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, e-mail 

corrections@appellate.courts.state.ak.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

ALASKA COMMUNITY ACTION ON 

TOXICS, ALASKA SURVIVAL, and 

COOK INLETKEEPER, 

 Appellants/Cross-Appellees, 

v. 

LAWRENCE HARTIG, 

COMMISSIONER OF THE ALASKA 

DEPARTMENT OF ENVIRONMENTA

CONSERVATION (in his official 

capacity), and ALASKA DEPARTMENT

OF ENVIRONMENTAL 

CONSERVATION, DIVISION OF 

ENVIRONMENTAL HEALTH, and 

ALASKA RAILROAD CORPORATION

 Appellees/Cross-Appellants. 

) 

) 

) 

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Supreme Court Nos. S-14823/14863/

14873 

Superior Court No. 3PA-11-01604 CI 

O P I N I O N 

No. 6879 - March 21, 2014 

Appeal from the Superior Court of the State of Alaska, Third 

Judicial District, Palmer, Kari Kristiansen, Judge. 

Appearances: 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/CrossAppellants 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. 

MAASSEN, Justice. 

I. INTRODUCTION 

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 

A. Facts

 Federal safety regulations require that the Alaska Railroad Corporation 

control the growth of vegetation along its tracks.1 In 2009, when the Railroad applied 

for the permit involved in this case, it had not used herbicides to control the growth of 

1 See 49 C.F.R. § 213.37 (2012). 

-2- 6879 
 

 

 

 

 

 

 

 

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.”2 

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 noncompliant 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.3 A then-existing 

regulation prohibited government entities from applying pesticides on state rights-of-way 

without first obtaining a permit.4 The Railroad accordingly submitted an application to 

the Department in May 2009, seeking a permit for the chemical treatment of its right-ofway. It sought to apply an herbicide called AquaMaster and a surfactant called Agri2 The Railroad had applied for an herbicide permit in June 2006, but the 

Department denied the request. 

3 See AS 46.03.320. 

4 18 Alaska Administrative Code (AAC) 90.500 (repealed March 7, 2013). 

“Pesticides,” as broadly defined, include, among other things, insecticides, fungicides, 

and herbicides. 

-3- 6879
 
 

 

 

 

 

 

 

 

 

 

Dex5 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.” 

B. Proceedings 

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; 

A surfactant is a chemical solution that is mixed with the herbicide and 

intended to improve its dispersal and application. According to the Department, the 

surfactant Agri-Dex was “approved for aquatic use by Washington State” and was “not 

expected to be [a source] of water contamination.” 

-4- 6879 

5 
 

 

 

 

 

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 

-5- 6879
 
 

 

 

 

 

 

 

 

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, an evidentiary proceeding, was 

intended to decide the factual issues of whether herbicide application “in proximity to 

any wells” and “in compliance with the permit” posed unreasonable risks to humans and 

the environment. 

Cook Inletkeeper, along with the other organizations denied standing, 

requested reconsideration of the decision or, in the alternative, permission to intervene 

under 18 AAC 15.225. The presiding administrative law judge denied both requests, 

finding that the requesting groups failed to establish standing and failed to show that 

ACAT and Alaska Survival would not adequately represent their interests. 

2. Administrative record costs 

In October 2010, the Department sought payment from ACAT and Alaska 

Survival in the amount of $5,443.95, the total cost of producing and certifying the 

administrative record in preparation for the hearings. ACAT and Alaska Survival 

responded with a request for a waiver, relying on their non-profit status and lack of 

economic incentive to litigate. The Department then asked for a variety of financial 

documents — tax returns, balance sheets, cash flow statements, operating statements, 

annual budgets, and latest annual reports — that could support the groups’ claims of 

financial need. Arguing that these requests could prove to be “unnecessarily 

burdensome,” ACAT made what was effectively a request under the Public Records 

Act6

 that the Department produce records showing how it had handled other waiver 

requests from comparable organizations. The Department produced these records in 

November 2010, and a month later ACAT and Alaska Survival provided the Department 

6 See AS 40.25.100 – .350; 2 AAC 96. 

-6- 6879 
 

 

 

 

 

 

 

 

with federal tax returns and mission statements. 

