

them in the same way.  



          27       See Conkey v. State, Dep't of Admin., Div. of Motor Vehicles, 113 P.3d  



          

1235, 1237 (Alaska 2005) (noting that, in independently reviewing an administrative  

decision, we "may affirm the decision below on any ground supported by the record.").  

                                                             -9-	                                                      7005
  


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

                                                                                                                       

be helpful indications that the vehicle meets the applicable safety standards, but it is  



actual compliance with the safety standards that the law requires.  There is nothing in the  



                                                           

governing statutes that would prevent a vehicle that complies with the safety standards  



from being titled and registered as a low-speed vehicle regardless of whether it was  



"manufactured for highway use," has a manufacturer's certificate of origin, or comes  



from "a known manufacturer."   



                                                                                                                    

                    A 17-character VIN, on the other hand, is required by the federal low-speed  



                           28  

                                                         

vehicle  standards.            But Alaska law allows for the replacement of missing or altered  



                                                                               

VINs, so the lack of one does not prevent an owner from ultimately acquiring title and  



                  29  

registration.         Besides, the apparent purpose of a VIN is not to assure compliance with  



                           

                                                                         

safety standards, but rather "to simplify vehicle identification information retrieval and  



                                                                                                              30  

to  increase  the  accuracy  and  efficiency  of  vehicle  recall  campaigns."                                      Here,  the  



                                  

evidence showed that the vehicle's manufacture predated the current VIN system but that  



the vehicle did have a five-digit registration number that could serve the same purposes  



                          31  

                                                                                                        

of  identification.             Under  these  circumstances,  the  Department  may  have  acted  



                                                                                                 

unreasonably had the only evidence that the vehicle was unsafe been its lack of a VIN.  



                                                                                                                

                    In other federal standards, however, the regulations require not only that  



low-speed vehicles have a maximum speed of 25 miles per hour, but also that this be  



                                                                                                       

demonstrated  under  test  conditions  that  are  highly  specific  with  regard  to  ambient  



          28  

                    49 C.F.R.  571.500   S5(b)(9); id.  565.23(b).  



          29        AS 28.10.061.  



          30        49 C.F.R.  565.1.  



          31        VINs  have  been used by American automobile  manufacturers  since 1954,  



but the National Highway Traffic  Safety Administration standardized the VIN as a 17- 

character  number  beginning  with  the  1981  model  year.    See  Vehicle  Identification  

Number Requirements, 73 Fed. Reg 23,367, 23,368 (Apr. 30, 2008).  

                                                              -10-                                                         7005
  


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

                                                                                          

temperature, wind speed, road surface, gradient, weight, and tire pressure, among other  



           32  

                                                                           

things.        Certain pieces of the required safety equipment - such as a windshield and  

seatbelts - must also conform to very specific safety standards.33  



                                                                           

                     At the administrative hearing, the only evidence presented concerning the  



vehicle's speed capabilities was David's affirmative answer when his counsel asked him  



whether the vehicle was "capable of propelling itself and achieving a minimum speed of  



                                                                                         

20 miles an hour . . . [a]nd a maximum speed of 25 miles an hour."  The testimony about  



                                                                                                            

the mandatory safety equipment was similarly brief and conclusory.  There was no other  



                                                                                                                  

testimony about the basis for David's conclusions, and no other evidence that the vehicle  



had been tested under the conditions or in accordance with the exacting procedures that  



                                                           34  

                                                                                                                

the  federal  safety  standards  require.                        In  the  absence  of  the  usual  documents  and  



                                                                       

certifications  from  which  the  Department  could  presume  compliance  with  safety  



           32        49 C.F.R.  571.500  S6.  



           33        See, e.g., id.  S5(b)(8) ("Each low-speed vehicle shall be equipped with . . .           



[a] windshield that conforms to the Federal motor vehicle safety standard on glazing  

materials  (49  CFR  571.205).");  id.    S5(b)(10)  ("Each  low-speed  vehicle  shall  be  

                                                                                                                           

equipped with . . . [a] Type 1 or Type 2 seat belt assembly conforming to Sec. 571.209  

of  this  part,  Federal  Motor  Vehicle  Safety  Standard  No.  209,  Seat  belt  assemblies,  

installed at each designated seating position.").  



