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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. City & Borough of Juneau v. State, Local Boundary Commission (12/4/2015) sp-7067

City & Borough of Juneau v. State, Local Boundary Commission (12/4/2015) sp-7067

         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  



CITY  &  BOROUGH  OF  JUNEAU,                                )  

                                                              )    Supreme  Court  Nos.  S-15502/15512  

                             Appellant  and                   )  

                             Cross-Appellee,                  )  

                                                                                                                      

                                                              )    Superior Court No.  1JU-12-00900 CI  

          v.                                                  )  

                                                                                      

                                                              )    O P I N I O N  

                                   

STATE OF ALASKA, LOCAL                                        )      

                                               

BOUNDARY COMMISSION,                                          )  

                                                                                                        

                                                              )    No. 7067 - December 4, 2015  

                             Appellee,                        )  

                                                              )  

and                                                           )  

                                                              )  

                                 

                                                               

PETITIONERS FOR INCORPORATION )
  

                                      

OF THE PETERSBURG BOROUGH,                                    )
  

                                                              )
  

                                            

                             Appellee and                     )
  

                             Cross-Appellant.                 )
  

                                                              )
  



                                                                                                    

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

                                                                                      

                   Judicial District, Juneau, Louis J. Menendez, Judge.  



                                                                                           

                   Appearances:            Amy  Gurton  Mead,  Municipal  Attorney,  

                                                                                                       

                   Juneau, for Appellant/Cross-Appellee City and Borough of  

                                                                                             

                   Juneau.        Janell  M.  Hafner,  Assistant  Attorney  General,  

                                                                                             

                   Anchorage,  and  Michael  C.  Geraghty,  Attorney  General,  

                                                                                           

                   Juneau,  for  Appellee  State  of  Alaska,  Local  Boundary  

                                                                                          

                   Commission.           James  T.  Brennan  and  Sara  E.  Heideman,  

                                                  

                   Hedland,         Brennan         and      Heideman,          Anchorage,           for  

                                                                                                      

                   Appellee/Cross-Appellant Petitioners for Incorporation of the  

                                     

                   Petersburg Borough.  


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

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

                                                                                                          

                    Bolger, Justices.  

                                 



                    WINFREE, Justice.   



I.        INTRODUCTION  



                    The primary issue in this appeal is whether the State of Alaska's Local  

                                                                                                                          



Boundary Commission (Boundary Commission) violated the Alaska Constitution when  

                                                                                                                           



it approved the incorporation of a new borough over the objection of an existing borough  

                                                                                                                      



seeking to annex some of the area included in the new borough.  We conclude that the  

                                                                                                                              



Boundary  Commission's  decision  complied  with  constitutional  requirements  and  

                                                                                                                            



therefore affirm the superior court's decision upholding the Boundary Commission's  

                                                                                                             



incorporation decision.  

                      



II.       FACTS AND PROCEEDINGS  

                                 



                    In April 2011 the City of Petersburg petitioned the Boundary Commission  

                                                                                                                



to dissolve the City and incorporate a new borough.  The proposed Petersburg Borough  

                                                                                                                      



"consist[ed] of approximately 3,365 square miles of land and 982 square miles of water  

                                                                                                                           



for  a  total  of  4,347  square  miles  of  land  and  water."                           In  August  the  Boundary  

                                                                                                                   



Commission accepted the petition and published notice.  

                                                                           



                    In  October  the  City  and  Borough  of  Juneau  notified  the  Boundary  

                                                                                                                   



Commission "of its intent to file an annexation petition that will pertain to some of the  

                                                                                                                              



same boundaries as are at issue in the petition recently filed by the City of Petersburg."  

                                                                                                                                    



Juneau intended to annex almost half of the area sought for the Petersburg Borough,  

                                                                                                                    



explaining that its proposed annexation petition and Petersburg's incorporation petition  

                                                                                                                       



"will overlap with respect to 1906 square miles" that had "previously been identified by  

                                                                                                                               



the Local Boundary Commission as the 'unorganized remnant' of the City and Borough  

                                                                                                                      



of Juneau."  Juneau requested that the Boundary Commission postpone the Petersburg  

                                                                                                                   



                                                               -2-                                                        7067
  


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

proceedings "to allow for concurrent consideration and action (or possible consolidation                                                                                             

as authorized by 3 AAC 110.430)" on the two petitions.                                                                                     1  



                                 In  November  Juneau  submitted  its  annexation  petition.                                                                                                 Boundary  

                                                                                                                                                                                         



Commission staffrecommended denying Juneau's consolidationrequest,explaining that  

                                                                                                                                                                                                             



the  Boundary  Commission  would  have  Juneau's  annexation  petition,  Juneau's  

                                                                                                                                                                     



responsive brief in the Petersburg proceedings, and Juneau's comments, and that during  

                                                                                                                                                                                                      



the final hearing the Boundary Commission could amend the Petersburg petition.  The  

                                                                                                                                                                                                            



Boundary  Commission  ultimately  denied  Juneau's  request  for  consolidation  or  

                                                                                                                                                                                                              



postponement, with one commissioner noting that "Juneau . . . will have opportunities  

                                                                                                                                                                        



to comment and [provide] testimony at the hearing."  

