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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nash v. Matanuska-Susitna Borough (9/3/2010) sp-6507
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
| CHARLES NASH, | ) |
| ) Supreme Court No. S- 13048 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3PA-05-01894 CI |
| ) | |
| MATANUSKA-SUSITNA | ) |
| BOROUGH, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6507 - September 3, 2010 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Eric Smith, Judge.
Appearances: Peter R. Ehrhardt, Kenai, for
Appellant. John Aschenbrenner, Deputy
Borough Attorney, Shannon Bodalay, Assistant
Borough Attorney, and Nicholas Spiropoulos,
Borough Attorney, Palmer, for Appellee.
Before: Carpeneti, Chief Justice, Fabe,
Winfree, and Christen, Justices. [Eastaugh,
Justice, not participating.]
CARPENETI, Chief Justice.
I. INTRODUCTION
After a borough terminated a timber sale contract with
a forester, the forester appealed first to the local board of
adjustment and appeals and then to the superior court. Both
upheld the Boroughs termination of the contract. The forester
now appeals to this court, claiming that the board hearing
violated his right to due process by denying him the ability to
call witnesses. The forester also claims the timber sale
contract was improperly terminated. Because we find that the
board hearing did not provide a full and fair opportunity for the
forester to be heard, we agree that the hearing did not comport
with due process. Accordingly, the forester was entitled to a
trial de novo on his contract claims in the superior court. We
therefore remand the case to the superior court.
II. FACTS AND PROCEEDINGS
A. Facts
1. Timber sale contract between Borough and Nash
On September 25, 1998, the Matanuska-Susitna Borough
(Mat-Su or MSB) Assembly entered a timber sale contract with
Charles Nash, under which Nash would harvest timber in the Chijuk
Creek Forest. Nash agreed to pay the Borough $20.56/acre
harvested and to harvest at least 1,000 acres per year during the
contract period, which extended from July 1, 1999 through June
30, 2008.
Before Nash began working, the Alaska Department of
Fish and Game issued a notice of violation to the Borough on
December 2, 1998, charging that the Borough had violated state
law in the manner in which it had previously built some stream
crossings on Oilwell Road the access road to the timber Nash was
to harvest. The U.S. Army Corps of Engineers also issued a
notice of violation regarding the same stream crossings.
To resolve the road situation in light of the stream
crossing violations, Nash attended a February 18, 1989, meeting
between officials of the MSB Department of Public Works, the
Upper Susitna Soil and Water Conservation District, and the Corps
of Engineers. The parties decided that work for the violations
would be the boroughs responsibility and work needed for logging
trucks would be the responsibility of Charlie Nash. Although
construction and maintenance of roads to the harvest area was
Nashs responsibility under the original timber sale contract,
Nash claims that the Road Agreement added to his responsibilities
or at least changed the scope of his contract. Indeed, Nash
claims that his construction of 11 miles of all-weather road made
up the largest part of his $1.5 million investment in the Chijuk
timber project.
2. Events leading to MSBs termination of the contract
Shortly after the Oilwell Road Agreement, Nash
requested, and was given, permission to reduce the contracts
timber harvest requirements so that he could work on the road.
In his request, Nash stated: I need to get going on
reconstructing the road for the Chijuk Sale. By way of this
agreement, I would correct the problems that are open issues with
Fish and Game. He added: Its a good deal for the Borough. In
order to accomplish this work, Im going to need a roll back in
the first years total harvested acres from 1,000 to 500.
Still, Nash did not meet even the reduced goal of 500
acres harvested in the first year in fact, he did not harvest
any timber before June 30, 2000. He had, however, largely
completed work on two important bridges and was preparing to do
other work on the road. On June 28, 2000, Nash requested a
second change to the timber sale contract in the form of an
extension of time for harvesting the first 500 acres until
September 30, 2000. The Borough manager approved the request.
In August 2000 it became apparent that Nash would not
meet the new deadline and a third accommodation would be
necessary. In recommending approval of an extension, borough
staff noted that the road being built was very good, and that
because of the quality of the road construction it was in the
Boroughs best interest to grant Nash the additional time he
requested to complete the construction of Oilwell Road and
harvest his timber. On November 16, 2000, the Borough approved
the third amendment of the contract, providing that Nash would
harvest 500 acres by January 31, 2001, and an additional 1,000
acres by June 30, 2001, and every contract year thereafter.
