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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. City of Valdez v. Regulatory Commission of Alaska, Hilcorp Alaska, LLC, Harvest Alaska, LLC, Harvest Midstream I, L.P., Hilcorp Energy I, L.P., Hilcorp Energy Company, BP Pipelines (Alaska) Inc., and BP Corporation North America Inc (5/3/2024) sp-7697
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, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
CITY OF VALDEZ, )
) Supreme Court Nos. S-18178/18347
Appellant, ) (Consolidated)
)
v. ) Superior Court Nos. 3AN-20-05915 CI
) and 3AN-21-04104 CI (Consolidated)
REGULATORY COMMISSION OF )
ALASKA; HILCORP ALASKA, LLC; ) O P I N I O N
HARVEST ALASKA, LLC; HARVEST )
MIDSTREAM I, L.P.; HILCORP ) No. 7697 – May 3, 2024
ENERGY I, L.P.; HILCORP ENERGY )
COMPANY; BP PIPELINES (ALASKA) )
INC.; and BP CORPORATION NORTH )
AMERICA INC., )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Catherine M. Easter, Judge.
Appearances: Robin O. Brena, Anthony S. Guerriero, and
Laura S. Gould, Brena, Bell & Walker, P.C., Anchorage, for
Appellant. David A. Wilkinson and Robert Kutchin,
Assistant Attorneys General, Anchorage, and Treg R.
Taylor, Attorney General, Juneau, for Appellee Regulatory
Commission of Alaska. Anne Marie Tavella and Kristal
Leonard, Davis Wright Tremaine LLP, Anchorage, for
Appellees Hilcorp Alaska, LLC; Harvest Alaska, LLC;
Harvest Midstream I, L.P.; Hilcorp Energy I, L.P.; and
Hilcorp Energy Company. Michael S. McLaughlin, Patrick
J. Coughlin, and Adam D. Harki, Guess & Rudd P.C.,
----------------------- Page 2-----------------------
Anchorage, for Appellees BP Pipelines (Alaska) Inc. and BP
Corporation North America Inc.
Before: Maassen, Chief Justice, and Carney, Henderson,
*
and Pate, Justices, and Bolger, Senior Justice. [Borghesan,
Justice, not participating.]
PATE, Justice.
INTRODUCTION
In this case, we review the superior court’s dismissal of administrative
appeals from the Regulatory Commission of Alaska (RCA). The City of Valdez
(Valdez) asserted a right to scrutinize information the RCA relied upon when deciding
whether an oil company seeking to operate Alaska’s largest pipeline had the financial
capacity to do so consistent with the best interests of the public. Valdez appealed to the
superior court for review of two orders by the RCA: Order 6, which approved
confidential treatment of certain financial statements that the oil company and its
affiliates submitted to the RCA, and Order 17, which approved the transfer of a required
certificate and the authority to operate the pipeline.
The superior court dismissed Valdez’s appeals because it concluded
Valdez lacked standing, Valdez failed to exhaust the available administrative remedies,
and the case was moot. The court also ordered Valdez to pay a portion of the attorney’s
fees of the oil company and other companies involved in the proceedings. Valdez
appealed both decisions. We consolidated the appeals. We reverse the dismissal of the
appeal of Order 6, affirm the dismissal of the appeal of Order 17, and vacate the award
of attorney’s fees.
* Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
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FACTS AND PROCEEDINGS
A. BP Announced The Sale Of Its Alaska Assets And Sought Approval
To Transfer Its Interest In The Trans-Alaska Pipeline System To
Harvest Alaska.
In 2019 BP p.l.c. (BP) announced it was planning to sell its Alaska oil and
gas assets and exit Alaska. As part of this sale, “BP Pipelines (Alaska) Inc.” (BPPA),
a subsidiary of BP, agreed to sell “substantially all of its Alaska assets,” including its
interest in the Trans-Alaska Pipeline System (TAPS), to Harvest Alaska, LLC (Harvest
1
Alaska).
Alaska law requires pipeline carriers to obtain a certificate from the RCA
2
before acquiring or operating pipeline facilities. The RCA may “attach terms and
conditions” to the required certificate if “necessary for the protection of the
environment and for the best interests of the oil or gas pipeline facility and the general
3 4
public.” The certificate cannot be transferred to a new owner without RCA approval.
1 Harvest Alaska is one of several affiliated companies that are wholly
owned and controlled, through subsidiaries, by Hildebrand Enterprises. Harvest
Alaska’s direct parent company is Harvest Midstream I, L.P. (Harvest Midstream). The
general partner of Harvest Midstream is Harvest Midstream Company (HMC). When
BPPA first sought approval to transfer its interest in TAPS to Harvest Alaska, Harvest
Alaska was a wholly owned, direct subsidiary of Hilcorp Alaska, LLC (Hilcorp Alaska),
another company owned and controlled, through subsidiaries, by Hildebrand
Enterprises. Hilcorp Alaska is a wholly owned, direct subsidiary of Hilcorp Energy I,
L.P. (HEI). The general partner of HEI is Hilcorp Energy Company (HEC). Hildebrand
Enterprises remains the ultimate owner of both Harvest Alaska (through Harvest
Midstream and HMC) and Hilcorp Alaska (through HEI and HEC).
2 AS 42.06.240(a) (requiring “a certificate of public convenience and
necessity” issued by the RCA).
3 AS 42.06.240(d).
4 AS 42.06.305(a); see also AS 42.06.305(b) (providing RCA’s decision
whether to approve transfer “shall be based on the best interest of the public”).
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----------------------- Page 4-----------------------
BPPA and Harvest Alaska applied to the RCA for approval to transfer
BPPA’s ownership interest in TAPS, its required certificate, and the operating authority
under that certificate to Harvest Alaska. In connection with that application, Harvest
Alaska and some of its affiliates filed certain required financial statements with the
5
RCA, together with a petition seeking confidential treatment of those statements under
6
AS 42.06.445(d) and 3 AAC 48.045.
B. The RCA Took Public Comment And Issued Order 6, Granting A
Petition For Confidential Treatment Of Financial Statements.
The RCA invited comments on the transfer application and the associated
7
petition for confidential treatment of financial statements. The RCA later said the
comments it received “were split on whether [the RCA] should approve the applications
as filed, or further scrutinize the transaction and consider imposing conditions on the
approval of the application.” The RCA noted that the “majority of the comments
5 See 3 Alaska Administrative Code (AAC) 48.625(a)(7)(B) (requiring
application for transfer of certificate of public convenience and necessity to include “the
applicants’ most recent audited financial statements for the two most recent fiscal years
preceding the date of the application”).