                                                                                                                                    



                                 Juneau subsequently opposed Petersburg's petition "to the extent that it  

                                                                                                                                                                                                                  



ask[ed]  the  [Boundary  Commission]  to  approve  incorporation  of  an  area  more  

                                                                                                                                                                                                       



appropriately annexed to [Juneau]." Juneau supported its position with a report from the  

                                                                                                                                                                                                               



Juneau EconomicDevelopment Council emphasizing Juneau's ties to the contested area,  

                                                                                                                                                                                                          



and argued that:  

                                          



                                 Because  the  contested  area  has  greater  associations  with  

                                                                                                                                                                         

                                 [Juneau]  than  Petersburg,  and  because  Petersburg  cannot  

                                                                                                                                                                   

                                 make  the  requisite  constitutional,  statutory,  or  regulatory  

                                                                                                                                                          

                                 showing justifying incorporation of the contested area into a  

                                                                                                                                                                                  

                                 newPetersburg borough, the[Boundary]Commission should  

                                                                                                                                                                     

                                 amend Petersburg's petition to delete the contested . . . area  

                                                                                                                                        



                 1               See  3 Alaska Administrative Code (AAC) 110.430 (2011) ("If two or more                                                                                                 



petitions pending action by the commission affect all or some portion of the same                                                                                                                       

boundaries, the chair of the commission may consolidate the informational session,                                                                           

briefing schedule, department reports, commission hearing, decisional meeting, or other                                                                                                                  

procedure under this chapter for one or more of those petitions.  The commission may                                                  

consider relevant information fromconcurrent or conflictingpetitions                                                                                                     during the process        

of rendering its decision on any one petition.").                                          



                                                                                                       -3-                                                                                               7067
  


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

                             from Cape Fanshaw north to the current [Juneau] borough                                                          

                             boundary from any approved Petersburg borough.                                             



                             Petersburg   responded   that   Juneau   previously  had   declined   to   seek  



annexation of the disputed area, and emphasized its own economic, transportation,                                                                             



communication, and historic ties to the area.                                                          Petersburg conceded that its proposed                             

                                                                                                                                 2  But Petersburg argued that  

northern boundary could move south to exclude Tracy Arm.                                                                                                                               



for  the  remaining  contested  area,  the  borough  incorporation  factors  weighed  in  

                                                                                                                                                                                        



Petersburg's favor.  

                              



                             In February 2012 Boundary Commission staff completed a preliminary  

                                                                                                                                                                   



report recommending that the Boundary Commission amend the proposed Petersburg  

                                                                                                                                                                      



Borough's boundaries - by removing all of Tracy Arm from the proposed borough to  

                                                                                                                                                                                          



conform to the region's natural geography - but ultimately approve the Petersburg  

                                                                                                                                                                      



petition.                   Juneau              submitted                 comments                   objecting                to       some             of       the        report's  

                                                                                                                                                                          



recommendations.                              Juneau  argued  that  only  "one  entity  with  respect  to  the  same  

                                                                                                                                                                                  



contested area" may satisfy the constitution's requirement that "[e]ach borough shall  

                                                                                                                                                                                   



embrace  an  area  and  population  with  common  interests  to  the  maximum  degree  

                                                                                                                                                                              

possible."3                Juneau asserted that the Boundary Commission had to determine whether  

                                                                                                                                                                            



Juneau or Petersburg "would embracetheoverlap areatothemaximumdegreepossible,"  

                                                                                                                                                                         



and  that  "[g]iven  the  Report's  failure  to  critically  analyze  [Juneau's]  claim  to  the  

                                                                                                                                                                                      



contested area . . . any final determination based upon the Preliminary Report would be  

                                                                                                                                                                                         



an abuse of the [Boundary Commission]'s discretion."  Juneau argued that it had more  

                                                                                                                                                                                   



common interests and was more closely related to the contested area than Petersburg.  

                                                                                                                                                                   



               2             The southern border of the City and Borough of Juneau is a diagonal line                                                                                 



dividing the Tracy Armwatershed. The                                                  proposed Petersburg Borough's northern border  

abutted Juneau's southern border, dividing Tracy Arm between the boroughs.                                                                                                    



               3             Alaska Const. art. X,  3.  

                                                                                



                                                                                            -4-                                                                                    7067
  


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

                                                                                                                               

                    In April the Boundary Commission held a preliminary hearing on the  



                                                                                                                          

Petersburg petition.  Juneau expressed concern that the Boundary Commission would  



                                                                                                                   

"decide [the] Petersburg petition in a vacuum according to whether or not Petersburg  



                                                                                                                 

standing alone meets the standards of incorporation."  Juneau explained:  



                                                                                                          

                    [Juneau's] understanding is that the constitution requires [the  

                                                                                                  

                    Boundary Commission] to make decisions of these standards  

                                                                                                       

                    to  the  maximum  degree  possible.                      That  you  must  make  

                                                                                                 

                    findings that wherever you're going to place this boundary  

                                                                                                   

                    the final municipality will have and share common interests  

                                                                                                    

                    with  the  area  and  population  to  the  maximum  degree  

                                   

                    possible.  



                                                              

Boundary Commission staff responded:  



                                                                                                             

                    [T]he [Boundary] Commission is going to decide whether to  

                                                                                                          

                    approve,  amend  or  deny  the  Petersburg  borough.                             In  the  

                                                                                                          

                    course of making that decision it can take many things into  

                                                                                                          

                    account.         It  can  take  the  petition,  the  comments  on  the  

                                                                                                          

                    petition, the briefs submitted, and it can take anything that  

                                                                                                             

                    has been spoken about at that hearing. But what it is doing is  

                                                                                                          

                    it is determining . . . does the Petersburg petition meet [the  

                                                                                           

                    constitutional] standard or not . . . taking into account all of  

                                                                                 

                    the information that it has already been given.  



                                                                                                                 

                    In May Boundary Commission staffproducedafinal reporton Petersburg's  



                                                                                                                 

petition.  The report disagreed with Juneau's contention - that the Alaska Constitution  



                                                                      

requires that "any areas sought by more than one potential or existing borough should  



                                                                                                                              

go the borough which has the stronger/strongest common interests" - explaining that  



                                                                                                                               

"[n]either the constitution, the statutes, nor the regulations call for areas to be part of the  



                                                                                                                     

best possible borough" and that under the constitution "a borough should be integrated  



                                                                                                                        

and interrelated as much as possible."  The final report reaffirmed the earlier report's  



                                                                                                                     

findings  and  recommendation  to  approve  the  petition  after  moving  the  proposed  



                                                                      

borough's northern boundary south of Tracy Arm.  



