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 

ALASKAN CRUDE CORPORATION 

and JAMES W. WHITE, 

Appellants, 

v. 

STATE OF ALASKA, ALASKA OIL 

AND GAS CONSERVATION 

COMMISSION, 

Appellee. 

) 

) 

) Supreme Court No. S-14148 

Superior Court No. 3AN-07-11471 CI 

O P I N I O N 

No. 6817 - August 30, 2013 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

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

Judicial District, Anchorage, John Suddock, Judge. 

Appearances: Heather Gardner, Shortell Gardner LLC, 

Anchorage, for Appellants. Thomas A. Ballantine, Assistant 

Attorney General, Anchorage, and Michael C. Geraghty, 

Attorney General, Juneau, for Appellee. 

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and 

Bolger, Justices. 

MAASSEN, Justice. 

I. INTRODUCTION 

Alaskan Crude Corporation submitted an application to the Alaska Oil and 

Gas Conservation Commission to reopen the Burglin 33-1 well, a suspended well on the 

North Slope, to explore for oil and gas. Arguing that it was highly unlikely that oil from 
 

 

 

 

 

 

 

the well would rise to the surface unassisted, Alaskan Crude made a series of requests 

to the Commission to be exempted from oil discharge response requirements or, in the 

alternative, to have the requirements reduced. The Commission made successive 

reductions to the technical flow-rate assessments and the response planning standards 

that it recommended to the Alaska Department of Environmental Conservation for use 

in setting Alaskan Crude’s discharge response requirements. The Commission declined, 

however, to classify the Burglin 33-1 well as a gas facility, which would have exempted 

Alaskan Crude entirely from such requirements. Alaskan Crude appealed to the superior 

court, challenging the Commission’s recommended response planning standards and its 

well classification. The superior court affirmed. Alaskan Crude appeals from the 

superior court’s decision, including its award of attorney’s fees to the Commission. We 

affirm. 

II. FACTS AND PROCEEDINGS 

A. Initial Application And Approval To Reopen The Burglin 33-1 Well 

The Burglin 33-1 well, located on the North Slope, was drilled, tested, and 

then suspended in the 1980s. Alaskan Crude Corporation, a small operator, later initiated 

plans to reopen the well. In January 2006 Alaskan Crude submitted a sundry approvals 

application to the Alaska Oil and Gas Conservation Commission (the Commission) to 

reopen and test the Burglin 33-1 well. In February 2006 Alaskan Crude filed an 

application with the Department of Natural Resources (DNR) for a unified lease area, 

called the Arctic Fortitude Unit, that encompassed the Burglin 33-1 well. Alaskan Crude 

stated its intent to reenter the Burglin 33-1 well to test for “hydrocarbon bearing 

sandstones.” In its applications and other communications with the Commission and 

DNR, Alaskan Crude indicated an interest in reentering geologic strata known as the 

-2- 6817
 
 

 

 

 

 

 

 

 

 

 

Ugnu and West Sak formations. Both the sundry application and the Arctic Fortitude 

Unit application were approved. 

B. Oil Discharge Prevention Requirements 

Alaska Statute 46.04.030(b) provides that the operator of an oil exploration 

facility must hold an approved oil discharge prevention and contingency plan. The 

regulations governing such contingency plans1 include 18 AAC 75.434, which lays out 

the oil discharge response requirements for oil exploration and production facilities. The 

regulation sets a response planning standard (RPS), which is the amount of oil that an 

operator must be equipped to contain or control and clean up in the event of a discharge.2 

The regulation’s stated RPS may be reduced if an operator demonstrates to the 

Commission and to the Alaska Department of Environmental Conservation (ADEC) that 

a reduction is appropriate.3 ADEC is charged by regulation with deciding whether to 

reduce the RPS, but it may consult with the Commission in reaching its decision.4 

Alaska Statutes 46.04.050(c) and 31.05.030(l) exempt certain exploration 

facilities from these oil discharge prevention requirements. A well is not eligible for 

exemption, however, unless it is a “natural gas exploration facility,”5

 defined as “a 

1 See 18 Alaska Administrative Code (AAC) 75.400 et seq. (2013). 

2 An operator must be equipped to contain or control and clean up 16,500 

barrels within the first 72 hours. 18 AAC 75.434(a)-(b). This is sometimes referred to 

as the “default” RPS. The regulatory standard also requires the capability to deal with 

“an additional 5,500 barrels for each of 12 days beyond 72 hours.” 18 AAC 

75.434(b)(2). 