6 See AS 42.06.445(d) (allowing objection to public disclosure of
information and requiring RCA to withhold information “from public disclosure if the
information adversely affects the interest of the person making written objection and
disclosure is not required in the interest of the public”); 3 AAC 48.045(a) (describing
procedure for petitioning RCA to classify record as confidential, including “identifying
the record . . . and setting out good cause, including facts, reasons, or other grounds”
for confidential treatment); 3 AAC 48.045(b) (providing that “[g]ood cause to classify
a record as confidential under this section includes a showing that (1) disclosure of the
record to the public might competitively or financially disadvantage or harm the person
with confidentiality interest or might reveal a trade secret; and (2) the need for
confidentiality outweighs the public interest in disclosure.”).
7 The RCA also requested comment on a related motion that is not at issue
in this appeal: Harvest Alaska had moved for a waiver of the requirement, found in
3 AAC 48.625(a)(7)(B), to provide the RCA with audited financial statements,
explaining that it does not prepare audited financial statements. The RCA later granted
the motion.
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----------------------- Page 5-----------------------
addressed the petitions for confidential treatment of the financial statements” and that
8
“[m]any commenters urged denial of the petitions for confidential treatment.”
Valdez filed written comments asking the RCA to require Harvest Alaska
and its affiliates to provide certain financial and operational information and to make
that information publicly available. Valdez asserted that without this information, it
was “impossible to adequately assess whether transfer of operating authority from
BPPA to [Harvest Alaska] is in the best interest of Alaska or to identify appropriate
terms, conditions, and limitations required to ensure that it is.” Valdez asked the RCA
to set a deadline for petitions from interested parties to intervene in the transfer
proceeding and indicated it intended to file such a petition.
The RCA later requested additional documents from BPPA and Harvest
Alaska, including financial statements from Hilcorp Energy I, L.P. (HEI), the
immediate parent company of Hilcorp Alaska, an affiliate and former parent company
of Harvest Alaska; Hilcorp Energy Company (HEC), the general partner of HEI; and
BP Corporation North America, Inc., the indirect parent company of BPPA. The RCA
also requested the asset purchase and sale agreements between BPPA and Harvest
Alaska. BPPA and companies affiliated with Harvest Alaska petitioned for confidential
treatment of these documents under AS 42.06.445(d) and 3 AAC 48.045, as Harvest
Alaska had done when filing its financial statements and those of its other affiliates.
BPPA and Harvest Alaska also petitioned for confidential treatment of their purchase
and sale agreement.
The RCA scheduled a public input hearing, noting that additional public
process was “appropriate given the importance of the transaction and the level of
8 The RCA was referring here to both the petition at issue in this appeal and
similar petitions filed in two other RCA proceedings related to BPPA’s sale of assets to
Harvest Alaska.
-5- 7697
----------------------- Page 6-----------------------
interest by the public in this transaction.” At that hearing, Valdez urged the RCA to
deny the petitions for confidential treatment of the companies’ financial statements.
After the hearing, the RCA asked BPPA and Harvest Alaska whether any
of the financial statements they submitted were required to be filed with a federal
agency. The RCA explained that it was requesting this information because it
interpreted AS 42.06.445(c) to preclude the RCA from disclosing “documents related
to the finances of a pipeline carrier subject to federal jurisdiction” unless those
9
documents were required to be filed with a federal agency. BPPA and Harvest Alaska
responded that they were subject to federal jurisdiction but not required to file their
financial statements with a relevant federal agency,10 so AS 42.06.445(c) required the
RCA to keep their financial statements confidential.
Valdez submitted a comment to the RCA arguing that confidential
treatment of the financial statements was not justified under AS 42.06.445(c). The
RCA treated Valdez’s filing as an opposition to the petitions for confidential treatment
of the financial statements.11 In March 2020 the RCA issued Order 6, in which it
9 See AS 42.06.445(c) (“A document filed with the [RCA] that relates to
the finances or operations of a pipeline subject to federal jurisdiction and that is in
addition to or other than the copy of a document required to be filed with the appropriate
federal agency is open to inspection only by an appropriate officer or official of the
state for relevant purposes of the state.”).
10 BPPA and Harvest Alaska acknowledged that they had filed their financial
statements with the Federal Trade Commission and the Bureau of Land Management,
but they argued neither agency is “the appropriate federal agency” at issue in
AS 42.06.445(c).
11 See 3 AAC 48.045(c) (“A person who opposes a petition filed under (a)
of this section may file a statement of opposition to the petition within five days of the
filing of the petition with the commission.”).
-6- 7697
----------------------- Page 7-----------------------
concluded that AS 42.06.445(c) required it to treat the financial statements as
confidential information.12
C. Valdez Appealed Order 6 And Moved For Expedited Consideration,
But Took No Further Action In The Appeal Of Order 6 To The
Superior Court.
Valdez appealed Order 6 to the superior court in April 2020. The RCA
moved to dismiss Valdez’s appeal, arguing that Order 6 was not a final order subject to
appeal, but the court denied the motion to dismiss. Valdez filed a motion to expedite
consideration and a renewed motion for expedited consideration, but the court denied
both motions. In its order denying Valdez’s renewed motion for expedited
consideration, the court noted that because the RCA had filed the agency record, it was
“now up to Valdez to file its brief, after which the RCA will have 30 days to respond,”
and that “[o]nce briefing is complete, the court will rule on the matter as expeditiously
as possible.” Valdez took no further action in its appeal of Order 6 to the superior court.
D. The RCA Issued Order 17, Approving BPPA And Harvest Alaska’s
Transfer Application.
The RCA proceedings continued through 2020. In April the RCA issued
an order directing BPPA and Harvest Alaska to provide more information about their
operations, financial resources, and dismantlement, removal, and restoration
obligations. In response BPPA and Harvest Alaska petitioned for confidential treatment
under AS 42.06.445(c), AS 42.06.445(d), and 3 AAC 48.045 of some of the
information filed in their response. The RCA granted the request and held the filings
confidential. The RCA then requested additional information; BPPA and Harvest
Alaska responded and again requested confidential treatment of certain information.
The RCA granted that request as well. The RCA subsequently requested still more
12 Having decided AS 42.06.445(c) required confidential treatment, the
RCA concluded the requests by BPPA and companies affiliated with Harvest Alaska
for confidential treatment under 3 AAC 48.045 were moot.
-7- 7697
----------------------- Page 8-----------------------
information and, as before, granted the companies’ petitions for confidential treatment
of their financial statements.
Valdez took almost no action in the administrative proceedings after the
RCA issued Order 6. Valdez did not request access to subsequently filed financial
statements or object to later petitions for confidential treatment filed by Harvest Alaska
and some of its affiliates. Between March and December 2020, Valdez made only one
additional filing with the RCA: an informational filing notifying the RCA that Moody’s
Investors Service had downgraded HEI’s credit rating.
In December the RCA issued Order 17, approving BPPA and Harvest
Alaska’s transfer application. The RCA found that Harvest Alaska satisfied the
statutory requirements for holding the required certificate and “that it is in the best
interest of the public to approve transfer to Harvest Alaska.” BPPA and Harvest Alaska
closed the transaction later that month.
