Moore v. State

To hold otherwise would emasculate engendered by

restraints the doctrine of powers poten-

separation of and result in upon

tially serious encroachments the exec- branch, legislative

utive because point

there logical would be no termination legislature’s confirmation execu- appointments.23

tive superior Af- judgment court’s

firmed. BURKE, JJ., partici-

CONNOR

pating. al., Appellants, D.

Kenneth et MOORE al., Appellees.

STATE Alaska et

STANDARD OIL OF COMPANY CALI FORNIA, Cross-Appellant, al., Cross-Appellees.

Kenneth D. MOORE et

Nos.

Supreme Court of Alaska.

July 9, 1976. any arguments unnecessary holding advanced other to discuss makes it Our appeal.

H Matthews, Jr., and David Warren W. Matthews, Baily, Dunn An- Shimek & chorage, appellants cross-appellees. for and Gross, Atty. Gen., Avrum Juneau, M. Reeves, Gen., Atty. and N. Asst. for James appellee, State of Alaska. Groh, Clifford Groh of Benkert & J. Walter, Anchorage, appellee, for Call. Owens, Owens, Jr., Thomas P. Davis Bartlett, Anchorage, & for appellees, Si- masko Production and Phillip Rahoi. Cole, Hartig Robert L. Hartig, Rhodes, Norman, Goltz, Mahoney, & An- Schulz, chorage, appellee, Texas Intern. Petro- May for Thomas E. dismiss- ing plaintiffs’ Corp. leum amended complaint and granting the defendants’ motions for sum- Eastaugh Eugene F. Robert L. mary judgment. Although the defendants Delaney, Wiles, Moore, Hayes & Wiles of summary judgment had moved on Reitman, Anchorage, appellee, Stan- grounds, grant number of trial court’s dard Co. of Cal: Oil summary judgment solely was based Rudd, An-' Joseph Ely, Rudd of & Guess the issue of laches. appellee, chorage, for Shell Oil Co. amended, complaint, In their as Burr, Kurtz, Burr of & Donald Pease alleged that the lease sale unlawful for appellee, Anchorage, for of- Union Oil Co. 1) three reasons: state did not officials Cal. comply 2)' provisions; with certain notice Douglas Pope, Anchorage, as amicus state officials did not make a reasoned Smith, Betty curiae for Lee Charlene finding that the sale would serve the best Huntley Lotspeich. and Claire state; and, 3) interests of the state offi- comply cials did not with AS 38.05.305re- CONNOR, RABINOWITZ, ER- Before joint quiring study and review with local BURKE, DIMOND, JJ., WIN J. planning agencies prior authorized to the Pro Tern. plaintiffs’ sale. The defendants denied al- legations, addition, urged, several OPINION defenses, affirmative one of which was CONNOR, Plaintiffs and defendants then laches. Justice. summary judgment filed cross-motions for This lawsuit concerns legality grounds. based on the aforementioned gas sale of certain offshore oil and leases history indicates record vicinity Bay. located of Kachemak leading sale leases and events Bay highly productive Kachemak is a ma- basically this initiation of lawsuit environment, rine and a number of com- April 1972, press follows. On release mercially species valuable of fish and shell- governor’s announcing from the office fish inhabit the area. The sale in proposed gas leases in sale of oil Ka- Competitive was denominated the “28th Oil Bay published. Following chemak Sale,” and Gas Lease and was conducted announcement, Homer, citizens of includ- Depart- the Division of Lands of the representative ing of the Homer Cham- ment Natural Resources of the State Commerce, expressed ber of their concern Alaska on December Plaintiffs proposed over the sale to state officials. sued to set aside the sale of the leases. by the These individuals were reassured The prerequi- issuance of those leases is a any plans officials that to sell leases state development gas site to the of oil and re- Bay vicinity in the of Kachemak located in of Bay sources area. Six Kachemak indefinite, industry interest were re- plaintiffs are commercial fishermen competing slight, the area was and that Seldovia; siding in Homer and the sev- uses and environmental considerations enth, McBride, lodge owns and a operates any would be taken into account before Bay. on Kachemak Plaintiffs their believe leases were sold. explora- if livelihood will be threatened oil production tion and occur in the waters 1973, 13, July the call for nomina- On they The defendants fish. are industry. tions the oil was issued to of State Alaska and the lessees of represents the state’s call nominations bay tracts in near leased which were request expressions industry of interest at the sale. particular Nominations of the sale. by companies and are made the oil by plaintiffs from tracts taken appeal

This was tracts opinions as to which Superior Judge indicate their by an order entered Court leased; are assert confidential. the laches a should be defense as of matter 4, September nominating period law. closed a The decision sustain defense to 18, on in- September 1973, based On properly based on laches is addressed from the nominations formation received court,2 the discretion of the trial and will companies, the oil the Chief of Min- of not be feel a overturned unless we definite Lands, the Division of erals Section of a has firm conviction that mistake Denton, a Pedro sent recommendation been committed.3 Concerned Citizens of Resources, of Natural Commissioner South Kenai Peninsula Kenai Peninsula Herbert, portions large Charles to include 447, 1974). Borough, (Alaska Bay of the area sale. On Kachemak Citizens, In Concerned South Kenai 1973, 19, approv- his gave October Herbert sup Borough, Peninsula v. Kenai Peninsula per recommenda- al of the sale Denton’s ra, forth are we set those elements which 1973, In November of the Division tion. finding crucial to a of laches. stated: We formal notice proceeded of Lands issue equitable an de- “The doctrine creates 1973, 5, peti- a December sale. On delays a a party asserting fense when hearing signed by requesting a tion A period. an claim for unconscionable Bay Kachemak about 300 residents find court must both an unreasonable de- by Division of area was received seeking preju- relief and lay resulting request was denied. The sale Lands.- The Sustaining dice to the defendant. held leases was December requires trial defense a decision January of 1974. were issued equities justify court that the of the case I. party’s hear refusal and decide claim.

In its memorandum decision dated May 1975, the held that trial court elapse specific No time before the must plaintiffs’ de- claims were barred laches defense of can be raised because laches, fense their suit conse- to hear propriety refusing a claim quently dismissed. this case arose Since upon as gravity turns much summary judgment, we must determine prejudice suffered defendant whether any genuine there were issues of length delay.” fact, moving par- material added) (emphasis (footnote P.2d judgment ties as a were entitled to matter omitted) of law.1 Examination the record does independent there two genuine reveal that there issues Thus equi must met before the material fact before the court with re- criteria which applied. spect to issue of turn of laches can laches. We now table doctrine legal presented plaintiff to a must show the questions review The defendant delay, resulting un to determine below erred inexcusable guilty whether the court ruling prejudice that defendants were entitled due defendant. give 56(e). in evidence which Alaska R.Civ.P. of conflicts existence genuine fact rise issues of material Ry., 2. See Gardner v. Panama 342 U.S. grant adequate ground for reversal of 30-31, (1951). 96 L.Ed. 31 72 S.Ct. Braund, summary judgment. v. Inc. See 1971). (Alaska White, 50, apply 3. This in P.2d is the same test we deter 486 53-54 mining judge’s findings holding are we believe a trial is based on what Our clearly Hedberg, undisputed See v. facts. the trial court’s Sanuita While erroneous. 1965). attempted 647, (Alaska opinion it have 404 P.2d 650 6 indicates n. While disputes by merely below, find clear factual we error cannot demonstrated resolve certain relating showing evidence, merely in misconceived facts a conflict that it Preferred disputes Agency, Raffetto, facts the material General 951, Inc. v. 391 to those and that P.2d reality (Alaska relating in 1964), in will those issues were and we not re weigh conflicting evidence, 952, id. at conflict. delay The element knowledge has been plaintiffs, the conduct of diligence”4 described as a “lack of defendants, the interests to be vindicat “neglect, ed, an unreasonable and resulting prejudice. unex Defend plained time, length of under circumstances ants urge us to look to the time at or near diligence.”5 permitting plaintiffs the1 lease sale as the crucial date from argue that the finding trial court erred in plaintiffs’ delay. They measure they guilty delay assert appropriate point such or ne it is the in glect. point Plaintiffs filing out that time irregularities since it was the alleged suit, early 1974, their in December of sale itself that formed the basis of closely followed the the suit for, issuance of the first below. agree; We cannot in permits allowing determining commencement of actual applied, when laches should oil exploration Bay. activities in Kachemak our concern is not so much with when the example, For permit the first authorizing alleged wrong occurred, when, as it is with lessee to drill was issued in light any to Shell resulting prejudice Oil Com to de pany 12, 1974, fendants, on November approximately it expect became reasonable to three plaintiffs weeks plain to the initiation upon to act wrong. It tiffs’ plaintiffs suit.6 Thus from point the latter contend onward that promptly plaintiffs’ acted once their begins usufructu- time to run. Thus rights ary Bay waters of Steubing gar, Kachemak v. Brine (2d 511 F.2d 489 were actually endangered. reviewing 1975), bar, Cir. In a case similar to the one at all the facts and case, plain circumstances of this Second Circuit did not measure agree we plaintiffs delay must tiffs’ wrong were not from the time when the guilty of such delay which was plaintiffs’ inexcusable as the basis for to bar suit them asserting from Instead, their Appeals occurred. claims. More the Court of over, prejudice sufficient looked point plain has not to that been es time when and, tiffs, tablished therefore, on the record laymen challenging we administrative action, do not equitable likely believe the would most galva doctrine have been laches apply. should nized into action and motivated to hire plaintiffs counsel.7 It noted that had a point plain time at which right to assume that federal officials would tiffs must exercise their remedies in court comply applicable with the law.8 We are right lose their to assert their cause of agreement analysis depends action with the equitable on the facts and case, considerations of each including Appeals. Court One of the factors States, 265, 4. junction federally- Costello v. enjoining United 365 U.S. construction of a 282, 534, (1961). expressway bridge 81 S.Ct. 5 L.Ed.2d 551 funded over Lake Chau- tauqua pending preparation New York Melani, 143, 5. Arnold v. 75 Wash.2d 449 P.2d filing Impact of an Environmental State- (1968), modified, 450 P.2d 815 pursuant ment, Environ- National (1969) (dissenting opinion); Hanns Policy They mental Act. contended that Hanns, (Or. 246 Or. injunction pending compli-. issuance of 1967). delayed improper anee was because 6. In Company November of Shell Oil bringing action, bridge because approval “plan opera- also received of its adjacent highway allegedly at sections were Lands, tions” from the State Division of stages planning advanced construction or. permit granted Army a location having spent been with substantial thereon, sums Corps Engineers. A draft E.P.A. dis- delay and because result would charge permit which would authorize substantially increased costs. Id. at 491-92. discharge cooling waters, deck drains and of. 495; accord, Why? 8. Id. I-291 Ass’n v. sewage drilling platform (The from an oil (D.Conn. Burns, F.Supp. 236-37 George Perris) go did not on record with no- Volpe, 1974); F.Supp. 1324, Clark February 28, tice to the until (E.D.La.), aff’d, 1328-29 461 F.2d 1266 Stenting, (5th F.2d at 495. 1972). defendants Cir. appealed entry preliminary from the of a in- pending who did know of the sale to have plaintiffs’ measuring the consider will circumstances, recognized they only it that had a cause when, under the delay is action,10but to have plaintiffs also hired counsel longer reasonable no became comply days preceding filed suit would defendants that to assume Brinegar, Steubing supra, to that sale.11 also look will law. We positive' acknowledged plaintiffs court that were there time when point in long were aware the pending project, made which by defendants steps taken (cid:127) irrevocable, year they and that more than a before of conduct their course plain- brought they suit were or should reasonable aware galvanized have would being have been aware that buildings were seeking lawyer. into a tiffs contemplation demolished in of construc- maintain, in addi Defendants project enjoined.12 tion of the which was held account tion, should be plaintiffs that Nevertheless, the court chose to measure aside the to set filing suit able for not plaintiffs’ delay from the prepara- time they first learned from the time leases project earnest,” tions for the “began in plain some Since the sale itself. land, stripping with the removal of it occ before lease sale tiffs knew of the trees, dredging, construction the first should suit urred,9 argue that defendants test piling, The etc. Second Circuit ex- How to sale. brought prior have been plained “positive that it was not until such plain ever, of the six shows that the record developments” had occurred that one could only the sale deposed, learned of tiffs one usually expect opposition project to a only heard place, one it taken after had galvanized that sort to be extent sale, prior to the “rumor” talk and parties go would out and hire counsel.' a it only of within remaining learned four Utilizing the criteria enunciated the event. period prior to week three above, plaintiffs we do not find that plaintiffs cannot some of the knowledge of delayed Moreover, unreasonably. instant case it Not others. imputed drilling permit until the first plaintiffs issued expect the hardly reasonable any grounds upon erroneously judge knew of in his which suit found 9. The trial Knowledge plaintiffs could be filed. of the lease sale knew decision that memorandum of imply knowledge Bay itself does not of admin “some inclusion of Kachemak irregularities might give istrative prior rise are not While we to the sale. months” Why summary findings a cause of See I — 291 judge’s action. ? Ass’n on bound Burns, F.Supp. 223, (D.Conn. judgment, v. 1974). if them to see and can look behind Talley supported by judgment But see Baskin v. Tennessee his ultimate Authority, F.Supp. 641, (M.D.Tenn. judge may record, indicate the such errors 1974). judge’s finding plain The trial assessment in his overall have been mistaken tiffs knew or should have known of some of South Citizens Concerned of the case. Cf. irregularities prior alleged to the sale Bor v. Kenai Peninsula Kenai Peninsula ough, (Alaska of the leases was erroneous. & 26 P.2d 456-57 n. 52(a). 1974) ; Alaska R.Civ.P. all also contend that even if Defendants knowledge plaintiffs did not have actual arguments effect to the Defendants’ occurrence, they prior to its of the sale sale, plaintiffs possessed, time of the near the put the notice on constructive notice of legal knowledge possible reme- actual Anchorage published in the Times which was pursued stop they might set have dies have sued to the should and therefore convincing. If it can are not aside the sale sufficiency of notice the sale sale. knowledge of their had be said that is, course, by publication one of the issues sale, it was near the time remedies pleadings plaintiffs’ the merits. raised general only extent that a sentiment publication though was in notice Even something among them that existed some of sufficient, legally its relevance to fact agencies to make the state should be done marginal, question is the laches resolution of responsible sale the lease which were published especially the notice was where Homer, the citizens of accountable to only held. sale was before the weeks few way accomplish might be one lawsuit goal; F.2d at 495. 12. does not reveal record 18 sufficient- affirmatively 1) on notice because it was uncertain that plaintiffs

