author: BRYNER, Chief Justice.

text:
    ALASKA CENTER FOR the ENVIRONMENT, and Alaska Wildlife Alliance, Appellants, v. Frank RUE, Commissioner, Alaska Department of Fish and Game, and State of Alaska, Appellees.
    No. S-10887.
    Supreme Court of Alaska.
    July 30, 2004.

      Valerie L. Brown and Robert W. Randall, Trustees for Alaska, Anchorage, for Appellants.
    Jon K. Goltz, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney Genera], Juneau, for Appellees.
    Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.
   OPINION

BRYNER, Chief Justice.

I. INTRODUCTION

The Alaska Center for the Environment and the Alaska Wildlife Alliance (collectively, “the center”) filed a superior court action challenging a decision by the Commissioner of Fish and Game declining to list the Cook Inlet beluga whale as endangered under the Alaska Endangered Species Act. The commissioner found that Cook Inlet belugas failed to qualify for endangered species listing because they are not currently threatened with extinction, and also because they are not a distinct subspecies within the meaning of the act. The superior court upheld the commissioner’s finding that no danger of extinction existed and affirmed his decision on that basis, without resolving the subspecies issue. The center appeals, challenging the commissioner’s findings on both the endangerment and subspecies issues. We affirm the finding on lack of endangerment. Because the commissioner’s ruling on that point precludes an endangered species listing, we affirm his decision. To provide future guidance, however, we further conclude that the commissioner used an incorrect legal standard' — and thus failed to consider relevant information — in deciding that Cook Inlet belugas are not a distinct subspecies.

II. FACTS AND PROCEEDINGS

Beluga whales (Delphinapterus lencas) range throughout arctic and subarctic waters in North America, Greenland, Europe, and Asia. They are social animals, living in herds of up to 1,000 individuals. Adult males generally group in separate pods from females, calves, and juveniles. The whales often swim four to six abreast while rolling in tandem to breathe. Adult belugas range from eleven to fifteen feet in length and weigh from 1,000 to 2,000 pounds, with females being smaller than males. Belugas are robust, with a small dorsal fin, bulging, melon-shaped head and small beak, and they are the only whale with the ability to bend their necks.

Approximately 100,000 beluga whales inhabit the waters of Alaska, comprising five separate populations. The Cook Inlet beluga whale is genetically the most distinct of Alaska’s beluga populations, and it is reproductively isolated. It is also the smallest beluga population. In the mid-1980s, the Cook Inlet beluga population was estimated at approximately 1,000 to 1,300. Since then, the population has experienced a steady decline. Between 1994 and 1998, their numbers decreased nearly fifty percent, from 653 to 357.

Throughout this period of decline, Cook Inlet belugas were harvested by Alaska Native subsistence hunters. In May 2000, responding to a request by the Alaska Department of Fish and Game, the National Marine Fisheries Service designated Cook Inlet belugas as a depleted stock after determining that their current numbers fell below the optimum sustainable population level. Based on this finding, the fisheries service began to draft regulations to limit the harvest of these belugas. Various groups petitioned the fisheries service to list Cook Inlet belugas as an endangered species under the Federal Endangered Species Act. After exhaustive review, however, the fisheries service determined in June 2000 that the Cook Inlet belugas’ decline had primarily resulted from overharvesting, a problem that its new regulations would be able to address. Finding no likely danger of extinction in the foreseeable future, the service declined to list Cook Inlet belugas as an endangered species under the federal act.

Meanwhile, the center, together with other groups, petitioned Alaska’s Commissioner of Fish and Game, asking that Cook Inlet beluga whales be listed as an endangered species under the Alaska Endangered Species Act. Upon consulting with various experts, reviewing numerous comments, and considering other available information, the commissioner issued a decision letter in July 2000, declining to list Cook Inlet belugas as endangered under the Alaska Endangered Species Act. The commissioner based this determination on two alternative theories: “Cook Inlet beluga whales are not threatened with extinction, and so are not endangered within the meaning of Alaska’s ESA. Also, Cook Inlet beluga whales do not constitute a ‘species or subspecies’ within the meaning of this law.”

The center filed a superior court action for declaratory and injunctive relief, claiming that the commissioner erred in finding that Cook Inlet belugas are not threatened with extinction and that they do not constitute a species or subspecies under the Alaska Endangered Species Act. After the parties filed cross-motions for summary judgment, the superior court entered an order upholding the commissioner’s finding on the issue of threatened extinction. Reviewing this finding under the deferential standard established in Southeast Alaska Conservation Council, Inc. v. State, the superior court concluded that the commissioner had taken a hard look at the salient issues and had made a rational decision. But as to the commissioner’s alternative finding that Cook Inlet belugas are not a species or subspecies, the court’s original order remanded for further proceedings, ruling that this finding had not been adequately explained. The court revised its ruling on reconsideration, however, evidently agreeing with the state’s position that the subspecies issue did not need to be decided because it was moot. Ultimately, then, the superior court simply affirmed the commissioner’s decision.

The center appeals.

III. DISCUSSION

A. Standard of Review

We review the superior court’s decision on summary judgment de novo. In reviewing an agency’s regulatory decision, such as the commissioner’s refusal to list Cook Inlet belugas as an endangered species, we usually apply the “reasonable but not arbitrary” standard, which “consists primarily of ensuring that the agency has taken a hard look at the salient problems and has genuinely engaged in reasoned decision making.” But when the decision raises a question of statutory interpretation involving legislative intent rather than agency expertise, we review that question independently, applying the substitution-of-judgment standard.

B. Statutory Background

The legislature adopted Alaska’s Endangered Species Act in 1971. The act’s opening section contains a strong statement of purpose: “The legislature recognizes that, due to growth and development, certain species or subspecies of fish and wildlife are now and may in the future be threatened with extinction. The purpose of [this act] is to establish a program for their continued conservation, protection, restoration, and propagation.” Alaska’s act is similar but not identical to the Federal Endangered Species Act. The Alaska act authorizes the Commissioner of Fish and Game to determine that a species or subspecies of fish or wildlife is endangered by finding “that its numbers have decreased to such an extent as to indicate that its continued existence is threatened.” Under the act, the commissioner must make this finding by seeking “the advice and recommendation of interested persons and organizations, including but not limited to ornithologists, ichthyologists, ecologists, and zoologists” and considering four potential indicators of threatened extinction:

(1) the destruction, drastic modification, or severe curtailment of its habitat; (2) its overutilization for commercial or sporting purposes; (3) the effect on it of disease or predation; (4) other natural or man-made factors affecting its continued existence.[]

Upon determining that a species or subspecies qualifies under these criteria, the commissioner places it on a published list of endangered species. The commissioner may add to the list on a continuing basis and must review the entire list at least once every two years. Once listed as endangered, a species or subspecies “may not be harvested, captured, or propagated except under the terms of a special permit issued by the commissioner”; violations of these restrictions are punishable as misdemeanors.

C. Commissioner’s Findings on Threat of Extinction

The center initially challenges the commissioner’s finding that Cook Inlet beluga whales are not currently threatened with extinction and thus do not need to be listed. In the center’s view, the commissioner’s decision is arbitrary and lacks a rational basis because it fails to consider the small size of the Cook Inlet beluga population and assesses only past causes of decline rather than current threats to survival.

We find little merit to these claims. In reaching his decision, the commissioner reviewed a broad array of data and information, including the National Marine Fisheries Service’s then-recent decision not to add Cook Inlet belugas to the federal endangered species list. Based on the entirety of this information, the commissioner analyzed the four statutory factors specified under Alaska’s act.

