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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Railroad Corporation v. Native Village of Eklutna (09/01/2006) sp-6040
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
| ALASKA RAILROAD | ) |
| CORPORATION, | ) Supreme Court No. S- 11619 |
| ) | |
| Appellant, | ) Superior Court No. |
| ) 3AN-01-04169 CI | |
| v. | ) |
| ) O P I N I O N | |
| NATIVE VILLAGE OF EKLUTNA | ) |
| and MUNICIPALITY OF | ) No. 6040 - September 1, 2006 |
| ANCHORAGE, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: William S. Cummings and Kelly
McCann, Ashburn & Mason, Anchorage, for
Appellant. Sara E. Heideman, Hedland Brennan
& Heideman, Anchorage, for Appellee Native
Village of Eklutna. Thomas McDermott,
Assistant Municipal Attorney, and Frederick
H. Boness, Municipal Attorney, Anchorage, for
Appellee Municipality of Anchorage.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
MATTHEWS, Justice, with whom BRYNER, Chief
Justice, joins, dissenting.
I. INTRODUCTION
The Alaska Railroad wishes to remove granite rock from
a quarry on culturally significant land located in the Native
Village of Eklutna. In a 2004 decision, we concluded that the
legislature did not clearly indicate its intention to exempt the
Railroad from municipal zoning laws when it enacted the Alaska
Railroad Corporation Act, and that the Railroad must apply for a
conditional use permit before it may operate the Eklutna quarry.
Following that decision, the Alaska Railroad Board enacted an
emergency regulation allowing it to remove rock from the quarry
without applying for a conditional use permit. The Railroad also
asked the legislature to clarify that the Railroad is exempt from
municipal zoning laws. The legislature declined to do so,
instead creating a task force to study the issue. The superior
court granted summary judgment to the Native Village of Eklutna,
concluding that our 2004 decision required the Railroad to apply
for a conditional use permit. The Railroad appeals, and we
affirm.
II. FACTS AND PROCEEDINGS
A. Native Village of Eklutna v. Board of Adjustment
Our 2000 decision, Native Village of Eklutna v. Board
of Adjustment, forms the backdrop of this case.1 In that case,
the Native Village of Eklutna challenged a decision by the
Municipality of Anchorage to grant a conditional use permit to
the National Bank of Alaska, allowing the bank to operate a
granite mine on bank-owned property near Eklutna.2 We concluded
that the Municipality had ignored evidence that the mining
operation would destroy one of two hills for which the village of
Eklutna was named, observing that [t]he historical value of the
twin hills that gave Eklutna its name is a cultural factor that
should have been considered by the Municipality.3 We remanded
the case to the Municipality for determination of how the mining
operation would impact the preservation of historic and
archaeological resources, as required by the Municipalitys
comprehensive development plan.4
B. Alaska Railroad Corporation v. Native Village of
Eklutna (Eklutna I)
The first appeal involving the Alaska Railroads mining
operations in the Eklutna hills was Alaska Railroad Corporation
v. Native Village of Eklutna (Eklutna I), which we decided in
2002.5 In Eklutna I, we affirmed an injunction against Damco
Paving Corporation, which had procured exclusive rights to
operate an Eklutna quarry owned by the Railroad.6 The tribal
government and several residents of the Native Village of Eklutna
sought the injunction on the ground that the mining operation was
a nonconforming use for which Damco needed a conditional use
permit under Anchorage zoning laws.7 We concluded that Damcos
operation of the quarry did require a conditional use permit and
affirmed entry of the injunction against Damco.8
C. Native Village of Eklutna v. Alaska Railroad
Corporation (Eklutna II)
Following the superior courts grant of an injunction
against Damco in 1999, the Railroad began direct operation of the
quarry.9 Eklutna moved for a preliminary injunction. The
superior court declined to issue a preliminary injunction and
instead entered summary judgment for the Railroad on the ground
that the Railroad was immune from local zoning ordinances.10 The
Municipality of Anchorage intervened and sought a declaration
that the Railroad was subject to municipal zoning. After
considering the Municipalitys position, the superior court
reinstated its grant of summary judgment in favor of the Railroad
in 2001.11
On appeal, Eklutna and the Municipality argued that the
Railroad was not immune from local land use regulation under
state law.12 We held that the Alaska Railroad Corporation Act13
(ARCA) did not clearly indicate that the legislature intended to
immunize the Railroad from local zoning ordinances.14 Among other
provisions, we discussed AS 42.40.390, the section at issue in
the current appeal.15 We concluded that AS 42.40.390 should not
be read as a clear declaration that the legislature intended to
shield the Railroad from local land use regulation.16 After
concluding that the legislature did not clearly intend to
immunize the Railroad, we adopted a balancing of interests test
to be applied by trial courts when determining whether the
Railroad is immune from municipal zoning requirements.17 Under
the balancing test, trial courts should weigh the nature and
scope of the instrumentality seeking immunity, the kind of
function or land use involved, the extent of the public interest
to be served thereby, the effect local land use regulation would
have upon the enterprise concerned and the impact upon legitimate
local interests.18 But we cautioned that trial courts should not
apply the test unless the state has made a reasonable good faith
attempt to comply with local zoning laws.19 Thus, under the rule
articulated in Eklutna II, the Railroad should first apply for a
conditional use permit from the Municipality and then seek
judicial relief through application of the balancing test only if
the Railroads efforts to procure a conditional use permit prove
unsatisfactory.20
D. Emergency Rule 2004-E-1
On April 12, 2004, the Alaska Railroad Board adopted
Emergency Rule 2004-E-1. The emergency rule authorized the
Railroad to: (1) store processed materials at the Eklutna quarry;
and (2) remove stored materials from the quarry. Both activities
require a conditional use permit under Anchorage zoning law. In
its statement of findings, the Railroad Board discussed our
decision in Eklutna II and concluded that the decision indicated
that AS 42.40.390 in the Alaska Railroad Corporation Act gives
the Railroad Board authority to adopt exclusive rules governing
Railroad land and . . . if the Board adopts such rules, they
would control over conflicting local regulations . . . .
Emergency Rule 2004-E-1 remained in effect for 120 days.21
E. The Railroads Request for Legislative Clarification
Following the promulgation of Emergency Rule 2004-E-1,
the Railroad lobbied the Alaska Legislature to enact a bill which
would have explicitly exempted the Railroad from local land use
laws.22 The proposed change was considered at hearings before the
Senate Transportation Standing Committee and the House
Transportation Standing Committee.
Pat Gamble, President and CEO of the Alaska Railroad
Corporation, testified at a meeting of the Senate Transportation
Standing Committee on April 29, 2004. Gamble described this
courts decision in Eklutna II to the committee and indicated that
the decision required the Railroad to apply for a permit:
The Railroad, as well as any other state
entity, at the present time as of the court
decision on the 12th of March is not exempt
from borough municipal planning and zoning. .
. . The court said that there is a test that
should be applied with regard to planning and
zoning issues whenever the Railroad confronts
a project that requires planning and zoning
and that test would be to apply for a permit.
