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DOT and State of Alaska v. North Slope Borough and Tanana Chiefs (8/26/94), 879 P 2d 1009
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
FRANK G. TURPIN, Commissioner,)
Department of Transportation ) Supreme Court No. S-4801
and Public Facilities, and )
THE STATE OF ALASKA, ) Superior Court No.
) 3AN-91-05502 CI
) O P I N I O N
) [No. 4116 - August 26, 1994]
NORTH SLOPE BOROUGH, and )
TANANA CHIEFS CONFERENCE, )
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Peter A. Michalski, Judge.
Appearances: Joseph W. Geldhof and Jack
B. McGee, Assistant Attorneys General,
Juneau, Charles E Cole, Attorney General,
Juneau, for Appellant. Darlene M. Erickson,
Deputy Borough Attorney, Anchorage, Thomas P.
Amodio and Jonathan B. Rubini, Birch, Horton,
Bittner & Cherot, Anchorage, for Appellee
North Slope Borough. Michael J. Walleri,
Fairbanks, for Appellee Tanana Chiefs
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
[Burke, Justice, not participating.*]
The James Dalton Highway, also known as the North Slope
Haul Road, runs approximately 425 miles from Livengood to Prudhoe
Bay, Alaska. It is the only maintained land route linking
central Alaska to the northern coast of Alaska. A substantial
portion of the James Dalton Highway is located within the
boundaries of the North Slope Borough (NSB).
The Acting State Director of the Bureau of Land
Management (BLM) of the United States Department of the Interior
granted a right-of-way for the construction of the highway to the
State of Alaska on May 2, 1974. The grant was made subject to a
provision that "the right-of-way shall be used for only the
construction, operation, and maintenance by the state of a public
road and related public facilities."1
The highway was completed in the early 1970's by the
Alyeska Pipeline Service Company, under contract with the State
of Alaska, using a mix of state, federal, and private funds.2
Management responsibility for the highway returned to the State
of Alaska, Department of Transportation and Public Facilities
(DOT) in 1978.
In October 1978, DOT adopted regulations that closed
the Dalton Highway to use or travel by any vehicle (except an
emergency vehicle) that did not have a special permit.3 17
Alaska Administrative Code (AAC) 30.010. The regulations make
permits available only to official, industrial, and commercial
vehicles. 17 AAC 30.030.
In 1980, the Alaska legislature enacted AS 19.40.100:
(a) The department shall maintain the
highway and keep it open to industrial or
commercial traffic throughout the year.
(b) "Industrial or commercial traffic"
(1) travel necessary and related
to resource exploration and development or to
support of those activities, if the
individual engaged in those activities has
all necessary permits;
(2) travel necessary and related
to access by local residents to their
(3) motor carriers engaged in
At that time, the legislature also enacted AS 19.40.110:
The department shall maintain the
section of the highway between the Yukon
River and Dietrich Camp and shall keep that
section of the highway open to use by the
public between June 1 and September 1 each
The highway between Dietrich Camp and Prudhoe Bay has always been
closed to unrestricted public travel.
Early in June 1991 the Commissioner of DOT, Frank
Turpin, made a policy decision to open the northern portion of
the highway to unrestricted public use. DOT was subsequently
notified that the decision conflicted with existing regulations.
In response, DOT issued a notice on June 11, 1991 stating that it
planned to repeal 17 AAC 30, which requires vehicles traveling on
the Dalton Highway to obtain a permit. Public comments were
invited on the proposed repeal with all comments due by July 15,
1991. The NSB and Tanana Chiefs Conference (TCC), who opposed
opening the entire highway to the public, filed a complaint in
superior court for injunctive relief. They objected that DOT had
not allowed enough time to hear, weigh, and respond to public
comments, that DOT had disregarded administrative procedure, and
that the repealer conflicted with the governing statutory
regulatory scheme controlling use of the Dalton Highway.
Superior Court Judge Ripley issued a preliminary
injunction. Judge Ripley found that 17 AAC 30.010-.070
restricted access to the Dalton Highway and that it was probable
that those regulations could be repealed only in accordance with
the procedures set forth in AS 44.62.60, 44.62.180 and 44.62.210.
Judge Ripley further found that the State had not
observed procedures required by the Administrative Procedure Act
(APA), AS 44.62.010-.300, that the NSB and TCC would suffer
irreparable harm, and that requiring DOT to follow those
directives would cause no harm to the State. Therefore, he
ordered that the Dalton Highway remain closed to public travel
"until . . . the amendment or repeal of 17 AAC 30.010-.070 takes
legal effect as provided in AS 44.62.180."
DOT then issued a written decisional document
addressing the various concerns raised by the public, the NSB and
TCC. The next day Commissioner Turpin signed an order repealing
17 AAC 30 and filed it with the Lieutenant Governor. The repeal
was intended to take effect on August 30, 1991.