were tracts development per- ly large would be received for that, litigation, bids barring leased; 2) the is- Bay Bay in in would Kachemak resources Kachemak troleum development a month fol- suance of leases did not mean proceed planned.13 as Within and, if plain- place; 3) take no one knew permit, that would lowing the issuance of drilling actually opinion, the would be allowed suit filed. In our tiffs’ bay. The trial court found that such as- drilling permit marked the of the issuance again.” surances made “time and time became so irrev- were at which defendants time Furthermore, action, they made to at least were ocably to a course committed interest, plaintiffs’ one individual who later worked with endangered the plaintiffs organizing their lawsuit. The reasonably have been could underplayed importance assurances expected legal to seek remedies. of the the lease sale itself to the citizens concluding, recognize In so area, giving Homer them a false sense of legal easy to mount an effective no matter security. project magnitude against battle a of this plaintiffs, Following sale complexity. Often, and the “mists of bur- families, organiza members of their eaucracy” impenetrable lay- remain to the they belonged continued to to which tions man, may cases as these tend such protest They legislative the sale. attended posture the true defend- obscure hearings, they and administrative where Moreover, agencies. ant as we noted be- their and offered evidence on aired views fore, plaintiffs presume right had the development in merits of the relative oil proceed defendants would in accordance pur Bay. good Even the faith Kachemak plain- with the Before hold law. we will justify remedies not suit of alternative guilty neglectful delay tiffs sufficient delay is otherwise unreasonable re what laches, for we will accord them a reason- prejudice sulting in undue to defendants. able amount of time which to ascertain However, record the instant case irregulari- the existence of administrative con does reveal what would otherwise scope ties and the of defendants’ commit- prejudicial Moreover, delay. stitute ment. pursuit alternative remedies was itself factor we have considered is reasonable course of action and was con One history ducted in a reasonable fashion. assurances made before the Under circumstances, penalize many plain sale state we will not officials to citizens of any delay resulting heavily Homer. The assurances to the effect tiffs too for that, held, although attempts the sale to be from to reach a more amicable problem.14 there was no immediate cause concern resolution of defendant, delayed course, corporate positive had Of assets to the the occurrence of such They pur- developments suing fifty years. question over had relevant unproductive remedies, prejudice delay. sued alternative as well as period. delay results, prejudice de- that entire Laches two elements of over balancing any all are arrived at mentioned in cisions discussion of doctrine particular laches, present in a case. as the factors are somewhat interde- fifty overwhelming pendent. such an factor When applying year delay militates in favor of plain- laches, dismissal of some of court’s Defendants have cited Landell v. Northern hardly surprising. Ry., F.Supp. 253, (D.D.C. Pac. tiffs’ other theories is 122 256 Johnston, 1954), aff'd, U.S.App.D.C. 24, Stewart 30 Wash.2d 223 F.2d (1948), (1955), support Oenterview/Qlen P.2d of their contention Brinegar, pursuit Homeowners Ass’n. Avalon of alternative remedies will F.Supp. 633, (C.D.Cal.1973), However, case, have also not excuse laches. point. plaintiffs, minority Like been cited defendants on who were shareholders Landell, present reorganized corporation in a these eases situations where and were con testing would, any case, validity be much more of the transfer courts po- public. made It is the defendants’ laches determining bar, process and the bidding sition that both the applied in case at properly the was process, nomination the results of which fact that under Sec overlook the cannot constitution, until the remained confidential date of our tion 1 of Article VIII sale, effectively required bidders dis- prop in to has an interest public also close their best estimate of likelihood development of Alaska’s resources.15 er partic- exploration of oil on the plaintiffs’ successful agree as While we cannot upon. judge lease The trial applied ular sites bid laches should never be sertion that “proprietary stake, the information as nei described “public interest” is at when the argue if information.” Defendants accept ther defendants’ contention do we plaintiffs promptly brought had an action public status of a case that the interest sale, enjoin of infor- ap to the release whether laches should irrelevant to prevented, and have been Instead, weigh im mation would plied. we choose to spared they would have been the conse- portance question, in interests quent prejudice. bringing and merits of and the difficulties court, part type a as a of case of this to how fail to understand defendants We balancing equi process overall prejudice plaintiffs’ such can ascribe particular to determine ties of case diligence”.17 only Plaintiffs “lack plaintiffs guilty inequitable are two three learned of the sale delay.16 previous- preceding As we noted weeks it. Finally, we must consider ly, immediately for their to file suit failure prejudice. element of We do not find that injunctive relief not unreasonable. plaintiffs’ filing delay in suit has suffi passed, Obviously, sale had once the date ciently prejudiced justify defendants to injury which resulted to defendants plaintiffs’ company barring The oil suit. bidding their informa- from the release of alleged defendants have that the disclosure any greater sub- tion became no because will certain information at sale the lease part plaintiffs. delay on sequent injure posi respective competitive their Moreover, pro- expenditures made they tions if forced submit new bids the information must have occurred cure They for the same tracts in the future. Speculative many months before sale. also maintain that the information was ac type be as- expenditures of this cannot quired sale, great expense. at At the plaintiffs’ filing delay in suit. cribed to opened bids of the various lessees were policy concerning importance likely based on laches entertain defense Bay. particular Moreover, of Kachemak resources than does the case at bar. plaintiffs protested have case bar Ecology Louisiana, Inc. 16. Center See vehemently, directly, more and more than the 860, (5th Coleman, Cir. 868 v. 515 F.2d foregoing cases. did 489, Steubing Brinegar, 1975) ; F.2d v. 511 Finally, considering all courts laches (2d 1975) ; Environmental 495 Cir. Defense against plaintiffs claims held have it Valley Authority, v. 468 F. Tennessee Fund delayed pursuing filing less suit while (6th Arling 1164, 1972); Cir. 1182-83 2d See, g., e. drastic means. Minnesota Public Transportation Volpe, v. Coalition on ton Group Butz, Interest Research v. 358 F. 1323, (4th Cir.), cert. F.2d 1329-30 458 denied, (D.Minn.1973) (plaintiff’s Supp. 584, 620 312, 1000, 34 L. 409 93 S.Ct. U.S. government’s reliance found on assurances Why? (1972); Ass’n I-291 v. Ed.2d 261 “justified reasonable”). (D.Conn. Burns, F.Supp. 237-39 372 1974). AlyeskaSki Corp. Holdsworth, v. 15. See Brinegar, 692 (Alaska 1967). F.2d 17. 506 Lathan See P.2d 1011 1974); Volpe, (9th provides 455 F.2d 16.20.220-.270, Lathan v. Cir. also AS 1971) ; (9th Student Iowa Cir. Kache critical habitat areas. the creation of Group (ISPIRG) Bay designated Interest Research Public an area in mak such (S.D.Iowa F.Supp. Callaway, desig Oh. 117 SLA 1974. 1974). legislative represents expression nation an proper Company is the time "Oil claims that November 1974 Defendant Shell plaintiffs’ delay. prejudice, be- from which to measure it additional suffered upon the cause of it took reliance action spent that it The state claims Following sale, ap- the lease lease sale. money preparing for the great deal ex- permits begin plied for four order However, expenditures cannot sale. such It ploration activity its tracts plaintiffs’ delay. attributed late signed a contract June argument money received state’s that the drilling had it of a vessel and services budgeted been already from the sale has brought entered into to It also' Alaska. unpersuasive. appropriated is and also supplemental for services some contracts bar, plaintiffs trying not to the case at are services, helicopter such as warehouse project large halt on which amounts space, storage space, mobile office etc. spent.18 funds been already state have Most, all, if contracts were not of these resources,19 Moreover, protector as our plaintiffs filed entered into before suit. hardly argue the state can that it would be permits seeking inconvenient funds the oil to return the companies constitute the kind of serious if sale set alone cannot aside be required justify imposition Finally, prejudice improperly. cause the state acted As laches. for the contract for there is no evidence those funds were ac vessel, appears was drilling tually budgeted appropriated. that Shell until not use it at least planning] Considering importance 1975, had company after another oil stake, preju- interests at the lack of serious finished in using it another location plain- dice to defendants the result of in drilling rig was Alaska. When tiffs’ delay, plaintiffs the efforts of to se- finally Bay in moved to Kachemak relief, cure more amicable means of 1975, was Shell unable to commence drill state, the conduct of defendant can- we operations ing rig had suffered because agree not trial judge prosecu- in mechanical breakdown. The costs plaintiffs’ inequita- tion claim would be curred contracting drilling in for the vessel ble. may have been substantial. But we do plaintiffs see how attributable to II. company using