Considering the first factor, threats to habitat, the commissioner found that “[t]here is no scientific evidence to tie the decline of the Cook Inlet population of beluga whales to the destruction, drastic modification, or severe curtailment of habitat,” and that “current policies provide protection for beluga whale habitat in Cook Inlet.”

As to the second factor, overutilization, the commissioner noted strong historical evidence suggesting that Cook Inlet belugas had been overharvested, finding that “[c]learly the harvest in recent years has caused a significant decline in the population.” Since federal law gives the National Marine Fisheries Service exclusive power to regulate the harvest of whales, the commissioner noted, “[o]nly the federal government can change this.” And in fact, the commissioner observed, the federal government had recently enacted laws and had begun to draft rules to control the overharvest. While believing it likely that these measures would succeed in controlling the overharvest, the commissioner emphasized that he intended to monitor the issue and would “reconsider this determination in the event that [the fisheries service] fails to adopt long-term regulations controlling hunting at sustainable levels.”

Addressing the third factor, disease and predation, the commissioner found no scientific evidence of any appreciable or increased threat attributable to this category.

Concerning the fourth, catchall, factor, the commissioner reviewed available information on recent beluga-whale strandings, incidental takings in commercial fisheries, environmental conditions affecting the availability of food, potential contamination through chemical pollution, and destruction of existing physical habitat. Finding “no evidence [that] any of these other factors have had, or are having, any impact on the health or mortality of Cook Inlet beluga whales,” the commissioner concluded that “Cook Inlet beluga whales are not threatened with extinction.”

The center advances a two-pronged attack on these findings. First, it assails the commissioner for failing to recognize that the depleted size of the Cook Inlet beluga population is “the one factor that poses the biggest threat” to the whales’ survival. Relying on an analysis prepared by the Alaska Chapter of the Wildlife Society, which concludes that the Cook Inlet beluga’s population is “so reduced that it is likely to decline toward extinction in the event of harvest of a single individual” per year, the center asserts that the commissioner “simply deferred” to a contrary view expressed by the fisheries service, which found that the population could sustain an annual harvest of up to seven whales a year. Because of this oversight, the center insists, the commissioner lacked any rational basis to find that the population’s depleted size did not, by itself, establish a threat of extinction.

But this argument, at its core, simply asks us to reweigh the information in the agency record and substitute our judgment for the commissioner’s. The commissioner’s decision shows that he was aware of and considered the beluga stock’s depleted size: as the center recognizes, the commissioner specifically addressed this issue, observing, “Just because the population is small is no indication that it is not healthy and viable.” While the commissioner’s observation certainly indicates that his views on this point concur with the fisheries services’ assessment rather than the Wildlife Society’s, this hardly demonstrates that the commissioner “simply deferred” to the former and arbitrarily rejected the latter. On the whole, the commissioner’s analysis of statutory and other factors bearing on the issue of threatened extinction reflects an overarching concern with the population’s dwindling size and the manner of its depletion. Our function is not to reweigh the competing information on this issue; instead, the law requires us to accept the commissioner’s decision unless it lacks any rational basis. Here, the commissioner considered the requisite factors, and the fisheries services’ recent findings provided a rational basis to conclude that the belugas’ diminished population did not by itself imperil the whales’ survival. We thus find no occasion to second-guess this decision.

The center separately asserts that the commissioner misapplied the statutory factors. The center posits that the commissioner “assessed threats to the Cook Inlet beluga whale solely on the basis of whether there was conclusive evidence linking that threat to the past decline of the population.” This was error, the center insists, because “[t]he requisite inquiry under Alaska’s [act] is fundamentally a forward-looking one, asking whether there are any threats to the species or subspecies that may affect its future survival, i.e., its ‘continued existence.’ ”

But experience teaches: our past is often the most reliable predictor of our future. Indeed, it seems difficult to imagine many threats of extinction that could be reliably predicted without experiential analysis. A fair reading of the challenged decision indicates that the commissioner sought to obtain a reliable view of current and potential future danger by taking a hard look at the historical information at hand. Despite roundly criticizing this retrospective approach, the center identifies no purely prospective risk overlooked by this examination of historical harm.

In summary, then, our review of the record convinces us that the commissioner’s analysis of threatened extinction considered the statutory requirements, took a hard look at the salient problems, and engaged in reasoned decisionmaking. We thus uphold the commissioner’s determination that Cook Inlet beluga whales did not need to be listed under Alaska’s act because their numbers had not “decreased to such an extent as to indicate that [their] continued existence is threatened.”

D. The “Species or Subspecies” Issue

As already mentioned, Alaska’s Endangered Species Act applies only to “species or subspecies” of Alaskan fish or wildlife. Here, in addition to concluding that no current threat of extinction existed, the commissioner found that Cook Inlet beluga whales do not qualify as a “ ‘species or subspecies’ within the meaning of this law.” The center disputes this finding, arguing that the commissioner misconstrued the meaning of “species or subspecies,” as used in the act.

In response, the state maintains that this issue is moot and urges us not to consider it, asserting that the commissioner’s decision can be affirmed on the alternative ground

that Cook Inlet belugas are not currently threatened with extinction. In any event, the state contends, the commissioner reasonably found that Cook Inlet belugas fail to qualify as a subspecies under Alaska’s act because the scientific literature does not formally recognize these whales as a distinct subspecies of the general beluga species. The center replies that the commissioner’s interpretation of the “species or subspecies” provision is unduly narrow and that, even if technically moot, this issue falls under the public interest exception to the mootness doctrine because it presents an important legal question that might evade review if we fail to resolve it now.

1. Mootness

The law considers a disputed claim to be moot when its resolution would not result in any actual relief, even if the claiming party prevailed. Because the act would not allow Cook Inlet belugas to be listed as an endangered species unless they faced a threat of extinction, our opinion’s affirmance of the commissioner’s finding on this point disqualifies them regardless of their status as a species or subspecies. Accordingly, the state is correct in asserting that this issue is technically moot.

The mootness doctrine generally counsels against deciding moot claims; but as both parties recognize, an exception to the mootness doctrine arises when the public interest would be served by deciding an issue even though it is technically moot. In applying the public interest exception, courts must find (1) that the issue in question is capable of repetition, (2) that it might repeatedly evade review if the mootness doctrine strictly applied, and (3) that it “is so important to the public interest as to justify overriding the mootness doctrine.”

The state contends that the question at issue here — Cook Inlet belugas’ standing as a species or subspecies under the act— fails to meet any of these requirements. But the state rests this argument on the premise that “[t]he subspecies determination is specific to the record in this case.” The state reasons that “[i]f the issue arises again it will almost certainly involve different scientific evidence” because “the Commissioner’s decision will depend on the record in that particular case.” Yet the commissioner appears to have decided this issue primarily as a matter of law, not as a case-specific question of fact.

Despite acknowledging strong evidence of the Cook Inlet belugas’ genetic uniqueness and geographic isolation, the commissioner’s decision emphasized in its statement of factual background that “the fact remains that within the meaning of Alaska’s endangered species statutes, all beluga whales in Alaskan and Canadian waters are the same species, and no subspecific designations have been proposed or accepted within the scientific community.” (Emphasis added.) The commissioner’s substantive analysis of the Cook Inlet beluga’s classification confirmed his view that this issue presented a straightforward legal question: “There is a threshold legal question whether the Cook Inlet beluga whale population constitutes a ‘species or subspecies’ within the meaning of the Alaska ESA. Consideration of the plain language of the statute and legislative history of the federal ESA suggests it is not.” (Emphasis added.) Later, despite finding no legislative history to indicate that the words “species” and “subspecies” were “intended to have anything other than their commonly understood definitions,” the commissioner again stressed that. scientific literature does not identify any population of belugas as a separate subspecies, that “Alaska law makes no provision for listing of stocks, populations or other non-specific genetic distinctions,” and that, in his view, the act used “species” and “subspecies” exclusively “in the technical sense” of these words.

