author: GOLDEN, Justice.

text:
    2003 WY 94
    Mark and Laura VOSS, David and Virginia Macey, Appellants (Petitioners), v. ALBANY COUNTY COMMISSIONERS; Kim and Peter Stevens; Richard and Beverly Goodman, Appellees (Respondents). In The Matter of A Petition for A Private Road by Mark & Laura Voss: Kim and Peter Stevens, Appellants (Respondents/Cross-Petitioners), v. Mark and Laura Voss, Appellees (Petitioners), and The Albany County Board of County Commissioners, Appellees (Respondents).
    Nos. 02-68, 02-101.
    Supreme Court of Wyoming.
    Aug. 14, 2003.

      Mark and Laura Voss, Cheyenne, Wyoming; Don W. Riske of Riske & Arnold, P.C., Cheyenne, Wyoming, Representing Mark and Laura Voss and David and Virginia Macey.
    Daniel B. Frank of Frank Law Office, P.C., Cheyenne, Wyoming, Representing Kim and Peter Stevens and Richard and Beverly Goodman.
    No brief filed, Representing the Albany County Board of County Commissioners.
    Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ., and PERRY, D.J.
   GOLDEN, Justice.

[T1] Mark and Laura Voss, with co-owners David and Virginia Macey, petitioned the Albany County Board of Commissioners (Board) to establish a private road across their neighbors' property, as authorized by Wyo. Stat. Ann. § 24-9-101 (Lexis 1999). The Board, following the administrative procedure outlined in the statute, established the road in a location other than that requested by the petitioners. The district court, finding that the Board erred in establishing a road that traversed federal property, reversed and remanded to the Board for the consideration of an alternate location for the road. The petitioners for the road and the respondents through whose land the road was established filed cross-appeals. We conclude that the district court's decision should be affirmed in part, reversed in part, and remanded to the Board.

ISSUES

[¶ 2] The petitioners for the private road assert the following issues:

1. Did the district court err in remanding this matter for a good faith determination, after affirming that the Board had jurisdiction to proceed pursuant to W.S. 24-9-101?
2. May the Board establish a private road beyond the general location of the road proposed by the applicant?
8. May the Board confirm actions of viewers that are in violation of W.S. 24-9-101 & 1083?
4. May the Board delegate its duty to determine the ultimate fact of the reasonableness of the proposed road to the viewers?
5. May the Board establish an unreasonable and inconvenient road and fail to properly consider the reasonable road proposed?
6. May the Board modify the viewers selection of a road?
7. May the Board establish a road that had not been marked pursuant to W.S. 24-9-1017
8. Did the Board err when it concluded that a determinable easement in gross constituted adequate legally enforceable access?
9. May the Board allow its counsel to participate as an advocate and de facto hearing officer in proceedings before the Board?
10. May the Board fail to enter its own findings and conclusions and fail to perform its duties as an agency?

In their cross-appeal, Respondents Kim and Peter Stevens present the issues as follows:

1. Does BLM land containing no restrictions on use by motor vehicle constitute a public road such that it is not a factor in determining whether a landowner's property is landlocked under W.S. § 24-9-1017
2. If crossing BLM land is a factor, does a Right of Way Grant issued by the BLM pursuant to the Federal Land Policy and Management Act, 48 U.S.C. § 1761 and the regulations at 48 C.F.R. Part 2800, which is for a term of 30 years and renewable, constitute "an outlet to, or connection with a public road" under W.S. § 24-9-101?

FACTS

[¶ 3] In 1996, Mark and Laura Voss purchased 151 acres of land near the Buford exit of Interstate Highway 80 in Albany County. Vosses and their predecessors in title usually accessed the property from the highway exit, first crossing land owned by Richard and Beverly Goodman, then proceeding upon the southern edge of the Stevens property, and finally across federal land managed by the Bureau of Land Management ("BLM"). This access route was referred to below as "the Highway-BLM Road." An alternative means of access is from the Crystal Lake Road, which is east of the Voss property and runs generally north and south from the Buford exit. This means of access required Vosses to travel westward from Crystal Lake Road across the Stevens property before reaching their own land. This "Creek Road" parallels South Crow Creek which effectively bisects the Stevens property but avoids the Goodman and BLM properties. The record shows both methods of access were used at times by Vosses and their predecessors in title, but no access easements were of record when Vosses purchased their land in 1996.

[T4] For two years after purchasing the property Vosses attempted to secure easements from their neighbors in order to formally secure their property access. In June 1997, the Stevenses tendered to Vosses a restricted easement for their portion of the Highway-BLM Road, the restriction being that the easement would lapse if Vosses ever conveyed less than their entire 151-acre parcel. In December 1997, the BLM issued a "Right-of-Way Grant" to Vosses for the portion of the route that crossed BLM property. The grant is for a term of thirty years and is renewable if Vosses have not violated its terms at the time of renewal. In February 1998, the Goodmans delivered to Vosses an unrestricted easement over their portion of the Highway-BLM Road. This easement was recorded February 12, 1998.

[T5] In March 1998, Vosses offered to purchase an unrestricted easement from the Stevenses for the Highway-BLM Road, as well as a separate easement for the Creek Road. Negotiations apparently broke down at that point. Although the timing of events is disputed by the parties, the precise chronology is not relevant to the issues. Vosses filed with the Board of County Commissioners a notice of intent to petition for a private road, while the Stevenses cut off Vosses' access to the Creek Road and recorded a copy of the restricted easement for Vosses' use of the Highway-BLM Road. Vosses then filed their petition for establishment of a private road in January 1999, claiming that their property was landlocked and seeking to establish the Creek Road as a private road across the Stevens property. Although the only property affected by the Creek Road is the Stevens property, Vosses also notified the Good-mans of the private road petition because Goodmans hold a mortgage on the Stevens property.

[¶ 6] The first hearing in the matter was held on March 2, 1999, following which the Board made no express factual findings but appointed viewers "to examine the various possibilities for access and determine the location of a private road according to the requirements set out by the Wyoming Statutes." In an April 23, 1999, ruling on a motion by Vosses, the Board further instructed the viewers to "proceed to meet as required by statute to view and locate a private road and assess damages to be sustained thereby, and make a report thereof as required by law."

[T7] The viewers met at the parties' property on May 11, 1999, visited separately with the Vosses and Stevenses, and submitted their report to the Board on June 29, 1999. They examined both the proposed Creek Road and the Highway-BLM Road. The viewers rejected the Creek Road and recommended that the private road be established substantially as the Highway-BLM Road existed, with one modification. The modification would be to move the right-of-way where it crossed the Goodman property, to keep it entirely on the Goodman property and avoid encroachment on the property of another landowner who had not been made a party to the proceeding. The Board conducted a hearing on August 2, 1999, at which the parties questioned the viewers and presented arguments to the Board. Following the filing and dismissal as unripe of several district court petitions for review, the Board issued an "Order Confirming Viewers Report" on March 7, 2000, directing the petitioners to prepare and file a formal plat of the modified Highway-BLM Road. The Board accepted the plat and issued its final order in the matter on April 17, 2001. The road established by the Board's order was the Highway-BLM Road, with a slight detour to avoid where the road encroached on property of an owner who had not been made a party to the proceeding.

[T8] Petitioners and Respondents both petitioned for review of the Board's decision. The district court concluded that the matter should be remanded to the Board, ruling that the Highway-BLM Road did not provide the Vosses adequate legal access to their land because the BLM Right-of-Way Grant does not provide legally enforceable permanent access. The district court also instructed the Board on remand to make an express determination of Petitioners' good faith in bringing the petition in the first instance. Vosses appealed; Respondents Stevens and Goodman filed a cross-appeal.

