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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Allen v. Alaska Oil and Gas Conservation Commission (07/21/2006) sp-6025
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| MONTE J. ALLEN, DR. GEORGE | ) |
| KASPER, DANCO | ) Supreme Court No. S- 11519 |
| INTERNATIONAL OIL & GAS, | ) |
| INC., and DANCO ROYALTY | ) Superior Court No. |
| PARTNERSHIP LTD., | ) 1JU-02-252 CI |
| ) | |
| Appellants, | ) O P I N I O N |
| ) | |
| v. | ) No. 6025 - July 21, 2006 |
| ) | |
| ALASKA OIL AND GAS | ) |
| CONSERVATION COMMISSION, | ) |
| CONOCOPHILLIPS COMPANY, and | ) |
| CONOCOPHILLIPS ALASKA, INC., | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia A. Collins, Judge.
Appearances: James B. Gottstein, Law Offices
of James B. Gottstein, Anchorage, for
Appellants. Robert E. Mintz, Assistant
Attorney General, Anchorage, and Scott J.
Nordstrand, Acting Attorney General, Juneau,
for Appellee Alaska Oil and Gas Conservation
Commission. William B. Rozell, Juneau, and
Barbara F. Fullmer, ConocoPhillips Alaska,
Inc., Anchorage, for Appellees ConocoPhillips
Company and ConocoPhillips Alaska, Inc.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
Monte Allen, George Kasper, and Danco International Oil
& Gas, Inc. (collectively Allen) obtained oil and gas exploration
leases in 1986. Allen retained the overriding royalty interest
while the working interest in the leases was transferred to
several oil companies, eventually coming under the sole control
of ConocoPhillips. Although the leases are near the states most
productive gas field, the North Cook Inlet Unit (NCIU), no oil or
gas has been produced from the leases. One day before the leases
were to expire, Allen petitioned the Alaska Oil and Gas
Conservation Commission (commission) for a unitization order
combining his leases into the NCIU and thus entitling him to a
share of royalties from the NCIU.
After intervening litigation on the justiciability of
the petition, the commission denied Allens unitization petition
on the merits. Upon thorough and thoughtful review, the
superior court denied Allens request for a trial de novo and
then affirmed the commissions decision on appeal. Allens appeal
raises three main questions: (1) Is Allen entitled to a trial de
novo as provided in AS 31.05.080? (2) Did the commission apply
the proper statutory standard to Allens unitization petition? (3)
Did the commission breach any statutory duty to Allen? Because
we conclude that Allen is not entitled to a trial de novo, that
the commission applied the proper statutory standard to Allens
petition, and that the commission did not breach any statutory
duty to Allen, we affirm the judgment of the superior court.
II. FACTS AND PROCEEDINGS
A. Facts
A. This case comes before us after protracted litigation.
Danco, Inc., entered into two ten-year oil and gas leases with
the State of Alaska on September 1, 1986.1 Danco assigned its
working interest in the leases to Amoco Production Co., which in
turn assigned that interest to ARCO Alaska, Inc. In 1992
Phillips Petroleum Co. obtained forty percent of the working
interest in the leases from ARCO Alaska. After a series of
mergers, ConocoPhillips Co. and its subsidiary, ConocoPhillips
Alaska, Inc. (collectively ConocoPhillips)2 came to own the
entire working interest.3 Dancos successor, appellant Danco
International Oil & Gas, Inc., is an overriding royalty interest
owner in the leases, as are co-appellants Monte Allen and George
Kasper.4
On August 30, 1996 the day before the leases were to
expire Allen filed a petition for compulsory unitization with
the commission, asking that the commission use its authority
under AS 31.05.110 to merge the leases into the existing NCIU
adjacent to the south and west of the leases. Unitization would
entitle Allen to a share of the oil and gas royalties for the
entire unit rather than solely for its own leases.5 The NCIU is
the leading natural gas field in Alaska, having produced nearly
1.7 trillion cubic feet as of March 2005. Allen argues that
estimated reserves doubled since the unit was established,
indicating that gas is being produced from under his leases. The
commission found that estimated reserves had not appreciably
increased since 1975, eleven years before Danco purchased its
interest.