In the final analysis, then, the commissioner read the act as categorically limiting the definitions of “species” and “subspecies” to refer to generally accepted taxonomic classifications — an interpretation that essentially foreclosed any need to evaluate available biological information for evidence suggesting that Cook Inlet beluga whales might actually qualify as a subspecies under the commonly understood substantive meaning of the word, even though they have not yet been recognized as a subspecies “in the technical sense.” So interpreted, the act left no room for case-specific discretion; as the commissioner put it, “the threshold question of whether Cook Inlet beluga whales constitute a species or subspecies within the meaning of the Alaska ESA must be answered in the negative.” (Emphasis added.)

Because the commissioner viewed this issue as a legal question having a categorical answer, we think that his ruling meets the three-part test for review under the public interest exception to the mootness doctrine. First, the question of listing is likely to recur if the Cook Inlet beluga whale population fails to show signs of a healthy recovery; and when it does arise again, the commissioner’s narrow technical view of “species or subspecies” issue will likely compel another denial of listing, except in the seemingly unlikely event that taxonomists formally recognize Cook Inlet belugas as a subspecies “in the technical sense.” Second, denying review based on mootness seems likely to hamper or delay future review of this issue: even if forceful new evidence of threatened extinction arises, the commissioner’s current position may well discourage new petitions and will likely prevent any realistic possibility of endangered-species listing until the subspecies issue completed a new round of appeals — a delay that seriously jeopardizes the Cook Inlet beluga population if the new petition were ultimately found to have merit. And third, as evidenced by the act’s statement of purpose, the question at issue has substantial importance, and its timely resolution will undoubtedly further the public interest.

2. Meaning of the act’s “species and subspecies” requirement

We thus turn to the merits of “the threshold legal question” decided by the commissioner: the meaning of the act’s “species or subspecies” requirement. Because this issue presents a question of statutory interpretation involving legislative intent, we decide it independently, applying the substitution-of-judgment standard.

Initially, we note our agreement with the commissioner’s comment that the legislature apparently intended to give the words “species or subspecies” their “commonly understood definitions.” But the commissioner did not attempt to articulate or apply the common meaning of these words; instead, he ultimately assigned them their narrowest possible meaning, construing the act to use them in their strict “technical sense” — that is, as formal taxonomic classifications accepted in the published scientific literature.

The commissioner’s reliance on this narrow definition is problematic, since it conflicts with the legislature’s intent to use “species” and “subspecies” as they are commonly understood. The narrow “technical” meaning of these words may well be the one commonly applied by scientists engaged in taxonomy' — a scientific discipline devoted to the systematic classification of plants and animals. But we doubt that scientists working outside the specialized realm of taxonomy — particularly those engaged in actively developing areas of biological study involving fish and wildlife management — would commonly restrict these words to the narrow meanings taxonomists agree to give them in published articles. Nor does it seem realistic to assume that the Alaska Legislature chose to assign these words such a static and constricted “technical meaning” when it adopted the act. After all, the act’s stated purpose is to establish a program that will effectively protect fish and wildlife against dynamic new threats of extinction — new dangers attributable “to growth and development.” It seems unlikely that the legislature could have expected the act to function effectively in averting such threats if the act protected “species” or “subspecies” of fish and wildlife only after they gained formal recognition by an isolated scientific discipline that devotes itself to abstract “technical” matters of classification that are largely unrelated to fish and game management.

As cogently observed by the United States District Court in the recent case of Center for Biological Diversity v. Lohn, “formal taxonomic changes are often slow to occur and lag behind current knowledge”; hence, accepted taxonomic designations of whales can easily prove inaccurate, while at the same time other scientific- evidence can reliably establish the existence of “species” and “subspecies” that have not yet been formally recognized by taxonomists. These observations are hardly surprising. Because taxonomy organizes plants and animals to reflect their development over the ages, it naturally tends to view life’ in historical perspective. It thus seems illogical to expect that taxonomists would generally attach much urgency to the recognition and acceptance of new and emerging classifications. But by the same token, it seems just as illogical — and therefore probably contrary to legislative intent— to constrict the common definitions of “species” and “subspecies” to the technical definitions formally recognized in this single corner of science.

The superior court correctly observed in its original order on summary judgment that the dictionary can help to define the common meaning of “subspecies”:

Webster’s New Universal Dictionary of the English Language (1976) defines subspecies as a “division of a species.” The American Heritage Dictionary of the English [Ljanguage defines “subspecies” as “a subdivision of a taxonomic species, usually based on geographical distribution.” The Academic Press Dictionary of Science and Technology defines “subspecies” as a “taxonomic rank immediately below species indicating a group of organisms that is geographically isolated from and may display some morphological differences from other populations of a species, but is nevertheless able to interbreed with other such groups within the species where their ranges overlap.” It appears that the “common definition of subspecies” includes looking at distinct geographical segments.

These common definitions point to a useful core of features commonly associated with a subspecies: geographic isolation; distinctive characteristics, often genetically determined; and a retained ability to interbreed with other members of the same general species. While this description lacks precision in many respects and hardly qualifies as an exhaustive definition, the issues presented here do not require a more exacting elaboration. The most important point for present purposes is that the commonly understood meaning of “subspecies” does not turn on the categorical pronouncements of a single science; nor does it describe a classification in the rigid “technical sense” of general agreement or acceptance as reflected by scientific literature. To the contrary, while the narrow meanings of these words are certainly included in their commonly understood meanings, their common meanings are broader and more flexible. As used in the act, they call for a ease-specific exercise of discretion by the commissioner based on a hard look at all currently available scientific information, including but not limited to formally recognized taxonomic classification.

In short, nothing in the common definitions of these words requires the commissioner to determine the existence of a subspecies by exclusive reference to the generally accepted views of a single branch of science; as with the issue of threatened extinction, the act requires the commissioner to determine the existence of a subspecies by taking a hard look at the available views of informed scientists from all relevant disciplines. When this information leaves serious doubt as to the de facto status of an unrecognized subspecies, the commissioner has broad discretion to fall back on traditionally accepted taxonomic classifications; but when up-to-date, ease-specific science reliably indicates that taxonomic changes have lagged behind and are no longer accurate, the act gives the commissioner broad discretion to find that a protectable subspecies exists under the act, regardless of whether the classification finds general support in the “technical sense.”

The crucial point, again, is that the act vests controlling discretion in the commissioner, not in taxonomy. Here, as our review of the disputed decision makes clear, the commissioner largely failed to recognize or exercise his full range of discretion. By concluding as a matter of law that the act permitted a subspecies to be found only when it was recognized to exist in the “technical sense” of the word, the commissioner effectively declared himself powerless to take a hard look at available scientific information suggesting that Cook Inlet beluga whales possessed the requisite traits of a subspecies despite their lack of formal taxonomic recognition. While we must ordinarily give broad deference to an agency’s discretionary decisions, “such deference is warranted only when the agency utilizes, rather than ignores, the analysis of its experts.” We have recognized that “outright refusal to consider the various alternatives available as a matter of discretion ... is a failure to exercise any discretion at all.” The commissioner’s refusal here to consider any scientific information except taxonomic classification in the “technical sense” amounted to an abuse of discretion.

