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Mortvedt v. Dept. of Natural Resources (8/27/93), 858 P 2d 1140
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NOTICE: This opinion 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
ART MORTVEDT, )
) Supreme Court No. S-4435
Appellant, )
)
v. ) Superior Court No.
) 4FA-89-1447 CIVIL
STATE OF ALASKA, )
DEPARTMENT OF NATURAL RESOURCES, )
) O P I N I O N
Appellee. )
_________________________________) [No. 3999, August 27,
1993]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Fairbanks,
Charles R. Pengilly, Judge pro tem.
Appearances: Art Mortvedt, Pro Se.
Cameron M. Leonard, Assistant Attorney
General, Fairbanks, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
David S. Case and Kari L. Bazzy, Copeland,
Landye, Bennett and Wolf, Anchorage, for
Amicus Curiae Northwest Arctic Borough.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Justices.
RABINOWITZ, Chief Justice.
BURKE, Justice, with whom COMPTON,
Justice, joins, dissenting in part.
In this appeal we are asked to decide whether
the
State, Department of Natural Resources ("DNR"), abused
its
discretion when it denied Art Mortvedt a Personal Use
Cabin
Permit ("PUCP") on the ground that his application was
untimely.
FACTS & PROCEEDINGS:
Art Mortvedt ("Mortvedt") is a professional
trapper,
wilderness guide, and polar technician. He has resided in
the
Upper Kobuk River Valley region for approximately 17 years.
The
cabin site implicated in this appeal is located at the
confluence
of the Pah and Kobuk Rivers. According to Mortvedt, a sod
house
had previously been constructed on the location, but due to
its
inadequacy, he built a more substantial cabin in 1981.
Mortvedt
contends that the cabin was used for trapping and
subsistence
purposes.
Mortvedt had a mining claim on the site and when
that
lapsed, in 1981, he applied for a Trapping Cabin
Construction
Permit. His application for a Trapping Cabin Construction
Permit
was denied because of the cabin's close proximity to Native
land
and because the area had not been surveyed.
In the fall of 1984 Mortvedt learned about
DNR's
upcoming Public Use Cabin Permit ("PUCP") program from a
friend,
Nancy Falley, who was employed by DNR at the time.
Mortvedt
claims that he told her that he was going to Antarctica for
the
winter and asked that further information regarding the
PUCP
program be sent to him. The agency record reflects that
Falley
recalls being asked by Mortvedt to send him more
information.
However, Falley failed to send Mortvedt the
requested
information.
On December 31, 1984, DNR issued a media
release
announcing the PUCP program and describing the "sixty-day,
one-
time only application period"commencing on different dates
for
separate regions of the state. The filing period for a
PUCP in
the Northern Region expired twelve days prior to
Mortvedt's
return to Alaska on April 12, 1985, although filing was
still
open for other regions.
Mortvedt did not inquire into the PUCP program
upon his
immediate return to Alaska because he assumed that if
such a
program existed, he would have received the requested
information
from Falley. Mortvedt spent the summer in the bush, and
asserts
that only in September did he learn that there had, in fact,
been
a PUCP program. On September 25, 1985, Mortvedt wrote
DNR
requesting the opportunity to apply at that time. Relying
on 11
AAC 65.020(a)(1), DNR's regional manager denied the
request
noting the program's extensive public notice campaign
and
concluding that the application was untimely filed.
Mortvedt
then appealed to Commissioner of the Department of
Natural
Resources but in accordance with normal intra-agency
appellate
procedure the Director of the Division of Land and
Water
Management considered the appeal. See 11 AAC 02.010.
In a
letter responding to Mortvedt's request for reversal of
the
regional manager's decision, the Director of the Division of
Land
and Water Management stated:
The regulations, 11 AAC 65.020(a)(1)
state that, "an application for a permit to
use an existing cabin on state land must be
received by the department during a sixty day
application period established by the
department and announced by public notice;
the application period will be open for one
time only by geographic location." The
existing regulations do not provide
flexibility to make an exception which would
allow me to accept your application once the
filing period expires. While your absence
from the state made participation difficult
you had the opportunity to arrange with a
friend, agent or spouse to send you the
necessary information and applications.