The commission denied Allens petition on the grounds
that he lacked standing as an overriding royalty interest owner
and that the petition was moot since the lease had expired and
the commission lacked the power to order retroactive unitization.
After the superior court affirmed, we reversed, holding that the
overriding royalty interest made Allen an interested person with
standing to petition for unitization,6 and holding that no sound
reason justified the commissions position that it had no power to
order retroactive unitization.7 We remanded to the commission
for a hearing on the merits of the unitization petition.8
B. Proceedings
On remand, the commission denied Allens petition,
issuing the final decision on February 8, 2002. ConocoPhillips,
as the working interest owner, also appeared as a party before
the commission. The commission found, among other things, that
the leases do not contain any portion of the productive reservoir
of the NCIU, that unitization would not advance the management of
NCIU reservoirs, and that [n]one of the statutory requirements
for compulsory unitization had been met. The commission
reaffirmed its decision after a limited rehearing. Allen
appealed to the superior court. Allen moved for a trial de novo
but the superior court denied the motion. Allen then filed a
petition for review, which we denied.9 The superior court
subsequently affirmed the commissions decision. Allen appeals.
III. STANDARD OF REVIEW
When the superior court acts as an intermediate
appellate court, we undertake an independent review of the agency
determination, and may affirm the decision below on any ground
supported by the record.10 We review questions of law, including
statutory interpretation, using our independent judgment, and
adopt the rule of law that is most persuasive in light of
precedent, reason, and policy.11 We review agency findings of law
requiring agency expertise under the reasonable basis standard.12
We review agency findings of fact for substantial evidence.13
Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.14
IV. DISCUSSION
A. Allen Is Not Entitled to a De Novo Superior Court Trial
Under AS 31.05.080.
Allen argues that AS 31.05.080(b) entitles him to a de
novo trial in the superior court on any legal or factual issues
remaining after the disposition of this appeal. Alaska Statute
31.05.080(b) provides, in relevant part:
A party to the rehearing proceeding . . . may
appeal from it to the superior court . . . .
The trial upon appeal shall be without a
jury, and the transcript of proceedings
before the commission, including the evidence
taken in hearings by the commission, shall be
received in evidence by the court . . . in
the same manner as if the evidence was
originally offered in the superior court . .
. . The court shall determine the issues of
fact and law and shall . . . enter its order
either affirming or vacating the order of the
commission.[15]
The commission argues that AS 31.05.080 is impliedly repealed by
the enactment of AS 22.10.020(d), which provides that [t]he
superior court has jurisdiction in all matters appealed to it
from a[n] . . . administrative agency when appeal is provided by
law . . . . The hearings on appeal . . . shall be on the record
unless the superior court, in its discretion, grants a trial de
novo, in whole or in part. Allen disputes that AS 31.05.080 was
repealed by implication because the legislature repeatedly had
the chance to repeal the statute expressly but declined to do so.
As Allen notes, the Twenty-Third Legislature considered but did
not enact a bill expressly repealing AS 31.05.080(b)s procedures
for a new trial.16 For the reasons set out below, we agree with
the commission that AS 22.10.020(d) impliedly repealed AS
31.05.080(b).