By January 15, 2001, Nash had fully completed the
bridges, prepared the access road from the Moose Creek Bridge to
the Kroto Creek Bridge, and begun to cut some trees. However,
his progress was still not up to the contracts requirements, and
on January 31, 2001, the Borough approved a fourth amendment
pushing back the date for the harvest of the first 500 acres to
February 28, 2001.
However, Nash still did not meet his requirements, and
on June 25, 2001, the Borough officially notified Nash that he
was in breach of the timber sale contract. Eventually, the fifth
amendment to the contract and all subsequent ones were issued
under a notice of breach that is, the extensions allowed Nash to
continue harvesting timber, but did not relieve him of being in
breach of contract. Ultimately the Borough would approve eight
amendments under breach, bringing the total contract amendments
to 12.
Nash claims to have completed work on the road during
the summer of 2001. Meanwhile, he subcontracted with RK Custom
LLC to help him log and mill the timber. RK actively logged the
area, and appears to have been responsible for much of the
logging that was completed. However, relations between Nash and
RK eventually broke down to the point that RK exercised an option
in its contract with Nash, granting RK an assignment of part of
the timber sale. Nash had granted the option to RK earlier, as
capital to collateralize a loan for sawmill equipment. RK noted
that it had no other recourse but to take this assignment because
Nash continues to fail at meeting production levels as outlined
in all agreements.
On February 11, 2002, the Alaska Division of Forestry
sent Nash a letter reminding him that he had failed to submit a
required annual operations plan. The division also informed him
that he would be in violation of the State Forest Practices Act
if he did not remove felled white spruce that was piled along the
logging roads by June 1, 2002. The state was concerned that
downed logs could facilitate the spread of the spruce bark
beetle, but Nash had stopped removing the logs in January
pursuant to borough order because he had not submitted
certificates of insurance for his contractors. Nash
provided a certificate of insurance around February 22, but was
ordered to cease all activity on February 28, 2002, because he
had not provided the Borough with a notice of operations (as
required by the contract when operations resumed after a
shutdown). Nash provided the required notice on March 6, 2002.
Another factor delaying removal of the felled logs was
the closure of Oilwell Road during spring breakup in 2002 due to
washouts. Unusual weather, including a heavy April 18 snowstorm,
appear to have made road conditions unusually bad that spring.
Nash claimed before the board of adjustment and appeals that the
delay in reopening the road caused us great hardship because we
missed the normal June and early July markets for spruce sales to
local mills.
On July 8, 2002, the Alaska Division of Forestry
informed the Borough that failure to remove the logs by October
24 would constitute a violation of the Forest Practices Act. By
letter dated July 22 the Borough informed Nash that he should
take out downed logs. Borough staff estimated there were about
2,000 logs in Nashs portion of the sale area needing removal.
Nash told the board of adjustment and appeals that he then
started hauling right away, but he found the original 6 1/2 miles
of road that is fully maintained by the Borough (the portion that
extends from Petersville Road to the Moose Creek Bridge) [to be]
in awful condition.
On July 31, 2002, Nash filed a new operating plan
stating that his initial focus would be on hauling downed logs
rather than harvesting. The Borough responded that this plan did
not meet the contractual requirements because it did not provide
sufficient detail of planned operations. Accordingly, the
Borough would not approve any activities other than removal of
the fallen spruce logs.
On September 12, 2002, MSB issued Nash and RK a notice
of termination stating that the contract had been breached both
with regard to removal of downed logs and failure to meet harvest
level requirements. This letter stated that RK and Nash had
until October 22, 2002, to cure the breach by paying for and
harvesting 400 acres and removing about 2,060 spruce logs. The
letter indicated that MSB is not inclined to grant any further
extensions in order to cure the breach of this contract. The MSB
has previously granted twelve (12) extensions in order to cure
previous breaches.
On October 24, 2002, borough staff performed a final
inspection for contract termination. Staff inspected the sale
area and noted that no new acres had been harvested since the
September 12 notice of termination and that about 1,500 spruce
logs remained on the ground. The next day, the Borough sent Nash
and RK a notice of termination of the contract. It informed Nash
that he was no longer authorized to enter the property for
forestry work and must remove his equipment. The Borough
subsequently removed some of Nashs equipment and demanded payment
of some removal charges before it would release it to him.
B. Proceedings
1. Board of Adjustment and Appeals
Although the Boroughs contract termination did not
mention any administrative appeal process, Nash was concerned
about meeting exhaustion requirements and therefore filed an
appeal with the local board of adjustment and appeals. Both
parties submitted briefing to the board on January 24, 2003.