STANDARD OF REVIEW

[¶ 9] Appellate review of administrative decisions is pursuant to Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2003):

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
) Compel agency action unlawfully withheld or unreasonably delayed; and
) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

See Sinclair Oil Corp. v. Wyo. Public Serv. Comm'n, 2003 WY 22, ¶ 6, 63 P.3d 887, ¶ 6 (Wyo.2003); Newman v. State ex rel. Workers' Safety & Comp. Div., 2002 WY 91, ¶ 9, 49 P.3d 163, ¶ 9 (Wyo.2002). Questions of law raised in an administrative context are reviewed by this Court de novo. Sinclair Oil Corp, ¶ 7; State by and through Dep't of Rev. v. Buggy Bath Umlimited, Inc., 2001 WY 27, ¶ 6, 18 P.3d 1182, ¶ 6 (Wyo.2001). When an agency has not applied the correct rule of law, we correct the agency's error. Id. We recently stated these principles in the context of a private road action in Mayland v. Flitner, 2001 WY 69, ¶ 10, 28 P.3d 838, 1 10 (Wyo.2001).

[¶ 10] In reviewing factual issues in an administrative review, as we are required to do pursuant to § 16-8-114(c)(i)(R), we must determine if there exists substantial evidence in the record to support the agency's decision. Substantial evidence is "relevant evidence which a reasonable mind might accept in support of the conclusions of the agency." McTiernan v. Scott, 2001 WY 87, ¶ 11, 81 P.3d 749, ¶ 11 (Wyo.2001). That duty requires a review of the entire record to determine if there is relevant evidence that a reasonable mind might accept in support of the agency's decision. Occasionally, the process of review will necessarily require the reviewing court to engage in an assessment of the facts adduced during the administrative hearing. That assessment does not usually involve a reweighing or reconsideration of the basic facts found by the agency. However, as a byproduct of that process, the reviewing court may arrive at an ultimate conclusion derived from those basic facts that is different from the agency's. A court will reach a different conclusion based on the evidence only in those situations where the agency's conclusion is clearly contrary to the weight of the evidence.

Id. at 1 16 (citation and footnote omitted).

DISCUSSION

[T11] Vosses' major contention on appeal is that the road established by the Board does not provide them with the type of access to their lands guaranteed by Wyo. Stat. Aun. § 24-9-101 et seq. They contend the BLM-Highway Road is inadequate for two reasons: it crosses the BLM land under a mere license, and the easement across the Stevens property is restricted by a condition subsequent.

[¶ 12] The private road statute requires the Board to initially conduct a hearing to determine "the necessity of the road" petitioned for by "any person whose land has no outlet to, nor connection with a public road." Wyo. Stat. Aun. § 24-9-101 (Lexis 1999). We said in McGuire v. McGuire, 608 P.2d 1278, 1286 (Wyo.1980), and affirmed in Reaves v. Riley, 782 P.2d 1136, 1137 (Wyo.1989), that the "no outlet to, nor connection with" language means "no legally enforceable, existing outlet to nor connection with a public road." Also in Reaves, at 1137, we quoted from Mcllquham v. Anthony Wilkinson Live Stock Co., 18 Wyo. 53, 63, 104 P. 20, 22 (Wyo.1909), that the access provided for in the statute must be an "incorporeal right appurtenant to the estate granted, not a personal right or one incident to personal property."

[¶ 13] The BLM was not a party to the private road proceeding, nor has the United States waived its sovereign immunity for suits against it by private individuals seeking private roads. Dry Creek Lodge, Inc. v. United States, 515 F.2d 926 (10th Cir.1975). Vosses' right to cross the federal land is pursuant to a "Right of Way Grant" which they obtained from the BLM in December 1997. The grant is made pursuant to the Federal Land Policy and Management Act, 43 U.S.C. §§ 1701 et seq. The right-of-way grant includes the following terms:

c. This instrument shall terminate on 80 years from its effective date....
d. This instrument may be renewed. If renewed, the right-of-way or permit shall be subject to the regulations existing at the time of renewal and any other terms and conditions that the authorized officer deems necessary to protect the public interest.

Right-of-Way Grant/Temporary Use Permit, Serial Number WYW-141561. The doeument continues with several pages of regulations that are in fact conditions upon the Vosses' right to renew. 48 C.F.R. § 2808.6-5 (1999). The right-of-way is assignable only with the approval of the BLM. Id. at § 2801.1-l(e). The right-of-way may be suspended or terminated by the BLM upon breach of its terms prior to the expiration of 30 years. Id. at § 2808.4(b)-(d). Without determining the exact nature of the grant, it is abundantly clear that the Vosses' permit is personal to them and does not pass automatically upon conveyance of the property. As in Reaves, the permit is not an appurtenant right and "therefore, does not constitute an outlet or connection within the purview of the statute." 782 P.2d at 11837.

[T14] Since the BLM Road is not adequate under Reaves and the BLM has not made itself subject to the Board's jurisdiction, the petition must be remanded to the Board for reconsideration in a manner consistent with this decision. The remand renders many of the issues raised by the parties moot; however, we will address some of those issues that are likely to recur upon remand. McGuire, 608 P.2d at 1286.

[T15] Several of the Vosses' issues relate to the Board's authority to establish a private road other than that proposed in the petition. "The legislature obviously intended to allow the applicant to choose the general location of the [proposed] road." Dunning v. Ankney, 936 P.2d 61, 65 (Wyo.1997). However, the statute also grants the viewers substantial leeway in locating the road:

The viewers shall then proceed to locate and mark out a private road in accordance with the application or in such other manner and location they deem appropriate, provided the location of the road shall not be marked out to cross the lands of any person whose lands were not described in the application and who was not given notice of the application.

§ 24-9-101 (emphasis added).

[T16] The legislative history of this section is informative, as the same section until 1985 did not contain the emphasized language, and the title of the bill amending the law that yéar included in its purpose "authorizing viewers to locate a private road other than as indicated in the application...." 1985 Wyo. Sess. Laws ch. 56. Although an applicant may propose alternative locations for a road, Dunning, 936 P.2d at 65, the applicant does not have authority to limit the Board to the consideration of one road only. Upon remand, therefore, the Board is not constrained to consideration of the Creek Road proposed by the Vosses.

[T17] Although the 1985 version of the law is controlling in this case, it is informative in interpreting it that the legislature in 2000 further limited an applicant's ability to control the location of a private road when it more expressly authorized viewers to propose and commissioners to consider possible alternatives to the route proposed by the petitioner, joining additional landowners as parties if necessary. Wyo. Stat. Ann. § 24-9-101 (LexisNexis 2001).

[T18] Applicants make numerous procedural challenges to the actions of the Board and viewers, including: 1) the lack of an order directing the viewers to meet and locate a private road as statutorily required; 2) the failure of the viewers to take an oath; 3) a potential conflict of interest by one viewer; 4) the manner in which the viewers met with the parties; 5) Vosses' opportunity to examine the viewers; and, 6) the viewers role in determining the reasonableness of the road.

[T19] We do not find it necessary to examine each one of the alleged procedural defects in detail. Although the Board and viewers should have presented us with a more complete record to document compliance with statutorily-required procedures, we find that the alleged irregularities are generally de minimis and that the Board substantially complied with procedural requirements of the statute and due process. The applicants in many of their allegations seem to confuse the role of the viewers and the Board. Although the procedure for the viewers is set out in the statute in some detail, it is the Board that constitutes the administrative ageney acting in an adjudicative capacity in a private road proceeding. Due process requirements attach more strictly to the proceedings before the Board than to those of the viewers. Carney v. Bd. of Cty. Comm'rs of Sublette Cty., 757 P.2d 556, 560 (Wyo.1988). The record shows that the parties were notified through counsel of the viewers' schedule, and in fact Goodmans and Vosses appeared and were heard on site by the viewers, although not in the presence of one another. The parties were afforded abundant opportunity to present evidence and legal argument at formal hearings before the Board, as well as to voir dire the viewers and cross-examine the respondents' witnesses in formal hearing.

[T20] The Board held its first hearing on March 2, 1999, at which both petitioners and respondents presented testimony subject to cross-examination. The Board then issued an order appointing viewers on March 16, 1999, and a clarifying order on April 23, 1999. Although the Board in its orders appointing viewers did not expressly find that the Voss-es were landlocked, that finding is necessarily implied in its decision to appoint viewers and was explained further in the Board's later Findings of Fact and Conclusions of Law when it stated that "due to the fact that the easement narrows to approximately three (3) feet in width at the west end of the Goodman easement, the Petitioners are effectively landlocked." Although the Board should have taken greater care to document compliance with the statutory requirements, the Board's second order directed the viewers to act in accord with the Wyoming private road statute. Moreover, the Board, viewers and parties all subsequently acted upon the assumption that the Vosses had established that their property was landlocked, and no misapprehension, confusion or prejudice resulted.

