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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jeffrey West and Bonnie West v. The Alaska Mental Health Trust Authority; State of Alaska, Department of Natural Resources, Trust Land Office; Louis Oliva; and Stacy Oliva (7/24/2020) sp-7468
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JEFFREY WEST and BONNIE WEST, )
) Supreme Court No. S-17407
Appellants, )
) Superior Court No. 3KN-18-00087 CI
v. )
)
O P I N I O N
ALASKA MENTAL HEALTH )
TRUST AUTHORITY; STATE OF ) No. 7468 - July 24, 2020
ALASKA, DEPARTMENT OF )
NATURAL RESOURCES, TRUST )
LAND OFFICE; LOUIS OLIVA; and )
STACY OLIVA, )
)
Appellees. )
)
A
ppeal from the Superior Court of the State of Alaska, Third
Judicial District, Kenai, Lance Joanis, Judge.
Appearances: Hilary D. Stump and Carl Bauman, Gilman &
Pevehouse, Kenai, for Appellants. Colleen J. Moore, Senior
Assistant Attorney General, Anchorage, and Kevin G.
Clarkson, Attorney General, Juneau, for Appellees Alaska
Mental Health Trust Authority and State of Alaska,
Department of Natural Resources, Trust Land Office. Robert
J. Molloy and Kristine A. Schmidt, Molloy Schmidt LLC,
Kenai, for Appellees Louis Oliva and Stacy Oliva.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
STOWERS, Justice.
----------------------- Page 2-----------------------
I. INTRODUCTION
In October 2017 the Trust Land Office (Land Office) issued a best interest
decision in favor of selling five lots of land owned by the Alaska Mental Health Trust
(Trust) to Louis and Stacy Oliva. Oliva's neighbors, Jeffrey and Bonnie West, submitted
late comments opposing the sale. The Land Office accepted those comments as a request
for reconsideration, but it ultimately denied West's request and proceeded with the sale.
West appealed to the superior court, which affirmed the best interest decision. On appeal
West argues that the sale was not in the Trust's best interest, the Land Office violated a
number of statutes and regulations, and the agency's public notice regulation is invalid.
We conclude that West's first argument lacks merit and the remaining issues have been
waived for various reasons; we therefore affirm the best interest decision.
II. FACTS AND PROCEEDINGS
A. The Land Office And Background Facts
The Alaska Mental Health Trust Authority (Trust Authority) was created
in 1991 to act as trustee for the lands granted to Alaska by the federal government in
1 The Department of Natural
1956 through the Alaska Mental Health Enabling Act.
Resources (DNR) was tasked with the actual management of Trust lands, and it created
the Land Office as a special unit to handle that duty.2 Prior to any decision involving the
sale of Trust lands, the Land Office is required by regulation to consult with the Trust
1 See AS 37.14.001; AS 47.30.011. See generally ch. 66, SLA 1991
(establishing Trust Authority); Weiss v. State (Weiss II ), 939 P.2d 380, 382-85 (Alaska
1997) (detailing events prior to Trust Authority's creation).
2 See AS 44.37.050(a) ("To carry out its duties under AS 38.05.801, the
Department of Natural Resources shall establish a separate unit with responsibility for
management of the mental health trust land."); 11 Alaska Administrative Code (AAC)
§ 99.010 (2018) (describing Land Office's duties and authority).
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3
Authority's Resource Management Committee. The Land Office's executive director
makes the final decision whether a sale is in the Trust's best interest. 4
In aJanuary 2017 consultation with theResourceManagement Committee,
the Land Office proposed to "offer up to 100 Trust properties" for sale each year from
2018 to 2020, including three of the five lots at issue in this appeal. Those five lots -
referred to as Lots 17, 22, 35, 36, and 37 - are located on Daniels Lake near Nikiski and
are adjacent to Oliva's property. Only Lot 17 has a common boundary with West's
property. Notice of sale was posted on Lots 17 and 35 in late April 2017 and the Land
Office commissioned an appraisal of those two lots. The appraiser's report noted
encroachments and overturned gas containers on Lot 17, but it assessed the properties
based on the hypothetical conditions that the lots were clean and vacant. The report
valued Lot 17 at $93,000 and Lot 35 at $80,000, and recommended the lots be sold as-is
for the highest return.
