author: BRYNER, Justice.

text:
    G. Otto HOLTA, and William P. Bredesen, Jr., Trustee, Appellants and Cross-Appellees, v. CERTIFIED FINANCIAL SERVICES, INC., a Washington Corporation, Appellee and Cross-Appellant.
    Nos. S-9074, S-9114.
    Supreme Court of Alaska.
    June 28, 2002.

      David J. Schmid and Eric R. Cossman, Law Offices of David J. Schmid, Anchorage, for Appellants/Cross-Appellees.
    Michael W. Price and Sabrina E.L. Fernandez, Price & Price, Anchorage, for Appel-lee/Cross-Appellant.
    Before: MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

The superior court granted summary judgment to Certified Financial Services, holding that the six-year statute of limitations for contracts barred Otto Holta's 1997 nonjudicial foreclosure action against Certified Financial's property. Holta appeals, contending that his action is not time barred. We reverse, holding that Holta's foreclosure action was not time barred and that his deed of trust had not been extinguished by earlier municipal tax foreclosure proceedings.: Because we reverse, we need not consider Certified Financial's cross-appeal, which seeks an increase in its award of prevailing-party attorney's fees.

II. FACTS AND PROCEEDINGS

The facts are complicated but essentially undisputed. In August 1987 Julia Cooper executed a note promising to pay $560,610 to four beneficiaries: Northern Commercial Company, Aubrey Bennett, Karen Lindeen, and Duplesse & Associates, Inc. The note was secured by a recorded deed of trust against Anchorage property known as the Essex Square Subdivision, which consisted of sixty undeveloped lots. Cooper planned to develop a residential subdivision at Essex Square; the four Cooper Note beneficiaries were subcontractors that Cooper had hired to work on the subdivision or that Cooper owed money for past work on other ventures.

The Cooper Note called for payment by November 15, 1989:

All sums owed by the undersigned must be paid on or before November 15, 1989. If the total sum is not paid by November 15, 1989, the entire principal sum shall at onee become due and payable at the option of the holders of this Note.

The note also provided that Cooper "expressly agree{d] that this Note or any payment thereunder may be extended or renewed from time to time."

In September 1987 Cooper sold twenty-seven of the sixty Essex Square lots to another party. The Cooper Note beneficiaries executed a partial reconveyance to Cooper, which released the twenty-seven newly sold lots, leaving thirty-three lots subject to the August 27 Cooper Deed of Trust.

Cooper later ran into serious financial problems developing the Essex Square Subdivision and eventually filed for bankruptey. While the bankruptey was pending, Cooper's husband, Clevey Cooper, convinced three of the four Cooper Note beneficiaries-all but Duplesse & Associates-to reduce the amount owed on the Cooper Note. In June 1989, approximately five months before the note matured, the three beneficiaries signed an "Amendment to Deed of Trust and Deed of Trust Note," purporting to reduce Cooper's total debt from $560,610 to $806,851. Cooper did not sign or record the amendment.

By the time the Cooper Note reached its original maturity date in November 1989, the property's market value had fallen below the note's $560,610 face value; accordingly, the trustee in the Cooper bankruptey proceeding abandoned the property to the Coopers.

The following year, Cooper sued Duplesse & Associates (the beneficiary that had not signed the Cooper Amendment), seeking to clear the cloud on the property by canceling Duplesse's interest under the deed of trust. The superior court entered judgment for Cooper and canceled Duplesse's interest in December 1990.

At about the same time, the Coopers determined that they could not afford to complete the Essex Square Subdivision. They quitelaimed title to the thirty-three remaining lots to Cooper's nephew, Michael Curry. The deed expressly provided that Curry assumed all obligations under the Cooper Deed of Trust. Curry was aware of the June 1989 note amendment, knew that it extended the original payment deadline, and understood that the reduced amounts reflected in the amended note were the amounts that he had assumed. Curry recorded the quitelaim deed-but not the original or amended notes-on March 27, 1991.

The following year, the Municipality of Anchorage and the Internal Revenue Service initiated foreclosure proceedings against the Essex Square property because Curry had failed to pay taxes. The superior court issued a clerk's deed transferring the property to the municipality on November 17, 1998. The municipality then scheduled a public auetion to sell the land on August 24, 1994. Two days before the municipal auction, the IRS conducted an auction to sell Curry's right to redeem the Essex Square properties from municipal foreclosure. At the IRS auction, Greencrest Investments, Inc., and William Markham (collectively, Greencrest) bought Curry's rights of redemption. The following day Greencrest redeemed the properties by paying Curry's delinquent municipal taxes. The municipality canceled its tax auction and quitelaimed the Essex Square lots to Green-crest on August 24.

Greencrest eventually ran into its own financial problems and failed to meet obligations to Certified Financial that Green-crest had separately secured by a deed of trust against the Essex Square lots. On July 11, 1996, Certified Financial acquired title to Essex Square from Greencrest by statutory deed in lieu of foreclosure.

Meanwhile, Holta had acquired all interest in the original Cooper Note from the Cooper Note beneficiaries. Holta bought Northern Commercial's interest on August 28, 1994 for $2,000. Bennett and Lindeen assigned their interests to Holta on October 11, 1996, for an undisclosed percentage of any money Holta might collect. And as already stated, the superior court had eliminated the interest of the fourth Cooper Note beneficiary, Dup-lesse. These conveyances set the stage for the present litigation.

Holta initiated nonjudicial foreclosure proceedings against the Essex Square property by recording a notice of default and sale in November 1997. Certified Financial responded by filing a superior court action to quiet title and enjoin Holta from foreclosing. In a subsequent motion for summary judgment Certified Financial asserted that the six-year statute of limitations for contracts barred Holta's action. The superior court granted Certified Financial's motion for summary judgment. The court ruled that the six-year statute of limitations for an action to foreclose on the Cooper Deed of Trust started running on November 15, 1989-when the underlying note fell due-and therefore expired on November 15, 1995. The court thus concluded that the statute of limitations barred Holta's November 1997 action. The court entered final judgment against Holta, awarding costs and attorney's fees to Certified Financial.

Holta appeals, challenging the summary judgment order; Certified Financial cross-appeals, contesting the amount of the award of attorney's fees.

III. DISCUSSION

A. Standard of Review

"This court reviews a grant of summary judgment de novo. 4 We "will affirm a grant of summary judgment if the evidence in the record presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law."

B. Analysis

The superior court ruled that a deed of trust is subject to the same statute of limitations as the underlying note and that actions based on both instruments are governed by the six-year statute of limitations for contracts set out in former AS 09.10.050 Holta does not dispute that a six-year limit governs both an action on the note and an action on the deed of trust; but he does dispute the assumption that this six-year limit expires at the same time for each action This argument requires us to consider how the six-year statute of limitations affects the note and the deed of trust.

1. How the six-year statute of limitations applies to the deed

Because the deed of trust failed to specify a maturity date, Holta argues, the court should have applied AS 34.20.150(a) to determine when the six-year statute of limitations began running on the deed of trust. This provision states:

The date of maturity of an instrument creating a lien upon real property is considered to be 10 years from the date of the instrument, unless
(1) the period of the instrument is disclosed by the terms of the instrument; or
(2) another instrument extending the period of the first instrument or a memorandum of payment of the first instrument is recorded.

But Certified Financial argues that the Cooper Deed of Trust incorporated the terms of the Cooper Note, which in turn specified that "[alll sums owed by the undersigned must be paid on or before November 15, 1989." Certified Financial reasons that even though the Cooper Note went unrecorded, because the two documents were contemporaneously executed, the deed should be deemed to satisfy AS 34.20.150(a)'s requirement of disclosing the deed's maturity date-as reflected in the note. To support this argument, Certified Financial emphasizes that when a promissory note and deed are executed simultaneously, they generally must be read together as one document to ascertain the parties' intent.

But we are not concerned here with determining the original contracting parties' intent. Instead, we must determine whether AS 34.20.150(a) allows its ten-year default maturity date to be overridden by a maturity date that can be found only in an unrecorded note that the deed merely incorporates by reference. This determination hinges on AS 34.20.150(a)'s purpose-to provide subsequent purchasers with record knowledge and reasonable certainty regarding the vitality of liens recorded against the property. Alaska Statute 34.20.150(a) attains this purpose by establishing a ten-year default maturity date; the statute allows no exception to the default date unless a different date is expressly stated in either the recorded lien itself or some other recorded document that extends the lien. Given the statute's underlying purpose, we conclude that its ten-year default maturity date cannot be overridden by a deed of trust provision incorporating the terms of a contemporaneously executed note unless the note itself is also recorded.

Here, the Cooper Deed's default maturity date is August 1997-ten years after Cooper recorded the deed. Neither the unrecorded note nor the later unrecorded extension amendment override this date. Under AS 34.20.150(a), then, the six-year statute of limitations to foreclose on the deed began to run on the August 1997 default maturity date and does not expire until August 2008.