E. Valdez Appealed Order 17 To The Superior Court.
In 2021 Valdez appealed Order 17 to the superior court, arguing that, by
approving the transfer on a “secret record,” the RCA had infringed on the constitutional
and statutory rights of “citizens and interested persons” to access, oversee, and engage
with public administrative proceedings and records. Valdez asserted that the RCA had
infringed on free-speech rights by preventing the “[m]eaningful access to public
proceedings and records” that would have been necessary to provide informed
comments on the proposed transfer. Valdez also asserted that the RCA had infringed
on due process rights by “not designating parties, not holding an evidentiary hearing on
contested issues of fact, keeping the record secret, and basing Order 17 on conclusory
and unsupported factual findings and legal holdings.” Finally, Valdez argued that the
RCA “did not fully consider the public interest” when issuing Order 17.
-8- 7697
----------------------- Page 9-----------------------
F. The Superior Court Dismissed Both The Appeals Of Orders 6 And 17
And Awarded Attorney’s Fees To BPPA and Harvest Alaska.
The superior court consolidated Valdez’s appeals of Orders 6 and 17. The
RCA filed a motion to dismiss, as did Harvest Alaska and four of its affiliates: Hilcorp
Alaska, Harvest Midstream, HEI, and HEC. They argued Valdez lacked standing to
appeal, Valdez had failed to exhaust its administrative remedies, and the appeals were
moot because the larger transaction between BPPA and Harvest Alaska had already
closed. Valdez opposed the motions to dismiss.
The superior court dismissed Valdez’s appeals, concluding that: (1)
Valdez had standing to appeal Order 6 but did not have standing to appeal Order 17; (2)
Valdez was required to exhaust its administrative remedies before the RCA, but failed
to do so as to both Orders 6 and 17; and (3) the appeals of both Orders 6 and 17 were
moot because “[t]he transfer of BP’s interest in TAPS to [Harvest Alaska and its
affiliates] has long since been effectuated, and a judicial determination that the RCA
erred in any of its confidentiality rulings would not, without further court order, undo
that complex and final transaction.”
After the superior court dismissed Valdez’s appeal, BPPA and Harvest
Alaska moved for attorney’s fees. The court granted their motion in part.
Valdez now appeals the superior court’s order dismissing its appeals of
Orders 6 and 17 and awarding attorney’s fees to BPPA and Harvest Alaska.13
STANDARD OF REVIEW
Whether a party has standing to appeal an agency decision, whether an
issue is moot, and whether a party must exhaust administrative remedies are questions
13 We consolidated Valdez’s appeals of the decisions dismissing its merits
challenges to Orders 6 and 17 and awarding attorney’s fees to BPPA and Harvest
Alaska.
-9- 7697
----------------------- Page 10-----------------------
of law to which we apply our independent judgment.14 If exhaustion is required, we
“review for abuse of discretion a superior court’s decision regarding whether a party
has exhausted the administrative remedies available or whether the party’s failure to
exhaust remedies should be excused.”15 We reverse such a decision for abuse of
discretion only when we are “left with a definite and firm conviction, after reviewing
the whole record, that the trial court erred in its ruling.”16
DISCUSSION
The superior court’s order dismissing the appeals of Orders 6 and 17
applied the doctrines of standing, mootness, and exhaustion of remedies. We consider
application of each of these doctrines to the orders in question. Finally, we address the
award of attorney’s fees.
Because we conclude that Valdez was required to exhaust administrative
remedies with respect to Order 17 and failed to do so without a valid excuse, we affirm
the superior court’s dismissal of that appeal. We reverse the dismissal of the appeal of
Order 6 because we conclude Valdez had standing to bring that appeal, it exhausted
administrative remedies, and the appeal was not moot. Because we reverse one of the
decisions on which the superior court based its award of attorney’s fees, we vacate that
award. We remand this case for further proceedings.
14 City of Kenai v. State, Pub. Utils. Comm’n, 736 P.2d 760, 762 (Alaska
1987) (standing); Regul. Comm’n of Alaska v. Matanuska Elec. Ass’n , 436 P.3d 1015,
1027 (Alaska 2019) (mootness); State, Dep’t of Revenue v. Andrade, 23 P.3d 58, 65
(Alaska 2001) (exhaustion).
15 Andrade , 23 P.3d at 65.
16 State v. Beard, 960 P.2d 1, 5 (Alaska 1998) (quoting Eufemio v. Kodiak
Island Hosp. , 837 P.2d 95, 98 (Alaska 1992)).
-10- 7697
----------------------- Page 11-----------------------
A. Valdez Has Standing To Appeal Both Orders 6 And 17.
Standing “is a rule of judicial self-restraint based on the principle that
courts should not resolve abstract questions or issue advisory opinions.”17 We interpret
standing broadly, “favoring increased accessibility to judicial forums.”18 We use a
three-element test to decide whether a challenger to an agency proceeding has standing
to appeal an agency’s decision.19 To have standing, a challenger must (1) be directly
interested in the proceeding, (2) be factually aggrieved by the decision, and (3) have
participated in the proceeding.20
Valdez has a direct interest in the proceedings that resulted in the issuance
of Orders 6 and 17, it was factually aggrieved by the RCA’s decision to issue those
orders, and it participated sufficiently in the RCA’s decision-making process that led to
the orders. We therefore conclude that Valdez has standing to challenge both orders.21
17 Trs. for Alaska v. State , Dep’t of Nat. Res., 736 P.2d 324, 327 (Alaska
1987).
18 Id . (quoting Moore v. State , 553 P.2d 8, 23 (Alaska 1976), superseded by
statute on other grounds, Ch. 257, § 3, SLA 1976, as recognized in Sullivan v. Resisting
Env ’t Destruction on Indigenous Lands, 311 P.3d 625 (Alaska 2013)).
19 City of Kenai, 736 P.2d at 762-63 (Alaska 1987).
20 Id. at 762-63.
21 The appellees argue that Valdez failed to satisfy one or more of the
requirements for standing because Valdez did not “unambiguously and strenuously
object[]” to the “main issue” in the proceedings before the RCA or oppose the RCA’s
position on the “main subject” of those proceedings. The appellees also argue that
Valdez lacked standing because it failed to use the RCA’s protest procedures, to oppose
confidentiality petitions after Order 6, or otherwise “prompt[]” the RCA to consider
taking corrective actions the agency “was not required to take .” But our standing
analysis does not require a challenger to have opposed the agency’s position on any one
particular issue or by using any particular procedure. Participation by a directly
interested, factually aggrieved party that challenges the agency’s position on any
significant issue is sufficient to establish standing. To the extent that the appellees’
arguments speak instead to whether Valdez exhausted the reasonably available
administrative remedies, we address those arguments below.