[T12] The record does not clearly establish whether the viewers took an oath to "faithfully and impartially perform their duties," as required by the statute. One of the viewers testified under oath that he had been sworn, while another could not remember being sworn. A presumption of regularity attaches to such administrative proceedings, and the failure to subscribe to an oath in the exact manner prescribed in a statute is a mere irregularity that does not invalidate the entire procedure, Miller v. Hagie, 59 Wyo. 383, 395, 140 P.2d 746, 750 (1943), as the failure to swear a witness in a judicial proceeding does not necessarily create grounds for a new trial,. Heier v. State, 727 P.2d 707, 709 (Wyo.1986).

[122] Vosses complain that one of the viewers was a member of a law firm which had previously represented Respondent Goodman. The statute requires the Board, if it finds that a private road is necessary, to appoint "three (8) disinterested freeholders and electors of the county, as viewers and appraisers...." § 24-9-101. Vosses cite case law interpreting the Wyoming Rules of Professional Responsibility for attorneys, assuming that, since one of the viewers was an attorney, the test of disinterestedness is the same as that for conflict of interest under those rules. However, those rules and cases concern questions of conflict arising in an attorney's representation of a client and are not controlling. The Board took evidence on the issue at the hearing following the viewers' report on August 2, 1999, and concluded that the viewer was not a member of the law firm at the time of the prior representation, that there was no current representation, that he did not know the people involved and that he had no knowledge about the prior representation. The Board's conclusion that the viewer was disinterested in the private road matter is thus supported by substantial evidence and will not be disturbed on appeal.

[123] Petitioners next challenge the viewers' actions because they failed to meet simultaneously with both sides when viewing the affected property; however, they offer no authority for the proposition that they are entitled to attend all of the viewers' discussions or to a hearing before them. As we stated in Carney, the parties to a private road action are afforded due process by their right to a contested case hearing before the Board, a right to which the parties availed themselves. 757 P.2d at 560. There is no basis in the statute or considerations of due process for dual hearings.

[T24] The petitioners also contend that the Board improperly delegated to the viewers the determination of the reasonableness of the road's location. In addition to bootstrapping upon their argument that the Board and viewers could consider only the road proposed by petitioners, they base this contention upon the Board's conclusions of law that incorporated the viewers' conclusions and recommendations, specifically their conclusion that "[the Petitioners and Respondents had the opportunity to address the viewers with comments as to a reasonable route to ensure legal access ..." and that "[the viewers' choice of routes was appropriate...." Those conclusions came only after the Board received the viewers' report and heard the testimony of the viewers and the evidence of the affected parties. The process complained of is simply that required by the private road statute:

The viewers shall then proceed to locate and mark out a private road in accordance with the application or in such other manner and location they deem appropriate, provided the location of the road shall not be marked out to eross the lands of any person whose lands were not described in the application and who was not given notice of the application. The proposed road ... shall be located so as to do the least possible damage to the lands through which the private road is located.

§ 24-9-101. The viewers "will be knowledgeable with respect to the local conditions and will apply that knowledge and their common sense in arriving at a determination." Carney, 757 P.2d at 561. The process apparently advocated by the petitioners in this case would reduce the role of the viewers to mere hikers whose only function is to mark on the ground the road proposed in the application.

[T25] We agree with the petitioners that the district court erred in instructing the Board to consider on remand whether the Vosses' private road petition was filed in good faith. We stated in McGuire, 608 P.2d at 1286, that "[the applicant has the responsibility for studying alternative routes and asking in good faith for one that is reasonable and convenient. Only then may the applicant be said to have complied with the law so that the county commissioners have jurisdiction to proceed." See also, Dunning, 936 P.2d at 65. In this regard, the posture of the current case is identical to that in Mayland v. Flitner, 2001 WY 69, 28 P.3d 838 (Wyo.2001), a private road appeal in which we reiterated a definition of "good faith." Id. at 116. The Board of Commissioners did not make a specific finding of good faith in either case; however, as in Mayland, it is clear from the record that allegations of bad faith were brought before the Board during the contested case hearings and strenuously litigated. Although petitioners were requesting the Creek Road route, they testified about the two existing routes to their property and why the proposed route was preferable. They convinced the Board that they were landlocked "due to the fact that the easement narrows to approximately three (8) feet in width at the west end of the Goodman easement." Under these circumstances, we agree with petitioners that the requisite finding of good faith is implicit in the Board's conclusion that a private road is necessary.

[¶ 26] Finally, we consider the effect of the restrictive easement granted by the Stevenses for the portion of the Highway-BLM Road which crosses their property. Vosses contend that the Stevens easement, because it is subject to termination in the event Vosses transfer less than all of their property, does not give them the "legally enforceable" right of access required by the statute and Reaves v. Riley, 782 P.2d 1136, 1137 (Wyo.1989). They argue that the possibility of termination renders the casement the functional equivalent of an easement in gross, personal to the Vosses, rather than an appurtenant easement.

[¶ 27] We recently addressed easements in Hasvold v. Park Cty. Sch. Dist. No. 6, 2002 WY 65, 45 P.3d 635 (Wyo.2002):

An easement is defined as an interest in land which entitles the eagement holder to a limited use or enjoyment over another person's property. In construing an easement, we seek to determine the intent of the parties to the easement. We begin by attempting to glean the meaning of the easement from its language. If the language of the easement is clear and unambiguous, we interpret the easement as a matter of law, without resorting to the use of extrinsic evidence to determine the parties' intent. If, however, the language is ambiguous, then the court looks to extrinsic evidence to ascertain the parties' intent.

Id. at 118 (citations and quotation marks omitted). We distinguish between appurtenant easements and easements in gross as follows:

An easement is appurtenant to the land when the easement is created to benefit and does benefit the possessor of the land in his use of the land. In contrast, an easement is in gross when it is not created to benefit or when it does not benefit the possessor of any tract of land in his use of it as such possessor. An easement will not be presumed to be in gross when it can fairly be construed to be appurtenant.

Id. at 114 (citations and quotation marks omitted).

[T28] Also in Hasvold at T 21, we reiterated the six "badges" of an appurtenant casement that we first identified in R.C.R., Inc. v. Rainbow Canyon, Inc., 978 P.2d 581, 586 (Wyo.1999):(1) that the easement was created to benefit a specific tract of land; (2) that the grant was for a perpetual right-of-way for ingress and egress; (8) that the grantee has the right to inspect and maintain the easement; (4) that the right is not limited to the possessor personally; (5) that the grant expressly extends the right to the grantees, their heirs, executors, administrators, successors, assigns and legal representatives; and (6) that the easement document does not contain any limitations on the transferability of the easement to future transfers of both the dominant and servient estates.

[¶ 29] Applying these criteria to the casement given by the Stevenses to Vosses, we see that it incorporates some but not all of the badges of an appurtenant easement. The easement document identifies the grantors and grantees of an "ingress and egress easement" that is described by metes and bounds across the Stevens property but does not describe the Vosses' benefited land. The document recites that the easement is for the use of "the Grantors [sic], their heirs, personal representatives and assigns" without stating that the grant is perpetual. Most significantly, the easement contains the limitation that "[the easement granted herein shall automatically terminate should Grantees, their heirs, personal representatives or assigns ever sell or convey any portion of the benefitted [sic] lands in a quantity of acres less than exists as of the date of the granting of this easement." This easement document is sufficiently ambiguous to require inspection of extrinsic evidence to determine the nature of the easement.

