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Copeland v. Ballard

Supreme Court of Alaska

June 26, 2009

Tom COPELAND and Riki Ott, Appellants,
v.
Ernesta BALLARD, Commissioner, Department of Environmental Conservation, State of Alaska; British Petroleum Oil Shipping Co.; SeaRiver Maritime, Inc.; Alyeska Pipeline Service Co.; Tom Lakosh, Appellees.

Page 1198

[Copyrighted Material Omitted]

Page 1199

Nancy S. Wainwright, Law Offices of Nancy S. Wainwright, Anchorage, for Appellants.

Jennifer L. Schorr, Assistant Attorney General, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee State of Alaska.

Kevin Callahan, Patton Boggs, LLP, Anchorage, for Appellee SeaRiver Maritime, Inc.

Michael W. Seville, Burr, Pease & Kurtz, Anchorage, for Appellees BP Oil Shipping Co. USA, Alaska Tanker Co., LLC, Polar Tankers, Inc., and Tesoro Alaska Shipping Co., Inc.

Before : FABE, Chief Justice, MATTHEWS, EASTAUGH, CARPENETI, and WINFREE, Justices.

Page 1200

OPINION

WINFREE, Justice.

I. INTRODUCTION

Two Cordova residents intervened in the administrative appeal of an agency decision approving contingency plans for various oil shipping entities, but then were dismissed from the proceedings for failure to pay record costs. The intervenors appealed to the superior court, which affirmed the agency decision. Although the underlying proceedings have been completed and the appeal to this court is technically moot, due process questions raised by the intervenors fall within the public interest exception to mootness, and we address those issues.

We generally, but with some caveats, affirm the superior court's decision to uphold the agency's: (1) interpretation of its regulation allowing it to charge a copying fee for the initial production of the record; (2) interpretation of the term " pro rata" for purposes of charging for the compilation of the record; (3) advance payment requirement; and (4) timeliness in producing the record. But we reverse in part the decision of the superior court and hold that the agency's: (1) practice of denying litigants access to the agency record prior to its certification violates due process; and (2) dismissal of the intervenors from the administrative appeal was an abuse of agency discretion.

II. FACTS AND PROCEEDINGS

Companies operating in many facets of the oil industry-shipment, exploration, production, or transfer-must submit oil discharge prevention and contingency plans to the State of Alaska, Department of Environmental Conservation (DEC) on a regular basis.[1] Contingency plans are " plans to prevent, contain, and clean up oil spills from oil tank vessels, offshore oil exploration or production facilities, and large oil terminal facilities." [2] DEC reviews and then approves contingency plans if they are consistent with statutory and regulatory requirements.[3]

Tom Lakosh appealed DEC's approvals of three separate contingency plans for oil tankers and shipping entities operating in and around Valdez; the three appeals were consolidated into a single proceeding. Tom Copeland and Riki Ott moved to intervene in Lakosh's appeal of DEC's approval of the Trans-Alaska Pipeline System tanker discharge prevention and contingency plans ("TAPS Tanker C-Plan") but did not move to intervene in Lakosh's other two appeals of contingency plan approvals.[4] In June 2003 DEC Commissioner Ernesta Ballard granted the intervention motion, stating that Copeland and Ott " are now considered parties to the proceeding I granted to Mr. Lakosh on February 21, 2003," and that Lakosh, Copeland, and Ott each would be responsible for paying one-third of the record costs.

Copeland, Ott, Lakosh, and DEC negotiated the preparation and certification of the administrative record over the next nine months. DEC provided several different cost estimates for record preparation, ranging from $1,270 to $2,843. Negotiations culminated in a January 2004 order from the Commissioner that Copeland, Ott, and Lakosh must pay the record costs (choosing one of several options) by February 13, 2004, or face dismissal.

On February 10 Lakosh submitted payment for his share of the record costs. On February 12 Copeland and Ott submitted a letter to the Commissioner with questions and objections to the record preparation process. The Commissioner did not respond. On February 20 DEC's counsel gave ...


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