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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Fairbanks Gold Mining, Inc. vs. Fairbanks North Star Borough Assessor (6/18/2021) sp-7538
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.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
FAIRBANKS GOLD MINING, INC., )
) Supreme Court No. S-17735
Appellant, )
) Superior Court No. 4FA-18-02179 CI
v. )
) O P I N I O N
FAIRBANKS NORTH STAR )
BOROUGH ASSESSOR, ) No. 7538 - June 18, 2021
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Michael A. MacDonald,
Judge.
Appearances: Jonathan E. Iversen and Willa B. Perlmutter,
Stoel Rives LLP, Anchorage, for Appellant. Wendy M. Dau
and Ehren D. Lohse, Assistant Borough Attorneys, and Jill S.
Dolan, Borough Attorney, Fairbanks, for Appellee.
Before: Bolger, Chief Justice, Winfree, Maassen, Carney,
and Borghesan, Justices.
BOLGER, Chief Justice.
I. INTRODUCTION
A mining company appealed the borough assessor's valuation of its mine
to the borough board of equalization. At a hearing the company presented a detailed
report arguing the borough had improperly included the value of "capitalized waste
stripping" when calculating the tax-assessed value of the mine. The assessor maintained
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its position that waste stripping was taxable, but reduced its valuation of the mine to
better reflect the remaining life of the mine. The board approved the assessor's reduced
valuation of the mine and the superior court affirmed the board's decision.
Alaska Statute 29.45.030(a)(9) prohibits local governments from taxing
"natural resources in place," a definition which specifically includes "ore bodies." The
mine owners argue that waste stripping - the process of removing worthless rock that
sits on top of valuable ore - falls within this statutory exemption from taxation. But we
construe municipal taxing power broadly and read exceptions to that power narrowly.
Waste stripping is not a "natural resource," but an improvement that makes it easier for
miners to access natural resources. We conclude that the value of this improvement, like
that of other improvements at the mine site, is subject to tax by the borough. We
therefore affirm the superior court's decision affirming the board's valuation.
II. FACTS AND PROCEEDINGS
A. Borough Assessment
In January 2018 the Fairbanks North Star Borough assessor valued the Fort
Knox Mine - owned by Fairbanks Gold Mining, Inc. - at $673.1 million and assessed
property taxes accordingly. 1 Of that value, $17.8 million derived from the land, and the
remaining $655.3 million derived from improvements.
Theassessorvaluesmineimprovementsusing thecost approach. Each year
Fairbanks Gold provides a list of capital improvements completed at the mine. The
assessor adds the cost of those improvements - except for "non-affixed personal
property items" - to the value of the mine. For previous years, the assessor depreciates
the value of capital expenses by 5% annually over a 20-year period with a floor of 30%
1
See AS 29.45.110(a) (requiring assessment based on value as of January 1
of assessment year).
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of the initial value. The assessor describes the mine site as a "special use property" for
which "cost information" is readily available and useful for calculating the property
value "when there are no other measurable means of doing so."
The most valuable single improvement assessed at the mine site is
"capitalized waste stripping." Waste stripping is the process of removing "economically
barren surface materials" - known as "overburden" or "waste rock" - from the mine
site to improve access to valuable ore. Fort Knox has been mined in phases, with waste
stripping occurring in each phase. Phases one through seven are fully depleted, and
mining has proceeded to phase eight.
The assessor valued each phase of waste stripping in the same manner as
other mine improvements - by depreciating each year's stripping expense by 5%
annually over 20 years with a 30% floor. This process recognizes that earlier waste
stripping still carries value, but not as much value as more recent waste stripping. After
adjusting for depreciation, the assessor calculated the total value of the mine's waste
stripping in 2018 at $295.4 million and assessed taxes accordingly.
B. Appeal To The Board Of Equalization
Fairbanks Gold appealed the assessor's initial valuation to the Fairbanks
North Star Borough Board of Equalization. Fairbanks Gold did not contest the value of
the land, but asserted that the value of taxable improvements was under $359 million,
nearly $300 million less than the assessed value. Fairbanks Gold argued the "[a]ssessor
erred by including the costs of capitalized waste stripping." It claimed that even if
inclusion of such costs were correct, "the assessor improperly calculated
depreciation/obsolescence," which led to an inflated valuation.
1. Fairbanks Gold's appraisal report and the assessor's report to
the board
Insupportofitsposition,Fairbanks Gold commissionedan appraisalreport.