Alaska does not retain the traditional presumption
against repeal by implication, but instead looks to legislative
intent.17 In Peter v. State,18 we held that we should not commence
with a presumption against implied repeal. We shall look to the
purpose indicated by the legislature . . . . If enforcement of
the prior statute is in irreconcilable conflict with such
purpose, it will be held to have been impliedly repealed.19 In
Progressive Insurance Co. v. Simmons,20 we noted that Alaska has
recognized that this presumption [against implied repeal] is
artificial and potentially at odds with the primacy of
legislative intent . . . .21 Two potentially conflicting
statutes, we said, must be interpreted with a view toward
reconciling conflict and producing a harmonious whole. 22 In
general, if two statutes conflict, then the later in time
controls over the earlier, and the specific controls over the
general.23 At every step, however, [l]egislative intent is the
key.24
We have recognized that an implied repeal is possible
when a statute completely occupies the field of a previous
statute. In Peter, we stated that if the later act covers the
whole subject of the earlier one and is clearly intended as a
substitute, it will operate . . . as a repeal of the earlier act.25
Here there is sufficient evidence that the legislature intended
its enactments to be uniform and that AS 31.05.080(b) should
yield. As was the case in Keiner v. City of Anchorage,26 the
enactment of the later statute shows an obvious intent that the
field be occupied.27
In Keiner, the Anchorage City Council, acting as a
board of adjustment, found Keiners building to be a nuisance and
ordered it demolished.28 Keiner appealed to the superior court,
requesting a de novo jury trial.29 The request was denied.30
Keiner argued before us that a 1949 statute granted him a right
to de novo trial.31 Similarly, Allen argues on the basis of
Keiner that the legislature intended only to restrict de novo
trials where the statutory grant of such a trial was procedural
rather than substantive. Allen misreads Keiner, for in that
case, citing in part to the language that now constitutes AS
22.10.020(d), we held that the 1949 statute had been impliedly
repealed. We said that the 1949 statute does not govern the
procedure in the superior court.32 We discerned an obvious intent
that where appeals are taken from administrative agencies or
magistrate courts there shall not be a trial de novo unless the
superior court requires it.33 This procedure, we noted,
simplifies and expedites the handling of appeals.34 Keiner thus
stands for the proposition that the jurisdictional statute, AS
22.10.020(d), explicitly overrode any previous ad hoc appeal
procedures.
Allen argues that the legislatures thirteen amendments
of AS 31.05, none of which altered AS 31.05.080(b), indicate the
legislatures reaffirmance of that subsection. The commission and
ConocoPhillips respond that legislative inaction is a weak reed
to lean on in construing a statute. This is especially true,
they argue, when the legislature was on notice that AS
31.05.080(b) had likely been superseded. Furthermore, as all
parties agree, the commission ceased to exist as an independent
agency between 1959 and 1978;35 during that period it was a unit
of the Department of Natural Resources (DNR). Thus the agency as
envisioned by AS 31.05.080(b) was abolished at the time of
statehood.
The legislatures inaction admits of two plausible
interpretations. First, that the legislature entertained no
concern as to AS 31.05.080(b), assuming that generalized appeal
procedures would apply to the commission as well. Second, that
the legislature was aware of AS 31.05.080(b)s import and opted to
retain it. The introduction of repeal legislation in the Twenty-
Third Legislature would militate in favor of the second
interpretation if there were any indication that the full
legislature had considered and rejected the bill.36 It appears,
however, that the bill was only read once and that no committee
hearings were held.37 We therefore favor the first
interpretation, especially since the legislature subjected the
commission, while it was part of the DNR, to the Administrative
Procedure Act.38 Although the legislature declined to subject the
reconstituted commission to the Act,39 nothing indicates a
legislative intent to exclude the commission from the procedures
specified by AS 22.10.020(d). Furthermore, it seems that a right
to trial de novo would be wholly inconsistent with the
legislatures creation of an independent commission with a great
deal of technical expertise.
The superior court held that AS 31.05.080 did not grant
Allen a new trial because the Alaska Rules of Appellate Procedure
state that the appellate rules supercede all other procedural
methods specified in the Alaska statutes for appeals from
administrative agencies to courts. Allen argues that AS
31.05.080 grants a substantive right to de novo trial, thus
placing his petition beyond the ambit of the Appellate Rules.
Because we conclude that AS 31.05.080 was impliedly repealed by
the enactment of AS 22.10.020, we decline to address the
interplay between AS 31.05.080 and the Appellate Rules. Any
rights granted by AS 31.05.080, whatever their nature, were
extinguished along with the statute.
Although Allen argued to the superior court in the
alternative that he was entitled to de novo trial under
constitutional due process or the superior courts discretion, he
does not appeal the superior courts denial of de novo trial on
those grounds. Thus we have no occasion to review Allens due
process claims or to review the superior courts exercise of its
discretion.
