Alaskan Crude Corporation v. Alaska Oil and Gas Conservation Commission

Alaska Supreme Court S-14148

August 30, 2013

There was only one Alaska Supreme Court decision this week.  It involved an appeal from an administrative hearing decision back in 2006.  The short take on the opinion is:  You can’t avoid oil spill response regulations by calling your oil well a gas well.  If we just left things there, than most business people wouldn’t learn anything useful for their own business.  How many of us actually have an old oil well that we might want to consider changing to a gas well.  I’ve previously written on administrative hearings here.

When viewed from a more global perspective the case shows why trusted business advisor’s input early in the regulatory process will help your case  At the federal level there are many agencies that control business issues.  At the state level alone there are probably more than fifty boards.  At the borough level there are dozens more.  None of the boards require you to hire counsel.  Indeed, many even allow non attorneys to represent you before the board. Once a board makes an adverse decision it is nearly impossible to overturn due to the court review standards.

Alaska State Administrative Hearing Boards

There are many Alaska State Regulatory Boards, a list is found here.  You will find that your business involves dealing with several of these boards.  The boards provide regulatory  oversight of agency actions.  When an agency takes adverse action against a business your right for review of that action will often pass before a board or an administrative law judge.  Many of the regulatory board agency decisions now pass through the Alaska Office of Administrative Hearings.  A list of the hearings now heard by this agency is found here.  The either the board members or the Administrative Law Judge will do the first fact-finding and law interpretation in your case.

Appealing State Administrative Hearing Board Decisions

Your appeal of a regulatory board will be to the Alaska Superior Court.  If you do not get the relief you want there, you may then proceed to the Alaska Supreme Court.  As a general rule, the Supreme Court leans in favor of the agency position.  This leaning includes the following rules:

1. For legal questions involving agency expertise the court will uphold the position if it is reasonable and rational.
2. For factual questions the court applies the substantial evidence rule.  The evidence is substantial if reasonable minds might accept the evidence as adequate to support the agency position.  They only consider whether evidence exists and does not choose between competing views of the evidence.
3. On attorneys fees awards the court will not disturb the award unless they determine that it was manifestly unreasonable.  The decision applies to both the decision on who was the prevailing party — entitled to fees; and, to the issue of quantity — how much.
4. Any facts that you failed to present at the lower level won’t be considered on appeal.
5. Any legal issues that you failed to brief at the lower level won’t be considered on appeal.

Timing of Administrative Board Hearing Appeals

In keeping with the theme that administrative decisions should be upheld, the time for the appeal is very short.  Frequently, at the hearing they will give you notice of when and where the appeal must be filed.  They frequently recite into the record notice of your appeal rights.  Accordingly, it becomes very difficult to present a late appeal.  If you think you might have an appeal right, the time to see an attorney is within the first week after the hearing.

Hire business counsel early in the process to help frame your issue favorably in the beginning.  The time to invest in counsel is when the facts and law are first determined.  Don’t wait and spend money later on the appeal.