In response, the NSB and TCC moved the superior court
to establish that the current preliminary injunction was still in
effect because DOT had not complied with the provisions of the
APA, or in the alternative, to order additional injunctive relief
continuing closure of the highway. At the hearing, Judge
Michalski continued the injunction against repeal of 17 AAC 30 on
the ground that DOT remained in violation of the APA for failure
to prepare a fiscal note during the repeal process. The superior
court issued a Declaratory Judgment and Permanent Injunction
holding in part that "the Dalton Highway may not be opened to
unrestricted public traffic . . . unless . . . the Alaska
Legislature amends or repeals the restrictions set forth in the
statutes."4 The State now brings this appeal.
I. EXECUTIVE ACTION OPENING THE DALTON HIGHWAY TO UNRESTRICTED
TRAVEL BY THE GENERAL PUBLIC DOES NOT CONTRAVENE THE DALTON
DOT appeals from the superior court's determination
that "the Dalton Highway may not be opened to unrestricted public
travel north of Dietrich Camp unless . . . the Alaska legislature
amends or repeals the restrictions set forth in . . . [A.S.
19.40.010-.290]." The superior court noted that its holding was
"supported by the plain meaning of the statutes, by fundamental
rules of statutory construction and by evidence of legislative
intent." In particular, it found that the "statutory scheme,
particularly A.S. 19.40.100 and .110, restricts use of the Dalton
Highway north of Dietrich Camp to industrial or commercial
The NSB defends the superior court's ruling, arguing
that the statutes are plain on their face; that they cannot be
read independently of the purpose of the James Dalton Highway Act
(the "Act"), AS 19.40; that the Act's purpose is to control
access to the Dalton Highway; and that the Act's provisions
specifically limit vehicle traffic on the northern portion of the
Dalton Highway to commercial or industrial traffic. TCC adds
that the Commissioner of DOT, in promulgating and repealing
regulations, was bound to do so in accordance with the Act, which
articulates certain policy concerns that must be affirmatively
reflected in the regulations.
DOT contends that
the most reasonable reading of these
statutes is that they constitute a
legislative direction to the executive branch
to keep the highway open at least to the
degree specified by their text. In other
words, AS 19.40.100 and 19.40.110 set minimum
requirements that DOT/PF is required to meet
in regulating the use of the Dalton Highway.
It therefore follows, DOT argues, that the statutes do not
prohibit DOT from repealing 17 AAC 30.010, thereby opening the
entire Dalton Highway to unrestricted travel by the general
We find DOT's interpretation persuasive. We think it
of particular significance that the initial grant of a right-of-
way from the federal government provides that
the right-of-way shall be used only for
the construction, operation, and maintenance
. . . [by] the state of a public road and
related public facilities.
This explicit "public"characterization of the nature
of the right-of-way grant is reiterated in the Declaration of
Policy section at the outset of the Act:
The legislature finds and declares that
there is an immediate need for a public
highway from the Yukon River to the Arctic
Ocean and that this public highway should be
constructed by the State of Alaska at this
AS 19.40.010 (emphasis added).
Given these clear manifestations of intent by the state
and federal governments, we believe that one cannot reasonably
conclude that the plain meaning of AS 19.40.100 and AS 19.40.110
restricts travel by the general public on the Dalton Highway.
The broad array of powers granted to DOT in regard to the
planning, construction, maintenance, control (including closures)
of any highway encompassed within the state's highway system also
strengthen DOT's argument.5 It follows that DOT has the general
authority to open the entire length of the highway to
unrestricted travel by the general public. Nothing in the
legislative history of the Act reflects a legislative intent to
constrain the authority of DOT to provide additional public
access to the Dalton Highway at any time subsequent to the
enactment of the Act. If the legislature had intended to
permanently close all, or any portion of, the Dalton Highway to
travel by the general public it could have fashioned such a
II. THE DEPARTMENT OF TRANSPORTATION VIOLATED THE REQUIREMENTS
OF AS 44.62.195 OF THE ADMINISTRATIVE PROCEDURE ACT BY
FAILING TO PREPARE A FISCAL NOTE IN CONJUNCTION WITH ITS
PROPOSED REGULATORY CHANGE
Alaska Statute 44.62.195 requires any department
affected by the repeal of a regulation to prepare an estimate of
foreseeable appropriations increases.7
If the adoption, amendment, or repeal of
a regulation would require increased appropri
ations by the state, the department or agency
affected shall prepare an estimate of the
appropriation increase for the fiscal year
following adoption, amendment, or repeal of
the regulation and for at least two
succeeding fiscal years.