If that permit comes conditionally and the
conditions are not favorable to the Railroad,
then the Railroad can litigate the decision
and work that out in litigation on a case-by-
case basis for every individual project that
it would have going in whatever
municipalities and boroughs it might.
Gamble also testified at a meeting of the House Transportation
Standing Committee on May 4, 2004. Again, Gamble stated that the
Railroad would be required to apply for a conditional use permit:
[W]hat the court has said is if you dont have the exemption, then
you must apply for a permit in every case and if you dont agree
with what you get back, you must litigate . . . .
At the House Transportation Standing Committee meeting,
Representative Ogan wondered whether exempting the Railroad from
municipal zoning ordinances would allow the Railroad to develop a
rock pit in the middle of a residential neighborhood or right up
against it. Gamble responded that it was not likely the Railroad
would ever try something like that. Representative Ogan also
expressed concern that such an exemption would not be well-
received by the public. Gamble suggested enacting a sunset clause
and said, this does not affect Eklutna, that issue is entirely
separate. I mean, we are not allowed to go in and get quarry
rock out of Eklutna regardless of what we decide here today or
sign . . . .
A number of people testified in opposition to providing
the Railroad a broad exemption from zoning laws, including a
representative from a local land use planning organization, a
representative from the Native Village of Eklutna, a
representative from the Alaska Native Health Board, and a
representative from the Alaska Municipal League. Ultimately the
legislature deleted the proposed exemption from the bill and
established a task force to consider and make recommendation to
the legislature on whether and to what extent municipal planning,
platting, and land use regulations should apply to interests in
land owned by the Alaska Railroad Corporation.23 The bill forming
the task force became effective June 5, 2004.24 The task force
was to file a report at the beginning of the twenty-fourth
legislative session, but it apparently failed to do so.25
F. The Superior Courts Grant of Summary Judgment to
Eklutna
On April 15, 2004, after the Railroad enacted its
emergency rule, the Native Village of Eklutna filed a motion with
this court requesting a stay of the emergency rule, or, in the
alternative, a remand to the superior court so that Eklutna could
challenge the enactment of the rule. Eklutna withdrew the motion
for a stay after we denied the Railroads motion for rehearing in
Eklutna II and the matter was returned to the superior court. On
May 20, 2004, Eklutna filed a motion for summary judgment in
superior court, effectively seeking a ruling that the Railroad
could not enact rules under AS 42.40.390 without first attempting
to comply with local land use regulations. The Municipality of
Anchorage intervened on behalf of Eklutna.
Superior Court Judge Mark Rindner granted Eklutnas
motion for summary judgment on July 7, 2004, concluding that the
superior court was bound by our determination in Eklutna II that
AS 42.40.390 does not clearly exempt the Railroad from local
regulation. Judge Rindner awarded Eklutna full attorneys fees as
a public interest litigant in the amount of $19,989. The
superior court entered judgment in favor of Eklutna and the
Municipality on October 28, 2004. The Railroad appeals the
superior courts decision. The Municipality has joined Eklutna as
an appellee.
III. DISCUSSION
A. Standard of Review
We review a grant of summary judgment de novo.26
Questions of law are also reviewed de novo, and we adopt the rule
of law that is most persuasive in light of precedent, reason, and
policy.27 We review the superior courts determination of a
litigants public interest status for abuse of discretion.28 We
will overturn an award of attorneys fees if there was an abuse of
discretion or if the award is manifestly unreasonable.29
B. The Public Interest Exception to the Mootness Doctrine
Applies.
A preliminary question is whether this appeal is moot,
given that the emergency rule enacted by the Railroad has
expired. A disputed claim is moot when its resolution would not
result in any actual relief, even if the claiming party
prevailed.30 If a challenged law or rule is repealed or expires,
a case is moot.31 Eklutna states in its brief that this matter
would be moot except that it falls under the public interest
exception to the mootness doctrine.
We examine the following three factors to determine
whether the public interest exception to the mootness doctrine
applies: (1) whether the disputed issues are capable of
repetition, (2) whether the mootness doctrine, if applied, may
repeatedly circumvent review of the issues, and (3) whether the
issues presented are so important to the public interest as to
justify overriding the mootness doctrine.32 Here, the disputed
issue is capable of repetition because the Railroad could enact
another emergency rule in the future. If the Railroad chose to
do so, the mootness doctrine could circumvent review because
every emergency rule enacted by the Railroad must expire within
120 days by statute.33 Therefore, if Eklutna were to challenge a
future emergency rule enacted by the Railroad, the challenge
would likely be rendered moot by expiration of the emergency rule
while litigation is pending. Finally, whether the Railroad may
enact rules allowing it to circumvent local land use rules is a
matter of public interest. For these reasons, we conclude that
the public interest exception to the mootness doctrine applies.
The Municipality argues that this appeal will not
become ripe until the Railroad applies for a conditional use
permit and is denied one. That is not the issue in this case,
which stems from Eklutnas challenge to the Railroads emergency
rule. The Municipality also argues that the issues in this case
are beyond the scope of this courts remand because, under this
courts holding in Eklutna II, the Railroad must apply for a
conditional use permit before the court will entertain further
proceedings. While it is true that this court will not hear
appeals of issues beyond the scope of the remand from a prior
appeal,34 this principle does not apply to this case. Eklutna,
not the Railroad, introduced this round of litigation. The
important question here is not whether the Railroad has raised a
new issue on remand, but whether there are any new issues in this
appeal.
C. Our Holding in Eklutna II Applies to this Case.
The Railroad argues on appeal that a reading of AS
42.40.390 allowing the Railroad to promulgate rules that conflict
with local ordinances is not inconsistent with this courts
opinion in Eklutna II. The Railroad focuses on the following
portion of our discussion of AS 42.40.390:
This provision presents some evidence that
the legislature intended to exempt the
Railroad from local zoning laws. Its
reference to exclusive rules might indicate
that no other governments rules would apply
on Railroad land. But the term exclusive
could also be read as a choice-of-law
provision if the Railroad Board promulgated
rules conflicting with local ordinances, the
Railroads regulations would govern, but in
the absence of a conflict, local rules are
unaffected.[35]
The Railroad also points to two footnotes one included in this
courts decision, the other in the dissent and argues that taken
together, the footnotes indicate that AS 42.40.390 must be read
as allowing the Railroad, at a minimum, to adopt land use rules
that would trump conflicting local ordinances. The dissent
examined a 1984 meeting of the Senate Transportation Committee at
which the committee considered whether to repeal AS 42.40.390.
In particular, the dissent considered a memorandum that Tamara
Cook, Deputy Director of the Division of Legal Services of the
Legislative Affairs Agency, wrote to the committee.36 Cook
concluded that AS 42.40.390 was either intended to grant zoning
authority to the Railroad or to exclude railroad property from
zoning regulations.37 In a footnote, the dissent suggested that
the court had offered a third alternative namely, that AS
42.40.390 was a choice-of-law provision mandating that rules
promulgated by the Railroad would govern in the event of a
conflict.38 The court responded in a footnote of its own, stating
that [t]he Railroad Board has not promulgated any such
regulation. Contrary to the dissents assertion . . . a choice-of-
law rule does not grant any immunity or authority, but only
resolves conflicts between laws.39
Based on these footnotes, the Railroad argues that both
the majority and the dissent agreed that if the Railroad was not
immune, it could, at a minimum, adopt rules that would govern
over conflicting local ordinances. But the Railroads argument
neglects an important portion of our opinion in Eklutna II.