Nash had hoped to present witnesses who could attest to
the poor state of the Boroughs portion of the road and to Nashs
compliance with the Boroughs downed timber requirements. In
addition to those who would attend in person, Nash hoped to have
one witness testify telephonically. In an affidavit, Nash states
that when he inquired about having witnesses, the borough clerk
told him that the board hearing would not provide a general forum
for witness testimony, but interested parties could be heard at
the hearing if they had previously testified before the planning
and zoning commission. While the Board of Adjustment and Appeals
usually handled appeals from the planning and zoning commission,
Nash says that he explained that his appeal had had no prior
proceedings and that therefore his proposed witnesses had not
previously testified. Because the issue was important to Nash,
he asked the clerk to ask the board chair if he could call
witnesses on his behalf. On January 28 the clerk informed Nash
that the chair had confirmed that witnesses could not testify at
the hearing. It appears the decision was made by the chairman
based on Mat-Su Borough Code 15.39.190, which provides that only
interested parties may testify. That code allows exceptions, but
they are discretionary.
Since witnesses were not allowed, Nash filed a motion
on January 29 requesting oral argument by interested parties. He
requested that he be allowed to call people to speak on his
behalf as interested parties and that the board decide the matter
before the board hearing so Nash could make arrangements for
witnesses to take the day off work and travel to the hearing.
Nash requested that the board postpone the hearing if it could
not decide his motion before the hearing. Nash argued that the
interested party requirement stemmed from the boards normal role
of reviewing planning and zoning commission hearings and is
misplaced in the contract review setting. Nash also pointed out
that it would be unfair to those expecting to testify, and a
violation of due process, not to know in advance who could and
could not testify. Nash asked for a response by January 31,
which was the deadline for interested parties to notify the board
that they wish to speak.
Nash received no response to his motion, despite
repeated calls to the clerks office. In order to meet the boards
advance notice requirement, he nonetheless faxed a list of five
people who wished to speak as interested parties. Still he did
not hear from the board; thus Nash did not know if the people
whose names he had submitted could testify, and thus whether they
should take the day off work to attend the hearing.
At the February 7, 2003, hearing, the board chair began
by addressing the issue of interested parties. The board called
the persons on Nashs list of interested parties, but only one
person Nashs father was present. The board agreed to hear his
testimony because Nashs father had invested in the project and
was thus an interested party.
When Nash was allowed to address the motion, he
summarized his difficulty getting an answer from the board and
the hardship imposed by requiring people to take off work and
travel great distances to attend the hearing without any
assurance they would be able to present testimony. He also
stated that he had at least one witness who was not present but
who was willing to testify telephonically. The Borough attorney
argued that Nash had no standing to assert these hardships on
behalf of others. Nash responded that he had never been told
that potential witnesses had to apply personally. The board
upheld the Boroughs objection based on standing. Accordingly,
none of the people Nash wished to testify had an opportunity to
testify except his father.
However, one witness who was not on Nashs list, Billy
Schuyler, supervisor for the Susitna Soil and Water Conservation
District, was present and requested the opportunity to speak.
Schuyler worked with Nash on Oilwell Road and could testify about
whether the Borough made it impossible for Nash to perform under
the contract. The board debated whether Schuyler should be able
to speak, with the chair strictly opposed and the other board
members willing to hear additional information. The board
ultimately allowed Schuyler to testify as a special exception, in
part because he had taken time off from work and driven on icy
roads since 2:00 a.m. to attend the meeting.
Having thus resolved Nashs motion to allow testimony,
the board considered the Boroughs motion to present testimony of
a borough staff member. Although a board member pointed out that
this was essentially what Nash was attempting to do, the board
accepted the Boroughs evidence. It justified this decision by
distinguishing between a witness who could speak as an employee
of the Borough (a party to the matter), and the persons on Nashs
proposed list, who were merely interested parties. Nash objected
to introduction of the affidavit on the ground that supplementing
the record at the last minute denied him an opportunity to reply.
In addition, a board member questioned whether it was fair to
allow the Borough to offer testimony from an absent person but
deny Nash similar opportunity to present testimony from
interested persons at a later date. The board allowed the
Boroughs affidavit nonetheless.
At the hearing two borough staff members gave
presentations, then Nash briefly stated his side of the case.