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The report did not actually value waste stripping, but instead argued that the value of
waste stripping cannot be taxed. The appraiser posited that any value added by waste
2
stripping must accrue to the ore body, which cannot be taxed under Alaska law.
The appraiser also argued that the value of waste stripping should decrease
based on depletion of the ore reserve rather than depreciation over time because
"changes in topography" - unlike buildings and equipment - do not deteriorate.
Because the economic life of the mine cannot be longer than the life of the ore deposit,
the appraiser claimed that a uniform depreciation schedule of 20 years was inappropriate
and that the assessor should have tied the depreciation in value to the remaining life of
the mine based on the amount of ore remaining.
The assessor defended his valuation of the mine in a written report. He
compared capitalized waste stripping "to the excavation done in preparation for a house
or large commercial building." Just as excavation adds value to a commercial or
residential property by making it easier to build on, waste stripping adds value to a
mining property by making it easier to mine. The assessor also likened waste stripping
to building a road that "provides necessary access to the mine site." And he compared
Fairbanks Gold's argument that the value of waste stripping accrues to the "minerals in
place" to "claiming that a water well . . . adds value to the water, and not the property
itself."
The assessor also pointed to accounting standards indicating that waste
3 He
stripping should be treated as an asset that provides value for future mine phases.
2 See AS 29.45.030(a)(9) (exempting "natural resources in place including
. . . ore bodies" from "general taxation").
3 See, e.g., WESTERLUND & L ARSON, F IN. A CCOUNTING STANDARDS BD.,
MERGING ISSUES TASK FORCE, ISSUE NO. 04-6, WORKING GRP. REPORT NO. 1,
E
(continued...)
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noted that Fairbanks Gold itself capitalizes and depreciates waste stripping for
accounting purposes. Although the Fairbanks Gold appraiser argued that this
capitalization of waste stripping "to comply with IRS requirements . . . does not correlate
directly with full and true value," the assessor observed that the company had not
previously objected to the valuation and taxation of waste stripping.
2. Board of Equalization hearing
The board held a hearing on Fairbanks Gold's appeal in May 2018. The
board granted the parties 90 minutes each to present their arguments, with a 30-minute
rebuttal for Fairbanks Gold. Fairbanks Gold was represented by its attorney and its
general manager.
Fairbanks Gold's contract appraiser testified at the hearing. He first opined
that the cost approach was inappropriate because it would result in a lower valuation for
an unmined deposit with overburden than a mined-out prospect with no overburden -
a result contrary to common sense. But under questioning from the board, the appraiser
admitted that between two mines with identical ore bodies, one where overburden had
been removed and one where it had not, the mine without overburden would be worth
more, and he admitted that waste stripping was an asset to the mine as a business.
The appraiser then proposed for the mine an alternative value which he had
not discussed in his report. He argued that if the cost method must be used, depreciation
should be calculated by dividing the number of ounces of gold already produced by the
number of total ounces in the deposit. The appraiser calculated a 68.4% depreciation in
3 (...continued)
SUPPLEMENT NO. 2, A CCOUNTING FOR STRIPPING COSTS IN THE MINING INDUSTRY
(2005), https://www.fasb.org/jsp/FASB/Document_C/DocumentPage &
cid=1218220163091 (laying out best accounting practices for value of waste stripping
as capital asset).
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----------------------- Page 6-----------------------
the mine's value with this method. Applying this formula to the $1 billion total cost for
the mine, including waste stripping, he proposed a "full and true value" of $315.7
million. But he again argued that waste stripping expenses should be excluded, leaving
$510 million in taxable property and reducing themine's valueafter depreciation to $161
million.
The borough assessor disagreed with the appraiser's methodology, but he
also proposed a new and lower valuation of the mine. The assessor updated his
depreciation schedule "from 20 years down to 10 years," to be more "reflective of the
remaining economic life of the open pit where the waste stripping . . . is occurring." The
assessor also reduced the "net floor" in his depreciation model from 30% to 10% to
better reflect the diminished value of older waste stripping. These changes resulted in
a revised value of $549.5 million - a $123.6 million reduction in the assessed value of
waste stripping.