-11- 7697
----------------------- Page 12-----------------------
1. Valdez had a direct interest in the proceedings.
Whether a litigant has standing to appeal an agency decision depends in
part on whether the litigant was “directly interested” in the proceedings that led to the
decision.22 In City of Kenai we concluded that Kenai established standing to appeal an
agency decision because it was “directly interested in the proceedings,” but we did not
further define a “direct interest.”23 The Pennsylvania Supreme Court has concluded
that a direct interest in an administrative proceeding may be established by showing a
“material” interest that is “discrete” to some party or class of parties.24 We adopt this
standard and conclude Valdez has demonstrated a direct interest in the administrative
proceedings that led to the issuance of Orders 6 and 17.
Valdez’s interest in the release of financial and operational information
held confidential by the RCA is material because that information is highly relevant to
Valdez’s ability to assess and comment on Harvest Alaska’s fitness to operate TAPS.
Valdez’s interest in this case is discrete because Valdez is uniquely
affected by the transfer of the TAPS operating authority . Its interest is not speculative
or generalized. In fact, it is difficult to imagine any individual or entity that has a greater
direct interest than Valdez in this transfer and in Harvest Alaska’s operational and
financial capacity to operate TAPS safely and effectively. Significant TAPS facilities
are located within Valdez, including the Valdez Marine Terminal, which is used by
tankers moving oil from TAPS. Transfer of the certificate under Order 17 therefore
implicated Valdez’s unique interests, including its interests in protecting its
22 City of Kenai, 736 P.2d at 762-63.
23 Id. at 760, 763 (acknowledging Kenai’s “legally recognized interest” at
stake in challenged proceeding).
24 See, e.g., Citizens Against Gambling Subsidies, Inc. v. Pa. Gaming
Control Bd., 916 A.2d 624, 628 (Pa. 2007) (“[T]he direct interest requirement retains
the function of differentiating material interests that are discrete to some person or
limited class of persons from more diffuse ones that are common among the citizenry.”).
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----------------------- Page 13-----------------------
environment and citizens by ensuring the safe operation of TAPS. As Valdez explained
in its public comments to the RCA:
The economic and environmental well-being of the citizens
of Valdez depends on safe, environmentally sound, and
effective TAPS operations. Accordingly, the financial and
organizational capacity of [Harvest Alaska] to properly
resource TAPS operations and to respond to oil spills and
other safety or environmental incidents is of critical
importance for the citizens of Valdez.
Finally, contrary to the RCA’s arguments, our test for standing does not
require a challenger to show “a ‘legally recognized interest’ that was . . . ‘factually
aggrieved’ by the agency decision.”25 We held in City of Kenai that showing an injury
to a “legally recognized interest” is sufficient to satisfy the first prong of the standing
analysis, but we did not hold that such a showing was necessary to establish standing.26
Whether Valdez has a legally recognized interest in public access to the financial
information the RCA has treated as confidential goes to the merits of this case, which
the superior court did not address and which are not before us in this appeal. Valdez is
directly interested in the proceedings that resulted in Order 6 and Order 17, even though
the legal recognition of its asserted interest remains undecided.
Because Valdez clearly asserted a material, discrete interest in the
administrative proceedings that led to the issuance of Orders 6 and 17, Valdez has
shown the direct interest in the proceedings that is necessary to establish standing.
2. Valdez was factually aggrieved by the RCA’s decisions.
To demonstrate factual aggrievement for purposes of standing to
challenge the RCA’s decisions, Valdez must show a personal stake in the proceedings
and an interest that was adversely affected by Orders 6 and 17. We apply an “interest-
injury analysis” to determine whether a party was aggrieved and thus has standing to
25 The RCA quotes City of Kenai, 736 P.2d at 760, 763.
26 Id. at 760, 762-63.
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appeal an agency decision.27 “To establish interest-injury standing, a litigant must
show: (1) ‘a sufficient personal stake in the outcome of the controversy ’ and (2) ‘an
interest which is adversely affected by the complained-of conduct.’ ”28
We agree with Valdez that it was factually aggrieved by Orders 6 and 17
because the RCA’s decisions to keep certain documents confidential and approve the
transfer of certificate and operating authority from BPPA to Harvest Alaska before
releasing those documents adversely affected Valdez’s ability to participate effectively
in the transfer proceedings and make informed comments on the proposed transfer.29
We are not persuaded by Appellees’ arguments that Valdez suffered no
actual harm or that its claims of future injury are too uncertain to establish factual
aggrievement.30 Valdez asserted it had an interest in evaluating Harvest Alaska’s
fitness as an operator based on information held confidential by the RCA. Orders 6
and 17 adversely affected those interests by precluding Valdez’s ability to participate
27 PLC, LLC v. State, Dep ’t of Nat. Res., 484 P.3d 572, 577-81 (Alaska
2021); see, e.g., City of Kenai, 736 P.2d at 761-63 (concluding Kenai was “factually
aggrieved” where administrative proceeding made Kenai liable for certain costs).
28 PLC, 484 P.3d at 578 (footnotes omitted) (quoting Keller v. French , 205
P.3d 299, 304 (Alaska 2009)).
29 Valdez also argues that RCA’s actions aggrieved its constitutional free
speech and due process rights to access information and participate in public
proceedings. Because we conclude that Valdez was factually aggrieved for other
reasons, we do not address Valdez’s alternative arguments.
30 BP argues that this case is similar to that underlying a North Dakota
Supreme Court decision, Shark v. U.S. W. Commc’ns, Inc., 545 N.W.2d 194 (N.D.
1996), in which that court held that the appellant did not have standing. But this analogy
is inapposite. The appellant in Shark was not a customer of the telephone exchange
being transferred to independent phone companies, and transfer approval was the
subject of the appeal; the possibility of harm was too remote and speculative and the
customer’s personal stake minimal. Id. at 199-200. The present case is different.
Unlike the appellant in Shark, Valdez articulates identifiable harms to its interests, the
consequences of which will affect the community of Valdez.
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as an informed commenter in the transfer proceedings. These agency actions hampered
Valdez’s ability to assess the fitness of Harvest Alaska to safely and responsibly operate
TAPS and Valdez’s ability to raise any resulting concerns with the RCA. Thus Valdez
demonstrated it was “factually aggrieved” by the agency decisions it seeks to appeal.31
3. Valdez’s participation in the proceedings was sufficient to
establish standing.
Valdez is correct that its participation in the administrative proceedings
“equaled or exceeded” the appellant’s participation in the case in which we established
the requirements for standing to appeal an agency decision.32 In City of Kenai we held
that a challenger had standing to appeal an agency’s decision after submitting a single
written comment, even though the challenger declined to intervene as a formal party
and did not participate in a subsequent public hearing.33 By contrast, in this case Valdez
stressed its opposition by submitting two substantive written comments, requesting an
evidentiary hearing, and participating in the public input hearing.
