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Colville Environmental Services v. North Slope Borough (4/24/92), 831 P 2d 341
<![CDATA[
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
COLVILLE ENVIRONMENTAL )
SERVICES, INC., ) Supreme Court No. S-4069
)
Appellant, ) Trial Court Nos. 2BA-88-82
) and 2BA-88-141 Civil (Consol.)
v. )
) O P I N I O N
NORTH SLOPE BOROUGH, )
)
Appellee. ) [No. 3833 - April 24, 1992]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Second Judicial District,
Barrow,
Michael I. Jeffery,
Judge.
Appearances: G. Nanette Thompson, Law
Office of G. Nanette Thompson, Anchorage, for
Appellant. Darlene M. Erickson, Deputy
Borough Attorney, Alan R. Hartig, Borough
Attorney, North Slope Borough Law Office,
Barrow, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Justices.
MATTHEWS, Justice.
I. INTRODUCTION
The principal question presented in this case is
whether to allow a belated attack on the authority of the Alaska
Public Utilities Commission (Commission) to issue a certificate
of public convenience and necessity. The Commission granted
Colville Environmental Services, Inc., (Colville) a certificate
to operate a garbage collection utility in competition with
garbage collection services offered by the North Slope Borough
(Borough). The Borough was a party to the proceedings but did
not raise a jurisdictional objection before the Commission and
did not appeal. Five years later the Borough challenged
Colville's certificate, contending that it was void because it
violated AS 29.35.050, which gives the Borough the power to
monopolize garbage collection services. We conclude that the
Commission's decision issuing the certificate to Colville should
be given res judicata effect.
II. FACTS AND PROCEEDINGS
Beginning in 1962 Colville provided garbage collection
and oil site cleanup services on the Arctic coastal plain between
the Kuparuk River to the east and the Colville River to the west.
Colville operated without a certificate of public convenience and
necessity from the Commission.
In 1975 the Borough established by ordinance a garbage
collection service east of the Kuparuk River. The Borough
obtained a temporary certificate from the Commission for this
area. Beginning at least as early as 1979, the Borough began
providing garbage collection service west of the Kuparuk River.
In 1981 Colville applied for a certificate. The Borough applied
for an amendment to its certificate to extend its service to
cover most of the same area in which Colville operated (the
"overlap" area). Thus, in 1981, the Commission was faced with
two largely conflicting certification requests. Both parties
filed objections to the other's application.
Before the Commission ruled, Colville and the Borough
stipulated to resolve the conflict. In the stipulation, each
party withdrew its opposition to the other's application subject
to certain conditions. The most important condition relevant to
this appeal was condition 3(a), which prohibited Colville from
providing "day-to-day"refuse collection services if the Borough
was providing them.1
On February 8, 1982, the Commission approved the
stipulation. It granted Colville a certificate "subject to the
limitations agreed to in the Stipulation for Settlement." It
also granted the Borough an amended certificate subject to the
stipulation's limitations. However, the Commission imposed
several additional conditions on the Borough. The most important
condition was that within ninety days the Borough file an
application to amend its certificate to include the entire North
Slope Borough within its service area for garbage collection,
including each of the villages in the Borough. Until such an
application was filed, Colville would not be precluded from
furnishing "day-to-day"refuse collection.
The Borough moved to modify the February 1982 decision
asking the Commission to delete the condition that the Borough
apply to modify its certificate to include the various villages.
On August 17, 1982, the Commission denied this motion. Further,
the Commission rejected altogether paragraph 3(a) of the
stipulation, thus permitting Colville to permanently offer daily
collection services in competition with the Borough. The
Commission took this action for a number of reasons. First, the
Commission noted:
The Commission will not permit the
[Borough] to have it both ways: on the one
hand, to expand its existing service area
but, at the same time, to state, in effect,
that it will get around to serving the area
in question when it feels like it and, on the
other hand, to attempt to prevent others from
furnishing a utility service essential to the
preservation of the public health, welfare
and safety where the [Borough] is not doing
so.
The Commission also believed that 3(a) was anti-competitive,
violated federal anti-trust laws, and was contrary to the public
interest. The Borough did not contend that the Commission lacked
subject matter jurisdiction to certify Colville as a competitor
of the Borough and did not appeal the order of August 17, 1982.