2. How the six-year statute of limitations applies to the note

The facts of this case require us to consider an additional wrinkle: in Dworkin v. First National Bank of Fairbanks, we recognized that when the statute of limitations on a deed of trust exceeds the limit for an action on the underlying note, the shorter period that applies to the note also governs the action on the deed; in such a case "the foreclosure action is subject to the same period of limitations as the underlying debt." Here, even though AS 834.20.150(a) applies a default maturity date that extends the six-year statute of limitations for foreclosure until August 2008-sixteen years after the deed's execution-Dworkin makes the statute of limitations on the note controlling if it expires sooner and would preclude Holta from foreclosing on the deed if the six-year limit for an action on the Cooper Note had already expired when he commenced his foreclosure.

As indicated above, the original Cooper Note required payment on or before November 15, 1989. If the six-year statutory limit began running then, the time for filing an action on the original note would expire on November 15, 1995-well before Holta actually brought his foreclosure action in November 1997. But in 1989 an amendment ostensibly extended the note's original due date by nearly three years-until June 20, 1992; this would generate a corresponding extension of the deadline for filing an action on the note and deed until June 20, 1998-after Holta actually began foreclosure. Assuming, then, that the 1989 amendment is valid, Dworkin would permit Holta's action. It thus becomes crucial to determine when the six-year limit expired for an action on the Cooper Note.

On this point Holta argues that the June 1989 amendment extended the statute of limitations. On June 20, 1989, while the Cooper bankruptcy was pending and several months before the Cooper Note fell due, Cooper persuaded three of the four beneficiaries to sign an "Amendment to Deed of Trust and Deed of Trust Note" reducing the amount Cooper owed on the note and extending the date for payment to June 20, 1992. Holta maintains that this amendment delayed the six-year limit for actions on the note from expiring until June 20, 1998-six years after the amended due date.

Certified Financial counters that the 1989 amendment is invalid for several reasons. -It first argues that Cooper never signed the amendment. But the original note authorized its holders to extend the deadline for payment unilaterally; hence, the note did not require Cooper's consent to an extension. And in any event, the record establishes that Cooper agreed to the extension. The extension was negotiated by Cooper's husband, Clevey, who undisputedly had authority to act as her agent. Furthermore, Michael Curry, Cooper's eventual successor-in-interest, acknowledged the amendment and expressly assumed its obligations. Certified Financial's effort to portray the amendment as an inchoate agreement thus fails.

Certified Financial next argues that the June 1989 amendment to the original note was invalid because the automatic stay in the Coopers' bankruptey prevented anyone but the trustee from amending the note. Holta responds that Certified Financial lacks standing to assert a violation of the bank-ruptey stay, that it is estopped from arguing this issue, and that the amendment did not violate the stay in any event.

The bankruptcy code specifies that a bank-ruptey petition "operates as a stay" on "any act to create, perfect, or enforce any lien against the property of the estate." Here, the amendment does not appear to "create, perfect, or enforce" a lien; it simply extends a note secured by an otherwise valid Hen. Moreover, the bankruptey trustee ultimately abandoned Essex Square to the Coopers. Cooper then filed an action against Duplesse & Associates, the only holder of the original note that had not signed the amendment, which established that Duplesse had no further interest in the property. And when Cooper later conveyed her interest in the property to Michael Curry, Curry acknowledged the amendment and expressly assumed its obligations. These post-bankruptcy actions effectively ratified the amendment and cured any potential deficiency arising from its execution during the bankruptcy stay.

We must next consider whether the amendment fails because it was not recorded. Certified Financial identifies statutory provisions requiring extensions to be recorded in two situations: under AS 34.20.140, when payment is made on a contract secured by a real estate lien, the payment will not extend the lien unless a memorandum of payment is recorded; and under AS 34.20.150(2)(@2), when an instrument such as a deed of trust creates a lien without specifying its maturity date, an instrument extending the earlier instrument will operate to extend the statutorily specified default maturity date only if the later instrument is recorded.

Neither provision applies here. The former statute has no bearing because Holta seeks to enforce an extension arising from the original note's amendment, not its payment. And both the former and the latter are irrelevant because the only lien at issue here is the Cooper Deed of Trust; the 1989 amendment extends only the original note, not the deed, and so does not qualify as an instrument extending either "the lien" or "the maturity date of an instrument creating a lien." Because the extension of the Cooper Note did not affect the deed's statutorily specified ten-year date of maturity under AS 34.20.150(a), the amendment's validity did not hinge on its being recorded.

The amendment thus extended the note's due date to June 20, 1992; this in turn extended the expiration of the six-year statute of limitations for any action on the note to June 20, 1998. Because Holta's November 1997 notice of foreclosure preceded this deadline, the statute of limitations did not bar his action.

C. Tax Foreclosure

The superior court's decision to enter summary judgment against Holta for violating the statute of limitations made it unnecessary for the court to consider Certified Financial's alternative summary judgment argument. Because the argument presents a question of law and arises on undisputed facts, we consider it here.

Certified Financial theorizes that the Municipality of Anchorage's 1994 tax foreclosure action against Curry's property extinguished the Cooper Deed of Trust and gave Curry's successor, Greencrest, clear title to the Essex Square property. To support this theory, Certified Financial cites 26 U.S.C. § 6839(c):

(c) Effect of junior encumbrances.-certificate of sale of personal property given or a deed to real property executed pursuant to section 6838 shall discharge such property from all liens, encumbrances, and titles over which the lien of the United States with respect to which the levy was made had priority.

Certified Financial points out that, in keeping with § 6889(c), the IRS issued a notice of sale in 1994 confirming that all liens "over which the lien of the United States with respect to which the levy was made had priority" are discharged when a "deed to real property [is] executed pursuant to [26 U.S.C. § 16338."

But Certified Financial reads too much into the IRS notice. The notice merely disclaims certain encumbrances that are extinguished when an IRS tax sale results in the issuance of a deed under 26 U.S.C. § 6338. Yet here the IRS did not issue a deed to Essex Square under this statute. Instead, it only sold Curry's right to redeem Essex Square from the Municipality of Anchorage; to evidence the sale of this right, Curry gave Greencrest a quitclaim deed. Absent a deed executed by the Secretary of the Treasury under § 6838, then, the IRS sale of Curry's right of redemption did not extinguish the Coopér Deed of Trust lien. Certified Financial does not argue that the levy of the United States had priority over the Cooper Deed of Trust. In fact the levy did not, since the Cooper Deed of Trust was senior to the IRS lien because it was recorded before the IRS lien against Curry, and, most relevantly, before Curry acquired the property. Although the relevant statute, 26 U.S.C. § 6323(a), is somewhat obscure on this point, the case law authoritatively has interpreted this subsection to "subordinate the tax lien to perfected security interests arising before the filing of the tax lien...."

Certified Financial further argues that the municipality obtained title to Essex Square, subject only to the IRS tax lien, because AS 29.45.450(b) provides that when a superior court issues a clerk's deed in a tax foreclosure, as it did here, the "[clonveyance gives the municipality clear title, except for prior recorded tax liens of the United States and the state." But Holta responds that this statute did not apply here because Green-crest acted as Essex Square's previous owner and simply exercised Curry's right of redemption.

Holta's response has merit. In Jefferson v. Metropolitan Mortgage & Securities Co. of Alaska, we acknowledged the general rule that "when a municipality forecloses on property for failure to pay taxes, it receives a new title to the property free from all eneum-brances. A buyer of the property at the subsequent tax sale receives a new, independent title and not that of the former owner." But we described an exception that applies when the record owner buys back the property by paying delinquent taxes:

[Iln Alaska, even after [the] time of redemption has run, the record owner may still purchase the property by paying the delinquent taxes, so long as the property has not yet been sold to a third party at a tax sale. .... It is the general rule that when the owner of record redeems or repurchases his property, his purchase merely operates as a payment of the taxes and he receives the same title he held before the municipality's foreclosure.[]

In the present case, after Greenerest bought Curry's right of redemption from the IRS, the municipality canceled its scheduled tax auction and allowed Greenerest to buy back the property without competition by paying Curry's delinquent taxes. Because Greenerest stood in Curry's shoes and redeemed the property as his assignee, Jefferson instructs us to view the transaction as leaving Greencrest with "the same title [Curry] held before the municipality's foreclosure."

IV. CONCLUSION

Because Holta's right to foreclose the Curry Deed was not barred by the statute of limitations and because the lien created by that deed was not extinguished by the 1994 municipal tax foreclosure, we REVERSE the judgment and REMAND for further proceedings.

      . Davis v. Dykman, 938 P.2d 1002, 1006 (Alaska 1997).

      . Id.

      . Former AS 09.10.050 provided, in relevant part:
      Unless the action is commenced within six years, a person may not bring an action (1) upon a contract or liability, express or implied, excepting those mentioned in AS 09.10.040[.]

      . Holta also contends that the note is a negotiable instrument and as such is subject to the six-year time limit set out in Alaska's Uniform Commercial Code, see AS 45.03.118(a), rather than the six-year limit for contracts set out in AS 09.10.050. He theorizes that a more lenient maturity date applies to the note under the UCC provision. Our conclusion that Holta prevails under the six-year contract limit makes it unnecessary to consider his negotiable instrument theory.

      . See Moening v. Alaska Mut. Bank, 751 P.2d 5, 8-9 (Alaska 1988).

      . See AS 34.20.150(a)(1).

      . See AS 34.20.150(a)(2).

      . 444 P.2d 777, 782 (Alaska 1968).