Valdez participated to a significantly greater degree than the appellant
with standing in City of Kenai. Valdez’s participation was sufficient to give the RCA
actual notice of Valdez’s specific concerns, as shown by the fact that Orders 6 and 17
addressed Valdez’s concerns at length.34 That participation fully served the purposes
of the “participation” requirement and was sufficient to establish standing.
We disagree with BPPA’s argument that Valdez’s participation in the
proceedings was insufficient to establish standing because the issues Valdez raised were
collateral or unrelated to Order 17. While Valdez’s participation in the proceedings
31 See City of Kenai, 736 P.2d at 762-63.
32 See id. at 760-63.
33 Id. at 761, 763.
34 The RCA characterized Valdez’s comments as “an opposition to
Petitioner’s supplemented petitions for confidential treatment.”
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focused on access to the applicants’ financial statements, Valdez sought access to that
information, at least in part, for the purpose of commenting on the transfer of the
certificate and the fitness of the proposed transferee — the ultimate issues at stake in
Order 17. By issuing Order 17, the RCA ensured Valdez would not have the
opportunity to make comments based on the contents of the financial statements of
Harvest Alaska and its affiliates before the transfer was approved. Valdez’s
participation was thus sufficiently related to Order 17 to establish Valdez’s standing to
challenge that order.
We disagree with the RCA’s suggestion that “nothing distinguishes
Valdez from every other commenter with respect to standing.” The RCA itself treated
Valdez’s comments as a formal “opposition” to the petitions for confidential treatment
of certain financial statements and addressed Valdez’s comments at length in Orders 6
and 17.
Valdez sufficiently participated in the administrative proceedings to
satisfy the third and final standing requirement. Because Valdez satisfied all three
standing requirements to challenge an administrative decision,35 we conclude Valdez
had standing to appeal both Orders 6 and 17.
B. Valdez’s Appeals Of Orders 6 And 17 Are Not Moot.
Our mootness doctrine is a prudential rule that precludes courts from
hearing cases in which they lack the power to grant meaningful relief.36 “A claim is
moot if it is no longer a present, live controversy, and the party bringing the action
would not be entitled to relief, even if it prevails.”37 “In order to be an ‘actual
35 See City of Kenai, 736 P.2d. at 762-63.
36 See Regul. Comm’n of Alaska v. Matanuska Elec. Ass’n , 436 P.3d 1015,
1027 (Alaska 2019).
37 Fairbanks Fire Fighters Ass’n, Loc. 1324 v. City of Fairbanks, 48 P.3d
1165, 1167 (Alaska 2002) (citations omitted).
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controversy,’ the controversy ‘must be a real and substantial controversy admitting of
specific relief through a decree of a conclusive character, as distinguished from an
opinion advising what the law would be upon a hypothetical state of facts.’”38 In other
words, “[t]he controversy must be definite and concrete, touching the legal relations of
parties having adverse legal interests,”39 and a court must be able to provide some form
of relief.40
In this case, the parties’ arguments about mootness turn on whether the
issuance of Order 17 and the closing of the transaction between BPPA and Harvest
Alaska moot Valdez’s arguments about its right to access the financial statements that
the RCA designated as confidential. The appellees argue no live controversy remains
now that the transaction between BPPA and Harvest Alaska has been completed; they
assert there is no remaining reason to provide access to the financial statements of
Harvest Alaska and its affiliates. Valdez responds that it has an ongoing interest in the
RCA’s interpretation of the applicable confidentiality procedures and in disclosure of
the financial statements.
We conclude that Valdez’s appeals are not moot. Both the appeals of
Orders 6 and 17 present live controversies susceptible to judicial resolution , including
disputes about the interpretation of AS 42.06.445(c) and the scope of Valdez’s right to
access certain financial statements relevant to Valdez’s interests in future proceedings
before the RCA.
38 Alaska Jud. Council v. Kruse, 331 P.3d 375, 379 (Alaska 2014) (quoting
Jefferson v. Asplund , 458 P.2d 995, 999 (Alaska 1969)).
39 Jefferson , 458 P.2d at 999 (quoting Aetna Life Ins. Co. of Hartford v.
Haworth , 300 U.S. 227, 240-41 (1937)).
40 Alaska Cmty. Action on Toxics v. Hartig , 321 P.3d 360, 366 (Alaska 2014)
(“A claim is moot . . . if it is impossible to provide the relief sought.” (emphasis added)).
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Alaska regulations require certificate holders to make their premises and
records available for inspection by the RCA’s commissioners or their representatives .41
Accordingly, Order 17 requires Harvest Alaska to make ongoing disclosures to the
RCA, and the RCA’s docket in this matter remains open. The RCA also retains the
authority to “amend, modify, suspend, or revoke” the certificate authorizing Harvest
Alaska to operate TAPS.42 The RCA could take any of these actions upon its own
motion or upon public complaint.43 For example, a complainant might raise new issues
to the RCA’s attention if given the opportunity to review the financial and operational
information currently treated as confidential under Order 6. For these reasons, neither
the issuance of Order 17 nor the closing of the transaction between BPPA and Harvest
Alaska moots Valdez’s interest in accessing information that could inform its
participation in future RCA proceedings.
The disputes at issue in the appeals of Orders 6 and 17 are susceptible to
judicial resolution. We reject the appellees’ arguments that a superior court decision
evaluating the RCA’s interpretation of AS 42.06.445(c) would be an “advisory
opinion” providing only a “collateral” remedy without “practical effect” or that the
relief Valdez seeks would only allow it to make “abstract” comments that would be
“untethered from any decision actually pending at the RCA.” As explained above, a
superior court decision reversing the RCA’s interpretation of AS 42.06.445(c) could
result in public disclosure of financial and operational information the RCA is currently
41 3 AAC 48.050(b) (“A member of the commission advisory staff and
any . . . authorized representative of the commission must . . . be allowed access to the
premises of any . . . pipeline carrier . . . to investigate, inspect, examine, evaluate, or
analyze its rates, services, facilities, accounts, books, records, contracts, and operating
practices . . . or to implement . . . any jurisdictional function of the commission.”).
42 See AS 42.06.300.
43 See id. (providing for RCA action “[u]pon complaint or upon its own
motion”).
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holding confidential under Order 6. Access to that information could inform future
public participation in administrative proceedings before the RCA, including
proceedings to modify, add conditions to, or revoke the certificate authorizing Harvest
Alaska to operate TAPS.44
We are not persuaded by the RCA’s arguments that there is no appropriate
judicial remedy in this case because the relief Valdez seeks would “upend the RCA’s
confidentiality framework” or because allowing Valdez’s appeal to proceed “creates
uncertainty” about confidentiality for other energy companies in Alaska. While we do
not decide the merits of the RCA’s interpretation of AS 42.06.445(c) today, if that issue
were before us and we were persuaded that the RCA’s interpretation was incorrect, we
would correct such a mistake. Neither we nor the superior court will avoid correcting
a mistake of law merely because the correction could have a disruptive effect. And the
possibility that judicial intervention could be disruptive does not mean a case is no
longer susceptible to judicial resolution.