Later the Borough applied for an amended certificate to
serve all the villages in the Borough. The Commission granted
this in 1984. However, the Borough's certificate may not have
covered all of Colville certified area. A few of the
northernmost sections of the Colville River delta seem to have
remained exclusive areas of operation for Colville.2
In 1987 Colville filed a complaint with the Commission,
claiming that the Borough had operated contrary to its
certificate by operating in Colville's claimed exclusive area.
Colville also alleged that in the overlap area the Borough had
prevented competition by passing an ordinance requiring potential
customers to use the Borough's collection services and by
conditioning the grant of land use permits on a permittee's
continued use of the Borough's collection services. The Borough
counterclaimed, alleging that the Commission had exceeded its
authority in granting overlapping certificates for garbage
collection because under AS 29.35.050, boroughs are authorized to
monopolize garbage services within their boundaries.
After a hearing, the Commission's hearing officer
issued a proposed decision, which was adopted by the full
Commission with some modifications on July 19, 1988. Germane to
the issues on appeal, the Commission found that the Borough's
ordinance which required all customers in the overlap area to use
the Borough's collection services was void because it conflicted
with the orders and certificates issued by the Commission. The
Commission also invalidated for the same reason the land use
permits which were conditioned on a permittee's continued use of
the Borough's collection services.
The Commission rejected on several grounds the
Borough's counterclaim that the Commission had exceeded its
authority in granting overlapping certificates for garbage
collection. First, it held that this argument was barred by the
doctrine of res judicata:
In [the competing 1981 applications of
the parties] the Commission considered the
question of whether or not a certificate
which included an area within the boundary of
[the Borough] should be granted to
[Colville]. The Commission determined in
that case that a certificate should be
granted to [Colville], an Order granting that
certificate was issued, and the Order became
final without appeal. [The Borough] was a
party to that case, stipulated to the grant
of the certificate to [Colville], and did not
appeal the grant of [Colville's] certificate.
In these circumstances the doctrine of res
judicata applies.
The Commission also held that the Borough had waived any right to
contend that the August 17, 1982 order granting competitive
certificates was void, and that the Borough was estopped from
making that contention:
[The Borough] entered into a
stipulation with [Colville] which consented
to the granting of a certificate to
[Colville]; [the Borough] presented that
stipulation to the Commission for approval;
and [the Borough] neither protested nor
appealed the Commission's grant of a
certificate to [Colville]. Yet, according to
the argument of [the Borough], it was free
immediately after the foregoing actions to
use its own ordinances to forbid [Colville]
from operating and to forbid customers from
using the services of [Colville]. The
Commission strongly disagrees.
The Alaska Supreme Court in Guin v.
Ha, [591] P.2d 1281, [1291] (1979), stated:
"In every contract . . . there is an implied
covenant of good faith and fair dealing that
neither party will do anything which will
injure the right of the other to [receive]
the benefits of the agreement." The
stipulation between [Colville] and [the
Borough] is a contract. It would be bad
faith for [the Borough] to enter into an
agreement with [Colville] and then take
unilateral action to deny [Colville] the
benefit of its bargain.
The bad faith becomes even more
pronounced when it is recalled that [the
Borough] presented the agreement to a state
regulatory body for approval based on a
standard which required that the agreement be
in the "public interest"and required for the
"public convenience and necessity." To now
allow [the Borough] to revoke, through its
municipal ordinances, a certificate granted
to [Colville] by the Commission with the
consent of [the Borough] would not only
perpetuate an act of bad faith by [the
Borough] against [Colville], it would
contradict [the Borough's] solemn
representations before this body in securing
approval for that stipulation. Such
"trifling" with the processes of a public
agency is not acceptable.
The doctrine of equitable estoppel
or quasi-estoppel does apply to this
situation. Estoppel precludes a party from
taking a position inconsistent with one it
has previously taken where circumstances
render assertion of the second position
untenable. Jamison v. Consolidated
Utilities, Inc., 576 P.2d 97, 102 (Alaska
1978). Here, [the Borough] by its conduct of
agreeing to the stipulation took a position
that the public convenience and necessity
required the services of [Colville] as a
public utility; it cannot now assert that was
untrue and that [Colville] should never have
been granted the certificate.