In January 2011, the Department denied ACAT’s and Alaska Survival’s 

waiver request because it found that both groups had substantial funds at their disposal 

and were financially capable of paying the cost of the record. The Department explained 

that compiling the record required a significant investment of time from several 

individuals; it conceded, however, that its use of outside contractors had made the 

compilation process less streamlined than it could have been, and it therefore reduced the 

requested payment from $5,443.95 to $2,821.28, or $1,410.64 for each of the two 

organizations. 

ACAT and Alaska Survival moved to set aside these costs, arguing that 

they were excessive, violated the groups’ due process rights, and violated the governing 

regulations. An administrative law judge denied the motion in March 2011, deeming the 

costs proper under 18 AAC 15.237. ACAT and Alaska Survival filed a motion for 

reconsideration, which the administrative law judge largely denied except to grant 

another reduction due to a clerical error, making the total due $2,335.88.7 The 

administrative law judge further specified that, instead of splitting the cost equally 

between the two groups, ACAT — with its greater financial resources — should be 

responsible for 75 percent of it. 

3. Voluntary dismissal of the adjudicatory hearing 

In February 2011, ACAT and Alaska Survival moved to dismiss without 

prejudice the claims that were to be addressed at the adjudicatory hearing — the claims 

alleging that the herbicides would have adverse effects on humans and the environment. 

In its brief on appeal, the Department notes an arithmetical mistake of 

several hundred dollars in the administrative law judge’s calculation of the reduced 

amount — a mistake in favor of ACAT and Alaska Survival — but the Department does 

not request any relief on that basis. 

-7- 6879 

7 
 

 

 

 

 

 

 

 

 

With another round of spraying set to begin in April 2011, the groups elected to bypass 

the fact-finding adjudicatory step in favor of getting a final judgment that could be 

appealed to the superior court in time to prevent the new application of herbicides. Both 

the Department and the Railroad opposed the motion, contending that the dismissal of 

the claims should be with prejudice. The administrative law judge granted the request 

to dismiss without prejudice but explained that, while the groups were not precluded 

from raising the factual issues in proceedings on future permits, the dismissal barred 

them from raising the issues again in challenging the permit at issue here. 

4.	 Administrative and superior court decisions regarding the 

hearing on the record 

The administrative law judge addressed the issues raised in the hearing on 

the record in a written decision dated April 22, 2011. He upheld the Department’s 

issuance of the permit, determining that (1) ACAT and Alaska Survival were not denied 

due process; (2) they were not denied their constitutional rights of common use of natural 

resources8 and of free access to public waters; 9 and (3) the Department did not abuse its 

discretion in treating the Railroad’s application as functionally complete despite some 

deficiencies. The Commissioner adopted the administrative law judge’s decision as the 

final decision of the Department. 

The superior court affirmed the Department’s decision on June 29, 2012. 

8 The Alaska Constitution, article VIII, section 3, provides: “Wherever 

occurring in their natural state, fish, wildlife, and waters are reserved to the people for 

common use.” 

9 The Alaska Constitution, article VIII, section 14, provides: “Free access 

to the navigable or public waters of the State, as defined by the legislature, shall not be 

denied any citizen of the United States or resident of the State, except that the legislature 

may by general law regulate and limit such access for other beneficial uses or public 

purposes.” 

-8-	 6879
 
 

 

 

 

It also affirmed the administrative law judge’s earlier decision regarding the costs of the 

administrative record, deciding that the Department had not acted arbitrarily in compiling 

the record; had not violated ACAT’s and Alaska Survival’s due process rights by 

demanding that they pay the costs; and did not err in compiling the record under its 

regulations instead of under the Public Records Act, AS 40.25.122. 