We by no means suggest that the act required the commissioner to develop and explore new information on the status of Cook Inlet beluga whales. To the contrary, we reconfirm our prior decisions holding that agencies making regulatory decisions need only consider information that is submitted or is otherwise readily available. But here, the available information included abundant scientific data suggesting that Cook Inlet belugas are both genetically distinctive and uniquely isolated from other beluga populations. The commissioner expressly declined to evaluate this information because he did not think that it addressed the issue of classification in the “technical sense” intended under the act. Although we express no view as to whether this information might ultimately establish the existence of a subspecies under the commonly understood meaning of the word, we hold that the commissioner erred in failing to take a hard look at this issue under the correct legal standard.

Because we have recognized that the commissioner’s findings on threatened extinction provided an independent ground to deny the center’s petition, our holding on the issue of subspecies status does not warrant reversal. We nevertheless recognize that the commissioner himself noted that future review of endangerment to Cook Inlet belugas may become necessary because of uncertainty surrounding the effects of the federal government’s planned efforts to manage subsistence harvest. If the center believes that further review is now warranted by intervening changes, then today’s holding on the issue of endangerment will not preclude it from filing a new petition. In that event, today’s decision on subspecies status will require the commissioner to reevaluate his position on that issue based on a hard look at all relevant scientific information submitted or available at the time of the new review.

IV. CONCLUSION

The decision of the superior court is AFFIRMED.

      . The Marine Mammal Protection Act gives the National Marine Fisheries Service exclusive authority to manage the harvest of beluga whales.

      . 665 P.2d 544, 549 (Alaska 1983).

      . Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999).

      . Handley v. State, 838 P.2d 1231, 1233 (Alaska 1992).

      . Interior Alaska Airboat Ass’n v. State, 18 P.3d 686, 690 (Alaska 2001).

      . Jerrel v. Dep’t of Natural Res., 999 P.2d 138, 141 (Alaska 2000).

      . Ch. 115, § 1, SLA 1971. The act is codified in the Alaska Statutes as Article 3 of Title 16 — AS 16.20.180-.210.

      . AS 16.20.180.

      . 16U.S.C. §§ 1531-1599(2000).

      . AS 16.20.190(a).

      . AS 16.20.190(a), (c).

      . AS 16.20.190(b).

      . Id.

      . AS 16.20.195.

      . AS 16.20.200.

      . AS 16.20.190(a)(l)-(4).

      . AS 16.20.190(a)(1).

      . Id. at (2).

      . Id. at (3).

      . Id. at (4).

      .The center accuses the decision of failing to adequately consider threats to habitat posed by the risk of an oil spill. Yet the risk of an oil spill is one that has long existed in the Cook Inlet; and this risk has been deemed tolerable thus far. In discussing current efforts that seek to curb this risk by restricting future Cook Inlet development, the decision demonstrates the commissioner’s "forward-looking" consideration of salient information concerning this risk.

      . AS 16.20.190.

      . See, e.g., DeNardo v. ABC Inc. RVs Motorhomes, 51 P.3d 919, 928 n. 50 (Alaska 2002).

      . Peninsula Mktg. Ass’n v. State, 817 P.2d 917, 920 (Alaska 1991) (quoting Hayes v. Charney, 693 P.2d 831, 834 (Alaska 1985)).

      . See AS 16.20.180.

      . AS 16.20.190(a).

      . Jerrel, 999 P.2d at 141.

      . Webster’s, for example, defines taxonomy, in its biological sense, as "a system of arranging animals and plants into natural, related groups based on some factor common to each, as structure, embryology, or biochemistry: the basic taxa now in use are, in descending order from most inclusive, kingdom, phylum ..., class, order, family, genus, and species.” Webster's New World College Dictionary at 1467-68 (4th ed.2004).

      . AS 16.20.180.

      . Ctr. for Biological Diversity v. Lohn, 296 F.Supp.2d 1223, 1233 (W.D.Wash.2003).

      .Indeed, we note that the commissioner's emphasis on the need for general acceptance implicitly suggests a narrow view of scientific relevance that is now generally rejected. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588-89, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); State v. Coon, 974 P.2d 386, 394 (Alaska 1999) (rejecting rule adopted in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), which required general acceptance as condition of admissibility for scientific evidence).

      . Ctr. for Biological Diversity, 296 F.Supp.2d at 1239.

      . Garner v. State, 63 P.3d 264, 269 n. 22 (Alaska 2003) (quoting Cano v. Municipality of Anchorage, 627 P.2d 660, 664 (Alaska App.1981)).

      . See, e.g., Kelso v. Rybachek, 912 P.2d 536, 539-40 (Alaska 1996).


source: Caselaw Access Project

author: CARPENETI, Justice.

license: Public Domain

text:
    Mary Ellen SOULES, Appellant, v. Betty RAMSTACK, Appellee.
    No. S-11034.
    Supreme Court of Alaska.
    July 30, 2004.

      Robert C. Erwin, Erwin & Erwin, LLC, Anchorage, for Appellant.
    Gordon F. Schadt, Schadt Law Office, Anchorage, for Appellee.
    Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Mary Ellen Soules, personal representative of the Estate of Pauline King, appeals the superior court’s decision holding that the estate is contractually obligated to pay a special assessment levied against a condominium that the estate sold to Betty Ram-stack. Soules contracted to sell the unit to Ramstack in March 2002 and agreed to pay any assessments due at closing. The condominium association approved a special assessment in December 2001 and notified all owners of the assessment in early January 2002. Those who were then negotiating to sell their units were told that the assessment would be due at closing. The estate did not pay the assessment at closing. Because the superior court correctly ruled that the estate breached its contract with Ramstack, we affirm its decision requiring the estate to pay the special assessment.

II. FACTS AND PROCEEDINGS

Pauline King died in December 2001, leaving an estate that included condominium 2F in Mt. Vernon Commons in Anchorage. At the time, the Mt. Vernon condominium community was unique in that it did not own the land upon which the units were built, but instead had a long-term leasehold interest in the property. In June 2001 the Mt. Vernon Condominium Association began negotiating with the Central Anchorage Land Company, which owned the land, to purchase it for a price of $1.8 million. On September 27, 2001 the board of directors of the condominium association held an informational meeting to discuss the proposed land acquisition, including the amount of a special assessment that would be levied against all units to finance the purchase. The condominium association proposed to finance the acquisition through a bank loan, and each homeowner was to be responsible for a portion of the purchase price payable through a special assessment. The entire transaction was subject to approval by the homeowners.

The minutes of this meeting indicate that the proposed land purchase was controversial. Elouise Schmidt, the real estate agent who later represented the estate in the transaction with Ramstack, attended the meeting on her own behalf and as a proxy for several homeowners. She opposed the land purchase. According to the minutes, while Schmidt was unsure how the land purchase would affect condominium values at Mt. Vernon, she discussed how an owner could explain the assessment to a potential buyer and how an owner could work the assessment into the sales price if a unit were offered for sale.

A special board meeting of the homeowners’ association was held on December 10, 2001. Athough the land acquisition was still being negotiated, the board anticipated that the homeowners would approve the transaction and that closing would occur on December 28, 2001. The board approved a special assessment to pay for the land purchase. The amount of assessment varied depending on the type of condominium unit, and ranged from $11,677.54 to $13,914.60, which could be paid as a lump sum or in installments. The assessment due on unit 2F was $13,139.57.

The board notified homeowners on January 11, 2002 that the special assessment had been levied, informing them a majority of the homeowners had approved the land purchase, the amount they were required to pay, and where and how to pay the assessment. This letter also informed homeowners that the association was negotiating with the bank for better loan terms and that if the transaction was not completed, any payments made would be refunded with interest. A second letter sent on January 16, 2002 explicitly informed homeowners who were attempting to sell their units that the “special assessment [was] on the unit and due upon closing.” The letter encouraged such homeowners to “[i]nstruet your closing agent to deposit those funds in [the special assessment] account at Northrim Bank.”