Therefore, based on the facts of
this case, [the Borough] has no right
whatsoever to assert that the actions which
it agreed to in 1981 are void. Furthermore,
the foregoing discussion applies equally
whether or not the ordinances of [the
Borough] prohibiting the operation of
[Colville] and prohibiting customer's use of
[Colville] were enacted by [the Borough]
before or after the certificate was granted
to [Colville] with the consent of [the
Borough].3
The Borough appealed the Commission's decision, and
later filed an action for declaratory judgment involving the
interpretation of AS 29.35.050. The actions were consolidated.
After both parties moved for summary judgment, the superior court
found for the Borough in all significant respects. Specifically,
the court held
that the power granted by AS 29.35.050
to municipalities to establish a monopoly for
garbage and solid waste services within its
territory is a limit on the jurisdiction of
[the Commission]. [Commission] orders
purporting to restrict or eliminate this
power are beyond [Commission] jurisdiction
and therefore void. Therefore,
municipalities can pass ordinances and set
conditions establishing garbage and waste
service monopolies that conflict with
[Commission] orders.
. . . .
[N]o res judicata effect applies to
administrative agency decisions that are
beyond the agency's jurisdiction. Such
decisions are void, and they can be brought
before a court at any time for cancellation.
The superior court also rejected the Commission's
conclusion that the Borough was estopped and had waived its right
to contend that the Commission's August 1982 order was void. The
court found that any reliance on the part of Colville would not
have been reasonable after the passage of the Borough ordinance
in June of 1983, which required everyone within the overlap area
to use the Borough's refuse collection services. After passage
of the ordinance, the court held that Colville could not
legitimately assume that the Borough had acquiesced in the
Commission's decision. Further, the court observed that Colville
had not invested significant amounts of money based on any
position taken by the Borough.
Despite finding that the August 1982 Commission
decision was void, the court held that Colville's original
February 1982 certificate was valid and that the provisions of
the 1981 stipulation were also valid. However, the court held
that the Commission did not have the power to enforce certain
provisions of the stipulation. The superior court awarded
attorney's fees of $7,000 and costs of $1,260.73 to the Borough
as the prevailing party. Colville appeals.
III. IS COLVILLE'S CERTIFICATE VALID?
On August 17, 1982, the Commission granted Colville a
certificate to provide daily refuse collection. The Borough
claims that the Commission lacked the power to do this on the
grounds that AS 29.35.050 grants the Borough the exclusive power
to collect garbage. Thus, the Borough argues that the
certificate is invalid.
Since the Borough already had the opportunity to
litigate this issue in the proceedings which the Commission
conducted culminating in the final order of August 1982, the
Borough normally would be precluded from litigating this question
now. Restatement (Second) of Judgments 12 (1982).4 However, a
judgment does not have preclusive effect when:
(1) The subject matter of the action was
so plainly beyond the [adjudicative agency's]
jurisdiction that its entertaining the action
was a manifest abuse of authority; or
(2) Allowing the judgment to stand would
substantially infringe the authority of
another tribunal or agency of government; or
(3) The judgment was rendered by [an
adjudicative agency] lacking capability to
make an adequately informed determination of
a question concerning its own jurisdiction
and as a matter of procedural fairness the
party seeking to avoid the judgment should
have opportunity belatedly to attack the
[adjudicative agency's] subject matter
jurisdiction.
Id. Each of these exceptions is separately analyzed.
1. Is the granting of a certificate to perform daily
refuse collection plainly beyond the Commission's
authority?
The legislature established the "general powers and
duties"of the Commission in AS 42.05.141. Subsection (a)(1) of
this statute provides that the Commission may (1) "regulate every
public utility engaged or proposing to engage in such a business
inside the state . . . and the powers of the commission shall be
liberally construed to accomplish its stated purposes." We
recently observed concerning this subsection:
This provision presents two guiding
principles for determining the extent of the
[Commission's] jurisdiction under specific
provisions of the Act. On the one hand, it
includes the principle of limitation,
restricting the [Commission's] power to the
specific jurisdictional areas of its "stated
purposes." On the other hand, it includes a
principle of expansion, mandating that the
[Commission's] power to act within its
specific areas of jurisdiction "is to be
liberally construed."
Homer Elec. Ass'n v. City of Kenai, 816 P.2d 182, 186 (Alaska
1991).