[¶ 30] On March 2, 1999, Kim Stevens signed and recorded an "Affidavit Affecting Title to Correct and Clarify Previously Recorded Instrument," which recited the full names of the grantors and grantees of the easement, included a legal description of the benefited lands, and stated that the previously-granted ingress and egress easement "was intended to benefit and be appurtenant to" the Vosses' property. This was apparently done unilaterally, on the day of the necessity hearing. Mrs. Stevens also testified that the purpose of the affidavit was to clarify their intention that the access easement be appurtenant to the Voss property but that it not be expanded to a subdivision easement without renegotiation and additional consideration. This resolves any ambiguity as to the Ste-venses' intent to convey an appurtenant easement, leaving only the legal question of whether an appurtenant easement may automatically lapse upon subdivision of the dominant estate.

[¶ 31] The question is whether, under the above standards, the restriction in the easement constitutes such a limitation on the transferability of the easement to Vosses' successors in title, as to render it in effect a personal right of the Vosses. Although the grant may appear to be in perpetuity, in more direct terms the easement is granted only as long as the Vosses or their successors do not sell off any part of the Voss property as it now exists, The easement may be analogized to a fee subject to divestment, rather than a fee simple interest. We have held that upon subdivision of a dominant estate, the subdivision grantees succeed to the privileges of use of the servient estate authorized by an appurtenant easement. Mueller v. Hoblyn, 887 P.2d 500, 505 (Wyo.1994). Since the effect of the restriction is to prevent transferability of the easement to all transferees receiving anything less than the entire Voss property, we conclude that the restriction is in fact the type of limitation on transferability that is inconsistent with an appurtenant easement.

[¶ 32] The effect is more than hypothetical or inchoate, as there was unrebutted testimony at the hearing that the current value of the Voss property is diminished if future access is put into question by the easement restriction. We stated in Snell v. Ruppert, 541 P.2d 1042, 1046 n. 5 (Wyo.1975), overruled on other grounds, Ferguson Ranch, Inc. v. Murray, 811 P.2d 287, 290 (Wyo.1991), that the premise of the private road statute is that "[tlhere is a public interest in giving access by individuals to the road and highway network of the state as a part and an extension thereof for economic reasons and the development of land as a resource for the common good, whether residential or otherwise." In Hulse v. First American Title, 2001 WY 95, ¶¶ 33-35, 33 P.3d 122, ¶¶ 33-35 (Wyo.2001), which involved vacating a private road, we disapproved of an easement that was limited to "farming and ranching purposes" that did not provide the type of "legally enforceable, unrestricted access to a public road" required by the private road statute. Upon remand, therefore, if the Board determines that the private road will include the easement through the Stevens property, then the private road will be free of the restriction contained in the Stevens-Voss grant of easement.

CONCLUSION

[¶ 33] The determination of the Board of Commissioners that Petitioners established the necessity of q private road is affirmed, including an implied finding of Petitioners good faith in bringing the petition. The Board and viewers have authority, even a statutory obligation, to consider any reasonable, convenient location for the private road. However, the permissive use of BLM property under a 30-year license is not sufficient to give the Petitioners legally enforceable access, nor is an easement across Respondents' property that would lapse if the Petitioners ever subdivide their property. The case is remanded to the Board of Commissioners for proceedings consistent with this opinion, as provided in the private road statute and the Wyoming Administrative Procedure Act.

      . The entirety of the Board's order after the first hearing on necessity stated:
      Upon the Application of Mark and Laura Voss, et al., for the appointment of viewers to establish the location of a private road pursuant to law:
      The Board having provided a full hearing in which applicants for a private road were heard, and testimony was taken from applicants and from those neighboring landowners present to object to the applications, and from a former neighbor by telephone, and the Board having given the matter full consideration, it is hereby determined:
      That viewers ought to be, and will be, appointed to examine the various possibilities for access and determine the location of a private road according to the requirements set out by the Wyoming Statutes.

      . The typographical error does not void the easement where the obvious intent is that the Grantors convey an easement to the Grantees.


source: Caselaw Access Project

author: EASTAUGH, Justice.

license: Public Domain

text:
    ALASKA STATE EMPLOYEES ASSOCIATION/AFSCME LOCAL 52, AFL-CIO, Appellant, v. STATE of Alaska, Appellee.
    No. S-10226.
    Supreme Court of Alaska.
    July 25, 2003.
    Jay W. Trumble, General Counsel ASEA/ AFSCME Local 52, Anchorage, for Appellant.
    Patrick J. Gullufsen and Kathleen Stras-baugh, Assistant Attorneys General, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

The Alaska Child Support Enforcement Division terminated an administrative clerk after learning that she had been convicted of felony theft of public money. In the ensuing grievance proceeding, the arbitrator ruled that the termination was not for "just cause" and ordered the grievant reinstated. Because the grievant's position gave her access to sensitive information and was potentially subject to intense public scrutiny, we agree with the superior court that the arbitrator committed gross error by failing to find just cause. We therefore affirm the order vacating the arbitrator's decision.

II. FACTS AND PROCEEDINGS

The grievant had been employed as an administrative clerk by the Child Support Enforcement Division (CSED) of the Alaska Department of Revenue since 1996. She performed various clerical duties, including updating the computerized database for parents in the child support system. The database contains personal information about parents, including Social Security numbers, bank account numbers, and other sensitive, private information.

In 1999 CSED learned that the employee had pleaded guilty in 1998 to felony theft of public money, in violation of 18 U.S.C. § 641. Her written plea agreement with the United States Attorney stated that between September 1995 and June 1998 she had knowingly and fraudulently withheld child support income and employment income information when she applied for food stamps. As a result, she received food stamps exceeding her legal entitlement. The United States District Court for the District of Alaska ordered her to make restitution of $8,119.

After the state terminated her employment in 1999, the Alaska State Employees Association (ASEA), her Public Employment Relations Act representative, filed a grievance seeking her reinstatement.

In response the state maintained that retaining the grievant would send the wrong message to other employees and would place the department in the position of retaining a dishonest employee, damaging CSED's "reputation for integrity."

Per the collective bargaining agreement (CBA) between the ASEA and the state, the parties arbitrated the dispute to determine whether the grievant had been discharged for just cause. The arbitrator ruled in June 2000 that the "[gJrievant's discharge was not for just cause as required by Article 14 of the [CBA]." Article 14 requires that "[dliscipline and discharge ... be for just cause." The arbitrator also ruled that the discharge was to be rescinded and that the grievant was to be reinstated to her former position.

The state filed a superior court petition to vacate the arbitration award. Both sides then moved for summary judgment. The superior court granted the state's motion for summary judgment on the ground that "the arbitrator committed gross error in not using the appropriate standard to determine just cause." ASEA then filed a motion for reconsideration, which the superior court granted. On reconsideration the superior court permitted the parties to submit additional briefing discussing the standard for just cause termination. The superior court's August 28, 2001 order reaffirmed its earlier order granting summary judgment to the state.

ASEA appeals.

III DISCUSSION

A. - Standard of Review

While we have in the past declined to decide definitively the standard of review of compulsory grievance arbitration awards, we have generally applied the gross error standard in reviewing grievance arbitration awards. But we apply "the less deferential 'arbitrary and capricious standard ... in cases of compulsory interest arbitration." We have not yet addressed whether compulsory grievance arbitration proceedings like those here are subject to the gross error standard of review. We give an arbitrator's decision great deference. But this deference need not be as wide-ranging when a dispute is of a "contractually formative nature," because we can more easily review the legal relationship between the parties in the dispute. Grievance arbitration lacks this transparency; greater deference is therefore appropriate. Nonetheless, we do not have to decide here which standard of review applies. Under either standard the result here would be the same, We therefore apply the more deferential "gross error" standard.

B. Based on the Arbitrator's Findings, the Arbitrator Committed Gross Error in Ruling that CSED's Termination of the Grievant Was Not for Just Cause.

ASEA argues that because the arbitrator was not bound by Alaska law in determining the meaning of "just cause" as that term is used in the CBA, the superior court erred by vacating the arbitrator's decision. The state responds that because the CBA did not define "just cause," Alaska law applies. We emphasize at the outset that we are reluctant to disturb an arbitrator's decision even where we might reach a different conclusion. Moreover, courts routinely accord arbitrators a great deal of discretion. But we will reverse an arbitrator's decision if our independent review of the decision indicates that the arbitrator has made an "obvious and significant" mistake.