Oliva submitted his application in late May seeking a negotiated purchase
of those two lots as well as Lots 22, 36, and 37. In response, the Land Office
commissioned another appraisal for the three additional lots, which were valued
collectively at $145,000. The appraiser did not note any encroachments or other
potential issues for those lots. Based on Oliva's offer and the appraisal reports, the Land
Office again consulted with the Resource Management Committee in early August
regarding the potential negotiated sale of the five lots to a "neighboring land owner."
3 See 11 AAC 99.030(c)-(d); Committees, A LASKA MENTAL HEALTH TR.
AUTHORITY, https://alaskamentalhealthtrust.org/about/governance/committees/ (last
visited Apr. 8, 2020) (describing Resource Management Committee's role as "advising
the [Land Office] on managing the Trust's non-cash assets including land and natural
resources").
4 See 11 AAC 99.010(b), (d); 11 AAC 99.020(b).
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The Land Office stated it would seek "approximately 20-30% above the appraised
values" and estimated the total revenue at around $410,000. The consultation report
noted several "structural encroachments" placed by Oliva on Lot 17, including a barn
and a manmade pond, and reasoned that "the sale would generate revenue for the Trust
while solving an ongoing trespass/encroachment issue." The Resource Management
Committee approved the negotiated sale without objection.
West met with the Land Office to discuss his interest in purchasing Lots 17
and 35 in August and submitted an application to buy those two lots. West "provided
a firm verbal offer of up to 30% above" the lots' appraised values "contingent upon no
competition," because he was "uninterested in getting into a bidding war" with Oliva.
The Land Office conducted a site visit in early September along with a DNR land
surveyor. The surveyor was able to find several field monuments with a metal detector
and noted that the property boundaries appearing on Alaska Mapper and the Kenai
Peninsula Borough's mapping service both contained erroneous boundary lines at odds
with the U.S. Bureau of Land Management's plat map. Based on the corrected boundary
lines, thesurveyor confirmed several structuralencroachments on Lot 17, butdetermined
that "there did not appear to be any structural trespass" on Lot 22. The surveyor's
memorandum concluded by noting that "[t]he exact extent of structural or use trespass
can only be determined by a complete survey performed by a professional surveyor."
West conducted his own site visit in September and then informed the Land
Office that he "can no longer support [his] original offer to purchase Lot 17 as is." West
suggested subdividing both lots prior to sale and again offered "appraisal value plus a
30% premium" for only the unencumbered portions of Lots 17 and 35 "to help with the
cost of subdividing and to avoid a bidding war." West later suggested that he would be
open to "the possibility of subdividing [the encumbered] portion off after acquiring the
entire lot" in order to avoid "be[ing] eliminated from consideration." When the Land
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Office asked if he was interested in purchasing any of the other parcels, West replied that
his "interest remains exclusively in Lots 17 and 35."
In contrast, Olivastatedthat subdivisionwouldbeunacceptable, but agreed
to "pay reasonable compensation" for past use of Lot 17. In October, Oliva offered a
$10,000 settlement based on three years of unauthorized use at $3,000 per year, "plus an
additional $1,000." This initial offer was rejected and Oliva subsequently agreed to pay
$21,000 separate from any land sale. Oliva also made an initial offer of 30% above the
appraisal price on Lot 17 and 20% above for the other four lots. After some negotiation,
Oliva revised his offer to 30% above the appraised value for both Lots 17 and 35, and
25% above for the remaining three lots for a total purchase price of $406,150.
B. The Best Interest Decision And West's Request For Reconsideration
At the end of October 2017 the Land Office drafted its best interest decision
to accept Oliva's proposal, finding it to be "in the best interest of the Trust." The
decision noted that Oliva "ha[d] been using a portion of Trust land to house horses," but
had "remitted $21,000 to pay in full the past unauthorized land uses." West's offer was
also mentioned as an alternative option, but one that would not "resolve unauthorized
use" and would result in continued accrual of management costs for the three remaining
lots "as a non-performing asset." Proceeding with the sale to Oliva, on the other hand,
would "alleviate the Trust from managing a non-performing asset and resolve an
unauthorized use, while generating maximum revenue." The decision included an
inconsistency determination listing a number of statutes that were not applied as
"inconsistent with Trust management principles and inapplicable to Trust land by
5 Notice of the
[agency] regulations," including the notice provisions in AS 38.05.945.
