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J. Gates v. Tenakee Springs (12/6/91), 822 P 2d 455
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Notice: This is subject to formal correction
before publication in the Pacific Reporter.
Readers are requested to bring typographical
or other formal errors to the attention of
the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to
permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
JONI GATES, )
) Supreme Court File No. S-3624
Appellant, ) Superior Court No.
) 1JU-87-375CI
v. )
)
CITY OF TENAKEE SPRINGS, ) O P I N I O N
)
Appellee. )
) [No. 3781 - December 6,
1991]
Appeal from the Superior Court of the
State of Alaska, First Judicial District,
Juneau,
Thomas E. Schulz, Judge.
Appearances: Joni Gates, pro se,
Petersburg. William T. Council, Council &
Crosby, Juneau, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
COMPTON, Justice.
Joni Gates sued the City of Tenakee Springs
(hereinafter Tenakee Springs or city) as a result of
the city's decision to move a fence Gates had put up in
front of her property.1 The trial court granted
summary judgment for the city, saying both that Gates
failed to appeal an administrative decision to the
superior court within thirty days as required by Alaska
Appellate Rule 602(a)(2), and that the city had
municipal immunity against Gates' claims under AS
09.65.070. Gates' appeal to this court raises further
claims as well as challenging the judgment below.
Gates also appeals the trial court's awards of costs
and attorney's fees to Tenakee Springs.
I. FACTUAL AND PROCEDURAL BACKGROUND
Joni Gates owns a block of land adjoining Tenakee
Avenue in Tenakee Springs. In 1979, Gates requested
and was granted a permit to build an "encroachment"
consisting of a fence and gate in front of her property
on Tenakee Avenue. A survey provided by the city
indicates that the fence was, and still is, located on
the city-owned right-of-way. Gates, however, claimed
in the trial court that the fence had always been on
her property.
Tenakee Springs Ordinance 78-8, substantially reenacted
in Tenakee Springs Ordinance 81-2, governs the issuance
of encroachment permits. It allows the city to order
the change, relocation, or removal of any prior
authorized encroachment if required in connection with
the construction or maintenance of a street, road, or
trail.
In November 1984 a major storm damaged much of the
city. On December 14, the Tenakee Springs City Council
voted to have "right-of-way encroachments removed
within 7 days that would imped [sic] with construction
and/or maintenance of roads and trails." Gates was
notified by mail that her encroachment would have to be
moved because it interfered with repair of Tenakee
Avenue. Gates spoke out and organized a petition
against the council's action. Her petition was
considered twice and rejected by the Tenakee Springs
City Council. In view of Gates' refusal to move the
fence and gate herself, on January 11, 1985, the city
moved Gates' fence. Gates claims that this resulted in
the destruction of various items of real and personal
property. At least ten other encroachments were also
moved during repair of the road, according to the city.
Gates filed suit against the city on February 28, 1987,
claiming that the city violated her right to equal
protection of law by singling out her encroachment for
removal. She also alleged that the city destroyed her
real and personal property, destroyed an archaeological
site in violation of the Federal Antiquities Act,
unlawfully widened the Tenakee Trail, and violated her
right to due process of law in making the decision to
remove her fence.
Shortly thereafter Gates moved for summary judgment,
alleging violations of ten Alaska Statutes, seven
Tenakee Springs Ordinances, the federal Antiquities
Act, and her right to equal protection of law. The
city cross-moved for summary judgment, arguing that
there was no factual basis for Gates' claims. The city
also argued that its decision to move the fence was
administrative, and since it was made in December 1984
and Gates' complaint was not filed until February of
1987, the suit was barred under Appellate Rule
602(a)(2).2 Further, the city argued that any claims
Gates had for damages were barred by AS 09.65.070.3
The superior court denied Gates' motion and granted the
city's motion for summary judgment on both grounds.
The court awarded the city costs, including costs for
the survey of Gates' property, and attorney's fees.
Gates appeals the court's judgment, as well as the
awards of costs and attorney's fees.
