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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Copeland v. Ballard (06/26/2009) sp-6382
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
| TOM COPELAND and RIKI OTT, | ) |
| ) Supreme Court No. S- 12648 | |
| Appellants, | ) |
| ) Superior Court No. 3AN 04- 06295 CI | |
| v. | ) |
| ) O P I N I O N | |
| ERNESTA BALLARD, | ) |
| Commissioner, DEPARTMENT OF | ) No. 6382 - June 26, 2009 |
| ENVIRONMENTAL CONSERVATION, | ) |
| STATE OF ALASKA; BRITISH | ) |
| PETROLEUM OIL SHIPPING CO.; | ) |
| SEARIVER MARITIME, INC.; | ) |
| ALYESKA PIPELINE SERVICE CO.; | ) |
| TOM LAKOSH, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Daniel J. Schally, Judge.
Appearances: Nancy S. Wainwright, Law
Offices of Nancy S. Wainwright, Anchorage,
for Appellants. Jennifer L. Schorr,
Assistant Attorney General, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for Appellee State of Alaska. Kevin
Callahan, Patton Boggs, LLP, Anchorage, for
Appellee SeaRiver Maritime, Inc. Michael W.
Seville, Burr, Pease & Kurtz, Anchorage, for
Appellees BP Oil Shipping Co. USA, Alaska
Tanker Co., LLC, Polar Tankers, Inc., and
Tesoro Alaska Shipping Co., Inc.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
WINFREE, Justice.
I. INTRODUCTION
Two Cordova residents intervened in the administrative
appeal of an agency decision approving contingency plans for
various oil shipping entities, but then were dismissed from the
proceedings for failure to pay record costs. The intervenors
appealed to the superior court, which affirmed the agency
decision. Although the underlying proceedings have been
completed and the appeal to this court is technically moot, due
process questions raised by the intervenors fall within the
public interest exception to mootness, and we address those
issues.
We generally, but with some caveats, affirm the
superior courts decision to uphold the agencys: (1)
interpretation of its regulation allowing it to charge a copying
fee for the initial production of the record; (2) interpretation
of the term pro rata for purposes of charging for the compilation
of the record; (3) advance payment requirement; and (4)
timeliness in producing the record. But we reverse in part the
decision of the superior court and hold that the agencys:
(1) practice of denying litigants access to the agency record
prior to its certification violates due process; and
(2) dismissal of the intervenors from the administrative appeal
was an abuse of agency discretion.
II. FACTS AND PROCEEDINGS
Companies operating in many facets of the oil industry
shipment, exploration, production, or transfer must submit oil
discharge prevention and contingency plans to the State of
Alaska, Department of Environmental Conservation (DEC) on a
regular basis.1 Contingency plans are plans to prevent, contain,
and clean up oil spills from oil tank vessels, offshore oil
exploration or production facilities, and large oil terminal
facilities.2 DEC reviews and then approves contingency plans if
they are consistent with statutory and regulatory requirements.3
Tom Lakosh appealed DECs approvals of three separate
contingency plans for oil tankers and shipping entities operating
in and around Valdez; the three appeals were consolidated into a
single proceeding. Tom Copeland and Riki Ott moved to intervene
in Lakoshs appeal of DECs approval of the Trans-Alaska Pipeline
System tanker discharge prevention and contingency plans (TAPS
Tanker C-Plan) but did not move to intervene in Lakoshs other two
appeals of contingency plan approvals.4 In June 2003 DEC
Commissioner Ernesta Ballard granted the intervention motion,
stating that Copeland and Ott are now considered parties to the
proceeding I granted to Mr. Lakosh on February 21, 2003, and that
Lakosh, Copeland, and Ott each would be responsible for paying
one-third of the record costs.
Copeland, Ott, Lakosh, and DEC negotiated the
preparation and certification of the administrative record over
the next nine months. DEC provided several different cost
estimates for record preparation, ranging from $1,270 to $2,843.
Negotiations culminated in a January 2004 order from the
Commissioner that Copeland, Ott, and Lakosh must pay the record
costs (choosing one of several options) by February 13, 2004, or
face dismissal.