Nash walked out of the proceedings before the Borough attorneys
argument. He was accompanied by his father, who ultimately did
not testify. Schuyler was allowed to speak, and testified that
Nashs failure to perform under the contract resulted from the
hurdles the Borough placed before him.
The same day as the hearing, the board released a
written, four page decision upholding the Boroughs termination of
the contract. The decision stated the boards findings and
conclusion, but did not discuss the evidence or rationale
supporting those findings.
2. Superior Court
On March 10, 2003, Nash sued the Borough in superior
court for breach of contract, breach of good faith and fair
dealing, intentional interference with chattels, and intentional
interference with contract. He argued that he deserved a trial
de novo because the board deprived him of a fair and full
hearing.
The Borough moved for judgment on the pleadings and a
motion to designate the matter as an appeal and dismiss. After a
hearing on September 15, 2003, Superior Court Judge Eric Smith
ruled that Nashs contract-based claims for damages were
functionally an administrative appeal. But the court ruled that
it was not clear from the pleadings whether the Boroughs
administrative procedures afforded the [p]laintiff due process.
The court therefore requested additional briefing on whether the
case required a trial de novo.
The superior court eventually found that the board
hearing complied with the requirements of due process. In
finding that the board provided due process, the court found that
borough personnel explained to Nash that only interested parties
could speak. The court also found that Nashs motion regarding
interested parties could not have been addressed before the
hearing because the board could not meet before then. The
superior court concluded that there was no due process violation
concerning the boards limitations on testimony, because the board
allowed all who were present at the meeting (Schuyler and Nashs
father) to testify.
The superior court concluded that Nashs problems were
his own making, and that the borough code simply did not permit
the borough clerk or board chair to give Nash the assurances he
wanted. The superior court further concluded:
It is true that Mr. Nash was not able to
depose witnesses, to serve interrogatories,
to request materials, or to cross-examine the
witnesses. But there is no requirement in
the case law that an administrative appeal
must always follow all of the procedures
afforded a party in a civil trial. Rather,
the focus is on whether Mr. Nash received a
fair and full opportunity to make his case in
the context of a regulatory rather than a
judicial decision. In such a context, there
is no requirement that the [board] provide
for discovery or cross-examination.
Due process thus resolved, the parties addressed the
merits of the boards decision. On October 6, 2005, Nash moved to
supplement the administrative record to include the Oilwell Road
Agreement of March 24, 1999. The court granted this motion. On
April 17, 2006, the court ruled that it would hold an
evidentiary hearing to determine the meaning of the road
agreement, and will then fold its findings regarding the
agreement into its evaluation, as an administrative appeal, of
the [board] decision.
On February 25, 2008, after the hearing regarding the
road agreement, the superior court issued an order upholding the
Boroughs termination of the contract. The superior court found
that the road agreement was a cooperative agreement delineating
certain voluntary undertakings by the signatories and did not
explicitly or implicitly modify the timber sale contract. It
also concluded that the boards decision to uphold the termination
of the contract was supported by substantial evidence, primarily
because Mr. Nashs failure to perform on the contract provided an
adequate basis for the Borough to terminate the contract.
Nash now appeals, arguing that the board violated his
due process rights and that the Borough improperly terminated the
contract.
III. STANDARD OF REVIEW
We review for abuse of discretion a superior courts
decision to conduct an administrative review instead of a trial
de novo.1 To find an abuse of discretion, we must be left with a
definite and firm conviction after reviewing the whole record
that the trial court erred in its ruling. 2
Where the superior court conducts a partial trial de
novo, we review the courts findings and conclusions.3 Factual
findings by the superior court are reviewed under the clearly
erroneous standard,4 while legal issues are reviewed de novo.5
IV. DISCUSSION
Nash argues that, because the board proceedings did not
afford him due process, the superior court erred in denying him a
full trial de novo. He argues in the alternative that the timber
sale contract entitled him to trial de novo. He also asserts
that the road agreement modified the timber sale contract and
that the contract was improperly terminated. Because we agree
with his due process claim and remand for a full trial de novo,
we do not decide whether the road agreement modified the timber
sale contract, whether the timber sale contract entitled him to
trial de novo, or whether the timber sale contract was properly
terminated.
Nash Did Not Receive Due Process In The Board Proceeding.
Nash argues that the board violated his due process
rights in several ways: by failing to provide discovery
procedures, by restricting his right to present witnesses, and by
generally failing to properly handle the hearing.