Examining the same legislative history considered in the dissent,
we analyzed some possible interpretations of AS 42.40.390.40 We
noted that various members of the Senate Transportation Committee
agreed that the provision was not intended to shield the Railroad
from local regulation.41 We observed that one senator stated that
the provision was originally added to ensure that Railroad bonds
would be tax exempt under a federal law, and another senator
advocated retaining the provision because the Railroads status as
a tax-exempt bonding authority was again in question.42
Thus, our discussion in Eklutna II of AS 42.40.390
considered a number of possible interpretations of the statute.
But we did not decide which, if any, of these interpretations was
correct. Regarding the possibility that the statute was intended
as a choice-of-law provision, we stated only that the term
exclusive could also be read as a choice-of-law provision and
concluded that AS 42.40.390 is not a clear indication of
legislative intent to exempt the Railroad from local zoning.43
The dissents view44 is that no plausible alternative to
its interpretation of the term exclusive rules in AS 42.40.390
remains once we reject the theoretical interpretation of the term
exclusive we posited in Eklutna II. Yet in this appeal, the
Municipality has offered yet another possible interpretation of
AS 42.40.390: that it was intended to grant the Railroad
independent authority to convey Railroad land to third parties.45
The Municipalitys interpretation reminds us that too much
attention has been focused on the term exclusive rules in the
first sentence of AS 42.40.390 without examining the entire
context of the provision.46
The entirety of AS 42.40.390 reads as follows:
The board may adopt exclusive rules governing
land use by parties having interests in or
permits for land owned or managed by the
corporation. The power conferred by this
section is exercised for the common health,
safety, and welfare of the public and to the
extent constitutionally permissible, may not
be limited by the terms and conditions of
leases, contracts, or other transactions.
(Emphasis added.) This language expressly grants the Railroad
power to authorize and regulate activities by others on its land.
If this passage were concerned with the relationship between the
Railroad and other government entities, then it would have stated
that the Railroad may adopt exclusive rules governing its own
conduct on its land, rather than exclusive rules governing land
use by other parties having interests in or permits for Railroad
land. And if this section were intended to confer immunity from
compliance with local land use regulations, the second sentence,
stating that the Railroads power is not to be limited by the
terms and conditions of leases, contracts, or other transactions,
would presumably also have mentioned local regulations,
ordinances, or statutes. The lack of such language, not to
mention the absence of the word immunity or any derivative or
equivalent, lends further weight to the inference that this
passage is not concerned with the resolution of conflicts between
rules adopted by the Railroad and local land use regulations. It
is instead concerned with ensuring that the Railroad has the
power to control activities on its land even when its wishes to
deviate from those of its permittees.
The dissent argues that this interpretation that AS
42.40.390 is concerned with regulating the relationship between
the Railroad and third parties on its land dispenses with the
term exclusive.47 But when the term exclusive is read in the
context of the entire provision, it appears that the provision
was aimed at ensuring that the Railroads power over its own land
is exclusive in the sense that it cannot be abrogated by the
terms and conditions of leases, contracts, or other transactions
entered into with parties having interests in or permits for land
owned or managed by the corporation. Merely because the
Railroads powers over its own land are exclusive with regard to
third parties, in contrast to the usual situation where
contracting parties are free to bargain away their rights, does
not imply that the Railroads powers are exclusive with regard to
other government entities. Far from being absurd, as suggested
by the dissent,48 government entities must commonly contend with
conflicts of jurisdiction, whether it be in matters of property
law, commercial law, or environmental law.49
We have observed that issues previously adjudicated can
only be reconsidered where there exist exceptional circumstances
presenting a clear error constituting a manifest injustice.50 The
law of the case doctrine precludes consideration of issues that
have been adjudicated in a previous appeal in the same case.51
Even issues not explicitly discussed in the first appellate
opinion, but directly involved with or necessarily inhering in
the decision will be considered the law of the case.52 The
doctrine is grounded in the principle of stare decisis. We will
overrule a prior decision only when clearly convinced that the
rule was originally erroneous or is no longer sound because of
changed conditions, and that more good than harm would result
from a departure from precedent.53
The Railroad argues that this court did not decide
whether AS 42.40.390 is a choice-of-law provision in Eklutna II
because the Railroad had not yet adopted a land use regulation.
But the Railroad is asking us to reconsider arguments that we
considered in Eklutna II. After analyzing the meaning and
legislative history of AS 42.40.390 at length, we concluded that
the meaning of the statute was not clear.54 This conclusion is in
keeping with our overall holding in the case: that ARCA provides
no clear indication of the legislatures intent with regard to
local land use authority over the Railroad and that Alaska law
does not presume state immunity to local zoning.55 The lack of
clarity in AS 42.40.390 and other ARCA provisions led us to adopt
a balancing of interests test, as courts in at least fourteen
other jurisdictions have done when faced with unclear statutes
under similar circumstances.56 It does not appear that there are
any changed circumstances that shed new light on the meaning of
the statute as it was originally enacted. Nor are we convinced
that there exist exceptional circumstances presenting a clear
error constituting a manifest injustice. We decline to revisit
the issue here.
The Railroad also argues that our requirement that the
Railroad apply for a conditional use permit is clearly dicta with
respect to AS 42.40.390. But in fact, the requirement that the
Railroad must attempt to comply with local zoning laws is a
central element of the balancing of interests test that we
adopted in Eklutna II.57 The proper interpretation of AS
42.40.390 was adjudicated at length in Eklutna II. At the least,
the meaning of AS 42.40.390 was directly involved with or
necessarily inhering in this courts decision in Eklutna II.58 For
these reasons, we apply the law of the case doctrine to this
appeal and affirm the superior courts grant of summary judgment
to Eklutna.
D. The Legislatures Response to the Railroads Request for
a Legislative Clarification Is Probative but not
Dispositive.
Eklutna contends that the legislatures decision not to
adopt the Railroads proposed amendment to AS 42.40.390 is
probative in this case. As we observed in Eklutna II, [i]t is
often an error to make much of legislative inaction.59 But in the
same opinion we considered the 1984 legislatures decision not to
revise AS 42.40.390 to clarify a possible grant of immunity and
observed: [I]n this context, with the problem and solution
plainly before it, we see the legislatures decision as at least
suggesting that AS 42.40.390 was not intended as a shield against
local regulation.60 The 2004 legislature was in a similar
position that is, it had specific proposed legislation to add to
AS 42.40.390 which would have clarified that the Railroad is
exempt from local zoning. The legislature chose not to amend the
statute, but instead formed a task force.