      . We need not consider whether the statute of frauds applies to the June 1989 note extension. See AS 09.25.010; but see Winters By and Through McMahon v. George Mason Bank, 94 F.3d 130, 135-36 (4th Cir.1996). Because the original note gave its holders unilateral power to extend the date for payment and thus made Cooper's signature unnecessary, the note satisfied the statute's requirements if they applied.

      . 11 U.S.C. § 362(a)(4).

      . See In re Morton, 866 F.2d 561, 564 (2d Cir.1989).

      . AS 34.20.140 provides:
      Where the payment of an existing contract (a bill of exchange, promissory note, bond, or other evidence of indebtedness) is secured by an instrument creating a lien upon real estate, payment on the contract does not extend the lien beyond its original or extended period as against subsequent purchasers, optionees, mortgagees, creditors, or persons acquiring a lien upon the real estate, unless ~
      (1) a memorandum of the payment is recorded in the office of the recording district where the property is located;
      (2) the memorandum is recorded before the end of the statutory time for bringing an action upon the existing contract and extensions as exhibited by the terms of the recorded instrument; and
      (3) the memorandum is signed and acknowledged by the owner or the representative of the owner of the existing contract of indebtedness.

      . AS 34.20.150(a) provides, in relevant part:
      (a) The date of maturity of an instrument creating a lien upon real property is considered to be 10 years from the date of the instrument, unless
      (1) the period of the instrument is disclosed by the terms of the instrument; or
      (2) another instrument extending the period of the first instrument or a memorandum of payment of the first instrument is recorded.
      See Dworkin v. First Nat'l Bank of Fairbanks, 444 P.2d 777, 781 n. 19 (Alaska 1968) (holding that AS 34.20.150's ten-year presumptive date of maturity does not apply when an instrument explicitly sets forth a maturity date).

      . See Grant S. Netson « Dare A. Weirman, Rear Estate Finance Law § 1.1, at 1 (4th ed.2002) (distinguishing between a note and a mortgage). This court has used the terms deed of trust and mortgage interchangeably. See, eg., K & L Distributors, Inc. v. Kelly Elec., Inc., 908 P.2d 429, 432 & n. 5 (Alaska 1995); Brand v. First Fed. Sav. & Loan Ass'n of Fairbanks, 478 P.2d 829, 831-32 (Alaska 1970) (stating that a "deed of trust is 'a mortgage in effect' " and "only creates a lien").

      . See Alaskans for a Common Language, Inc. v. Kritz, 3 P.3d 906, 912 (Alaska 2000) (intervention); Bennett v. Hedglin, 995 P.2d 668, 671 (Alaska 2000) (insurance application).

      . 26 U.S.C. § 6338 provides:
      (a) Certificate of sale.-In the case of property sold as provided in section 6335, the Secretary {of the Treasury] shall give to the purchaser a certificate of sale upon payment in full of the purchase price. In the case of real property, such certificate shall set forth the real property purchased, for whose taxes the same was sold, the name of the purchaser, and the price paid therefor.
      (b) Deed to real property.-In the case of any real property sold as provided in section 6335 and not redeemed in the manner and within the time provided in section 6337, the Secretary shall execute (in accordance with the laws of the State in which such real property is situated pertaining to sales of real property under execution) to the purchaser of such real property at such sale, upon his surrender of the certificate of sale, a deed of the real property so purchased by him, reciting the facts set forth in the certificate.
      (c) Real property purchased by United States.-If real property is declared purchased by the United States at a sale pursuant to section 6335, the Secretary shall at the proper time execute a deed therefor, and without delay cause such deed to be duly recorded in the proper registry of deeds.

      . Slodov v. United States, 436 U.S. 238, 257, 98 S.Ct. 1778, 56 L.Ed.2d 251 (1978).

      . See also AMC 12.15.070(D) ("Properties transferred to the municipality by tax deed will be subject to redemption or repurchase by an owner as provided by AS 29.45.").

      . 503 P.2d 1396, 1399 (Alaska 1972) (footnote omitted).

      . Id.

      . Id.

      . Our decision to reverse the judgment on its merits also requires us to vacate the superior court's award of prevailing-party attorney's fees to Certified Financial. We therefore need not consider Certified Financial's cross-appeal, which challenges the award as insufficient.


source: Caselaw Access Project

license: Public Domain

text:
    Tom LAKOSH, Appellant, v. ALASKA DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Arco Marine, Inc., BP Oil Shipping Company, U.S.A., and Seariver Maritime, Inc., Appellees.
    No. S-9619.
    Supreme Court of Alaska.
    June 28, 2002.

      Tom Lakosh, Anchorage, Appellant, pro se.
    Breck C. Tostevin, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee State of Alaska, Department of Environmental Conservation.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION ON REHEARING

BRYNER, Justice.

I. INTRODUCTION

In 1990, after the Exxon spilled more than 280,000 barrels of crude oil into Prince William Sound, the Alaska legislature strengthened Alaska's oil spill contingency plan statute by adding to the existing provisions, which required the use of "best available technology," a new provision that required all contingency plans to meet a set of specified response planning standards. After the Department of Environmental Conservation (DEC) adopted regulations to implement the new response standards and the best available technology requirement, Tom Lakosh sued DEC, challenging two aspects of its regulation defining best available technology. The superior court granted summary judgment to the state, and Lakosh appealed. Because the challenged regulation conflicts with the authorizing statute, we reverse and remand.

II. FACTS AND PROCEEDINGS

In 1980 the Alaska legislature, finding that "it is a matter of the highest urgency and priority to protect Alaska's coastal and inside water, estuaries, wetlands, beaches, and land from the damage which may be occasioned by the discharge of oil," enacted Alaska's Oil Pollution Control Act. One provision of the Act, AS 46.04.0830, required persons engaged in various oil-related activities to file and obtain DEC's approval of oil spill prevention and contingency plans.

As originally enacted, this statute simply required that oil spill prevention and contin-geney plans "provide for the use of the best available technology by the applicant." But in 1990, the year after the Exxon VaupEz ran aground in Prince William Sound, the legislature strengthened the statute to require that all contingency plans meet legislatively specified response planning standards for containing, controlling, and cleaning up spills. At the same time, the legislature retained a slightly modified version of the best available technology requirement, specifying that contingency plans "must provide for use ... of the best technology that was available at the time the contingency plan was submitted or renewed."

The legislature left the phrase "best available technology" undefined but directed DEC to "establish the procedures and time limits applicable to agency review of contingency plans." To address this directive, DEC formed a working group comprising various stakeholders from the regulated industries, environmental and other public interest groups, local governments, and DEC representatives. The group held public workshops, published notices of proposed regulations in various newspapers, and received comments regarding the regulatory definition of best available technology. Tom Lakosh participated in the workshops and submitted written comments voicing his disapproval of the regulations. But the regulations were ultimately adopted, and their definition of best available technology took effect on April 4, 1997.

Lakosh filed a declaratory judgment action in superior court, challenging the new definition of best available technology as inconsistent with the underlying statutory requirements set out in AS 46.04.080(e). Superior Court Judge John Reese granted summary judgment in favor of DEC, upholding the regulations. Lakosh appeals, challenging two aspects of the regulations' definition of best available technology.

III. DISCUSSION

A. Standard of Review

We review a grant of summary judgment de novo. We exercise our independent judgment to determine whether administrative regulations are valid and to interpret the underlying statutory language. When an agency has adopted regulations under a delegation of authority from the legislature and using the process prescribed by the Administrative Procedure Act, we presume that the regulations are valid and place the burden of proving otherwise on the challenging party. We limit our review to "whether the regulation{s)][are] consistent with and reasonably necessary to carry out the purposes of the statutory provisions .... [and] whether the regulation[s][are] reasonable and not arbitrary."

In making the consistency determination, we use our independent judgment unless the "issue involves agency expertise or the determination of fundamental policy questions on subjects committed to an agency." If the issue involves agency expertise, we review under the reasonable basis standard and defer to the ageney if its interpretation is reasonable. We also employ rational basis review in deciding whether a regulation is necessary to implement the statute and whether a regulation is reasonable and not arbitrary.

B. Statutory and Regulatory Provisions

Alaska Statute 46.04.030(a) provides that "[al person may not cause or permit the operation of an oil terminal facility in the state unless an oil discharge prevention and contingency plan for the facility has been approved by [DEC] and the person is in compliance with the plan." Moreover, subsection .080(k) further requires that contingency plan holders be able to comply with specified standards. The subsection sets specific spill containment and cleanup response planning standards and commands

plan holders to maintain, or have available under contract, "sufficient oil discharge containment, storage, transfer, and cleanup equipment, personnel, and. resources to meet" these standards. DEC has adopted regulations setting analogous performance standards that plan holders must meet with respect to oil spill prevention. And finally, subsection .080(e) requires that oil spill contingency plans also "provide for the use by the applicant of the best technology that was available at the time the contingency plan was submitted or renewed."