The Department and the Railroad then moved for attorney’s fees. The 

superior court denied the motion; it reasoned that ACAT and Alaska Survival were 

exempt from attorney’s fees under AS 09.60.010(c) because their appeal raised 

constitutional issues, it was not frivolous, and they lacked an economic incentive to 

litigate. The court also clarified the Department’s entitlement to the record costs, 

ordering ACAT and Alaska Survival to pay their respective shares. 

ACAT, Alaska Survival, and Cook Inletkeeper appealed to this court on the 

issues of the permit’s validity and the record costs. The Department and the Railroad 

cross-appealed on the issue of attorney’s fees. 

III. STANDARDS OF REVIEW 

“We resolve issues of standing and mootness using our independent 

judgment because, as matters of judicial policy, these are questions of law.”10 When the 

superior court functions as an intermediate court of appeal in an administrative case, we 

directly review the merits of the administrative decision.11 “We review an agency’s 

application of its own regulations for whether the agency’s decision was ‘arbitrary, 

10 Ahtna Tene Nene v. State, Dep’t of Fish & Game, 288 P.3d 452, 457 

(Alaska 2012) (quoting Ulmer v. Alaska Rest. & Beverage Ass’n (ARBA), 33 P.3d 773, 

776 (Alaska 2001)) (internal quotation marks omitted). 

11 McKitrick v. State, Pub. Emp. Ret. Sys., 284 P.3d 832, 837 (Alaska 2012). 

-9- 6879 
 

 

 

 

 

 

 

 

 

 

unreasonable, or an abuse of discretion.’ ”12 This requires us to give deference to an 

administrative determination “if it has a reasonable basis in law and fact.”13 

IV. DISCUSSION 

A. The Issues On Appeal Are Largely Moot. 

Except for issues related to attorney’s fees and the costs of the 

administrative record, the claims on appeal are moot.14 “We generally will not consider 

questions ‘where events have rendered the legal issue moot.’ ”15 A claim is moot if there 

16 17 is no “present, live controversy” or if it is impossible to provide the relief sought. In 

12 Alaska Exch. Carriers Ass’n, Inc. v. Regulatory Comm’n of Alaska, 202 

P.3d 458, 460-61 (Alaska 2009) (quoting Griffiths v. Andy’s Body & Frame, Inc., 165 

P.3d 619, 623 (Alaska 2007)). 

13 Storrs v. State Med. Bd., 664 P.2d 547, 554 (Alaska 1983). 

14 In conjunction with its request for the rescission of the permit, ACAT and 

Alaska Survival argue the following issues on appeal: the Commissioner’s decision to 

affirm the permit despite failing to disclose the proximity of spray areas to water denied 

due process under article I, section 7 of the Alaska Constitution and violated the priornotice safeguards of article VIII, section 10; the Commissioner abused his discretion by 

affirming the agency’s issuance of the permit despite the failure to locate water wells; the 

Commissioner abused his discretion by affirming the agency’s issuance of the permit on 

grounds that it was limited to areas not open to public access, as parts of the Railroad’s 

right-of-way are public places for which posted notice is required; the Commissioner’s 

denial of Cook Inletkeeper’s standing violated its right to petition for review under article 

I, sections 1, 6, and 7 of the Alaska Constitution; and the Commissioner abused his 

discretion by denying Cook Inletkeeper standing to pursue the appeal. 

15 Copeland v. Ballard, 210 P.3d 1197, 1201-02 (Alaska 2009) (quoting 

Kodiak Seafood Processors Ass’n v. State, 900 P.2d 1191, 1195 (Alaska 1995)). 

16 Ulmer v. Alaska Rest. & Beverage Ass’n, 33 P.3d 773, 776 (Alaska 2001) 

(quoting Gerstein v. Axtell, 960 P.2d 599, 601 (Alaska 1998)). 