Similarly, we are not persuaded that Valdez’s appeal is moot because it
did not seek a stay of Order 17 to prevent the transaction from closing. BPPA, citing
American Grain Ass ’n v. Lee- Vac, Ltd.45 and Thibaut v. Ourso,46 argues that mootness
prevents consideration of an appeal where the appellant failed to seek a stay of the
challenged decision, leaving the appellate court “powerless to grant the appellant’s
requested relief.” However, Valdez’s failure to seek a stay does not render its appeal
moot because a court would be able to provide meaningful relief to Valdez even in the
absence of a stay.
44 See AS 42.06.300 (“Upon complaint or upon its own motion the
commission, after due notice and hearing and for good cause shown, may amend,
modify, suspend, or revoke a certificate, in whole or in part.”).
45 630 F.2d 245 (5th Cir. 1980).
46 705 F.2d 118 (5th Cir. 1983).
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This case is unlike Alaska Spine Institute Surgery Center, LLC v. State,
Department of Health & Social Services,47 on which the appellees rely for the
proposition that challenges to certain agency decisions become moot once an
underlying transaction is complete . In Alaska Spine Institute , we held that a challenge
to an agency’s decision to authorize the construction of a building was moot once the
building was complete.48 But unlike the challenger in Alaska Spine Institute , Valdez is
not seeking to undo an entire transaction that was subject to regulatory approval.49
Valdez instead challenges only “portions of” Orders 6 and 17. Unlike the agency action
in Alaska Spine Institute , the orders Valdez challenges did more than merely authorize
a transaction;50 the orders also ruled on the confidentiality of financial statements on
which the RCA relied in making its decision and set forward-looking conditions on
Harvest Alaska’s authority to operate TAPS. Finally, unlike the challenger in Alaska
Spine Institute, Valdez could be entitled to relief if its challenge is successful.51 Alaska
Spine Institute does not control this case, and Valdez’s appeals of Orders 6 and 17 are
not moot.
C. Valdez Exhausted Administrative Remedies With Respect To
Order 6, But Not With Respect To Order 17.
The exhaustion-of-remedies doctrine limits the availability of judicial
relief “until the available administrative remedies have been exhausted.”52 “[T]he basic
purpose of the exhaustion doctrine is to allow an administrative agency to perform
functions within its special competence — to make a factual record, to apply its
47 266 P.3d 1043 (Alaska 2011).
48 Id. at 1044-45.
49 Cf. id. at 1044.
50 Cf. id. at 1043-44.
51 Cf. id. at 1044.
52 Winterrowd v. State, Dep’t of Admin., Div. of Motor Vehicles, 288 P.3d
446, 450 (Alaska 2012) (quoting Eidelson v. Archer, 645 P.2d 171, 176 (Alaska 1982)).
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expertise, and to correct its own errors so as to moot judicial controversies.”53 We apply
the doctrine by asking (1) whether exhaustion of remedies is required,54 (2) whether the
complainant exhausted those remedies,55 and (3) whether any failure to do so is excused
because exhaustion would be “futile or severely impractical.”56
If an appellant fails to exhaust reasonably available administrative
remedies, that failure may nonetheless be excused if further engagement with the
agency would have been futile. Exhaustion is futile if “the administrative remedy is
inadequate” or if there is “certainty of an adverse decision.”57 But we have refused to
excuse exhaustion even if an adverse decision is “highly possible” rather than certain.58
1. Valdez was required to exhaust administrative remedies.
Exhaustion is required when a statute or regulation provides for
administrative review or remedies.59 When a statute or regulation is silent on the need
for exhaustion of administrative remedies, an exhaustion requirement may be
“judicially created.”60 “The requirement of exhaustion of administrative remedies
53 Standard Alaska Prod. Co. v. State, Dep’t of Revenue , 773 P.2d 201, 206
(Alaska 1989) (quoting Ben Lomond, Inc. v. Mun. of Anchorage, 761 P.2d 119, 121-22
(Alaska 1988)).
54 State, Dep’t of Revenue v. Andrade, 23 P.3d 58, 66 (Alaska 2001).
55 Id.
56 Matanuska Elec. Ass’n v. Chugach Elec. Ass’n , 99 P.3d 553, 560-61
(Alaska 2004).
57 Bruns v. Mun. of Anchorage, Anchorage Water & Wastewater Util., 32
P.3d 362, 371 (Alaska 2001) (quoting Eidelson, 645 P.2d at 181); Standard Alaska
Prod. Co., 773 P.2d at 209.
58 Standard Alaska Prod. Co., 773 P.2d at 209.
59 Winterrowd v. State, Dep’t of Admin., Div. of Motor Vehicles, 288 P.3d
446, 450 (Alaska 2012).
60 Standard Alaska Prod. Co., 773 P.2d at 206 (“A dismissal may be
predicated on a party’s failure to comply with exhaustion requirements that have been
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‘turns on an assessment of the benefits obtained through affording an agency an
opportunity to review the particular action in dispute,’ ”61 balanced against “the
complainant’s interest in the availability of adequate redress for his or her grievances.”62
The relevant regulations governing RCA proceedings do not require any
particular grievance procedure to be pursued before a complainant may seek judicial
review.63 The statute providing for judicial review of final orders by the RCA likewise
does not require exhaustion of administrative remedies.64 However, we conclude that
a judicially recognized exhaustion requirement in proceedings before the RCA seeking
disclosure of confidential information or opposing the transfer of a certificate furthers
the purposes of the exhaustion-of-remedies doctrine.
Several statutes delegate to the RCA the authority to prescribe regulations
for practice and procedure.65 We hold that interested parties must exhaust
administrative remedies afforded by the RCA before seeking judicial review of a
decision by the RCA denying a request for disclosure of confidential information or
approving the transfer of a certificate. Requiring interested parties to exhaust the
RCA’s procedures before appealing to the superior court under these circumstances
serves the purposes of the exhaustion-of-remedies doctrine by allowing the RCA to
‘judicially created,’ though not mandated by statute.” (citing Reid v. Engen, 765 F.2d
1457, 1462 (9th Cir. 1985))); Reid, 765 F.2d at 1462 (“Only if there is no statutory
exhaustion requirement may we exercise our discretion to apply judicially-developed
exhaustion rules.”).
61 State, Dep’t of Revenue v. Andrade , 23 P.3d 58, 66 (Alaska 2001) (quoting
Mt. Juneau Enters., Inc. v. City & Borough of Juneau , 923 P.2d 768, 776 (Alaska
1996)).