II. APPELLATE RULE 602(a)(2) DOES NOT BAR
GATES' CLAIMS AS UNTIMELY?
The city argues, and the superior court agreed, that
the Tenakee Springs City Council was functioning as an
administrative agency when it decided to order removal
of Gates' encroachment. Thus, under Appellate Rule
602(a)(2), Gates only had thirty days to appeal the
council's decision to the superior court. It is
undisputed that Gates' complaint was untimely if Rule
602(a)(2) applies. Gates argues, however, that the
city council is a legislative body, not an
administrative agency, and thus her complaint was not
an administrative appeal. For the following reasons,
we need not resolve this dispute.
First, to the extent that Gates' claims stem from the
act of moving the fence, those claims were never
considered by the "agency." Assuming for the sake of
argument that the city council was acting as an
administrative agency, its involvement with this case
nevertheless ended before Gates' fence was moved.
Gates never brought any of her claims for damages or
statutory claims before the city council, nor was she
required to do so. It is therefore incorrect to
characterize her complaint to the superior court as an
administrative appeal; there was no administrative
decision to appeal. Thus, summary judgment under Rule
602(a)(2) was inappropriate on Gates' claims for
damages, her archaeological site claims, and her
statutory claims.
Several of Gates' claims were properly before the
"agency." All of her claims which stem from the city
council's decision to move the fence, rather than the
city's act of moving the fence, fall into this
category. This includes the claim that her
encroachment was singled out for removal in violation
of her right to equal protection of law, a claim which
was arguably raised before the city council during an
open hearing. Again, however, we need not address the
issue of whether the city council was acting as an
administrative agency in making its decision. We
conclude that each of Gates' claims which stem from the
city's decision to move the fence fails on the merits.
III. GATES' CLAIMS FOR DAMAGES
The superior court granted summary judgment for the
city on Gates' claims for damages on the theory of
municipal immunity under AS 09.65.070(d)(2) and (3).
The city defends this conclusion, saying that both its
decision to relocate Gates' fence and any consequences
from that decision are immunized from damage claims,
even if the decision or the consequences resulted from
bad faith. Gates argues there is no municipal immunity
in Alaska. Further, she points out that AS
09.65.070(d) does not bar suits for declaratory relief,
and argues that hers is such a claim (concerning
destruction of an archaeological site).
There is no merit to Gates' argument that immunity
should not apply because her claim is for declaratory
relief. Had she sued for declaratory or injunctive
relief to challenge the city action before the fence
was moved, that suit would not have been barred by
municipal immunity. A suit for damages caused by a
municipal decision, however, falls within the
provisions of AS 09.65.070(d)(3). Furthermore, Gates
is wrong when she says there is no municipal immunity
in Alaska. The cases she cites for that proposition,
City of Fairbanks v. Schaible, 375 P.2d 201 (Alaska
1962), and Scheele v. City of Anchorage, 385 P.2d 582
(Alaska 1963), were decided prior to the addition of
sections (d)(2) and (d)(3) to AS 09.65.070. The only
question is whether those sections are properly applied
to this factual situation.
We discussed AS 09.65.070(d)(3) in J&L Diversified
Enterprises v. Municipality of Anchorage, 736 P.2d 349
(Alaska 1987). We held that the purpose of the statute
is to relieve municipalities from the threat of suits
for damages resulting from licensing, permitting, and
zoning decisions. Of course, "a party threatened with
damage from such procedures may sue for injunctive or
declaratory relief" against the decision, thus
protecting "the individual's right to relief from a
wrongful decision . . . and preventing the possibility
that the threat of a lawsuit may influence a municipal
decision." Id. at 352. Such was not the nature of
Gates' suit. We conclude that the city's decision to
revoke Gates' permit is immunized under the plain
language of AS 09.65.070(d)(3). Thus, summary judgment
as to any damage claims resulting from the city's
decision to move the fence is affirmed.