                                                               -5-                                                         7067
  


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

                                                                                                                        

                    In late May and early June the Boundary Commission held a public hearing  



                                                                                                                    

to address Petersburg's petition.  At the hearing Juneau again argued that the Boundary  



                                                                                                                             

Commission "must createboroughs that embracecommon areas. . . and populations with  



                                                                                                                    

common interests to the maximum degree possible.   And that mandate by definition  



                                                                                                                      

cannot  apply  to  more  than  one  entity."                      Juneau  disagreed  with  the  final  report's  



                                                                                                                            

assessment that the Alaska Constitution does not require areas be a part of the best  



                                                                                                               

possible borough. Juneau asserted that "it's incumbent on [the Boundary Commission]  



                                                                                                                          

to  reserve  decision  on  the  contested  area  until  [the  Boundary  Commission]  ha[s]  



                                                                   

throughly considered [Juneau's] competing claims."  



                                                                                                                            

                    The Boundary Commission held a decisional meeting and issued its final  



                                                                                                                     

decision in August.   At the decisional meeting commissioners referred to Juneau's  



                                                                                                                             

common-interest arguments and noted "that you may not be able to get completely 100  



                                                                                                                     

percent common interests" and that common interests may be found across southeast  



                                                                                                       

Alaska.  In its final decision the Boundary Commission explained:  



                                                                                                       

                    Juneau asserted that the proposed Petersburg borough must  

                                                                                                            

                    be compared to the existing City and Borough of Juneau in  

                                                                                                 

                    order  to  determine  which  borough  would  have  common  

                                                                                                        

                    interests       to   the     maximum   degree               possible        with     the  

                                                                                                        

                    overlapping   area.               After   considering   that   claim,   the  

                                                                                                           

                    [Boundary  Commission]  determines  that  the  question  is  

                                                                                                        

                    instead  whether  the  proposed  borough  has  an  area  and  

                                                                                                    

                    population with common interests to the maximum degree  

                                                                                                         

                    possible.         The  Boundary  [C]ommission  finds  that  the  

                                                                                                        

                    proposed borough does embrace an area and population with  

                                                                                     

                    common interests to the maximum degree possible.  



                                                                                                                           

But the Boundary Commission also expressly noted that it "considered Juneau's claim  



                                                                                                                   

to the overlapping area." The Boundary Commission approved the amended Petersburg  



              

petition, effectively leaving Tracy Arm for Juneau's later annexation, by a four to one  



vote.  



                                                               -6-                                                        7067
  


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

                                                                                                                

                    Juneau appealed to the superior court, asserting that "[t]he constitutional  



                                                                                                                               

mandate  contained  in  Art[icle]  X,  sec[tion]  3  that  boroughs  embrace  an  area  and  



                                                                                                                     

population with common interests to themaximumdegreepossiblecannot, by definition,  



                                                                                                                                 

apply to more than one entity."   It argued that the Boundary Commission failed to  



                                                                                                                    

determine  whether  Juneau  or  Petersburg  "best  meets  the  statutory  and  regulatory  



                                                                                                                               

standards with respect to the contested area, and to draw boundaries in such a way that  



                                                                                                                               

creates  boroughs  that  are  maximally  cohesive."                              Juneau  further  asserted  that  the  



                                                                                                                                

Boundary Commission "had before it not only its own earlier findings with respect to the  



                                                                                                                             

model borough boundaries for the area, but it had substantially relevant evidence from  



                                                                                                                                      

[Juneau] . . . . Yet the [Boundary Commission] inexplicably failed to consider any of it."  



                                                                                                                               

Juneau  finally  argued  that  accepting  the  Petersburg  petition  and  including  the  



                                                                                                                                

overlapping area without considering Juneau's claim to the area was an abuse of the  



                                        

Boundary Commission's discretion.  



                                                                                                                                 

                    The Boundary Commission responded that "[t]he underlying premise of  



                                                                                                                    

Juneau's  argument,  that  the  [Boundary  Commission]  did  not  consider  [Juneau's]  



                                                                                                                  

evidence is false."   The Boundary Commission argued that its decision "established  



                                                                                                                     

optimal boundaries for the Petersburg Borough." The Boundary Commissionconcluded  



                                                                                                                                  

that its decision "should be affirmed as it is wholly supported by the record and there is  



                                                           

a reasonable basis for the[] decision."  



                                                                                                                               

                    Petersburg asserted that the Boundary Commission "heard, considered and  



                                                                                                                                      

discussed [Juneau's] evidence, both at the decisional meeting and in the decision itself."  



                                                                                                                                

Petersburg argued that the constitution's common-interest mandate does not require the  



                                                                                                                              

Boundary Commission "to determine the one, and only one, perfect borough for each  



                                                                                                                                      

region of Alaska" and thus the two petitions did not have to be addressed head-to-head.  



                                                                                                                              

Petersburg finally argued that the de facto incorporation doctrine precluded Juneau from  



                                                                                                                       

challenging the Petersburg Borough's existence, and moved to supplement the appellate  



                                                                -7-                                                         7067
  


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

record with an affidavit supporting its de facto incorporation argument.                                                                                                                                                                                                                                                                                                                  4  The superior  



court denied that motion, finding "that the affidavit is not part of the record on appeal                                                                                                                                                                                                                                                                                                                          



 and that the record is adequate to conduct a proper review."                                                                                                                                                                                                                                                                 



                                                                       The    superior    court    affirmed    the    Boundary    Commission's    decision  



 approving   the   amended   petition,   noting   that   "Juneau's  claim   that   the   [Boundary]  



 Commission failed to consider Juneau's competing claim to the contested territory fails                                                                                                                                                                                                                                                                                                                                                          



because the record clearly shows that the [Boundary] Commission considered Juneau's                                                                                                                                                                                                                                                                                                                                      



 evidence when it approved the Petersburg petition with modifications."                                                                                                                                                                                                                                                                                                                                      The court   



 explained   that   the   Boundary   Commission   was   tasked   with  determining   the   most  



 appropriate   boundaries   for   Petersburg,   and   that   this   task   "involves  a   thorough  



consideration of alternative boundaries which includes the claim put forth by Juneau."                                                                                                                                                                                                                                                                                                                                                                                     