3 18 AAC 75.434(b)(2). 

4 18 AAC 75.434(f)(2). 

5 AS 46.04.050(c); AS 31.05.030(l). 

-3- 6817
 
 

 

 

 

 

 

 

 

 

 

 

 

platform, facility, or structure that . . . is used solely for the exploration for natural gas.”6 

Another prerequisite for exemption is a determination by the Commission “that evidence 

obtained through evaluation demonstrates with reasonable certainty that all of the wells 

at a natural gas facility will not penetrate a formation capable of flowing oil to the ground 

surface.”7 

C. Alaskan Crude’s Request For An RPS Reduction 

In April 2007 Alaskan Crude asked ADEC for an 85% reduction in the 

default RPS for the Burglin 33-1 well, asserting that the flow of oil from the well was so 

limited that it could not reach the surface without mechanical assistance. ADEC 

consulted with the Commission. On June 26, 2007, the Commission determined that the 

Ugnu and West Sak formations “are highly unlikely to produce liquid hydrocarbons to 

the surface in amounts greater than 825 barrels of oil per day [bopd]” and noted that this 

was the maximum reduction to the RPS that could be allowed under ADEC regulations. 

On July 2, 2007, ADEC adopted this RPS recommendation and reduced the default RPS 

(16,500 barrels within 72 hours, or 5,500 bopd) by 85% to 825 bopd, as Alaskan Crude 

had requested. 

In its June 26 decision, the Commission also rejected Alaskan Crude’s 

request that the Burglin 33-1 well be classified as a gas facility, “because there are signs 

of oil in the cores and the Ugnu and West Sak Formations are known to contain movable 

oil elsewhere on the North Slope.” The Commission further determined, however, that 

“in accordance with AS 31.05.030(l) . . . it has been demonstrated with reasonable 

AS 46.04.050(c). 

7 Id. 

-4- 6817 

6 
 

 

 

 

 

 

 

 

certainty that exploratory or development wells drilled in this area will not encounter 

liquid hydrocarbon bearing sands in the Ugnu or West Sak Formation[s].” 

D.	 Alaskan Crude’s Request For Reconsideration Of The June 26, 2007 

Decision 

Alaskan Crude asked the Commission to reconsider its determination that 

the Burglin 33-1 well could not be classified as a gas facility, arguing that it had only 

applied for a permit to drill and test a gas well and the RPS requirements therefore should 

not have been considered relevant. The Commission granted reconsideration. It sent 

Alaskan Crude notice of a rehearing scheduled for September 6, 2007, published notice 

of the hearing, and requested comments from the public. 

ADEC submitted its own comments to the Commission in advance of the 

hearing. It offered a revised interpretation of 18 AAC 75.430(c), which provides that “in 

no case will the department reduce the response planning standard below an amount 

equal to (1) 15 percent of the response planning standard applicable to . . . an exploration 

or production facility.” ADEC had previously interpreted this provision “to mean that 

the lowest possible RPS volume for an exploration facility is 15 percent of 5,500 bopd, 

or 825 bopd.” Now, however, the department interpreted the 15% limitation as applying 

only to any additional reductions granted after the RPS was set under 18 AAC 75.434(b). 

While this revised interpretation did not set a minimum RPS value, ADEC observed that 

as a general matter an RPS of zero would not be appropriate, since “routine spills” or 

other “emergency events, such as mechanical failures,” could occur regardless of the 

likelihood of “a catastrophic well event,” and an operator would be expected to be 

prepared for these other emergencies. 