The proposed land acquisition presented many challenges because, according to Michael Olson, Vice President of the Board, it was the first time in Aaska that an existing condominium association had attempted to convert leasehold land to fee simple ownership, and in February the deal was temporarily derailed when the parties reached an impasse. After further negotiations the deal was reinstated on the same financial terms. In a special board meeting on March 27, 2002 the board voted to seek a new closing date of May 1, 2002 and to impose a deadline for payment of the special assessment, the amount of which was unchanged since it was reported to homeowners in January. The board set a deadline of April 30, 2002 for partial or total payment of the special assessment and notified all homeowners of this date in writing on April 3, 2002.

Meanwhile, King’s estate had listed her condominium for sale with Schmidt in March of 2002. The listing announcement indicated that the condominium association was still working on the land acquisition and specified the amount of the monthly land lease, but it did not mention the special assessment already announced by the association. Ram-stack submitted an earnest money agreement on March 20, which provided that assessments on the property would be paid by the seller. The estate accepted the earnest money agreement on March 22. A resale certificate obtained by the estate on April 10, and provided to Ramstack on April 11, was accompanied by a disclosure statement that indicated that there were no unpaid “common expenses” on the unit. Ramstack purchased the condominium on April 19. The monthly land lease and condo fees owing on the unit were collected from the estate. However, the special assessment was not included in the settlement charges due from the estate or the buyer. Ramstack first learned of the special assessment on or about April 25, 2002 when she took her monthly land lease payment to Michael Olson, who informed her that she actually owed over $13,000. On May 29, 2002 the association claimed a lien against all units that had not paid the assessment, including the unit purchased by Ramstack. The association finally purchased the land on September 6, 2002.

Ramstack filed a creditor’s claim against the estate on June 13, 2002, seeking to enforce the terms of the contract by collecting $13,139.57 to pay the special assessment charged to her unit. Following a two-day bench trial on February 11 and 12, 2003 Superior Court Judge Mark Rindner issued a decision on March 10, 2003 holding the estate liable for the unpaid special assessment. The superior court found that the board had levied the special assessment through a duly enacted resolution at the December 10, 2001 special meeting and that it remained valid throughout the negotiations to purchase the land. The superior court further found that the estate had agreed to pay all assessments owed on the condominium at closing, including the special assessment. Finally, the superior court rejected the estate’s argument that Ramstack would be unjustly enriched if the estate were forced to pay the assessment without the benefit of a higher sales price, noting that Ramstack may not have even contracted to buy the unit had she known of the assessment, and that requiring the estate to honor its contract would merely give Ram-stack the benefit of her bargain. The court ordered the estate to pay the special assessment.

Soules appeals on two grounds. First, she claims that, because the special assessment was not due on April 19, 2002 when the estate sold the condominium to Ramstack, the estate bore no obligation to pay the assessment at that time. Second, she claims that Ramstack will be unjustly enriched if the estate is required to pay the assessment.

III. STANDARD OF REVIEW

Whether the assessment was due at the time of closing presents a mixed question of law and fact, which we review using two different standards. Factual determinations are reviewed under the clearly erroneous standard. We will find clear error only if, after a thorough review of the record, we come to a definite and firm conviction that a mistake has been made. Legal questions are reviewed de novo, and we will adopt the rule of law that is most persuasive in light of precedent, reason, and policy. “Whether there has been unjust enrichment is generally a question of fact.” But “[w]here the facts are clearly established, the issue becomes one of law, and the court must ‘adopt the rule of law that is most persuasive in light of precedent, reason, and policy.’ ” Additionally, the trial court’s findings regarding the credibility of the witnesses will be reversed only if clearly erroneous. We can affirm the decision of the superior court on any basis supported by the record.

IY. DISCUSSION

The primary question presented by this appeal is whether the special assessment enacted by the board on December 10, 2001 and announced to homeowners in January 2002 was due on the date of closing and thus payable by the estate by the terms of its contract with Ramstack. Soules argues that the estate was not contractually bound to pay the assessment because it was not due until April 30, 2002, eleven days after it sold the condominium to Ramstack.

A. The Special Assessment Was a Debt at Closing.

The board of the Mt. Vernon Commons Condominium Association voted to levy a special assessment on December 10, 2001, a fact reflected in the minutes of the special board meeting, the corporate resolution, and the testimony of Michael Olson, whom the superior court found to -be fully credible. This decision was communicated to homeowners in letters dated January 11 and 16, 2002, along with the amount due from each homeowner, including the interest rate applicable to installment payments. Although the board did not vote to impose a deadline for payment until the March 27, 2002 special board meeting, the January correspondence specifically informed homeowners who were negotiating to sell their units that the “special assessment is on the unit and due upon closing” and encouraged them to ensure that the closing agent deposited the funds in'a special account set up for that purpose.

The question is whether the assessment existed as an obligation of the estate prior to the sale of the unit or whether the assessment became effective only on April 30, 2002 and was thus payable by Ramstack. Resolution of this question requires us to determine when a condominium assessment becomes effective and whether the special assessment at Mt. Vernon Commons was an existing obligation when Ramstack purchased unit 2F from the estate.

Soules raises two arguments in support of her position that the estate is not contractually obligated to pay the assessment, both of which rely on the April 30 deadline for paying the assessment. First, she argues that, in the absence of an express provision in an association’s bylaws, an assessment is not payable until a condominium association has statutory authority to attach a lien against a unit to enforce collection. She relies upon AS 34.08.470, which provides that a lien attaches from the date an assessment is due, to support her argument that the assessment was only effective when it was due. Second, Soules argues that the assessment was a contingent liability when the estate contracted to sell the condominium to Ramstack, and that the liability only became definite on April 30 when the assessment was due. Under both arguments, Soules claims that since the assessment was not due until after the estate sold the unit on April 22, 2002 the estate bore no duty to pay the assessment.

While the condominium association’s bylaws do not indicate when a special assessment is effective, Soules notes that AS 34.08.470, a provision of the Uniform Common Interest Ownership Act, states that a condominium association has a lien on a unit for an assessment from the time the assessment becomes due. According to Soules, if no lien could attach against the unit until after April 30 then no debt was due and the association could pursue no action for collection. Her argument reduces to a syllogism: if no lien could attach, no debt was payable; if no debt was payable, the assessment had not been levied; if the assessment had not been levied, the estate- did not breach its contract.

While this argument has the virtue of simplicity, it misses an important point: An assessment does not become valid only when it attaches as a lien. Debts can exist before they are due, and condominium assessments can be effective before they must be paid. Condominium associations in most states have statutory authority to attach liens as a collection mechanism to ensure that homeowners pay the fees it has assessed. Alaska Statute 34.08.470 describes one way for an association to collect assessments from recalcitrant homeowners: It grants the authority to impose liens to collect unpaid assessments, it allows these liens to attach from the time an assessment is due, and it gives these liens priority over other types of liens and encumbrances. But it says nothing about when an assessment itself becomes effective. A condominium association also has other means available to encourage the timely payment of assessments, including authority to impose late fees and fines and to charge up to an eighteen percent interest rate on unpaid-balances.