The court therefore concluded that the Boundary Commission was not "required to                                                                                                                                                                                                                                                                                                                                                                             



undertake an inquiry into which municipality - Juneau or Petersburg - best meets the                                                                                                                                                                                                                                                                                                                                                                    



regulatory and statutory standards with respect to the contested area."                                                                                                                                                                                                                                                                         



                                                                       After the superior court affirmed the Boundary Commission's decision                                                                                                                                                                                                                                                                               



Petersburg moved for prevailing party attorney's fees, requesting 30% of its attorney's                                                                                                                                                                                                                                                                                                                            



 fees incurred during the administrative appeal - $9,594.60.                                                                                                                                                                                                                                                                                The court granted the                                                                                     



motion in part, awarding Petersburg $1,500 for attorney's fees.                                                                                                                                                                                                                                                     



                                   4                                   The de facto municipal incorporation doctrine precludes disincorporation                                                                                                                                                                                                                                  



when incorporation "is attempted under a proper statute, a good faith effort is made to                                                                                                                                                                                                                                                              

comply with the statute, the statute is colorably complied with, and the municipality has                                                                                                                                                                                                                                                                                                                                                              

 exercised its powers in good faith."                                                                                                                                                         Port Valdez Co. v. City of Valdez                                                                                                                                                   , 522 P.2d 1147,                                       

  1156 (Alaska 1974).                                                                                                We have not yet decided whether the de facto                                                                                                                                                                                                                                  incorporation  

doctrine has been abolished by statute.                                                                                                                                                                       Lake & Peninsula Borough v. Local Boundary                                                                                                                                                           

 Comm'n, 885 P.2d 1059, 1064 n.20 (Alaska 1994) ("We need not decide whether the                                                                                                                                                                                                                                                                                                                                                                       

Legislature meant to abolish both municipal and private                                                                                                                                                                                                                                           de facto                                    corporations . . . .");                                                                                  see  

AS   10.06.218   ("The   doctrines   of   de   jure   compliance,   de   facto   corporations,   and  

corporations by estoppel are abolished.").                                                                                                              



                                                                                                                                                                                                                              -8-                                                                                                                                                                                                              7067
  


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

                           Juneau now appeals the superior court's decision affirming the Boundary                                                       



Commission's approval of the amended Petersburg petition.  Petersburg cross-appeals                                                               



the court's denial of its motion to supplement the record with evidence to support its de                                                                               



                                                                                                                                      5  

facto incorporation argument and the court's attorney's fees award.                                                                        



III.         STANDARD OF REVIEW  

                                                   



                           "As a general rule, we approach issues independently of the superior court  

                                                                                                                                                                   

when that court acts as an intermediate court of appeal."6  

                                                                                                                                                          

                                                                                                                 "We apply different standards  



                                                                                                                                         7  

                                                                                                                                                                        

of review to agency decisions depending on the subject of review."                                                                           "In a review of  



                                                                                                                                                                       

agency action we substitute our judgment for that of the agency when interpreting the  



                                                    8  

                                                

Alaska Constitution . . . ." 



                                                                                                                                                        

                           "The amount of attorney's fees to award under [former Alaska Appellate]  



                                                                                                                                                                  

Rule 508(e) is 'a matter committed to the sound discretion of [the] trial courts, when  



                                                                                        9  

                                                                                       

sitting as intermediate appellate tribunals.' " 



             5             Because we affirm the superior court's decision affirming the Boundary  



                                                                                                                                                                   

Commission's incorporation decision, we do not need to decide whether the de facto  

                                                                                                                                                                       

incorporation doctrine precludes a challenge to an incorporation decision or whether the  

                                                                                                                                                                       

superior court abused its discretion by denying Petersburg's motion to supplement the  

                                                                                                                                            

record with evidence to support its de facto incorporation arguments.  



             6            Lake  & Peninsula  Borough  Assembly  v.  Oberlatz,  329  P.3d  214,  221  

                                                                                                                                                                    

(Alaska 2014) (quoting City of Nome v. Catholic Bishop of N. Alaska, 707 P.2d 870, 875  

                                                                                                                                                                      

(Alaska 1985)).  

                                    



             7            Davis Wright Tremaine LLP v. State, Dep't of Admin., 324 P.3d 293, 298- 

                                                                                                                                                                    

99 (Alaska 2014).  

                        



             8            Alaska Fish & Wildlife Conservation Fund v. State , 347 P.3d 97, 102  

                                                                                                                                                                     

(Alaska 2015).  

                 



             9             Titus v. State, Dep't of Admin., Div.of Motor Vehicles, 305 P.3d 1271, 1282  

                                                                                                                                                                   

(Alaska 2013) (quoting Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478, 482  

                                                                                                                                                                     

                                                                                                                                                  (continued...)  



                                                                                   -9-                                                                            7067
  


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

IV.	       DISCUSSION  



                                                                                                                     

           A.	       TheBoundary CommissionSatisfiedTheConstitutional Requirement  

                                                                                      

                     That A Borough Maximize Common Interests.  



                                                                                                                      

                     1.	        Relevant constitutional, statutory, and regulatory provisions  



                                                                                                                                            

                     Article  X  of  the  Alaska  Constitution  addresses  local  government.  



                                                                                                                          

Article X, section 1 provides:  "The purpose of this article is to provide for maximum  



                                                                                                                              

local  self-government  with  a  minimum  of  local  government  units,  and  to  prevent  



                                                                                                                                 

duplication of tax-levying jurisdictions."  Article X, section 3 requires that the entire  



                                                                                                                                        

state be divided into organized or unorganized boroughs "in a manner and according to  



                                                                                                   

standards  provided  by  law.                      The  standards  shall  include  population,  geography,  



                                                                                                                                     

economy, transportation and other factors.  Each borough shall embrace an area and  



                                                                                                                

population with common interests to the maximum degree possible."  