On February 10 Lakosh submitted payment for his share
of the record costs. On February 12 Copeland and Ott submitted a
letter to the Commissioner with questions and objections to the
record preparation process. The Commissioner did not respond.
On February 20 DECs counsel gave Copeland and Ott notice of
revised cost estimates for the record preparation.
The Commissioner dismissed Copeland and Ott from the
appeal on March 2 for non-payment. Copeland and Ott then
requested reconsideration of the dismissal and submitted a check
for their two-thirds portion of the February 20 estimated record
preparation costs under one of the options set forth in the
Commissioners January 2004 order. The Commissioner returned the
check and affirmed Copeland and Otts dismissal from the appeal.
Copeland and Ott appealed to superior court, arguing
that the Commissioner violated their due process rights when she
dismissed them from the administrative appeal. The superior
court concluded that Copeland and Otts due process rights had not
been violated and affirmed their dismissal from the
administrative appeal proceeding. Copeland and Ott now appeal
the superior courts decision and its award of attorneys fees and
other costs to DEC.
Lakosh ultimately abandoned his appeal. The disputed
contingency plans expired and DEC approved new contingency plans.
III. STANDARD OF REVIEW
In this case the superior court acted as an
intermediate appellate court, and we therefore independently
review the merits of [the] administrative determination.5 We
review questions of mootness under the independent judgment
standard.6 Dismissals of administrative appeals for failure to
prosecute are generally reviewed under the abuse of discretion
standard.7 However we use our independent judgment when
reviewing a lower courts interpretation of statutes and other
related legal questions, and when determining whether a partys
procedural due process rights have been violated.8
IV. DISCUSSION
Copeland and Ott claim that DEC violated the due
process clause of the Alaska Constitution9 by dismissing them
from the administrative appeal. [P]rocedural due process under
the state constitution requires notice and opportunity for
hearing appropriate to the nature of the case. 10 Due process
includes the right to a neutral and unbiased decision-maker who
presides over proceedings that are fair and that have the
appearance of fairness.11 Copeland and Ott contend that DECs
actions were arbitrary, biased, and unfair, culminating in three
specific due process violations: (1) arbitrary denial of access
to the record and delay in preparation of the record;
(2) arbitrary apportionment of the record costs; and
(3) unconstitutional imposition of a litigation-ending sanction.
We first address whether Copeland and Otts claims are,
as DEC and the shipping companies argue, moot.
A. This Appeal Satisfies the Public Interest Exception to
the Mootness Doctrine, and We Will Consider Its Merits.
We generally will not consider questions where events
have rendered the legal issue moot.12 A claim is moot if it is no
longer a present, live controversy or if the court system cannot
provide the relief the claimant seeks.13 We have previously found
cases moot when agency-issued permits had expired but the permit
opponents still sought declaratory judgment that the agency
actions were unlawful.14 We have emphasized that [m]ootness is
particularly important in a case seeking a declaratory judgment
because there is an added risk that the party is seeking an
advisory opinion.15 Our decision in Kodiak Seafood Processors
Association makes clear that when as in this case the challenge
is to the procedures used by the agency and the relief sought is
a declaratory judgment, the claim is technically moot if the
underlying permit has expired.16
There are exceptions to the general rule that we will
not hear cases that are moot.17 The public interest exception
requires considering and weighing three factors: (1) whether the
disputed issues are capable of repetition, (2) whether the
mootness doctrine, if applied, may cause review of the issues to
be repeatedly circumvented, and (3) whether the issues presented
are so important to the public interest as to justify overriding
the mootness doctrine.18
As to the first prong of this test, Copeland and Ott
claim that agency regulations, as applied, violate the due
process clause of the Alaska constitution and that this violation
is capable of repetition because DEC has consistently applied and
interpreted its regulations incorrectly and arbitrarily. We
accept this as sufficient for the first prong of the public
interest exception to mootness.