In Homer Electric, we gave as an example of a specific
jurisdictional area within the stated purposes of the Commission
the Commission's power to determine the reasonableness of use
permit fees. Id. (citing B-C Cable Co. v. City and Borough of
Juneau, 613 P.2d 616 (Alaska 1980)). In contrast, we cited
Greater Anchorage Area Borough v. City of Anchorage, 504 P.2d
1027 (Alaska 1972), as an example of a case where a dispute was
beyond the stated powers of the Commission. The controversy in
that case was whether the borough, as owner of a road right-of-
way, could prevent the city electrical utility from installing a
power line on the right-of-way.5 Discussing this case in Homer
Electric, we stated:
Our opinion . . . relied substantially
upon an interpretation of the overall design
of the [Commission] Act, which, we found,
very selectively empowers the [Commission].
We wrote:
The essence of the admini
strative power conferred upon the
[Commission] is regulatory; the
Commission is empowered to set
rates, promulgate regulations,
collect information, process
complaints against utilities and
the like. The statutory framework,
however, does not grant unlimited
adjudicatory authority to the
[Commission]. The agency is not
empowered to decide disputes
between municipalities over the
control of construction activities
within rights of way belonging to
one of the disputants.
Id. at 186 (quoting Greater Anchorage Area Borough, 504 P.2d at
1033).
Regarding the jurisdiction of the Commission, we summar
ized our discussion in Homer Electric as follows:
In Greater Anchorage, then, we
narrowly construed the stated purpose of a
statute granting the [Commission]
adjudicatory power and found the dispute at
issue outside the scope of the agency's
jurisdiction. In B-C Cable, having no doubt
that the tax issue fell within the narrow
scope of [Commission] jurisdiction to review
a particular type of dispute, we liberally
construed the agency's power within that
scope and refused to interfere. In sum, we
have construed AS 42.05.141(a)(1) to mean
that the actual areas in which the
[Commission] may exercise its adjudicatory
authority are quite narrow. Within those
narrow areas, however, the [Commission's]
powers to adjudicate are plenary, as broad as
the specific provisions of the Act permit.
Id. at 186-87.
We applied these principles in Homer Electric, where
the controversy went to the reasonableness of fees imposed by a
municipality on the use of rights-of-way by a utility. This came
within the Commission's statutory power to decide disputes as to
the reasonableness of "fees, terms, conditions, or exceptions
imposed on the utility's permit to use municipal rights-of-way."
AS 42.05.251.
The dispute in this case falls within another area in
which the Commission is empowered to exercise its adjudicatory
authority. Public utilities, including those operated by
municipalities, must obtain certificates of public convenience
and necessity from the Commission.6 The Commission is empowered
to attach conditions to a certificate of public convenience and
necessity under AS 42.05.241:
A certificate may not be issued
unless the commission finds that the
applicant is fit, willing and able to provide
the utility service applied for and that the
services are required for the convenience and
necessity of the public. The commission may
issue a certificate granting an application
in whole or in part and attach to the grant
of it the terms and conditions it considers
necessary to protect and promote the public
interest including the condition that the
applicant may or shall serve an area or
provide a necessary service not contemplated
by the applicant.
Further, the Commission is empowered to amend, modify, suspend,
or revoke a certificate after notice and opportunity to be heard.
AS 42.05.271 provides in part:
Upon complaint or upon its own
motion, the commission, after notice and
opportunity for hearing and for good cause
shown, may amend, modify, suspend or revoke a
certificate, in whole or in part.
The August 1982 order of the Commission deleted a
condition from Colville's certificate which barred Colville from
offering day-to-day collection services when such services were
provided by the Borough. This action fell squarely within the
adjudicatory authority granted the Commission by AS 42.05.271.
Thus, using the approach we adopted in Homer Electric, the
Commission was within its adjudicatory authority when it entered
the order of August 1982.
2. Would allowing the decision of the Commission to
stand substantially infringe on the authority of
another tribunal or agency?
Restatement (Second) of Judgments 12(2) (1984),
provides that a judgment does not have preclusive effect when
"allowing the judgment to stand would substantially infringe on
the authority of another tribunal or agency of the government."
(a) This subsection does not apply in the present case
because here the Borough is both "another agency of government"
and the party which failed to appeal in a timely manner.