Alaskan Crude did not appear for the scheduled hearing. 

-5-	 6817
 
 

 

 

 

E. Other Order 51 

On October 1, 2007, the Commission issued Other Order 51. The Order 

confirmed the Commission’s prior determination that the Burglin 33-1 well could not be 

classified as a gas facility, and it withdrew the Commission’s earlier conclusion, stated 

in its June 26, 2007 letter, that “ ‘it has been demonstrated with reasonable certain[t]y 

that exploratory or development wells drilled in this area will not encounter liquid 

hydrocarbon bearing sands in the Ugnu or West Sak Formation[s].’ ” Assuming that 

Alaskan Crude was requesting, as an alternative to the designation of the Burglin 33-1 

well as a gas facility, a reconsideration of the RPS of 825 bopd, the Commission applied 

ADEC’s amended interpretation of 18 AAC 75.430(c) and further reduced its RPS 

recommendation to 600 bopd for reentry of the Ugnu and West Sak formations. 

F.	 Alaskan Crude’s Request For Reconsideration Of Other Order 51 

And Simultaneous Request For An Ugnu-Only RPS Recommendation 

Alaskan Crude asked the Commission to reconsider Other Order 51 and 

also asked for a new RPS assessment that would apply only to the Ugnu formation. 

While acknowledging that its initial sundry application had indicated its intent to open 

the Burglin 33-1 well to a depth that included both the West Sak and Ugnu formations, 

Alaskan Crude now informed the Commission that it intended to submit a revised sundry 

application that would implicate Ugnu only. 

On October 24, 2007, the Commission denied the request to reconsider 

Other Order 51 on grounds that Alaskan Crude had failed to identify any “ambiguities 

or errors in the order.” The Commission did agree, however, to treat the request to 

reconsider as an application for an Ugnu-only RPS recommendation; five days later the 

Commission recommended 115 bopd for Alaskan Crude’s Ugnu-only proposal, 

-6-	 6817
 
 

 

 

 

 

 

 

notwithstanding the fact that the company had yet to submit its more limited sundry 

application.8 

G. Alaskan Crude’s Appeals 

Alaskan Crude appealed to the superior court, challenging both the 

Commission’s well classification and its RPS recommendations. The superior court held 

that the Commission has the authority to determine whether a well is a “natural gas 

exploration facility” and affirmed the Commission’s determination that the Burglin 33-1 

well was not. The court also held that Alaskan Crude failed to present evidence 

“controverting the facially sufficient data upon which the [Commission] relied” in 

determining its RPS recommendations. The court declined to address Alaskan Crude’s 

constitutional argument — that the State had violated article VIII, section 1 of the Alaska 

Constitution by failing to exempt low-volume oil wells from discharge prevention 

requirements9

 — on grounds that Alaskan Crude had neither raised the issue below nor 

created a factual record in support of it. The superior court awarded attorney’s fees to 

the Commission. 

Alaskan Crude appealed to this court, challenging the Commission’s well 

classification and RPS recommendations and the superior court’s award of attorney’s 

fees. Alaskan Crude also argues that the Commission’s decisions were arbitrary and 

capricious and failed to prevent waste. 

8 The record does not disclose whether Alaskan Crude ever filed such an 

application. 

9 Article VIII, section 1 of the Alaska Constitution provides: “It is the policy 

of the State to encourage the settlement of its land and the development of its resources 

by making them available for maximum use consistent with the public interest.” 