Therefore I have no alternative in this case
but to deny your request. I do not have the
discretion to waive the requirements
established by regulation.
Mortvedt subsequently appealed to the Commissioner of
Natural
Resources.
The Commissioner did not issue a final decision
until
August 4, 1989. During the intervening three years, DNR
was
adjudicating a dispute between Mortvedt and another
individual
regarding three other cabins which Mortvedt had sought
permits
for under the Trapping Cabin Construction Permit program.
In his
decision, the Commissioner considered both the propriety of
the
mining claim at the Pah River site,1 and the denial of
Mortvedt's
request to participate in the PUCP program. On the former
issue,
he found that Mortvedt was in violation of the statutes
and
regulations governing mining. On the latter issue, he
upheld the
Director's denial of Mortvedt's application for a PUCP.2
Mortvedt then appealed the Commissioner's
decision to
the superior court. The superior court relying on
Division of
Elections of State v. Johnstone, 669 P.2d 537, 547 (Alaska
1983),
concluded that Mortvedt's failure to timely comply with
the
mandatory deadline set out in 11 AAC 65.020(a)(1) could
only be
excused if it was "legally impossible to comply with . . .
[the]
filing deadline," or if the governing regulation
created
"significant confusion"as to filing requirements. The
superior
court found compelling Mortvedt's arguments that compliance
was
"factually impossible under the circumstances,"but held
that the
evidence did not support the conclusion that compliance
was
legally impossible.3 The superior court affirmed
the
Commissioner's decision and this appeal followed.
DID DNR ABUSE ITS DISCRETION BY DENYING
MORTVEDT'S APPLICATION FOR A PERSONAL USE
CABIN PERMIT?4
Mortvedt advances numerous arguments in support
of his
central contention that the Commissioner of Natural
Resources'
decision constituted an abuse of discretion. More
particularly
Mortvedt asserts that his application for a PUCP should have
been
considered timely filed; in fact his application was
timely
filed; in effect he had submitted a "constructive
application"
for a PUCP; it was factually and legally impossible for
him to
comply with the PUCP filing deadline; and application of
the
doctrine of equitable estoppel prevents the DNR from
rejecting
his application on the ground that it was untimely. Based
upon
our review of the parties' briefs and the record we
have
concluded that we need only address the equitable estoppel
issue.5
This court has held that estoppel may be
invoked
against a public entity.6 In Municipality of
Anchorage v.
Schneider, 685 P.2d 94, 97 (Alaska 1984), we said:
The general elements of equitable
estoppel are (1) assertion of a position by
conduct or word, (2) reasonable reliance
thereon, and (3) resulting prejudice.
Jamison v. Consolidated Utilities, Inc., 576
P.2d 97, 102 (Alaska 1978). A fourth
element, most often explicitly stated in
promissory estoppel cases, is that the
estoppel will be enforced only to the extent
that justice so requires. Glover v. Sager,
667 P.2d 1198, 1202 (Alaska 1983). We
believe that this factor should play an
important role when considering estoppel
against a municipality. Often, even where
reliance has been foreseeable, reasonable,
and substantial, the interest of justice may
not be served by the application of estoppel
because the public interest would be
significantly prejudiced. However, this is
not true in every case. When the public will
not be significantly prejudiced, and the
other elements of the theory are present, the
majority rule which forecloses the use of
estoppel causes arbitrary and unjust results.
(Footnote omitted.)7
Mortvedt argues that the requirements for
equitable
estoppel have been met. Specifically, he asserts: Nancy
Falley,
a DNR employee, "asserted a DNR position by word that she
would
send `further information' regarding the upcoming Personal
Use
Cabin Permit" to him in Antarctica; he reasonably
relied
thereon, and when no "further information"was
forthcoming as
promised, he "could only therefore assume that there was in
fact
no PUCP program." "If the further information would
have
arrived, Mr. Mortvedt could have, and would have, proceeded
with
application procedures." Resulting prejudice occurred when
DNR
refused to accept his application for the PUCP program.