When it decided not to adopt the Railroads proposed
amendment, the 2004 legislature was well aware of this courts
decision in Eklutna II, as reflected in the minutes of the
transportation committee hearings in both chambers. And, as
noted above, Gamble told the House Transportation Committee that
the Railroad would not be allowed to get quarry rock from Eklutna
regardless of the legislatures decision. In fact, when Gamble
made this statement, the Railroad had already adopted Emergency
Rule 2004-E-I. There is no indication in the committee minutes
that the legislators were aware of the emergency rule. At one
point in the House Standing Transportation Committee hearing,
Representative Kookesh questioned Gambles characterization of the
status quo as being that the Railroad is exempt from local zoning
laws and observed that the status quo is what the Supreme Court
said it was. Although Gamble engaged in a discussion with
Kookesh about the proper definition of the status quo, he did not
mention that the Railroad had promulgated an emergency rule that
would allow it to remove rock from the quarry. Given this
sequence of events, and the legislators apparent understanding
that the Railroad was required to apply for a conditional use
permit under this courts decision in Eklutna II, we believe that
the legislatures decision not to clarify the meaning of AS
42.40.390 is probative in this case. We note, however, that we
do not consider a legislative decision of this nature to be
dispositive standing on its own.
E. The Superior Court Did Not Err in Awarding Full
Attorneys Fees to Eklutna Under the Public Interest
Litigant Doctrine.
The Railroad argues that the superior court erred in
granting full attorneys fees to Eklutna under the public interest
litigant doctrine. The Railroad argues: (1) that AS 09.60.010(b)
prevents Eklutna from claiming public interest litigant status;
and (2) that Eklutna does not qualify as a public interest
litigant. We conclude that the superior court did not abuse its
discretion when it determined that Eklutna was a public interest
litigant.
1. Alaska Statute 09.60.010(b) does not apply to this
case.
The Railroad first argues that AS 09.60.010(b) prevents
Eklutna from claiming public interest litigant status. Alaska
Statute 09.60.010 was amended in 2003 to state:
Except as otherwise provided by statute, a
court in this state may not discriminate in
the award of attorney fees and costs to or
against a party in a civil action or appeal
based on the nature of the policy or interest
advocated by the party, the number of persons
affected by the outcome of the case, whether
a governmental entity could be expected to
bring or participate in the case, the extent
of the partys economic incentive to bring the
case, or any combination of these factors.[61]
Eklutna does not disagree that this provision repeals the public
interest litigant doctrine, but argues that the amendment does
not apply to Eklutna because this suit was filed before the
amendment came into effect. Alternatively, Eklutna argues that
the amendment is unconstitutional.
As both parties acknowledge, AS 09.60.010(b) applies
only to suits filed on or after September 11, 2003.62 Eklutna
contends that the provision does not apply to this action because
the action is part of Eklutnas original suit for an injunction
against the Railroad, which Eklutna filed in 2001. The Railroad
argues that Eklutnas challenge to Emergency Rule 2004-E-1 is a
new case and that Eklutna should have either filed a new action
or amended its original complaint to protest the emergency rule,
rather than filing a post-appeal motion for summary judgment.63
Judge Rindner agreed with Eklutna and concluded that the case was
filed before September 11, 2003, as required by the language of
the session law.64
Eklutnas position is that this case has been an
equitable action from the beginning because Eklutna sought an
injunction, and once equitable jurisdiction attaches, the court
retains continuing jurisdiction until the dispute is resolved.
This is the general rule.65 The Railroad argues that Eklutna
should have either filed a new action or amended its complaint
after the Railroad enacted Emergency Rule 2004-E-1, but the
Railroad does not explain why amending the 2001 complaint to add
a new cause of action would be the equivalent of filing a new
case after the September 11, 2003 deadline. Under Alaska law, a
statute of limitations does not bar a party from amending the
original complaint so long as the amendment relates back to the
original claim, filed before the limitations period has run.66
Although this case does not involve a statute of limitations, the
relating back test that is, whether the new claim involves the
same transaction or occurrence alleged in the original complaint67
is useful by analogy. Even if Eklutna had amended its complaint,
as the Railroad suggests it should have, the amended complaint
would have been sufficiently related to the original complaint
that it could be considered part of the same lawsuit. We also
note that Eklutna moved for summary judgment in an effort to
enforce this courts decision in Eklutna II during the remand;
this circumstance reinforces our conclusion that this appeal
stems from Eklutnas original lawsuit that was filed before
September 11, 2003. Having determined that AS 09.60.010(b) does
not bar Eklutnas claim of public interest litigant status, we
need not consider whether its enactment violated the Alaska
Constitution.
2. The superior court did not abuse its discretion
when it determined that Eklutna is a public
interest litigant.
The Railroad next argues that Eklutna does not qualify
as a public interest litigant. This court examines four factors
to determine whether a party qualifies for the public interest
litigant exception to Civil Rule 82. The factors are: (1)
whether the case is designed to effectuate strong public
policies; (2) whether the plaintiffs success will cause numerous
people to benefit from the lawsuit; (3) whether only a private
party could have been expected to bring the suit; and (4) whether
the purported public interest litigant would have sufficient
economic incentive to file suit even if the action involved only
narrow issues lacking general importance.68 The Railroad argues
that Eklutna cannot satisfy the third factor because the
Municipality is a party to the action.
The superior court disagreed, noting that Eklutna had
been treated as a public interest litigant in related cases.
Eklutna quotes from Spenard Action Committee v. Lot 3, Block 1,
Evergreen Subdivision to support its contention that under the
public interest litigant doctrine, where a municipality has the
power and ability to bring an action but declines to do so, the
situation is one where for all practical purposes, only a private
party could have been expected to bring [suit]. 69 In Spenard
Action Committee, we examined whether a citizens group that
sought to abate prostitution was a public interest litigant.70 We
concluded that the group was a public interest litigant even
though the Municipality of Anchorage could have enforced the anti-
prostitution laws because the Municipality refused to do so.71 In
this case, Eklutna asserts that it requested the Municipality to
take action in 2001 to prevent the Railroad from mining the
quarry. The Municipality refused to do so, forcing Eklutna to
seek an injunction. Eklutna also requested the Municipalitys
assistance in April 2004, after the Railroad enacted Emergency
Rule 2004-E-1. Again, the Municipality refused to take action,
and Eklutna filed its own summary judgment motion. The
Municipality did not intervene until later. Eklutnas attorney,
Sara Heideman, sets forth these facts in an affidavit and they
are not disputed in the record before us.
The Railroad argues that this case differs from Spenard
Action Committee because in this case the Municipality has
intervened on behalf of Eklutna. The Railroad concedes that the
Municipality participated in this litigation but allowed
[Eklutna] to carry the burden of the briefing, yet argues that
the Municipality, not the Railroad, should bear the costs of this
decision.72 Denying Eklutna public interest litigant status
merely because the Municipality joined the suit later would
defeat the purpose of the public interest litigant doctrine,
which is designed to encourage plaintiffs to bring issues of
public interest to the courts.73 We conclude that the superior
court did not abuse its discretion when it awarded Eklutna full
reasonable attorneys fees under the public interest litigant
doctrine.74
IV. CONCLUSION
Because Eklutna II requires the Railroad to apply for a
conditional use permit before operating the Eklutna quarry, we
AFFIRM the superior courts decision in its entirety.