-7- 6817 
 

 

 

 

 

 

 

 

III. STANDARD OF REVIEW
 

In an administrative appeal where the superior court has served as an 

intermediate court of appeal, “we independently review the merits of the agency’s 

10 11 decision.” We review questions of law not involving agency expertise de novo. “In 

questions of law involving the agency’s expertise, a rational basis standard will be 

applied and we will defer to the agency’s determination so long as it is reasonable.”12 

We review the agency’s factual findings using the substantial evidence standard.13 

“Substantial evidence is defined as such relevant evidence as a reasonable mind might 

accept as adequate to support [the agency’s] conclusion.”14 “We determine only whether 

such evidence exists and do not choose between competing inferences or evaluate the 

strength of the evidence.”15 

“When the superior court acts as an intermediate appellate court, it has 

broad discretion to award reasonable attorney’s fees . . . .”16 An attorney’s fees decision 

10 Powercorp Alaska, LLC v. State, Alaska Indus. Dev. & Exp. Auth., 171 P.3d 

159, 163 (Alaska 2007). 

11 Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227, 1231 (Alaska 2003) 

(citing DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000); Tesoro Alaska 

Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987)). 

12 Id. (citing Tesoro Alaska Petroleum Co., 746 P.2d at 903). 

13 Id. (citing DeYonge, 1 P.3d at 94). 

14 Lopez v. Adm’r, Pub. Emps.’ Ret. Sys., 20 P.3d 568, 570 (Alaska 2001) 

(quoting Hester v. State, Pub. Emps.’ Ret. Bd., 817 P.2d 472, 476 (Alaska 1991)) 

(internal quotation marks omitted). 

15 Id. 

Miller v. Matanuska-Susitna Borough, 54 P.3d 285, 289 (Alaska 2002)
 

(continued...)
 

-8- 6817
 

16 
 

 

 

 

“should not be disturbed unless it is manifestly unreasonable. ”17 This standard of review 

applies to the determination of the prevailing party as well as to the amount of the 

award.18 

IV.	 DISCUSSION 

A.	 The Commission Did Not Exceed Its Authority Or Err Factually In 

Determining That The Burglin 33-1 Well Is Not A Gas Facility. 

In Other Order 51, the Commission affirmed its June 26, 2007 

determination that the Burglin 33-1 well is not a gas facility for purposes of AS 

46.04.050(c) and AS 31.05.030(l), the statutes exempting certain natural gas facilities 

from the oil-discharge prevention requirements. In challenging this finding, Alaskan 

Crude first argues that it is up to the operator, not the Commission, to determine whether 

a reopened well is an oil or gas facility. In the alternative, Alaskan Crude argues that the 

Commission erred when it declined to classify the Burglin 33-1 well as a gas facility. 

1.	 The Commission has the authority to classify the Burglin 33-1 

well as an oil or gas facility. 

As the superior court noted, Other Order 51 implicitly concluded that the 

Commission, not Alaskan Crude, had the authority to decide whether a reopened well 

is a gas well, an oil well, or both. But Alaskan Crude contends that the operator has 

16(...continued) 

(citing Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478, 482 (Alaska 1984)). 

17 Id. (quoting Cook Inlet Pipeline v. Alaska Pub. Util. Comm’n, 836 P.2d 

343, 354 (Alaska 1992)) (internal quotation marks omitted). 

18 K & K Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702, 721 (Alaska 2003) 

(citing Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979)). 

-9- 6817 
 

 

 

 

 

 

 

 

 

 

discretion to decide how to classify a reopened well.19 We review this question using our 

independent judgment.20 

Alaskan Crude relies on 20 AAC 25.990(70) for the proposition that an 

operator may determine how to reenter a suspended well. The regulation 

provides: “ ‘suspend’ means to plug a well in accordance with 20 AAC 25.110 and to 

reserve the option later to re-enter and (A) redrill the well; or (B) complete the well as 

an oil, gas, or service well.”21 While the regulation does reserve to the operator the 

options of reentering and redrilling the well or reentering and completing the well, we 

do not read it as extending to the operator the exclusive authority to determine how the 

well is to be classified on reentry, particularly as such a reading could severely limit the 

ability of the regulatory bodies to perform their statutory functions. 