           34        In the superior court, Paige submitted an affidavit from an expert in antique  

                                                                                                   

automobiles who attested, among other things, that he had "inspected Ms. Vonder Haar's  

                                                                                                                  

1972 Nolan[d] transporter and it meets all State of Alaska and Federal requirements to  

                                                                                             

be licensed as a low-speed vehicle (LSV)."  It is unclear whether the affidavit was made  

                                                                         

part of the record.  The parties did not refer to it in their subsequent arguments, nor is it  

                                                                                                                                   

mentioned in the superior court's decision, which appears to rely solely on the agency  

                                                                                                                        

record.  And while Paige mentions the affidavit in her brief on this appeal, she does not  

              

address it in her argument.  As in the superior court, the question before us is whether  

the hearing officer's decision had a reasonable basis in the law and the agency record.  

Our decision does not limit the evidence that may be presented to the Department should  

                                                                              

the Vonder Haars again seek to title and register their vehicle.  

                                                                 -11-                                                           7005
  


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

standards, the Department required the Vonder Haars to demonstrate actual compliance  



                                35  

                                                                                              

with those standards.               And substantial evidence supports the hearing officer's finding  



                                                                     36  

                                                                                       

that the Vonder Haars did not carry this burden.                         Because the vehicle's compliance with  



applicable  safety  standards  had  not  been  satisfactorily  demonstrated,  there  was  a  



                                                                                                

reasonable basis for the Department's decision that it could not be titled or registered as  



a low-speed vehicle.   



                    Paige contends that the administrative decision does not involve agency  



expertise  or  fundamental  policy  questions  and  that  the  "substitution  of  judgment"  



standard  is  therefore  appropriate  for  our  review.    We  reject  this  contention.    The  



substitution  of  judgment  standard  is  appropriate  "where  the  agency's  specialized  



knowledge and experience would not be particularly probative on the meaning of the  



          35        There appears to have been no discussion of the burden of proof either at  



the agency hearing or in the superior court. The Department's hearing officer framed the  

                                                                        

issues as including "whether this particular vehicle was in compliance with [the statutes  

                                                                                    

governing title and registration]," which appears to place the  burden on the Vonder  

Haars.  At oral argument before this court, Paige asserted that the Department bore the  

                                                                                               

burden  to  prove  that  the  vehicle  did  not  comply  with  the  safety  standards,  citing  a  

provision of the Administrative Procedure Act, AS 44.62.460(e)(2).   But the APA's  

                                                                                                                  

hearing procedures are not extended to the proceeding at issue here by either the Act  

                                                                                                              

itself, see  AS 44.62.330(a), or the Department's own statutes.  See AS 44.62.330(b);  

AS 28.05.141.  The Department has regulations that govern hearings related to actions  

                                

taken under Title 28, but they do not address the burden of proof.  See 2 AAC 93.010- 

030.  Because Paige failed to raise this issue below or brief it on appeal, we have no  

                                               

occasion to decide it.  See Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska  

                              

2001)  ("A  party  may  not  raise  an  issue  for  the  first  time  on  appeal.    And  cursory  

treatment of an issue is considered by this court to be waiver of that issue." (footnote  

                                                                  

omitted)).  



          36  

                                       

                    See Rollins v. State, Dep't of Pub. Safety, 312 P.3d 1091, 1096-97 (Alaska  

2013) (finding substantial evidence in the record to support board's finding that applicant  

                                                                  

for renewal of liquor license had failed to establish she was without fault in allowing  

                                                               

operation of licensed premises to lapse).  