We have previously analyzed the second prong whether
an issue is likely to repeatedly evade review by comparing the
time it takes to bring the appeal with the time it takes for the
appeal to become moot.19 We have also emphasized that if the
appeal involves a threshold issue or agency interpretation of
law, we will view this requirement of the public interest
exception more leniently.20 Current contingency plans have a five-
year life span.21 The appeal in this case, which began in
November 2002, demonstrates that it is unreasonable to assume an
opponent to an approved contingency plan would be able to appeal
the agency decision within the five-year duration of the plan.
Copeland and Ott also raise threshold questions about the
production of the agency record and agency interpretations of law
that could deter future litigants. This satisfies the second
prong of the public interest exception to mootness.
The third prong of the public interest exception
requires a showing that the issues presented are so important to
the public interest as to justify overriding the mootness
doctrine.22 We have found this prong met when the case involved
concepts of fairness underlying the right to procedural due
process,23 the preservation of clean water,24 or situations,
otherwise moot, where the legal power of public officials was in
question.25 This case involves two matters fundamental to the
public interest. The first is approval of contingency plans to
protect Alaskas marine and coastal environments in the event of
an oil spill, and given the potentially devastating effects of
oil spills on the ecology and economy of the state, this is a
matter of utmost importance to the public interest. The second
is an administrative procedures challenge grounded in the due
process clause, and given the need for transparency in governance
and access to administrative records, this also is a matter of
importance to the public interest. This case meets the
requirements of the third prong of the public interest exception
to mootness.
We therefore address the merits of Copeland and Otts
due process claims.
B. Due Process Requires that Litigants Be Allowed Agency
Record Access.
Alaskas Public Records Act26 codifies the common law
rule that every interested person [is] entitled to the inspection
of public records, although it perhaps eliminates the requirement
that the person inspecting records be interested.27 But the Act
creates an exception to the general policy of unencumbered access
to public records for those records used for, included in, or
relevant to litigation28 and provides that with respect to a
person involved in litigation, the records shall be sought in
accordance with the rules of procedure applicable in a court or
an administrative adjudication.29 DEC argues that 18 Alaska
Administrative Code (AAC) 15.237(b) requires the agency to notify
parties, when the record has been certified as complete, that
they may have access to it and therefore that this regulation
make[s] clear that the record was required to be certified before
Mr. Copeland and Ms. Ott could access it.30 Copeland and Ott
argue that this regulation, made applicable through AS 40.25.122,31
unconstitutionally denied them access in violation of their due
process rights.32
When assessing whether an administrative action
violates the due process clause of the Alaska Constitution, we
use the framework established by the United States Supreme Court
in Mathews v. Eldridge.33 We weigh: (1) the private interest at
stake; (2) the risk of an erroneous deprivation of the private
interest and the value of additional safeguards; and (3) the
government interest noting particularly the cost and
administrative burdens entailed by additional procedural
protections.34 In this case we have no trouble concluding that
the agencys denial of access to the record violated due process.
The regulations effect is to prevent access to the
record prior to certification. As litigants, Copeland and Ott
have a strong interest in accessing the record it is the
platform upon which they must build their case. Access to the
record is also important when the parties attempt to negotiate a
limited record for review in order to control costs, as they did
here. DEC has offered no valid governmental interest in denying
access, asserting only that: (1) the parties all had access to
the record when they participated in the plan review process;
(2) most of the record is irrelevant; and (3) the documents were
publicly available during plan review a statement that Copeland
and Ott dispute. Although these assertions suggest that the
burden of 18 AAC 15.237(b) may not be great, they do not explain
the governments interest in placing any burden whatsoever on
accessing the record. Because Copeland and Otts interests are
significant and because DEC has provided no countervailing
interests, we hold that the regulation violates the due process
clause of the Alaska Constitution.
C. When Litigants Are Required To Pay Record Costs in
Advance, Due Process Requires Clear and Accurate Cost
and Time Estimates and an Explanation of How Estimates
Were Calculated.
18 AAC 115.237(c) permits the agency to require advance
payment of costs.35 This does not on its face offend the due
process clause of the Alaska Constitution, but Copeland and Ott
have argued that the agency acted arbitrarily by: (1) issuing
conflicting cost estimates; (2) presenting varying estimates of
the pages in the record; and (3) arbitrarily apportioning record
costs among the parties.