B. The Commission Applied the Proper Statutory
Standard in Reaching Its Decision on Unitization.
Allen argues that the commission, in making its
determination whether unitization was warranted, applied the
wrong statutory standard. The commission applied AS 31.05.110,
which by its terms deals with involuntary unitization. Allen
argues that the commission was required by AS 31.05.110(q) to
apply the standards of AS 38.05.180 instead. Alaska Statute
38.05.180, which is administered by the DNR, applies to voluntary
unitization.
The statute that the commission applied, AS 31.05.110,
has a number of relevant subsections. The first, subsection (a),
provides that the commission has jurisdiction, power and
authority, and it is its duty to make and enforce orders for
unitization even where the owners of a pool do not agree.
Subsection (b) lays out the four criteria for involuntary
unitization.40 Subsection (c) provides that [o]nly so much of a
pool or pools as has been defined and determined to be productive
on the basis of information available to the commission may be so
included within the unit area. This subsection goes on to
prescribe detailed procedures for establishing and administering
a unitization plan. Subsection (o) states that expansion of a
unit may proceed on the same basis as formation. Finally,
subsection (q) states that [t]his section applies to all
involuntary units formed in the state. Subsections (a) and (g)-
(p) of this section apply to all voluntary units formed in the
state and to a voluntary cooperative or unit plan of development
or operation entered into in accordance with AS 38.05.180(p).
On the basis of subsection (q), Allen argues that,
since the NCIU was originally established voluntarily, the
commission should have applied the standards of AS 38.05.180(p)
and related regulations. Alaska Statute 38.05.180(p) authorizes
DNR to approve voluntary unitization by holders of DNR leases
under criteria more relaxed than those of AS 31.05.110.41 The
relevant DNR regulations are also more permissive, referring to
potential hydrocarbon accumulations rather than requiring, as
does AS 31.05.110(b), substantially more oil and gas from the
pool than would otherwise be recovered.42 By its terms, however,
AS 38.05.180(p) applies only to voluntary unitization. Allen
does not have the consent of other members of the unit. The DNR
may approve or deny a unitization request, but appears to have no
authority to order unitization.
Allen seems to be arguing that, since the NCIU was
originally established voluntarily, the commission should have
evaluated his unitization petition under the standards that the
DNR uses to evaluate requests for voluntary unitization. But
Allen is seeking involuntary unitization. Whether the NCIU was
originally established voluntarily or involuntarily is of no
moment. Though AS 31.05.110(b) applies only to involuntary
units, any order by the commission would create a new involuntary
unit composed of the NCIU and the Allen leases rather than simply
expanding the size of the NCIU.43 Thus the commission correctly
applied AS 31.05.110. As the superior court stated, Subsection
(q) merely directs voluntary versus involuntary inquiries towards
respective subsections, and reinforces the separation between the
Commission and the DNR.
Allen already had a chance to invoke AS 38.05.180.
Prior to the commissions hearing on remand, DNR invited Allen to
apply under AS 38.05.180(p) for unit expansion. Allen declined
the invitation. We decline to renew it.
D. The Commissions Factual Findings Were Supported by
Substantial Evidence.
The commission argues that we need not consider whether
its factual determinations were based on substantial evidence
because Allen has failed to challenge the commissions findings
before this court. Indeed, Allens attorney conceded at oral
argument that substantial evidence exists, remarking that we live
or die on the de novo trial issue. We note, however, that many
of Allens arguments contain implicit challenges to the existence
of substantial evidence. In any case, the commission has
exhaustively explored the issue. Its finding that no part of
either productive reservoir extended under the leases was
supported by extensive testimony and review of proprietary
seismic data. The record contains thousands of pages of pre-
filed testimony and data, the vast majority of which supports the
commissions findings. We are thus of the firm belief that the
commissions factual findings were supported by substantial
evidence.
E. The Commission Did Not Breach Any Statutory Duties To
Investigate or Protect.