                                                                                                                                            

                     The constitution authorizes the creation of the Boundary Commission:  



                                                                                                                                       

Article X, section 12 provides that "[a] local boundary commission or board shall be  



                                                                                                                           

established by law . . . [and] may consider any proposed local government boundary  



                                                                                                                                 

change." We have explained that the Boundary Commission was created because "local  



                                                                                                                                       

political decisions do not usually create proper boundaries and . . . boundaries should be  

                                                   10    Alaska  Statute  44.33.812  describes  some  of  the  

                                                                                                                                     

                                        

established  at  the  state  level." 



Boundary Commission's powers and duties:  "The Local Boundary Commission shall  

                                                                                             



. . . adopt regulations providing standards and procedures for municipal incorporation,  

                                                                                                                    



annexation, detachment, merger, consolidation, reclassification, and dissolution . . . ."  

                                                                                                                                       



           9         (...continued)  



              

(Alaska 1984)).  



           10        Fairview Pub. Util. Dist. No. One v. City of Anchorage                                , 368 P.2d 540, 543         



(Alaska 1962).   



                                                                  -10-	                                                           7067
  


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

                                                              Under AS 29.05.031 an area may incorporate as a borough if it satisfies                                                                                                                                                                                                                                      



population, geographic boundary, economic, and transportation criteria.                                                                                                                                                                                                                                                                                  And under   



AS 29.05.100(a) the Boundary Commission may accept an incorporation petition upon                                                                                                                                                                                                                                                                                                        



 finding that the petition meets constitutional, statutory, and regulatory requirements and                                                                                                                                                                                                                                                                                                     



that incorporation "is in the best interests of the state."                                                                                                                                                                                                       The Boundary Commission's                                                 

                                                                                                                                                                                                                                                                                                                                             11 and establish  

regulations further delineate the requirements for borough incorporation,                                                                                                                                                                                                                                                                                               

procedures for reviewing petitions.12  

                                                                                                                                                                                           



                                                              2.	                            Juneau's   preliminary   arguments   regarding   the   Boundary  

                                                                                             Commission's decision not to consolidate the petitions and the   

                                                                                             evidence considered by the Boundary Commission                                                                                                                                             



                                                              The discretionary consolidation or concurrent consideration of conflicting  

                                                                                                                                                                                                                                                                                                                                                              



                                                                                                                                                                                                 13  

petitions is authorized by 3 AAC 110.430.                                                                                                                                                                                                                                                                                                                

                                                                                                                                                                                                            Juneau has not challenged this regulation's  



                                                                                                                                                                                                                                                                                                                                                            

validity  on  appeal,  and  Juneau  concedes  it  "is  not  suggesting  that  the  [Boundary  



                                                                                                                                                                                                                                                                                                                                                                                                                   

Commission] was required to consolidate its petition proceedings with [Petersburg's]."  



                               11                             See  3 AAC 110.045 (providing list of factors to consider, and requiring that                                                                                                                                                                                                                                                     



"the   social,   cultural,   and   economic   characteristics   and   activities   of   the   people   in   a  

proposed borough must be interrelated and integrated"); 3 AAC 110.050 (providing list                                                                                                                                                                                                                                                                                                              

of factors to consider, and requiring that "[t]he population of a proposed borough must                                                                                                                                                                                                                                                                                                   

be sufficiently large and stable to support the proposed borough government"); 3 AAC                                                                                                                                                                                                                                                                                              

 110.055   (providing list of factors to consider, and requiring that "the economy of a                                                                                                                                                                                                                                                                                                                   

proposed borough must include the human and financial resources necessary to provide                                                                                                                                                                                                                                                                                         

the development of essential municipal services on an efficient, cost-effective level");                                                                                                                                                                                                                                                                                     

 3 AAC 110.060 (providing list of factors to consider, and requiring that "the boundaries                                                                                                                                                                                                                                                                    

of a proposed borough must conform generally to natural geography, must be on a                                                                                                                                                                                                                                                                                                                           

regional scale suitable for borough government, and must include all land and water                                                                                                                                                                                                                                                                                                  

necessary to provide the full development of essential municipal services on an efficient,                                                                                                                                                                                                                                                                             

cost-effective   level");   3   AAC   110.065   (providing   list   of   best   interests   factors   to  

consider).  



                               12                             3 AAC 110.400-.700.  

                                                                                                 



                               13                             See supra note 1.  

                                                                                                                                    



                                                                                                                                                                                               -11-	                                                                                                                                                                                      7067
  


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

But Juneau nonetheless accuses the Boundary Commission of "applying the doctrine of                                                                                                      



                                         14  

prior jurisdiction,"                                                                                                                                                    

                                             and asserts that by doing so Juneau was precluded from providing  



                                                                               

adequate evidence to the Boundary Commission.  



                                                                                                                                                                               

                             Juneau argues that although the Boundary Commission first stated it would  



                                                                                                                                                                                   

consider Juneau's petition, it contradicted itself and determined that it "would only  



                                                                                                                                                                               

consider comments and briefing related to the Petersburg petition."  And Juneau argues  



                                                                                                                                                                       

that at the decisional hearing "[Juneau] was limited to presenting only those arguments  



                                                                                                                                                                                   

it  had  presented  in  its  responsive  brief  to  the  Petersburg  petition.                                                                                 [Juneau]  was  



                                                                                                                                                                                         

prohibited from using its own annexation petition or supporting documents - even as  



                                                                               

demonstrative aids to its witnesses' testimony."  