5 This statute governs certain state land sales and requires a robust public
notice process, such as by publishing notice for two weeks "in newspapers of statewide
(continued...)
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----------------------- Page 6-----------------------
decision was to be provided in accordance with 11 AAC 99.050; anyone who submitted
comments could subsequently file for reconsideration.
Public notice began on November 2 with the best interest decision to be
posted on the Land Office's website along with courtesy copies being sent to the state
website, the trustees, the municipality, and Oliva as the purchaser. The notice provided
a physical mailing address as well as an email address for submitting comments and
listed December 7 as the cutoff date. The Land Office also called West to inform him
directly where the decision would be posted and explained that "anyone has a right to
submit a written comment within that 30 days for consideration if they disagree." The
Land Office formally adopted its decision on December 8, noting that "no comments
were received." That same day West requested a stay in order to submit late comments,
alleging that he only recently found out about the comment period and that the Land
Office had previously advised him that he had no "options for recourse or comment."
West stated that his challenge would focus primarily on "[u]nfair business practices" and
whether the sale was in the Trust's best interest.
West submitted his written comments on December 11. West alleged a
number of factual omissions from the best interest decision, including that Oliva's
"house and beach development" encroached on Lot 22. West criticized the decision to
sell the lots to Oliva as "encourag[ing] future encroachment by rewarding illegal
behavior." West argued that he paid the $500 application fee for the privilege of being
"kept in the loop," but alleged that he "never had a place at the negotiating table."
Instead, the sale was "a package deal" on all five lots, and West was "never . . . given an
opportunity to revise [his] bid." West did not, however, suggest that he would have
5 (...continued)
circulation" or even directly notifying "parties known or likely to be affected by the
action." AS 38.05.945(b)(3)(A), (D).
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----------------------- Page 7-----------------------
raised his offer on Lots 17 and 35 or that he would have offered to purchase more lots
had he been "kept in the loop," nor did he explicitly make any increased offer in his
comments. West acknowledged that the Land Office followed its regulatory
requirements for public notice, but still generally "challenge[d] the ethics involved."
Rather than reject West's comments as untimely, the Land Office opted to
treat them "as a request for reconsideration." Nevertheless, the Land Office denied
West's request and upheld the best interest decision in its entirety. The Land Office
refuted the notion that it required a block sale, but noted that Oliva was "not interested
in purchasing anything less than all five parcels" while West was only interested in two.
The Land Office explained that the potential alternative of subdividing Lot 17 was
"ultimately abandoned . . . because it became apparent that the parties were unlikely to
agree on how to subdivide the lots, and such a subdivision would have cost money,
without any increase in value to the lots." And because Oliva's final offer not only
matched West's offer for Lots 17 and 35 but included three more, "the [Land Office]
reduced its management burden and realized an above-market gain" by selling all five
to Oliva. The agency also rebutted West's allegations of any additional encroachments
and argued that its success in obtaining payment for Oliva's past use "without incurring
unnecessary legal expenses or risk of litigation" instead "demonstrates that the [Land
Office] has and will continue to seek compensation for unauthorized use of Trust land."
C. Superior Court Proceedings
West appealed the best interest decision and the Land Office's denial of his
request for reconsideration to the superior court. The court held oral argument in
February 2019. In addition to those issues raised in his comments to the agency, West
argued that the Land Office failed to abide by various state statutes or provide adequate
explanation for its decision. The State countered that West had not alleged any real harm
because he received both actual and constructive notice, and his late comments were
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----------------------- Page 8-----------------------
ultimately considered by the Land Office. The State also pointed out that West was not
6
disputing the validity of any of the agency's regulations,
and West did not address that
issue on rebuttal.
The superior court affirmed the best interest decision "in large part in
agreement with the briefing by the State." Applying the "reasonable basis standard" to
the Land Office's legal interpretations, the court found that West failed to "show[] how
the . . . Land Office could obtain a better return for the Trust and its beneficiaries" other
than through its sale to Oliva. The court noted that "the only applicable public notice
requirements for the proposed sale . . . were in 11 AAC 99.050(a)," and regardless West
"did receive actual notice" and was "given a full opportunity to participate." The court
7 stating only that it "is
also briefly commented on the validity of 11 AAC 99.020(f),
clearly consistent and necessary to implement" the Trust Authority's governing statutes.