The Borough argues that the procedures were sufficient
to satisfy the requirements of due process and that Nash has
failed to make a requisite showing of prejudice. It points out
that Nash was in fact allowed to call all of the individuals he
requested on his witness list, except for those who did not show
up to the hearing.
The superior court determined that Nash had received
adequate procedural opportunities to present his case, and that
the problems he experienced at the administrative hearing were of
[his] own making. Accordingly, the court found that the board
afforded Nash due process. The court denied Nash full trial de
novo on his contract claims.6
Article I, section 7 of the Alaska Constitution
guarantees the right of due process. Due process in the
administrative context does not demand that every hearing comport
to the standards a court would follow, but rather that the
administrative process afford an impartial decision-maker, notice
and the opportunity to be heard, procedures consistent with the
essentials of a fair trial, and a reviewable record.7 A
violation of due process should be alleged with particularity and
a showing of prejudice.8 We stated in Keiner v. City of
Anchorage9 that a party is entitled to a trial de novo, in whole
or in part, if he [has] been denied the opportunity to present to
the [Board] relevant and material evidence supporting his claim .
. . .10
We agree with Nash that his inability to present
witness testimony to the board violates these standards of due
process. We cannot find due process in a hearing where parties
do not know if they will be allowed to call witnesses until the
hearing has actually begun. Accordingly, we cannot agree with
the conclusion that Nashs problems were of his own making.
Rather, the record indicates a series of irregularities that
effectively denied Nash notice and the opportunity to be heard,
and the board failed to provide procedures consistent with the
essentials of a fair trial.
The boards procedures for testimony, letting only
interested parties testify, is not consistent with our
requirements for due process. While a hearing need not be
identical to a judicial proceeding, the boards exclusion of
witnesses who are not interested parties narrows the record to
something markedly less than a full opportunity to be heard, and
prevents a party from presenting relevant, material evidence.
The present case was relatively complex, involving contract
performance over the span of a decade; investments allegedly of
well over one million dollars; and the involvement of private
parties, the federal government, state government, and local
government. In light of these complex issues, Nash was prepared
to present testimony from witnesses who would knowledgeably
address topics from the terrible condition of the MSB maintained
portion of [Oilwell] Road . . . to the absence of any [F]orest
[P]ractices [A]ct violations on the sale. However, by limiting
testimony to only interested parties, the board prohibited Nash
from presenting this relevant and material evidence. We believe
that such a narrow hearing effectively rendered Nash unable to
present his case precisely the due process violation that Keiner
contemplated would justify a trial de novo.11
Moreover, it is inappropriate for a claimant in an
administrative hearing not to know in advance if he will be
allowed to call witnesses at the hearing. Adequate, fair
procedures should provide notice as to who may testify. While it
is understandable that uncertainties might arise from time to
time, we believe the resolution of the uncertainty in the present
case was inadequate. Nash filed a motion asking for special
permission to call witnesses, as appears permissible under Mat-Su
Borough Code 15.39.190. But the board did not respond. Nash
requested, in the alternative, that if a decision could not be
made in advance of the board meeting, that the board delay the
hearing on the merits until a later date. This would have been a
prudent course of action, and the record does not show why the
board did not grant Nashs request. In short, we cannot agree
with the superior court that Nashs problems resulted from his own
doing; rather, we conclude that the boards limitations
effectively denying advance notice as to who may testify were
too restrictive.
The Borough unconvincingly contends that there was no
denial of witness testimony since those present were all allowed
to speak. To the contrary, the paucity of witnesses present was
more likely a result of the boards inability to decide in advance
who would be able to testify, and was thus indicative of
procedures inconsistent with the essentials of a fair trial.
Nash repeatedly asked for assurances as to which witnesses would
be able to speak, and whom he should ask to travel to the
hearing. Yet by the time of the hearing, it was not clear
whether the board would allow any witnesses. In addition, Nash
claims that the borough clerk had already told him that witnesses
would not be allowed to speak. Even if the clerks answer was
more equivocal than Nash understood it to be, it is clear that
the Borough had not indicated, with any degree of certainty, who
would be allowed to testify.12 Thus, the Boroughs argument that
the matter came down to merely who was or was not present is not
persuasive.