It is this latter provision, subsection .080(e)'s best available technology requirement, that is in controversy here. DEC chose to adopt a three-tiered approach for determining whether a contingency plan provides for the use of the best available technology. The first tier of the definition, set out in 18 AAC 75.445(k)(1), covers cleanup and containment technology governed by the oil spill response planning standards mandated by AS 46.04.030(k); cleanup and containment technology included in this tier meets the best available technology requirement if it is capable of complying with the statutory cleanup and containment standards-that is, if the technology "as a whole" is "appropriate and reliable for the intended use as well as the magnitude of the applicable response planning standard." The second tier of the definition, 18 AAC 75.445(k)(2), governs oil spill prevention technology, which is governed by the oil pollution prevention performance standards found in 18 AAC 75.005-080; with limited exceptions not relevant here, the oil spill prevention technology in this tier meets the best available technology requirement if it is capable of meeting the performance standards in the applicable oil spill prevention regulations. The third tier of the definition, set out in 18 AAC 75.445(k)(8), covers remaining technology not subject to either the response planning standards or the prevention performance standards; in this tier, DEC determines whether the best available technology requirement has been met by undertaking a case-by-case evaluation based on specified criteria.

Thus, the challenged regulation uses individualized analysis to determine compliance with the best available technology requirement only for those residual classes of technology included in the third tier of the definition. For technologies covered in the first two tiers-those involved in almost all oil spill prevention, containment, and cleanup activities-compliance with the applicable standards essentially serves as a proxy for the best available technology determination.

C. The Parties' Arguments

Lakosh takes issue with the first two tiers of DEC's three-tiered method for determining whether technology is the best available, contending that they are inconsistent with AS 46.04.030(c) He argues that the legislature intended to require a " 'state of the art' quality of response equipment" that "necessarily requires a comparative analysis of available technologies"-an individualized analysis like one prescribed for third-tier technology in 18 AAC 75.445(k)(8). In La-kosh's view, a definition that categorically approves any technology capable of achieving the applicable response planning or prevention performance standards-in other words, any technology "appropriate and reliable" to meet the standards-conflicts with the statutory intent to require that only the best available technology be used. Lakosh thus protests that the tier one and two standards set out in 18 AAC 75.445(k)(1) and (2) are "static" and contain no provisions for requiring plan holders to employ state-of-the-art technologies.

But DEC responds that the best available technology statute " 'leaves it to the DEC to define what is best available technology" " In DEC's view, requiring that a technology be "appropriate and reliable" to meet the "magnitude of the applicable response planning standard" suffices to define best available technology because the standards themselves are "the most demanding . standards in the world." Indeed, DEC argues, the standards actually encourage innovation by allowing a plan holder to use "a new, different and more efficient technology to meet the [applicable] standard rather than simply imposing a 'one-size-fits-all' technological fix" Hence DEC urges us to recognize that, given the discretion delegated to it by the legislature, either a standards-based test like those specified in the first two tiers of the challenged regulation or an individualized analysis like the one set out in the third tier can be used to determine what is best available technology.

D. The First Two Tiers of the Definition, Set Out in 18 AAC 75.445(Kk)(1) and (2), Are Inconsistent with the Statutory Best Available Technology Requirement.

In addressing the parties' arguments we must first consider whether to give deference to DEC's interpretation of the best available technology statute. DEC contends that we should give deference to its judgment because "oil spill contingency planning and the application of a best technology requirement to oil spill response technologies . and oil spill prevention technologies ... implicate DEC's specialized technical expertise and experience." This argument has considerable merit, but only to the extent that the legislature actually granted DEC authority to define best available technology. DEC's selection of a specific definition from among the many potentially encompassed within the general directive requiring "best available technology" certainly involved the kind of technical expertise and experience that courts are ill-equipped to second guess. To the extent that DEC's definition of best available technology lies within the broad contours contemplated by the legislature, then, the agency's judgment deserves considerable deference.

But whether DEC's definition lies within the limits of authority delegated by the legislature raises a threshold question of legislative intent. The Alaska legislature specifically required that a "contingency plan must provide for the use by the applicant of the best technology that was available at the time the contingency plan was submitted or renewed." The question whether DEC properly interpreted the legislature's mandate in promulgating 18 AAC 75.445(k)(1) and (2) is answerable through "statutory interpretation or other analysis of legal relationships about which courts have specialized knowledge and experience." Because this preliminary legal question resides within the traditional province of judicial review and involves no technical expertise, we decide it using our independent judgment.

In contending that a basic conflict exists between the statutory best-available-technology mandate and DEC's regulation implementing that mandate, Lakosh emphasizes the statute's use of the word "best ." As commonly defined, the superlative "best" posits a universe of suitable or satisfactory candidates and denotes selection of a smaller group of those most desirable within that universe. Here, Lakosh argues, DEC effectively ignored the legislature's mandate to select the most desirable technologies from among the larger universe of satisfactory technologies by defining the first two tiers of "best available technology" to include essentially all suitable and satisfactory oil spill prevention and cleanup technologies.

Under 18 AAC 75445(k)(1), all oil spill containment and cleanup technologies that can satisfy the containment and cleanup response planning standards set out in AS 46.04.030(k)-that is, all that are "appropriate and reliable" to meet those standards-are automatically deemed "best." Correspondingly, under 18 AAC 75.445(k)(2), all oil pollution prevention technology that is not expressly made subject to individualized best available technology review is automatically deemed "best" as long as it can satisfy-that is, "comply with"-the oil pollution prevention performance standards specified in 18 AAC 75.005-.080. Both the first and second tiers of the regulation, then, seemingly defy the legislative intent implicit in the usual meaning of "best": the intent to require a selection of the most desirable technologies from among a broader universe of technologies that would be suitable and satisfactory to comply with the requirements of a contin-geney plan-which include a demonstrated ability to meet applicable standards. .

Of course the plain meaning of "best" is not the end of the story. In construing statutory language, "we have rejected the mechanical application of the 'plain meaning' rule in favor of a sliding seale approach under which [tlhe plainer the statutory language is, the more convincing the evidence of contrary legislative purpose or intent must be." But here, both the legislative history and context of the best available technology statute support its plain meaning.

In revising the original oil spill prevention and contingency plan statute, the legislature adopted detailed response planning standards governing spill containment and cleanup that contingency plans must address when submitted for approval. DEC has subsequently adopted detailed oil pollution prevention performance standards that must be addressed in contingency plans. The legislature also specified that, before DEC may approve a contingency plan, the agency must "ensure that the applicant for a contin-geney plan has access to sufficient resources to protect environmentally sensitive areas and to contain, clean up, and mitigate potential oil discharges from the facility or vessel as provided [by the response planning standards] and to ensure that the applicant complies with the contingency plan. DEC has likewise provided that contingency plan applicants and holders are "responsible for meeting the applicable requirements" of the performance standards set out in its oil pollution prevention regulations. And the legislature has given DEC broad authority to require plan applicants or holders to demonstrate their ability to carry out their contin-geney plans.

These mandatory standards are thus baseline requirements that all plan holders must be prepared to meet. And because the legislature adopted mandatory cleanup and containment response planning standards at the same time that it required the use of best available technology to carry out those standards, it obviously did not intend to equate best available technology with the ability to meet response planning standards; rather, it intended best available technology to be an additional requirement.

Because they stand as separate subsections in the same statute, then, AS 46.04.030(k)'s mandatory response planning standards and AS 46.04.080(e)'s best available technology requirement evince an intent to impose two separate requirements: under subsection .080(k), all contingency plan holders must demonstrate their ability to comply with applicable standards; and under subsection .080(e), all applicants must also provide that they will achieve this compliance-which is required as part of their plans-by using "the best technology that was available at the time the contingency plan was submitted or renewed."

The first two tiers of DEC's best available technology regulation conflate these separate requirements by collapsing best available technology into compliance with requisite standards. Yet this interpretation effectively renders AS 46.04.030(e)'s best available technology requirement superfluous, for if the legislature had wanted nothing more than to require technology to provide an "appropriate and reliable" way of complying with applicable standards, it could as easily have omitted subsection .080(e)'s best available technology language entirely and let the balance of section .080 stand on its own.

We decline to read the best available technology provision in this way. It is a well-recognized rule of statutory construction that " 'the legislature intended every word, sentence, or provision of a statute to have some purpose, force, and effect, and that no words or provisions are superfluous.! " Defining best available technology in terms of statutory minimums, then, cannot be consistent with the legislative intent of requiring that plan holders provide for the use of best available technology. And DEC points to no legislative history supporting a contrary interpretation.

The legislature plainly required that plan holders meet response planking standards and provide for the use of the best available technology in contingency plans. Because agencies are "not free to disregard any of the standards the legislature has articulated," DEC's regulations must reflect both statutory requirements. Paragraphs (k)(1) and (K)(2) of 18 AAC 75.445 fail to reflect both requirements and are therefore deficient.

Paragraph (k)(1) allows plan holders to meet the best available technology requirement for oil spill cleanup and containment by planning to use any reasonably satisfactory technology-that is, any technology that would be "appropriate and reliable" to meet the cleanup .and containment response planning standards mandated by the response planning statute, AS 46.04.030(k). But as already indicated, AS 46.04.080(e) requires an additional step: a selection of the best technology from among all that is reasonably capable of meeting the response planning standards. Hence, by equating best available technology to "appropriate and reliable" compliance with response planning standards, the definition in paragraph (k)(1) of the regulation violates AS 46.04.030(e)'s command to select the best of all available technology that is capable of complying with these standards. ' ,

The same conclusion holds true for the definition of best available technology set out in paragraph (k)(2) of the regulation, which effectively equates best available oil pollution prevention technology to technology that is reasonably capable of meeting specified oil pollution prevention performance standards.