Because the agency "did consider all reasonable alternatives" and "did comply with
applicable procedural requirements," the court affirmed the Land Office's best interest
decision.
West now appeals.
6 West argued that the Land Office should have applied AS 38.05.945 for
public notice, but at no point did he suggest that 11 AAC 99.050 was an invalid agency
regulation prior to this appeal. West first mentioned the issue of preemption in his reply
brief before the superior court in regard to 11 AAC 99.030(e), but without reference to
any specific legal authority.
7 This subsection states: "Unless otherwise specified in this chapter, every
provision of law applicable to other state land applies to the management of trust land
unless its application is determined, in [a] written finding . . . , to be inconsistent, in
whole or in part, with [trust management principles]." 11 AAC 99.020(f). Most of the
Land Office regulations contain a similar clause. See, e.g., 11 AAC 99.030(e);
11 AAC 99.040(c); 11 AAC 99.050(b).
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----------------------- Page 9-----------------------
III. STANDARD OF REVIEW
8
We review the merits of administrative decisions on appeal de novo. For
questions of law in administrative appeals we apply the reasonable basis standard "when
the interpretation at issue implicates agency expertise or the determination of
9
fundamental policies within the scope of the agency's statutory functions." Under that
standard, we only "seek to determine whether the agency's decision is supported by the
10
facts and has a reasonable basis in law."
IV. DISCUSSION
A. History Of The Alaska Mental Health Trust
The issues West raises require us to revisit the history of the Alaska Mental
11
Health Trust for the first time in over twenty years. This is also the first appeal of a
Land Office decision to come before us.
Congress passed the Alaska Mental Health Enabling Act (Act) in 1956
partially for the purpose of creating and implementing "an integrated mental health
12
program" in the soon-to-be State of Alaska. To effectuate this goal, the Act granted up
8 Handley v. State, Dep't of Revenue , 838 P.2d 1231, 1233 (Alaska 1992)
(citing Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co. , 746 P.2d 896, 903 (Alaska
1987)).
9 Haar v. State, Dep't of Admin., Div. of Motor Vehicles, 349 P.3d 173, 180
(Alaska 2015) (quoting Marathon Oil Co. v. State, Dep't of Nat. Res., 254 P.3d 1078,
1082 (Alaska 2011)).
10 Id. at 180-81 (quoting Davis Wright Tremaine LLP v. State, Dep't of
Admin. , 324 P.3d 293, 299 (Alaska 2014)).
11 See Weiss II, 939 P.2d 380 (Alaska 1997).
12 Pub. L. No. 84-830, § 201, 70 Stat. 709, 709 (1956).
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----------------------- Page 10-----------------------
13
to "one million acres from the public lands of the United States in Alaska" to the State.
The Act provided that those lands
shall be administered . . . as a public trust and such proceeds
and income shall first be applied to meet the necessary
expenses of the mental health program of Alaska. Such
lands, income, and proceeds shall be managed and utilized in
such manner as the Legislature of Alaska may provide. Such
lands . . . may be sold . . . or otherwise disposed of in such
manner as the Legislature of Alaska may provide . . . . The
authority of the Legislature of Alaska under this subsection
shall be exercised in a manner compatible with the conditions
[14]
and requirements imposed by other provisions of this Act.
Despite this directive, the State did not maintain a separate account for Trust lands for
over 20 years, and in 1978 the legislature formally redesignated those lands "as general
grant land" to be managed by DNR and disposed of in accordance with applicable state
law.15 A number of individuals filed a class-action lawsuit in 1982 alleging a breach of
16 In Weiss I we held that the State was
the public trust as a result of that redesignation.
17 and we remanded to the trial
not empowered to unilaterally terminate that public trust,
court for further proceedings, stating that its goal should be "to restore the trust to its
position just prior to the conveyance effected by the redesignation legislation."18
13 Id. § 202(a), 70 Stat. at 711.
14 Id. § 202(e), 70 Stat. at 712.
15 State v. Weiss (Weiss I), 706 P.2d 681, 682 (Alaska 1985) (quoting ch. 181,
§ 3(a), SLA 1978).