Neither AS 46.04.050(c) nor AS 31.05.030(l) explicitly grants the authority 

to determine a well’s classification to the Commission or to the operator.22 However, 

19 The Commission contends that Alaskan Crude’s argument on this point is 

so cursory that it should be deemed waived. “Where a point is not given more than a 

cursory statement in the argument portion of a brief, the point will not be considered on 

appeal.” Wirum & Cash, Architects v. Cash, 837 P.2d 692, 713-14 (Alaska 1992) (citing 

State v. O’Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980); Fairview Dev., 

Inc. v. City of Fairbanks, 475 P.2d 35, 36 (Alaska 1970)). We do not find waiver, given 

that Alaskan Crude provided a legal theory in support of this argument and cited to a 

regulatory provision. 

20 See Alaska Pub. Utils. Comm’n v. Municipality of Anchorage, 902 P.2d 

783, 785 (Alaska 1995) (citing Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 

P.2d 896, 903 (Alaska 1987)) (applying the substitution of judgment standard of review 

to the issue of whether the Alaska Public Utilities Commission has authority to order a 

refund, because it is a question of law not involving agency expertise). 

21 20 AAC 25.990(70). 

22 AS 31.05.030(f) does provide that “[t]he commission may classify a well 

(continued...) 

-10- 6817 
 

 

 

 

 

 

 

 

 

 

 

we have held that other administrative agencies have implied powers, relying on the 

premise that implied powers are sometimes necessary to the exercise of those powers that 

the legislature has expressly granted.23 In Glacier State Telephone Co. v. Alaska Public 

Utilities Commission, for example, we held that the Alaska Public Utilities Commission’s 

powers to set rates and make regulations necessarily included the power to determine the 

methodology for computing revenue requirements.24 In the instant case, AS 31.05.030(l) 

and AS 46.04.050(c) set out certain explicit powers of the Commission, including the 

power to determine whether a well at a natural gas exploration facility meets criteria that 

exempt it from oil discharge prevention requirements. As in Glacier State, the implied 

power that the Commission asserts — the power to determine what constitutes a natural 

22(...continued) 

or a specific portion of a well as an exploratory, development, service, or stratigraphic 

test well and may classify a development well as an oil or gas well for purposes material 

to the interpretation or enforcement of this chapter.” Whether the Commission may 

classify an exploratory well as an oil or gas well is not specifically addressed in the same 

statute. One could argue that the Commission therefore lacks such authority. See State, 

Dep’t of Revenue v. Deleon, 103 P.3d 897, 900 (Alaska 2004) (“The principle of 

expressio unius est exclusio alterius directs the court to presume that a statute 

designating only certain powers excludes those not specifically designated . . . .” (citing 

Croft v. Pan Alaska Trucking, Inc., 820 P.2d 1064, 1066 (Alaska 1991))). But the 

principle of exclusio unius est exclusio alterius does not apply if it would contravene the 

statute’s purposes. Ellingstad v. State, Dep’t of Natural Res., 979 P.2d 1000, 1006 

(Alaska 1999) (citing Sonneman v. Hickel, 836 P.2d 936, 939 (Alaska 1992)). 

23 Blanas v. Brower Co., 938 P.2d 1056, 1061-62 (Alaska 1997) (quoting 

Greater Anchorage Area Borough v. City of Anchorage, 504 P.2d 1027, 1033-34 

(Alaska 1972)) (holding that the Alaska Worker’s Compensation Board’s express 

adjudicatory power implicitly and necessarily confers on it the “authority to set aside 

[a compromise and release] for fraud”). See also, e.g., Monzulla v. Voorhees Concrete 

Cutting, 254 P.3d 341, 345-47 (Alaska 2011); Wausau Ins. Cos. v. Van Biene, 847 P.2d 

584, 586-88 (Alaska 1993). 

724 P.2d 1187, 1189-90 (Alaska 1986). 

-11- 6817 

24 
 

 

 

 

gas exploration facility in the first instance — is necessary to the furtherance of its 

express powers. 

2.	 The Commission did not err in determining that the Burglin 

33-1 well is not a gas facility. 