In defense of its regulation, DEC essentially argues that the applicable standards are a legitimate proxy for best available technology-that good technology is bound to follow if standards are set sufficiently high. The challenged regulation reflects this approach. But while we assume that DEC's approach may have considerable theoretical merit, it is legally incompatible with the approach that the Alaska legislature adopted in AS 46.04.030(e) and (k), for the statute requires DEC to insist on the use of best available technology in addition to demanding compliance with applicable standards. As DEC correctly notes, "(tlhe Megislature did not choose between approaches." Yet DEC fails to recognize that the legislature chose both approaches and that this decision precludes DEC from then choosing one approach and ignoring the other.

Though we declare the challenged regulations invalid, we emphasize the limited scope of our ruling. We recognize of course that the task of defining best available technology is well outside the seope of the judiciary's responsibility and falls squarely within DEC's area of authority and expertise. We readily acknowledge that the legislature has vested DEC with broad discretion to decide how "best available technology" should be defined; and we believe that the agency is free to exercise this discretion not only in prescribing the methods for selecting the best from among all available technologies that are satisfactory, but also in deciding how broadly the class of best technologies should be drawn-that is, how many of all available satisfactory technologies should be accepted as "best." But as a matter of statutory interpretation we are nevertheless constrained to hold that DEC's definition must at least include some winnowing process-that AS 46.04.080(e) requires something more than accepting all available technology that can "appropriately and reliably" comply with oil spill prevention and cleanup standards. We agree with Lakosh that DEC's current definitions fail this threshold requirement.

IV. CONCLUSION

Because the definition of best available technology in 18 AAC 75.445(k)(1) and (2) is contrary to AS. 46.04.080(e), we REVERSE the superior court's summary judgment order and REMAND for entry of judgment declaring the regulation invalid.

      . Ch. 116, § 1(a)(1), SLA 1980.

      . See former AS 46.04.030. Under AS 46.04.030(a) & (k), "oil discharge prevention and contingency plan{s]" are plans to prevent, contain, and clean up oil spills from oil tank vessels, offshore oil exploration or production facilities, and large oil terminal facilities.

      . Former AS 46.04.030(e).

      . AS see also ch. 191, §§ 9, 10, SLA 1990.

      . AS 46.04.030(e).

      . AS 46.04.030(); see also AS 46.04.070 ("[DEC] shall adopt regulations that are necessary to carry out the purposes of this chapter and that do not conflict with and are not preempted by federal law or regulations."); ch. 191, § 10, SLA 1990.

      . O'Callaghan v. Rue, 996 P.2d 88, 94 (Alaska 2000); Bd. of Trade, Inc. v. State, Dep't of Labor, Wage & Hour Admin., 968 P.2d 86, 89 (Alaska 1998).

      . Lauth v. State, Dep't of Health & Soc. Servs., 12 P.3d 181, 184 (Alaska 2000); Bd. of Trade, 968 P.2d at 89.

      . See AS 44.62. Because Lakosh does not argue that DEC violated the Administrative Procedure Act in promulgating the regulations, we need not analyze whether DEC complied with the Act's provisions.

      . O'Callaghan, 996 P.2d at 95; Bd. of Trade, 968 P.2d at 89; State, Dep't of Revenue, Permanent Fund Dividend Div. v. Costo, 858 P.2d 621, 624 (Alaska 1993); State v. Anderson, 749 P.2d 1342, 1344 (Alaska 1988); State v. Alyeska Pipe line Serv. Co., 723 P.2d 76, 78 (Alaska 1986).

      . Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971); accord Lauth, 12 P.3d at 184; O'Callaghan, 996 P.2d at 94-95; Anderson, 749 P.2d at 1343-44; Chevron U.S.A. Inc. v. LeResche, 663 P.2d 923, 926-27, 930 n. 15 (Alaska 1983).

      . O'Callaghan, 996 P.2d at 94.

      . Id.

      . Id. at 94-95. However, "reasonable necessity is not a requirement separate from consistency. If it were, courts would be required to judge whether a particular administrative regulation is desirable as a matter of policy"; this is a function of the agency. State, Bd. of Marine Pilots v. Renwick, 936 P.2d 526, 531 (Alaska 1997) (citing Costo, 858 P.2d at 624).

      . O'Callaghan, 996 P.2d at 95.

      . Subsections .030(b) and (c) extend this requirement to persons operating pipelines, exploration or production facilities, tank vessels, and barges.

      . See AS 46.04.030(k)(1)-(5). For example, a plan holder must be able to "contain or control, and clean up a discharge equal to the capacity of the largest oil storage tank at the [oil terminal] facility within 72 hours." AS 46.04.030(k)(1).

      . AS 46.04.030(k)(1)-(5).

      . See 18 Alaska Administrative Code (AAC) 75.005-.080 (2001) (setting forth requirements for personnel training, security measures, record-keeping, oil transfers, leak detection, monitoring, operations, storage tanks, secondary containment, and facility piping).

      . DEC generally defined "best available technology" to mean "the best proven technology that satisfies the provisions of 18 AAC 75.425(e)(4) and 18 AAC 75.445(k)." 18 AAC 75.990(9). DEC defined "technology'" to mean "equipment, supplies, other resources, and related practices." 18 AAC 75.990(130).

      . 18 AAC 75.445(k)(1); see also 18 AAC 75.430-442 (establishing the standards and factors).

      . See 18 AAC 75.445(k)(2).

      . For technology included in the third tier, 18 AAC 75.445(k)(3) requires DEC to determine compliance with the best available technology requirement by considering
      (A) whether each technology is the best in use in other similar situations and is available for use by the applicant;
      (B) whether each technology is transferable to the applicant's operations;
      (C) whether there is a reasonable expectation each technology will provide increased spill prevention or other environmental benefits;
      (D) the cost to the applicant of achieving best available technology, including consideration of that cost relative to the remaining years of service of the technology in use by the applicant;
      (E) the age and condition of the technology in use by the applicant;
      (F) whether each technology is compatible with existing operations and technologies in use by the applicant;
      (G) the practical feasibility of each technology in terms of engineering and other operational aspects; and
      (H) whether other environmental impacts of each technology, such as air, land, water pollution, and energy requirements, offset any anticipated environmental benefits.

      . See 18 AAC 75.425(e)(4) (listing the residual classes).

      . Lakosh does not dispute the criteria for evaluating third-tier technology under 18 AAC ©75.445(k)(3).

      . DEC further points to 18 AAC 75.447, which requires DEC to identify and evaluate "breakthrough" technologies by sponsoring a technology conference at least once every five years and to "engagle) in studies, inquiries, surveys, or analyses [that DEC] believes appropriate to the consideration of new technologies." DEC argues that its reliance on a technology's appropriateness and reliability to comply with performance standards will be rendered more meaningful as a test of best available technology because DEC will have this "breakthrough technology" information at hand when evaluating whether prevention and contingency plans use best available technology.

      . See State, Bd. of Marine Pilots v. Renwick, 936 P.2d 526, 531 (Alaska 1997) (quoting Whaley v. State, 438 P.2d 718, 722 (Alaska 1968)) ("[The well settled rule [ ] requires courts to give consideration and respect to the contemporaneous construction of a statute by those charged with its administration, and not to overrule such construction except for weighty reasous.") (alterations in original).

      . AS 46.04.030(e).

      . Kelly v. Zamarello, 486 P.2d 906, 916 (Alaska 1971); see also Lauth v. State, Dep't of Health & Soc. Servs., 12 P.3d 181, 184 (Alaska 2000); Bd. of Trade, Inc. v. State, Dep't of Labor, Wage & Hour Admin., 968 P.2d 86, 89 (Alaska 1998) (stating that the court will not replace the agency's judgment with its judgment, but will review for reasonableness, arbitrariness, and consistency); State, Commercial Fisheries Entry Comm'n v. Templeton, 598 P.2d 77, 80-81 (Alaska 1979).

      . See sources cited supra note 29.

      . According to Webster's, for example, "best" means "1. Exceeding all others in excellence, achievement, or quality: most excellent ... 2. Most satisfactory, suitable, or useful: most desirable...." Wesster's II New Corre: Dictionary 105 (1999).

      . Bd. of Trade, 968 P.2d at 91 (quoting Muller v. BP Exploration (Alaska), Inc., 923 P.2d 783, 787-88 (Alaska 1996)).