16 Id. at 682.
17 Id. at 683.
18 Id. at 684.
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Following our decision in Weiss I thelegislature made a number ofattempts
19
at settlingtheclass-action litigants' claims,
includingthecreation oftheTrustAuthority
20 21 which
The negotiations culminated in the passage of House Bill 201 in 1994,
in 1991.
in essence created the present statutory scheme governing the management and disposal
of Trust land.22 Relevant to our discussion here, HB 201 directed DNR to "establish a
separateunit with responsibility for management ofthe mental health trust land,"23 which
was further instructed to manage Trust land "consistent with the trust principles imposed
on the state by the Alaska Mental Health Enabling Act."24 Secondary to those trust
principles, HB 201 required Trust land to be managed "under those provisions of law
applicable to other state land" and directed DNR to adopt regulations addressing, inter
alia, "management for the benefit of the trust."25 Complying with this directive, DNR
26
created the Land Office and in 1997 promulgated the regulations at issue here.
19 See Weiss II, 939 P.2d 380, 384-85 (Alaska 1997).
20 Id. at 385; see also ch. 66, §§ 10, 26, SLA 1991.
21 Weiss II, 939 P.2d at 385; see also chs. 5-6, FSSLA 1994.
22 See Weiss II, 939 P.2d at 385-86.
23 AS 44.37.050(a); ch. 5, § 22, FSSLA 1994.
24 AS 38.05.801(a); ch. 5, § 17, FSSLA 1994.
25 AS 38.05.801(b)-(c).
26 See Alaska Administrative Code Register 141, at 38-46 (Apr. 1997) (adding
chapter 99 to title 11).
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Not all of the parties agreed with the proposed settlement, however, and the
27
issue once again ended up before us in Weiss II .
One area of disagreement was
HB201'slandmanagementprovisions; thelitigants argued "that themanagement regime
is 'illegal' because it allegedly does not require trust lands to be managed 'solely in the
28 However, recognizing the "express language" in
best interest of the beneficiaries.' "
HB 201 requiring "manage[ment] consistent with . . . trust principles," we agreed with
thesuperior court's reasoning"that thesettlement's managementstandardconformswith
the requirements of the trust."29 We concluded that the superior court did not abuse its
discretion when it approved the settlement terms contained in HB 201.30 The Land
Office's regulations were not addressed in Weiss II.
B. The Land Office's Decision To Sell The Five Lots In Question To Oliva
Was In The Trust's Best Interest.
The central question in West's appeal is whether the Land Office's best
interest decision actually furthered the Trust's best interest. The applicable agency
regulation lays out five "management principles" that the Land Office relies on to
determine whether a sale is in the Trust's best interest.31
Of particular relevance here is
32
the first principle of "maximization of long-term revenue from trust land."
West argues that the Land Office's decision "did not maximize the return
to the Trust" and thus the sale was not in its best interest. The crux of West's argument
27 939 P.2d at 386.
28
Id. at 395.
29
Id. (quoting AS 38.05.801(a)).
30 Id. at 402.
31 11 AAC 99.020(c).
32
11 AAC 99.020(c)(1).
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----------------------- Page 13-----------------------
is that he "would have paid more" or "would have offered to purchase all five parcels"
if the Land Office had given him the opportunity. As the State points out, however,
West's present willingness to increase his offer after-the-fact "is not supported by the
record." Throughout the proceedings West only exhibited interest in Lots 17 and 35;
indeed, rather than affirmatively increasing his offer or seeking to compete with Oliva,
he instead decreased his offer and sought "to avoid a bidding war." Although West touts
his continued "willingness to negotiate," that does not offer support to his present
contention. The Land Office's denial of reconsideration noted that whereas West never
increased his offer, Oliva matched West's offer of 30% above fair market value on Lots
17 and 35 and exceeded it by offering 25% above fair market value for three more lots.
Furthermore, because Oliva was "only interested in purchasing all five parcels" and the
parties were unable to agree on subdivision, selling Lots 17 and 35 to West "would have
resulted in additional management costs" for the remaining three lots and "would not
have resolved the unauthorized use issues."