when another oil was drilling plaintiffs’ judge The trial vessel the entire time of dismissed alleged plaintiffs’ delay. solely action on the The other contracts are not basis laches, magnitude ques and did not reach the justify imposi sufficient other laches, especially presented tion of tions which were on where the inter the cross- However, summary judgment. important. ests are so im for stake Most motions portant, urged defendants have us to consider Shell entered into these contracts these activities, questions if part, prior for the we find that the trial court most granting summary judgment November erred in we have concluded 1324, 1327, F.Supp. (E.D.La.), aff’d, 18. A number of courts 1329 which have faced the 1972) (5th (applied in 461 of laches of environ F.2d 1266 Cir. laches context Ecology litigation highway complete) ; degree mental where have looked 25%-30% completion Louisiana, Coleman, project Center Inc. v. of the contested im 515 as an portant (5th determining 1975) (declined element F.2d the extent of 868-69 Cir. prejudice. See, let, g., the defendant’s e. to invoke laches where bids had been but Smith Schlesinger, started, F.Supp. (C.D.Cal. project barely distinguishing v. 371 itself 1974) (applied grounds). project supra, Clark laches where on these was 35%-40% mplete) ; In Iowa Student Public co Group (ISPIRG) Community, terest Research An v. Metlakatla Indian Callo Cf. way, F.Supp. 714, 717, (S.D.Iowa Egan, nette v. Island Reserve 362 P.2d 1974) (applied project (Alaska 1961). laches dam where complete) ; Volpe, Clark 66% (b) published Ha shall be Ransom Notice once laches. the basis of Under pre- ner, 1961), we week for three consecutive weeks (Alaska ceding the no- grant of summa the time sale stated affirm a trial court’s can tice, general grounds newspaper exist in at one ry judgment, if alternative least of which the judgment zncinity below. Since circulation upholding land, property erred or interest in it to be have that the trial court decided laches, leased, sold, disposed of. summary judgment on granting Where newspaper general there is arguments to the other no circula- we now turn vicinity, presented on the cross- tion notices shall to the trial court posted public places if summary judgment to see three near motions for sold, leased, judgment. its land to be or otherwise dis- grounds upholding exist posed (Emphasis added) of. . .” must consider include The issues we below, com claims advanced published The notice prising of their case. the merits However, Kenai Cheechako News. publication paper last in that was less than

III. Hence, prior a to the sale. week there was pursuant not sufficient notice to AS 38.05.- question The we will consider first such Times, Anchorage 345. Publication complied is Division of Lands whether the hand, the other occurred within the concerning the legal requirements proper time set forth in the stat frame as publication Plaintiffs asserted of notice. ute. the invalid on below that the sale was publication of of the ground that the notice we turn of Thus to the Times and the Ken- Anchorage sale Anchorage is a whether the Times “news satisfy

ai failed to News Cheechako paper general circulation” in the vicini man- statutory relevant constitutional ty Bay. de of Kachemak threshold Our trial did dates. As noted court above “general phrase termination is how the cir rule not on the issue. proper be culation" shall construed. VIII, 10, Article of the Alaska Consti- § “general construction of the term circula provides: tution requires consideration of both the tion” lands, qualitative quantitative aspects of the disposals “No or leases of state or A therein, publication. newspaper which contains shall be without interests made general community safeguards news of interest to the notice and other readership prescribed by and reaches a diverse one of may interest general of the fact circulation.20 In view law.” Anchorage that the Times carries news on provision, this Pursuant constitutional variety subjects general a interest legislature Land enacted the Alaska reader, average only lack of a readers Act, provisions of are now deny it in the Homer area could the status found in 38.05.005-.370. AS 38.05.345 AS “newspaper general circulation of a provides pertinent part: vicinity” of the lands offered for lease. sale, “(a) a Public notice of lease or dis- pub At time notice was posal it, except land or interest lished, area population of the Homer grants chapter of this under 330 3,500. approximately The circulation was preference right grazing leases under §§ in the area was Anchorage Times chapter, required, 75 and of this when 80 read- approximately 130. The number of substantially shall be as follows. (1924); 345, 462, 20. See ex rel. Bowler v. Board Cal. P. State Shulansky Michaels, Ariz.App. County Comm’rs, P.2d 106 Mont. (1971). Coldron, (1938) ; Besler v. 16-17 29 Okl. Brown, ; (1911) Baldwin v. 116 P. 787 small,21 ers, insignificant not 38.05.035(a)(14) provides: albeit so newspaper fail would reach “The shall director group people community. diverse (14) finds that interests of when he Therefore, it must be said that the Anchor served, may, the state he will best newspaper age of “general Times was commissioner, with the consent of circulation” in the Homer area. approve sale, lease, or contracts for the foregoing precludes determination lands, disposal re- other of available plaintiffs successfully arguing from sources, property interest them. give ade- Division Lands failed to quate Competitive notice of the 28th Oil majority A of this court be required by Sale as Gas AS 38.05.345. formal, lieves finding that no written IV. necessary statutory language. under this However,

Plaintiffs’ majority second claim on the merits also be court was that the sale was unlawful because lieves that the determination direc preceded by finding not a reasoned tor judicially should be reviewable.22 Ac made the Director of cordingly, the Division of this case must be remanded to Lands that the sale superior would best serve the appropriate court for further proceedings interests of the question.23 state. on this state, 21. The contend that small best interests of the he issue percentage readership finding could, mandates a leases. The statute ef- same comply Anchorage fect, Times does have read “when the director believes” statutory However, requirements. opinion” with or the “when the director is of the that Printing Publishing Co., served, Times Co. v. Star the state’s interest is best he 1040, (1909), 51 distinguishable. 99 Wash. P. 1041-43 is lease the lands. analysis Indeed, a statistical statutory language permissive in is inap for the issue at would hand be most “may approve character: . . . con- propriate readership only because size of is engaged tracts.” The state is here one factor which must mining in be considered deter public proprietary of conduct business rather particular newspaper a whether is one regulation private enterprise. than 1 the of general circulation. Cooper, F. 90 State Administrative Law subject separate (1965). in This is the treated This convinces me that the decision opinion by herein filed Justice Rabinowitz. to lease or not to lease is com- agency Moreover, mitted to discretion. that 23. I must dissent from the court’s remand is discretion exercised in the formulation of of this case. public policy highly the basis technical nothing requiring I find a this statute scientific and economic information which public hearing finding or formal written ' poorly equipped appraise. we to are order to determine state lands that shall problems presented type the which dangers I am leased. not unmindful of the properly legisla- should be resolved the finding assuming general that a award or government. tive and executive branches of implies finding specific a of all facts Kelly Zamarello, (Alas- v. 913 P.2d support However, needed to it. 1971). ka “Implying findings ultimate from the ac- quite Alyeska Oorp. Koldsworth, tion taken is provides If a In v. different. statute Ski grant (Alaska 1967), agency that shall P.2d we held grant certificate if it that that finds is decisions of the Division of Lands con- interest, public agency grants cerning if the leases under the Alaska Land Act saying anything judicially reviewable, subject the certificate without to were public interest, good procedure adjudicatory about re- sense sections review quires reviewing Act, that court should the Alaska Administrative Procedure imply finding specifically the ultimate inter- I AS 44.62.560 and note .570. usually est. The Davis, 2 K. courts so hold.” that in both of the above cases issue 16.07, facing persons Administrative Law Treatise the court concerned had who (1958). party proceeding at 456 been to the administrative Here, bar, however, brought statute makes no mention of below. The case at is says formal, merely “finding.” plaintiffs nothing written It who had to do with below; proceeding that when the director “finds” there to administrative properly agency thereof could seek review