Allen argues that the commission, by denying his
petition, breached its duty to protect the correlative rights of
persons owning interests in the tracts of land affected.44
Correlative rights are the rights of owners of property overlying
a pool or aquifer to a correspondent share of the minerals or
subsurface water. In Alaska oil and gas law, correlative rights
are defined as
the opportunity afforded, so far as it is
practicable to do so, to the owner of each
property in a pool to produce without waste
the owners just and equitable share of the
oil or gas, or both, in the pool; being an
amount, so far as can be practically
determined, and so far as can practicably be
obtained without waste, substantially in the
proportion that the quantity of recoverable
oil or gas, or both under the property bears
to the total recoverable oil or gas or both
in the pool, and for such purposes to use the
owners just and equitable share of the
reservoir energy . . . .[45]
Alaska law gives the commission authority to protect these
correlative rights by requiring a plan of development and
operation for a field or pool.46
The commission found that Allens leases do not contain
any portion of the Tertiary System Gas Pool, which is the only
producing pool in the NCIU, and that the leases have not been
shown to contain any portion of the Tyonek Deep reservoir, the
only other known oil or gas reservoir in the NCIU. The
commission thus found unambiguously that Allens leases are not
being drained. Since correlative rights attach to the owner of
each property in a pool,47 Allen must have an interest in that
pool before he can assert correlative rights. As there is no
drainage from Allens leases, there is no need to consider whether
correlative rights attach to Allens overriding royalty interest.
Allen also argues that the commission breached its
duties under AS 31.05.110 to protect Allens rights as an
overriding royalty owner. Aside from the issue of correlative
rights, discussed above, Allen argues that the commission
breached its duties by failing to order unitization under AS
38.05.180(p). The commission responds that it breached no
duties, and made no holdings about the extent of overriding
royalty owners rights; it merely declined to consider the full
extent of the rights because there were no reserves underlying
Allens land. As discussed above, the commission properly
considered Allens petition under AS 31.05.110(b). In doing so,
the commission performed rather than breached its statutory duty
to make and enforce orders in order to prevent . . . waste,
insure a greater ultimate recovery of oil and gas, and protect
the correlative rights of persons owning interests in the tracts
of land affected . . . .48
Finally, Allen hints that the commission had potential
conflicts of interest, noting that the commission and the
Department of Natural Resources are both represented by the
Department of Law. While it may be true that the commission has
not been receptive to Allens position, especially in the
proceedings leading up to Allen I, Allen has not shown a conflict
that should exclude the commission from hearing the case.
V. CONCLUSION
The superior court correctly denied Allens motion for a
trial de novo. The commission applied the proper statutory
standard to Allens petition. The commission did not breach any
duties owed to Allen. We therefore AFFIRM the judgment of the
superior court.
_______________________________
1 The leases are designated Alaska Development Leases
369100 and 369101.
2 ConocoPhillips Co. owns forty percent of the working
interest while ConocoPhillips Alaska, Inc. owns sixty percent.
ConocoPhillips Alaska is a subsidiary of ConocoPhillips Co.
3 ConocoPhillips was known as Phillips Petroleum until
2002. Phillips Petroleum purchased ARCO Alaska in 2000, renaming
it Phillips Alaska, Inc. Phillips Alaska has been known as
ConocoPhillips Alaska, Inc. since 2002.
4 The original petition to the commission was brought by
Allen and Danco. The present appeal is brought by Allen, Kasper,
and Danco International Oil & Gas, and Danco Royalty Partnership
Ltd. These parties collectively are referred to as Allen in this
opinion.
5 Alaska Statute 31.05.110(c) describes the procedures
for unitization:
[E]ach plan of unitization shall contain
fair, reasonable and equitable provisions for
. . . (2) the division of interest or formula
for the apportionment and allocation of the
unit production, among and to the several
separately owned tracts within the unit area
such as will reasonably permit persons
otherwise entitled to share in or benefit by
the production from such separately owned
tracts to produce and receive, instead
thereof, their fair, equitable and reasonable
share of the unit production or other
benefits of it; a separately owned tracts
fair, equitable, and reasonable share of the
unit production shall be measured by the
value of each such tract for oil and gas
purposes and its contributing value to the
unit in relation to like values of other
tracts in the unit, taking into account
acreage, the quantity of oil and gas
recoverable from it, location on the
structure, its probable productivity of oil
and gas in the absence of unit operations,
the burden of operations to which the tract
will or is likely to be subjected, or so
many of these factors, or such other
pertinent engineering, geological or
operating factors as may be reasonably
susceptible of determination; unit production
as that term is used in this chapter means
all oil and gas produced from a unit area
from the effective date of the order of the
commission creating the unit regardless of
the well or tract within the unit area from
which the same is produced . . . .