Ch. 16, 1, SLA 1980.
DOT argues that "in effect, AS 44.62. requires the
executive branch to provide an estimate of the costs associated
with the adoption or repeal of regulations." Having given notice
to the public that the repeal of 17 AAC 30 will not require
additional appropriations, DOT asserts it has substantially
complied with the APA.
Yet opening the Dalton Highway to the general public
potentially affects agencies other than DOT. The NSB presented
convincing evidence that the Department of Public Safety, the
Department of Fish & Game, and the Department of Administration
all anticipated a need for additional appropriations in the event
the Dalton Highway was to be opened to the general public.8
In addition, the legislature recognized the potential
costs to agencies other than DOT if the Dalton Highway was opened
to the public in its 1991 budget appropriation limitations. It
conditioned the Department of Public Safety's appropriations on
the absence of expenditures for costs associated with opening the
Dalton Highway. It did so expressly and independently of DOT
The superior court's findings highlight additional
evidence contradicting DOT's position:
15. Memorandum and other exhibits
prepared by or for DOT/PF also contradict the
fiscal statement contained in the June 11
16. For example, John Horn, The
Northern Regional Director of DOT/PF,
estimates that the Dalton Highway could need
as much as $25 million in additional
maintenance repairs and road work.
17. Furthermore, one reason
advanced by the Department for opening the
Highway is the State's desire to obtain
federal highway funds. The Department agrees
that these funds are necessary for the
maintenance and repair of the Dalton Highway.
No matter from what source they are derived,
these expenditures will require
18. Similarly, the Department
attached to its decisional document as
Exhibit "F", a memorandum from Richard
Burton, Commissioner of the Department of
Public Safety ("DPS"). Although the
memorandum states that existing resources are
sufficient to meet current fiscal year needs,
Commission[er] Burton assumes the DPS "will
obtain additional help in the future."
Given this much evidence that opening the Dalton
Highway to unrestricted travel by the general public will require
additional appropriations, we hold that the superior court did
not err in concluding that DOT acted arbitrarily and capriciously
in failing to substantially comply with the fiscal notes
requirements of AS 44.62.195.
III. APPROPRIATENESS OF INJUNCTIVE RELIEF
DOT argues that since the superior court's permanent
injunction has the effect of enjoining it from repealing 17 AAC
30, the issuance of the injunction is not tailored sufficiently
narrowly. DOT further claims that the practical effect of the
injunction is to curtail the exercise of the right to travel
guaranteed by the Alaska Constitution and the United States
Constitution9 and to violate the separation of powers doctrine.
Finally, DOT asserts that there is no nexus between the alleged
harm and the alleged legal infirmity.
The NSB responds that the injunction is no broader than
necessary to effect the appropriate relief and that it does
nothing more than maintain the status quo. In brief, the NSB
argues that the preliminary injunction merely enjoins DOT from
repealing 17 AAC 30 until all the procedural requirements of the
APA have been met.
The NSB further responds that irreparable harm should
be presumed when the executive branch attempts to circumvent the
procedures required under the APA. The NSB also argues that
since no portion of DOT's budget may be spent on repair,
maintenance or patrol of the Dalton Highway, the burden will fall
on the NSB. The NSB submitted affidavits supporting its claim of
harm to governmental and natural resources if the Dalton Highway
is opened to the general public without coordinated planning
between involved departments of the state.
The failure of an agency to substantially comply with
APA procedures in adopting regulatory changes renders the action
invalid. See Kenai Peninsula Fisherman's Co-op Ass'n, Inc. v.
State, 628 P.2d 897, 906 (Alaska 1981); Coghill v. Boucher, 511
P.2d 1297, 1304-05 (Alaska 1973); Morkunas v. Anchorage Tel.
Util., 754 P.2d 1117, 1120 (Alaska 1988). As noted, here DOT's
violation of the APA cannot be characterized as insubstantial.
Compliance with the procedures mandated by the APA contemplates
public notice and disclosure of the fiscal consequences in order
to facilitate public comment on the particular proposal.
Given our conclusion that the Act does not prohibit
general year-round access by the public, the superior court's
injunction operates only to invalidate the defective procedures
used by DOT. DOT is free to reconsider the matter, formulate an
appropriate fiscal note, furnish the requisite notice, consider
comments on any proposed repealer, and then take appropriate
action. In light of these circumstances we conclude that the
superior court properly exercised its equitable powers in issuing
the questioned injunction.10
AFFIRMED in part, REVERSED in part.
* Justice Burke participated in oral argument but retired
from the court before the opinion was rendered.
1 The Trans-Alaska Pipeline System (TAPS), agent for
several major oil companies, applied to BLM for a right-of-way
for the pipeline under the Mineral Leasing Act, and for Special
Land Use Permits for the construction of a haul road in 1969.