                                                              -12-                                                         7005
  


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

             37  

                   

                                                                                                                  

statute."          The  reasonable  basis  standard,  in  contrast,  is  appropriate  "when  the  



                                                   

interpretation at issue implicates agency expertise or the determination of fundamental  



                                                                                             38  

                                                                                                               

policies within the scope of the agency's statutory functions."                                  Clearly, the legislature  



                                                                                                                     

intended to give the Department some measure of discretion in determining whether a  



                                                                                                            

vehicle meets the requirements for titling and registration; the Alaska statutes provide  

                                                                                                               39  and specify  

                                                                                                                   

conditions under which the Department "may refuse to register a vehicle" 

that the Department "may refuse to issue a certificate of title."40  And the statute defining  

                                                                                                 



"low-speed vehicle" expressly delegates to the Department the authority to set the safety  

                                                                                               

requirements for low-speed vehicles by regulation,41  further acknowledging the role of  

                                                                                            



                            42  

agency        expertise.            Accordingly,           "deference         should       be    granted        because       the  



[Department], having specialized knowledge in a field, is in a better position than a court  

                                                                                                      



                                               43  

to make such determinations."                      Because "[w]hether the [hearing officer's] findings  



          37        Marathon Oil Co. v. State, Dep't of Natural Res. , 254 P.3d 1078, 1082  



(Alaska 2011) (quoting Matanuska-Susitna Borough v. Hammond , 726 P.2d 166, 175  

(Alaska 1986)).  



          38        Id.  



          39        AS 28.10.041(a) (emphasis added).  



          40        AS 28.10.221 (emphasis added).  



          41        AS 28.90.990(a)(16).  



          42        See Cook Inlet  Pipe Line Co. v. Alaska Pub. Utils. Comm'n , 836 P.2d 343,  



348 (Alaska 1992) ("The reasonable basis standard is especially appropriate  where the  

legislature  has  delegated  to  the  agency  broad  regulatory  authority  over  an  area  in  

question."); see also Hammond , 726 P.2d at 175-76.  

                                 



          43  

                                                      

                     Weaver Bros., Inc. v. Alaska Transp. Comm'n , 588 P.2d 819, 821 (Alaska  

1978).  

                                                              -13-                                                         7005
  


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

                         

were sufficient to justify denial [of title and registration] is a question of law involving  

agency expertise[, w]e apply the reasonable basis test."44  



                                                

                     "When applying the reasonable basis test, we 'seek to determine whether  



                                                                                       

the agency's decision is supported by the facts and has a reasonable basis in law, even  



                                                                                                         45  

                                                                                                               Alaska  Statute  

if  we  may  not  agree  with  the  agency's  ultimate  determination.'  " 



                                                                                                                         

28.10.041(a)(4) provides that the Department "may refuse to register a vehicle if . . . the  



vehicle is determined to be mechanically unsafe," and AS 28.10.221(a)(1) provides that  



                                             

the Department "may refuse to issue a certificate of title . . . [when] required information  



   

.  .  .  [has]  not  been  provided."    Because  substantial  evidence  supported  the  hearing  



                                                                                

officer's conclusion that the Vonder Haars' vehicle had not been shown to comply with  



the  applicable  safety  standards,  the  Department  had  a  reasonable  basis  under  AS  



                                                                  

28.10.041 and AS 28.10.221 for its refusal to title and register the vehicle as a low-speed  

vehicle.46  



V.        CONCLUSION  



                                                                                                     

                     The superior court's decision affirming the hearing officer's decision that  



                                                                   

the  Department  was  not  required  to  title  and  register  the  Vonder  Haars'  vehicle  is  



AFFIRMED.  



          44        Button v. Haines Borough , 208 P.3d 194, 203 (Alaska 2009).  



          45        Davis Wright Tremaine LLP v. State, Dep't of Admin.                                , 324 P.3d 293, 299  



(Alaska 2014) (quoting Tesoro Alaska Petrol. Co. v. Kenai Pipe Line Co.                                        , 746 P.2d 896,  

903 (Alaska 1987)).  



          46  

                                     

                     In her list of issues presented for review Paige also identifies the superior  

                                                                  

court's rulings on a motion to supplement the record and a motion for reconsideration.  

These issues are not briefed, however, and we consider them waived.  State v. O'Neill  

Investigations,  Inc. ,  609  P.2d  520,  528  (Alaska  1980)  ("Failure  to  argue  a  point  

                                                                                                               

constitutes an abandonment of it.").  

                                                               -14-                                                          7005
  

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