17 Id. 

-10- 6879
 
 

 

 

 

 

 

State, Department of Natural Resources v. Greenpeace, Inc., we noted that where the 

underlying temporary water use permit had expired, the disputes “concerning that permit 

are consequently technically moot.”18 And in Copeland v. Ballard we observed: 

We have previously found cases moot when agency-issued 

permits had expired but the permit opponents still sought 

declaratory judgment that the agency actions were unlawful. 

We have emphasized that “[m]ootness is particularly 

important in a case seeking a declaratory judgment because 

there is an added risk that the party is seeking an advisory 

[ ] opinion.” 19

The relief ACAT and Alaska Survival seek on this appeal is the rescission 

of the Railroad’s permit. But that permit, effective in June 2010, had a two-year term 

and expired on June 9, 2012. Because the herbicide was applied during the life of the 

permit, which has now expired, any rescission that we grant would have no practical 

effect. Under our case law, the claims are technically moot. 

B.	 This Case Does Not Fall Under The Public Interest Exception To The 

Mootness Doctrine. 

Technical mootness notwithstanding, “we may choose to address certain 

issues if they fall under the public interest exception to the mootness doctrine.”20 In 

determining whether the public interest exception applies, we consider three factors: 

“(1) whether the disputed issues are capable of repetition, (2) whether the mootness 

doctrine, if applied, may cause review of the issues to be repeatedly circumvented, and 

(3) whether the issues presented are so important to the public interest as to justify 

18 96 P.3d 1056, 1062 (Alaska 2004). 

19 210 P.3d at 1202 (quoting Kodiak Seafood Processors, 900 P.2d at 1194-95 

(Alaska 1995)) (citing State, Dep’t of Natural Res. v. Greenpeace, Inc., 96 P.3d at 1068 

and Kodiak Seafood Processors, 900 P.2d at 1196). 

20 Kodiak Seafood Processors, 900 P.2d at 1196. 

-11-	 6879
 
 

 

 

 

 

 

 

 

overriding the mootness doctrine.”21 No single factor is dispositive, because “each is an 

aspect of the question of whether the public interest dictates that a court review a moot 

issue. Ultimately, the determination of whether to review a moot question is left to the 

discretion of the court.”22 

In reviewing the first factor — whether the issues are capable of 

repetition — “we have refused to apply the public interest exception to unusual factual 

circumstances that were unlikely to repeat themselves or situations where the applicable 

statute or regulation was no longer in force.”23 The Department argues that this factor 

is dispositive here; the circumstances that prompted the litigation are unlikely to be 

repeated because the regulations governing the application of herbicides were recently 

revised. In March 2013 the Department repealed and readopted, with narrower language, 

the regulation that requires the permit at issue here. 24 The Department also adopted an 

entirely new regulation, 18 AAC 90.640 (“Pesticide applications on state land”), also 

effective in March 2013, that authorizes public entities such as the Railroad to bypass the 

permitting process if they instead adopt an “integrated pest management plan” that 

satisfies certain requirements of publication, notice, and record-keeping.25 The Railroad 

has adopted such a plan, and its future herbicide use therefore falls under the new 

21 Id. 

22 Id. (internal citation omitted). 

23 Ahtna Tene Nene v. State, Dep’t of Fish & Game, 288 P.3d 452, 459 

(Alaska 2012) (quoting Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532, 535 

(Alaska 2005)). 

24 See 18 AAC 90.500 (effective March 7, 2013) (replacing broad requirement 

of permit with requirement of permit only when project “affects property owned 

separately by two or more persons”). 

25 18 AAC 90.640(a). 

-12- 6879
 
 

 

 

 

 

 

 

 

regulation rather than the permitting process.26 

ACAT and Alaska Survival note that the permitting regulations still exist 

and that, despite the Railroad’s integrated pest management plan, there are several 

possible scenarios in which the Railroad could still be required to seek a permit before 

applying herbicides.27 ACAT and Alaska Survival accordingly conclude that this case 

meets the first factor because not only is the relevant regulation still in place, there could 

still be a future controversy involving its application to a Railroad herbicide permit. 

But those theoretical future uses of the permitting process, as well as being 

hypothetical, would not likely present the same factual and legal context as this case. 