"If in
fact Mr. Mortvedt's application was late, it was the fault
of the
DNR - not the fault of the applicant Mr. Mortvedt."
DNR argues that Mortvedt's estoppel arguments
fail for
two reasons:
His reliance on an informal, verbal
request to an acquaintance uninvolved in the
PUCP program was unreasonable. At the time
he visited DNR and spoke with Ms. Falley, the
files suggested that the program might start
in December 1984. Had he submitted a written
request to a DNR employee who was actually
involved in the PUCP program, this [sic] his
estoppel argument might have merit. Instead,
he assumed both that Ms. Falley would chance
to hear about the PUCP filing deadlines, and
that she would remember their conversation of
some months before. That was unreasonable.
In addition, the interests of
justice do not support Mortvedt's estoppel
claim. By waiting over 5 months after his
return from Antarctica before inquiring about
the PUCP program, Mortvedt undermined
whatever equitable claim he may have had.
Reliance on Ms. Falley cannot explain that
delay.
Review of the record discloses that Falley
wrote a
memorandum regarding her communication with Mortvedt
concerning
the PUCP program. In this memorandum Falley states in part:
On Sept. 1, 1984, DNR made available to
the general public a packet of information
containing, in part, the proposed
regulations. I was hired by DNR after that
information became available (about Sept. 7).
Sometime after that (I don't recall), Art
visited the office. The proposed program was
discussed in our section w/Art. Art must
have seen/been given a copy of this currently
available information, but I do not know this
for a fact. My involvement, as I recollect,
was limited to saying I would send more
information. None of us knew about a
specific program at that time . . . . Many
people may not have been aware of the program
at all. Art, in fact, at least had the
benefit of knowing such a program was
imminent. It was not requested of me
specifically, as a DNR employee, that I
recall, that I send the public notice of the
actual filing period or an application. It
is unfortunate if he relied on a friendship
to keep him posted on or regarding this
program, as that did not occur. If this
cabin was so important, however, the ultimate
responsibility was his. I firmly believe
that I did everything possible under the
circumstances.
Given our overall review of the administrative
record
we have concluded that the case should be remanded to the
DNR for
the purpose of requiring DNR to make explicit findings of
fact as
to the four elements of equitable estoppel alluded to
above.8
This remand is based on our view that Mortvedt's evidence at
the
administrative level sufficiently raised the issue of
equitable
estoppel.
It appears that upon remand resolution of the
following
questions will be determinative of the equitable estoppel
issue.
Did Nancy Falley have either actual or apparent authority to
make
any assurance to Mortvedt regarding notice? If it is
determined
that Falley possessed either actual or apparent authority to
give
Mortvedt notice regarding the PUCP program, was
Mortvedt's
reliance on any such assurance reasonable?
In the event DNR concludes that Mortvedt
has
established the elements of equitable estoppel then DNR
should
proceed to determine the merits of Mortvedt's application
for a
PUCP.9
AFFIRMED in part, REMANDED in part to the
superior
court with directions to remand to the Department of
Natural
Resources to conduct further proceedings in accordance with
this
opinion.
BURKE, Justice, with whom COMPTON, Justice,
joins,
dissenting in part.
I respectfully dissent from that part of
today's
decision requiring a remand on the issue of equitable
estoppel.
I
The court concedes that the issue of equitable
estoppel
was not properly raised by Mortvedt. It chooses,
nevertheless,
to order the case remanded to the department on that
issue,
because "Mortvedt, . . . both before the superior court
and at
the administrative level, ... advance[d] facts which
potentially
could serve as a foundation for invocation of equitable
estoppel
against the Department of Natural Resources, State of
Alaska."
Slip Op. at 7, n.5. The brief that Mortvedt filed in
this
appeal, containing a very clear assertion of his
claim of
equitable estoppel, makes it abundantly clear that Mortvedt
was
perfectly capable of making that argument in a timely and
proper
fashion. This being the case, there is no reason to depart
from
the standard rules of appellate procedure.
There are many cases in which the record contains
facts
which "potentially"could serve to establish a claim not
made by
a party prior to submission of the party's brief.