We next consider whether the Commission erred when in the exercise of 

its authority it determined that the Burglin 33-1 well is not a gas facility. Alaskan Crude 

focuses its argument on the question of whether movable oil in the underlying formations 

could flow unassisted to the surface. Alaska Statute 46.04.050(c) provides that “[f]or 

purposes of [the exemption], ‘natural gas exploration facility’ means a platform, facility, 

or structure that, except for storage of refined petroleum products in a quantity that does 

not exceed 10,000 barrels, is used solely for the exploration for natural gas.” The 

determinative question is whether an operator will be using the facility to explore for oil 

as well as for gas; it is immaterial whether the oil is capable of flowing unassisted or can 

only be brought to the surface mechanically. During 2006 and the first part of 2007, 

Alaskan Crude repeatedly represented to the Commission and DNR that it planned to 

explore for oil. Even now, it asserts on appeal that when it decided to explore only for 

gas, it did so “knowing [it was] entitled to keep any oil [it] recover[ed].” There is 

substantial evidence in this history to support the Commission’s conclusion that the 

Burglin 33-1 well is not a gas facility, as statutorily defined, because it was not to be 

used solely for gas exploration. 

B. The Commission Did Not Err In Its RPS Recommendations. 

Alaskan Crude also contends that the Commission’s setting of a response 

planning standard higher than zero bopd is in derogation of the finding in its June 26, 

2007 letter that prior testing had not found oil capable of flowing unassisted to the 

-12-	 6817
 
 

 

 

 

 

 

 

 

 

surface. Alaskan Crude argues that there was no basis for the Commission’s successive 

RPS recommendations of 600 and then 115 bopd.25 

We conclude that the Commission did not err. The Commission knew 

from past experience that parts of the West Sak formation had the capability of flowing 

oil to the surface unassisted. The Commission’s analysis of testing data from the Burglin 

33-1 well from the 1980s, “when combined with a reasonable set of rock and fluid 

properties from the Ugnu formation elsewhere on the North Slope,” indicated that the 

Ugnu had the same capability. And it was also relevant that only a small portion of the 

Ugnu and West Sak formations had been tested for such capability; we cannot fault the 

Commission for caution.26 

In Other Order 51, the Commission explained that its RPS recommendation 

of 600 bopd for a project implicating the Ugnu and West Sak formations was based on 

a software application analysis that incorporated average properties drawn from prior 

testing. To arrive at its 115 bopd flow rate analysis for the Ugnu-only proposal, the 

25 The Commission argues that this issue is not properly before the court, 

since it is ADEC, a non-party, that makes the final determination of an RPS; the 

Commission only makes recommendations. What the Commission provides, however, 

is not just a recommendation; it is also a technical assessment of potential flow rate, 

which should be subject to appellate review. The Commission also argues that this issue 

should be deemed waived due to inadequate briefing. We do not consider the issue to 

have been waived. 

Alaskan Crude also argues that the Commission and the superior court 

failed to resolve the question of “whether the mud logs and Halliburton tests show that 

the Ugnu formation at the interval Appellants sought to drill in the Application for 

Sundry Approvals was not capable of flowing oil to the surface.” This question was 

resolved. Both the Commission and the superior court found that there was insufficient 

evidence to prove that the well would not flow to the surface, which was a sufficient 

justification for setting a non-zero RPS. 

-13- 6817 

26 
 

 

 

 

 

 

 

 

 

 

Commission also used an analysis of drill stem testing. The Commission’s RPS 

recommendations were supported by substantial evidence.27 

C.	 Alaskan Crude Waived Its Arguments That The Commission’s 

Decisions Were Arbitrary And Capricious And Violated The Alaska 

Constitution, Article VIII, Section 1. 