MATTHEWS, Justice, with whom BRYNER, Chief Justice, joins,
dissenting.
In my view AS 42.40.3901 is a direct legislative grant
to the Railroad of immunity from local zoning. The power to
adopt exclusive rules governing land use for railroad land
necessarily means that local governments that might otherwise be
able to regulate railroad lands are excluded.2 Today the court
disavows the only alternative to this view that it offered in its
prior opinion. The alternative interpretation was that the term
exclusive could also be read as a choice-of-law provision if the
Railroad Board promulgated rules conflicting with local
ordinances, the Railroads regulations would govern, but in the
absence of a conflict, local rules are unaffected.3
I think that the court at this point should recognize
that it has retracted, and thus changed, an important part of its
prior opinion. The courts retraction means that it was
originally mistaken in thinking that the grant of exclusive rule-
making authority to the Railroad left some room for local
regulation of railroad lands. The court should now construe
section .390 in accordance with its plain language as confirmed
by clear legislative history and hold that section .390 excludes
railroad land from municipal zoning.
Is there something else that the exclusive rules
provision of section .390 could mean? Todays opinion offers two
new alternatives. But, as I discuss in the following section,
neither is plausible.
I.
As the first new alternative, the court states that an
interpretation offered by the Municipality is another possible
interpretation.4 The Municipalitys interpretation is that
section .390 governs conveyances of railroad lands. But the
explicit subject of section .390 is exclusive rules governing
railroad land use, not transfers of interests in railroad lands.
The important subject of transfers of interest in railroad lands
is governed by other sections of the act, primarily AS
42.40.285(1) and (4) and AS 42.40.350(c) and (d).5 Since land
conveyances and land use are separate subjects treated in
separate statutory sections, the view that section .390 governs
conveyances, when it states that it governs land use, seems
frivolous.
The second new alternative interpretation offered by
the court is that the land use rules authorized by section .390
are to ensure that the Railroad has the power to control
activities on its land even when its wishes to deviate from those
of its permittees, but that these land use rules are subject to
local land use regulations.6 It is of course true that one
purpose of section .390 is to ensure that the Railroad can
control the land use activities of its lessees and permitees.
The power thus granted is a regulatory power granted to the
Railroad as a government entity. It is to be exercised, like
zoning, for the common health, safety, and welfare of the public,
(as the second sentence of AS 42.40.390 makes clear) rather than
as a landlords power to specify in leases and permits how land
should be used. However, the second part of the courts
interpretation, that the land use regulatory power granted to the
Railroad by section .390 is subject to the land use regulatory
power of any municipality which encompasses railroad lands, is
not a reasonably possible interpretation for three reasons.
First, the interpretation reads the word exclusive out
of section .390. Since the Railroads power to regulate its land
is exclusive, it follows that a municipality may not also
regulate them.7
Second, the interpretation requires us to believe that
the legislature intended that two separate governmental entities
a municipality and the Railroad would both have the authority to
zone railroad land. Imposing a system in which two government
entities have the authority to zone the same land would be so
irrational as to be absurd, especially when there is no built-in
mechanism for resolving conflicts between the zoning entities.8
The interpretation thus conflicts with the rule of construction
that statutes should not be interpreted to reach absurd results.9
Finally, this interpretation is not only textually
untenable and absurd in result, it also conflicts with the
legislative history. That history was examined in detail in the
dissenting opinion in Eklutna II.10 To summarize it briefly,
section .390 was originally drafted in a legislative session in
which the Alaska Railroad Corporation Act was considered but not
passed. In 1984, when the act was passed, the Chairman of the
Senate Transportation Committee was initially uncertain as to
what the section meant. As todays opinion states, a legislative
attorney advised the committee that section .390 was either
intended to grant zoning authority to the Railroad or to exclude
railroad property from zoning regulations.11 During subsequent
meetings concerning section .390 this interpretation was never
questioned, although the desirability of retaining section .390
was. In the end, however, section .390 was approved when, on the
final day of committee deliberations Senator Halford argued that
it was needed to protect the railroads operations from local
zoning restrictions.12 Senator Gilman, who argued for the
deletion of section .390, said that it originally was put in to
establish some rationale for why the railroad should get a tax-
exempt bonding authority and opined that this was no longer
necessary.13 But Senator Faiks argued that tax exemption was
still a problem. Hers was the last word and section .390 was
retained. As the dissent in Eklutna II states:
In order to have tax-exempt bonding status,
it was believed that the Railroad needed land
use regulation powers comparable to those of
a local government. Such powers were
granted. It does not matter whether the
powers were granted primarily so that the
Railroad could issue tax-free bonds or so
that the Railroad would not be disturbed in
its operations by municipal zoning. Whatever
the dominant motive may have been, the grant
of exclusive land use regulatory power was
the same.[14]
The most valuable and least controversial use of
legislative history is to show the problem, or the problems, that
the legislature was addressing. When the problem is known, the
effect of language that might otherwise be obscure often becomes
apparent.15 Here the history of section .390 shows that it was
meant to address two, and only two, problems. One was the need
to ensure that the Railroad would be recognized as a tax-exempt
entity entitled to issue tax-free bonds. The other was the need
to protect the Railroad in its operations from impediments
imposed by local zoning. Section .390 was the solution to both
problems. In order to establish the bona fides of the Railroad
as a government entity entitled to tax-exempt treatment, the
Railroad was granted exclusive land use regulatory power. In
order to protect the Railroad from operational interference from
local zoning, the Railroad was granted the same exclusive power.
The legislative history thus unmistakably shows that section .390
was meant as a grant to the Railroad of exclusive land use
regulatory power. There is, quite simply, no history suggesting
that concurrent land use authority was intended by the
legislature, much less concurrent authority that would give
precedence to municipal zoning in case of a conflict.
This new concurrent authority with municipal zoning
given precedence interpretation is the reverse of the now-
rejected alternative interpretation offered by the court in
Eklutna II. That alternative also posited concurrent zoning
authority for municipalities and the Railroad. If particular
railroad land was covered by municipal zoning and the Railroad
had not passed land use regulations governing that land, it would
be controlled by the municipal zoning regulations. But upon
passage by the Railroad of land use regulations governing the
land, the railroad regulations would take precedence. The now-
rejected interpretation, in other words, read exclusive to state
a rule of priority rather than a rule of exclusion. That is an
unusual interpretation of exclusive, but at least the word was
not completely ignored. Currently, however, the court appears to
be saying that a municipality and the Railroad both have
concurrent zoning authority and in cases where both have acted
and there is a conflict the municipal regulations, rather than
the railroad regulations, prevail. The word exclusive has gone
missing.
II.
I also think that the court has made a fundamental
mistake as to the nature of the balancing of interests test.