V. noncompliance alleged of the state’s with presented is whether The next They argue in question. the statute is the Divi- lease voidable because sale plaintiffs’ this is interest in matter at best study did and review the sion of Lands and, indirect, merely incidental or there- planning agencies leases with local fore, give plaintiffs not sufficient to stand- that the state the sale. Plaintiffs contend ing. 38.05.305, comply failed to with which previous As decisions of this court indi- requires in certain circumstances cate, concept standing in- has been agencies planning with local state consult terpreted Alaska, broadly favoring in- They selling leasing before or state lands. accessibility judicial creased forums. joint study argue under AS 38.05.305 Boucher, Coghill P.2d with the Kenai Peninsula Bor- review (Alaska 1973), noted that “[i]n ough cities Homer and and the Seldovia past departed . . this court has from required before the lease sale could interpretation standing a restrictive ar- be conducted the state. Plaintiffs’ requirement.” repre- gument respect with to AS 38.05.305 ground contesting sents their third party standing has Whether validity of the lease sale. judicial to obtain resolution of a controver sy party has suf depends on whether is whether threshold consideration Our n personal ficient stake the outcome of the re- judicial are entitled to obtain controversy.24 In our recent decision view of state’s failure consult with Court, Wagstaff Superior Family Divi agencies prior holding the sale. In local sion, (Alaska deny 1975), regard, urge re- defendants us to requirement in we described this terms of plaintiffs, ground that as indi- view on the “injury-in-fact,” explained its viduals, standing noncom- have no to claim purpose adversity is assure pliance AS 38.05.305. Defendants judicial proceedings.25 community fundamental only submit that an offended any legal adjudicatory nothing determination violates norm. To the Division about inquire, plaintiffs. is to cri- interfere without reliable action as it affects these Lands’ standards, They affected, rather, in teria into an or area which in are much the same expertise. way general the have courts no the would be affected any regulation passed. statute or that is Morton, 727, 24. v. Sierra Club 405 See U.S. Furthermore, the of Soldsworth basis the 731-32, 1361, (1972). 92 S.Ct. 31 L.Ed.2d 636 legislature decision that would not the Carr, 204, presumed 186, 25. See Baker v. 369 U.S. be to intend 691, (1962). stripped 82 S.Ct. L.Ed.2d 663 “that be of 7 this court was to its aspect justiciability, Standing obligation is an of to that constitutional insure the origins subject conformity have been the of much whose in administrative decision was g., See, Berger, Standing e. discussion. with laws.” See States Smelt our United ing, Boundary in Is it a Sue Public Actions: Constitutional B. & M. v. Co. Local ; 816, (1969) ; Requirement?, Comm’n, 140, (Alaska 1971) Yale L.J. 840 142 78 489 P.2d Separation Powers, Comment, Standing, State, v. See also Union Oil Co. 1357, 526 P.2d of Citizen, (Alaska 1974). the 24 and the Demise Public n. 1365 of 12. 835, (1975). obliga- Not until I 840 would reaffirm our constitutional Am.U.L.Rev. Const, Supreme tion, VIII, 10, 1968, did the United States Court § art. under Alaska standing explicitly leasing con hold that a the lands and to ensure that of state juris complies court limitation federal with the law. ad- stitutional resources Should caprici- completely diction, or from the “case contro be derived ministrative decisions arbitrary, corruption, versy” requirement III the of Article of induced ous and Cohen, difficulty striking Flast I in them United States Constitution. would have no merely 83, 1942, where, here, they L.Ed.2d 392 20 947 U.S. 88 S.Ct. down. But as However, pointed (1968). also the of Court turn on the director’s determination justiciability, favoring production policy of of out that doctrine of the state part, fishery standing gas opposed con a blend of is a is oil of as requirements policy resources, say consider- cannot that his tourist I stitutional 24 standing.26 Wagstaff,

Plaintiffs ment for In P.2d the case at bar main 535 1225, they adversely tain that be if at we stated: will affected exploration production oil allowed is “It clear falls economic harm Bay. to occur Kachemak Since cognizable within those interests antici- are, part, for the most commercial fisher pated by injury-in-fact doctrine.” men, upon dependent their livelihood is (Footnote omitted). biological productivity bay. of the Thus It does concern us not that AS 38.05.305 they clearly possess personal a stake requires parties the state to consult disposition bay, resources plaintiffs. other than Plaintiffs still have significant injury stand to incur if such a consultation, a stake in such a since 305 disposition were allowed to without occur provides through a mechanism which the presentation the benefit of a com of their dispo- state can arrive at a more informed peting interest in those resources. Pre bay’s sition of In L resources. K & provides possible sumably, a AS 38.05.305 Distributors, Murkowski, Inc. v. P.2d expression plaintiffs avenue for in their 351, (Alaska recognized 353-54 1971), we attempt compre sure to make the state injury competitor as economic to a a basis hends the local effects of its actions. standing, though plaintiff’s even primary Plaintiffs’ interest interest was not in the out- outcome direct litigation essentially such, is challenged As come ac- economic. administrative case, clearly require- In li- injury-in-fact meets the tion. were malt plied ations, easily distinguished. Agency within it. which are not Public Defender 97, Superior Court, (Alaska Blast, Id. at 88 S.Ct. 1942. explained 1975). However, controversy Court that the as the Su case and United States jurisdiction preme explained, supra, only doctrine limits Court federal rele court requiring “dispute sought inquiry questions determining that a vant ad judicated standing presented adversity, separation pow adversary will not an requirement historically adversity context and in capable form ers. Since the has viewed as judicial Alaska, require no constitutional resolution.” Id. 392 base our U.S. aspect at ment at it exist must be S.Ct. 1953. The other characterized judicial concept sep of that doctrine involves rule self-restraint —as must powers. standing aration of Id. entire doctrine of at itself. ad We S.Ct. However, according very separa Court, rule here to this because nature judicial system powers justiciabil incapable tion of our renders it considerations of ity resolving only questions issuing relate abstract or of ad substantive issues the litigant visory opinions adjudicated. any Standing genuine seeks have which can be of questions litigant adversity requirement are limited value. The to whether ensures “proper adjudica question presented party request ais for our an review particular appropriate judicial tion of a that is issue and one determina justiciable.” Haworth, See issue itself is Aetna Ins. Co. v. tion. Id. U.S. Life 100-01, 240-241, Thus, at 300 U.S. L. S.Ct. 57 S.Ct. (1936). requirement requirements adversity federal 617 constitutional Ed. The stand ing injury-in-fact adversity concern the need for is the basis for the and con test which creteness, separation powers. adopted. but not the we have of Moreover, standing the federal of doctrine only Schultz, origin, is not in 26. v. constitutional for in Defendants’ reliance on Jones (9th Processing July 23, (sum 1974) Association Data Service Or No. 73-2790 Cir.

ganizations Camp, 154, 3321), 150, v. 397 U.S. 90 marized 43 cert. denied U.S.L.W. 827, 830, Simon, (1970) S.Ct. sub nom. Jones v. 25 L.Ed.2d 184 the 420 U.S. “[a]part (1975), Court stated that from mis Article III L.Ed.2d 843 is S.Ct. jurisdictional questions, problems placed. stringent do find rules stand We not the ing, Court, applied by questions as resolved this tax have federal courts to involved standing pertinent payer inquiry a ‘rule of self-restraint’.” to our explicitly Davis, The Alaska does Constitution not the instant case. See 3 K. Adminis jurisdiction (1958). limit court troversies,” though “cases” “con- and trative Law Treatise 22.10 See § recognized G.A.A.B., we have also 451 P.2d Jefferson separation powers (Alaska 1969). the doctrine of is im- safeguarding this sought Accordingly, review the interest. quor wholesalers who adopt highly lightly a we will not restric an industrial tax credit to granting of interpretation tive of the statute. requisite stake the brewery. Given find it litigation, we do not outcome of the general definition section of the plaintiff have that a would determinative provides following Alaska Land Act proce- part the administrative played no definition of “lands”: regularity been ob- dure had administrative “Sec. 38.05.365. Definitions. matter this served. Our concern ‘state (16) lands’ or ‘lands’ means all nature so with substantive much lands, shore, including tide sub- as with sought to be vindicated claims lands, merged belonging or resources resolu- plaintiffs’ in the ultimate interest acquired state;” (emphasis Thus hold that claims. we tion those added). standing litigate the plaintiffs have section, Reading together this with § compliance with AS question of the state’s face it its seems that AS 38.05.305 38.05.305. apply should to lease sales such as one question of now turn to the We by plaintiffs. analysis contested Further applies gas to-oil AS 38.05.305 supports interpretation. Com leases as those sold the 28th such throughout We note that sections found petitive Lease 38. Oil Gas Sale. Alaska Land Act utilized word provides: 05.305 way only in such be it could “land” disposed under “Except for land §§ interpreted encompassing resources chapter, land in or 315-325 of this no scope meaning.29 within the of its Admit- municipality adjacent incorporated to an tedly, provisions in certain of the act organized community or other “land” is used in a manner inconsist- word issued, leased, renewal lease sold or or a statutory ent definition proposed of the land has use until However, such incon- term.30 instances of jointly been studied reviewed number, no sistencies are and bear few planning authorized director local special significance to AS 38.- contextual agencies.” section of 05.305. Under definition provision part This Alaska Land act, apply statutory “un- definitions are Act,27 pursuant to Arti was enacted which requires.”31 less the otherwise context VIII, Alaska cle 10 of the Constitution.28 § of AS nothing We find about the context us, resolving before stat- imply which would 38.05.305 keep in man must mind constitutional should utory definition of the word “land” date, VIII, expressed in Article § disregarded. public’s dispo safeguard the interest Nevertheless, joint claim defendants sition of state natural resources. only 145— 38.05.145(a), that under AS study 305 of requirement as set forth §§ apply min- the Alaska Land Act provides a Land Act means Alaska ample con- the term “land” use of 27. AS 38.05.005-.370. statutory That with the definition. sistent Corp., Aleut See State Article is the section of section “General” (Alaska 1975). 736 n. 12 “Leasing governs of Mineral g., See, e. This section AS 38.05.310. Lands”. provides appraisals to of the act See, g., 30. e. and AS 38.05.145 AS 38.05.315 lands, “except in the sale or lease of state despite (a). However, the use of the word gas the an or mineral lease.” case of oil or 145(b) 145(a), in in the word § § “land” except Obviously, there would be need to no clearly manner which is used “land” provi- oil, gas leases and mineral from scope within the of includes resources applicable “land” unless otherwise to sions term. category within of were included 31. for an ex- AS 38.05.365. “land”. See also AS 38.05.135 26 provides 38.05.145(a) apply

eral AS refused to the reasonable basis lease sales. stan- part: interpreta- agency’s dard of review to the relevant explained tion of 305.34 We that § oil, . . “Deposits gas of . . . . applicable reasonable basis test is when an deposits containing and lands these state agency’s interpretation of administrative subject disposition are rules and to under particular agency’s law falls within that regulations, by recommended the director expertise.35 area of went to state: We commissioner, adopted by and and provisions of 145-181 of this “The terms of not tech- AS 38.05.305 are §§ . chapter. nical familiarity appli- .” and mere in their by cation the Division of Lands does not accept argument. Adop cannot We this any agency render that able to better analysis preclude tion of defendants’ would legislature discern intent than application of crucial Alas sections of the apply the courts. will therefore our We ka gas Act oil Land to For leases. independent own judgment as whether to example, Provisions), (General Article 12 agency’s interpretation complies including the section32 definitions of 36 legislature’s intent.” statute, applicable. Similarly, would not be view, In our 035(a) (14) disposition powers of construction of with re- § § spect to facts in at (Administration) Director under Article 1 the case bar is no more inapplicable would matter for expertise be to lease sales such as administrative than 'it was in consideration, Corp. under Aleut one as would the Further, provisions notice 345.33 § Moreover, practical considera legislature explicitly gas excluded oil tions applying gas oil to lease § purview leases from the 38.05.310. adopt sales do not us lead to the restrictive If except no apply sections to 145-181 §§ interpretation of by 305 advocated de § leases, language such would be mean fendants. argues The state that the con ingless. legislature We do believe the requirement sultation 305 would “vir § such a intended result. tually paralyze” the Division of Lands if point applied the were disposals. Defendants out to mineral In sup port argument, state agencies always taken its involved have the state refers to the position and, staking applicable mining claims, is not filing point § ing urge gas They sale of oil and out that property leases. interest such us enforcing agencies’ to defer claims can be con established an act “inher ently question. struction of This the statute unknowable Division Corp., occurs,” we Lands decline to do. v. Aleut when it arguing State thus § would (Alaska 1975), next-to-impossible P.2d 730 the construc apply However, tion of such 305 was also at issue. In that mining situations.37 claims § rejected type case as we the Division of Lands’ referred to the state are long-standing interpretation clearly sertion distinguished section, that its by statutory to, procedure of the statute should deferred mining duration from leases 32. 35. Id. AS 38.05.365. at 736 & n. 13. only applies

