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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hollis S. French v. Alaska Oil and Gas Conservation Commission (9/3/2021) sp-7553
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
HOLLIS S. FRENCH, )
) Supreme Court No. S-17822
Appellant, )
) Superior Court No. 3AN-19-06694 CI
v. )
) O P I N I O N
ALASKA OIL & GAS )
CONSERVATION COMMISSION, ) No. 7553 - September 3, 2021
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Eric A. Aarseth and Adolf V.
Zeman, Judges.
Appearances: Hollis S. French, Anchorage, Appellant.
Thomas A. Ballantine, Senior Assistant Attorney General,
Anchorage, and Clyde "Ed" Sniffen, Jr., Attorney General,
Juneau, for Appellee.
Before: Winfree, Maassen, and Carney, Justices. [Bolger,
Chief Justice, and Borghesan, Justice, not participating.]
WINFREE, Justice.
I. INTRODUCTION
Anagency denied an individual'srequest for a hearing regarding areported
natural gas leak and whether the leak constituted "waste" under Alaska law. The agency
concluded it had no jurisdiction over the matter because it previously had investigated
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and had concluded the leak did not constitute "waste." The individual appealed to the
superior court, which affirmed the agency's decision. We reverse.
II. FACTS AND PROCEEDINGS
The Alaska Oil and Gas Conservation Commission is a quasi-judicial
1
agency charged with investigating waste of oil and gas resources.
The parties agree that
in early 2017 a gas line operated by Hilcorp Alaska, LLC leaked gas into Cook Inlet. In
February 2019 Hollis French petitioned the Commission "for a hearing on a complaint
2
of waste." French alleged: "The waste occurred from a[n] 8 [inch] line carrying fuel
gas to Platform A in Cook Inlet, which is operated by Hilcorp. The line leaked gas to the
atmosphere for approximately three months in the winter and spring of 2017." French
noted that at the hearing he would "be urging the [C]ommission to take action upon [his]
complaint."
TheCommission responded in March 2019, stating that it had "investigated
the leak at the time it occurred" and that it had concluded "the leaking gas had been
purchased by Hilcorp from a third-party provider . . . and was being shipped back to
Platform A." The Commission stated it had already concluded that, because the leaking
gas had been "metered and severed from the property," the leaking gas could not be
waste and the Commission therefore had no "waste jurisdiction over [the] gas."
1 AS 31.05.005(a) (describing Commission as "independent quasi-judicial
agency of the state . . . composed of three Commissioners appointed by the governor and
confirmed by the legislature in joint session"); AS 31.05.030(b) (requiring Commission
to "investigate to determine whether . . . waste exists or is imminent, or whether . . . facts
exist which justify or require action by it"); see also AS 31.05.170(15) (defining waste).
2 See AS 31.05.060(a) (noting that "[C]ommission may act upon . . . the
petition of an interested person" and that "[o]n the filing of a petition concerning a matter
within the jurisdiction of the [C]ommission . . . , the [C]ommission shall promptly fix a
date for a hearing[] and shall cause notice of the hearing to be given").
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According to the Commission, "[a]bsent jurisdiction, there [was] no basis for a hearing."
3
French requested reconsideration, which was denied by operation of law.
French appealed to the superior court, which affirmed the Commission's
decision. The court applied rational basis review and concluded the Commission's
determination, that gas once metered and severed from a property could not be waste,
was reasonable. French moved for reconsideration, arguing that the superior court failed
to address the agency's conclusion regarding its jurisdiction over the gas leak. The court
denied French's motion for reconsideration. At the Commission's request, the superior
court awarded the Commission $6,270 in attorney's fees.4 French appeals.
III. STANDARD OF REVIEW
"When the superior court is acting as an intermediate court of appeal in an
administrative matter, we independently review the merits of the agency or
administrative board's decision."5
"We exercise our independent judgment on [any]
issue concerning the scope of an agency's authority [because] it involves statutory
interpretation, or analysis of legal relationships, about which courts have specialized
6 We review an agency's factual findings "to determine
knowledge and expertise."