That test, which was first announced by the Supreme Court of New
Jersey in Rutgers, State University v. Piluso,16 rejects
traditional approaches to the problem that arises when one
government entity proposes an activity that may violate the
zoning rules of another government entity. The traditional
approaches inferred immunity from zoning based on (1) the status
of the competing entities (the superior sovereign test), (2) the
nature of the proposed activity (the governmental/proprietary
dichotomy), or (3) the fact that the proposed activity was or was
not supported by the power to condemn property (the eminent
domain test). The Rutgers balancing of interests test rejects
the rote or ritualistic practice of inferring immunity based on
the presence or absence of the above factors.17 Instead, the
question of immunity is to be answered by considering many
factors, including those on which the traditional approaches are
based, that may be relevant to the particular question of which
governmental entity should prevail. The balancing of interests
test thus rejects the practice of inferring legislative intent
from just one factor, in favor of inferring legislative intent
from a number of factors that are thought to be relevant to a
resolution of particular land use conflicts between government
entities.18
The underlying premise of the balancing of interests
test (and the traditional approaches) is that the state
legislature has not actually addressed the subject of whether the
entity proposing the activity should or should not be subject to
local zoning. The inquiry is in essence what the legislature
would have done had it considered the question.19 The test
entails a search for hypothetical legislative intent by using
factors relevant to local and broader needs [w]hen the state
legislature is silent on the subject because it wasnt thinking
about the problem.20
Since there can be no doubt that the legislature was
thinking about the problem of whether the Railroad should be
immune from local zoning when it considered section .390,21 the
premise of the balancing of interests test is not satisfied here.
As a result, the courts duty is to determine what the legislature
meant when it enacted the exclusive rules provision. The
balancing of interests test is a rule that rejects rote
inferences of immunity drawn from collateral legislation, but it
is not a rule that changes a courts fundamental duty to interpret
statutes that directly address the subject of immunity.
Balancing of interests applies in the absence of a directly
relevant statute, but it is not a rule intended to resolve
ambiguities in statutes that address the subject of immunity.22
The Supreme Court of New Jersey designed the Rutgers
balancing test to prohibit courts from using legal relationships
that do not directly concern land use control to draw inferences
about one government entitys amenability to zoning by another.
Todays opinion has converted the Rutgers balancing test into a
rule of statutory construction precluding the immunization of one
entity from the zoning power of another unless the land use
control law states the immunization objective with a high
standard of clarity.23 This conversion of the Rutgers balancing
test into a clear-statement rule reflects a presumption in favor
of local zoning power over state land use. Judicially created
clear-statement rules are based on a presumption that a
particular result is disfavored, thus requiring laws to make a
clear statement that such a result is intended.24 That the
Rutgers balancing test cannot be interpreted to be a clear-
statement rule is clear from the Rutgers opinion. Far from
reflecting a presumption disfavoring state land uses when they
conflict with local zoning, the New Jersey court stated in
Rutgers that state functions and agencies would generally not be
subject to restriction or control by local land use
regulations.25 The Rutgers court stated:
With regard to a state university . . . there
can be little doubt that, as an
instrumentality of the state performing an
essential governmental function for the
benefit of all the people of the state, the
Legislature would not intend that its growth
and development should be subject to
restriction or control by local land use
regulation. Indeed, such will generally be
true in the case of all state functions and
agencies.[26]
Rather than use a rule of statutory construction that
gives courts permission to ignore relevant statutes that speak to
the question of the allocation of the power to control land use
unless the courts find them to be clear a rule that is not part
of the Rutgers balancing test the court should, in my opinion,
use customary rules of statutory interpretation in order to
determine what the legislature actually meant when it addressed
the subject of the Railroads authority to adopt exclusive rules
governing railroad land use.
To sum up, I think that the court erred in Eklutna II
when it declined to interpret section .390 to exempt railroad
land from local zoning. Such an interpretation is required by
our customary touchstones of statutory interpretation, the
language of the section as confirmed by its unusually clear
legislative history.27 The court has now found it necessary to
recant the only alternative interpretation of section .390 that
it offered in Eklutna II. I think this should signal to the
court that it made a mistake in Eklutna II and that the mistake
should now be corrected. Instead, the court has offered two new
alternative interpretations. These new interpretations stray so
far afield from our traditional methods of statutory
interpretation as to be completely implausible, in my opinion.
The court is able to justify its failure to reach a conclusive
interpretation of the meaning of section .390 by creating a clear-
statement rule of statutory construction. This rule allows the
court to brush aside any statute that addresses the land use rule-
making authority of entities other than municipal zoning boards
unless the statute clearly exempts the other entities from
municipal zoning. This is a distortion of the Rutgers balancing
test. Our established rules of statutory interpretation do not
require statutory clarity where clarity exists there is little
need for the rules. In my view, when a normal approach is taken
to the question of the meaning of section .390 only one
interpretation is reasonably possible.
For these reasons, I dissent.
_______________________________
1 995 P.2d 641 (Alaska 2000).
2 Id. at 641-43.
3 Id. at 645.
4 Id. (citing Anchorage Municipal Code (AMC) 21.50.020A).
5 43 P.3d 588 (Alaska 2002).
6 Id. at 590.
7 Id.
8 Id. at 598.
9 Native Vill. of Eklutna v. Alaska R.R. Corp., 87 P.3d
41, 44 (Alaska 2004) (Eklutna II).
10 Id.
11 Id.
12 Id. at 45.
13 AS 42.40.010 et seq.
14 Eklutna II, 87 P.3d at 45.
15 AS 42.40.390 provides:
The board [of the Alaska Railroad
Corporation] may adopt exclusive rules
governing land use by parties having
interests in or permits for land owned or
managed by the corporation. The power
conferred by this section is exercised for
the common health, safety, and welfare of the
public and to the extent constitutionally
permissible, may not be limited by the terms
and conditions of leases, contracts, or other
transactions.
16 Eklutna II, 87 P.3d at 47.
17 Id. at 54-55.
18 Id. (quoting Rutgers, State Univ. v. Piluso, 286 A.2d
697, 702 (N.J. 1972)).
19 Id. at 55.
20 Id.
21 AS 42.40.190(b) provides that an emergency rule adopted
by the Railroad Board remains in effect for not more than 120
days.
22 The proposed legislation, contained in Senate Bill 395
and House Bill 560, would have amended AS 42.40.390 to provide:
(b) Municipal ordinances providing for
planning, platting, and land use regulation
adopted under AS 29.35.180 or other law do
not apply to the land of the corporation
unless the land is leased to another person
by the corporation and the corporation has
not retained a right to use the land during
the term of the lease.
23 Ch. 46, 4(d), SLA 2004.
24 Ch. 46, SLA 2004.
25 Ch. 46, 4(d), SLA 2004.
26 Eklutna II, 87 P.3d at 44.
27 Id.
28 Citizens Coalition for Tort Reform, Inc. v. McAlpine,
810 P.2d 162, 171 (Alaska 1991) (citing Johnson v. Tait, 774 P.2d
185, 190 (Alaska 1989)).
29 Koyukuk River Tribal Task Force on Moose Mgmt. v. Rue,
63 P.3d 1019, 1020 (Alaska 2003) (citing Feichtinger v. Cooper,
893 P.2d 1266, 1268 (Alaska 1995)).
30 Alaska Ctr. for Envt v. Rue, 95 P.3d 924, 929 (Alaska
2004).