See Wilderness Soc'y v. Morton, 479 F.2d 842, 849-50 (D.C. Cir.),
cert. denied, 411 U.S. 917 (1973). In 1970 an injunction was
issued blocking the granting of the right-of-way under the
Mineral Leasing Act. At that point the State attempted to obtain
a right-of-way for a state public highway under 43 U.S.C. 932
but was unsuccessful. See Hamerly v. Denton, 359 P.2d 121, 123
(Alaska 1961) (operation of 43 U.S.C. 932 in Alaska).
The Trans-Alaska Pipeline Authorization Act (TAPA Act)
authorized the Secretary of the Interior to issue rights-of-way
and permits necessary for or related to construction, operation,
and maintenance of the trans-Alaska oil pipeline system including
roads and airstrips. 43 U.S.C. 1652(b). BLM issued Alaska its
right-of-way pursuant to the TAPA Act.
2 On December 5, 1973, the portion of the road between
Livengood and Prospect Creek was placed by the Federal Highway
Administration on the Federal Aid Highway System as a secondary
highway route designated as FAS-681. The route was extended to
Prudhoe Bay in 1974.
3 The regulations use "Dalton Highway"to refer to the
portion north of Dietrich Camp. 17 AAC 30.070(4). Because only
that portion is in dispute, subsequent references to restrictions
on access to the highway will refer to the northern portion.
Although the regulations initially allowed public access to the
lower portion only during the summer, in 1984 DOT amended the
regulations to allow year-round public access.
4 The superior court's permanent injunction reads in
The State of Alaska is hereby enjoined
from executing the purported regulatory
amendment which this court has declared to be
void due to procedural requirements and
invalid as inconsistent with statutory
provisions of A.S. 19.40.
5 Alaska Statute 19.05.010 makes DOT "responsible for the
planning, construction, maintenance, protection, and control of
the state highway system." Alaska Statute 19.05.040(5) states
that DOT may "control access to highways." And under AS
19.40.120, "The provisions of AS 19.10.100 apply to the closure
of the highway by the department."
6 See LeSuer-Johnson v. Rollins-Burdick Hunter of Alaska,
808 P.2d 266, 267 (Alaska 1991).
7 We generally give the word "shall"mandatory effect.
See Fowler v. City of Anchorage, 583 P.2d 817, 820 (Alaska 1978)
("Unless the context otherwise indicates, the use of the word
shall denotes a mandatory intent.").
8 The legislature also requires that departments that
anticipate additional appropriations because of pending
legislation prepare fiscal notes. In 1990, the legislature
contemplated passing Senate Bill 366, which would have opened the
Dalton Highway to unrestricted use. The Department of Public
Safety estimated a need for an additional $2.7 million in fiscal
year 1991 and approximately $600,000 for each subsequent fiscal
With the Dalton Highway open throughout
the entire year for public travel, a full
range of law enforcement services must be
provided. Increased activity is projected
for both Alaska State Trooper enforcement
patrol and investigation to provide for
accident response, highway patrol, criminal
investigation, and search and rescue
services. . . . Four additional State
Trooper positions . . . will be needed to
provide adequate enforcement. One trooper
will be assigned to Prudhoe, two at Coldfoot,
and one at Seven Mile.
. . . .
This fiscal note does not address
response to a major accident such as one
involving a tour bus for example. The cost
that would be associated with maintaining a
rescue capability to deal with such a
catastrophe is clearly prohibitive. In such
an event, the Department of Public Safety
would require substantial assistance from the
private sector and/or the military.
The Department of Administration estimated a need for
an additional $1.4 million in 1991, and $163,000 every year there
after; the Department of Fish & Game estimated a need for approxi
mately $74,000 per year.
9 See, e.g., Zobel v. Williams, 457 U.S. 55, 60 n.6
(1982) (United States Constitution); Alaska Pacific Assurance Co.
v. Brown, 687 P.2d 264, 271 & n.10 (Alaska 1984) (Alaska
10 Our affirmance of the superior court's ruling that DOT
failed to comply with the requirements of AS 44.62.195 has made
it unnecessary to address any of the remaining issues sought to
be raised by the parties. In particular we do not address the
following arguments tendered by the NSB in support of the
superior court's judgment: (1) DOT did not provide interested
parties with a fair and adequate opportunity to offer their
comments and concerns; (2) DOT did not fairly consider the
comments and concerns of interested parties; (3) DOT's unilateral
decision to open the Dalton Highway violates the terms of a
Memorandum of Understanding between the NSB and the State; (4)
the legal review by the Department of Law was inadequate and
facially defective; and (5) the proposed regulatory action is
inconsistent with a valid condition placed by the legislature on