      . AS 46.04.030(k) provides:
      Except as provided in (m) and (0) of this section, the holder of an approved contingency plan required under this section shall maintain, or have available under contract, in its region of operation or in another region of operation approved by [DEC], singly or in conjunction with other operators, sufficient oil discharge containment, storage, transfer, and cleanup equipment, personnel, and resources to meet the following response planning standards:
      (1) for a discharge from an oil terminal facility, the plan holder shall plan to be able to contain or control, and clean up a discharge equal to the capacity of the largest oil storage tank at the facility within 72 hours, except that if [DEC] determines that the facility is located in an area of high risk because of natural or man-made conditions outside of the facility, it may increase the volume requirement under this paragraph so that the contingency plan must be designed for a response that is greater in amount than the capacity of the largest oil storage tank at the facility;
      (2) for a discharge from an exploration or production facility or a pipeline, the plan holder shall plan to be able to contain or control, and clean up the realistic maximum oil discharge within 72 hours;
      (3) for a discharge of crude oil from a tank vessel or oil barge, the plan holder shall plan to be able to contain or control, and clean up a realistic maximum oil discharge as provided in (A), (B), and (C) of this paragraph:
      (A) for tank vessels and oil barges having a cargo volume of less than 500,000 barrels, the plan holder shall maintain at a minimum in the region of operation, equipment, personnel, and other resources sufficient to contain or control, and clean up a 50,000 barrel discharge within 72 hours;
      (B) for tank vessels and oil barges having a cargo volume of 500,000 barrels or more, the plan holder shall maintain at a minimum in its region of operation, equipment, personnel, and other resources sufficient to contain or control, and clean up a 300,000 barrel discharge within 72 hours;
      (C) in addition to the minimum equipment, personnel, and other resources required to be maintained within the region of operation by (A) or (B) of this paragraph, a plan holder shall maintain, either within or outside of the plan holder's region of operation, additional equipment, personnel, and other resources sufficient to contain or control, and clean up a realistic maximum discharge within the shortest possible time; the plan holder must demonstrate that the equipment, personnel, and other resources maintained outside the plan holder's region of operation are accessible to the plan holder and will be deployed and operating at the discharge site within 72 hours;
      (4) for a discharge from a tank vessel or oil barge carrying noncrude oil in bulk as cargo, the plan holder shall plan to be able to contain or control 15 percent of the maximum capacity of the vessel or barge or the realistic maximum oil discharge, whichever is greater, within 48 hours and clean up the discharge within the shortest possible time consistent with minimizing damage to the environment;
      (5) for a discharge subject to the provisions of (1)-(3) of this subsection that enters a receiving environment other than open water, the time requirement for clean up of the portion of the discharge that enters the receiving environment may, in [DEC's] discretion, be within the shortest possible time consistent with minimizing damage to the environment.
      DEC has retained and elaborated these standards in 18 AAC 75.430-.442.

      . See 18 AAC 75.005-.080.

      . AS 46.04.030(e).

      . 18 AAC 75.005.

      . See AS 46.04.030(e)(1)-(3).

      . Kodiak Island Borough v. Exxon Corp., 991 P.2d 757, 761 (Alaska 1999) (quoting Rydwell v. Anchorage Sch. Dist., 864 P.2d 526, 530-31 (Alaska 1993)).

      . Kalmakoff v. State, Commercial Fisheries Entry Comm'n, 693 P.2d 844, 853 (Alaska 1985).

      . For commentary discussing whether standards like those established in paragraphs (k)(1) 'and (k)(2) of 18 AAC 75.445 are superior to traditional best available technology standards, compare Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law, 37 Stan L.Rev. 1333, 1354 (1985) (arguing for a change from technology-based standards to pollution-based performance standards) with Howard Latin, Ideal Versus Real Regulatory Efficiency: Implementation of Uniform Standards and Fine Tuning Regulatory Reforms, 37 Stam. L.Rev. 1267, 1267, 1273 (1985) (arguing that fine-tuning approaches like performance and response planning standards have not been proven effective).


author: STEWART, Judge. MANNHEIMER, Judge,

text:
    Daryle D. JAMES, Appellant, v. STATE of Alaska, Appellee.
    No. A-7690.
    Court of Appeals of Alaska.
    June 28, 2002.

      Dan S. Bair, Anchorage, for Appellant.
    Naney R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and ' MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

A jury convicted Daryle D. James of see-ond-degree sexual abuse of a minor and second-degree sexual assault. On direct appeal, we affirmed James's convictions and sentence. James filed an application for post-conviction relief, and James now appeals the superior court's dismissal of his application.

James argues that the superior court erred when it dismissed his claim that he was entitled to a new trial because the only eyewitness to his sexual misconduct recanted. But the superior court held a hearing on this claim at which the recanting witness testified. The court made findings on the testimony presented and denied James's claim. We affirm the superior court because its findings rejecting this claim are not clearly erroneous.

James also argues that the superior court erred when it dismissed his remaining claims before his attorney gave a detailed explanation of why those claims lacked merit. Because of the unusual factual cireumstances in James's case, we agree with James for the reasons stated below. Accordingly, we vacate the dismissal of those remaining claims and remand for further proceedings.

Discussion

The recanting witness claim

The underlying criminal case arose on June 12, 1994. Following a dance in Ketchi-kan, a group of teenagers gathered in a Saxman home for a late night party. Several adults were also drinking at the house. While at the party, thirteen-year-old E.F. became intoxicated, eventually passed out, and has no recollection of the early morning hours of June 12. ' ~

At some point in the night, E.F. had sex with M.C. D.M., a fourteen-year-old girl at the party, testified that 'after M.C. and E.F. had sex, she dressed E.E. and covered her up with a sleeping bag. Later, D.M. checked on E.F. and again found her naked. James came into the room while D.M. was there and commented on E.F.'s vaginal area. D.M. dressed E.F. and left When D.M. checked on E.F. again, another man was having sex with EF.

Later that morning, James complained because E.F. was in his room, and she was dragged to another bedroom. D.M. opened the door to this room and observed James engaged in sexual intercourse with E.F., who was unconscious. After she saw him having sex with E.F., D.M. started to yell at James. DM. was the only eyewitness to James's sexual assault of E.F. James is D.M.'s great uncle. '

Bert Colegrove, one of the adults at the house, told police shortly after the incident that he saw James dragging an unconscious naked teenage girl from one room to another. Colegrove said that he told James not to do that, and James told him to mind 'his own business. Colegrove recanted at the grand jury and testified that he thought James was just trying to get E.F. to a "safe place."

Colegrove's son also saw James and M.C. drag E.F. to a room and shut the door. When Colegrove's son returned to the room, he saw fresh semen on the mattress.

A number of individuals who claimed to have been at the party testified in support of James at his trial. According to these witnesses, James asked some of the teenage boys who were upstairs to "get this fucking bitch" out of his room because he wanted to go to sleep and E.F. had gotten sick in his bedroom. Most of the defense witnesses testified that three boys dragged E.F. from James's bedroom to another bedroom and that E.F. was clothed. None of the witnesses corroborated D.M.'s testimony that she began yelling. at James when she saw James having sex with E.F.

At approximately 5:00 a.m., Burt Cole-grove and his family left the house and took a cab to downtown Ketchikan. Colegrove called the troopers because he was concerned about E.F. and because he had seen teenagers drinking at the party.

Alaska State Trooper Sergeant Robert Stevenson responded to the party and spoke to D.M. and E.F. That afternoon, E.F. went to Ketchikan General Hospital for a sexual assault exam. The troopers performed DNA tests on evidence collected during the examination and on blood samples from James. The DNA testing showed that James's DQ-alpha genotype did not exclude him as the source of the semen and that approximately 58% of the Tlingit population have this DQ-alpha genotype (James is Tlingit).

Sergeant Jeffrey Hall contacted D.M. on June 16, 1994, four days after the incident. D.M. was reluctant to talk to Sergeant Hall, but Hall did not remember pressuring or threatening her to get her to talk. During this initial interview, D.M. cried and said it was difficult for her to talk about the incident because James was family. She said that she saw James having sex with E.F. and that E.F. was passed out.

On June 28, 1994, Sergeant Hall arrested James and charged him with first-degree sexual abuse of a minor and second-degree sexual assault. On July 1, 1994, a grand jury indicted James on charges of second-degree sexual abuse of a minor and second-degree sexual assault. The troopers were unable to find D.M. to serve her with a subpoena to appear at the grand jury proceedings. D.M. and her mother moved to Anchorage in July 1994. On June 6, 1994, before the assault, D.M. had been adjudicated a delinquent based on two counts of fourth-degree assault. She was a runaway probationer because she left Saxman without notice.

James's trial was scheduled for October 11, 1994. The State requested several continuances because the State was unable to locate D.M. On December 20, 1994, the court granted the State's request to issue a material witness warrant for D.M.

On December 29, 1994, authorities arrested D.M. on the material witness warrant. She was held at McLaughlin Youth Center and at Johnson Youth Center for several weeks while awaiting trial. James went to trial on February 21, 1995. At trial, D.M. testified that there was no doubt in her mind that she saw James having sex with EF.

In her affidavit recanting her trial testimony, D.M. stated: "I am making these statements because I want to tell the truth, and I want the people who hurt and abused me to answer for what they did." D.M. claimed in her affidavit:

I remember when they started questioning me. They did it on the phone. At first I told them "I can't tell you nothin' because I can't remember." I had been drinking. I didn't say that because I didn't want to get in trouble. They kept asking me about [James]. By they I mean the D.A. and the troopers.

She alleged that at Johnson Youth Center in Juneau the district attorney and the troopers told her that she would not get out of jail until she was twenty-one if she did not testify. She also stated: '

I told my attorney that I did see stuff at the party, because I knew I needed to do it to get out of J.Y.C. When I knew what they wanted me to say, and I said those things they wanted to hear and my attorney was real concerned about people trying to get me to say things. I didn't even think about my uncle doing time. I was just thinking about me and how I hated it where I was. I was abused physically and emotionally. My sister needed me and I wanted out of JYC really bad. I didn't think about my uncle, that's why I cried on the witness stand.... I practiced my testimony in my cell.