The city also argues that it is similarly immunized
against a suit for any damages resulting from the act
of moving the fence, regardless of whether it was
performed negligently. The city recognizes the
distinction we have drawn between "planning" and
"operational"decisions in evaluating the exercise of
discretion in the sovereign immunity context, and
specifically under AS 09.65.070(d)(2). See Urethane
Specialties v. City of Valdez, 620 P.2d 683, 687-89
(Alaska 1980). It argues, however, that in this case,
its "planning"decision to relocate the fence and its
"operational" decision as to how to do so are
indistinguishable. This argument is not persuasive.
No evidence suggests that there is only one way to
remove a fence. A decision to order its removal is not
equivalent to a decision regarding the removal method
employed. While the city's discretionary policy
decision to have Gates' fence removed is immunized, any
decisions as to how that fence was to be removed are
operational, and not protected. If the fence was
removed negligently, for example, AS 09.65.070(d)(2)
would not immunize the city against a suit for damages
caused by that negligence.4
Gates is not entitled to any damage to the real
property where the fence stood or stands, however,
regardless of whether the city performed its work
negligently. That is because the fence always stood
and still stands on the right-of-way owned by Tenakee
Springs. Despite Gates' protests as to the legitimacy
of the survey, there is no genuine issue of material
fact on the question of her property boundaries. The
only evidence to contradict the findings of the
licensed surveyor is Gates' bare assertion that the
fence was on her property. Leaving aside the question
of whether this is an issue on which a lay opinion
would be sufficient to controvert an expert survey, we
affirm the superior court's finding of no issue of
material fact because Gates' assertion of ownership was
abandoned on appeal.
There is, however, a material issue of fact as to how
much damage to Gates' property was caused by the method
by which the city decided to remove Gates'
encroachment. Gates alleges the following seven items
of damage to her property: (1) damage to plants,
including a rose bush hedge; (2) blockage of entry to
her property from Tenakee Avenue; (3) spillage of fuel
oil on her property; (4) destruction of a culvert,
walkway, and retaining wall; (5) contamination of her
property as a result of the placement of a creosote
stringer at her gate; removal of her soil, cement, and
shovel; and (7) damage to the fence and fence posts.
We must therefore remand the case to determine whether
any of these alleged damages were the result of
negligent removal of Gates' encroachment.5
The city had argued for summary judgment on Gates'
damage claims regardless of municipal immunity because
she did not mitigate her damages. It is the "universal
rule that a wronged party must use reasonable efforts
to avoid the consequences of injury done by another."
University of Alaska v. Chauvin, 521 P.2d 1234, 1239
(Alaska 1974). A plaintiff's duty to make reasonable
efforts to mitigate damages does not extend to
subjecting oneself to undue risk and expense, however,
and whether efforts were reasonable or potential risk
and expense were undue are questions of fact for the
trial court. West v. Whitney-Fidalgo Seafoods, 628
P.2d 10, 18 (Alaska 1981).
IV. GATES' NON-DAMAGES CLAIMS FAIL ON THE MERITS
In addition to her claims for damages, Gates has raised
many statutory and other claims against the city. The
superior court granted summary judgment on some claims,
dismissed others, and declined to consider still others
because of its decision to grant summary judgment based
on Appellate Rule 602(a)(2). Since we conclude that
summary judgment on that basis was inappropriate, we
must address Gates' remaining claims here. These
claims present questions of law which we resolve based
on the facts in the record.
Most of the claims raised by Gates before the superior
court are addressed only cursorily or not addressed at
all by Gates in her brief to this court.6 We therefore
treat these claims as having been abandoned.7 Lewis v.
State, 469 P.2d 689, 691-92 (Alaska 1970). Gates also
raises several new matters before this court. These
matters, whether new issues or new theories presented
on appeal, will not be considered.8 Wickwire v.
McFadden, 633 P.2d 278 (Alaska 1981). Finally, Gates
raises several claims which are inappropriate in a
complaint against the city of Tenakee Springs.9 These
claims, as well, will not be considered.
The remaining non-damage claims are as follows: (A)
Gates was denied equal protection of law; (B) Gates was
denied due process of law; (C) city officials violated
conflict of interest statutes; (D) the city violated
federal and state statutes by destroying an
archaeological site; and (E) the city violated several
Alaska statutes in its action against Gates' property.