Indeed the typical sequence by which an association adopts, announces, and collects assessments implies that an assessment will be. effective before it is due, and almost certainly before the association could attach a lien against a unit to compel payment. Typically an association board will adopt a budget - for planned expenses, enact an assessment to meet these expenses, set a deadline for payment and, if the assessment remains- unpaid, pursue various collection strategies ranging from sending a reminder letter, charging interest, attaching a lien, and even foreclosing on a unit. But the assessment exists even though it might not be immediately payable. Allowing a period of months before payment is due is particularly important where, as here, the association levied an assessment of-more than $13,000, greater than ten percent of the value of the condominium, which sold for $126,900. When the announcement of an assessment predates the due date, the assessment is best viewed as an unmatured obligation, a debt for which the sum is certain though the time for payment is deferred. Though the time for payment had-not yet passed when the estate sold unit 2F to Ramstack, the assessment existed as an obligation of the estate from the time it was enacted. Because the assessment was an existing obligation when the estate contracted to sell the unit, the superior court correctly found that the estate bore the obligation of paying the assessment.

Soules argues that the assessment was a contingent liability rather than an unmatured obligation, because the assessment would only become a debt when “all events [had] occurred which fix and determine the liability of the debtor.” A contingent liability is a liability that depends upon the occurrence of a future and uncertain event. But Soules’s argument would mean that the assessment was not valid until the association closed on the land, because that is when the event finally occurred which fixed the liability of each unit owner. That claim is clearly wrong. The transaction did not finally close until September 6, 2002. If the assessment was contingent upon the land transaction being completed, it was not due until September 6, notwithstanding the fact that the assessment was voted in December and announced in January, payment was due in April, and liens attached against unpaid units in May. But even Soules acknowledges that payment was due on April 30, 2002.

The validity of the assessment was not contingent upon whether the association purchased the land. Had the land transaction irreparably fallen apart, the assessment payments would have been refunded with interest. Though the assessment was not due until April 30, when the estate sold the unit to Ramstack, payment of the assessment was contingent upon nothing but the passage of time. Thus the assessment must be viewed as an unmatured debt rather than a contingent liability.

The superior court found that the board enacted a special assessment on December 10, 2001, that it communicated the amount due from each homeowner in January 2002, and that the assessment remained valid even though the association continued to negotiate the terms of the transaction with the seller and the bank. These factual findings are not clearly erroneous. Correspondence from the association specifically instructed owners who were selling units to withhold the assessment at closing and informed them that any funds paid would be refunded with interest in the event that the land transaction was not completed. Although the association did not initially impose a due date, Michael Olson testified that the board hoped that owners would pay the assessment before the association purchased the land so that these funds could be used as a down payment. When the transaction was renewed on March 27, 2002 the board set an April 30 deadline for payment. The amount assessed against each unit remained unchanged at least from the initial communication to homeowners on January 11, 2002. Under these circumstances, the superior court correctly ruled that the assessment was a debt of the estate at the time of closing.

The superior court also found that Schmidt was fully aware of the status of the land transaction and the special assessment, but that this information was not disclosed to Ramstack or her agent. Because the estate had greater knowledge of the pending assessment, the superior court correctly ruled that the estate bore the burden of exempting the special assessment from its contractual agreement with Ramstack if it wished to avoid its obligation to pay the assessment.

B. Ramstack Will Not Be Unjustly Enriched if the Estate Must Pay the Assessment.

Soules also argues that Ramstack will be unjustly enriched if the estate is required to pay the special assessment, because the unit is now worth more with a fee interest in the land and Ramstack paid a purchase price based upon the value with only a leasehold interest. The superior court rejected this argument for three reasons. First, it noted that the estate’s own agent had previously stated that she was unsure how the land purchase would affect real estate values, rendering the unjust enrichment theory problematic at best. Second, there was no evidence that Ramstack would have purchased the unit had she known that the ultimate purchase price would be more than $13,000 higher than the contracted amount. Finally, and most importantly, the court found that Ramstack was not receiving a windfall, but merely the benefit of her bargain. We agree. An “allegation of unjust enrichment will succeed only when ‘the defendant has received a benefit from the plaintiff and it would be inequitable for the defendant to retain the benefit without compensating the plaintiff for its value.’ ” But there can be no valid claim of unjust enrichment where a party has given fair consideration or value for the benefits obtained. The contract between Ramstack and the estate specified that the latter would pay any assessments against the unit. But the estate did not pay. Enforcement of a valid contract does not constitute unjust enrichment.

V. CONCLUSION

Because the Estate of Pauline King contractually agreed to pay any assessments owed on the condominium, and because a special assessment was imposed prior to closing, we AFFIRM the decision of the superior court that the estate is contractually obligated to pay the special assessment.

      . The corporate resolution authorizing the special assessment was not actually signed by the secretary until July 14, 2002. However, the resolution, the minutes of the December special board meeting, and testimony from Michael 01-son, Vice President of the Board, indicate that the assessment was effective as of December 10, 2001 when the resolution was adopted. The superior court found Olson’s testimony to be fully credible.

      . The original disclosure statement was not available at trial, but a statement from a similar transaction was introduced.

      . Ramstack’s real estate agent testified that the buyer and seller typically do not see the other's settlement statement, thus the fact that the special assessment was not included in the buyer's settlement statement would not have alerted Ramstack to any potential problem.

      . Carr-Gottstein Props., Ltd. P’ship v. Benedict, 72 P.3d 308, 310 n. 4 (Alaska 2003).

      . Id. at 310.

      . Rausch v. Devine, 80 P.3d 733, 737 (Alaska 2003).

      . Carr-Gottstein, 72 P.3d at 310 (citing Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000)).

      . State, Dep't of Revenue v. Wetherelt, 931 P.2d 383, 390 n. 11 (Alaska 1997).

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

      . Rausch, 80 P.3d at 737.

      . Id.

      . Ch. 95, SLA 1985. The Uniform Common Interest Ownership Act applies to condominium communities created after January 1986. AS 34.08.010. Mt. Vernon Commons was established in 1974 and the bylaws state that it is governed by the Horizontal Property Regimes Act, AS 34.07. Because the Uniform Common Interest Ownership Act does not resolve the question of when an assessment becomes effective, we need hot address whether it would apply to the activities of the Mt. Vernon Commons Condominium Association.

      . AS 34.08.470(a).

      . See Gary A. Poliakoff, Law of Condo Operations §§ 5.15, 5.23 (1988).

      . AS 34.08.470(a)-(b).

      . AS 34.08.320(a)(ll).

      . AS 34.08.460(b).

      . See Wayne S. Hyatt, Condominium and Homeowner Association Practice: Community Association Law § 6.07(a)(1) (3d ed.2000) (describing sequence of levying and collecting assessments).

      . See Consol. Constr. Servs., Inc. v. Simpson, 372 Md. 434, 813 A.2d 260, 269 (Md.2002) (defining unmatured debt).

      . Black's Law Dictionary at 926 (7th ed.1999).

      . The record does show that the proposed closing date was postponed several times after the assessment was first announced. In December 2001 the board projected a December 28 closing date. When the assessments were announced to homeowners on January 11, 2002 the board anticipated a late January closing date. On April 3, when the board announced that the transaction had been reinstated and set the April 30 deadline for paying the assessment, it projected a May 1 closing. Closing finally occurred in September.

      . Cruttell v. Bingo, 83 P.3d 532, 538 (Alaska 2004) (quoting Sparks v. Gustafson, 750 P.2d 338, 342 (Alaska 1988)).

      . Alaska Sales & Serv. Inc. v. Millet, 735 P.2d 743, 746 (Alaska 1987).


author: MANNHEIMER, Judge.

text:
    Daniel R. BRODIGAN, Appellant, v. STATE of Alaska, Appellee.
    No. A-8597.
    Court of Appeals of Alaska.
    July 30, 2004.
    Carmen E. Clark, Law Offices of Pamela Dale, Anchorage, for the Appellant.
    Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Daniel R. Brodigan was convicted of misdemeanor driving while intoxicated in 2003. Because Brodigan had six prior convictions for this offense, he faced a mandatory minimum sentence of 360 days’ imprisonment under AS 28.36.030(b)(1)(F). But Brodigan argued that five of his prior convictions were constitutionally invalid and that, for this reason, these five convictions should not be counted when determining his mandatory minimum sentence.