Nevertheless,
it is necessary that there be limits to the amount of
oversight
that will be allowed, and there must be standards by which
this
court and litigants can determine which failures will be
forgiven
and which will not. Also, the court must be careful
not to
become an advocate for one of the parties. In the case at
bar,
the court appears to ignore established standards governing
the
right to appellate review, and its conduct comes perilously
close
to advocacy on Mortvedt's behalf.
Mortvedt failed to raise the issue of
equitable
estoppel in the superior court, and it is not one of the
issues
listed in his statement of points on appeal. We
should,
therefore, decline to reach the issue in this appeal.
Alaska R.
App. P. 210(e), 501 P.2d 769, 770 n.1 (Alaska 1972).10
II
If the issue of equitable estoppel must be
addressed, I
still see no reason to order a remand. Mortvedts' estoppel
claim
is based upon the alleged promise by Nancy Falley to send
him
additional information about the cabin permit program.
Falley,
however, was a lower echelon employee in the
Department of
Natural Resources without actual or apparent statutory
or
regulatory authority to bind her employer to the
particular
course of action allegedly promised to Mortvedt. cf.
LeDoux v.
Kodiak Island Borough, 827 P.2d 1121, 1123-24 (Alaska
1992);
Messerli v. Department of Natural Resources, 786 P.2d 1112,
1121
(Alaska 1989); Municipality v. Schneider, 685 P.2d 94,
97-98
(Alaska 1984). Given this evidence, I think only one
conclusion
is reasonably possible: Mortvedt's alleged reliance,
whether
real or not, was wholly unreasonable.
On the remaining issues, I concur in the opinion of
the
court.
_______________________________
1. In 1986, following a field inspection, DNR
recommended
to the Division of Mining that Mortvedt's claim be denied
because
his affidavits supporting the claim were misleading or
falsified,
and the claim had not been properly located. Specifically,
the
inspection showed that the cabin was not being used
for a
maintenance shop and there was very little mining activity.
2. Senator Fahrenkamp requested that DNR
reconsider
Mortvedt's request for a PUCP. The Commissioner responded
to the
Senator in a letter explaining his reasons for upholding
the
decision:
The program was well-advertised and
it is our position that the department cannot
be expected to personally contact every
person outside the state who might have an
interest in applying to a specific program
such as the PUCP.
. . . .
In my review of the file, I have found
that even if Mr. Mortvedt had applied for a
PUCP on time, it is doubtful that he would
have been granted the permit. 11 AAC
65.090[(6)](I) states, "the cabin may not be
used for a commercial activity or as a
permanent residence." In other words, a PUCP
could not be issued if a cabin is used for a
commercial activity such as trapping. Since
Mr. Mortvedt has consistently stated the
cabin is to be used for trapping, it would
not qualify for a Personal Use Cabin Permit.
3. In part the superior court observed: "He
[Mortvedt]
does present an extremely compelling argument that
compliance was
factually impossible under the circumstances of this
case;
Johnstone, however, clearly precludes this court from
granting
the relief he seeks on that ground." Division of
Elections of
State v. Johnstone, 669 P.2d 537 (Alaska 1983).
4. We review this agency decision under an
abuse of
discretion standard. See Forquer v. State, Commercial
Fisheries
Entry Commission, 677 P.2d 1236, 1244 (Alaska 1984) ("In
order
for an applicant . . . to successfully challenge a
failure to
waive a deadline . . . he [the applicant] must show that
the
Commission clearly abused its discretion in denying his
[the
applicant's] extension request."). No deference is given to
the
superior court's decision when that court acts as an
intermediate
court of appeal. Tesoro Alaska Petroleum Co. v. Kenai Pipe
Line
Co., 746 P.2d 896, 903 (Alaska 1987).
5. This narrowing of the issues is based on our
conclusion
that none of the remaining arguments Mortvedt advances
have
merit.
Although Mortvedt, acting pro se throughout,
failed to
explicitly argue equitable estoppel, both before the
superior
court and at the administrative level, he did advance facts
which
potentially could serve as the foundation for
invocation of
equitable estoppel against the Department of Natural
Resources,
State of Alaska.