The Railroad’s 2010 permit has expired, the Railroad has published an integrated pest 

management plan that will govern its future use of herbicides on the track right-of-way, 

the Railroad will therefore not need a permit if it chooses to conduct the same operation 

again, and a future dispute over that operation will be controlled by the new regulation, 

18 AAC 90.640. Thus, the particular factual and legal circumstances of this case are 

unlikely to be repeated, and ACAT and Alaska Survival fail to satisfy the first factor for 

the public interest exception to the mootness doctrine. 

But ACAT and Alaska Survival do satisfy the second factor — whether the 

issue could repeatedly evade review. We noted in Copeland that we had “previously 

analyzed the second prong . . . by comparing the time it takes to bring the appeal with the 

26 See Alaska Railroad Corporation, Vegetation Management, 

http://www.alaskarailroad.com/corporate/Corporate/SafetySecurity/VegetationManag 

ement/tabid/419/Default.aspx (last visited Feb. 27, 2014). 

27 These scenarios, according to ACAT and Alaska Survival, include “1) 

application of herbicides by state agencies to private lands owned separately by two or 

more persons; 18 AAC 90.500, 2) projects where herbicides are allowed to be used [on] 

the waters of the state; 18 AAC 90.505(1), and, 3) projects where herbicides are aerially 

sprayed; 18 AAC 90.505(2).” 

-13- 6879
 
 

 

 

 

 

 

 

 

 

 

 

time it takes for the appeal to become moot.”28 The permit at issue here was valid for 

two years, and full judicial review in that time was unlikely. The Department argues that 

because the regulations have since been revised to allow for five-year permit terms,29 

“future permitting disputes are unlikely to evade review.” We observed in Copeland, 

however, that the lengthy appeal in that case “demonstrate[d] that it is unreasonable to 

assume an opponent to an approved contingency plan would be able to appeal the agency 

decision within the five-year duration of the plan.”30 Such determinations are necessarily 

case specific, but the matter before us has already taken over three years, and it likely 

would have taken longer had ACAT and Alaska Survival not voluntarily dismissed their 

fact-based claims at the administrative level in order to expedite judicial review. It is 

certainly possible that a future challenge to a pesticide permit — even a permit valid for 

five years — could evade appellate review. Accordingly, the second factor of the public 

interest exception to the mootness doctrine is satisfied. 

However, ACAT and Alaska Survival fail to meet the third factor, which 

assesses whether the issues presented are important enough to the public interest to 

override the mootness doctrine. We stated in Copeland that “[w]e have found this prong 

met when the case involved ‘concepts of fairness underlying the right to procedural due 

process,’ the preservation of clean water, or ‘situations, otherwise moot, where the legal 

power of public officials was in question.’ ”31 We held that the issues presented in 

28 Copeland v. Ballard, 210 P.3d 1197, 1202 (Alaska 2009). 

29 See 18 AAC 90.530(c) (“A permit is not valid for more than five years after 

its effective date.”). 

30 Copeland, 210 P.3d at 1202. 

31 Id. at 1203 (internal footnotes omitted) (quoting State, Dep’t of Natural 

Res. v. Greenpeace, Inc., 96 P.3d 1056,1062-63 (Alaska 2004); Fairbanks Fire Fighters 

(continued...) 

-14- 6879
 
 

 

 

 

 

 

 

 

 

Copeland satisfied two of these requirements. 32 First, the case involved plans to protect 

the Alaskan environment from oil spills, “a matter of utmost importance to the public 

interest” because of “the potentially devastating effects . . . on the ecology and economy 

of the state.”33 Second, since the case involved a due process challenge to administrative 

procedures, we reasoned that “given the need for transparency in governance and access 

to administrative records, this also is a matter of importance to the public interest.”34 In 

Copeland, ultimately, we considered the due process claims despite their technical 

mootness.35 

ACAT and Alaska Survival argue that the result in this case is governed by 

Copeland, because this case, too, presents both a claim for the “preservation of clean 

water” and a question of “fairness in procedural due process” in agency procedures.36 