As stated earlier, the superior court granted summary
judgment on each of these claims under Appellate Rule
602(a)(2). Though we find that rule inapplicable, we
nevertheless conclude that each of these claims fails
on its merits.
A. Equal Protection Claim
Gates argues that hers was the only encroachment
targeted for removal by the Tenakee Springs City
Council, and that hers was also the only one removed.
She claims that it was discrimination, and not any
necessity for road maintenance or any other legitimate
reason, which motivated the city to revoke her
encroachment permit. The city calls this claim
frivolous, saying that at least seventeen property
owners received encroachment removal notices, and at
least ten encroachments were actually removed. The
city argues that Gates did not make out a prima facie
claim of denial of equal protection, and therefore it
is entitled to judgment as a matter of law on this
claim.
This claim was not addressed by the superior court.
The superior court indicated, however, that there were
material issues of fact which precluded summary
judgment for either side. We disagree.
"Selective enforcement of a statute violates the equal
protection clause only if it is part of a deliberate
and intentional plan to discriminate based on an
arbitrary or unjustifiable classification." Barber v.
Municipality of Anchorage, 776 P.2d 1035, 1040 (Alaska
1989). The plaintiff "has the initial burden of
producing evidence demonstrating discriminatory
intent." Id.; State v. Reefer King Co., 559 P.2d 56,
64-65 (Alaska 1976), modified on reh'g, 562 P.2d 702
(Alaska 1977). While there are disputed issues of
material fact in the record about how many
encroachments were moved, Gates presented no evidence
which would demonstrate discriminatory intent on the
part of the city. Rather, her evidence consisted of
conclusory accusations of discrimination based on the
number of encroachments removed. This is not a
sufficient showing to make a prima facie case. The
city is therefore entitled to summary judgment as a
matter of law on this claim.
B. Due Process Claim
Gates challenges the process by which the city decided
to move her fence. She claims that she was given
insufficient notice of the city's plans and that she
was not afforded the opportunity to appeal. The city
argues that Gates was given all the process she was
due. The city says her property interest, if she had
any, was minimal, and that even if the due process
clause were implicated, she was given adequate notice,
ample opportunity to be heard, and an opportunity to
present objections to the city's decision.
Furthermore, the city cites its own interests in the
emergency situation as justification for less process,
if any were due at all.
For due process to be implicated, there must be a
deprivation of a liberty or property interest
sufficient to warrant constitutional protection.
Hornaday v. Rowland, 674 P.2d 1333, 1344 (Alaska 1983).
Once such an interest is established, the procedural
safeguards required are determined by a balancing of
the private and public interests involved. Keyes v.
Humana Hosp. Alaska, 750 P.2d 343, 353 (Alaska 1988).
Gates' encroachment permit under Tenakee Springs
Ordinance 78-8 gave her the right to use the city's
land on Tenakee Avenue only until such time as the city
required the removal of the encroachment. It is
questionable whether this afforded Gates a property
right requiring constitutional protection. We need not
resolve that issue, however, because we find that even
if Gates was entitled to some process before removal of
her encroachment, she received all the process she was
due. It is undisputed that Gates received advance
notice of the city's intent to order removal of her
encroachment, and that Gates had a chance to appeal the
city's decision. It is also undisputed that nearly a
month elapsed between the city's initial decision and
the removal of Gates' encroachment. We conclude on
this record that Gates was given adequate notice and a
reasonable opportunity to object to the city's
decision. The city is therefore entitled to summary
judgment as a matter of law on this claim as well.
C. Conflict of Interest Claims
Gates argues that city officials violated AS 39.52.110,
39.52.120, and 39.52.150 by misusing city and state
funds during the period in which her encroachment was
removed. Neither the city nor the superior court
addressed these allegations, but Gates continues to
press them on appeal.