33. 36. Id. Defendants claim § However, virtue of 11 we AAC 82.710. expressed 37. The state has also its concern unwilling purely hold that notice is prospect having over the to consult with agency regulation a matter under local communities to the sale of over- Act, especially light Land the con- However, the-counter mineral leases. expressed stitutional concern with notice nothing noncompetitive purchases find about Const, VIII, Alaska art. § any rights of mineral would make apply any 34. 541 P.2d at more difficult them 736-37. than to type purchase other of state lands. both are on shores Land Act.38 of which located Alaska the terms of under leases, economy Bay. of these cit- and Kachemak applies to sales only Section is anxiety presently ies the tourism over based on state’s claims; thus not industries, in turn revolve fishing which studies ev conducting joint prospect of bay. Thus we find around the use unwarranted. is filed is ery a claim time “adjacent Bay is to” the cities the Kachemak advanced position to the In contrast purposes Homer and Seldovia for inform local need to regarding the state 305. sell or lease oil § its intent to communities areas, views of the adjacent gas in Nevertheless, defendants maintain actively industry solicited are oil plat powers “planning, because sale, for deter provide basis

lease are zoning basis” ting on an areawide offered at a tracts will be mining what delegated borough under 29.33.- consulting practical problems of sale. authority within cities located companies gas cannot the oil and with superseded by pow borough borough attendant less than those significantly disagree. purposes ers 305. We for § consulting representatives local with limit “local authorized 305 does not Section communities note that communities. We agencies “area- agencies” with planning must under do which be consulted § au authority. designating In wide” power over the sale or any have veto consult, must thority with whom the state lands.39 lease of state merely to “an incor refers statute that even if Defendants next contend § porated municipality organized or other applicable leases, gas to oil and clearly community.” Homer and Seldovia statutory purpose provision Moreover, fall category. within They argue that under fact satisfied. § stated in Aleut: required Lands is not 305 the Division of ‘planning agencies’ is clear that “[I]t to consult located within with communities agencies autho- cannot be limited that, therefore, borough, organized an provide technical rized statute to not need to be Homer and Seldovia did planning services to certain classes that as to consulted. Defendants maintain communities.” Borough, the Kenai Peninsula within many uses which There are land located, are which Homer and Seldovia it is city plan, regardless of whether must compliance with the there substantial Ho- organized borough. an located within requirement. consultation directly mer affected and Seldovia will Corp., v. Aleut we de State petroleum operations if move to Kachemak of 305 adjacency requirement scribed the Bay. Thus that Homer and we hold Sel- as follows: prior to dovia should have consulted been gas the sale of oil and leases located within adjacent community “lands ‘in to’ a or Bay. Kachemak lands are in utilized fact regular periodic by members of or basis Furthermore, we do not believe community legitimate economic the state record indicates purposes and are located recreational requirement complied the consultation with within a reasonable distance Peninsula Bor respect to the Kenai [community].” Planning Although Borough ough. Sep early Plaintiffs in make as the case at bar their knew of the sale Director in, Seldovia, Department to, Planning homes or near Homer and tember of Compare 40. Id. with AS 38.05.205. at 739. AS 38.05.195 See also AS 38.05.210. Id. at 737. Corp., P.2d at 39. State v. Aleut 739- 24 40 n. studied Borough for the never or reviewed members of the who will be affected proposals particular the lease sale either on disposal its own of state lands a or in disposition consultation with the state. The voice in the of those lands. Borough Assembly adopt However, disposition did a resolution once the has oc- Department curred, urging the of Natural Re- the new owners or lessors also permits necessary paramount- to issue to con- have a maintaining sources interest in drilling Bay rights tinue in Kachemak and Lower their to the land. Wé have no de- Inlet, adopted area, but Cook the resolution was sire in this upset settled transac- after the leases were not find tions sold. We do which were entered in good into tardy attempt type that a this satisfies faith. title conflicts which would be Moreover, prop- engendered the mandate of every 305. if mineral lease or § sale agency er was never consulted. which was past executed in the became vulnerable to attack under the rule we Finally, must we decide whether have today announced would be enormous. apply holding our this matter allowed, If this would create insurmounta- prospectively.42 weigh In deciding, so we problems ble for the state and numerous equities applying holding enunci Finally, individuals. we believe oil parties today light ated before us company defendants in this case were enti- of the criteria set out Schreiner v. rely tled to on the Division of Lands’ Fruit, 462, (Alaska 1974). 466-67 long-standing interpretation of 305. Un- separate Three factors like our dissenting colleagues, we do not First, applied prospec considered.43 to be believe that the interpretation state’s tively, the decision “must establish a new statute implausible. Ultimately the principle law, by overruling either clear question of prospectivity must be decided past precedent litigants may on which have upon a broad basis. regard this relied, byor deciding an issue of first im Supreme United per States Cardozo, Court pression clearly whose resolution J., observed: 44 Second, foreshadowed.” we must evalu “The for any choice state be deter ate the merits prospective of retroactive or juristic mined philosophy of the application of light the rule in of its judges her courts, conceptions their history, purpose Third, and effect. law, origin its and nature.” Great N. weigh hardship must injustice Ry. v. Sunburst Co., Oil & Refining su applying the litigants rule in 365, pra, at 53 S.Ct. at 149. stant case. In order to any injustice, avoid the rule we In applying these standards to the state in this apply case shall only to actions bar, persuaded case at we are that our arising out of occurrences after the date of holding applied solely prospec should be opinion.46 tively. represents The issue us before question impression of first in an area of VI. statutory admittedly law which was not as might clear as it primary urged have been.45 A Defendants have us also to consid- purpose er underlying the statute is give plaintiffs’ of whether Refining Ry. Fruit, quot See Great N. Schreiner v. Sunburst Oil & 519 P.2d at ., ing 358, 363-64, Huson, Chevron Oil 287 U.S. Co. v. 53 S.Ct. Co U.S. (1932). also, Schaefer, 77 L.Ed. 360 See S.Ct. 349. Techniques The Control “Sunbursts”: Corp., 45. See State v. Aleut 541 P.2d at 740 Prospective Overruling, 42 N.Y.U.L.Rev. n. 25. (1967). City Schaible, 46. See Fairbanks v. 375 P. Huson, (Alaska 1962); 43. See Chevron Oil Co. v. 404 U.S. 2d heele cf. Sc 97, 106-07, City (Alaska Anchorage, 92 S.Ct. 30 L.Ed.2d 396 385 P.2d 582 (1971). (1963). proceedings comply must with the for- by a statute sale were time barred claims requirements provided of deci- mal for administra- In his memorandum limitations. regulations, tive but do find a better did not sion, judge that he trial noted case, procedural analogy time 300 for this were plaintiffs’ claims that § believe public being where interest advanced Rule 45 is or by 44.62.560 barred either AS declaratory by per- judgment de- in a action as Appellate Procedure of the Rules party privy to claimed, find sons not the administra- did not since he fendants proceeding He tive Plaintiffs are not below. facts of this case. they applied to the bringing time barred from this action. upon the doctrine chose, instead, rely decision. support his laches to VII. plaintiffs’ action agree that We Finally, dispute in there is a the trial 44.62.560(a) under AS not time barred evidentiary court over which of the materi- As noted App.R. 45(a)(2).48 or Alaska proffered plaintiffs by cognizable als were this for above,49 jurisdictional basis under controversy Civil Rule 56. The con- Alaska rather 560(a), but suit is not § pertaining cerns administrative files to the VIII, Corp. Alyeska Ski art. Const. lease sale which were obtained from the Holdsworth, n. 426 P.2d v. Division of Lands and various other state 1967); United States (Alaska see contain, agencies. The files for the most Boundary Local Smelting R. & M. Co. part, opinion interoffice memoranda and 1971); Comm’n, (Alaska 489 P.2d letters, documents, correspon- notices and State, 526 P.2d Oil Co. v. Union dence, many including letters from Homer de Any action for (Alaska 1974).50 n.12 expressing residents their concern over the rely on claratory judgment must also sale. The trial court chose to admit the which section jurisdiction, for 22.10.020(b) directly materials which had been obtained provide declar allows the Alaska Courts Lands, from the Division of but refused to imposes a provision atory Neither relief. originating consider the documents brought 30-day under limitation on actions agencies other state and state officials. above, the Since, as we have seen them. argue the trial court’s fail- Plaintiffs that plain process as it concerns administrative ure to additional documents consider the adjudicatory in this case was not an tiffs Defendants, hand, was error. on the other impose a judicially proceeding, we will not correct in contend that the trial court was 30-day by analogy to AS 44.62.- limitation documents, and refusing to consider those judicial that App.R. note 560 or 45.51. We considering that it the files ob- erred legislative non-adjudicatory from review Division of Lands. tained from the un provided in the Alaska A.P.A. action is maintain that Defendants 44.62.300, specifically section which der AS are either unauthen documents relief, declaratory but not provides for hearsay, and therefore ticated or contain do limitations on actions. We a statute of trial court in properly before the were not gas lease imply oil and mean to that not days agency from part: shall be 30 44.62.560(a) provides ministrative in relevant 47. AS appealed by from provided the date the order “Except sec- as otherwise appellant.” delivered to the appeal mailed or tion, be filed shall the notice of day days the last on after within 30 supra. 49. See note 23 ordered, and served can be reconsideration party proceeding.” each Kelly, also Swindel 50. See (Alaska 1972). & n. 22 45(a)(2) provides App.R. rele- 48. Alaska part: language vant persuaded by reading the 51. We are inapposite provisions appeal these which an “The time within superior at bar. of the case an ad- to the facts court from taken to preceded summmary judgment proceeding. cause it reasoned We finding of the Divi- recently observed that “unauthenti- made the Director have documents, would and uncerti- sion of Lands that best cated and unsworn sale copies public are not admis- serve the interests Resolution fied records state. upon requires of this sible in and cannot be relied claim review relevant evidence summary statutory judgment.” constitutional measures as purposes well language. state Concerned Kenai Penin- The framers of our con- Citizens South Borough, supra sula v. Kenai Peninsula stitution were united in the view However, lands and natural of this we believe other resources proffered among prized abundant state are its most records Although 44(b). favoring productive See assets. use authenticated. Civil Rule produced by resources, They AS were these the framers believed 09.25.120. discovery proceed- development proceed only in the course of should state when response ings plaintiffs’ request people it for benefited the of the state Competitive complete only compliance file Oil applicable “the sale with consti- offering statutory processes. phi- 28.” In This Gas Lease Sale No. tutional and plaintiffs, losophy these materials the state in they wrote constitution: into our they represented genuine. effect policy It is to encour- the State Moreover, agreed generally it is that an age the settlement of its land and the de- writing official is authenticated if is velopment by making its resources proved proper pub- to have come from the them for use consis- available maximum McCormick, lic office. C. Evidence § public tent with the interest.1 191(b), Finally, at 403 (1954). we note that when files from the Division of plaintiffs’ counsel received the Lands, he ^[*] Subject ‡ to the ^[*] provisions of n ‡ this sec- ‡ sought and obtained a letter from their tion, legislature may provide for the certifying custodian were true lands, grant sale or of state or interests As hearsay correct. statements not therein, procedures. and establish sales exception covered the official records grants All sales or shall contain such rule, hearsay they are admissible for all reservations State of resources purpose demonstrating notice or may required by Congress be or the knowledge. provide shall State and access to for these of access resources. Reservation part, We part. reverse and affirm in unnecessarily impair shall not the own- proceed- case is remanded further use, prevent trespass, ers’ the control ings opinion consistent with this and the preclude compensation damages.2 or separate opinion of Rabinowitz. Justice disposals No or leases of state lands or RABINOWITZ, Justice, with whom therein, interests shall be made without BURKE, Justices, ERWIN and DI- prior public safeguards notice and other MOND, Tern, join. Pro Justice pre- interest as agree While I Connor’s Justice scribed law.3 treatment of the laches and the In fulfillment of this constitutional man- appellants’ contention based on AS 38.05.- date, legislature has enacted in analysis I dissent appel- from his lants’ Alaska procedural Land Act second claim on the a number merits. That claim that the sale was unlawful safeguards be- to insure wise utilization of our VIII, VIII, Art. sec. 1. 3.Art. sec. 10. VIII, 2. Art. sec. 9. particularly, appellees is 38.- review. More One of these lands.4