But we cannot disassociate our view of the third factor in this case from our analysis of 

the first, in which we concluded that the factual scenario before us is unlikely to be 

repeated given the changes in the regulatory structure. The public interest does not 

require us to give an advisory opinion on the permitting process that governed the 

Railroad’s past application of herbicides, given the unlikelihood that the same process 

will govern it next time. This case is less like Copeland than it is like another recent case 

in which we analyzed the mootness doctrine, Ahtna Tene Nene v. State, Department of 

31 (...continued)
 

Ass’n, Local 1324 v. City of Fairbanks, 48 P.3d 1165, 1169 (Alaska 2002)). 


32 Id. 

33 Id. 

34 Id. 

35 Id. 

36 See id. 

-15- 6879
 
 

 

 

 

 

 

 

Fish & Game. 

37 

In Ahtna, we declined to apply the public interest exception to the mootness 

doctrine where the issues were “certainly germane to the public interest” but were 

“simply not ripe for adjudication.” 38 The appellants in Ahtna challenged a permit system 

instituted by the Alaska Board of Game in 2009, regulating hunts for caribou and bull 

moose in the Nelchina basin. 39 The regulations were challenged in March 2009, and in 

October 2010 the Board of Game amended its permit system.40 The amended regulations 

went into effect in 2011, after the case reached this court on appeal but before we 

decided it.41 We found that the appeal was moot because the challenged regulation was 

no longer in effect.42 The appellants argued that the public interest exception should 

apply, as a decision in the case would help settle a “source of ongoing litigation between 

the parties” regarding the “legitimacy of the community hunt enabling statute . . . and 

related regulations that provide different hunting opportunities.”43 In assessing this 

argument, we noted that it “ignore[d] the relief initially sought in this appeal and instead 

ma[d]e broad requests for premature declaratory judgments regarding the 

constitutionality of the community harvest system as a whole unrelated to any factual 

37 288 P.3d 452, 459 (Alaska 2012).
 

38 Id. at 460.
 

39 Id. at 455.
 

40 Id. at 456. 

41 Id. at 457. 

42 Id. at 458. 

43 Id. at 459. 

-16- 6879
 
 

 

dispute.”44 We determined, therefore, that any opinion on the validity of the 2009 

regulations would be irrelevant to the amended scheme and would be “merely 

advisory.”45 

Here, ACAT and Alaska Survival seek relief from an expired permit that 

the Railroad is unlikely to apply for again through the same regulatory process at any 

time in the foreseeable future. In Ahtna, the challenged regulation was amended and no 

longer applied;46 ACAT and Alaska Survival differentiate this case by pointing out that 

the permitting process is still in place and could be the source of future controversy 

appropriate for our review. But again, we cannot ignore the factual setting in which we 

have been asked to review the regulations. Indeed, much of ACAT’s and Alaska 

Survival’s briefing on the public interest exception airs their concerns about the 

Railroad’s new integrated pest management plan. They complain, for example, that the 

Railroad’s new plan may not meet the “least possible hazard” standards of the new 

regulation; that the Railroad has not detailed how it will protect water and the 

environment under the new regime; that the Railroad’s plan may still be rejected as 

failing to meet the new regulatory requirements; and that, in general, there could be a 

number of flaws with the new regulations and their studied omission of public comment 

and permits for the use of pesticides. 

We conclude that ACAT and Alaska Survival are making for the same kind 

of “broad requests for premature declaratory judgments . . . unrelated to any factual 

44 Id. 

45 Id. at 460. 

46 Id. at 458. 

-17­ 6879 
 

 

 

 

 

 

 

dispute”47 that Ahtna sought to avoid. While the water quality and procedural due 

process concerns raised in this appeal are “certainly germane to the public interest,”48 

they are based in the permitting process that has been rendered irrelevant to future 

disputes by the Railroad’s election to adopt an integrated pest management plan pursuant 

to the new regulation; possible issues with the new regulation are “simply not ripe for 

adjudication in this case.”49 Issues that would require us to issue an advisory opinion on 

facts and law that are now largely irrelevant are simply not important enough to the 

public interest to justify overriding the mootness doctrine. 