Alaskan Crude argues that the Commission’s RPS recommendations were 

arbitrary and capricious. It also argues that the Commission, through the decisions that 

are before us on appeal, prevented exploration in violation of article VIII, section 1 of 

the Alaska Constitution.28 These claims are waived, since Alaskan Crude failed to raise 

them below. 29 On the merits, Alaskan Crude’s arguments are unpersuasive. Each shift 

in RPS recommendations was in response to — and largely accommodated — new 

27 Alaskan Crude presents other evidence indicating that the formations are 

not capable of flowing oil to the surface. It points to DNR’s assessment, in its approval 

of the Arctic Fortitude Unit, that “[n]one of the [prior] tests yielded hydrocarbons that 

would flow to the surface,” and to the opinion of one of its consultants that there was a 

low risk of uncontrolled hydrocarbon flow. Under the substantial evidence standard, 

however, we “do not choose between competing inferences.” Lopez v. Adm’r, Pub. 

Emps.’ Ret. Sys., 20 P.3d 568, 570 (Alaska 2001) (citing Handley v. State, Dep’t of 

Revenue, 838 P.2d 1231, 1233 (Alaska 1992)). “[T]he existence of substantial evidence 

to support [appellant’s] position does not in itself permit us to reverse the department’s 

decision.” Anderson v. State, Dep’t of Revenue, 26 P.3d 1106, 1111 (Alaska 2001). 

28 In its initial statement of points on appeal, Alaskan Crude also raised as an 

issue whether the Commission’s actions “violated [Alaskan Crude’s] right to procedural 

and substantive due process under the United States and Alaska Constitutions.” We find 

this issue waived, since Alaskan Crude did not discuss it in the argument section of its 

brief. See Wirum & Cash, Architects v. Cash, 837 P.2d 692, 713-14 (Alaska 1992) 

(citing State v. O’Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980); Fairview 

Dev., Inc. v. City of Fairbanks, 475 P.2d 35, 36 (Alaska 1970)). 

“As a general rule, an issue that was not raised in the trial court will not be 

considered on appeal.” Pierce v. Pierce, 949 P.2d 498, 500 (Alaska 1997). 

-14- 6817 

29 
 

 

 

 

 

 

 

 

 

requests from Alaskan Crude. And as discussed above, the Commission’s flow rate 

assessments find adequate support in the record. 

D.	 The Superior Court Did Not Err In Awarding Attorney’s Fees To The 

Commission. 

The Commission initially claimed that it had incurred $439,849.89 in 

attorney’s fees, but an amended motion reduced this amount to $84,322.50 and asked for 

an award of 20%, or $16,864.50. The superior court awarded $10,000. 

Alaskan Crude first contests the superior court’s determination that the 

Commission was the prevailing party. Alaskan Crude argues that it prevailed because 

“[a]t the time of the decision, the state had recognized the lowest RPS standard as at least 

theoretically zero barrels, as Appellant had requested.” 

“[T]he prevailing party to a suit is the one who successfully prosecutes the 

action or successfully defends against it, prevailing on the main issue, even though not 

to the extent of the original contention. He is the one in whose favor the decision or 

verdict is rendered and the judgment entered.” 30 In the superior court, Alaskan Crude 

challenged the Commission’s RPS recommendations and classification of the Burglin 33­

1 well and raised a constitutional challenge to the relevant statutory framework. The 

superior court upheld the Commission’s RPS recommendations and well classification 

and declined to reach the constitutional argument. Alaskan Crude clearly did not prevail 

on any of the main issues in the case. 

We also find unpersuasive, for several reasons, Alaskan Crude’s argument 

that it prevailed because during the course of agency proceedings ADEC recognized for 

the first time that an RPS could theoretically be set at zero. First, ADEC explained that 

it would be unrealistic in practice to set an RPS at zero, so the change in the agency’s 

Carr-Gottstein Props. v. State, 899 P.2d 136, 148 (quoting Tobeluk v. Lind, 

589 P.2d 873, 876 (Alaska 1979)) (internal quotation marks omitted). 

-15- 6817 

30 
 

 

 

 

 

 

 

 

 

 

regulatory interpretation is not that significant. And second, even with the benefit of 

ADEC’s changed interpretation, Alaskan Crude did not achieve its desired outcome on 

the RPS issue, as evidenced by this appeal. 