The assessor explained that he had made these changes to his model
following a conversation with Fairbanks Gold's general manager. He said the choice of
10 years was a "tough call," and that the number was based in part on the fact that the
company had either purchased or had access to an adjoining tract of land, thus extending
the mine's economic life. The assessor admitted that without the new tract "they're
probably getting close to . . . being mined out in the pit." But he said the mine had
gained access to the additional acreage in November 2017 and had already drilled to
ascertain the presence of gold.
The general manager responded that the economic life of the mine was not
10 years but 3 years and denied giving the assessor information "to base a 10 percent net
floor on." But Fairbanks Gold did report the value of the reserves in the adjoining tract
to the Securities and Exchange Commission. And the manager said that once the mine
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----------------------- Page 7-----------------------
had "defined" the new tract at the end of 2017, it "had to take ownership of what could
be in that ground."
3. The board's decision
At the close of testimony, the board chair observed that "everyone agrees
waste stripping has value." He compared waste stripping to "building a railroad across
something . . . . You don't want the railroad, but you have to get to the other side. . . .
[I]t's an improvement, and you have to put value on it." He disagreed that the value of
waste stripping accrued to the gold deposit. That gold, said the chair, had an independent
market value which did not increase as a result of the waste stripping done to access it.
The chair concluded that waste stripping was an asset to the property that the assessor
had been properly assessing "for many years."
The board unanimously accepted the assessor's amended valuation,
determining that he had acted within his "broad discretion" in valuing the property. It
concluded that the cost approach was a "reasonable and acceptable tax appraisal
valuation methodology," that Fairbanks Gold had "ample opportunity" to present its
case, and that the company had not carried its burden to prove that the assessor's
valuation was improper. As the board explained: "The Assessor's tax assessment is
presumed valid and will not be overturned on appeal unless the Appellant can show
fraud, the clear adoption of a fundamentally wrong principle of valuation or that the
assessment is improper, unequal[,] or excessive." The board concluded Fairbanks Gold
had "not overcome the presumption of validity . . . nor ha[d] it proved by a
preponderance of the evidence that the Assessor's tax valuation . . . was unequal,
excessive, or improper."
C. Appeal To The Superior Court
Fairbanks Gold appealed to the superior court and moved for a trial
de novo. The superior court denied the motion, explaining that the superior court
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generally reviews agency decisions on the record and will conduct a full trial only where
"the agency record is not sufficient to determine the issue on appeal, or if the record
4
discloses that justice requires evidence to be taken de novo."
In its opening brief Fairbanks Gold reiterated its points from the board
hearing. But in the reply brief it additionally argued that the assessor had no evidentiary
basis for the amended ten-year depreciation schedule and that the board's decision to
accept the amended valuation was therefore not supported by "substantial evidence."
Specifically, Fairbanks Gold challenged theassessor's reliance on the mine's acquisition
of the adjacent tract, which it claimed the assessor learned of only after completing his
assessment and therefore could not have relied upon. Fairbanks Gold claimed not to
have acquired that tract until after January 1, 2018. Therefore, it argued, the new tract
should not have been considered when calculating the life of the existing mine.
The superior court did not consider Fairbanks Gold's challenge to the
sufficiency of the evidence supporting the board's decision. This issue, the court said,
was not raised in the points on appeal and only cursorily raised in Fairbanks Gold's
5 The superior court otherwise affirmed the board in full.
opening brief.
Fairbanks Gold appeals.
III. STANDARD OF REVIEW
When "the superior court acts as an intermediate court of appeal in an
administrative matter, we independently review and directly scrutinize the merits of the
4 Keiner v. City of Anchorage , 378 P.2d 406, 410 (Alaska 1963).
5 See In re Dissolution of Marriage of Alaback, 997 P.2d 1181, 1184 n.3
(Alaska 2000) ("Points given only a cursory treatment in the argument portion of a brief
will not be considered on appeal, even if developed in the reply brief.").
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----------------------- Page 9-----------------------
6
board's decision." "Questions of law and fact involving agency expertise are reviewed
7
under the reasonable basis standard."
When a party contests the factual basis for an
assessor's valuation, we"reviewtheassessor's factualfindings forsubstantialevidence,"
8
and we require "findings of fact sufficient to explain the reasons" for the decision.