Having weighed the three factors, we decline to apply the public interest 

exception to the mootness doctrine in this case. We therefore do not reach any of the 

challenges to the expired permit itself.50 

C.	 The Agency’s Assessment Of Record Costs Was Not Arbitrary, 

Unreasonable, Or An Abuse Of Discretion. 

The remaining issues involve the costs of preparing the record for the 

administrative appeal, which were assessed against ACAT and Alaska Survival. The 

groups present three arguments in support of their claim that the costs should have been 

waived in their entirety: (1) the Department compiled the record arbitrarily and 

inefficiently; (2) the denial of a waiver based on the groups’ public interest status 

47	 See id. at 459. 

48	 See id. at 460. 

49	 See id. 

50 At oral argument, both the Department and the Railroad agreed that their 

cross-appeals on the issue of attorney’s fees could be considered withdrawn if we 

decided that the other issues on appeal (except for those involving the cost of the 

administrative record) were moot. Given our decision on mootness, therefore, we do not 

need to address the cross-appeals. 

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violated their right to equal protection under article I, section 1 of the Alaska 

Constitution; and (3) the denial of the waiver violated due process. We affirm the 

agency decision. 

1.	 It was not an abuse of agency discretion to require ACAT and 

Alaska Survival to pay the administrative record costs. 

ACAT and Alaska Survival first claim that the Department abused its 

discretion “by arbitrarily compiling the record.” Under the Public Records Act, the 

issue is governed by the agency’s own regulations. 51 The pertinent regulation requires 

that Department staff prepare the record, to 

include the permit application and supporting 

documentation, written and electronic correspondence 

concerning the proposed action, additional information 

submitted by the applicant to the department, public 

comments and information submitted to the department on 

the proposed decision, tapes or transcripts of any public 

hearing, the department’s decisional documents, and other 

materials that the department considered or relied upon in 

[ ] making the department’s decision. 52

The regulations further provide that a person may obtain a copy of the record “at the 

requesting party’s expense” and that “[t]he requestor shall pay the cost of gathering and 

certifying the agency decision record.”53 Finally, the regulations provide that “[t]he 

department will waive all or part of the cost of gathering and certifying the record if the 

51 AS 40.25.122 (“[W]ith respect to a person involved in litigation, the records 

sought shall be disclosed in accordance with the rules of procedure applicable in a court 

or an administrative adjudication. In this section, ‘involved in litigation’ means a party 

to litigation or representing a party to litigation, including obtaining public records for 

the party.”). 

52 18 AAC 15.237(a). 

53 18 AAC 15.237(b) and (c). 

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requestor demonstrates, to the department’s satisfaction, an inability to pay those 

costs.”54 We review the Department’s application of these regulations to determine 

whether its demand for costs in this case was arbitrary, unreasonable, or an abuse of 

discretion.55 

ACAT and Alaska Survival claim the Commissioner abused his discretion 

in several ways. First, they allege that the Department failed to maintain a “discreet and 

identifiable agency record” and that they should not be held “responsible for the costs 

of constructing the record after the fact.” They claim that “[i]t was the agency’s duty 

. . . to see that correspondence dealing with the permit was sequestered into a separate 

file as part of the permit issuance record.” But they cite no legal basis for such a duty 

(other than the constitutional provisions we discuss below). The regulations explicitly 

56 57 58 refer to “gathering,” “certifying,” and “prepar[ing] the agency decision record,” 

implying that the necessary materials may be found in diverse places and must be 

collected and organized for purposes of appellate review, a process that is likely to 

involve time and expense on the part of the agency. We see no basis on this record for 

us to impose a particular record-keeping plan on an executive agency. 