Allowing the order to stand will not have substantial
consequences except to the litigants. Since the order does not
disable the Borough from eliminating Colville as a competitor by
purchase or eminent domain under AS 29.35.050(b),7 applying the
rule of res judicata to the order does not "seriously disturb[]
the distribution of governmental powers." Restatement (Second)
of Judgments 12 comment d (1982). The Borough has not
permanently lost its monopoly power; the power can be restored by
paying fair market value for Colville. Viewed in this light the
Borough has suffered a monetary detriment; it has lost only what
a private litigant normally loses when an adverse judgment is not
appealed.
(b) Alternatively, we conclude that even if subsection
(2) were applicable there would be no substantial infringement of
Borough authority. The Borough's claim that the Commission's
August 1982 order substantially infringes on its authority to
monopolize refuse collection requires that AS 29.35.050 be
examined in some detail.8
Subsection (a) grants the Borough the exclusive power
to collect garbage by requiring "all persons . . . to use the
[Borough's] system." However, before the Borough can lawfully
create a garbage collection system, it must obtain a certificate
from the Commission. AS 42.05.221. Thus, before the Borough can
lawfully exercise its AS 29.35.050(a) monopoly power, it must
obtain a certificate. In granting a certificate, the Commission
may "attach to the grant . . . terms and conditions it considers
necessary to protect and promote the public interest including
the condition that an applicant may or shall serve an area or
provide a necessary service not contemplated by the applicant."
AS 42.05.241.
In the present case, the Borough's application for a
certificate to provide garbage collection in the overlap area did
not include all the communities within the Borough's boundaries.
The Commission made it clear to the Borough that it would reject
paragraph 3(a) of the stipulation unless the Borough provided
garbage collection for all the communities.9 In insisting on
this addition, the Commission was fulfilling its responsibility
under AS 42.05.241 to "protect and promote the public interest."
When the Borough failed to amend its application to include all
the communities, the Commission rejected paragraph 3(a) in its
August 1982 order.10 We therefore conclude that the order was
valid when made.
The Borough, however, contends that it has the power to
exclude Colville from collecting garbage by ordinance. This
argument apparently applies even if the August 1982 order was
initially valid. If this argument is correct, arguably res
judicata effect should not be given to the August 1982 order as
the order might be a substantial infringement on the authority of
the Borough. For two independent reasons we conclude that this
is not the case.
First, AS 42.05.641 provides that in cases of conflict
between a certificate and a local ordinance, the certificate will
prevail:
The commission's jurisdiction and
authority extend to public utilities
operating within a municipality, whether home
rule or otherwise. In the event of a
conflict between a certificate, order,
decision or regulation of the commission and
a charter, permit, franchise, ordinance, rule
or regulation of such a local governmental
entity, the certificate, order, decision or
regulation of the commission shall prevail.
This statute grants priority to certificates which are valid when
they are issued over ordinances which might otherwise be valid,
except for the fact that they conflict with a certificate.
Applying the statutory order of priority to this case means that
giving continued effect to the August 1982 order does not
infringe on Borough authority.
Second, the first sentence of subsection (b) of AS
29.30.050 is a limitation on the authority of a municipality to
exercise monopoly power by ordinance under subsection (a)(2) of
section 050. Subsection (b)(2) bars a municipality from
prohibiting "a person holding a valid certificate . . . from
continuing to collect and dispose of garbage . . . if . . . the
certificate was originally issued before the municipality
provided similar services." (Emphasis supplied.) Whether this
limitation applies is dependent on the meaning of the emphasized
phrase "provided similar services." Does it refer to services
provided by the Borough before the Borough received a
certificate, which would be unlawful, or only to lawfully
performed services? We hold that it refers only to lawfully
provided services.
The legislative history of AS 29.35.050 is relevant to
this inquiry. Before 1973 municipalities could operate garbage
collection utilities without a certificate of public convenience
and necessity. In 1973 municipalities were required to obtain
certificates before offering such services. Chap. 76 SLA 1973
3. In 1970 the predecessor of AS 29.35.050(b) was enacted.
However, it only applied to permits "originally issued before the
area was annexed by the [municipality]." Chap. 218 SLA 1970 5.