1. Interpreting Alaska's "just cause" decisions

a. The Manning and Braun decisions

- The term "just cause" as it applies to employee dismissal has been part of the parties' previous CBAs since at least 1984. An early CBA covering the period 1984-86 stated: "Just Cause means but is not limited to, incompetence, unsatisfactory performance of duties, unexcused absenteeism, drunkenness, dishonesty and gross disobedience." The 1990-92/93 CBA included "just cause" in its discussion of management rights and discharge:

Article 4-Management Rights
[Management's] functions, rights, powers and authority include, but are not limited to:
6. Discipline, suspend, demote or dismiss employees for just cause; ....
Article 14-Notice of Discipline and Discharge
A. Discipline and discharge shall be for just cause.

(Emphasis added.)

The superior court ruled in its summary judgment order that the arbitrator "committed gross error by imposing her own definition of just cause over that of the supreme court." Because the CBA applicable here did not define the term "just cause," the superior court initially based its ruling on our holding in Manning v. Alaska Railroad Corp. Quoting Braun v. Alaska Commer cial Fishing & Agriculture Bank, we held in Manning that " 'just cause' for discharge is one which is not for any arbitrary, capricious, or illegal reason and which is one based on facts (1) supported by substantial evidence and (2) reasonably believed by the employer to be true."

ASEA argues that the superior court erred because the arbitrator was not required to rely on Alaska law. Alternatively, ASEA argues that Manning is distinguishable because it did not involve a public employee and did not proceed to arbitration. ASEA similarly argues that Braun is distinguishable because "there was no collective bargaining agreement extending just cause discharge protection to plaintiff" The state responds that Braun merely served the purpose of defining "just cause" in the employment context and that Manning is relevant because it involved a collective bargaining agreement like the one in this case.

The applicable CBA does not define "just cause." The superior court stated that "arbitrators are ... bound by the supreme court's rulings, unless the parties have contracted otherwise. Here, the agreement did not contain a definition of the term just cause. Therefore, the arbitrator committed gross error by imposing her own definition of just cause over that of the supreme court." (Internal footnote omitted.)

The superior court did not have to go so far. The gross error in this case goes more to the application of the chosen standard than to the choice of a standard. The superi- or court is correct that the absence of an explicit definition of "Just cause" in the CBA indicates that our prior rulings would be an appropriate starting point. But the arbitrator's use of a well-reasoned alternative definition would not alone constitute gross error. We do not need to address in this case how far an arbitrator's definition of "just cause" could depart from our prior rulings, because we conclude that the arbitrator committed gross error in applying the standard she chose.

The arbitrator stated that the "meaning of the term 'just cause' in the collective bargaining arena has developed over many years of arbitration practice." She did not explain how her application of "traditional just cause standards" differed, if at all, from our prior cases, but described the standard she applied as follows: |

Under traditional just cause concepts, an employer must establish the existence of just cause based on the reasons on which it relied at the time of discipline. It is not enough that an employer was convinced by the evidence available to it at the time. The employer must submit that evidence so its veracity may be tested and considered along with evidence proffered on the employee's behalf.
Due process is an essential part of just cause. Before making a disciplinary decision, an employer must make a reasonable and fair investigation of the alleged misconduct. The accused employee must have notice of the specific charges and an opportunity to give his/her side of the story before a final decision is made. Factors upon which an employer did not rely at the time, or which are not established by the evidence at hearing, do not support just cause.

The arbitrator found that the "[glrievant pleaded guilty to felony theft of public money." She also found that the grievant's plea agreement stated that the grievant "knowingly and fraudulently withheld child support income and employment income information in [the grievant's] application for food stamps." The state offered the affidavit of State Labor Relations Analyst Melanie Mili-horn in support of its summary judgment motion. Millhorn affied that:

Barbara Miklos, the Director of CSED who made the decision to terminate the grievant[,] ... emphasized [that] the nature of CSED's mission, collecting and dispersing child support money, ... is a very controversial, highly serutinized function that frequently generates attacks against the agency. [Miklos] testified that it was her opinion, and the basis of her decision, that to retain an employee with a convietion of this nature could do substantial damage to the agency's image and reputation and conflicted with the CSED's mission and responsibilities.

There is evidence in the record that the grievant's position was one of public trust and that CSED itself relied on the public's trust in carrying out its duties. Significantly, the arbitrator's decision quoted the state's personnel hiring rules, which state for applicants with prior felony convictions:

In making the determination of whether an applicant should be disqualified for a position, the director may consider the nature and seriousness of the offense; the kind of position for which the applicant is applying and the requirements of that position; ... and any aggravating, mitigating, or other facts or circumstances which may have a bearing on the suitability of the applicant for employment in the position sought.

The state's hiring rules indicate that the state may refuse to examine or may disqualify applicants based solely on a conviction that may have a bearing on their ability to effectively perform their duties. This is no less true after an individual is hired and becomes a permanent employee, even though the employee is then offered the CBA's additional protection of dismissal only for just cause.

The arbitrator's decision stated that just cause requires "[the employer [to] submit . evidence so [that] its veracity may be tested and considered along with evidence proffered on the employee's behalf." The grievant's conviction was undisputed in this case. The arbitrator's findings establish that the grievant had access to confidential information and held a position of trust with CSED. Given the arbitrator's findings, we hold that the arbitrator committed gross error in determining that the termination was not for just cause.

b. The Cassel decision

The superior court order granting ASEA's motion for reconsideration of the order vacating the arbitrator's decision instructed the parties to consider Cassel v. State, Department of Admimistration. - ASEA argues that Cassel "does not support the proposition that the Braun standard of just cause should be applied within the public sector collective bargaining context." ASEA argues that Cassel was an administrative appeal involy-ing a probationary employee who "did not have access to the arbitration procedure wherein the traditional standard of just cause would apply." The state responds that Cas-sel merely imported the Braun framework "into a collective bargaining agreement covering public employees as the necessary basis for the discharge of a probationary employee."

'Because we decided Cassel in 2000, its relevance to the 1996-99 CBA is minimal. The superior court merely requested the parties to consider Cassel in their briefing for reconsideration. That case was not the basis for either of the superior court's orders granting summary judgment to the state.

2. The seven tests of just cause

ASEA argues that the parties' bargaining history requires a particular interpretation of just cause that involves "seven tests of just cause." ASEA argues that "[dlespite its recent assertion to the contrary, the State's history demonstrates its adherence to the seven tests." ASEA asserts that arbitrators routinely employ the seven-tests approach. The state responds that "[the evidence ASEA offers to support [its proposed] custom or usage ... is confused, unidentified in many instances, in part contradictory and often without context."

The arbitrator's decision does not explicitly employ the seven tests of just cause, and there is no indication that the arbitrator implicitly applied those tests. Similarly, ASEA did not rely on the seven-tests theory in the superior court in either moving for summary judgment or opposing the state's motion for summary judgment. We will not address for the first time on appeal an issue the appellant failed to raise below.

We hold that the superior court did not err in vacating the arbitrator's decision on the grounds of gross error.

C. The Superior Court Did Not Err in Vacating the Arbitrator's Decision Without Remanding to the Arbitrator.

ASEA briefly argues that the superior court, having vacated the arbitration award, erred by not remanding the case to the arbitrator. ASEA contends that the superior court's order "left the Grievant in this case without a remedy." The state responds that there was no error and that "[nlo legal authority is cited to support this proposition and no rationale is articulated that would justify remand to the arbitrator."

ASEA cites no legal authority to support its contention and its brief gives the issue only cursory mention. The superior court's order had the intended effect of validating CSED's termination of the grievant. Since the only dispute was just cause, the superior court did not err.

IV. CONCLUSION

We AFFIRM the superior court's decision.

      . Remarkably, the parties have not included the original summary judgment order in the excerpts of record. See Alaska R.App. P. 210(c)(2).

      . Pub. Safety Employees Ass'n, Local 92 v. State, 902 P.2d 1334, 1336 (Alaska 1995).

      . Id.