6. See LeDoux v. Kodiak Island Borough, 827 P.2d
1121,
1123, 1124 (Alaska 1992); Messerli v. Dept. of Natural
Resources,
768 P.2d 1112, 1121 (Alaska 1989); Fields v. Kodiak City
Council,
628 P.2d 927, 931 n.2 (Alaska 1981).
7. In James v. State, 815 P.2d 352, 355 n. 9 (Alaska
1991),
we commented upon the difference between the
doctrines of
promissory and equitable estoppel, stating:
Both parties cite precedents
discussing not only promissory estoppel but
also the related doctrine of equitable
estoppel. The primary difference between
promissory and equitable estoppels is that
the former is offensive, and can be used for
affirmative enforcement of a promise, whereas
the latter is defensive, and can be used only
for preventing the opposing party from
raising a particular claim or defense. See
Bubbel v. Wien Air Alaska, Inc., 682 P.2d
374, 380 n.7 (Alaska 1984). Despite this
important difference, relevant analogies can
be drawn between the two doctrines, since
equitable estoppel involves proof of elements
similar to the elements of a promissory
estoppel claim. Compare Messerli v.
Department of Natural Resources, 768 P.2d
1112, 1121 (Alaska 1989), overruled on other
grounds, Olson v. State, Dept. of Natural
Resources, 799 P.2d 289 (Alaska 1990) with
Zeman, 699 P.2d at 1284. It is undisputed
that the primary thrust of appellants' claim
is offensive rather than defensive, for they
seek enforcement of alleged promises by the
state.
More recently in Wright v. State of Alaska, 824 P.2d 718,
721
(Alaska 1992), we drew the following distinction
between
equitable estoppel and quasi estoppel:
The elements of equitable estoppel are
"the assertion of a position by conduct or
word, reasonable reliance thereon by another
party, and resulting prejudice." Jamison,
576 P.2d at 102. Neither ignorance nor
reliance, however, are essential elements of
quasi estoppel. Dressel v. Weeks, 779 P.2d
324, 331 (Alaska 1989). Quasi estoppel
appeals to the conscience of the court and
applies where "the existence of facts and
circumstances mak[es] the assertion of an
inconsistent position unconscionable."
Jamison, 576 P.2d at 102. This court has
instructed trial courts to consider the
following factors in determining whether the
doctrine of quasi estoppel is applicable:
"whether the party asserting the inconsistent
position has gained an advantage or produced
some disadvantage through the first position;
whether the inconsistency was of such
significance as to make the present assertion
unconscionable; and, whether the first
assertion was based on full knowledge of the
facts." Id. at 103.
(Alteration in original.)
8. On remand both parties should be afforded an
opportunity
to present additional evidence relevant to the equitable
estoppel
issue.
9. DNR asserts that events have occurred since DNR
rendered
its final decision which preclude it from issuing Mortvedt a
PUCP
for the Pah River cabin. More specifically, since its
rejection
of Mortvedt's application, DNR notes that the Northwest
Arctic
Borough has selected the land in question under the
Municipal
Entitlement Act. 11 AAC 65.050 provides:
(a) 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 complies with AS 38.04.035(4)
and does not conflict with the public
interest criteria as described in (b) of this
section.
(b) No permit will be issued for a
cabin on state land
. . . .
(3) if the land has been
selected under the authority of the
Municipal Entitlement Act, AS
29.18[.]
(For purposes of this administrative appeal we assume
this
regulation applies to the successor statute to AS 29.18.)
We reject the contention that the Northwest
Arctic
Borough's land selection moots this case. In the event
it is
determined that Mortvedt should prevail on his equitable
estoppel
claim, and it is further determined that his application
for a
PUCP is meritorious and should be granted, the
consequence of
such determinations is that the Northwest Arctic Borough's
land
selection would be subject to Mortvedt's equitable interest
since
his claim antedates the borough's selection. See
Walliker v.
Escott, 608 P.2d 1272, 1276 (Wyo. 1980).
10. The doctrine of plain error is quite
obviously
inapplicable.
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