31 See, e.g., Burke v. Barnes, 479 U.S. 361, 363 (1987)
(concluding that issue was moot because bill expired during
pendency of appeal); Krohn v. State, Dept of Fish & Game, 938
P.2d 1019, 1023 (Alaska 1997) (holding that issue was moot
because Department of Fish and Game repealed challenged
regulations).
32 OCallaghan v. State, 920 P.2d 1387, 1389 (Alaska 1996)
(citing Peloza v. Freas, 871 P.2d 687, 688 (Alaska 1994); see
also Alaska Ctr. for Envt, 95 P.3d at 929. None of the public
interest factors is dispositive, and whether to invoke the
exception lies with the discretion of the court. Krohn, 938 P.2d
at 1021.
33 See AS 42.40.190.
34 See State, Commercial Fisheries Entry Commn v. Carlson,
65 P.3d 851, 873 (Alaska 2003).
35 Eklutna II, 87 P.3d at 47.
36 Id. at 63 (Matthews, J., dissenting).
37 Id.
38 Id. at 63 n.12.
39 87 P.3d at 47 n.24.
40 Id. at 47.
41 Id. at 47-48.
42 Id. at 47.
43 Id. at 47-48 (emphasis added).
44 Dissent at 26.
45 Given that the Railroad is exempted by AS 42.40.920(11)
from the rules governing state land conveyancing in the Alaska
Land Act, AS 38.05, it makes sense to read AS 42.40.390 as
conferring on the Railroad the power to enact rules governing how
it will lease or convey its land to others within, of course, the
constraints of other sections of the act.
46 The dissent takes issue with the Municipalitys
interpretation because the dissent interprets the term land use
as separate from land conveyances or other forms of land
transfers. Dissent at 27. But the term use is capable of
including conveyances and transfers of all kinds. AS 42.40.390
also uses the terms interests and other transactions, both of
which are general terms that can cover the full range of legal
relationships including conveyances.
47 Dissent at 29, 32.
48 Dissent at 29.
49 As the dissent points out, the problems that arise when
one government entity proposes an activity that may violate the
zoning rules of another government entity are common and have led
to the development of traditional approaches to resolving these
problems such as the superior sovereign test, the
governmental/propriety dichotomy, or the eminent domain test, in
addition to the balancing of interest test. Dissent at 32-33.
The proliferation of attempts to negotiate these conflicts of
jurisdiction among governmental entities suggests that while
these conflicts may be difficult to resolve, they are
nevertheless common.
50 Carlson, 65 P.3d at 859 (internal quotations omitted).
51 Bowers Office Prods., Inc. v. Fairbanks N. Star Borough
School Dist., 918 P.2d 1012, 1014 (Alaska 1996).
52 Id. (internal citations and quotations omitted).
53 Carlson, 65 P.3d at 859 (internal quotations omitted).
54 Eklutna II, 87 P.3d at 48.
55 Id. at 45.
56 Id. at 54.
57 See Eklutna II, 87 P.3d at 55 (Resort to the balancing
of interests test is limited by two threshold requirements.
First, because the test aims to discern legislative intent,
direct statutory grants of immunity control when they exist.
Second, the court will not resolve conflicts under the balancing
test unless the state has made a reasonable good faith attempt to
comply with local zoning laws.) (internal citations omitted).
58 See Bowers Office Prods., 918 P.2d at 1014 (discussing
law of the case doctrine) (internal quotations omitted).
59 Eklutna II, 87 P.3d at 48 (citing Cmty. for Creative
Non-Violence v. Reid, 490 U.S. 730, 749 (1989)).
60 Id.
61 AS 09.60.010(b); ch. 86, SLA 2003.
62 See ch. 86, 4, SLA 2003.
63 Although the Railroad did not challenge the procedural
posture of the case when Eklutna filed its motion for summary
judgment, the Railroad did preserve the right to make this
argument in a stipulation with Eklutna.
64 See ch. 86, 4, SLA 2003.
65 See 18 Am. Jur. 2d Contribution 74 (2004) (Once a
court of equity acquires jurisdiction of the subject matter, it
will retain it until full justice has been done between the
parties.); see also Foster v. State, 752 P.2d 459, 465 (Alaska
1988) (stating that once a court obtains jurisdiction for
equitable purposes, it may dispose of all issues before it,
whether equitable or legal).
66 See, e.g., Brown v. Ely, 14 P.3d 257, 263 (Alaska 2000)
(construing Civil Rule 15(c)).
67 Id.
68 Citizens Coalition for Tort Reform, Inc. v. McAlpine,
810 P.2d 162, 171 (Alaska 1991) (citing Anchorage Daily News v.
Anchorage Sch. Dist., 803 P.2d 402, 404 (Alaska 1990)).
69 902 P.2d 766, 782 (Alaska 1995).
70 Id.
71 Id.
72 The Railroad does not contend that the fees charged
were unreasonable.
73 Anchorage v. McCabe, 568 P.2d 986, 990 (Alaska 1977).
74 The Municipality argues that the Railroad should pay
its full attorneys fees because the Railroads case is without
merit. The Municipality provides little support for this
argument.
1 AS 42.40.390 provides:
The board may adopt exclusive rules
governing land use by parties having
interests in or permits for land owned or
managed by the corporation. The power
conferred by this section is exercised for
the common health, safety, and welfare of the
public and to the extent constitutionally
permissible, may not be limited by the terms
and conditions of leases, contracts, or other
transactions.
2 This position was explained in more detail, and
supported by legislative history, in the dissenting opinion in
Native Village of Eklutna v. Alaska Railroad Corp. (Eklutna II),
87 P.3d 41, 62-69 (Alaska 2004) (Matthews, J., joined by Bryner,
J., dissenting).
3 Id. at 47.
4 Slip Op. at 14.
5 These statutes provide:
AS 42.40.285(1) and (4):
Unless the legislature approves the
action by law, the corporation may not
(1) exchange, donate, sell, or otherwise
convey its entire interest in land;
. . .
(4) lease land for a period in excess of
55 years unless the corporation reserves the
right to terminate the lease if the land is
needed for railroad purposes[.]
AS 42.40.350(c) and (d):
(c) The corporation may lease, subject
to AS 42.40.285 and (d) of this section,
grant easements in or permits for, or
otherwise authorize use of portions of rail
land. However, the corporation may not
convey its entire interest in rail land
except as provided in AS 42.40.285,
42.40.370(d) and 42.40.400.
(d) A lease or disposal of land approved
by the legislature under AS 42.40.285 by the
corporation to a party other than the state
shall be made at fair market value as
determined by a qualified appraiser or by
competitive bid.
6 Slip Op. at 15-16.
7 In response to this point the court states that
exclusive as used in the statute merely means that lessees and
permitees do not also have regulatory power to adopt land use
rules. Slip Op. at 16. But we know both as a matter of logic
and from the legislative history of section .390 that this is not
what the legislature had in mind. Lessees and permittees do not
have governmental land use regulatory authority. Therefore there
is no need to exclude them from its exercise. When the
legislature grants zoning power to municipalities it does not
find it necessary to state that the power is exclusive of powers
that might otherwise be exercised by municipal lessees, because
lessees lack zoning power. And we know from the legislative
history that section .390 was intended to grant the Railroad the
land use regulatory authority of a government. See the
discussion of legislative history of section .390 infra at pages
30-32.
