ALASKA COMMUNITY ACTION ON TOXICS, ALASKA SURVIVAL, and COOK INLETKEEPER, Appellants/Cross-Appellees,
LAWRENCE HARTIG, COMMISSIONER OF THE ALASKA DEPARTMENT OF ENVIRONMENTAL CONSERVATION (in his official capacity), and ALASKA DEPARTMENT OF ENVIRONMENTAL CONSERVATION, DIVISION OF ENVIRONMENTAL HEALTH, and ALASKA RAILROAD CORPORATION, Appellees/Cross-Appellants
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Kari Kristiansen, Judge. Superior Court No. 3PA-11-01604 CI.
Paul H. Bratton, Law Offices of Paul H. Bratton, Talkeetna, for Appellants/Cross-Appellees.
Laura Fox, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellees/Cross-Appellants. Lawrence Hartig, Commissioner, and the Alaska Department of Environmental Conservation, Division of Environmental Health.
Brian J. Stibitz, Reeves Amodio LLC, Anchorage, for Appellee/Cross-Appellant Alaska Railroad Corporation.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
This appeal involves the issuance of a permit by the State Department of Environmental Conservation, Division of Environmental Health (the Department), to the Alaska Railroad Corporation for the use of herbicides to control vegetation along a railroad right-of-way. Two public interest organizations, Alaska Community Action on Toxics (ACAT) and Alaska Survival, contend that the Department's issuance of the permit violated due process and the public notice requirement of AS 46.03.320; that the Department abused its discretion in accepting the permit application as complete and in denying standing and intervenor status to a third organization, Cook Inletkeeper; and that ACAT and Alaska Survival should not have been ordered to pay the costs of preparing the administrative record on appeal. The Department and the Railroad cross-appeal on the issue of attorney's fees, contesting the superior court's conclusion that ACAT and Alaska Survival were exempt from fees under AS 09.60.010(c) as constitutional litigants. We conclude that the challenges to the permit are moot due to its expiration and changes in the governing regulatory scheme. We affirm the agency's decisions regarding costs; the cross-appeals on attorney's fees are withdrawn by agreement.
II. FACTS AND PROCEEDINGS
Federal safety regulations require that the Alaska Railroad Corporation control the
growth of vegetation along its tracks. In 2009, when the Railroad applied for the permit involved in this case, it had not used herbicides to control the growth of vegetation since 1983; it had used non-chemical methods such as " mechanized rail-based brush cutters, off-rail hydro axing, [and] wayside manual cutting," and it had experimented with other alternatives " such as steam, infrared, hot water and burning."  In April 2009, however, the Federal Railroad Administration (FRA) expressed concern about the condition of the Railroad's tracks, especially vegetation growing between the rails that these alternative abatement methods had failed to control. The FRA cited " 947 defects and 74 violations for vegetation safety issues" since 1997, observed that track conditions " continue to get worse," and warned that " civil penalties may be assessed at the maximum level of $16,000 per violation." The FRA further advised that other possible enforcement mechanisms included an emergency order that would remove non-compliant tracks from service.
The Department has the statutory authority to " regulate and supervise the distribution, application, or use of pesticides and broadcast chemicals . . . by a public agency under the jurisdiction of the state" or to prohibit their use. A then-existing regulation prohibited government entities from applying pesticides on state rights-of-way without first obtaining a permit. The Railroad accordingly submitted an application to the Department in May 2009, seeking a permit for the chemical treatment of its right-of-way. It sought to apply an herbicide called AquaMaster and a surfactant called Agri-Dex  to various sections of track in the 90 miles between Seward and Indian, as well as the spur line to Whittier and 30 acres of land in its yard in Seward. The chemicals were to be broadcast, with the spray confined to the eight-foot width of the track bed; the total area treated was to be 58.8 acres. The proposal also allowed for a 100-foot buffer zone around all bodies of water. The Railroad sought to begin applying the chemicals in June 2010.
Public notice and comment occurred from July 16 to September 15, 2009. The Department then granted the Railroad's application, and on April 30, 2010, it issued Permit to Apply Pesticides #10-SOL-01, which was effective for two years commencing June 9, 2010. The Department at the same time issued a 49-page response to concerns raised by the public and an 18-page Decision Document explaining the basis for its grant of the permit. The decision concluded in part that " [the Railroad] presented a complete permit application to [the Department]" and that " existing scientific evidence and other available information demonstrate that there will be no unreasonable adverse effect expected from the proposed activity."
1. Request for adjudicatory hearing and stay
On June 1, 2010, ACAT, Alaska Survival, and Cook Inletkeeper, along with several other organizations that are no longer involved in the case, requested an adjudicatory hearing. The groups argued that issuance of the permit violated the Alaska Constitution as well as several statutes and regulations; that the Railroad's permit application was incomplete because it failed to provide basic and critical information; that grant of the permit would adversely affect environmental and human health; and that the Department's decision to grant the permit was arbitrary, especially in light of available alternatives to the use of herbicides. Citing their due process rights and the significant material
facts in dispute, the groups also asked that operations under the permit be stayed while they exhausted their administrative remedies.
On June 30, 2010, Commissioner Larry Hartig denied the requested stay for the most part but granted it with respect to seven milepost locations alleged to be within 200 feet of groundwater wells that the Railroad's application had failed to identify. The groups timely appealed the Commissioner's decision to the superior court and filed an emergency motion for a temporary restraining order. The superior court affirmed the Commissioner's decision, finding substantial evidence to support his findings and affirming his assessment that the groups were unlikely to prevail on the merits. But to ensure that the groups had the opportunity to appeal to this court, the superior court stayed the herbicide operation until July 15, 2010.
This court denied the groups' petition for review, and the Railroad applied the chemicals in compliance with its permit.
In August 2010, the Department addressed the groups' request for an adjudicatory hearing, granting it in part and denying it in part. Although the Department accepted that ACAT and Alaska Survival had standing, it found that Cook Inletkeeper, along with other groups not involved in this appeal, failed to meet " the minimal burden of explaining how their interests would be affected by the decision" as required by 18 AAC 15.200(a)(3)(A). The Department then ordered two separate proceedings: a hearing on the existing record under 18 AAC 15.220(b)(3) and an adjudicatory hearing under 18 AAC 15.220(b)(1). The hearing on the record was intended to address the primarily legal issues of (1) whether the Department " reasonably exercised its discretion" in accepting the Railroad's application as complete; (2) whether the Railroad was required to list the water bodies within 200 feet of the proposed treatment area; and (3) whether the Department applied statutes and regulations " in an unconstitutional manner" during the permitting process. The adjudicatory hearing, ...