      . The CBA is governed by AS 23.40.210, which requires mandatory grievance arbitration proceedings. AS 23.40.210(a) states in relevant part:
      Upon the completion of negotiations between an organization and a public employer, if a settlement is reached, the employer shall reduce it to writing in the form of an agreement. The agreement may include a term for which it will remain in effect, not to exceed three years.... The agreement shall include a grievance procedure which shall have binding arbitration as its final step. Either party to the agreement has a right of action to enforce the agreement by petition to the labor relations agency.
      (Emphasis added.)

      . Dep't of Pub. Safety v. Pub. Safety Employees Ass'n, 732 P.2d 1090, 1093 (Alaska 1987).

      . Pub. Safety Employees Ass'n, Local 92, 902 P.2d at 1336 (discussing review standard when dispute is of "contractually formative nature").

      . We held in Department of Public Safety v. Public Safety Employees Ass'n that "[als a matter of policy and law, we are [loath] to vacate an award made by an arbitrator.... A court may not vacate an arbitrator's interpretation of a collective bargaining agreement in favor of its own merely because it finds its own to be better reasoned." 732 P.2d at 1093.

      . "Arbitrators often construe collective bargaining agreements in light of statutes and case lawl, but in] some cases ... arbitrators have refused to apply external law in rendering their decisions." MARLIN M. VOLZ & EDWARD P. GOGGIN, ELKOURI & ELKOURI HOW ARBITRATION WORKS, at 486 & nn. 76, 78 (5th ed.1997). The authors cite a number of cases, including Peabody Coal Co. Mine No. 10, 98 LA 882, 884 (1992) (stating arbitrators do not generally base their decisions upon external law unless contract directs arbitrator to do so). See id. But see St. Louis Tel. Employees' Credit Union, 97 LA 412, 416 (1991) (affirming arbitrator's ruling to uphold employer's termination based on employee's violation of state law, despite lack of "just cause" as defined by contract).

      . State v. Pub. Safety Employees Ass'n, Local 92, 798 P.2d 1281, 1285 (Alaska 1990).

      . The record does not contain a complete copy of the applicable 1996-99 CBA.

      . 853 P.2d 1120 (Alaska 1993).

      . 816 P.2d 140 (Alaska 1991).

      . Manning, 853 P.2d at 1125.

      . One of the tests ASEA articulates for the just cause standard is discussed in Part IIL B.2.

      . ASEA argues that Millhorn's recounting of Barbara Miklos's testimony is inadmissible hearsay and that the superior court erred in not ruling on admissibility. We disagree. Mill-horn's testimony was not offered "to prove the truth of the matter asserted"-ie., that the griev-ant's position with CSED was one of public trust. Alaska R. Evid. 801(c). Instead, Mill-horn's affidavit explained the CSED director's own belief why she thought the grievant's termination was for just cause. The arbitrator's findings taken alone were sufficient indication that the grievant's position was one of public trust and potentially subject to great public scrutiny. For instance, her findings establish the grievant's access to confidential information, including bank account numbers, Social Security numbers, employment information, and addresses.

      . ASEA argues that the state should have "convey[ed] to the Union that Braun's wrongful discharge definition of just cause somehow set aside the parties agreed upon definition of just cause." But there was no "agreed upon" definition in the CBA. The state therefore had no duty to make ASEA aware of the likelihood of Braun's application to the CBA.

      . 14 P.3d 278 (Alaska 2000).

      . The discussion of Cassel in the superior court's August 2001 order was only tangential to its holding. Indeed, the superior court's reason for granting reconsideration was to allow ASEA an opportunity to provide support for its claim that there were no cases applying Braun to a collective bargaining context. The court stated:
      [Ulpon review the court has decided ASEA should be allowed to present arguments regarding the use of the just cause standard in a collective bargaining context focusing on cases such as Manning. To aid counsel in this quest the court notes that both ASEA and the State of Alaska ... should also consider Cassel v. State, Department of Administration.

      . The seven tests, stated in question format, are:
      1. Did the employer give to the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee's conduct?
      2. Was the employer's rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the employer's business and (b) the performance that the employer might properly expect of the employee?
      3. Did the employer, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?
      4. Was the employer's investigation conducted fairly and objectively?
      5. At the investigation did the "judge" obtain substantial evidence or proof that the employee was guilty as charged?
      6. Has the employer applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?
      7. Was the degree of discipline administered by the employer in a particular case reasonably related to (a) the seriousness of the employee's proven offense and (b) the record of the employee in his service with the employer?
      Enterprise Wire Co., 46 LA 356, 362 (1966).

      . Wells v. State, 46 P.3d 967, 970 n. 7 (Alaska 2002) (citation omitted).

      . Petersen v. Mut. Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990) (holding claim given only cursory treatment in party's brief is waived).


author: CARPENETI, Justice.

text:
    John Bruce GRINOLS, Petitioner/Cross-Respondent, v. STATE of Alaska, Respondent/Cross-Petitioner.
    Nos. S-9939, S-9940.
    Supreme Court of Alaska.
    Aug. 1, 2003.

      John B. Grinols, pro se, Vancouver, British Columbia, Canada.
    Nancy R. Simel, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Respondent/Cross-Petitioner.
    Marcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Amicus Cu-riage Alaska Public Defender Agency.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

We accepted two questions on a petition for hearing regarding the ability of a defendant to challenge the effectiveness of post-conviction relief counsel: (1) Whether the due process clause of the Alaska Constitution requires that a criminal defendant be able to challenge the effectiveness of counsel in a post-conviction proceeding, and (2) if so, whether due process requires the appointment of counsel in that proceeding. Because the due process clause does require that a defendant be able to challenge the effectiveness of counsel, we affirm the decision of the court of appeals on the first question. Because the petition for hearing was improvidently granted on the second question-whether due process requires counsel to be appointed in such proceedings-we decline to consider it.

II. FACTS AND PROCEEDINGS

John Grinols was convicted of three counts of sexual abuse of a minor in 1992. In 1995 the court of appeals affirmed those convie-tions. Grinols then filed a petition for post-conviction relief, alleging ineffective assistance of counsel on the part of his trial attorney. That petition was denied and that denial was affirmed by the court of appeals in 1998.

Grinols next filed a petition for writ of habeas corpus in January 1999, raising new attacks on his conviction. Relying on Alaska Civil Rule 86(m), the superior court ruled that Grinols's habeas corpus petition had to be treated as a second application for post-conviction relief, As AS 12.72.020(a)(6) declares that defendants are entitled to only one application for post-conviction relief, the superior court dismissed Grinols's lawsuit.

Grinols appealed the dismissal, arguing that he had a constitutional right to pursue the new collateral attacks on his conviction. He argued that Civil Rule 86(m) abridged his right of habeas corpus or, in the alternative, that even if his habeas corpus petition must have been deemed a second application for post-conviction relief, he was still entitled to litigate his claims in spite of AS 12.72.020(a)(6). Grinols also contended that he was entitled to appointed counsel to assist him in his litigation.

The court of appeals held that the doctrine of res judicata that applied to habeas corpus and post-conviction relief litigation even prior to the enactment of the rule and statute would bar all but three of Grinolg's claims. Of those three claims, the court of appeals held, one should have been treated as a motion in the underlying case and another fell within a legislatively-created exception to the ban on second applications for post-conviction relief. The only remaining claim before the court was Grinols's assertion that he received ineffective assistance of counsel when he litigated his first application for post-conviction relief.

The court of appeals upheld the constitutionality of Civil Rule 86(m), which states that post-conviction relief supersedes habeas corpus as the method for collateral attack, and it upheld AS 12.72.020(a)(6), which limits a defendant to one application for post-conviction relief. The court further held that, under the due process clause of the Alaska Constitution, defendants must be allowed to pursue a second petition for post-conviction relief if they allege that they received ineffective assistance of counsel in litigating their first application. The court reasoned that, as defendants have a right to competent legal representation when they litigate a first application for post-conviction relief, they must be allowed to attack the result of that first application by showing that they received incompetent representation.