We recognize that an agency often will be able to
provide only an estimate of record preparation costs, given the
size and complexity of many administrative records. In this case
DEC counsel was careful to explain the method of calculation as
estimates of the length of the record and the costs changed.36 We
nevertheless note that when an agency requires advance payment,
it would be arbitrary not to provide an accurate and prompt
estimate of cost and size of the record as well as an explanation
of how each estimate was calculated. If the cost of the record
is being shared by multiple parties, the agency should also
explain its method of apportioning costs. Here the agency
followed 18 AAC 15.237(c)s direction for pro rata cost-sharing
but did not explain how it applied this method to the three
consolidated appeals when Copeland and Ott were participating in
only one of the three appeals. The agency erred by not
explaining this aspect of its calculations.
Copeland and Ott also argue that the agencys
interpretation of 18 AAC 15.237(c) is erroneous, as the agency
interprets that regulation to include copying costs as part of
the costs of gathering and certifying the record. We hold that
the agencys interpretation of the term gathering and certifying
to include photocopying the record to create a master copy is
reasonable.
Finally, Copeland and Ott argue that the agencys delay
in preparing and certifying the record violated due process. We
agree that an agencys unreasonable delay in preparing and
certifying the record may violate a litigants due process rights.
We also agree that an agency must be mindful of the implications
of a delayed record and take reasonable steps to provide due
process to an agency litigant. The delay in this case, however,
was not attributable only to the agency, and it did not reach
constitutional proportions.
D. Dismissal of Copeland and Ott Was an Abuse of
Discretion.
Copeland and Ott argue that the agency: (1) had an
obligation to find willful noncompliance; (2) had an obligation
to explore alternatives before dismissing them; and (3) failed to
do either. They argue that there was no prejudice to the agency,
noting that the record costs were still unascertained at the time
of dismissal. DEC responds that this case is not about
litigation-ending sanctions, but about Copeland and Otts lack of
diligence and failure to prosecute their appeal fully.
We have previously expressed a policy favoring
adjudication of cases on the merits, and we are reluctant to bar
a litigant from his day in court where an alternative remedy
would suffice to make the adverse party whole.37 Before
dismissing litigants, we have held that a court or agency must
find that the violation of an order was prejudicial or otherwise
unreasonable and must explore available alternatives to
dismissal.38 Copeland and Ott assert that their failure to meet
the deadline was due to their confusion over the conflicting
figures and fees, rather than to any willful violation. They
point out that even at the time of the dismissal their questions
about the scope, content and cost of the record remained
unanswered. Given the lengthy correspondence over the record and
the varying cost and page estimates, this argument is convincing.
DEC has offered no evidence to countervail it.
We are reluctant to uphold litigation-ending sanctions
when there is no prejudice to the opposing party.39 In this case
there was no prejudice to DEC. The agency was not ready to
gather and certify the record at the time of Copeland and Otts
dismissal, so the missed deadline had no actual effect on the
agency.
We do not require . . . explicit findings concerning
alternative sanctions, nor do we require . . . examin[ation of]
every single alternative remedy, but the agencys exploration of
alternatives to dismissal must be reasonably thorough.40 In this
case the Commissioner outlined several options for payment of
record costs and warned that if Lakosh, Copeland, and Ott did not
take one of the actions listed, she would dismiss the
adjudicatory hearing matter for failure of the requesting parties
to proceed. But a prospective warning of dismissal is not
functionally the same as exploring alternatives to dismissal
after a party has failed to comply with an order. Because the
agency easily could have reinstated Copeland and Ott once they
submitted payment for the record and because there was neither
prejudice nor evidence of willfulness on Copeland and Otts part,
we hold that their dismissal was an abuse of discretion.41
V. CONCLUSION
For the foregoing reasons we AFFIRM in part and REVERSE
in part the superior courts decision affirming DECs actions, we
VACATE the judgment entered against Copeland and Ott for
attorneys fees and costs, and we REMAND to the superior court for
entry of an appropriate attorneys fees and costs award in favor
of Copeland and Ott.