                                                                                                                                                                     

                             The record does not support Juneau's assertions.  The record establishes  



                                                                                                                                                                                    

that  the  Boundary  Commission  considered  Juneau's  alternative  consolidation  and  



                                                                                                                                                                                        

postponement requests, recognized its own discretionary authority, and exercised its  



                                                                                                                                                                     

discretion to not consolidate the petitions or let Juneau's petition catch up by postponing  



                                                                                                                                                                                         

consideration of the Petersburg petition.  This was not an application of the doctrine of  



                                                                                                                                                                           

prior jurisdiction, but rather was an exercise of agency discretion that Juneau does not  



                       

otherwise contest.  



                                                                                                                                                                               

                             The record also establishes that the Boundary Commission allowed Juneau  



                                                                                                                                                                                        

to submit evidence and that the Boundary Commission considered Juneau's evidence -  



               14            Beforetheenactmentof19                                    AAC10.835                   (1988),sincerevised                           and rewritten  



as   19   AAC   10.430  (1992),   and   then   relocated   to   3   AAC   110.430   (1999),   "[t]he  

[Boundary Commission] ha[d] no statutes or regulations that control[led] the situation                                                 

where   two   municipalities   propose[d]   to   annex   some   or   all   of   the   same   territory."  

Overlapping Annexation Proposals, 1986 I                                                     NFORMAL  OP. A                      TT'Y  GEN. 341.                    Thus, in an         

informal opinion, the attorney general's office recommended applying the common law                                                                                                   

doctrine of prior jurisdiction.                                  Id.   "Generally stated, the doctrine is one of first in time,                                                   

first in right; the first [municipality] to initiate proceedings . . . has priority, to the                                                                                           

exclusion of any other [municipality] . . . ."                                                  Id.  



                                                                                          -12-                                                                                    7067
  


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

indeed, during oral argument before us Juneau was unable to identify any point in the                                                                                                                                                                                          



record when it was precluded from submitting specific evidence that it wanted to submit.                                                                                                                                                                                                    



Juneau cited to its own annexation petition in the Petersburg proceedings, submitted a  



report   attempting   to   establish   its   closer   connection   to   the   disputed   area,   and   had  



witnesses testify at the Petersburg decisional hearing. And the Boundary Commission's                                                                                                                                                     



 final   decision   expressly   considered   Juneau's   claim   to   the   overlapping   area   when  



amending thePetersburgpetition: BoundaryCommission                                                                                                                                     commissioners noted Juneau's  



arguments that the contested area was tied to Juneau and "also considered Juneau's                                                                                                                                                                         



advocacy of its ties to the area" before ultimately approving the proposed Petersburg                                                                                                                                                                 



borough, with an amendment excluding Tracy Arm.                                                                                                          

                                            3.                   Juneau's constitutional argument                                                                                     15  



                                                                                                                                                                                                                                                     

                                            Juneau   asserts   that   under   the   Alaska   Constitution   the   Boundary  



                                                                                                                                                                                                                                                                          

Commission must "make boundary determinations from a statewide perspective after  



                                                                                                                                                                                                                                                             

ensuring that the resulting borough will encompass a population and area with common  



                                                                                                                                                                                                                                                      

interests  to  the  maximum  degree  possible."                                                                                                                    Juneau  argues  that  the  Boundary  



                                                                                                                                                                                                                                                                                     

Commission violated its constitutional obligation to make borough decisions from a  



                                                                                                                                                                                                                   

 statewide perspective when it refused to conduct a head-to-head analysis to determine  



                                                                                                                                                                                                                                                                  

whether Juneau or Petersburg "had superior common interests to the contested area."  



                      15                    "In construing a constitutional provision, we must give it a reasonable and                                                                                                                                                       



practical interpretation in accordance with common sense and consonant with the plain                                                                                                                                                                                    

meaning   and   purpose   of   the   provision   and   the   intent   of   the   framers."     Sullivan   v.  

ResistingEnvtl. Destruction on Indigenous Lands (REDOIL)                                                                                                                                          , 311 P.3d 625, 629 (Alaska                                   

2013) (quoting                                    Legislative Council v. Knowles                                                                       , 988 P.2d 604, 607 n.11 (Alaska 1999))                                                                     

 (internal quotation marks omitted).                                                 



                                                                                                                                      -13-                                                                                                                               7067
  


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

                        Juneau primarily relies on our decision in                                 Petitioners for Incorporation of                      



                                                                                                           16  

City & Borough of Yakutat v. Local Boundary Commission                                                    .                               

                                                                                                               In Yakutat the Boundary  



                                                                                                                                                

Commission  had  amended  an  incorporation  petition's  proposed  boundaries  before  

                                                                             17   The petitioners appealed, arguing that the  

                                                                                                                                                       

                                                               

ultimately approving the amended petition. 



Boundary Commissionwasnot authorizedtoaltertheproposedboundaries "without first  

                                                                                                                                                     



determining that the proposed borough, with its boundaries unaltered, would fail to meet  

                                                                                                                                                    

the  statutory  standards  for  incorporation."18                                         We  concluded  that  the  Boundary  

                                                                                                                                         



Commission could not "alter boundaries of proposed boroughs without any preliminary  

                                                                                                                                       

finding of noncompliance."19                            But noting that the Boundary Commission's statutory  

                                                                                                                                            



powers must be interpreted in accordance with article X, section 3's requirement that  

                                                                                                                                                     



"[e]ach borough shall embrace an area and population with common interests to the  

                                                                                                                                                      

                                                  20  we explained:  

maximum degree possible,"                                                        

                                 



                        [T]he  provisions  of  AS  29.05.100(a)  dealing  with  the  

                                                                                                                             

                        rejection, acceptance, and alteration of proposed boroughs  

                                                                                                                   

                        must         be      interpreted            to      require         that       the      [Boundary  

                                                                                                              

                        Commission] apply the statutory standards for incorporation  

                                                                                                            

                        in  the  relative  sense  implicit  in  the  constitutional  term  

                                                                                                                           

                        "maximum                  degree           possible."                   In      other          words,  

                                                                                                                    

                        AS 29.05.100(a) must be construed to mean that, in deciding  

                                                                                                                     

                        if the statutory standards for incorporation have been met, the  

                                                                                                                               

                        Boundary Commission is required to determine whether the  

                                                                                                                               

                        boundaries  set  out  in  a  petition  embrace  an  area  and  

                                                                                                                            



            16          900 P.2d 721 (Alaska 1995).              



