You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Mortvedt v. Alaska Dep't. of Natural Resources (6/20/97), 941 P 2d 126
<![CDATA[
NOTICE: This opinion is subject to formal 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.
THE SUPREME COURT OF THE STATE OF ALASKA
ART MORTVEDT, )
) Supreme Court No. S-7297
Appellant, )
) Superior Court No.
v. ) 4FA-93-2835 CI
)
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF NATURAL RESOURCES, )
) [No. 4838 - June 20, 1997]
Appellee. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Ralph R. Beistline, Judge.
Appearances: Art Mortvedt, pro se, Manley Hot
Springs. Cameron M. Leonard, Assistant Attorney General,
Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for
Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
RABINOWITZ, Justice.
I. INTRODUCTION
Art Mortvedt appeals separate decisions rendered by the
Department of Natural Resources (DNR), which rejected his
applications for a Personal Use Cabin Permit (PUCP) and for a
negotiated commercial lease. We affirm.
II. FACTS AND PROCEEDINGS
Many of the relevant facts have previously been set forth
in Mortvedt v. State, Department of Natural Resources, 858 P.2d
1140 (Alaska 1993) (Mortvedt I). Mortvedt is a professional
trapper, wilderness guide, and polar technician. The cabin site
involved in this appeal is located at the juncture of the Kobuk and
Pah Rivers. In 1981 Mortvedt built a log cabin at the site. He
asserts that in 1984 he asked a friend who worked at the DNR to
send him information pertaining to the DNR's upcoming PUCP program.
Mortvedt subsequently travelled to Antarctica, and never received
the requested information. The relevant filing period expired
before Mortvedt returned to Alaska, and he did not submit a PUCP
application for months following his return. After the DNR denied
his untimely PUCP application, Mortvedt appealed to the superior
court, which affirmed the DNR's decision. On appeal to this court,
we reversed the superior court's affirmance of DNR's denial of
Mortvedt's PUCP application, and remanded the matter to the DNR
with directions to determine whether Mortvedt had established the
elements of equitable estoppel. Mortvedt I, 858 P.2d at 1140-44.
On remand the DNR again denied Mortvedt's PUCP application.
At the time Mortvedt's appeal of the DNR's denial of his
PUCP was pending before the superior court in 1989, Mortvedt
applied for a negotiated commercial lease of the site, proposing to
use the one-acre location as a stopover point for his guided
wilderness trips. [Fn. 1] The DNR initially approved the lease,
but the ruling was appealed by the Northwest Arctic Borough (NAB),
which asserted that Mortvedt's proposed use of the site would
damage archaeological relics located on the site. The site's
historic -archaeological importance was supported by a report
submitted by the NAB and authored by two archaeologists.
Consequently, the DNR denied Mortvedt's application for a
negotiated commercial lease.
Mortvedt then appealed the DNR's decision regarding both
the PUCP and the negotiated commercial lease to the superior court
which affirmed both decisions. Mortvedt now appeals to this court.
III. STANDARD OF REVIEW
The DNR determined that issuance of the PUCP and
negotiated commercial lease would not be in the best interests of
the state. The governing standard of review is set forth in
Trustees for Alaska v. State, DNR, 865 P.2d 745, 747 (Alaska 1993).
There we articulated the relevant standard of review in the
following manner:
DNR's best-interest determination is subject
to deferential review by this court. Since
the determination "involve[s] complex subject
matter or fundamental policy formulations,"
this court reviews the decision "only to the
extent necessary to ascertain whether the
decision has a 'reasonable basis.'"
Nevertheless, this court must ensure that DNR
has taken a "hard look"at the salient
problems and has genuinely engaged in reasoned
decision making. A decision will be regarded
as arbitrary "where an agency fails to
consider an important factor in making its
decision."
Id. (citations omitted.) Additionally, no deference is granted to
the decisions of the superior court since it acted as an
intermediate appellate court. Tesoro Alaska Petroleum Co. v. Kenai
Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987).