The district court held that, whatever the potential flaws in Brodigan’s prior convictions, Brodigan had no right to attack those prior convictions in connection with his sentencing for his current offense. See Brockway v. State, 37 P.3d 427, 429-430 (Alaska App.2001) (holding that a defendant generally has no right to collaterally attack prior convictions at the sentencing hearing for a new crime, even if the defendant’s sentence for the new crime is being enhanced on account of those prior convictions). Brodi-gan now appeals the district court’s ruling.

For the reasons explained here, we conclude that Brodigan failed to present any reason to doubt the constitutional validity of his prior convictions. Thus, regardless of whether Brodigan would have been entitled to attack his prior convictions if he had presented some evidence that these convictions were constitutionally invalid, the district court in this case could properly refuse to hear Brodigan’s claims.

Brodigan’s argument

Brodigan argues that his DWI convictions from 1974 through 1980 are invalid because those prosecutions were brought under an unconstitutional statute. Relying on the Alaska Supreme Court’s decision in Crutchfield v. State, 627 P.2d 196 (Alaska 1980), Brodigan asserts that the version of the Alaska DWI statute that was in effect between 1974 and 1980 was unconstitutionally vague, at least in part. Brodigan further asserts that, because the written judgements in his five prior eases do not affirmatively specify that those prosecutions were not pursued under the unconstitutionally vague provision of the DWI law, we must now conclusively presume that those five prior convictions were premised on the unconstitutional part of the law.

To explain why we reject Brodigan’s arguments, we must first examine the supreme court’s decision in Crutchfield.

The Alaska Supreme Court’s decision in Crutchfield

In Crutchfield, our supreme court held that one clause of an administrative regulation implementing Alaska’s DWI statute was unconstitutionally vague.

At the time that Crutchfield was litigated, Alaska’s DWI statute forbade a person from operating a motor vehicle if they were “under the influence of intoxicating liquor, [or] depressant, hallucinogenic or stimulant drugs or narcotic drugs as defined in AS 17.10.230(13) and AS 17.12.150(3)”. The defendant in Crutchfield was prosecuted for operating a motor vehicle under the combined influence of alcohol and one of the depressant, hallucinogenic, or stimulant drugs codified in AS 17.12.150(3).

The first three paragraphs of AS 17.12.150(3) listed specific substances and chemicals that were declared to fall within the category of “depressant, hallucinogenic or stimulant” drugs. But the fourth paragraph of the statute, AS 17.12.150(3)(D), authorized the commissioner of health and social services to enact regulations expanding this category of regulated substances if the commissioner found that additional substances had a potential for abuse because of their depressant, stimulant, or hallucinogenic effect.

Exercising this authority, the commissioner enacted 7 AAC 32.010(b), a regulation that expanded the category of depressant, hallucinogenic, or stimulant drugs. Under this regulation, the list of controlled substances was declared to include “any combination of depressant, stimulant, or hallucinogenic drugs, not listed by name or trade name in this chapter [i.e., 7 AAC 32] that is of a composition substantially similar to any of the drugs or substances listed in this chapter.” (Emphasis added)

The defendant in Crutchfield was prosecuted based on evidence that he had consumed alcoholic beverages and had ingested the drug tranxene — a drug that had been prescribed for him by his physician. Tranxene was nowhere listed as a regulated substance in the, statutes or the regulations, but the State presented expert testimony at Crutch-field’s trial that tranxene was of a substantially similar composition to valium — -a drug that was specifically listed. The State therefore contended, based on the “substantially similar composition” language of 7 AAC 32.010(b), that it was illegal for a person to operate a motor vehicle while under the influence of tranxene (either alone or in combination with alcohol).

The supreme court held that the phrase “of a composition substantially similar to any of the drugs or substances listed in this chapter” was unconstitutionally vague because it failed to give people reasonable notice of what substances were regulated or prohibited:

[M]ost people are not familiar with scientific technology and molecular chemistry.... The drug tranxene was given to Crutchfield by his physician. He had no notice that [tranxene] was a drug whose use while driving was prohibited under AS 28.35.030. Moreover, he had no way of discovering the prohibited character of the drug until [he heard the] expert testimony at [his] trial indicating] that it had a composition similar to valium, a drug specifically prohibited by regulation. Under these circumstances, it appears that Crutchfield could not reasonably understand that his contemplated conduct [i.e., operating a motor vehicle after ingesting tranxene] was prohibited.

Crutchfield, 627 P.2d at 200.

The supreme court therefore held that the challenged regulation, Y AAC 32.010(b), was unconstitutionally vague. And because the regulation was unconstitutional, the court declared that “Crutchfield’s conviction, to the extent that it [was] based on [that] regular tion ”, was unlawful. (Emphasis added)

Because Crutchfield’s jury returned a single verdict finding him guilty of driving “under the influence of alcohol and/or stimulant, depressant or hallucinogenic drugs”, the supreme court was unable to determine whether the jury’s decision was based on a finding that Crutchfield was impaired by the ingestion of alcohol, or by the ingestion of tranxene, or both. The court therefore reversed Crutchfield’s conviction — but the court allowed the government to retry Crutchfield on the theory that Crutchfield was impaired by his consumption of alcoholic beverages alone.

Brodigan’s argument concerning the meaning of Crutchfield

As just explained, Crutchfield holds that a defendant can not fairly be expected to know what chemical substances are “substantially similar” to the controlled substances expressly listed in the pertinent statutes and regulations — and thus, a regulatory clause that purported to include all substantially similar substances was unconstitutionally vague.

The supreme court reversed Crutchfield’s conviction because the court could not determine whether the jury thought that Crutch-field’s ability to operate a motor vehicle was impaired by the consumption of alcohol, or the ingestion of tranxene (a non-listed substance), or both. But the supreme court did not invalidate the DWI statute as a whole; the court only invalidated prosecutions brought under the offending clause of the regulation. This is obvious from the supreme court’s disposition of Crutchfield’s case: the court remanded the case to the district court for a new trial based on the State’s alternative theory of impairment (impairment based solely on alcohol consumption).

Examination of the reported case law suggests that prosecutions under the offending regulatory clause were quite rare. We are aware of no other case in which a DWI defendant was charged with impairment arising from ingestion of a non-listed controlled substance.

Indeed, when we examine the written complaints that initiated Brodigan’s five challenged DWI prosecutions, we see that all five complaints alleged that Brodigan drove “while under the influence of intoxicating liquor”. Brodigan presented no evidence to the district court suggesting that he was ever prosecuted for DWI based on an impairment allegedly arising from his ingestion of a non-listed controlled substance. In other words, Brodigan has presented nothing to suggest that the supreme court’s holding in Crutch-field undermines the validity of any of his prior convictions.

Nevertheless, Brodigan argues that we must conclusively presume that all five of his prior convictions are invalid under Crutch-field — that he was prosecuted each time for an impairment that stemmed from ingestion of a non-listed substance. Brodigan points out that the five written judgements merely state that he was convicted of violating AS 28.35.030, without specifying the theory of prosecution. Brodigan argues that, because these judgements fail to expressly disclaim any reliance on the “non-listed but similar substance” theory that was struck down in Crutchfield, we must conclusively presume that all five of these prior prosecutions were pursued under this invalid theory.