Generally,"[t]axing authorities areto beaccordedbroaddiscretion"in their
property valuation approach, and this discretion is questioned only in cases of "fraud or
the clear adoption of a fundamentally wrong principle of valuation."9 But "[w]hether
certain property merits a tax exemption under AS 29.45.030 is a question requiring
statutory interpretation; thus, we apply the 'substitution of judgment' standardof review,
giving no deference to the assessor's administrative expertise."10
IV. DISCUSSION
Fairbanks Gold first asserts that waste stripping is exempt from taxation
under an alaska statute preventing local governments from taxing "[n]atural resources
in place."11 But we narrowly construe this exemption and conclude that it does not apply
to waste stripping. Fairbanks Gold also argues that the Board's valuation of the mine
6 Horan v. Kenai Peninsula Borough Bd. of Equalization, 247 P.3d 990, 997
(Alaska 2011) (quoting Alford v. State, Dep't of Admin., Div. of Ret. & Benefits, 195 P.3d
118, 122 (Alaska 2008)).
7 Id.
8 Henash v. Fairbanks N. Star Borough, 265 P.3d 302, 304 (Alaska 2011).
9 Kelley v. Municipality of Anchorage, Bd. of Equalization, 442 P.3d 725,
728-29 (Alaska 2019) (alteration in original) (first quoting Cool Homes, Inc. v.
Fairbanks N. Star Borough, 860 P.2d 1248, 1262 (Alaska 1993); then quoting Twentieth
Century Inv. Co. v. City of Juneau, 359 P.2d 783, 788 (Alaska 1961)).
10 Henash, 265 P.3d at 304.
11 AS 29.45.030(a)(9).
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was insufficiently supported by the evidence presented at the hearing. But Fairbanks
Gold waived this argument by raising it too late. Finally, Fairbanks Gold argues it
should have been granted a trial de novo in superior court. But appeals from the Board
are decided on the record established at the board hearing, and the circumstances here
do not warrant a departure from that statutory procedure. We affirm both the valuation
of the mine and the court's denial of Fairbanks Gold's motion for a trial de novo.
A. The Valuation Of Fort Knox Mine Was Not Unequal, Excessive, Or
Improper.
When seeking adjustment of an assessment, "[t]he appellant bears the
burden of proof. The only grounds for adjustment of assessment are proof of unequal,
excessive, improper, or under valuation based on facts that are stated in a valid written
appeal or proven at the appeal hearing." 12
1. Alaska Statute 29.45.030(a)(9) does not exempt waste stripping
from local taxation.
The core question is whether AS 29.45.030(a)(9) exempts waste stripping
from taxation. In relevant part, that statute provides tax exemption to "natural resources
in place including coal, ore bodies, mineral deposits, and other proven and unproven
deposits of valuable materials laid down by natural processes."13 We review this
question of statutory interpretation using our independent judgment and determine that
waste stripping is not exempt from taxation.14
Fairbanks Gold argues that any value added by waste stripping is untaxable
because that value accrues to the tax-exempt ore body. The process of waste stripping,
12 AS 29.45.210(b).
13 AS 29.45.030(a)(9).
14 See Henash, 265 P.3d at 304-06 (reviewing scope of statutory tax
exemption under substitution of judgment standard).
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it contends, is simply a part of mining, "and the only reason whatsoever that you would
ever incur the expense of removing the overburden is to enable you to mine the ore."
But every expense incurred to improve the mine site is presumably to enable Fairbanks
Gold to mine the ore, and the statute does not suggest that all of the mine's physical
assets are thus exempt from taxation.
Alternatively, Fairbanks Gold argues that waste rock itself is a natural
resource exempt from taxation under the statute. Fairbanks Gold cites legislative history
15 It argues
indicating that "natural resources in place" was intended to be read broadly.
the overburden should beincluded in the exemption because the "ore body" by definition
"may include low-grade ore and waste as well [as] pay ore."
We examine the language of this exemption in the context of the entire
statutory definition. "Pursuant to the doctrine of ejusdem generis, a general term, when
followed by specific terms, will be interpreted in light of the characteristics of the
16 Likewise, "[w]hen particular
specific terms, absent clear indication to the contrary."
words are followed by general terms, the latter will be regarded as referring to things of
a like class with those particularly described."17
15 See Minutes, Sen. Cmty. &Reg'l Affairs Comm. Hearing on S.B. 330, 17th
Leg., 2d Sess., No. 135 (Jan 21, 1992) (testimony of Sandra Wicks, Legis. Liason, Dep't.
of Cmty. & Reg'l Affairs) ("[N]atural resources in place was defined very broadly");
Minutes, Sen. Res. Comm. Hearing on S.B. 330, 17th Leg., 2d Sess., No. 242 (Jan 22,
1992) (testimony of Sandra Wicks, Legis. Liason, Dep't. of Cmty. & Reg'l Affairs)
(same).