IV. DISCUSSION
A. The Negotiated Commercial Lease Application
The Alaska Historic Preservation Act is designed to
preserve Alaska's cultural legacy by protecting historical sites
and artifacts. [Fn. 2] Alaska Statute 41.35.010 declares:
Declaration of policy. It is the policy of
the state to preserve and protect the
historic, prehistoric, and archeological
resources of Alaska from loss, desecration,
and destruction so that the scientific,
historic, and cultural heritage embodied in
these resources may pass undiminished to
future generations. To this end, the
legislature finds and declares that the
historic, prehistoric, and archeological
resources of the state are properly the
subject of concerted and coordinated efforts
exercised on behalf of the general welfare of
the public in order that these resources may
be located, preserved, studied, exhibited, and
evaluated.[ [Fn. 3]]
In enumerating the powers of the Director of DNR, the
legislature provided in part that
[u]pon a written finding that the interests of
the state will be best served, the director
may, with the consent of the commissioner,
approve contracts for the sale, lease, or
other disposal of available land . . . . In
addition to the conditions and limitations
imposed by law, the director may impose
additional conditions or limitations in the
contracts as the director determines.[ [Fn. 4]]
After an extensive review of the case, DNR Commissioner
Harry Noah entered a final decision rejecting Mortvedt's
application for a negotiated lease application. In his decision
the Commissioner wrote:
Based on this review, and in particular, a
review of the report filed by Douglas Anderson
and Robert Gal, both professional
archaeologists, I am persuaded that your cabin
is located in the middle of a very significant
archeological site in the ancient village of
Tautittine. Therefore, I am further persuaded
that issuing a negotiated lease in this
vicinity would potentially jeopardize the
cultural and archeological integrity of the
site, and would therefore not be in the best
interests of the state. AS 38.05.035(e). My
conclusion in this matter is consistent with
the state's policy to protect its
archeological resources. See the Alaska
Historic Preservation Act, AS 41.35.010 et
seq.
Mortvedt then moved for reconsideration of the
Commissioner's decision on two grounds:
1. [That] [t]here is no evidence of an
archaeological resource within the one acre
land parcel delineated by the brushed lines
surrounding [my] cabin [and]
2. [That in connection with my winter
trapping] there is no threat to any
archaeological resource due to frozen ground.
During the summer . . . [an] occasional
stopover during commercial river trips poses
no more threat to archaeological resources
than any other casual boater "passing through
the vicinity".
The Commissioner found Mortvedt's assertion that the proposed lease
site contains no evidence of archaeological resources to be without
merit. [Fn. 5] In rejecting Mortvedt's second ground for
reconsideration, the Commissioner concluded, "Accordingly, I must
still find your assertion that continued repetitive use of the
proposed lease area poses no substantial threat to significant
archaeological resources is without merit."[Fn. 6]
Review of the record discloses more than an adequate
evidentiary basis for the Commissioner's best interests rejection
of Mortvedt's application for a negotiated commercial lease. In
short, we are persuaded that the Commissioner's decision is
reflective of a "hard look"and has a reasonable basis in law and
fact.
In reaching this holding we necessarily reject Mortvedt's
estoppel argument. This argument is based in part on the fact,
alluded to above, that the DNR denied Mortvedt's application for a
negotiated commercial lease of the site after it became aware of
its archaeological significance. However, prior to this
determination, the DNR sent Mortvedt a tentative approval of his
lease application which read in part, "The Final Finding and
Decision has been executed approving your lease application for a
term of 10 years." Mortvedt claims that the DNR should be
equitably estopped from denying him the lease on the basis of the
archaeological evidence, since he relied on the approval document
to book tours using the cabin, which he subsequently was forced to
cancel. Mortvedt additionally claims that the work he performed in
order to prepare his application should serve to estop the DNR from
rejecting his lease application.