Alaska Statute 39.52.010-.960 is the Alaska Executive
Branch Ethics Act. It concerns ethical violations by
employees of the state executive branch, including
state agencies, boards and commissions. See AS
39.52.910. There is no allegation by Gates that the
officials whose conduct she questions were acting in
any state executive capacity. Rather, they were
members of a municipal city council. Thus, the
statutes do not provide Gates with a cause of action.
D. Archaeological Site Claims
Gates argues that an archaeological site on her land
was destroyed by the city, and that the city should
have to pay a fine under the federal Antiquities Act.
She seeks a declaratory judgment that the city
destroyed an archaeological site in violation of that
act. Gates further argues that the city's destruction
of this site without notifying the state Department of
Natural Resources violated AS 41.35.070.10 The city
argues that the statutes which Gates cites, both
federal and state, do not provide for any form of
private civil enforcement. Rather, they are criminal
statutes, or apply only to the Alaska Department of
Natural Resources. The city further argues that it
never found an archaeological site, so it had no duty
to report anything.
The superior court found that the federal Antiquities
Act was "not applicable to this case"because it is
only applicable to lands owned or controlled by the
United States.11 It therefore denied Gates' claims for
a declaratory judgment and a fine against the city
under that act. Since we affirm the superior court's
finding that the city owns the land in question, we
affirm this ruling. Gates' claim under AS 41.35.070
also has no merit. As the city correctly points out,
even if Gates did have standing to sue under this
statute, and even if it does apply to construction
performed by municipalities, there is no evidence in
the record which indicates that the city, during the
course of its work, found any evidence of an
archaeological site. Thus, the city is entitled to
summary judgment as a matter of law on this claim.
E. Statutory Claims Regarding Gates' Property
Gates argues that under AS 09.45.235, her "agricultural
operation"(various plants which she grew on the land
behind her fence) was not a private nuisance, and thus
the city's disruption of it was improper. Leaving
aside Gates' claims for damages to her plants, Gates
has no recourse under AS 09.45.235. As the city points
out, that statute is designed to provide a defense
against a nuisance action, not against a permit
revocation under city ordinances. This claim is
therefore without merit.
Gates also makes a claim under AS 46.09.020, alleging
that the city spilled a "barrel of fuel oil" on her
property. Assuming for the sake of argument that a
spill occurred and that it affected Gates' property,
the statute she cites provides her no relief. Alaska
Statute 46.09.020 concerns spills of "hazardous
substances,"a term which is defined for the purpose of
the statute in AS 46.09.900(4). Uncontaminated refined
oil is not a hazardous substance under AS 46.09.020.
Thus, Gates' claim under this statute also is without
merit.
V. COSTS AND ATTORNEY'S FEES
Gates contests the superior court's award of costs for
the survey of her property made by the city's surveyor.
She argues that the survey was biased, was not properly
registered, and was done in such a manner so as to
prevent any possibility of comparison with prior
surveys, which she has alleged to be more accurate.
Gates also contends that the city's cost bill was not
presented within ten days of judgment, as required by
Alaska Civil Rule 79(a). Gates does not present any
argument for reversal of the superior court's
attorney's fees award, although she does argue that if
that award is upheld, she should be granted pro se
attorney's fees for the appeal to this court. The city
defends both awards as being within the discretion of
the trial court, and as justified under the
circumstances of the case.
Gates' claim for pro se attorney's fees for her appeal
to this court must be denied, even if she could be
deemed the prevailing party on appeal. Lay pro se
litigants cannot recover attorney's fees. Alaska Fed.
Sav. & Loan v. Bernhardt, 794 P.2d 579, 581-2 (Alaska
1990).
Because we remand Gates' damages claims for further
consideration, we must also vacate and remand the
superior court's awards of costs and attorney's fees.
The superior court should reconsider these awards after
the remaining issues are resolved to determine whether
the city may be considered the prevailing party on the
main issue or issues in the action. Day v. Moore, 771
P.2d 436, 437 (Alaska 1989). Since the issues have
been briefed before us, however, we provide the
following guidance to the superior court in the
interest of judicial economy.