3 See AS 31.05.080(a) (providing that failure to grant or refuse application
for reconsideration within ten days of filing "is a refusal of [the application] and a final
disposition of the application").
4 See Alaska R. App. P. 508(e).
5 Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 267 P.3d 624, 630
(Alaska 2011).
6 Regulatory Comm'n of Alaska v. Matanuska Elec. Ass'n., 436 P.3d 1015,
1025 (Alaska 2019) (first alteration original) (quoting Far N. Sanitation, Inc. v. Alaska
Pub. Utils. Comm'n, 825 P.2d 867, 871 n.6 (Alaska 1992)).
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----------------------- Page 4-----------------------
whether they are supported by substantial evidence," meaning "such relevant evidence
as a reasonable mind might accept as adequate to support [the agency's] conclusion." 7
IV. DISCUSSION
"The [C]ommission may act upon its own motion[] or upon the petition of
an interested person. On the filing of a petition concerning a matter within [its]
jurisdiction . . . , the [C]ommission shall promptly fix a date for a hearing, and shall
8
cause notice of the hearing to be given." French filed a petition alleging that the Cook
Inlet gas leak constituted waste. The parties appear to assume that French is an interested
person. The only issue thus is whether French's petition contained a matter within the
Commission's broad jurisdiction.
"The [C]ommission has jurisdiction and authority over all persons and
property, public and private, necessary to carry out the purposes and intent of this
9
chapter." French argues that because the Commission is required to "investigate
whether waste exists," the text of the statute gives the Commission jurisdiction over
10
waste determinations. French also presents several policy arguments why the
jurisdiction statute should be read broadly. The Commission concedes that it "has
statewide jurisdiction over waste" but argues that it was required to determine whether
the leak was waste before it could exercise jurisdiction because "[a]bsent waste, there is
no waste jurisdiction."
7 Shea, 267 P.3d at 630 (quoting Lopez v. Adm'r, Pub. Emps.' Ret. Sys., 20
P.3d 568, 570 (Alaska 2001)).
8 AS 31.05.060(a).
9 AS 31.05.030(a).
10 See AS 31.05.030(a)-(b).
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TheCommission's jurisdictionargumentputsthecartbeforethehorse. The
11
Commission's mission is investigating and identifying oil and gas waste,
and it
therefore has jurisdiction over "all persons and property, public and private, necessary
12 The Commission thus had jurisdiction
to" investigate and identify oil and gas waste.
over the leak at issue. If we accepted the Commission's understanding of jurisdiction,
the Commission could always undermine AS 31.05.060(a)'s hearing requirement by
deciding the substantive issue behind closed doors and then disclaiming jurisdiction.
The Commission argues that it properly denied French's request for a
hearing because it already had investigated the leak and made a waste determination.
But even assuming the Commission can deny a hearing because it previously
investigated and decided a matter, the factual assertion that it has done so must be
13 The Commission's statements about having
supported by substantial evidence.
investigated whether the leak was waste are wholly unsupported. The Commission's
dismissal order contains several factual statements about the alleged investigation and
waste determination, but there is no supporting evidence in the administrative record.
French's request for a hearing therefore was improperly denied. The
Commission has jurisdiction over waste determinations, and substantial evidence does
not support its assertion that it investigated and concluded this leak was not waste.
11 AS 31.05.030(b) ("The [C]ommission shall investigate to determine
whether or not waste exists or is imminent, or whether or not other facts exist which
justify or require action by it.").
12 See AS 31.05.030(a).
13 See supra note 7 and accompanying text.
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V. CONCLUSION
The superior court's decision is REVERSED, its attorney's fees award is
VACATED, and this matter is REMANDED to the Commission for further proceedings
consistent with this opinion.
-6- 7553
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