valuable simply provides: “[tjhere statutory assert that no (a) (14), which 05.035 any authority judicially manageable nor shall The director judicial substantive standards for review ****** purely policy of the executive decisions interests he finds that (14) when made and actions taken in case.” served, may, he best state will be commissioner, with the consent Appellees unquestionably cor lease, sale, approve for the contracts rect in their assertion that the Director en lands, available re- disposal of other joys in deciding broad discretion sources, in them. property or interest sale, approve disposal lease or other lands,

state but this na misconceives the any appellants’ argument dis- ture Appellants contend that claim. legislature has not position lands the the Director made a of state substantive proce- 38.05.035(a) (14) determining error in imposed in AS whether or Alas namely, prerequisite, eval- ka’s a reasoned interests would best served dural proposed dispo- Bay sale, of a but that Director uation of wisdom Kachemak that the never land and a determination considered the at all. It is sition of of procedural is in best interests a claim of disposition error. The issue of Although appellants reviewability concede that therefore is whether our state. required by performance statute is not this courts can review the ad the Director of he agent insist that an public hearings, by hold ministrative tasks executive to to finding required compliance specific procedural to make a or written ensure safeguards imposed by legislature which demonstrates in least establish a record particular a for that Alaska’s the basis his decision accordance with constitutional gas prior best serves the sale of and leases mandates. Our decisions have estab oil judicial power respon interests of the lished both the and state. such sibility to undertake review. conten- appellees respond The with the safeguards which Among procedural appli- and actions tion that decisions leasing public in the sale of the Kachemak culminated cable to the lands are Bay regu- and leases are not reviewable those in and the found AS 38.05.075 by prompted factually pursuant considerations to lations enacted AS 38.05.- Corp. public policy. arguments Alyeska In before Ski 020(b)(1), their considered court, emphasize Holdsworth, (Alaska companies oil this P.2d 1006 upon Direc- In 1967). broad discretion conferred that case examined interest, in- determining public judicial an unsuccessful bidder could obtain tor sisting very of that discre- on state that the breadth of an auction leaseholds review judicial his from violation of allegedly tion insulates decisions lands conducted by may lease tide and sub safeguards 38.05.055, the Director Among which these are: AS development; merged AS for fisheries requires lands be con sales of land which procedures 38.05.120, providing for for by public forth bid auction and sets ducted disposal materials procedures timber and other ding receipt for such auc 38.05.135, lands; which directs 38.05.065, AS ; state which establishes AS tions deposits may be mineral may leaseholds of land the sale of be set for terms which competitive 38.05.075, deter bid basis “when bid; a following sold on a successful AS by public be in the procedures commissioner to prescribes mined which 38.05.145, state;” public AS best interests of the land other of leaseholds auction establishing leasing procedures resources; for leaseholds natural extraction of than for the 38.05.305, requiring deposits; 38.05.080, AS of mineral joint study the Com which authorizes AS disposition to and review and re the Director to override missioner 38.05.310, lands; and AS state ject most best in leasehold bids “when all appraisal.f requires justifies notice action [the] state terest of the procedures 38.05.082, which establishes AS procedures.5 statutory regulatory these of our land resources and of the con- management necessity Holdsworth held that the comitant for observance of le- pursuant gal safeguards Director of an auction to disposal leasing 38.05.075, supervision and the of that sale state lands. Neither the minutes of Resources, our Natural constitutional the Commissioner of convention nor the legislature subject judicial history review. Our ra- the Alaska Land emphasized paramount respon- Act it demonstrates that was intended tionale sibility judiciary guarantee com- make leasing unreviewable decisions of pliance with the law: director commissioner reach light

We conclusion text of section VIII of the article constitutional, light of statu- prohibits Alaska constitution which leas- provisions tory, regulatory alluded ing of state owned lands unless made to, not intended we -concludethat was pursuant public notice and other of their Alaska’s courts be divested imposed by limitations ar- law. This constitutionally duty to insure vested ticle reflects the of our constitution compliance with the laws of Alaska.6 recognition importance framers’ agent represent only principal, provides shall one AS 38.05.075 full: leasing of himself. to the exclusion shall be made at auc- (1963) provided part: highest qualified AAO 302.15 tion to the bidder as high apparent aggrieved . bidder . shall An determined the director. deposit concurrently Division, appeal with the bidder to the commissioner portion days the minimum annual rental such within five review the di- plus deposit indicated, has the Director rector’s determination. When valid exist- advertising, appraisal ing grazing costs of cover the lease federal is cancelled al- survey lease, in cash check certified area state selection of the under low and/or money preference or- cashier’s check the right the has the lessee of lands and/or der. and/or competitive to lease lands without requirement bidding equal originally of “cash certified The for a term to that and/or money granted check check cashier’s in the cancelled federal lease and and/or and/or upon amend- § order” was deleted when 302.15 was as lessee as terms favorable to the ed in 1965. federal those contained in cancelled by leasing shall be conducted lease. The (footnotes omitted). director, representative, 1011-12 6. 426 P.2d at or his Any attempt distinguish deposit Holdsworth on bidder shall the first successful grounds year’s rental, portion that case involved an un- that or that of it which participant bidding proc- requires, successful commissioner accordance unavailing. expressly repre- de- be ess must We with his The director or his bid. availability judicial receipt immediately restrict of clined to a sentative shall issue narrowly: containing description review that in- a the land or of again conclusion, reaching bid, leased, price In this we terms terest emphasize receipt concerned with that here we are of The acknowl- the lease. shall be unequivocal edged lease, writing by mandate re- constitutional an A the bidder. quiring by attorney gen- lands are approved all of state leases on a form eral, and, signed by into in with safe- entered accordance be shall be the lessee guards imposed upon approval by commissioner, law. This constitution- shall mandate, 38.05.075, together signed by fur- with al the director. distinguish- significant Among involved, regulations basis for nishes 11 AAC contrary] ing part: con- provided line of cases. We (1962) [a 203.02 applicant of a manifestation ,AS as lease is strue 38.05.075 An or bidder for a ag- legislature’s qualified an applicant to authorize intent the grieved if or bidder: seek- maintain an action bidder to public acting agent ing judicial (d) in- review so that an for another disposal Director, qualified filing terest, in the has in adherence to law with the may lands, leasing auction, of state owned to the time set for intend, power proper attorney do nor we We do not or a letter be vindicated. aggrieved creating agency. hold, is the an bidder authorization such now Subsequent techniques decisions have reaffirmed are not well adopted re- solving questions. court’s commitment to that constitu these sense, In that responsibility. L tional In K Distribu these & ‘political ques- described as tors, tions,’ Murkowski, beyond Inc. v. compass judicial re- 1971), judi recognized issues, we limited view. But other (Alaska annexation such cial review of decisions of the Commis as whether statutory requirements notice Development followed, sioner of Economic are readily decided ascribing finali expressly judicial face of a statute techniques. traditional Mur- Mur- ty clearly to his actions. kowski permits The rationale type this latter constitutionally that the vested kowski was review.8 required duty judicial of this court review recently, Corp., More in State v. Aleut applicable rules ascertain whether the (Alaska 1975), quite P.2d a claim procedure law and were observed.7 advanced, similar to the one hand was judicial Murkowski review undertaken in namely, during of a the course compli scrutiny was a of administrative land auction the Lands had Division of procedural norms, a de novo ance with comply procedural failed to with safe the substan evaluation of the wisdom guard expressly required Alaska by the decisions tive executive-administrative expressly rejected Aleut Land Act.9 In court’s Beyond fulfilling this reached. review, which a deferential standard of responsibility, judicial review constitutional would have sustained administrators’ ad upon compliance with which focuses appeared “rea if it there had been a action procedures comports with con ministrative basis” for belief sonable their gov siderations of Alaska’s allocation require complied procedural had with the powers separate branch among ernmental ap articulating the ments of the Act. es, compe judicial notions and with review, we held that propriate standard of These functional considerations tence. indepen this court would exercise its own Smelting, Re were noted United States the adminis judgment as to dent whether Boundary Mining Co. v. Local