16 City of Kenai v. Friends of the Recreation Ctr., Inc., 129 P.3d 452, 459
(Alaska 2006) (quoting West v. Umialik Ins. Co., 8 P.3d 1135, 1141 (Alaska 2000)).
17 State v. First Nat'l Bank of Anchorage, 660 P.2d 406, 413 (Alaska 1982)
(quoting Chugach Elec. Ass'n v. Calais Co., 410 P.2d 508, 509-10 (Alaska 1966)).
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----------------------- Page 12-----------------------
Therefore,inAS29.45.030(a)(9)theterm"natural resourcesin place"must
be interpreted in light of the examples that follow: "coal, ore bodies, mineral deposits,
and other proven and unproven deposits of valuable materials laid down by natural
processes." And the phrase "deposits of valuable materials" defines the scope of the
terms. Thus the "ore bodies" and "mineral deposits" exempted from taxation are limited
to "deposits of valuable materials."
Thekey word in this phrase is "valuable." Fairbanks Gold has, at numerous
times over the course of this litigation, insisted the overburden is valueless. Yet it now
seeks to lump the overburden in with a list of things whose common characteristic is
economic value. This argument fails: neither the overburden itself, nor the process of
removing it, can be reasonably classified as a "deposit of valuable materials." 18
We will consider legislative history, but "[t]he plainer the statutory
language is, the more convincing the evidence of contrary legislative purpose or intent
19 And the legislative history does not convince us that the original purpose of
must be."
the tax exemption was to create an expansive exception for operating mines. Instead,
that history shows an intent to prevent the taxing of mines "before they are deriving
revenue."20 Neither a plain reading of the statute, nor an analysis of the statute's
18 AS 29.04.030(a)(9)
19 State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Ins. v. Alyeska
Pipeline Serv. Co. , 262 P.3d 593, 597 (Alaska 2011) (quoting Gov't Emp. Ins. Co. v.
Graham-Gonzalez, 107 P.3d 279, 284 (Alaska 2005)).
20 Minutes, Sen. Cmty. & Reg'l Affairs Comm. Hearing on S.B. 330, 17th
Leg., 2d Sess., No. 220 (Jan 21, 1992) (testimony of Sandra Wicks, Legis. Liason, Dep't.
of Cmty. & Reg'l Affairs).
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----------------------- Page 13-----------------------
legislative history, supports the conclusion that "economically barren" overburden is
exempt from taxation.
Moreover, it is not the overburden itself that the assessor purports to tax,
but the improvement to the property resulting from the removal of overburden. Just as
the assessor can tax buildings, roads, and physical plants that facilitate mining on the
property, it can tax waste stripping, which similarly facilitates mining on the property.
21 And although this canon of strict
We construe tax exemptions narrowly.
construction"isan aidto, not a substitute for[,] statutory interpretation,"22 thestatutehere
is most reasonably interpreted as allowing the taxation of waste stripping. We conclude
that the value of waste stripping at Fort Knox Mine is not exempt from taxation.
2. The taxing authority's choice of methodology was within its
discretion.
Fairbanks Gold also argues that the assessor's methodology was improper
because it would result in the highest assessed value when a mine is closest to depletion.
Fairbanks Gold posits that a hypothetical buyer would pay more for a mine with all its
ore still in place. But this argument misconceives the issue.
An assessor must assess property at its "full and true value," which is
defined as "the estimated price that the property would bring in an open market and
under the then prevailing market conditions."23 In the case of a mine, the assessor's task
21 Fairbanks N. Star Borough v. Deña Neña Henash, 88 P.3d 124, 129
(Alaska 2004).
22 See Sisters of Providence in Wash., Inc. v. Municipality of Anchorage, 672
P.2d 446, 447 (Alaska 1983) (quoting McKee v. Evans, 490 P.2d 1226, 1230 n.18
(Alaska 1971)).
23 AS 29.45.110(a).
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24
is complicated by the tax-exempt status of the ore itself. To reach the taxable value of
mine assets, the assessor must separate the value of the mine infrastructure from the
value of the tax-exempt ore.