_______________________________
1 AS 46.04.030.
2 Lakosh v. Alaska Dept of Envtl. Conservation, 49 P.3d
1111, 1113 n.2 (Alaska 2002).
3 AS 46.04.030.
4 The TAPS Tanker C-Plan record involved the applications
of Tesoro, Chevron, Alaska Tanker Co., SeaRiver Maritime, and
Polar Tankers, collectively called Prince William Sound Tankers.
Lakoshs other two appeals were of Western Pioneer and Valdez
Marine Terminals contingency plans.
5 Bruner v. Peterson, 944 P.2d 43, 47 n.5 (Alaska 1997).
6 Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532,
534 (Alaska 2005) (We apply our independent judgment in
determining mootness because, as a matter of judicial policy,
mootness is a question of law.).
7 Baker v. Univ. of Alaska, 22 P.3d 440, 442 (Alaska
2001).
8 Paxton v. Gavlak, 100 P.3d 7, 10 (Alaska 2004)
(internal citations omitted).
9 Alaska Const. art. I, 7 (No person shall be deprived
of life, liberty, or property, without due process of law.).
10 Carvalho v. Carvalho, 838 P.2d 259, 262 (Alaska 1992)
(quoting Aguchak v. Montgomery Ward Co., 520 P.2d 1352, 1356
(Alaska 1974)).
11 State v. Lundgren Pac. Constr. Co., 603 P.2d 889, 895-
96 (Alaska 1979). We will review administrative proceedings to:
[A]ssure that the trier of fact was an
impartial tribunal, that no findings were
made except on due notice and opportunity to
be heard, that the procedure at the hearing
was consistent with a fair trial, and that
the procedure was conducted in such a way
that there is an opportunity for a court to
ascertain whether the applicable rules of law
and procedure were observed.
Robles v. Providence Hosp., 988 P.2d 592, 596 (Alaska 1999)
(quoting In re Hanson, 532 P.2d 303, 305 (Alaska 1975) (internal
quotation marks omitted)).
12 Kodiak Seafood Processors Assn v. State, 900 P.2d 1191,
1195 (Alaska 1995).
13 Ulmer v. Alaska Rest. & Beverage Assn, 33 P.3d 773, 776
(Alaska 2001) (quoting Gerstein v. Axtell, 960 P.2d 599, 601
(Alaska 1998)).
14 See, e.g., State, Dept of Natural Res. v. Greenpeace,
Inc., 96 P.3d 1056, 1068 (Alaska 2004); Kodiak Seafood
Processors, 900 P.2d at 1196.
15 Kodiak Seafood Processors, 900 P.2d at 1195.
16 Id. at 1194-95.
17 See, e.g., Fairbanks Fire Fighters Assn, Local 1324 v.
City of Fairbanks, 48 P.3d 1165, 1168 (Alaska 2002).
18 Kodiak Seafood Processors, 900 P.2d at 1196.
19 E.g., Ulmer, 33 P.3d at 778 (Although such appeals
typically must be decided by election day to avoid becoming moot,
there is no reason to believe that we cannot resolve such appeals
in a timely fashion. Indeed, we have frequently done that.)
(internal citations omitted).
20 Fairbanks Fire Fighters Assn, Local 1324, 48 P.3d at
1168 (Arbitrability is a threshold question; thus, the harm is
caused by the means of resolution and not the resolution itself.
Therefore, we find that this requirement [that the issue
continually evade review] is met.); Alaska Ctr. for the Envt v.
Rue, 95 P.3d 924, 930 (Alaska 2004) ([D]enying review based on
mootness seems likely to hamper or delay future review of this
issue: even if forceful new evidence of threatened extinction
arises, the commissioners current position may well discourage
new petitions and will likely prevent any realistic possibility
of endangered-species listing.).
21 See Dept of Envtl. Conservation, Approval Notice of
Alaska Tanker Company, LLC Integrated Vessel Response Plan,
October 31, 2007 (stating that approval for the plan will expire
as of November 1, 2012).