In 1973 AS 29.35.050(b) was enacted in substantially its present
form. Chap. 76 SLA 1973 5. This was part of the same
enactment which required municipally owned garbage utilities to
obtain certificates from the Commission before operating. This
history lends support to the view that AS 29.35.050(b) was not
intended to apply to cases in which the similar services provided
by a municipality were provided in violation of state law.11
Section 29.35.050 must also be considered against the
backdrop of the general regulatory system encompassed in Title 42
of the Alaska Statutes. As previously discussed, municipalities
cannot provide garbage collection services without a certificate
issued by the Commission. The Commission is vested with broad
discretionary authority in matters concerning the issuance and
amendment of certificates. If a certificate conflicts with a
municipal ordinance, the certificate controls. This regulatory
system indicates that the legislature accorded much importance to
the certification process. Thus, it is difficult to believe that
the legislature intended AS 29.35.050(b) to reward a
municipality's violation of this process.
Therefore, we hold that the phrase "provided similar
services" in AS 29.35.050(b) refers only to lawfully performed
services. It follows since the Commission simultaneously issued
the Borough's certificate and Colville's certificate, Colville's
certificate was issued before the Borough lawfully provided
similar services. The Borough is barred by the first sentence of
.050(b) from prohibiting Colville from continuing to collect
garbage.12 Giving continuing effect to Colville's certificate
does not infringe on Borough authority.
3. Was the Commission capable of making an adequately
informed determination of its own jurisdiction?
The Commission clearly possessed the capability of
determining its own jurisdiction. The members of the Commission
are full-time officers of the state, some of whom must have
professional qualifications. AS 42.05.040. The Commission has a
professional staff and the Attorney General serves as legal
counsel for the Commission. AS 42.05.121, 111. Thus, any
challenge to subject matter jurisdiction of the Commission could
have been given "substantially the same quality of consideration
that is available in a trial court of general jurisdiction."
Restatement (Second) of Judgment 12, comment (e) (1982).
IV. DOES THE COMMISSION HAVE THE POWER TO ENFORCE A STIPULATION
REQUIRING THE BOROUGH TO ACCEPT REFUSE FROM COLVILLE AT THE
BOROUGH'S NORMAL TARIFF RATE?
In July 1988 the Commission ordered the Borough to
accept refuse from Colville at the Borough's tariff rates for
this service.13 This order enforced the 1981 stipulation between
Colville and the Borough which among other things requires the
Borough to accept refuse from Colville at the Borough's tariff
rates for this service and provides that the Commission can
enforce this stipulation.14 The trial court held that the
Commission had no subject matter jurisdiction to enforce this
section of the stipulation because the Commission's "authority
does not extend to regulation of the final disposal cite." We
reverse.
Since the Borough already had the opportunity to
litigate this issue in the proceedings which the Commission
conducted culminating in the Commission's approval of the
stipulation in February 1982, the trial court normally would be
precluded from considering this issue now. Restatement (Second)
of Judgments 12 (1982).15 However, as we noted earlier, a
judgment does not have preclusive effect when:
(1) The subject matter of the action was
so plainly beyond the [adjudicative agency's]
jurisdiction that its entertaining the action
was a manifest abuse of authority; or
(2) Allowing the judgment to stand would
substantially infringe the authority of
another tribunal or agency of government; or
(3) The judgment was rendered by [an
adjudicative agency] lacking capability to
make an adequately informed determination of
a question concerning its own jurisdiction
and as a matter of procedural fairness the
party seeking to avoid the judgment should
have opportunity belatedly to attack the
[adjudicative agency's] subject matter
jurisdiction.
Id. We conclude that these three exceptions do not apply and
thus the trial court erred in reconsidering the issue of whether
the Commission could enforce the stipulation.
1. Was the Commission's approval of the stipulation's
enforcement provision plainly beyond the Commission's
authority?
As we noted earlier, when issuing a certificate of
public convenience to operate a refuse collection service, the
Commission has broad powers to attach "terms and conditions it
considers necessary to protect and promote the public interest."
AS 42.05.251. The provision at issue granted the Commission the
right to enforce a stipulated refuse collection agreement. The
Commission's approval of this provision arguably fell within its
broad powers to protect and promote the public interest. Thus,
the Commission's approval of this provision was not plainly
beyond its authority.
2. Would allowing the decision of the Commission to
stand substantially infringe on the authority of
another tribunal or agency?