25 We
The assessor has broad discretion to decidehowto complete this task.
will only upset the assessor's choice of method in cases of "fraud or the clear adoption
of a fundamentally wrong principle of valuation."26 Accordingly, we review the Board's
approval of the assessor's valuation method under the deferential "reasonable basis
standard."27
If the assessor is faced with the challenge of valuing a mine without valuing
the ore, the cost approach is not clearly wrong. Indeed, "we have long recognized the
cost approach as a usual appraisal method for improved property."28 "The relevant
inquiry is whether or not a valuation method selected by the assessor provides some
reasonable estimate of the market value of the interest to be taxed, not whether the
24 AS 29.45.030(a)(9).
25 N. Star Alaska Hous. Corp. v. Fairbanks N. Star Borough Bd. of
Equalization, 778 P.2d 1140, 1143-44 (Alaska 1989) ("Taxing authorities are to be
accorded broad discretion in deciding among recognized valuation methods.").
26 Id. at 1144 (quoting Twentieth Century Inv. Co. v. City of Juneau, 359 P.2d
783, 788 (Alaska 1961) (emphasis omitted)).
27 Fairbanks N. Star Borough Assessor's Office v. Golden Heart Utils., Inc.,
13 P.3d 263, 266-69 (Alaska 2000). Fairbanks Gold argues that this methodological
decision should receive no deference, but we have repeatedly recognized that the
assessor has broad discretion in choosing a valuation method and is due deferential
review of the choice. See, e.g., Horan v. Kenai Peninsula Borough Bd. of Equalization,
247 P.3d 990, 998 (Alaska 2011); N. Star Alaska Hous. Corp., 778 P.2d at 1144 n.7;
Hoblit v. Greater Anchorage Area Borough, 473 P.2d 630, 632 (Alaska 1970).
28 Horan, 247 P.3d at 998 (citing Dash v. State, 491 P.2d 1069, 1071 (Alaska
1971)).
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appraisal method has received the imprimatur of acceptance from the appraisal
29
community."
Although Fairbanks Gold's hired appraiser disagreed with the assessor's
valuation method, it was not fundamentally wrong, and the board had a reasonable basis
to approve the valuation.
3. Fairbanks Gold waived its argument that the assessor's
depreciation schedule was improper.
Fairbanks Gold next argues that the assessor's valuation was inadequately
supported by the facts presented at the Board of Equalization hearing. The assessor's
estimate that the mine had ten productive years left was partially based on Fairbanks
Gold's prospect of expanding the mine to access the ore under an adjoining tract of land.
The assessor referenced the mine's potential for expansion in his testimony, and the mine
manager admitted that the mine had already reported the existence of gold reserves under
that adjoining tract to the SEC. But Fairbanks Gold claims it did not acquire its interest
in that property until after January 1, 2018. As this dispute concerns the mine's value
30 Fairbanks Gold argues that reliance on the later acquisition is improper
on January 1,
and that absent this information the ten-year mine life proposed by the assessor and
adopted by the board was arbitrary and unsupported by substantial evidence.
But Fairbanks Gold did not raise this issue in its opening brief to the
superior court. Instead, it first raised the argument in its reply brief to that court. While
Fairbanks Gold's opening brief alluded to evidentiary insufficiency in its argument for
a trial de novo, it never squarely asked the superior court to reverse on those grounds.
And as we have explained, "[i]ssues that are 'inadequately briefed or raised for the first
29 Golden Heart Utils. , 13 P.3d at 268 (footnote omitted).
30
See AS 29.45.110(a) (requiring assessment of property "at its full and true
value as of January 1 of the assessment year").
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----------------------- Page 16-----------------------
time in a reply brief' on an administrative appeal to the superior court are considered
31
waived."
Accordingly, Fairbanks Gold has waived this argument.
B. Fairbanks Gold Is Not Entitled To A Trial De Novo.
Fairbanks Gold argues that it was entitled to a trial de novo in the superior
court because it was unfairly prejudiced by the assessor's reduction of the mine's
assessed value at the board hearing. It claims it was denied "the opportunity to present
evidence challenging the assessor's finding" on depreciation calculations. The assessor
responds that Fairbanks Gold suffered no prejudice because he explained the reasons for
his revaluation at the hearing and Fairbanks Gold had the opportunity to challenge his
findings.