6 Allen v. Alaska Oil & Gas Conservation Commn, 1 P.3d
699, 701-02 (Alaska 2000) (Allen I).
7 Id. at 703.
8 Id. at 705.
9 Danco Intl Oil & Gas, Inc. v. Alaska Oil & Gas
Conservation Commn, No. S-10927 (order of March 14, 2003).
10 Conkey v. State, Dept of Admin., Div. of Motor
Vehicles, 113 P.3d 1235, 1237 (Alaska 2005); Leuthe v. State,
Commercial Fisheries Entry Commn, 20 P.3d 547, 550 (Alaska 2001).
11 Alaska Civil Liberties Union v. State, 122 P.3d 781,
785 (Alaska 2005); see also State v. Dupier, 118 P.3d 1039, 1044
(Alaska 2005).
12 Leuthe, 20 P.3d at 550.
13 Id.; Conkey, 113 P.3d at 1237.
14 George Easley Co. v. Estate of Lindekugel, 117 P.3d
734, 740 (Alaska 2005) (internal quotation marks omitted);
Thornton v. Alaska Workmens Comp. Bd., 411 P.2d 209, 210 (Alaska
1966).
15 AS 31.05.080(b); ch. 40, 11, SLA 1955.
16 House Bill (H.B.) 290, 23rd Leg., 1st Sess. (2003).
17 Compare 1A Norman Singer, Sutherland Statutory
Construction 23:9, at 459-60 (A statute cannot be interpreted as
abrogating existing law by implication alone) (6th ed. 2002 rev.)
with Warren v. Thomas, 568 P.2d 400, 403 (Alaska 1977) (The
implied repeal of an act is disfavored and will be limited to
that which is necessary to carry out the intent of the
legislature.).
18 531 P.2d 1263 (Alaska 1975).
19 Id. at 1268.
20 953 P.2d 510 (Alaska 1998).
21 Id. at 516.
22 Id. (quoting City of Anchorage v. Scavenius, 539 P.2d
1169, 1174 (Alaska 1975)).
23 Compare Singer, 23:9, at 459 (when two statutes are
repugnant . . . the later act . . . operates to the extent of the
repugnancy to repeal the first) with id. at 460 (standard
statutory construction requires that a court adopt as controlling
that provision more closely associated with the specific
substance of the controversy).
24 Simmons, 953 P.2d at 516 (quoting Hafling v.
Inlandboatmens Union of the Pac., 585 P.2d 870, 876 n.20).
25 Peter, 531 P.2d at 1267. See also Singer, 23:9, at
471-74 (When a subsequent enactment covering a field of operation
co-existent with a prior statute cannot by any reasonable
construction be given effect while the prior law remains in
existence because of irreconcilable conflict between the two
acts, the later legislative expression prevails and the prior law
yields to the extent of the conflict.).
26 378 P.2d 406 (Alaska 1963).
27 Id. at 410. Our decision in Matanuska-Susitna Borough
v. Lum, 538 P.2d 994 (Alaska 1975), issued several months after
Peter, did not determine whether special statutes can be repealed
by general statutes. Lum offered the unusual circumstance in
which the legislature enacted a specific guarantee of de novo
review of school board decisions for tenured teachers, then re-
enacted the generally applicable statute under which de novo
review is left to the superior courts discretion. However, the
general statute was already present when the legislature created
the specific guarantee for tenured teachers. Lum, 538 P.2d at
998-1001. Thus, the legislative history in Lum indicated an
intent to create a specific right for tenured teachers as an
exception to the existing general procedure.