An award of costs, if consistent with legal principles
adopted by this court, "is committed to the broad
discretion of the trial court and will not be disturbed
on appeal, absent a clear showing that the trial
court's determination was arbitrary, capricious or
manifestly unreasonable, or that it stemmed from an
improper motive." CTA Architects v. Active Erectors &
Installers, 781 P.2d 1364, 1365 (Alaska 1989). Costs
may be awarded under Civil Rule 79(b) if they are
"necessarily incurred." Atlantic Richfield Co. v.
State, 723 P.2d 1249, 1253 (Alaska 1986).
The parties fully briefed the issue of the cost of the
survey, and the superior court reviewed the clerk's
decision to tax costs and the arguments of both sides
before affirming the award. Though the superior court
did not specifically find that the survey costs were
necessarily incurred, a proper award of costs will not
be disturbed on appeal, regardless of the reasoning
employed below. Davis v. Hallett, 587 P.2d 1170, 1171
(Alaska 1978). Since the issue of Gates' property
boundary was crucial to the litigation, the survey was
a necessary expense to the city. The award was
therefore not an abuse of discretion.
Gates' procedural argument is without merit. Whether
the city's cost bill was presented prior to the entry
of judgment, as Gates argues, both parties had ample
opportunity to argue the merits of the cost bill before
the trial judge. It would be "senseless formalism" to
hold the cost bill was untimely. Fairbanks North Star
Borough v. Tundra Tours, 719 P.2d 1020, 1039 (Alaska
1986).
Alaska Civil Rule 82(a)(1) gives the trial court
discretion to award attorney's fees "in a reasonable
amount"to a prevailing party in a case where there is
no monetary recovery. The trial court's exercise of
that discretion will not be overturned unless abused.
Thorstenson v. ARCO Alaska, 780 P.2d 371, 376 (Alaska
1989). "An award constitutes an abuse of discretion
only when it is manifestly unreasonable." Id. Awards
as high as eighty-six percent of total fees are not
necessarily "manifestly unreasonable." Hausam v.
Wodrich, 574 P.2d 805, 811 (Alaska 1978). In this
case, there were numerous claims which required
research and response by the city. The superior court
nevertheless awarded only eighty percent of the fees
claimed by the city. This award was not manifestly
unreasonable.
VI. CONCLUSION
The superior court's award of summary judgment to
Tenakee Springs is AFFIRMED in part, REVERSED in part,
and REMANDED for further proceedings consistent with
this opinion. The superior court's award of costs and
attorney's fees is VACATED and REMANDED for further
proceedings also consistent with this opinion.
_______________________________
1. Gates' claims included: destruction of real and
personal property; destruction of a federally protected
archaeological site; violation of equal protection and
due process of law; and violation of various local
ordinances and state statutes.
2. Alaska R. App. P. 602(a)(2) provides in part:
An appeal may be taken to the superior
court from an administrative agency within 30
days from the date that the decision appealed
from is mailed or otherwise distributed to
the appellant.
3. AS 09.65.070 provides in part:
(d) No action for damages may be
brought against a municipality or any of its
agents, officers, or employees if the claim .
. .
(2) is based upon the exercise or
performance or the failure to exercise or
perform a discretionary function or duty by a
municipality or its agents, officers, or
employees, whether or not the discretion
involved is abused;
(3) is based upon the grant,
issuance, refusal, suspension, delay or
denial of a license, permit, appeal,
approval, exception, variance, or other
entitlement, or a rezoning.
4. The following quote from Urethane is instructive:
We agree . . . that the decision by the
city manager to issue the questioned warning
was an exercise of a discretionary function.
However, the fact that issuance of the
warning was a discretionary function does not
automatically extend discretionary immunity
to the city in regard to the warning's
content.
620 P.2d at 688. The Urethane court also cited State v. Abbott,
498 P.2d 712 (Alaska 1972), applying the discretionary
function exception to the waiver of state sovereign
immunity, in which the court said:
Once the basic decision to maintain the
highway in a safe condition . . . throughout
the winter, . . . is reached, the state
should not be given discretion to do so
negligently. The decisions at issue in this
case simply do not rise to the level of
governmental policy decisions calling for
judicial restraint. Under these
circumstances the discretionary function
exception has no proper application.