22 Kodiak Seafood Processors, 900 P.2d at 1196.
23 Greenpeace, 96 P.3d at 1062-63.
24 Id.
25 Fairbanks Fire Fighters Assn, 48 P.3d at 1169 (citing
Legislative Council v. Knowles, 988 P.2d 604, 606-07 (Alaska
1999)); see also Kodiak Seafood Processors Assn, 900 P.2d at 1196
([T]he scope of the Commissioners power is an issue of public
interest.).
26 AS 40.25.110-.295.
27 City of Kenai v. Kenai Peninsula Newspapers, Inc., 642
P.2d 1316, 1319-20 (Alaska 1982) (internal citations omitted).
28 AS 40.25.122.
29 Id. This provision implies that the agency must
develop regulations to govern access to the record by the
litigating parties. Both parties point to 18 AAC 15.237 as the
DEC regulation governing access to the record by litigating
parties.
30 18 AAC 15.237(b) states:
Within thirty days after the expiration . . .
of the time for intervention . . . the
manager for the department program involved
in the contested decision shall certify the
agency decision record as complete. The
program manager shall at the same time also
serve notice on all parties that the agency
decision record is available for inspection
and copying at the requesting partys expense.
31 AS 40.25.122 refers to the rules of procedure
applicable in a court or an administrative adjudication.
32 We have previously noted that the litigation exception
of the Act somewhat inexplicably limits access to otherwise
public records. Brady v. State, 965 P.2d 1, 18 (Alaska 1998).
We have also noted that an equal protection challenge to this
statute might prevail. Id. at 19-20 (noting that equal
protection challenge to AS 09.25.122, now re-numbered as AS
40.25.122, is plausible, but holding the plaintiff in that case
had waived the argument). Because Copeland and Ott do not raise
these arguments, we do not consider them here.
33 City of Homer v. State, Dept of Natural Res., 566 P.2d
1314, 1319 (Alaska 1977) (quoting Mathews v. Eldridge, 424 U.S.
319, 334-35 (1976)).
34 Id.
35 18 AAC 15.237(c) provides:
The requestor shall pay the cost of gathering
and certifying the agency decision record,
including the reasonable cost of
transcription of the tapes of any public
hearing or other permit conference. If more
than one requestor are parties, each
requestor shall bear, on a pro-rata basis,
the cost of gathering and certifying the
agency permit record, unless the hearing
officer grants another percentage allocation
among the requestors. The department may
require advance payment of the costs of
gathering and certifying the record as
reasonably estimated by the department. If
the department requires advance payment, the
cost of gathering and certifying the agency
decision record must be paid before any
further proceedings under this chapter. The
department will waive all or part of the cost
of gathering and certifying the record if the
requestor demonstrates, to the departments
satisfaction, an inability to pay those
costs.
36 We note that Copeland and Ott have also argued that DEC
counsel played a dual role: custodian of the records and counsel
to DEC. Absent a showing of bias, this dual role does not
violate due process. See Bruner, 944 P.2d at 49; Stigall v.
Anchorage Mun. Police & Fire Ret. Bd., 718 P.2d 943, 946 (Alaska
1986); Amerada Hess Pipeline Corp. v. Alaska Pub. Util. Commn,
711 P.2d 1170, 1180 (Alaska 1986). Administrative agency
personnel are presumed impartial unless a party shows actual
bias. AT&T Alascom v. Orchitt, 161 P.3d 1232, 1246 (Alaska
2007). Here Copeland and Ott have shown no evidence of bias on
the part of DEC counsel.
37 Zeller v. Poor, 577 P.2d 695, 697 (Alaska 1978).
38 Power Constructors, Inc. v. Acres Am., 811 P.2d 1052,
1055-56 (Alaska 1991).
39 Anderson v. State, Comml Fisheries Entry Commn, 654
P.2d 1320, 1322 (Alaska 1982) (noting that the agency made no
showing that the minimal (seventeen day) delay worked to its
disadvantage).
40 Power Constructors, 811 P.2d at 1055.
41 Copeland and Ott also argued that their dismissal was a
violation of the due process clause of the Alaska Constitution.
Because we find that their dismissal was an abuse of discretion,
we do not reach the separate question of whether their dismissal
was unconstitutional.
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