These arguments are not persuasive. The approval
document Mortvedt received from the DNR regarding the lease
explicitly stated:
Appeal Provisions
A person adversely affected by this decision
may appeal this decision . . . . Any appeal
must be received . . . within 30 calendar days
. . . .
Thus, to the extent Mortvedt relied on the mailing and suffered
consequent harm, his reliance was unreasonable, given the explicit
notice of appeal contained in it. [Fn. 7]
B. Mortvedt's PUCP Application
On remand from Mortvedt I, the DNR denied the PUCP
application on two grounds. First, the DNR held that Mortvedt did
not satisfy the elements of equitable estoppel. As an alternative
holding, the DNR considered the merits of Mortvedt's application
and denied him a PUCP on the merits. The DNR's decision was based
on 11 AAC 65.050(a) and 11 AAC 65.050(b)(6). 11 AAC 65.050(a)
states:
The department will issue and renew an
applicant's cabin permit if the director finds
in writing that the application is for a cabin
that . . . does not conflict with the public
interest criteria as described in (b) of this
section.
11 AAC 65.050(b) states in relevant part:
No permit will be issued for a cabin on state
land
. . .
(6) that serves an important ecological
function, or is especially sensitive to human
disturbance, as determined by the department
. . . .
Pointing to the archaeological finds located on the site
proposed for the PUCP, the DNR concluded that, even after
addressing the merits of Mortvedt's PUCP application, the PUCP
should not be issued. The DNR reasoned in part:
The Personal Use Cabin Permit regulations, 11
AAC 65, outline when a permit can not be
issued by the Division. Alaska Administrative
Code 11 AAC 65.050(b)(6) states that no
personal use cabin permit will be issued on
state land that serves an important ecological
function, or is especially sensitive to human
disturbance, as determined by the department.
The Department determined in the adjudication
of Mr. Mortvedt's commercial lease
application, ADL 414270, that this site
contained significant archaeological and
historical resources requiring protection
under the Alaska Historic Preservation Act, AS
41.35.010. The Department reached the same
conclusion for this personal use cabin permit
request as it is the same site.
Mortvedt alleges two main faults with the DNR's decision.
First, he claims that since the DNR did not know the archaeological
significance of the site at the confluence of the Pah and Kobuk
Rivers when he first submitted his PUCP application, it cannot now
rely on the archaeological significance of the location as a reason
for rejecting his application. [Fn. 8] Second, while Mortvedt
expresses concern for historic preservation, he argues that his
activity would not disturb the archaeological finds because he only
plans to use the cabin in winter when the ground is frozen.
Both arguments are unpersuasive. Regarding the first, it
is possible, as the superior court noted on appeal, that the
archaeological importance of the site would have become manifest
during the DNR's standard review of permit applications. Even if
this is not so, the state notes that it does not make sense, on a
policy level, to ignore subsequently discovered information which
is relevant to the DNR's decision. We agree. Thus, we conclude
that the DNR properly considered the archaeological evidence.
Regarding his second contention, Mortvedt has presented no evidence
or reports to support his claim that the archaeological evidence
would be immune from harm during the winter months. [Fn. 9]
Based upon our examination of the record, we hold that
the DNR's decision that issuing Mortvedt a PUCP for the Pah-Kobuk
Rivers site would conflict with the public interest should be
sustained. It is clear that there is an adequate evidentiary basis
for the DNR's public interest 11 AAC 65.050(a) and (b) ruling. We
are persuaded that the DNR in fact took a hard look at all the
relevant facts and had a reasonable basis for its decision in light
of the applicable law and relevant facts. [Fn. 10]
V. CONCLUSION
The superior court's affirmance of the DNR's rejections
of Mortvedt's PUCP and negotiated commercial lease applications is
AFFIRMED.
FOOTNOTES
Footnote 1:
Applicable regulations prohibited the use of a personal use
cabin for commercial activities. 11 AAC 65.090(6)(I). Given this
regulation, Mortvedt agreed to dismiss his PUCP appeal if DNR
issued a commercial lease.