Fairbanks Gold argues that the superior court had the discretion to order a
32 When a court has discretion to order a trial
trial de novo under AS 22.10.020(d).
de novo, we review the denial of such a motion for abuse of that discretion.33
But when
the availability of a trial de novo is specifically limited by statute, we interpret that
34
statutory limitation using our independent judgment.
AlaskaStatute29.45.210(d) provides thatappealstothesuperiorcourt from
the board of equalization "are heard on the record established at the hearing before the
31 West v. Alaska Mental Health Tr. Auth. , 467 P.3d 1064, 1071 (Alaska 2020)
(quoting Alyeska Pipeline Serv. Co. v. State, 288 P.3d 736, 743 (Alaska 2012)).
32 AS 22.10.020(d) provides: "The hearings on appeal from a final order or
judgment of a subordinate court or administrative agency . . . shall be on the record
unless the superior court, in its discretion, grants a trial de novo, in whole or in part."
33 Pacifica Marine, Inc. v. Solomon Gold, Inc ., 356 P.3d 780, 788 (Alaska
2015).
34 See Allen v. Alaska Oil & Gas Conservation Comm'n, 147 P.3d 664, 667-
670 (Alaska 2006) (reviewing de novo the question of which statute governed the
availability of a trial de novo in an administrative appeal to the superior court).
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----------------------- Page 17-----------------------
board." We have previously recognized that in enacting this section "[t]he legislature
35
. . . expressly chose to limit the scope of review of the board's determinations." This
specific provision in the property tax statute controls over the more general provision in
36
AS 22.10.020(d).
In Alvarez v. Ketchikan Gateway Borough we considered a taxpayer's
request to supplement the record in a property tax appeal.37 We explained that
AS 29.45.210(d) limited the scope of our review to the record established at the board
hearing.38 We noted that the record on appeal included all files submitted at the hearing,
and we therefore concluded that the record was complete.39 In this case we likewise
conclude that the superior court's decision to review Fairbanks Gold's appeal on the
record from the board hearing was consistent with AS 29.45.210(d).
Even when the applicable statute does not provide a right to a trial de novo,
however, "a similar right to trial de novo is created if an administrative adjudicative
40 We have recognized a denial of due process
procedure does not afford due process."
when a party has been "denied the opportunity to present . . . relevant and material
35 Cool Homes, Inc. v. Fairbanks N. Star Borough, 860 P.2d 1248, 1267
(Alaska 1993).
36 See Allen , 147 P.3d at 668 ("In general, if two statutes conflict, then . . . the
specific controls over the general.").
37 28 P.3d 935, 938 (Alaska 2001).
38 Id . at 939.
39 Id . at 939-40.
40 State v. Lundgren Pac. Constr. Co., 603 P.2d 889, 895 (Alaska 1979).
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41
evidence supporting his claim." But we also require that "[a] violation of due process
42
should be alleged with particularity and a showing of prejudice."
And we conclude that
Fairbanks Gold has failed to show a prejudicial violation of its due process rights.
During the board hearing the assessor explained the reasoning behind his
decision to reduce the assessed value. He testified that he had reduced the depreciation
period for the waste stripping to reflect a "more realistic" estimate of the remaining life
of the mine based on a conversation with the Fairbanks Gold general manager. The
assessor also explained that he had reduced the floor value of the waste stripping beyond
the salvage value for other improvements because the expenditures for waste stripping
in the early phases of the mine did not contribute as much to the value of the mine.
These concessions did not prejudice Fairbanks Gold; to the contrary, these
concessions reduced the mine's assessed value and the company's tax burden. And the
reduction in value was a foreseeable response to Fairbanks Gold's previous arguments
about the mine's economic life and the value of waste stripping. The revaluation was not
a surprise, nor was Fairbanks Gold denied the opportunity to respond to it.
The board had before it the assessor's report, Fairbanks Gold's detailed
appraisal report, and hours of testimony from both sides. And Fairbanks Gold, though
represented by counsel, did not object to the assessor's reduced valuation. We conclude
that Fairbanks Gold has not established that it was denied the opportunity to present any
material evidence or otherwise deprived of its right to a fair hearing. The superior court
did not err by denying its motion for a trial de novo.
41 Nash v. Matanuska-Susitna Borough , 239 P.3d 692, 699 (Alaska 2010)
(quoting Keiner v. City of Anchorage , 378 P.2d 406, 409 (Alaska 1963)).
42 Id.
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V. CONCLUSION
The superior court's decision is AFFIRMED.
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