62 Kleven v. Yukon-Koyukuk Sch. Dist., 853 P.2d 518, 524 (Alaska 1993).
63 See 3 AAC 48.010-.190 (absence).
64 See AS 42.06.480.
65 See, e.g., AS 42.05.151; AS 42.06.140(a)(5).
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“make a factual record, to apply its expertise, and to correct its own errors so as to moot
judicial controversies.” 66 We conclude Valdez was required to exhaust administrative
remedies before appealing Orders 6 and 17.
2. Valdez exhausted administrative remedies with respect to
Order 6.
We conclude that Valdez satisfied the exhaustion-of-remedies
requirement with respect to Order 6 because it participated in the relevant proceedings
before the RCA and made its position clear on the record.67 Valdez unambiguously
requested that the RCA make the applicants’ financial statements available to the
public. Valdez submitted detailed comments that placed the RCA on notice of its
concerns. These actions fulfilled the purposes of the exhaustion requirement, including
the creation of a factual record, allowing the RCA to exercise its expertise, and giving
the agency the opportunity to correct its own errors without judicial involvement.68 No
further agency proceedings are necessary to make the RCA’s decision on Valdez’s
request final and fit for review by the superior court. Valdez’s participation was
therefore sufficient to satisfy the exhaustion-of-remedies requirement with respect to
Order 6, and we conclude it was an abuse of discretion to dismiss Valdez’s appeal of
Order 6 for failure to exhaust administrative remedies.
The superior court found there were six administrative remedies that
Valdez failed to pursue before filing its appeal of Order 6. But we conclude these
remedies were either not reasonably available or not required under the circumstances.
66 Standard Alaska Prod. Co. v. State, Dep’t of Revenue , 773 P.2d 201, 206
(Alaska 1989) (quoting Ben Lomond, Inc. v. Mun. of Anchorage, 761 P.2d 119, 121-22
(Alaska 1988)).
67 Accord Safir v. Kreps, 551 F.2d 447, 452 (D.C. Cir. 1977) (holding, where
no exhaustion requirement was codified in statute or regulation, “the obligation to
exhaust is discharged” so long as someone “put [the appellant’s] objection on the
record”).
68 See Standard Alaska Prod. Co., 773 P.2d at 206.
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Because we are “left with a definite and firm conviction, after reviewing the whole
record, that the trial court erred in its ruling” that Valdez failed to exhaust the available
administrative remedies,69 we conclude that ruling was an abuse of discretion.
The superior court observed that Valdez did not intervene in the
administrative proceeding,70 file a protest,71 file a competing application,72 oppose the
confidential treatment of any documents other than those at issue in Order 6, “utilize or
exhaust the RCA’s procedures to access confidential documents,”73 or “provide the
RCA with any other meaningful indication that it believed the agency’s procedures
receiving public input were deficient .”74 The superior court explained that it did not
“find that Valdez was required to have exhausted each procedure described.” But it
held that Valdez’s “failure to take any of these actions is fatal to its position.” The
appellees likewise argue that Valdez failed to exhaust its administrative remedies
because it did not pursue any of these procedures. We disagree.
Under the circumstances of this case, a formal intervention was not a
reasonably available remedy. The RCA’s regulations do not allow interventions in
69 See State v. Beard, 960 P.2d 1, 5 (Alaska 1998) (quoting Eufemio v.
Kodiak Island Hosp. , 837 P.2d 95, 98 (Alaska 1992)).
70 See 3 AAC 48.110(a).
71 See 3 AAC 48.654(b), (e).
72 3 AAC 48.645(c) (“If the commission finds that two or more complete
mutually exclusive applications have been timely filed, a public hearing will be held to
afford an opportunity for examination of the applications on a comparative basis.”).
73 See 3 AAC 48.049.
74 While the RCA mentions the superior court’s finding that Valdez did not
“provide the RCA with . . . meaningful indication that it believed the agency’s
procedures for receiving public input were deficient,” none of the appellees argues that
the exhaustion-of-remedies doctrine requires Valdez to provide such an indication in
the absence of other reasonably available administrative procedures. We therefore do
not address this issue.
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“nonhearing matters.”75 Accordingly, because the RCA did not hold a hearing on the
petitions for confidential treatment, Valdez never had the opportunity to file a petition
to intervene. Intervention was therefore not a reasonably available remedy Valdez was
required to exhaust before filing an appeal of Order 6.
Similarly, filing a protest before the RCA was not a reasonably available
remedy. The protest deadline passed nearly two months before the RCA first raised the
possibility of using AS 42.06.445(c) as grounds for confidential treatment of the
financial statements at issue. The RCA ’s first confidentiality rulings based on
AS 42.06.445(c) came another month later in Order 6. BPPA correctly observes that
“Valdez could have attempted to file a protest . . . together with a motion to allow a
late-filed protest under 3 AAC 48.805.” While we accept BPPA’s premise, we decline
to hold that a remedy is reasonably available when pursuing that remedy would require
a party first to seek discretionary relief from an administrative deadline. Under the
circumstances of this case, filing a protest was not a reasonably available remedy for
Valdez.
Filing a competing application to operate TAPS was not a remedy that
was reasonably available to Valdez. Valdez is a municipality, not a pipeline operator.
Filing a competing application was therefore not a remedy Valdez was required to
exhaust before filing an appeal.76
75 3 AAC 48.110(a) (“Petitions for permission to intervene as a party will be
considered only in those cases that are to be decided upon an evidentiary record after
notice and hearing . . . . The commission does not grant formal intervention, as such,
in nonhearing matters . . . .”).
76 See Matanuska Elec. Ass’n v. Chugach Elec. Ass’n, 99 P.3d 553, 560-61
(Alaska 2004) (holding exhaustion “may be excused where the attempt to exhaust
administrative remedies is futile or severely impractical” (emphasis added)).
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Finally, 3 AAC 48.049(b) did not require Valdez to file a written motion
requesting access to the confidential documents at issue in Order 677 or to oppose
petitions to designate other documents (filed after Order 6 but before Order 17) as
confidential before appealing Order 6 to the superior court. The failure to file a written
motion is not fatal to Valdez’s appeal because Valdez’s written and oral comments
opposing confidential treatment of the applicants’ financial statements satisfied all of
the purposes of the exhaustion-of-remedies doctrine with respect to Order 6.
Duplicating that effort by filing a written motion pursuant to 3 AAC 48.049(b) would
have had no practical effect. Furthermore, requesting direct, non-public access to the
confidential financial statements or opposing confidential treatment of other documents
would not have given Valdez the relief it sought, which was public access to the
financial statements at issue in Order 6.
Valdez exhausted the available administrative remedies before appealing
Order 6 and it was an abuse of discretion to conclude otherwise. We therefore reverse
the decision dismissing Valdez’s appeal of Order 6 on these grounds.
3. Valdez did not exhaust administrative remedies with respect to
Order 17; its failure is not excused.