Alaskan Crude also argues that the superior court’s fees award was arbitrary 

and lacked explanation. When a superior court awards attorney’s fees while acting as 

a court of appeal from the decision of an administrative agency, “ordinarily the award 

‘should only partially compensate the prevailing party . . . .’ ” for attorney’s fees and be 

limited to attorney’s fees incurred in court.31 When awarding fees in an administrative 

appeal, “[t]he superior court need not explain its basis for awarding fees; it must only 

explain denials.”32 

Alaskan Crude’s argument that the superior court erred by awarding fees 

“without substantial explanation” is thus without merit, given that the court ordinarily 

need not explain its awards at all. Furthermore, the superior court did provide some 

explanation for the award in this case: “The state expended enormous unfruitful time 

prior to the briefing in chief. The court estimates the appeal, which was fact-intensive 

but not particularly complex, could reasonably have been managed for $50,000, and so 

awards 20%.” The court exercised its discretion in critically analyzing the time needed 

for the appeal and constructing its award accordingly.33 The superior court only partially 

31 Kenai Peninsula Borough v. Cook Inlet Region, Inc., 807 P.2d 487, 501 

(Alaska 1991) (citing Alaska R. App. P. 508(b), (c), (e); McMillan v. Anchorage Cmty. 

Hosp., 646 P.2d 857, 867 (Alaska 1982); State v. Smith, 593 P.2d 625, 630-31 (Alaska 

1979); Kodiak W. Alaska Airlines, Inc. v. Bob Harris Flying Serv., Inc., 592 P.2d 1200, 

1204-05 (Alaska 1979)). 

32 N. Slope Borough v. Barraza, 906 P.2d 1377, 1382 (Alaska 1995) (citing 

Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478, 480 (Alaska 1984)). 

33 See Stosh’s I/M v. Fairbanks N. Star Borough, 12 P.3d 1180, 1186 (Alaska 

2000) (concluding that the superior court acted within its discretion where “it properly 

(continued...) 

-16- 6817 
 

 

 

 

compensated the Commission, and the billing report that the court considered was 

restricted to the superior court appeal. The superior court’s award of $10,000 in 

attorney’s fees was not manifestly unreasonable and is therefore affirmed.34 

V. CONCLUSION 

We AFFIRM the superior court’s decision upholding the Commission’s 

rulings with regard to well classification and RPS recommendations and AFFIRM the 

superior court’s award of attorney’s fees. 

33(...continued) 

considered the number of hours spent by FNSB, reducing the award because the number 

of hours FNSB claimed to have spent on its case was disproportionate to its value”). 

34 Alaskan Crude also argues that there should have been a hearing on the first 

motion for attorney’s fees so that it could cross-examine the attorneys who filed the 

Commission’s affidavits, and that this court should consider whether the Commission’s 

initial fees motion “present[ed] a pattern of unfair treatment of Appellant.” Alaskan 

Crude offers no substantive support for these arguments, and we decline to consider them 

other than to note that ordinarily there is no right to a hearing on the issue of attorney’s 

fees. See Nat’l Bank of Alaska v. J. B. L. & K. of Alaska, Inc., 546 P.2d 579, 591 (Alaska 

1976) (citing Urban Dev. Co. v. Dekreon, 526 P.2d 325, 329 (Alaska 1974)). See also 

Wirum & Cash, Architects v. Cash, 837 P.2d 692, 713-14 (Alaska 1992) (“Where a point 

is not given more than a cursory statement in the argument portion of a brief, the point 

will not be considered on appeal.”) (quoting State v. O’Neill Investigations, Inc., 609 

P.2d 520, 528 (Alaska 1980); Fairview Dev., Inc. v. City of Fairbanks, 475 P.2d 35, 36 

(Alaska 1970)). 

-17- 6817