As the trial court noted, the Alaska Department of
Environmental Conservation (Department) has authority over the
rates and operations of final waste disposal sites. AS
46.03.020. The Commission's order requiring the Borough to
accept refuse at the Borough's normal tariff rates does not
substantially infringe on this authority because the order does
not impair the Department's ability to control the amount of the
tariff or the disposal of the refuse.16
3. Was the Commission capable of making an adequately
informed determination of its own jurisdiction?
As previously discussed, the Commission clearly
possessed the capability of determining its own jurisdiction.
See supra, pp. 21-22.
V. CONCLUSION
We conclude that the superior court erred in refusing
to accord res judicata effect to the Commission's orders of
February and August 1982. The judgment must therefore be
reversed; it follows that the court's award of attorney's fees
and costs must likewise be reversed.
REVERSED and REMANDED for further proceedings
consistent with this opinion.
_______________________________
1 The conditions provide in paragraph 3:
a. That [Colville] will not offer
services which compete with the day-to-day
refuse collection and pick-up services
offered to the public-at-large by [the
Borough] if the Borough is ready, willing and
able to provide the day-to-day services.
b. The primary business of
[Colville] shall be the cleaning up of well
sites and related areas pursuant to contracts
between [Colville] and the owners/operators
of the well sites.
c. That [Colville] will deliver
solid waste collected by it to [the
Borough's] disposal sites or disposal
facilities, including dumpsters, land fills
or incinerators, when such facilities are
accessible by road or other convenient and
economically reasonable overland means.
d. That [Colville] will pay all
applicable tariffs of [the Borough]
incidental to its delivery of solid waste to
any disposal facility of [the Borough], and
will segregate such solid waste as required
by [the Borough].
e. That whenever solid waste
disposal facilities of [the Borough] are not
available to [Colville], [Colville] will
dispose of the solid waste it collects in
conformity with all applicable federal, state
and local laws and regulations.
Colville required two conditions expressed in paragraph 4:
a. [The Borough] will make its
solid waste disposal facilities, including
dumpsters, landfills, and incinerators,
available to [Colville] whenever such
facilities are accessible by road or other
convenient and economically reasonable
overland means.
b. [The Borough] will not offer
services which compete with the well site and
related area cleanup services offered by
[Colville] if [Colville] is ready, willing,
and able to provide the cleanup services.
2 This was disputed before the Commission and was not
conclusively resolved.
3 The July 1988 decision ended with a number of orders,
including the following:
2. [The Borough] shall accept
refuse delivered to its landfill or
incinerator by [Colville].
3. [Colville] shall pay to [the
Borough] the tariffed rate for all refuse
delivered by it to the landfill or incinerator of
[the Borough].
4. [Colville] shall deliver all solid
waste collected by it to the facilities of [the
Borough] if those facilities are accessible by
road or other convenient and economically
reasonable overland means.
5. [Colville] and [the Borough]
shall negotiate a mutually acceptable joint
operating agreement to resolve difficulties
of insurance, scheduling, equipment
interface, and similar matters affecting
delivery of waste by [Colville] to the
incinerator of [the Borough].
4 The rule of res judicata applies to administrative
agencies as well as courts. Restatement (Second) of Judgments
83 (1982). See also Jeffries v. Glacier State Tel. Co., 604 P.2d
4, 8 (Alaska 1979) ("Although the principles of issue preclusion
have been developed in a judicial setting, we agree with the
modern and generally accepted view that the doctrine of res
judicata may be applied to adjudicative determinations made by
administrative agencies."(Footnotes omitted.))
5 We stressed in Greater Anchorage Area Borough that the
question presented "did not involve interpretation of a utility's
certificate of public convenience and necessity. Further, the
controversy . . . does not involve competing utilities seeking to
provide the same service to a single consumer." Id. at 1033-34.
6 AS 42.05.221(a) provides:
A public utility may not operate
and receive compensation for providing a
commodity or service after January 1, 1971
without first having obtained from the
commission under this chapter a certificate
declaring that public convenience and
necessity require or will require the
service. . . . A certificate must describe
the nature and extent of the authority
granted in it, including, as appropriate for
the services involved, a description of the
authorized area and scope of operations of
the public utility.