Urethane, 620 P.2d at 688 (citing Abbott, 498 P.2d at 722).
Similarly, decisions made by Tenakee Springs as to the
method used to remove Gates' fence are not governmental
policy decisions calling for judicial restraint.
5. In ordering this limited remand, we emphasize that
Gates has no claims for damages for property that she
cannot prove belonged to her, as is the case with the
real property on which the fence stood. For example,
if the fuel oil behind her fence spilled only on city
property, she has no claim against the city for any
damage from that spill. Gates will not have the
opportunity to relitigate the issue of her property
boundaries, or of who owns Tenakee Avenue, as we have
affirmed the superior court's finding that Gates' fence
still encroaches on city property by more than eight
feet.
We also emphasize that Gates can only recover damages
caused by the city's negligence in moving her property.
"Negligence is the breach of a legal duty 'to conform
to the legal standard of reasonable conduct in the
light of the apparent risk.'" Lundquist v. Department
of Pub. Safety, 674 P.2d 780, 782 (Alaska 1983)
(quoting W. Prosser, The Law of Torts, at 324 (4th ed.
1971)).
6. This appeal was decided on the briefs submitted by the
parties without oral argument. Oral argument was
originally scheduled for June 26, 1991, but on June 12,
Gates filed a motion to postpone oral argument so that
she could take advantage of a commercial fishing
opening. The court denied the motion, offering Gates
the options of appearing at the scheduled time or
agreeing to have the case decided on the briefs. Gates
chose not to appear. Nevertheless, in an Opposition to
the Request that the Appeal be Decided on the Briefs,
Gates stated "[o]ral argument is important in this case
because this case has numerous aspects and not all of
them were addressed in the Supreme Court briefs." We
note here that it would have been impermissible for
Gates to address points at oral argument that were not
addressed in her brief, so to the extent that this was
her reason for wanting oral argument, oral argument
would not have been necessary.
7. The following are the claims which are deemed waived
for failure to argue on appeal:
1) Violation of or actions under AS
09.45.630; 09.55.280; 29.03.030;
29.20.010(a)(4); 29.25.010; 29.25.030;
29.25.050; 29.26.120; 29.26.150; 29.35.030;
29.40.030; 29.40.060; 29.40.070; 29.40.120;
29.40.130; 29.60.110; and 40.15.120;
2) Violation of or actions under Tenakee
Springs Resolutions 76-7; 81-2, Section
00.00.040; 84-1; 84-10; 85-1; 85-10; 86-1,
and Ordinance 1, Sections 3.4 and 4.3;
3) Claim that Tenakee Springs Ordinance
81-2 is unconstitutional; and
4) Claim that the city created a
hazardous condition on the Tenakee Trail.
8. These claims are as follows:
1) Claim that the federal government,
rather than Gates or the city, owns the land
on which the fence stood; and
2) Claim of ownership of the property
under the federal Townsite Act.
9. The following claims cannot rest against the city:
1) Violation of AS 09.50.250 (claim of
negligence by the State of Alaska);
2) Claim under Federal Tort Claims Act
(claim of negligence against the United
States);
3) Violation of AS 41.35.100 (claim
against the Alaska Department of Natural
Resources);
4) Violation of AS 41.35.350 (claim
against the Alaska Historical Commission);
and
5) Claim against the U.S. Department of
Transportation.
10. AS 41.35.070 provides in part:
(d) If in the course of performing
public construction or improvements,
historic, prehistoric or archeological sites,
locations, remains, or objects are
discovered, the department [of Natural
Resources] shall be notified and its
concurrence shall be requested in continuing
the construction or improvement.
11. 16 U.S.C. 433, provides in part:
Any person who shall appropriate,
excavate, injure, or destroy any historic or
prehistoric ruin . . . situated on lands
owned or controlled by the Government of the
United States . . . shall, upon conviction,
be fined in a sum of not more than $500.
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