In order to challenge the effectiveness of counsel, the court of appeals held that the defendant must do more than show that his or her post-conviction relief attorney failed to raise or competently argue a colorable claim. The defendant must also prove (1) that the defendant was diligent in raising the ineffective counsel claim, (2) that the prior post-conviction relief attorney was incompetent, (3) that the underlying claim was meritorious, and (4) that there is a reasonable possibility that the outcome of the defendant's original trial court proceedings would have been different but for counsel's incompetence.

The court of appeals, though, held that indigent defendants are not entitled to counsel at public expense when litigating a second application for post-conviction relief, Rather, the court stated, the superior court has authority, under the due process clause, to appoint counsel for an indigent defendant where the court finds that a lawyer's assistance is needed for a fair and meaningful litigation of the defendant's claim.

Grinols filed a petition for hearing, alleging several errors. The state cross-petitioned, arguing that the court of appeals erred in holding that under the due process clause of the Alaska Constitution a defendant may bring a second application for post-conviction relief if the defendant alleges ineffective assistance of counsel in litigating the first application. We granted the state's cross-petition and one part of Grinols's petition. We directed the parties to file briefs addressing two issues:

a. Under the Alaska Constitution's due process clause, must defendant be given an opportunity to challenge the competency of representation provided by an appointed attorney who represented the defendant in a post-conviction relief action?
b. If so, does the defendant also have a constitutional right to counsel and to appointed counsel to assist in prosecuting the ineffective assistance of counsel claim? []

We also invited the Alaska Public Defender Agency and the Office of Public Advocacy to file amicus briefs.

III. STANDARD OF REVIEW

We interpret the Alaska Constitution using - our _- independent judgment, adopt[ing] the rule of law that is most persuasive in light of precedent, reason, and policy."

IV. DISCUSSION

In his brief to this court, Grinols separates his argument into nine sections. Six of those nine sections have no bearing on the questions accepted by this court for review. Rather, these sections either argue the merits of his ineffective counsel claim in his first post-conviction relief proceeding; detail specific encounters with various people involved in the investigation or litigation; or threaten members of the prosecution team, law enforcement, and this court.

The remaining three sections of Grinols's brief, titled "Constitutional Right to Counsel," "Due Process," and "Ineffective Assistance and the Denial of Habeas Procedures as Remedy," at least nominally relate to the questions before this court. In his discussion of the constitutional right to counsel, though, Grinols spends the majority of his argument asserting his right to appointed counsel of his choice, his right to co-counsel in a dual representation scheme, and the merits of the attorney-client privilege in a post-conviction relief proceeding.

Given this state of the briefing, we will address the arguments asserted by the state and by the public defender as amicus. To the extent that Grinols's arguments reach either of the questions accepted by us for review, those arguments will be addressed. However, because in a petition for hearing we will review only those issues accepted by this court, we will not address the remainder of Grinols's arguments.

A. Under the Due Process Clause of the Alaska Constitution, a Defendant Must Be Given an Opportunity To Challenge the Competency of Representation Provided by an Appointed Attorney Who Represented the Defendant in a Post-Conviction Relief Action.

1. The right to counsel in a first post-conviction proceeding is of a constitutional nature; it may not be abridged by statute.

The state argues that the right to counsel in a post-conviction relief proceeding is statutory and therefore not subject to the guarantee of effective assistance of counsel. After discussing the original right to counsel envisioned by the drafters of the Alaska Constitution and Gideon v. Wainwright, the state analyzes the development of the right to counsel in post-conviction relief litigation. We review that history now to place the right to counsel in its proper historical context.

In Nichols v. State, we first acknowledged that a defendant is entitled to representation at the hearing of a first application for post-conviction relief, although the court was divided in its reasoning. Justice Dimond based the court's opinion on equal protection grounds, stating that where a person seeking to have a sentence vacated or set aside under the criminal rules has the right apart from statute to hire representation for the hearing, a prisoner without funds to hire counsel for the hearing has the right to have counsel appointed. Justice Rabinowitz, in a concurring opinion, stated that onee a hearing under the criminal rules to set aside a conviction is required, the contemplated hearing is adversarial in nature and that "[flailure to appoint counsel in such cireumstances results in fundamental unfairness to an indigent movant." - Justice Rabinowitz supported his concurrence with two alternate theories: First, the supervisory powers of this court over the eriminal justice system require appointment of counsel to all indigent defendants in a hearing to set aside or vacate a sentence, thereby "giv{ing] recognition to the paramount importance of insuring the integrity and accuracy of [this court's] fact-finding processes." Alternatively, Justice Rabi-nowitz stated that denying appointment of counsel in this case was "fundamentally unfair and violative of the due process clause of article [I], section 7 of the Alaska Constitution."

Donnelly v. State expanded the right articulated in Nichols In Nichols we "held that an indigent prisoner seeking [post-conviction relief] must be afforded representation at a hearing for post-convietion for relief" Donnelly held that "the counsel requirements compelled by Nichols must be extended to require representation at the time the initial application is filed." We further stated, "(ilt is therefore essential that he be represented by competent counsel in the event that he is unable to afford an attorney." Although Domnelly did not expound on the basis for the right to counsel, and in McCracken v. State we noted that "our ruling [in Donnelly] was compelled not by the Constitution, but rather by what we regarded to be an inherent procedural requirement of [Alaskal Criminal Rule 35," we did not foreclose the existence of the constitutional right. We also stated that, although Criminal Rule 39(b), by its use of the term "defendant," applied to appointment of counsel in pre-conviction proceedings, "the appointment of counsel in post-conviction relief proceedings is nevertheless mandated by the Criminal Rules."

The court of appeals addressed the basis for the right to counsel in post-conviction relief proceedings in Hertz v. State. In Herts, the appeals court stated that it had been suggested "that the Alaska Constitution guarantees a right to counsel in post-convietion proceedings," citing the divided court in Nichols, but that subsequent cases had indicated "that an indigent defendant's right to the appointment of counsel in presenting his or her first application for post-conviction relief [was] based solely on the rules of erimi-nal procedure," citing McCracken and Donnelly. In his concurrence to Hertz, then-Chief Judge Bryner stated that "(Inasmuch as the supreme court has decided that representation by counsel [in an initial application for post-conviction relief] is a matter of right, there is simply no basis for concluding that post-conviction relief applicants should receive anything less than the full, effective assistance of counsel that is constitutionally guaranteed."

The state argues that under Nichols and Donnelly the court of appeals was wrong in its conclusion in Herts and that the right to counsel under AS 18.85.100(c) is not of a constitutional nature and does not give rise to a due process right to counsel. As this right is either statutory or granted under this court's supervisory powers, the state asserts, the right can be restricted, as other rights have been.

We start with the observation that in Nichols the majority-both Justice Dimond and Justice Rabinowitz -found that the right to representation of an indigent prisoner bringing an application for post-conviction relief was constitutionally-based. Next, in Donnelly we held that it was "essential" that an indigent prisoner bringing an application for post-conviction relief be represented from the time of the filing of the claim. The right to representation, first articulated in Nichols, was expanded in Donnelly "to assure a full and fair exploration of the claim." This language shows that our concern for fairness, an inherent concern in the criminal justice system, prompted the guarantee of a right to counsel in post-conviction relief litigation. And as then-Chief Judge Bryner of the court of appeals stated, it appears as though "representation by counsel is a matter of right." To the extent that any of our prior decisions has cast doubt upon the constitutional underpinning of the right to counsel in post-conviction relief actions, we hold today that the right to counsel in a first application for post-conviction relief is of a constitutional nature, required under the due process clause of the Alaska Constitution.

2. The Alaska Constitution's due process clause requires that counsel in a post-conviction relief application be effective.

We turn now to the question whether the Alaska Constitution's due process clause requires that counsel in a first application for post-conviction relief be effective.

The Alaska Constitution guarantees that "Inlo person shall be deprived of life, liberty, or property, without due process of law." We have adopted the balancing test from Mathews v. Eldridge to determine what process is due:

Identification of the specific dictates of due process generally involves consideration of three distinct factors: the private interest affected by the official action; the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the fiscal and administrative burdens that additional or substitute procedural requirements would entail.