West's secondary argument is that the Land Office "le[ft] potential revenue
on the table" by not "pursu[ing] the claims for trespass and encroachment on the four
other parcels of land." This contention is likewise devoid of support in the record, aside
from West's own unsubstantiated allegations. To the contrary, the Land Office was able
to negotiate an additional $21,000 settlement for past encroachments, more than double
Oliva's initial offer. TheLand Office's sitevisit uncovered no evidence of encroachment
on any lots other than Lot 17. Altogether, the total proceeds from the land sale and
settlement exceeded the Land Office's estimated projection by $17,150. A review of the
whole record reveals ample evidence that supports the best interest decision. It was
therefore reasonable for the Land Office to conclude that the sale of five lots to Oliva
maximized revenue and was in the Trust's best interest.
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----------------------- Page 14-----------------------
C. West's Remaining Arguments Were Not Raised Below And Are
Deemed Waived.
West additionally argues that the Land Office's public notice regulation is
inconsistent with the governing statute and is thus invalid. However, West has waived
this argument as it is raised here for the first time. Issues that are "inadequately briefed
or raised for the first time in a reply brief" on an administrative appeal to the superior
33
court are considered waived.
The validity of 11 AAC 99.050 was not one of the nine
issues West initially brought for review before the superior court. In his opening brief
before the superior court, West never suggested that any of the Land Office's regulations
were invalid, nor did he cite any case to provide the applicable legal standard.34 West
first questioned the validity of the agency's regulations in his reply brief, but he again
failed to cite any applicable case law in support and at no point did he imply that the
public notice regulation was invalid. Nor did West squarely raise the issue at oral
argument before the superior court. Instead, the State specifically pointed out that West
never alleged the invalidity of any regulation, and West did not contest that
characterization on rebuttal. The superior court likewise did not appear to understand
West to have been challenging the regulations' validity and only briefly noted the
general presumption of validity in passing. West now argues for the first time that
11 AAC 99.050 is an invalid regulation. But this issue has been waived.
West also argues that the Land Office violated its own regulations and a
number of other statutes. But none of these issues were raised in his initial comments
33 Alyeska Pipeline Serv. Co. v. State , 288 P.3d 736, 743 (Alaska 2012).
34 Although West argued opaquely that "regulations do not trump statutes,"
he cited no authority for this proposition and only discussed a legislative audit and some
newspaper articles.
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----------------------- Page 15-----------------------
35
to the Land Office. West's remaining arguments are thus waived for failure to initially
36
raise them before the administrative agency.
With no other issues properly before us,
we affirm.
V. CONCLUSION
We AFFIRM the Land Office's best interest decision approving the sale of
five lots of Trust land to Oliva.
35 See AS 38.05.035(l) (limiting points on appeal to those presented for
reconsideration); 11 AAC 99.060(a)-(c) (providing for appeal contingent on request for
reconsideration). West's late comments to the Land Office - which were accepted as
a request for reconsideration - focused exclusively on the Trust's best interest and what
he described as "[u]nfair business practices." The present statutory and regulatory issues
were not raised until West appealed to the superior court. West's validity challenge was
also not raised in his initial comments, but that failure is potentially excusable as the
validity of a regulation falls outside the scope of what an agency has authority to decide.
See AS 44.62.300(a); AS 44.62.560(e); AS 44.62.570(b). Regardless, failure to
adequately brief an issue before the superior court is fatal. See Alyeska Pipeline , 288
P.3d at 743.
36 It is a well-established rule of appellate review that "it is inappropriate for
courts reviewing appeals of agency decisions to consider arguments not raised before the
administrative agency involved." Walker v. State, Dep't of Corr., 421 P.3d 74, 78
(Alaska 2018) (quoting 1000 Friends of Md. v. Browner, 265 F.3d 216, 227 (4th Cir.
2001)); accord 2 AM. J UR. 2 D Administrative Law § 512 (2014). Although the superior
court addressed each of West's arguments below and the applicability of issue
exhaustion was never briefed by the parties, we nonetheless decline to reach issues not
adequately preserved. We reiterate that the superior court is generally not obligated to
pass on issues not raised to the administrative agency when acting as an intermediate
appellate court. See Thoeni v. Consumer Elec. Servs. , 151 P.3d 1249, 1256-57 (Alaska
2007).
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