            17          Id.  at 722.   



            18          Id.  



            19          Id.  at 725.   



            20          Id.  (emphasis added) (quoting Alaska Const. art. X,  3).                                        



                                                                          -14-                                                                     7067
  


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

                      population with common interests to the maximum degree                                 

                                    [21]  

                      possible.            



We further explained that "[a]n informed decision as to whether boundaries proposed in  

                                                                                                                                            



a petition for incorporation maximize the common interests of the area and population  

                                                                                                                             



and thus meet the applicable statutory standards presupposes a thorough consideration  

                                                                                                                        

of alternative boundaries and a decision as to what boundaries would be optimal."22  

                                                                                                                                           



                      We ultimately concluded that the Boundary Commission impliedly found  

                                                                                                                                     



the unamended petition failed to maximize common interests "because the commission  

                                                                                                                           



believed that the affected area lacked sufficient cohesiveness to the remaining area of the  

                                                                                                                                          



borough and enjoyed greater ties and common interests with the Prince William Sound  

                                                                                                                                    

area."23        We  held  that  the  Boundary  Commission  is  not  required  to  "approve  any  

                                                                                                                                        



minimally acceptable petition for incorporation . . . . [And] the [Boundary Commission]  

                                                                                                                         



acted well within the purview of its authority in considering the desirability of future  

                                                                                                                                     



incorporation of neighboring areas such as Prince William Sound and the interests of  

                                                                                                                                           

affected land owners and users . . . ."24  

                                                                  



                                                                                                             

                      Juneau argues that "the  Yakutat case stands for the proposition that the  



                                                                                                                                    

[Boundary Commission] has no discretion to ignore a competing petition. . . . [T]he  



                                                                            

[Boundary Commission] must fully consider both petitions before making a boundary  



                                                                                                                               

determination as to any contested area; it cannot make a constitutionally valid boundary  



                                                                                                                          

determination without doing so."  Juneau further argues that the Alaska Constitution  



                                                                                                                      

"does not simply require that 'the' resulting borough 'embrace an area and population  



           21         Id.  



           22         Id.  



           23         Id.  at 726-27.   



           24         Id. at 727.  

                                



                                                                    -15-                                                              7067
  


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

with common interests to the maximum degree possible;' it requires that 'each' borough                                                                                                                                                    



                                                                                                      25  

meet that constitutional standard."                                                                                                                                                                                                     

                                                                                                              Finally Juneau argues that in Yakutat we approved  



the Boundary Commission's comprehensive approach, focusing on the regional effect  



                                                                                                                                                                                                                                                          

of a proposed borough boundary and ensuring that other boroughs in addition to the  



                                                                                                                                                                   

proposed Yakutat borough would maximize common interests.  



                                                                                                                                                                                                                                             

                                        Whiletheframers'useoftheword "each"requires consideration ofoptimal  



                                                                                                                                                                                                                                          

or alternative boundaries for any proposed borough, the constitution does not mandate  



                                                                                                                                                                                                                                     

the head-to-head analysis Juneau seeks.  In  Yakutat we explained that the Boundary  



                                                                                                                                                                                                                                              

Commission's task is to determine "whether an area is cohesive and prosperous enough  

                                                                                  26      We affirmed the Boundary Commission's determination  

                                                                                                                                                                                                                          

for local self-government." 



that amended boundaries were the most appropriate for Yakutat, noting the Boundary  

                                                                                                                                                                                                                                      



Commission's  specific  findings  that  the  proposed  Yakutat  borough  did  not  have  

                                                                                                                                                                                                                                                   



                    25                  Juneau's briefing to us also mentions its argument to the trial court:                                                                                                                                       



                                         [A]s the [Boundary Commission] had already made findings                                                                                                  

                                        with respect to the area's model borough boundaries with                                                                                                              

                                        relation  to   [Juneau],   and   as   [Juneau]   had   significant   and  

                                        demonstrable ties to the unorganized remnant area, it was                                                                                                              

                                        incumbent    on    the    [Boundary    Commission]    to    reserve  

                                        decision   on   the   unorganized   remnant  area   until   it   had  

                                        thoroughly considered [Juneau's] claims.                                                               



Juneau has not adequately briefed this argument on appeal and it is therefore waived.                                                                                                                                                                                  

See Wilson v. State, Dep't of Law                                                                , 355 P.3d 549, 557 (Alaska 2015) (refusing to consider                                                                                   

an inadequately briefed argument).                                                                        We note that even had Juneau raised this argument,                                                                          

the model borough boundaries are a factor that the Boundary Commission                                                                                                                                                    may  consider.   

3 AAC 110.060(b).                                            



                    26                   Yakutat, 900 P.2d at 726 (quoting Mobil Oil Corp. v. Local Boundary  

                                                                                                                                                                                                                                     

 Comm'n, 518 P.2d 92, 98 (Alaska 1974)).  