The private interest affected in a case in which a defendant seeks to bring an ineffective counsel claim against an attorney appointed to represent the defendant in a post-conviction relief proceeding is the defendant's interest in effective representation. An indigent defendant is guaranteed legal representation in a first application for post-conviction relief both under the Alaska Constitution and under AS 18.85.100(0). If defendant's post-conviction relief counsel were ineffective, viable challenges to a conviction would be foreclosed and relief would be denied if a second petition for post-convietion relief were barred. Without relief, there is no guarantee of a fair post-conviction relief action, depriving the constitutional and statutory right to representation of any substance. The risk of erroneous deprivation of a person's right to effective representation, then, is great.

The burden on the state, though, is also appreciable, - Administratively, the state would be required to address second post-conviction relief petitions to determine if counsel for a first post-conviction relief petition was inadequate. Rather than the court simply denying the petition outright as would otherwise - be - required _ under - AS 12.72.020(a)(6), the state would be required to litigate the petition. This increased administrative burden represents an increased fiscal burden as well. The possibility that prisoners will file frivolous elaims if second applications raising ineffective counsel claims are allowed would increase the state's burden.

These competing interests are both weighty, and the balance is close, but this court's previous decisions and the decisions of the United States Supreme Court concerning effective representation provide guidance. Over thirty years ago, the Supreme Court stated, "It has long been recognized that the right to counsel is the right to the effective assistance of counsel." Likewise, we have recognized the right to effective representation where representation is guaranteed, and the court of appeals has stated that "courts must vigilantly protect this right to effective representation." Like the court of appeals, we find persuasive the reasoning of the Supreme Court of Connecticut that "it would be absurd [for a defendant] to have the right to appointed counsel who is not required to be competent." Given that a right to counsel would be meaningless if that counsel were not effective, we hold that the due process clause of the Alaska Constitution requires that a defendant be given a chance to challenge the effectiveness of counsel in a second petition for post-conviction relief.

We conclude, therefore, that the burden on the state is not enough to overcome a defendant's right to effective representation and the risk that that right would be violated if the defendant were unable to challenge an attorney's effectiveness. Furthermore, the four-part test imposed by the court of appeals upon a defendant raising an ineffective counsel claim will tend to sereen out frivolous claims. We conclude that the right to fair proceedings requires effective counsel at those proceedings.

3. The extent of the federal due process right to counsel does not affect the extent of the Alaska due process right to counsel.

The state argues that the due process right to counsel under the federal Constitution is not as expansive as the court of appeals found it to be in this case. The state cites Ross v. Moffitt, Pennsylvamia v. Finley, and Coleman v. Thompson, arguing that these cases hold that there is no federal right to counsel in a post-conviction relief proceeding and that there can be no challenge to the effectiveness of representation in such proceedings.

The reach of the federal due process clause in post-conviction relief litigation is irrelevant to this case. We decide this case under the Alaska Constitution, not the federal Constitution.

B. The Petition for Review of the Question Whether Due Process Requires the Appointment of Counsel To Assist in Prosecuting an Ineffective Assistance of Counsel Claim Was Improvidently Granted.

The court of appeals decided that the question of appointing counsel to assist Grinols in presenting his second post-conviction relief claim-(that his counsel on his first post-conviction claim was ineffective)-should be left to the superior court to decide. Upon further consideration, we conclude that we improvidently granted review of this question. Accordingly, we decline to consider it further here.

v. CONCLUSION

Because a defendant has a constitutional right to effective counsel in a first application for post-conviction relief, that defendant must be given the opportunity to challenge the effectiveness of counsel in a second petition for post-conviction relief. We therefore AFFIRM the decision of the court of appeals on that issue and decline to address the appointment of counsel for indigent defendants in such proceedings.

      . The facts of this case are drawn principally from the opinion in the court of appeals, Grinols v. State, 10 P.3d 600 (Alaska App.2000).

      . The court of appeals thus reversed the superior court's denial of relief under AS 12.72.020(a)(6) and remanded for further proceedings in the trial court. Id. at 619-20.

      . Accordingly, the court of appeals reversed the superior court and remanded for further proceedings. Id.

      . Id.

      . Id.

      . Alaska Supreme Court Order No. 9940 (July 5, 2001).

      . Id.

      . - Leisnoi, Inc. v. Stratman, 960 P.2d 14, 17 (Alaska 1998).

      . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . - Grinols titles these sections "Post-Conviction Ineffectiveness"; ''The Affirmative Defense of Reasonable Mistake of Age"; "Procedural State Terrorism Resulting in Ineffective Assistance of Counsel"; "Probation and Parole Procedural State Terrorism"; "Alaska Statutes and Legislation and State Procedural Terrorism: Unreasonable Punishments Imposed Against the Family"; ''Unreasonable Legislative Statutes-Oppressive Requirements for Classifications."

      . Alaska R.App. P. 305(a)(1) provides:
      Unless the order granting a hearing provides otherwise, hearing is granted as to all points raised in the petition (see Rule 303(b)(4)[] (Emphasis added.)

      . 372 U.S. 335, 83 S.Ct. 792, 9 LEd.2d 799 (1963).

      . 425 P.2d 247 (Alaska 1967).

      . Id. at 255.

      . Id.

      . Id. at 256 (Rabinowitz, J., concurring).

      . Id.

      . Id.

      . 516 P.2d 396 (Alaska 1973).

      . Id. at 399 (summarizing the holding in Nick-ols ).

      . Id.

      . Id.(emphasis added).

      . 518 P.2d 85 (Alaska 1974).

      . Id. at 90 n. 14.

      . Id. at 88 n. 2.

      . 755 P.2d 406 (Alaska App.1988), superceded on other grounds by rule as stated in Griffin v. State, 18 P.3d 71 (Alaska App.2001).

      . Id. at 407-08.

      . Id. at 410 (Bryner, C.J., concurring).

      . Only Chief Justice Nesbett, the third member of what was at the time a three-member court, disagreed with the holding that the right to representation was constitutionally-based. Nichols, 425 P.2d at 256.

      . 516 P.2d at 399.

      . Id.

      . Hertz, 755 P.2d at 410 (Bryner, C.J., concurring).

      . Alaska Const., art. I, § 7.

      . 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

      . In re K.L.J., 813 P.2d 276, 279 (Alaska 1991).

      . Id. (quoting Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 353 (Alaska 1988)).

      . See supra Part IV.A.1.

      . AS 18.85.100(c) provides, in part:
      An indigent person is entitled to representation under (a) and (b) of this section for purposes of bringing a timely application for post-conviction relief under AS 12.72. An indigent person is not entitled to representation under (a) and (b) of this section for the purposes of bringing (1) an untimely or successive application for post-conviction relief under AS 12.72[.]

      . AS 12.72.020(a)(6) provides:
      A claim may not be brought under AS 12.72.010 [post-conviction relief] or the Alaska Rules of Criminal Procedure if a previous application for post-conviction relief has already been filed under this chapter or under the Alaska Rules of Criminal Procedure.

      . - McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).

      . Risher v. State, 523 P.2d 421, 423 (Alaska 1974) (''The assistance must be 'effective' to be of any value.").

      . Johnson v. State, 24 P.3d 1267, 1267 (Alaska App.2001).

      . Grinols v. State, 10 P.3d 600, 619-20 (Alaska App.2000) (quoting Iovieno v. Comm'r of Corrs., 242 Conn. 689, 699 A.2d 1003, 1010 (1997) (alteration in original).

      . - 417 U.S. 600, 94 S.Ct. 2437, 41 LEd.2d 341 (1974).

      . 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987).

      . 501 U.S. 722, 111 S.Ct. 2546, 115 LEd.2d 640 (1991).

      . Because there is no federal right to counsel in post-conviction relief proceedings, Pennsylvania v. Finley, 481 U.S. 551, 555-56, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), there is no federal challenge to the effectiveness of that counsel. Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). But because the federal Constitution does not govern state due process analysis of the right to challenge the effectiveness of counsel appointed by the state in post-conviction relief litigation, it is irrelevant to our resolution of this case on state constitutional grounds.

      . We note that both the state and the Public Defender Agency agree in their briefing to this court that the court of appeals's resolution of this issue was correct.