7 The statute is set forth in footnote 8, infra.
8 The statute provides in relevant part:
(a) Notwithstanding AS 29.35.200 -
29.35.220, a municipality may by ordinance
(1) provide for the establishment,
maintenance, and operation of a system of
garbage and solid waste collection and
disposal for the entire municipality, or for
districts or portions of it;
(2) require all persons in the
municipality or district to use the system
and to dispose of their garbage and solid
waste as provided in the ordinance;
(3) award contracts for collection
and disposal, or provide for the collection
and disposal of garbage and solid waste by
municipal officials and employees;
(4) pay for garbage and solid
waste collection and disposal from available
money;
(5) require property owners or
occupants of premises to use the garbage and
solid waste collection and disposal system
provided by the municipality;
(6) fix charges against the
property owners or occupants of premises for
the collection and disposal; and
(7) provide penalties for
violations of the ordinances.
(b) the governing body of a
municipality may not prohibit a person
holding a valid certificate from the Alaska
Public Utilities Commission from continuing
to collect and dispose of garbage, refuse,
trash, or other waste material, or provide
other related services in an area in the
municipality if the certificate authorizes
the collection and disposal of garbage,
refuse, trash, or other waste material and
providing of other services in the area, and
the certificate was originally issued before
the municipality provided similar services.
Except as provided in (c) of this section, a
municipality may not provide for a garbage,
refuse, trash, or other waste material
collection and disposal service in an area to
the extent it lies in an area granted to a
garbage, refuse, trash or other waste
material carrier by a certificate issued by
the Alaska Public Utilities Commission to the
carrier until it has purchased the
certificate, equipment and facilities of the
carrier, or that portion of the certificate
that would be affected, at fair market value.
A municipality may exercise the right of
eminent domain to acquire the certificate,
equipment and facilities of the carrier, or
that portion of the certificate that would be
affected.
AS 29.35.050 (Enacted in 1972 and 1973 in substantially
its present form. Chap. 118 SLA 1972 2, Chap. 76 SLA
1973 5.).
9 Paragraph 3(a) provides:
That [Colville] will not offer
services which compete with the day-to-day
refuse collection and pick-up services
offered to the public-at-large by [the
Borough] if the Borough is ready, willing and
able to provide the day-to-day services.
10 The Commission's reasoning is quoted on page 5, supra.
11 See also Simpler v. State Commercial Fisheries, 728 P.2d
227, 230 (Alaska 1986) (unlawful fishing is not recognized for
purposes of grandfather rights fisheries statute, AS 16.43.260).
12 Nothing we have expressed herein will foreclose the
Borough from eliminating Colville as a competitor by purchase or
eminent domain.
13 See supra note 3.
14 Specifically, the stipulation provides:
That [Colville] will pay all
applicable tariffs of [the Borough]
incidental to its delivery of solid waste to
any disposal facility of [the Borough], and
will segregate such solid waste as required
by [the Borough].
. . . .
[The Borough] will make its solid
waste disposal facilities, including
dumpsters, landfills, and incinerators,
available to [Colville] whenever such
facilities are accessible by road or other
convenient and economically reasonable
overland means.
. . . .
[The Commission] shall have
administrative jurisdiction over any dispute
which may arise between [Colville and the
Borough] incident to this stipulation.
15 See supra note 4.
16 AS 46.03.020 lists the powers of the Department. It
provides that the Department may:
(1) enter into contracts . . . ;
(2) review and appraise programs
and activities of state departments and
agencies . . . for the purpose of determining
the extent to which the programs and
activities are [protecting the state's
environment and natural resources] . . . ;
(3) consult with [individuals and
organizations concerned with the
environment];
(4) appear and participate in
proceedings before any state or federal
regulatory agency involving or affecting the
purposes of the department;
(5) undertake studies . . . it may
consider essential to the accomplishment of
the purposes of the department . . . ;
(6) . . . enter and inspect . . .
any property . . . to ascertain compliance
[with its regulations] . . . ;
(7) conduct investigations and
hold hearings . . . ;
(8) advise and cooperate with
[other agencies];
(9) act as the official agency of
the state in all matters affecting the
purposes of the department under federal laws
. . . ;
(10) adopt regulations necessary to
[protect the state's environment and natural
resources];
(11) . . . propose . . . licenses,
permits and authorizations . . . ;
. . . .
(13) inspect the premises of
sellers and suppliers of paint, vessels and
marine and boating supplies . . . .
The Commission's order does not substantially infringe any of
these powers.
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