Footnote 2:
AS 41.35.010-.240. Eyak Traditional Elders Council v.
Sherstone, Inc., 904 P.2d 420, 423 (Alaska 1995).
Footnote 3:
AS 41.35.230(2) defines "historic, prehistoric and
archaeological resources"to include "deposits, structures, ruins,
sites, . . . artifacts, . . . or other objects of antiquity which
provide information pertaining to the historical or prehistorical
culture of people in the state as well as to the natural history of
the state."
Footnote 4:
See also AS 38.05.075(f) and (h).
Footnote 5:
In reaching this conclusion the Commissioner explained:
The file contains a 1991 report prepared by
recognized professional archaeologists, Dr. D.D. Anderson of Brown
University and Mr. R. Gal of the Chukchi Campus, UAF that document
specific archaeological resources on the proposed lease site. That
report also documents the relationship of the proposed lease site
to other nearby archaeological sites that strongly suggest the
presence of a larger Tautittine complex. The 1991 report further
documents the presence of historic materials, some approximately
100 years of age, in the river directly in front of the area you
have applied to lease. The 1991 report by Dr. Anderson and Mr. Gal
concluded that the archaeological resources in the vicinity of the
proposed lease site: (a) are significant, and (b) indicate a time-
depth of perhaps 900 years. From an archaeological perspective the
area associated with the proposed lease site is directly associated
with state owned lands that are scientifically important because of
the opportunity to examine the trade between Inupiat and Indians
prior to the contact with Caucasian cultures and how these may have
changed after the contact with Caucasians.
Footnote 6:
The basis for this conclusion is found in part in the
following portion of the Commissioner's reconsideration decision:
Winter trapping and other transitory
activities when the ground is frozen are
generally recognized as having low threat to most archaeological
resources. In this case, however, we are dealing with actual
occupancy of the site with a permanent structure, some measure for
sanitation, storage of equipment and fuel, and apparently
periodically occupied by sled dogs. This type of use is not
consistent with the mandates of the Alaska Historic Preservation
Act (Title 41.35), especially when the repeated use is in direct
association with a significant archaeological site. Periodic use
of the proposed lease site for commercial float trips during the
summer when archaeological resources are most vulnerable to damage
and loss of scientific integrity are completely incompatible. The
State Historic Preservation Officer has previously noted that the
reported dumping of trash or storing dog dishes in an
archaeological feature is both inappropriate and disrespectful.
The brushed areas and foot travel to the proposed lease site across
an eroding river bank may accelerate erosion with potential direct
loss of scientific data. There is no comparison of the potential
threat to archaeologic resources from the periodic, repeated use of
the proposed lease site for commercial purposes, with the threat to
these significant resources by casual boaters simply passing
through the vicinity.
Footnote 7:
The elements of equitable estoppel are the assertion of a
position by conduct or word, reasonable reliance thereon by another
party, and resulting prejudice. The estoppel will be enforced only
to the extent that justice so requires. Mortvedt I, 858 P.2d at
1142.
To the extent that Mortvedt is claiming that the effort
he expended in preparing the application constitutes prejudice to
him, his argument is without merit.
Footnote 8:
As support for this proposition, Mortvedt relies on Walliker
v. Escott, 608 P.2d 1272, 1276 (Wyo. 1980). We discern no support
for his claim in that case.
Footnote 9:
See also note 6, supra.
Footnote 10:
This disposition makes it unnecessary to address the merits of
DNR's estoppel decision made in response to our initial remand.
Mortvedt also attempts to raise numerous other issues in this
appeal. However, as the State notes, Mortvedt failed to raise
these issues to either the DNR or on appeal to the superior court.
These points are therefore considered waived. Arnett v. Baskous,
856 P.2d 790, 791 n.1 (Alaska 1993).
]]>