It is true that one witness (Schuyler, with the Susitna
Soil and Water Conservation District) appeared at the hearing and
the Borough did allow him to testify. But the barrier Schuyler
faced in testifying was itself problematic. Throughout the
hearing the chair was resistant to Schuylers testifying,
asserting that Schuyler should not be allowed to testify because
he was not an interested party. This undermines the Boroughs
contention that it would, in all likelihood, have allowed
witnesses to testify as long as they were present. Further,
Schuylers testimony demonstrates the lack of clarity behind the
boards interested party requirement: The fact that a government
employee with obviously relevant testimony to offer was
reluctantly granted a special exception even though not an
interested party lends support to Nashs contention that he had
no guarantee that any of his desired witnesses would be allowed
to speak.13
An additional procedural flaw is evident in the boards
ruling that Nash had no standing to object to the boards refusal
to allow a witness to testify.14 A party cannot be denied
standing to argue an issue as fundamental as what testimony may
be presented.15 We find no basis for the boards decision
regarding standing, and it is certainly not procedure consistent
with the essentials of a fair trial.
We are also troubled by the boards acceptance of an
affidavit from the Borough soon after denying Nashs requests to
allow witnesses to testify. The affidavit was from a city
employee, testifying to the merits, and was allowed into the
record so that the employee would not have to leave his office
during a busy day. In our view, the affidavit was quite similar
to Nashs request regarding witness testimony, and the board had
no basis to reject Nashs request while allowing the Boroughs.
Coming on the heels of the chairs utter resistance to Nashs
witnesses, the boards asymmetric allowance of the Boroughs
affidavit appears to fall short of the procedural fairness
required for due process.
In sum, we find that the board did not afford Nash a
full opportunity to be heard nor provide procedures consistent
with the essentials of a fair trial. Rather, he was prohibited
from presenting relevant, material evidence, and was thereby
effectively denied due process. Under these circumstances, a
trial de novo is appropriate in the superior court.16
V. CONCLUSION
In light of the boards restrictions on testimony, we
find that its hearing did not comport with due process.
Accordingly, we REVERSE the superior courts due process ruling
and REMAND for a trial de novo.
_______________________________
1 Treacy v. Municipality of Anchorage, 91 P.3d 252, 270
(Alaska 2004).
2 Id. (quoting Christensen v. NCH Corp., 956 P.2d 468,
473 (Alaska 1998)).
3 City of Nome v. Catholic Bishop of N. Alaska, 707 P.2d
870, 875 (Alaska 1985).
4 Id. at 876.
5 Jacob v. State, Dept of Health & Soc. Servs., Office of
Childrens Servs., 177 P.3d 1181, 1184 (Alaska 2008) (quoting
Guinn v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).
6 The court did grant a de novo hearing on whether the
road agreement modified the contract, since that issue was not
addressed before the board.
7 Keiner v. City of Anchorage, 378 P.2d 406, 409-10
(Alaska 1963) (citing St. Joseph Stock Yards Co. v. United
States, 298 U.S. 38, 73 (1936) (Brandeis, J., concurring: The
inexorable safeguard which the due process clause assures is, not
that a court may examine whether the findings as to [specific
facts] are correct, but that the trier of the facts shall be an
impartial tribunal; that no finding shall be made except upon due
notice and opportunity to be heard; that the procedure at the
hearing shall be consistent with the essentials of a fair trial;
and that it shall be conducted in such a way that there will be
opportunity for a court to determine whether the applicable rules
of law and procedure were observed.)).
8 Keiner, 378 P.2d at 409.
9 Id. at 406.
10 Id. at 409; see also State v. Lundgren Pac. Const. Co.,
603 P.2d 889, 895-96 (Alaska 1979) (finding a right to trial de
novo where administrative procedure did not afford due process).
11 See 378 P.2d at 409.
12 Moreover, that Nash had to rely on oral guarantees from
the borough clerk is itself indicative of an inadequate
procedural framework.
13 Indeed, Schuyler only testified over the objection of
the chair, and as a special exception, because Schuyler had
traveled since 2:00 a.m. over icy roads to attend the hearing in
the words of one board member who argued in favor of allowing
Schuyler to speak, We are still in Alaska.
14 The board reached this strange ruling on the ground
that only a witness could assert a right to testify, not a party.
15 See Keiner, 378 P.2d at 409 (requiring essentials of
fair trial and noting that new trial is remedy where party was
not allowed to present relevant and material evidence).
16 We do not address Nashs argument that the road
agreement modified the timber sales agreement because relevant
evidence on this issue may emerge during the de novo trial.
Accordingly, we vacate the superior courts conclusion that no
modifications had occurred and remand this matter for trial.
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