8 In response to this point the court states that
government entities must commonly contend with conflicts of
jurisdiction. Slip Op. at 16. This generality is correct, but
it does not detract from the point that it would be absurd to
give two separate government entities the authority to zone the
same land. The court offers neither a rationale for, nor an
example of, a statute that bestows conflicting zoning authority.
9 Sherman v. Holiday Constr. Co., 435 P.2d 16, 19 (Alaska
1967) (it is a judicial duty to construe statutes so as to avoid
results glaringly absurd).
10 87 P.3d at 62-69 (Matthews, J., joined by Bryner, J.,
dissenting).
11 Slip Op. at 12-13.
12 Eklutna II, 87 P.3d at 63-64 (dissenting opinion).
13 Id. at 64.
14 Id.
15 See, e.g., 2A Norman J. Singer, Sutherland Statutory
Construction 4502, at 15 (6th ed. 2000) (Before the true meaning
of a statute can be determined where there is genuine uncertainty
concerning its application, consideration must be given to the
problem in society to which the legislature addressed itself.);
Stephen Breyer, On the Uses of Legislative History in
Interpreting Statutes, 65 S. Cal. L. Rev. 845, 848-49 (1992)
(noting that legislative history helps a court understand the
context and purpose of a statute which can clarify ambiguity and
can help to avoid[] absurd results); City of Rancho Palo Verdes
v. Abrams, 125 S. Ct. 1453, 1459 (2005) (concurring opinion of
Breyer, J., joined by three other justices) (advocating
examination of context, not just literal text as a guide to
Congress intent) (discussed in ICHRRA v. Fairbanks N. Star
Borough, 135 P.3d 1000, 1010 n.5 (Alaska 2006) (Matthews, J.,
concurring)).
16 286 A.2d 697 (N.J. 1972).
17 Id. at 701.
18 Id. at 702. Because immunity, or the lack thereof, is
inferred from a number of factors that may be relevant to the
ultimate policy decision as to the location of a particular
project, it is easy to see why the balancing test is preferred by
many authorities to the traditional approaches that focus on
factors that may be irrelevant to a rational policy choice. The
drawback of the balancing test is that ultimately the policy
choice is made by courts, rather than by executive or legislative
authorities. Issues involving balancing local interests with
state-wide needs are not readily amenable to judicial analysis.
This drawback can be avoided where the balancing decision maker
is an agency that is legally competent to make complicated policy
choices. The American Law Institutes Model Land Development Code
creates regional agencies to make such decisions, and a state-
wide board to hear appeals from regional agencies. See Model
Land Dev. Code 7-304-504 (1975). The general Alaska statutory
system also avoids setting up the courts as the ultimate policy
decision maker in inter-governmental zoning disputes, without the
bureaucratic overlay of the Model Code. Under AS 35.30.020 and
.030 state agencies are required to comply with local zoning
subject to a waiver in cases of overriding state interest. The
governor makes the decision as to whether an overriding state
interest exists. But this sensible system does not apply to the
Railroad because a provision of the Alaska Railroad Corporation
Act states that AS 35 does not apply to the Railroad. AS
42.40.920(b)(3). It is one of the ironies of this case that the
legislative efforts to make the Railroad less subject to local
zoning control than other state agencies the status quo for the
Railroad as a former federal entity was that it was not subject
to local zoning has resulted in the Railroad becoming more
subject to local control; or, at least, that it must endure a
less certain (and more expensive and time-consuming) method of
obtaining an overriding state interest waiver than other
agencies.
19 City of Crown Point v. Lake County, 510 N.E.2d 684, 689
(Ind. 1987).
20 City of Temple Terrace v. Hillsborough Assn for
Retarded Citizens, 322 So. 2d 571, 578-79 (Fla. App. 1975).
21 See supra pages 30-32.
22 E.g., City of Rapid City v. Pennington County, 669
N.W.2d 120 (S.D. 2003). This case involved a dispute between a
county that proposed to locate a jail-work release facility in a
city in violation of the citys zoning and comprehensive plan.
The governing statute provided that no public building shall be
constructed without city planning commission approval, but
another section provided that planning commission disapproval may
be overruled by the board authorizing the building. Id. at 122
(discussing SDCL 11-6-19 and 11-6-21). Over a dissent that
argued that South Dakotas previously adopted balancing test
should apply, the court construed the statute to mean that the
county was not subject to the citys zoning ordinance with respect
to the creation of the jail-work release facility. Id. at 124-
26.
23 This is evident from the introductory language of
todays opinion where the court, in explaining Eklutna II, states
that because the legislature did not clearly indicate its
intention to exempt the Railroad from municipal zoning laws when
it enacted the Alaska Railroad Corporation Act . . . the Railroad
must apply for a conditional use permit under the zoning code of
the Municipality of Anchorage. Slip Op. at 2 (emphasis added).
24 See Blatchford v. Native Vill. of Noatak, 501 U.S. 775,
790 (1991) (Blackmun, J., dissenting) (noting, in disapproval,
that so-called clear-statement rules are designed as hurdles
against disfavored results) (internal quotations omitted); Dan M.
Kahan, Is Chevron Relevant to Federal Criminal Law?, 110 Harv.
L. Rev. 469, 504 (1996) (reporting that in the face of a clear-
statement rule, only express [legislative] action will suffice to
establish the disfavored reading).
25 Rutgers, 286 A.2d at 703.
26 Id. (emphasis added).
27 See, concerning our customary methods of statutory
interpretation, Homer Elec. Assn v. Towsley, 841 P.2d 1042, 1043-
44 (Alaska 1992):
Generally, the most reliable guide to
the meaning of a statute is the words of the
statute construed in accordance with their
common usage. Lagos v. City & Borough of
Sitka, 823 P.2d 641, 643 (Alaska 1991).
However, even where the statutory language
considered alone seems to leave room
reasonably for only one meaning, we
nonetheless may consult legislative history
and the rules of statutory construction,
realizing that sometimes language that seems
clear in the abstract takes on a different
meaning when viewed in context. North Slope
Borough v. Sohio Petroleum Corp., 585 P.2d
534, 540 (Alaska 1978); State v. Alex, 646
P.2d 203, 208 n.4 (Alaska 1982). In such
cases the legislative history and rules of
construction must present a compelling case
that the literal meaning of the language of
the statute is not what the legislature
intended. University of Alaska v. Geistauts,
666 P.2d 424, 428 n.5 (Alaska 1983) (Where a
statutes meaning appears clear and
unambiguous, . . . the party asserting a
different meaning has a correspondingly heavy
burden of demonstrating contrary legislative
intent.); State v. Alex, 646 P.2d at 208 n.4
(under Alaskas sliding-scale approach to
statutory interpretation, the more plain the
language of the statute the more convincing
the evidence of contrary legislative intent
must be).
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