D.M. also claims she was mistreated by the guards and that they misunderstood her case, but she does not explain if the mistreatment was related to them trying to get her to testify against James.

Before testifying at trial, D.M. met with Janice Hill, a paralegal from the District Attorney's office; Ben Herren, the Assistant District Attorney prosecuting the case; Debbie Muir, the trooper who transported D.M. from Juneau to Ketchikan; and Sergeant Hall. At the evidentiary hearing, Hall, Her-ren, and Muir testified that no one pressured or threatened D.M. to testify consistent with what she had told Sergeant Hall initially.

Sergeant Hall also testified that he did not contact D.M. while she was at McLaughlin or the Johnson Youth Center. He testified that the State did not bribe D.M. During the meeting before D.M. testified at trial, Sergeant Hall reviewed his prior interview with her, and she told him her testimony would be consistent with the prior interview.

Assistant District Attorney Herren testified that he did not discuss perjury with D.M. and that he did not remember calling D.M. while she was at the youth centers or instructing anyone in his office to contact her. He testified that he was surprised that her trial testimony did not waver because of the difficulty securing her attendance at trial.

Superior Court Judge Michael A. Thompson concluded that the determining factor in the case was that no one was pressuring D.M. when she talked to Sergeant Hall initially about seeing James having sexual intercourse with E.F. He found that after D.M. became the State's "star witness" there was pressure on her not to change her story. Judge Thompson believed that guards and other inmates at McLaughlin put "considerable pressure" on D.M. by telling her that if she changed her story, that it would be perjury, and that is a crime for which she could be committed. But he also found that D.M.'s family pressured her to recant. And the judge recognized that at the time of trial, D.M. had "possibilities of manipulating her position into positives for her" but when she recanted, she had nothing to gain from the State.

Judge Thompson recognized that James had the burden of proving by clear and convincing evidence that D.M. lied at the trial and was telling the truth when she testified at the evidentiary hearing. The judge examined D.M.'s motives at the time she gave her initial statement to the troopers, her motives at the time of trial, and her motives when she recanted. Judge Thompson found that D.M.'s recantation testimony was not eredi-ble.

_ A review of the record on this issue establishes that Judge Thompson's findings are not clearly erroneous. Accordingly, Judge Thompson did not abuse his discretion when he found that D.M.'s recantation was insufficient to hold a new trial.s

James's remaining claims

On September 26, 1997, James filed a pro se application for post-conviction relief. James claimed that (1) he was denied a grand jury of his peers; (2) he was denied a jury of his peers; (8) the jury composition was illegal because more than one-half of the judicial district was excluded as potential jurors; (4) his right to a fair trial was violated under article one, sections seven, eight, and nine of the Alaska Constitution; (5) he suffered ineffective assistance of trial counsel; (6) he suffered ineffective assistance of sentencing counsel; and (7) he suffered ineffective assistance of appellate counsel. James filed a pro se Memorandum of Facts and Authorities that addressed only his claims regarding the selection and composition of the jury.

In January 1998, the court appointed the Public Defender Agency to represent James, but the court allowed the ageney to withdraw because it represented D.M., the recanting witness in James's case. The State filed a Motion to Dismiss James's application on January 28, 1998. The court appointed the Office of Public Advocacy as counsel for James, and on February 10, 1998, Ronald Hemby entered an appearance on James's behalf. Thereafter, on March 16, 1998, Judge Thompson dismissed James's application.

On behalf of James, Hemby moved for reconsideration of the dismissal and asked to supplement James's post-conviction relief application, because the pro se application "omitted issues that should be considered" and because of newly discovered evidence "in the form of recantation of testimony by the only alleged eyewitness to the offense[.]" Hemby sought additional time to review the case and explore the claims regarding the grand jury procedure and ineffective assistance of counsel. Judge Thompson granted James's motion. Later, Hemby filed a "Memorandum in Supplement of Petition for Post Conviction Relief." Although the memorandum stated it incorporated James's pro se application, it discussed only the recantation claim and requested an evidentiary hearing to resolve the claim. The State opposed the recantation claim and requested an evi-dentiary hearing to resolve the recanting witness claim.

On June 16 and 19, 1998, Judge Thompson held an evidentiary hearing. At the conclusion of the hearing, the State brought up the other issues contained in James's post-conviction relief application:

Finally, there were two other issues that were raised in Mr. James's application for post-conviction relief dealing with jury selection, and the other one ineffective assistance of counsel. And I filed a motion for summary adjudication, which the court granted, and ... the defense asked to reconsider it. And the court granted him some time to do so. And when they filed their motion, all they raised was the issue of recantation. They didn't raise any other issue. And so the state feels the court should grant summary adjudication on those other two issues as well.

James's counsel did not respond to this argument. Judge Thompson stated:

The only reason I granted reconsideration, Mr. Hemby, on those was there was a change of counsel. I wanted new counsel to take a new look. You know, and maybe you'd come up with a case or some principle or argument that hadn't been made before. I see you didn't. I wasn't surprised you didn't. I think the arguments were well stated beforehand. They were brought as forcefully as they could be brought, and they simply weren't persuasive. Once again, I was here at the trial and I thought the jury selection was fair.

Even though the court did not explicitly dismiss James's remaining claims, on July 18, 1998, James moved (through Hemby's partner, Vernon Keller) to supplement his post-conviction relief application. -In the affidavit supporting the motion, James's attorney stated that the firm's efforts had focused on the recantation issue:

The Memorandum in Supplement of Petition for Post-Convietion Relief did not supplement any of the issues previously raised by Mr. James in his original Application.... Mr. James has claimed that he was provided ineffective assistance of counsel by his trial attorney ... and his sentencing and appellate attorney.... Mr. James needs additional time to get affidavits from these attorneys so that his allegations of ineffective assistance of counsel can be meaningfully evaluated by his current counsel and addressed by this court.

The State did not oppose the request, and on August 11, 1998, the court granted James's motion to supplement his petition. However, less than a week later, another attorney, Brian Schulz, substituted for Hem-by's firm. The notice of substitution claimed that Hemby had a conflict of interest, but the court never ruled on this issue.

On December 22, 1999, Schultz filed a Certificate of No Merit under Criminal Rule 35.1(e)(2)(B). The court issued a "Proposed Withdrawal and Dismissal" on February 9, 2000. Judge Thompson granted James additional time to respond to the proposed order, but dismissed James's application on May 2, 2000.

The State argues that Schulg's Rule 35.1(e)(2)(B) no-merit certificate has no legal significance. The State contends that since James's imitial attorney did not select the option of filing a no-merit certificate, and instead, pursued the recantation claim to a hearing, the Griffin requirement need not be met for the remaining claims."

Normally, a competent attorney can analyze the potential claims raised in an application for post-conviction relief and, as a matter of sound tactical consideration, decide which claims to pursue. But the record in this case does not show this is what occurred. Hemby elected to present the recantation claim to the court, but shortly after the court rejected that claim at the hearing, his firm asked for more time to meaningfully evaluate the claims James raised pro se. Thus, one lawyer or firm did not evaluate all the potential claims and conclude that only the recantation claim had merit.

As we pointed out in Griffin:

[Aln indigent petitioner for post-conviction relief has a right to the effective assistance of counsel, and thus the court has a duty to independently assess the potential merits of the petitioner's case whenever the petitioner's court-appointed attorney declares that the litigation is frivolous and asks ' permission to withdraw. Rule 35.1()(2) in fact requires the trial court to perform this independent assessment. But if the attorney is permitted to file a certificate containing only the four bare assertions listed in Rule 385.1l(c)@)(B)M)-Giv) ..., it will be impossible for the trial court to perform the independent assessment required by Rul[]

Although Hemby focused on the recantation claim that led to the evidentiary hearing, after the court rejected that claim, Hemby's firm requested additional time to evaluate the other claims in the application and "to get affidavits from [the trial] attorneys so that. his allegations of ineffective assistance of counsel can be meaningfully evaluated by his current counsel and addressed by this court." The State did not oppose the request for more time and the superior court found good cause to grant James's attorney additional time to evaluate those remaining claims by obtaining affidavits from James's trial attorneys. (An affidavit from the trial attorney is a necessary component of a prima facie case of ineffective assistance of counsel. ) Although Bryan Schultz substituted for Hemby's firm and filed a certificate that followed the provisions of Rule 85.1(e)(2)(B), the certificate did not provide the court with the analysis we later established in Griffin: "[A] full explanation of all the claims the attorney has considered and why the attorney has concluded that these claims are frivolous. * The court allowed the attorney to withdraw even though James still had the right to appointed counsel to appeal the court's denial of the recantation claim.

A fair reading of the attorney's request for more time after the evidentiary hearing is that James's attorney focused on the recanting witness without evaluating the merit of James's remaining claims. As we indicated in Griffin, an attorney seeking to withdraw from a case after the attorney has concluded that all of the applicant's claims are meritless must describe all the claims the attorney has analyzed along with an explanation why the attorney has concluded those claims are frivolous. This is required so the trial court can satisfy its duty under Alaska Criminal Rule 35.1(f)(2) to ensure that an applicant received zealous investigation and presentation of any colorable claims.