28 Keiner, 378 P.2d at 408.
29 Id.
30 Id.
31 Id. at 410; former AS 29.10.213-.243.
32 Keiner, 378 P.2d at 410.
33 Id.
34 Id.
35 Ch. 64, 16, SLA 1959 (creating Department of Natural
Resources and transferring to it commissions function and
authority); ch. 158, 1, SLA 1978; AS 31.05.005 (re-establishing
commission as independent agency); ch. 158, 5, SLA 1978
(changing statutory references from DNR to commission).
36 H.B. 290, 23rd Leg., 1st Sess. (2003). The bill
provided:
Section 1. AS 31.05.080(b) is repealed and
reenacted to read:
(b) A party to the rehearing proceeding who
is dissatisfied with the disposition of the
application for rehearing may appeal from the
decision as to the disposition to the
superior court. The questions reviewed on
appeal are limited to the questions presented
to the commission by the application for
rehearing.
* Sec. 2. AS 31.05.025(b), 31.05.080(c), and
31.05.080(d) are repealed.
* Sec. 3. This Act takes effect immediately
under AS 01.10.070(c).
37 See 2003 House Journal 1202.
38 Former AS 44.62.330(a)(18), repealed by ch. 94, 49,
SLA 1980 (subjecting to the APA the Department of Natural
Resources as to functions relating to the conservation of oil and
gas).
39 Ch. 94, 49, SLA 1980 (effective Sept. 17, 1980)
(repealing former AS 44.62.330(a)(18)). This was followed by a
major revision of the Appellate Rules. See SCO 439, Nov. 15,
1980 (enacting Alaska R. App. P. 601-611 (providing in part for
appeals to the superior court from administrative agencies)).
40 The four criteria are:
(1) the unitized management, operation and
further development of a pool or portion of a
pool is reasonably necessary in order to
effectively carry on pressure control,
pressure-maintenance or repressuring
operations, cycling operations, water
flooding operations, or any combination of
these, or any other form of joint effort
calculated to substantially increase the
ultimate recovery of oil and gas from the
pool; (2) one or more of the unitized methods
of operation as applied to the pool or
portion of it is feasible, and will prevent
waste and will with reasonable probability
result in the increased recovery of
substantially more oil and gas from the pool
than would otherwise be recovered; (3) the
estimated additional cost, if any, of
conducting such operations will not exceed
the value of the additional oil and gas so
recovered; and (4) the unitization and
adoption of one or more of the unitized
methods of operation is for the common good.
41 AS 38.05.180(p) provides:
To conserve the natural resources of all or a
part of an oil or gas pool, field, or like
area, the lessees and their representatives
may unite with each other, or jointly or
separately with others, in collectively
adopting or operating under a cooperative or
a unit plan of development or operation of
the pool, field, or like area, or a part of
it, when determined and certified by the
commissioner to be necessary or advisable in
the public interest. The commissioner may,
with the consent of the holders of leases
involved, establish, change, or revoke
drilling, producing, and royalty requirements
of the leases and adopt regulations with
reference to the leases, with like consent on
the part of the lessees, in connection with
the institution and operation of a
cooperative or unit plan as the commissioner
determines necessary or proper to secure the
proper protection of the public interest. The
commissioner may not reduce royalty on leases
in connection with a cooperative or unit plan
except as provided in (j) of this section.
The commissioner may require a lease issued
under this section to contain a provision
requiring the lessee to operate under a
reasonable cooperative or unit plan, and may
prescribe a plan under which the lessee must
operate. The plan must adequately protect all
parties in interest, including the state.
42 11 AAC 83.356(a) provides: A unit must encompass the
minimum area required to include all or part of one or more oil
or gas reservoirs, or all or part of one or more potential
hydrocarbon accumulations.
43 See AS 31.05.110(a) & (o).
44 AS 31.05.110(a).
45 AS 31.05.170(2).
46 AS 31.05.030(d)(9).
47 AS 31.05.170(2).
48 AS 31.05.110(a).
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