fining & legis agency complied hkd trative 1971), a Commission, (Alaska P.2d intent, observing that lature’s procedures the exec reviewing case questions determining . when powers. agency exercising annexation utive ob- procedures were proper remarked: We agen- served, the administrative whether light purported adminis- [E]ven its au- scope of within the cy has acted judi- finality permits trative Murkowski interpre- agency’s thority, or whether an decision cial review of an administrative with regulations consistent is tation ‘applicable the to ascertain whether based, we they on which are the statutes ob- procedure where law and rules of involving problems not faced with are . there . . doubt served.’ Without knowledge or administrative specialized public be deter- questions policy to are expertise.10 beyond proceedings mined in annexation its Examples are alone province the of the court. means no This court annexation, provided as ex- desirability of must be the review judicial that view com- published standards. actions pressed administrative that to ensure Judicial party through these or exclusive whom sole at 143. 8. 489 P.2d important be se- interests are to failed the state there claimed that It was cured. . requires 38.05.305, comply which with to (footnote proposed omitted). study land joint Id. at 1015 review authorized director and local sales 357; 7. 486 P.2d accord United States Appellants agencies prior planning to sale. Smelting, Refining Mining & v. Local Co. raised a similar claim. have here Boundary Comm’n, 140, (Alas 143 1971). ka P.2d at 736. 10. 541 34

ply procedural prerequisites with im- judicial limited review was in fact availa posed by legislation. Federal courts have' ble. Among subject the issues to review stood ready agency conduct, to scrutinize was the question whether Secretary when, particularly here, challenge a to properly had understood the confines of his that conduct raises claim that environ- authority and consciously had undertaken mental concerns disregarded. have been required evaluation granting Perhaps leading federal case remains authorization.12 Citizens to Overton Preserve Park v. Congressional procedural use of safe Volpe, 401 28 L.Ed. U.S. S.Ct. guards aas on administrative actions check challenge 2d 136 a (1971), federal perháps reached its zenith in the National highway project had been routed Policy Environmental Act through public park Secretary lands. (NEPA), 42 seq. (1970). U.S.C. 4321 et § Transportation had authorized construc- prescribes NEPA procedural certain mea although leg- project, applicable tion of the sures to ensure that environmental values permitted approve islation him such a respected. Among these are the Sec prudent” only route if no “feasible and al- requirements tion 102 agen that all federal had ternate route existed and there been cies consider environmental amenities possible planning harm” “all to minimize their decision-making processes13 and file park.11 challenging litigants, impact detailed environmental statements private organiza- citizens and conservation when “major Federal ac undertaking tions, (among things) contended other tions.” re Although the federal courts his in- Secretary had failed to exercise sharply main re divided whether dependent judgment prior authorizing view the substantive merits of the conclu construction, contrary Congressional sions impact in an reached environmental response intent. In contention statement,15 agree they may all review Secretary exercise of his discre- that the compliance obligations with procedural unreviewable, powers tionary early Act. the words of one de Supreme;, Court held that United States effect, cision to this (f) legislation 11. The involved § viewing must be able to find that court Department Transportation Act of Secretary reasonably have could believed (1970), 1653(f) § § 49 U.S.C. al- this case there are no feasible 18(a) Highway of the Federal-Aid Act of ternatives or that alternatives do involve (1970). U.S.C. unique problems. 415-16, 401 U.S. at 91 S.Ct. at L.Ed. Supreme 12. In the words of the Court: Assuming Secretary 2d at had required The court first to decide requisite determinations, fact made the Secretary acted within approved Court also limited review of scope authority. of his . . This decisions, substantive merits of those to en- naturally begins determination de- sure the choice made was “ar- scope Secretary’s lineation bitrary, capricious, discretion, an abuse of authority Jaffe, and discretion. L. Ju- otherwise not accordance with Id. law.” dicial Control of Administrative Action 359 opinion Pork The Overton relies to some (1965). shown, Congress As has been has upon extent Admin- the terms of the federal specified only range a small of choices Act, particularly istrative Procedure 5 U.S.C. Secretary can in- make. Also (1970). Although comparable § 706 inquiry volved this initial is a determina- applicable bar, state act is not to the case at Secretary’s tion of whether on the facts the we do not view that difference as controll- reasonably decision can be said with- to be ing. range. reviewing in that The court must Secretary properly (1970). consider whether 4332(B) 13. 42 § U.S.C. authority approve construed his the use 4332(C) (1970). 14. 42 § U.S.C. parkland as limited to situations where Morton, there 15. National Federation v. are no feasible alternative routes or Wildlife F.Supp. 1286, (D.D.C.1975). where 393 n. 12 feasible alternative 1296 routes involve uniquely problems. difficult And the re-

35 procedural NEPA obligations 102 of man through Section the mech- in judicial anism particular sort of careful dates a review.18 it Suffice process and cre decisionmaking say, rarely formed courts hesitate to re- duties. judicially enforceable view an ates administrator’s actions when reverse reviewing probably courts cannot is claimed that he failed to com- merits, un ply its decision on with procedural a substantive prerequisites ex- 101, it be shown that pressly unless imposed der Section ap- statute. Even the and benefits pellees’ balance of costs arguments the actual suggest this understand- clearly arbitrary or ing. that was struck bar, the case appellants have al- weight leged to environmen gave insufficient violation of procedural three duties if the decision imposed by tal But values. the Alaska Land the rea- Act: without individual procedurally soned reached requirement determination of AS of en balancing 38.05.035(a)(14), ized consideration requirement notice fully 38.05.345, factors—conducted AS joint vironmental study and re- responsibility is the requirement faith—it view good of AS 38.05.305. Al- Dis As one though appellees reverse. challenge judicial of the courts to review re 102 of the claim has said Section based on 38.05.035(a) trict Court AS (14), imagine hard to quirements incongruously accept : ‘It is reviewability of mandate to the latter stronger allegations. two clearer or Courts.’16 We therefore hold the recently confirmed Supreme has Court appellants’ contention that the Director of this view.17 Division of Lands failed to determine used the de- legislation Bay federal has the Kachemak

Other sale would best ad- to check procedural safeguards state, serve the interests of required vice environmental 38.05.035(a)(14), prior ministrative when AS discretion to the sale case, Little would are at stake. leases in this judicially concerns - nu- lengthy legislative procedural review reviewable.19 The gained by those 38.05.035(a)(14) requires merous which have enforced directive cases Coordinating denied, 941, 1462, v. Comm. 384 U.S. Calvert 86 16 S.Ct. Cliffs’ Comm’n, Energy (1966) (Federal Act, 146 540 Atomic L.Ed.2d United States Power (1971), 803(a) 33, 1109, (1970). U.S.App.D.C. 449 F.2d 1115 16 U.S.C. § quoting on Natural Resources Texas Comm. 19. Justice Connor’s conclusion to the con 1303, Envir.Repts.Cases States, 1 v. United trary primarily upon passage relies from (W.D.Tex.1970). Club Accord Sierra 1304 Professor Davis’ Administrative Law Treatise 1974) ; (10th Stamm, Cir. v. F.2d 788 507 “presumption regular which discusses the Morton, Corp. F.2d Helium v. 486 National ity” afforded administrative action in Pacific ; (10th 1973) Defense Environmental Cir. 995 White, States Box & Basket v. Co. 296 U.S. Engineers, Corps F.2d v. 470 nd Fu 159, 176, (1935), 56 S.Ct. 80 L.Ed. 138 ; (8th 1972) Nuclear Committee 289 Cir. prefer language other cases. We of a U.S.App. Seaborg, Responsibility, Inc. v. 149 Supreme decision, recent more Court Citi 380, (1971). F.2d 463 783 D.C. Volpe, zens to Preserve Overton Park v. 401 SCRAP, 402, 415, 814, 136, 91 R. v. U.S. S.Ct. 28 L.Ed.2d 17. Aberdeen & R. Rockfish (1971) (emphasis added) 153 : 422 96 45 L.Ed.2d U.S. S.Ct. (1975). Certainly, Secretary’s decision is en- presumption regularity. See, titled to a g., Fund v. e. Environmental See Defense g., States Box & Basket e. Co. Pacific Hardin, U.S.App.D.C. 391, F.2d 1093 White, 176, 185, U.S. S.Ct. (1970) (involving provisions Federal (1935). But 80 L.Ed. ... Act, Fungicide, Insecticide, and Rodenticide presumption his ac- shield Arlington seq. (1970)) ; 7 U.S.C. 135 et thorough, probing, in-depth re- tion from a Volpe, Transportation Coalition view. (involving (4th 1972) the F.2d 1323 Cir. addition, Highway In the discussion of the record Act of 23 U.S.C. Federal-Aid ; persuasive legislation) seq. (1970), rea- follows demonstrates and other § 101 et presumption disregarding v. for Hudson Preservation sons Scenic Conference particular (2d FPC, 1965), cert. this case. Cir. 354 F.2d 608 independent, suggest is nothing reasoned There in the record to an of the Director Although played role Director an active proposed sale. that Keenan a evaluation of to decision-making process leading in the obligated make expressly he is to a not for a mini- the sale of the leases. Counsel finding, he at formal written must superiori explicitly conceded in the State mum a record which reflects the establish that Director court at no time did the his basis for decision.20 that the make the determination reasoned re Ordinarily this court would state: the interests sale best served superior court mand the to certainly And as all counsel will recall whether the Director a determination deposition when the of Mr. Keenan was Keenan, Lands, com F. the Division of J. taken, it was admitted that there was no 38.05.- plied requirements with the finding part, on his and frankly I have the Kache- 035(a)(14) prior to sale of not considered that an issue in this case. particular In Bay this mak leaseholds. is however, as issue THE case, remand to that That COURT: there was no unnecessary, finding demon ? the record because reasoned that Director made no strates MR. correct, REEVES: That’s The record to the sale. evaluation see, there point, you was—well at this I re were nominations discloses that after think it was fair to defend- those of us Den- industry, from the oil ceived Pedro ing case, this they’re to assume con- of the ton, Minerals Chief of the Section tending that supposed there was to Herbert, Division, Commis sent to Charles some finding, process, some mental Re Department of Natural sioner of the the director stated that he was as far as large sources, include to a recommendation concerned, there none for him. gas Bay in oil and parts of Kachemak The deposition bears of Director Keenan later, on October sale. few weeks lease A out this concession. approved 19, 1973, Herbert Commissioner pending Notice proposed sale. In their briefs before this court im- Bay tracts sale of Kachemak certain defendants reaffirm this concession industry. given the oil mediately to by arguing approve decision to Depart- staff of succeeding weeks by actually sale was made the Commission recom- submitted Fish and Game ment of Resources, er su of Natural the immediate Bay the Kachemak delete mendations to perior Keenan, Director and that appar- sale, but from the tracts satisfy approval Commissioner’s sufficed ently disregarded. requirements 38.05.035(a)(14). of AS en purpose incorporation this is not 20. The record of the Commission to authorize re Borough. (em- elaborate Slope undertake an able the court of the North saidWe phasis merits added): the substantive consideration date. given later decision some the Director’s has a broad [The] Commission been principles power unique discussed Under constitutional circumstances decide in previously, petition author presented by court has neither this bor- each whether pub ity competence ough government appropriate. decide nor Necessari- proposed legisla- delegated ly, lic is “best served” interest this is an exercise of Nonetheless, disposition policy a limited authority land. deci- tive to reach basic acceptance Accordingly, would review of the Director’s decision in- sions. simply corporation petition it was available to ensure should be affirmed if prompted arbitrary, capricious, perceive cor basis record reasonable necessary ruption. reading support to facilitate A record the Commission’s check, de an earlier evi- illustrated standards and its evaluation of the involving discretion cision review another dences Corp. (Alaska ary Jager State, v. decision. Mohil Oil executive also 537 P.2d 1100 See Comm’n, Boundary 975) ; Kelly, 98-99 Local P.2d 1 Swindel (Alaska challenge 1974), (Alaska 1972). a decision was a It is true tion enjoys that that the Commissioner the sale best served the interests powers 38.05.020, state, broad under AS includ- and whether set he forth find- ing authority ings any or a to “review or record order which demonstrated the action of the basis director”21 and for that “exercise determination. powers necessary and do acts DIMOND, Tern, Pro with whom Justice carry provisions objectives” out the joins, dissenting. RABINOWITZ Justice Although responsibility Act.22 un- 38.05.035(a)(14) majority