ACAT and Alaska Survival also argue that the record compilation was 

inefficient and could have been more streamlined. They cite the relatively high rates 

charged by an independent consultant and high-level agency employees for retrieving 

54 18 AAC 15.237(c). 

55 See Alaska Exch. Carriers Ass’n, Inc. v. Regulatory Comm’n of Alaska, 202 

P.3d 458, 460-61 (Alaska 2009). 

56 See 18 AAC 15.237(c). 

57 See id. 

58 See 18 AAC 15.237(a). 

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record materials and emails, asserting that clerical staff could have performed the task 

more cheaply; they also express doubt that all of the “emails scattered throughout 

various contractor and employee inboxes could have actually been considered [in] the 

decision-making process” and assert that they were thus required to pay for the 

collection and copying of irrelevant materials. But whatever merit there may be in these 

arguments, the Department conceded that it “may not have been as streamlined in its 

collection efforts . . . as it would be for future efforts,” and it voluntarily reduced the 

assessed cost “by the amount commensurate with that part of the process.” This resulted 

in a near halving of the cost, from $5,443.95 to $2,821.28, an amount the administrative 

law judge found was “not excessive given the complexity of the issues related to this 

pesticide permit.” On the groups’ motion to reconsider, the administrative law judge 

reduced the amount further (because of an arithmetical error) to $2,335.88, to be 

allocated between ACAT and Alaska Survival. He also found that the Department’s 

initial calculation had been based on “the actual cost of collecting the documents as it 

was required to do by regulation,” and that while the process may have been inefficient, 

it was not arbitrary. 

Given these findings, and given the significant reduction that the 

Department voluntarily made to reflect its admitted inefficiencies, we cannot say that 

the Department acted unreasonably or arbitrarily or that it abused its discretion in its 

assessment of the costs of the record. 

2. The appellants’ constitutional claims are waived. 

ACAT and Alaska Survival also assert that the assessment of record costs 

violates their equal protection rights because the Public Records Act and 18 AAC 

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15.237(c) differentiate between litigants and other requestors.59 They did not raise this 

argument below. The administrative law judge addressed equal protection arguments 

raised in two other contexts: one involving the groups’ public records request for 

additional information and one alleging that the Department “treats litigants differently 

based on the issues raised in the hearing request.” These are different arguments than 

the one alleged here. Generally, we will not consider arguments on appeal that were not 

raised below.60 Because ACAT’s and Alaska Survival’s equal protection argument was 

not raised below, we decline to address it. 

ACAT and Alaska Survival also make a perfunctory due process 

argument: “It is a denial of due process to expect the citizen’s group to pay the agency 

for performing work after the fact that was already part of the agency’s responsibility 

as part of its delegated decision-making process.” They provide no further legal 

analysis. “Points that are inadequately briefed are considered waived.”61 The failure 

to analyze this constitutional issue amounts to its abandonment. 

59 For example, under the Public Records Act someone who requests copies 

of records need not pay the personnel costs involved in “complet[ing] the search and 

copying tasks” until they exceed five person-hours per calendar month, AS 40.25.110(c); 

but no such exemption for the first five person-hours applies to a request made by a party 

to an administrative appeal in the Department, see 18 AAC 15.237(b), (c). 

60 Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1255 n.61 (Alaska 2001) (“This 

court will not consider arguments on appeal that were not raised below unless the new 

issues either establish plain error or do not depend on new or controverted facts, are 

closely related to the appellant’s arguments at trial, and could have been gleaned from 

the pleadings.”). 

61 Great Divide Ins. Co. v. Carpenter ex rel. Reed, 79 P.3d 599, 608 n.10 

(Alaska 2003) (citing State v. O’Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 

1980) (“When, in the argument portion of a brief, a major point has been given no more 

than cursory statement, we will not consider it further. Failure to argue a point 

constitutes an abandonment of it.”)). 

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V. CONCLUSION 

The appeal is DISMISSED as to those issues that are moot (the direct 

challenges to the permit). We otherwise AFFIRM the decision of the superior court. 

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