                                                                                                         



                                                                                                                            -16-                                                                                                                     7067
  


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

                                                                                                                                                         27  

 sufficient common interests with a specific area included in the incorporation petition.                                                                     



                                                                                                                                                       

 Although we noted that the Prince William Sound area probably had greater ties to the  



                                                                                                                                               

 removed area, we emphasized the Boundary Commission's broad discretion to analyze  



                                                                                                                                                      

 alternative  boundaries  and  determine  the  "  'most  appropriate  boundaries'  for  the  

                                    28  We did not require analyzing whether Yakutat's petition included  

                                                                                                                                             

proposed borough ." 



 only areas that had greater common interests with Yakutat than any other potential  

                                                                                                                                            



borough; rather we affirmed the Boundary Commission's determination of the most  

                                                                                                                                                   

 desirable boundaries for the Yakutat borough.29  

                                                                                        



                        Buteven though theBoundary Commission was not required to analyzethe  

                                                                                                                                                       



 Juneau  and  Petersburg  petitions  head-to-head,  the  Boundary  Commission  had  to  

                                                                                                                                                        



 determine whether the proposed Petersburg borough "embrace[d] an area with common  

                                                                                                                                             

                                                                              30   And this common-interest determination  

 interests to the maximum degree possible."                                                                                        

                                                             



 "presupposes a thorough consideration of alternative boundaries and a decision as to  

                                                                                                                                                        

                                                                  31    Contrary to Juneau's assertions, the Boundary  

 what boundaries would be optimal."                                                                                                       

                                                  



 Commission did not disclaim a duty to make decisions from a statewide perspective.  

                                                                                                                                      



 Rather the Boundary Commission noted that it was not necessarily required to conduct  

                                                                                                                                              



 a head-to-head analysis of the competing petitions.  And our earlier discussion of the  

                                                                                                                                                       



 Boundary Commission's full consideration of Juneau's evidence and arguments makes  

                                                                                                                                                 



 clear that the Boundary Commission fulfilled its duty.  

                                                                                         



            27          Id.  at 727 & n.6.       



            28          Id.  at 725-27 (emphasis added).             



            29          Id.  



            30          Alaska Const. art. X,  3.                 



            31           Yakutat, 900 P.2d at 725.             



                                                                          -17-                                                                     7067
  


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

                                                 We therefore conclude that the Boundary Commission satisfied article X,                                                                                                                                                                                            



section 3 and affirm the decision approving the amended Petersburg petition.                                                                                                                                                                                



                         B.	                     The Superior Court Did Not Abuse Its Discretion When Granting                                                                                                                                                                         

                                                 Partial Attorney's Fees.                                                                       



                                                 Petersburg argues that the superior court should have awarded at least 30%                                                                                                                                                                                 



of its fees incurred during the administrative appeal because: (1) the agency record was                                                                                                                                                                                                                      



 1,658 pages long "and featured multiple factual and legal arguments"; and (2) "[t]he                                                                                                                                                                                                                 



issues in the appeal were of substantial importance to [Petersburg] . . . ."                                                                                                                                                                                                         When the   



superior   court   awarded   attorney's   fees   Alaska   Appellate   Rule   508(e)   provided:   



                                                                                                                                                                                                                                                                                                         32  

"Attorney's fees may be allowed in an amount to be determined by the court."                                                                                                                                                                                                                                      In  



                                                      

administrative appeals:  



                                                                                                                                                                                                                                                        

                                                 The extent to which litigants have been involved in prior  

                                                                                                                                                                                                                                                                   

                                                 administrative proceedings, and the cost thereof, as well as  

                                                                                                                                                                                                                                                                        

                                                 the nature of judicial review and its cost, are factors which a  

                                                                                                                                                                                                                                                            

                                                 trial   court   may   wish   to   consider   in   determining   the  

                                                                                                                                                                                                                                                            

                                                 application   of   Appellate   Rule   508(e).                                                                                                                         Likewise,   the  

                                                                                                                                                                                                                                                                   

                                                 importance to the litigants of rights asserted is a factor to be  

                                                 considered.[33]  



                        32                       The superior court's order is dated April 24, 2014 and is subject to an                                                                                                                                                                                           



earlier version of Rule 508.                                                                             Rule 508(e) has since been amended by Supreme Court                                                                                                                                           

Order   1843   and   now   provides:     "Attorney's   fees   shall   not   be   awarded   unless  

(1) attorney's fees are provided by statute, caselaw, or contract; . . . [or] (4) the appeal                                                                                                                                                    

was taken under Rule 601, in which case the court shall award the prevailing party 20%                                                                                                                                                                                                                      

of its actual attorney's fees that were necessarily incurred . . . ."                                                                                                                                                                         Rule 601 "applies to                                                   

requests to the superior court to review decisions of the district court or an administrative                                                                                                                                                                            

agency . . . either by appeal or by petition for review."                                                                                                                                                 



                        33                      Laidlaw Transit, Inc. v. Anchorage Sch. Dist., 118 P.3d 1018, 1038-39  

                                                                                                                                                                                                                                                                                             

(Alaska 2005) (quoting Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478, 482-83  

                                                                                                                                                                                                                                                                                                  

(Alaska 1984)).  

                                                            



                                                                                                                                                       -18-	                                                                                                                                               7067
  


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

                                                  The court had discretion whether to award any attorney's fees at all, and                                                                                                                                                                         



when awarding fees the court had discretion to award any reasonable amount. Although                                                                                                                                                                                                         



the length of the administrative record, the complexity of arguments, and the importance                                                                                                                                                                                                



of the issues on appeal may have been sufficient to support a conclusion that a 30%                                                                                                                                                                                                                       



attorney's fees award was reasonable, they are insufficient to establish that the superior                                                                                                                                                                                                        



court's decision to award a substantially smaller amount necessarily was manifestly                                                                                                                                                                                                      

                                                    34        We therefore affirm the superior court's attorney's fees award.  

unreasonable.                                                                                                                                                                                                                                                                



V.                       CONCLUSION  



                                                  We  AFFIRM  the  superior  court's  decision  upholding  the  Boundary  

                                                                                                                                                                                                                                                                                         



Commission's approval  of Petersburg's  incorporation petition  as amended,  and  we  

                                                                                                                                                                                                                                                                                                                    



AFFIRM the superior court's attorney's fees award to Petersburg.  

                                                                                                                                                                                                           



                         34                       We  will  overturn  an  attorney's  fees  award  only  if  it  is  manifestly  

                                                                                                                                                                                                                                                                                       

unreasonable.  Id. at 1038.  

                                                                             



                                                                                                                                                         -19-                                                                                                                                                  7067  

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