As we understand Valdez’s arguments, Valdez is appealing Order 17
primarily to challenge the procedures the RCA followed when issuing Order 17, not to
seek reversal of Order 17. Although Order 17 is the RCA’s approval of the transfer of
BPPA’s certificate and operating authority to Harvest Alaska, Valdez insisted at oral
argument that it “was not protesting the transfer of the certificate” and that it was “not
trying to block the transaction” between BPPA and Harvest Alaska. Instead, Valdez
appears to be appealing Order 17 primarily to obtain public disclosure of documents
77 3 AAC 48.049(b) (“A person may file a written motion requesting access
to a record that the commission has designated as confidential.”); see also
3 AAC 48.049(d) (describing procedure for deciding whether to grant or deny access).
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filed and designated as confidential after the RCA issued Order 6 but before it issued
78
Order 17. We conclude that Valdez failed to exhaust administrative remedies with
respect to either form of relief in its appeal of Order 17.
a. Valdez did not exhaust available remedies for opposing
the transfer under Order 17; its failure is not excused.
If Valdez intended to oppose the transfer of BPPA’s certificate and
operating authority to Harvest Alaska, it failed to exhaust administrative remedies
required to object to the transfer. In contrast to Valdez’s written comments placing the
RCA on notice of its concerns about confidential treatment of the applicants’ financial
statements leading up to Order 6, Valdez’s scant participation in the proceedings
leading up to the issuance of Order 17 did not give the RCA an opportunity to address
Valdez’s objections by developing a factual record, applying its expertise, or correcting
any errors it may have made.79 To exhaust the available administrative remedies for an
objection to the transfer, Valdez would have needed to petition to intervene and file a
protest against the transfer of the certificate.80 It did neither. Valdez has not shown that
the available administrative remedies for challenging the transfer at issue in Order 17
were inadequate or that the RCA was certain to reject its arguments if it raised them
properly.81 Accordingly, Valdez’s failure to exhaust the available administrative
remedies to object to the transfer at issue in Order 17 is not excused.
78 For purposes of the exhaustion-of-remedies analysis, we assume without
deciding that it would be possible for the RCA to provide public disclosure of these
documents without vacating or reversing its decision approving the transfer of BPPA’s
certificate and operating authority to Harvest Alaska.
79 See Standard Alaska Prod. Co. v. State, Dep’t of Revenue, 773 P.2d 201,
206 (Alaska 1989).
80 See 3 AAC 48.110 (intervention); 3 AAC 48.654(b) (protest).
81 Cf. Eidelson v. Archer, 645 P.2d 171, 181 (Alaska 1982) (excusing failure
to exhaust administrative remedies where pursuing those remedies “would be futile due
to the certainty of an adverse decision”) .
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b. Valdez did not exhaust available remedies for opposing
confidential treatment of documents filed after the RCA
issued Order 6; its failure is not excused.
Valdez participated in the RCA proceedings leading up to Order 6, but
after the RCA issued Order 6, Valdez failed to engage meaningfully in the
administrative process. It made no further requests for access to confidential
information following Order 6, and did not oppose any further rulings or petitions for
confidentiality. Valdez was required to engage in the administrative proceedings with
respect to this later-filed information before appealing to the superior court in order to
give the RCA appropriate opportunities “to perform functions within its special
competence — to make a factual record, to apply its expertise, and to correct its own
errors so as to moot judicial controversies.”82 Yet Valdez failed to do so, and it therefore
failed to exhaust the available administrative remedies with respect to rulings on
confidentiality rendered by the RCA after Order 6.
Valdez’s failure to exhaust the available administrative procedures is not
excused because an adverse decision was not certain. Valdez argues it should be
excused from opposing confidential treatment of later-filed documents because it had
already opposed the interpretation of AS 42.06.445(c) adopted in Order 6, which
became the basis for similar rulings on later confidentiality petitions. Valdez argues it
should not have been required to make identical arguments once the RCA had ruled on
that interpretive issue because raising such arguments would have been futile “due to
the certainty of an adverse decision.” Valdez similarly argues that requesting access to
confidential documents under 3 AAC 48.049 would have been futile after the RCA
issued Order 6.
82 See Standard Alaska Prod. Co. 773 P.2d at 206 (quoting Ben Lomond,
Inc. v. Mun. of Anchorage, 761 P.2d 119, 121-22 (Alaska 1988)).
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Valdez has not convinced us that opposing the later-filed confidentiality
petitions would have been futile. The RCA could have concluded that Valdez’s
arguments applied differently to the later-filed documents than to those at issue in
Order 6. The record does not suggest the RCA mechanically relied on Order 6 to grant
subsequent confidentiality petitions without deliberation. On the contrary, the RCA
extended its deadline for ruling on one of the later-filed petitions for confidential
treatment, citing its need to review a “voluminous filing.” The RCA also relied on
3 AAC 48.045, not the interpretation of AS 42.06.445(c) it had relied on in Order 6, to
treat one of the later-filed documents as confidential. Because the RCA could have
decided to deny a confidentiality petition filed after Order 6 but before Order 17, filing
such an opposition would not have been futile.83
Valdez has not shown that the available administrative remedies for
challenging the RCA’s confidentiality decisions made after the issuance of Order 6
were inadequate or that the RCA was certain to reject its arguments.84 Accordingly,
Valdez’s failure to exhaust the available administrative remedies for challenging the
RCA’s confidentiality decisions made after the issuance of Order 6 is not excused.
Because Valdez was required to exhaust the available administrative
remedies before filing its Order 17 appeal and failed to do so without a valid excuse,
85
we affirm the superior court’s order dismissing Valdez’s appeal of Order 17.
83 Cf. id. at 209 (concluding exhaustion was not futile where an adverse
decision was “highly possible” rather than certain).
84 Cf. Eidelson , 645 P.2d at 181 (excusing failure to exhaust administrative
remedies where pursuing those remedies “would be futile due to the certainty of an
adverse decision”).
85 See Winterrowd v. State, Dep’t of Admin., Div. of Motor Vehicles , 288
P.3d 446, 452 (Alaska 2012) (affirming dismissal for failure to exhaust).
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D. We Vacate The Award Of Attorney’s Fees.
Because we reverse the order dismissing Valdez’s appeal of Order 6, we
decline to address whether Valdez is a constitutional claimant exempt from paying
attorney’s fees arising from its appeal. Instead, we vacate the award of attorney’s fees
and remand for further proceedings to determine which parties, if any, are entitled to
attorney’s fees in the consolidated appeal.86
CONCLUSION
We AFFIRM the superior court’s dismissal of Valdez’s appeal of
Order 17. We REVERSE the dismissal of Valdez’s appeal of Order 6. We VACATE
the award of attorney’s fees. We REMAND for further proceedings consistent with
this opinion.
86 See Alaska R. App. P. 508(e)(4) (allowing award of “20% of . . . actual
attorney’s fees” to “the prevailing party” in certain appeals, subject to exceptions).
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