der AS determining holds that to the sale proposed gas that a the oil and sale best serves the inter- leases located within Ka- Bay, ests chemak in the the state obligation state first instance falls had the Director, legislature apparently study to the under AS 38.05.305 and review contemplated proposed that the Commissioner could leases with the communities Seldovia, responsibility.23 on that Homer and occasion shoulder and also with the Logically, legislature Borough. Kenai Peninsula must have had in But then the goes Commissioner, majority hold despite mind that when the the.- this requirement, powers, exercise of his as- and the failure of 38.05.020 the state to AS it, comply compli- responsibility, this do with the decision sumed he should so explicit manner. ance with the statute was essential would a clear and Otherwise solely prospective the have a effect as to the delineation functions between so that, only might apply arising two to actions out occur- grow offices so uncertain sale, respect particular opinion. to a neither rences after the date this comprehensive holding only, I my With this official would undertake the dissent. 38.05.035(a) opinion, required by apply the court’s decision should evaluation AS case, plaintiffs this (14). thereafter prospectively. Here the suggests record that Commis- majority’s holding its de- reason for played sioner an Herbert active role prospective cision once oil evi- planning this do not find sale. We made, gas been the new lease sales had however, dence, ex- that the Commissioner inter- paramount or had a owners lessors pressly his ob- relieved Director Keenan of land, maintaining rights to est in their ligation to make interest” evalua- a “best upset has desire to and that the court no Thus, majority tion. of the Justices were entered settled transactions this is a matter court conclude that this good faith. into explored further in the su- which should be company’s disagree interest perior court therefore re- I that the oil court. This of the com- paramount the su- to the interest with directions that mands case being perior determine whether the Com- of Homer and Seldovia court munities sales lawfully obligation the lease and heard before missioner assumed consulted communities, and evalu- imposed by 38.05.035(a)(14) to Those were made. AS in this sale, his particular ate October the fishermen fish- in the rich approval case, reflected a determina- interest of the sale have a vital sale, lease, 38.05.020(b)(3). dis- or other for the AS contracts (em- posal . lands. . of available 38.05.020(b)(4). 22. AS added) phasis 38.05.035(a) (14) very of AS 23. The terms provides: 38.05.305 legislature’s intent also evidence disposed Except under 315- §§ land Direc- involved remain Commissioner adjacent chapter, in or no land this incorporated tor’s determination: municipality other an (a) leased, the director shall community organized sold or issued, proposed until lease or a renewal re- (14) been studied land has use of the he finds that the interests of when jointly local served, may, the director loith viewed he the state best will agencies. planning approve commissioner, authorized the consent of Bay may majority opinion, may referring ery in Kachemak which resources explora- type regard by uncertainty to another to adversely well be affected e., applicable gas and from i. whether it was to tion and extraction of oil Sec. for gas majority leases of and majority is hold- oil lands. those waters. What companies in ing, states that the oil reality, is that the state this case defendant rely long simply ignore provisions of this case were entitled to on the may Sec. standing interpretation expressly prohibits sale or of Sec. which Lands, that Sec. 305 organized com- Division of which was adjacent lease land to and applicable the sale of oil munities, was not to Homer and Seldo- such as study gas of the state’s joint speaks leases. The court via, until there has been statute, “interpretation” which im of that and the state in those com- review plies ambiguity. But uncertainty an or course, would holding this munities. Of simply never was. Sec. future, there is none and the fact apply in the but 305, coupled “lands” the definition of is, opinion, an un- applied my it is here 38.05.365,2 inter no for leaves room judicial arbitrary fortunate condonation pretation. capricious action. administrative attempted justification for One together Those sections read can have prospectivity, as to is holding court’s only the court has meaning one one —the represents a application Sec. only stated it to is not true have. This question impression in an of first area now, but was true from the time the stat- statutory admittedly was not law “which of Lands’ utes were The Division enacted. sup- ought have been.” In clear as interpretation” “long standing so called majority cites port proposition, beginning simply from the wrong —a Corporation, Aleut State v. read remarkable and failure to unexcusable where it was stated: n. plain English. and understand There was “interpretation”, there no because room di- of Lands to open It is to the Division clarify meaning nothing to of. uncertain- vagueness and minish areas of place, took the transactions here When present wording of AS ty inherent nothing rely company defendants had oil rule-making power through its 38.05.305 state’s failure upon except the fact that the amendatory legislation. by seeking or Homer with the communities of to consult uncertainty in There have been some fatal flaw which would was a Seldovia case, application 305 in that Sec. validity of the sales oil affect question involved the gas leases. unincorporated villages rural fell certain or- holding “other justification within the classification of an An additional wording of community”, ganized purely prospective within is that the decision to be the lands “adjacent” engendered, and in- would be Sec. or title conflicts such un- But there is no for the state and problems that were sold. surmountable have if certainty and Seldovia would be created Homer numerous individuals here. many municipalities for incorporated mineral or sale executed every been lease that Kache- under years, question is to attack past and there no became vulnerable pub- immediately adjacent to those before Bay requires, holding mak that Sec. adja- sold, how Sec. I fail to see be leased communities. lic lands can meaningful explicit Pos- first consulted. any more could be cent communities holding of and Seldovia if the Homer be true application sibly in its this could entirely retro- language. to be plain its were held than is obvious from the court belonging “Definitions”, pro- lands, 38.05.365, merged or resources 2. AS entitled (emphasis added). state; pertinent part: acquired vides in (16) means ‘lands’ . . ‘state lands’ or shore, lands, including and sub- all tide I I spective justice, But this not what On submit effect. stated, urging. my position requires applica- am As I have that basic fairness re- plain- is that the in this case should tion of the court’s decision to the decision, the benefit of the court’s clearly ceive tiffs in this case. 305 was Sec. they brought the issue to the court’s since It violated. is also clear that adherence attention, and thereafter the decision could requirements the of this statute was essen: If prospective held to effect.3 be cause tial to the lease sales to be effective. done, expressed by ma- this is fears the the plaintiffs gone are the ones that have jority as conflicts insurmountable to and expense the bringing to trouble and problems no have foundation. matter to judiciary, the attention the justified obtaining and of a decision that deci- determining apply to

In is hardly their action. It fair these cir- prospectively, the have consid- sion courts place plaintiffs cumstances to the criteria, the has majority the as various ered position public-spirited of unselfish citi- on our decision pointed in its reliance out zens, object only help whose en- Fruit, was to (Alaska 462 519 P.2d in Schreiner v. solely the force law for the question best utilization 1974). the can But I believe litigants.7 majority future is by simply con- in effect and decided be dealt with advising plaintiffs that cor- hardship basic the sidering and the elements of rect; requirements the 305 Sec. justice.4 fairness or followed, not; ought to have been but were why suf the defendants will fail to see I that the communities of Homer and Sel- hardship by applying the any fer serious ought dovia have to been consulted before plaintiffs in this court’s decision the Bay the lands in Kachemak were leased or case, prospectively. Since and thereafter sold, despite but were not—but that all of with, complied the sale 305 was Sec. this, plaintiffs the all have no recourse at invalid and gas and leases was the oil having complied the law their setting By legal “no force effect”.5 effect, majority the telling benefit. sale, reimbursing the oil com aside plaintiffs they have won battle— they paid for pany defendants the monies but have lost the war. leases, left essen defendants are appears This me to decision be incon- position they have tially the would same expressed majority’s sistent with the con- place. occupied not taken had sales cern, question, regarding the on the laches note, major as significant And it is state, by assurances made time and pointed question, ity has out on the laches impor- again, underplayed time prejudice been no serious that there has sale its tance of the lease itself to citizens plaintiffs’ de by defendants reason of area, them giving of the Homer a false This no lay bringing this action. security; plaintiffs’ sense of and the ma application where means case fruitless efforts to their views make known plaintiffs here jority’s decision Obviously, to the if had state. Sec. 305 “injustice oppression cause would with, complied been would great as to be intolerable.”6 so 730, Corporation, v. 5. State Aleut 541 P.2d Aleut 3. This is in State v. what done (Alaska 1975). Corporation, 730, 740, (Alas- 740 P.2d n. 541 25 upon 1975), ka ease relied State, 384, 6. Warwick v. P.2d 395-96 548 majority support holding pro- its of sole Cardozo, (Alaska 1976) quoting from Justice spectivity City Schaible, Fairbanks v. 375 — of Process, The Nature the Judicial 146-49 (Alaska 1962). 211 P.2d (1921). State, v. 4. See Warwick P.2d 393- 548 People Bitch, 7. See Cal. Cal.3d (Alaska 1976), 395-96, quota- and at (dis Rptr. 158, (1974) P.2d Cardozo, The tion from Nature Justice senting opinion Mosk). see And of Justice Judicial Process. opinion also our Lauderdale recent 1976). State, (Alaska to air opportunity have had their require is not too much to

views. It spirit play,

in a of fair citizens of Ho- given op-

mer and Seldovia should

portunity to be heard on gas

whether there should be oil devel-

opment Bay in the waters of Kachemak state’s determination of that

question. only This not be in com- would

pliance law, with the declared

court, keeping but would be in with the

philosophy Constitution, the Alaska provided VIII,

where it is in art. sec. 10

that— disposals

No leases state lands therein,

or interests shall be made with- prior public

out notice and other safe-

guards interest prescribed by law.

I grant would reverse and the relief

sought by complaint, in their

which is set aside the sales of the oil gas company leases to the oil defend-

ants.

Elijah COLEMAN, Appellant, Alaska, Appellee.

STATE of

No. 2331.

Supreme Court of Alaska.

July 14, 1976.

Case Details

Case Name: Moore v. State

Court Name: Alaska Supreme Court

Date Published: Jul 9, 1976

Citation: 553 P.2d 8

Docket Number: 2551, 2587

Court Abbreviation: Alaska