As the record presently stands in this case, it is apparent that James's attorneys litigated the recantation claim without evaluating the claims James raised pro se. Although the court could have required the parties to be prepared to resolve all the application's claims at the hearing, the court did not do so. And after the court considered and rejected the recantation claim that James's attorney raised, the court found good cause to permit James to pursue the other claims. Thus, James stood in the same position after the hearing that he did before the recantation claim was litigated: his application asserted deficiencies in jury composition and claims of ineffective assistance of counsel.

Ordinarily, a detailed no-merit certificate as required by Griffin as a predicate for the court permitting the withdrawal of appointed counsel applies to the limited cireumstance where appointed counsel concludes that the application for post-conviction relief presents no colorable claims to litigate. That was not the case here because the recantation claim required a two-day evidentiary hearing and could only be resolved after the court considered the credibility of witnesses. James retained his right to appeal the superior court's rejection of that claim and the right to appointed counsel for that. appeal. Even so, the superior court permitted withdrawal.

When James's attorney filed the no-merit certificate in this case, we had not issued Griffin and there was no requirement that the attorney describe the claims the attorney considered along with an analysis of why those claims were frivolous. Thus, the record is not clear what claims James's last post-conviction relief attorney considered to be frivolous. Certainly, James's right to appeal the denial of the recantation claim was not. Consequently, because of the unusual cireumstances of this case, we vacate the order of the court dismissing James's remaining claims and remand for further proceedings. ©

Conclusion

The judgment of the superior court is AFFIRMED in part, VACATED in part, and REMANDED for further proceedings. We do not retain jurisdiction.

MANNHEIMER, Judge,

concurring.

I agree with my colleagues that, because of the unusual facts of this case, James's last post-conviction relief attorney could not simply notify the superior court of his conclusion that none of James's remaining claims had merit. Rather, the attorney was bound by the rule we announced in Griffin v. State, 18 P.3d 71 (Alaska App.2001)-that is, he was obliged to provide the superior court with a full explanation for his conclusion that James had no further colorable issues to raise. I am writing separately to clarify my factual and legal reasons for reaching this conclusion.

~ In Griffin, we augmented the literal wording of Alaska Criminal Rule 35.1(f)(2) to ensure an indigent defendant's right to effective assistance of counsel. We held that when an attorney is appointed to represent an indigent petitioner for post-conviction relief, and when the attorney concludes that the petitioner has no colorable claim for relief, the attorney is obliged to "provide the court with a full explanation of all the claims the attorney has considered and why the attorney has concluded that these claims are frivolous". This explanation is required so that the court can "fulfill its duty to make sure that indigent litigants do in fact receive zealous investigation and presentation of any colorable claims for post-conviction relief

But what of situations where the attorney concludes that the petitioner has at least one claim that has arguable merit and should be pursued? In such cireumstances, does Grif fin require the attorney to explain why they are not pursuing other potential claims?

The answer is no. Griffin applies only when the attorney concludes that there are no colorable claims to be raised on the petitioner's behalf.

In Tucker v. State, 892 P.2d 882 (Alaska App.1995), we addressed an analogous issue-an attorney's obligation when representing an indigent defendant on direct appeal. The question in Tucker was whether an appellate attorney is obliged to raise every colorable issue that might be raised on appeal or whether, instead, the attorney could choose to pursue the most meritorious issues and abandon claims that, although arguable, stood a lesser chance of success,. We held that "[sluch strategie choices fall squarely within the sphere of competent representation.

In support of this conclusion, we relied on the United States Supreme Court's decision in Jones v. Barnes, 468 U.S. 745, 108 S.Ct. 3308, 77 L.Ed.2d 987 (1988). In Jones, the Court recognized that a crucial part of appellate advocacy is to winnow out weaker arguments. Thus, the Court held, an appellate attorney representing an indigent defendant is not required to raise every colorable claim.

We now hold that this same rule applies to attorneys representing indigent defendants in post-conviction relief litigation. Part of the attorney's job is to investigate the case and then select which issues to pursue and which to forego. When the petitioner's at-tormney reviews the petitioner's potential claims for post-conviction relief and then actively litigates one or more of those claims, the concern that prompted our decision in Griffin is alleviated: that is, the court can justifiably presume that the petitioner is receiving zealous representation. Absent a later assertion that the attorney acted incompetently when selecting the claims to litigate, there is no need for the attorney to independently justify all the roads not taken. Grif fin applies only when the attorney declares that there are no claims to litigate.

At first glance, the present appeal seemingly presents a situation where Griffin does not apply. James and his attorneys (the law firm of Hemby and Keller) raised several potential claims between them, but Hemby and Keller selected one claim to actively litigate: the claim involving the witness's recantation. Once this claim was litigated to conclusion, there was apparently nothing more to do (except appeal the superior court's rejection of this claim).

But after the superior court decided the witness recantation claim against their client, Hemby and Keller announced that they had never actively investigated James's other claims. In effect, Hemby and Keller told the court that they had decided to litigate James's petition in piecemeal fashion, but had refrained from telling the court of their intention until the court issued its adverse ruling on the witness recantation claim.

Alaska Criminal Rule 85.1(f)-(g) appears to contemplate that, unless the court allows a different procedure, all of a petitioner's claims will be investigated and pleaded by the time the court schedules a hearing on the petition. In James's case, however, the superior court effectively allowed Hemby and Keller to bifurcate the litigation of James's petition-by giving the lawyers more time to investigate and pursue additional claims after the court had already decided the witness recantation claim.

Shortly after they secured this bifurcation of the litigation, Hemby and Keller moved to withdraw from the case, alleging that they had a newly-arisen conflict of interest. The superior court granted this motion and appointed a new attorney to represent James. It was this new attorney who filed a statement under Criminal Rule 85.1(f)(2), declaring that James had no colorable claims to present.

Under these unusual facts, James never had an attorney (or a law firm) who reviewed all of his potential claims and then selected one or more of them to be actively litigated. Rather, Hemby and Keller (with the tacit approval of the superior court) selected one claim to litigate while, at the same time, they let James's other potential claims go unexamined. After the superior court heard and rejected their one selected claim (the witness recantation claim), Hemby and Keller withdrew from the case and the superior court was obliged to appoint another attorney to investigate James's remaining potential grounds for post-conviction relief.

Under these cireumstances, I agree with my colleagues that the Griffin rule governed this new attorney's obligations to James and to the court. The new attorney's assignment was to review all of James's potential remaining claims and decide which of them should be litigated. His decision was to litigate none of them. This is "not the type of tactical choice contemplated [by this court in Tucker and by the Supreme] Court in Jones " Rather, it is the type of decision governed by Griffin. The superior court had a duty to ensure that the new attorney provided zealous representation to James. Because the new attorney had had no hand in the prior litigation of the witness recantation issue, and because the new attorney was solely responsible for evaluating James's remaining potential claims, it was incumbent on this new attorney to explain to the court why he concluded that James had no further col-orable issues to raise.

      , AS 11.41.436(a)(1).

      . AS 11.41.420(a)(3)(B).

      . See James v. State, Memorandum Opinion and Judgment No. 3734 at 29, 1997 WL 796507 (Alaska App., December 24, 1997).

      . See Griffin v. State, 18 P.3d 71, 77 (Alaska App.2001) ("[The attorney seeking to withdraw from the case must provide the court with a full explanation of all the claims the attorney has considered and why the attorney has concluded that these claims are frivolous.").

      . See Tucker v. State, 892 P.2d 832, 834 (Alaska . App.1995).

      . See Hensel v. State, 604 P.2d 222, 235 & n. 55 . (Alaska 1979); Brown v. State, 803 P.2d 887, 888 (Alaska App.1990).

      . See Jones v. Barnes, 463 U.S. 745, 751-54, 103 S.Ct. 3308, 3312-14, 77 L.Ed.2d 987 (1983) (decision to forego weaker arguments on appeal is part of effective appellate advocacy; counsel is not required to raise every colorable claim]; Tucker v. State, 892, P.2d 832, 836-37 (Alaska App.1995); State v. Jones, 459 P.2d 558, 570 (Alaska App.1988).

      . Griffin, 18 P.3d at 76 (Alaska App.2001).

      . See Peterson v. State, 988 P.2d 109, 113-14 (Alaska App.1999).

      . Griffin, 18 P.3d at 77.

      . See AS 18.85.100(a) & (c); Grinols v. State, 10 P.3d 600, 618 (Alaska App.2000).

      . See Griffin, 18 P.3d at 77.

      . Seeid.

      . Id., 18 P.3d at 77.

      . Id.

      . Id. at 836.

      . See id., 463 U.S. at 751-54, 103 S.Ct. at 3312-15. See also Briones v. State, 74 Haw. 442, 848 P.2d 966, 978 (1993) (an attorney's informed decision on which issues to raise on appeal is presumed competent); Williamson v. State, 852 P.2d 167, 169 (Okla.Crim.App.1993) ("It is the role of appellate counsel to carefully select and develop the legal issues to be presented to the court[; counsel need] not raise every non-frivolous issue conceivable.").

      . Hertz v. State, 755 P.2d 406, 410 (Alaska App.1988) (concurring opinion of Bryner, C.J.).