We use the phrase “conclusively presume” to describe Brodigan’s argument because Brodigan asserts that a sentencing judge can consider nothing other than the judgement itself when the judge tries to determine the basis of a prior conviction. Thus, even though all of the complaints in Brodigan’s prior cases specify “intoxicating liquor” and make no mention of controlled substances (listed or otherwise), Brodigan insists that we must ignore these documents (and any other available information about those five eases), and that we must focus instead solely on the generic citation to the statute (AS 28.35.030) contained in the written judgements.

Brodigan’s suggested rule makes little sense and would lead to unfair results. The supreme court’s decision in Crutchfield affected only a very small number of DWI prosecutions — those in which the government relied on the theory that the defendant was impaired from ingesting an unlisted controlled substance. The ruling left the great majority of DWI convictions intact. Yet Brodigan would have us declare, as a matter of law, that most (if not all) DWI convictions entered before Crutchfield are constitutionally invalid because the judges who issued those judgements did not think to address an issue (impairment arising from ingestion of an unlisted substance) that was not presented in their case.

Brodigan argues that his approach to this problem is required by prior decisions of this Court — decisions in which we held that, when a court assesses whether a defendant’s prior conviction should be deemed a prior felony conviction for purposes of Alaska’s presumptive sentencing laws (see AS 12.55.145(a)(1)(B)), or whether a defendant’s prior conviction for DWI or breath-test refusal should be deemed a prior conviction for purposes of sentence enhancement in a DWI or breath-test refusal prosecution (see AS 28.35.030(r)(4) and AS 28.35.032(t)(2)), the sentencing court should not conduct an inquiry into the particular facts of the prior case but should instead simply examine the elements of the prior offense to see whether those elements are sufficiently similar to the elements of a pertinent crime defined by Alaska law.

But in these, prior decisions, we were applying the tests specified by the legislature in AS 12.55.145(a)(1)(B) and AS 28.35.030(r)(4) — tests that explicitly hinge on the statutory definition of an offense rather than on the specific facts of a particular defendant’s prior case. Application of Crutchfield demands a different, fact-specific test. As we explained above, the supreme court did not strike down Alaska’s DWI law in Crutchfield. Rather, the supreme court declared that that law could not eonstitutionally be applied to a defendant whose impairment arose from ingestion of a non-listed substance. Thus, to determine whether Crutchfield undermines the validity of a DWI conviction, one must know and evaluate the facts of that particular case.

Brodigan presumably knows the facts of his prior cases, and knows whether the supreme court’s ruling in Crutchfield potentially applies to those prior cases. But Brodigan has never asserted that he himself was prosecuted for ingestion of a non-listed substance. Rather, he asks us to presume, as a matter of law, that his five prior convictions are all invalid under Crutchfield — and he asks us to prohibit the State from presenting any information about those five prior eases, thus foreclosing the sentencing court from finding out whether, the Crutchfield decision had any relevance at all to those prior DWI prosecutions.

Brodigan’s argument ignores the presumption of regularity that attaches to a final judgement. As we explained in Jewel v. State, 851 P.2d 1365 (Alaska App.1993), if a court has subject-matter jurisdiction over a criminal prosecution and personal jurisdiction over the defendant, “every act [of the court] is presumed to have been rightly done until the contrary appears”. Here, Brodi-gan is challenging the validity of criminal judgements that were entered between 24 and 30 years ago. Because of society’s interest in the finality of judgements, the law presumes the validity of the judgements and imposes the burden on the party raising the challenge.

In analogous circumstances, when defendants have collaterally challenged their convictions, our supreme court has placed the burden on those defendants to produce evidence tending to prove the invalidity of their convictions. See Department of Public Safety v. Fann, 864 P.2d 533 (Alaska 1993), a driver’s license revocation case where the defendant attacked the validity of a prior conviction that was being used to enhance the term of his driver’s license revocation. The supreme court held that the defendant had the burden, not just of producing some evidence that the prior conviction was constitutionally flawed, but of proving that flaw by a preponderance of the evidence.

Moreover, Brodigan’s position has little to recommend it from the perspective of the fair administration of justice. If the supreme court’s decision in Crutchfield has no application to the facts of Brodigan’s prior DWI prosecutions, then it is neither unfair nor improper to allow the sentencing court to count those prior convictions when the court evaluates Brodigan’s mandatory minimum sentence under AS 28.35.030(b). Nor is it unfair to require Brodigan to affirmatively present some good reason to believe that the Crutchfield decision is relevant to his prior convictions.

For these reasons, we reject Brodigan’s contention that his five prior convictions must all be conclusively presumed to rest on an unconstitutional basis. Rather, even assuming for purposes of argument that Brodi-gan would have the right to attack his prior DWI convictions if he could establish a constitutional flaw in those convictions, we hold that it was Brodigan’s burden to present some evidence that his prior convictions were constitutionally flawed.

(We are using the term “some evidence” in the technical sense of “evidence which, when viewed in the light most favorable to the defendant, is sufficient to support a finding in the defendant’s favor ... on each element of the [defendant’s claim]”. We do not reach the further question of whether, had Brodi-gan presented some evidence that his prior convictions were constitutionally invalid, he would bear the ultimate burden of proof on this issue.)

Brodigan failed to meet this burden of production. Brodigan relied on the supreme court’s decision in Crutchfield, but he did not present any evidence that Crutchfield casts doubt on the validity of his prior DWI convictions — i.e., no evidence that he was prosecuted under the invalid “substantially similar composition” clause of the regulation. We therefore hold that the district court could rely on Brodigan’s prior convictions when assessing Brodigan’s mandatory minimum sentence.

Conclusion

The judgement of the district court is AFFIRMED.

      . AS 28.35.030(a). '

      . The complete text of former AS 28.35.030(a) is found in Crutchfield, 627 P.2d at 197 n. 1.

      . Quoted in Crutchfield, 627 P.2d at 198.

      . Crutchfield, 627 P.2d at 197, 200.

      . Id. at 198.

        . Id. at 201.

      . Id. at 199.

      . Id. at 201.

      . See, e.g., Burnette v. Anchorage, 823 P.2d 10, 12 (Alaska App.1991); Walsh v. State, 677 P.2d 912, 915-16 (Alaska App.1984).

      . Jerrel, 851 P.2d at 1372, quoting United States v. Manthei's Bondsmen, 2 Alaska 459, 466 (D.Alaska 1905), and citing Wright v. State, 501 P.2d 1360, 1372 (Alaska 1972); Houston-Hult v. State, 843 P.2d 1262, 1266 (Alaska App.1992).

      . Fann, 864 P.2d at 538.

      . Compare Hamilton v. State, 59 P.3d 760, 770 (Alaska App.2002), using this same test to evaluate whether a defendant is entitled to a jury instruction on a proposed defense.


text:
    Christian C. McGEE, Appellant, v. STATE of Alaska, Appellee.
    No. A-8452.
    Court of Appeals of Alaska.
    July 30, 2004.

      Colleen A. Libbey, Libbey Law Office, Anchorage, for the Appellant.
    John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Christian C. McGee appeals his conviction for third-degree criminal mischief (damaging someone else’s property in an amount of $500 or more). McGee contends that this charge should have been dismissed with prejudice because he was not brought to trial within the .time limits of Alaska Criminal Rule 45 (our speedy trial rule). McGee further contends that his trial judge committed error by refusing to instruct the jury on the defense of self-defense.

In addition, McGee challenges his sentence — both on the ground that it is excessive and on the ground that the judge made erroneous rulings on four proposed mitigating factors.

For the reasons explained here, we affirm McGee’s conviction and his sentence.

McGee’s proposed defense of self-defense

On the evening of October 27-28, 2001, McGee’s mother, Donna McGee, went to the Elks Lodge to socialize. There she met Wesley Alexander. Ms. McGee brought Alexander home to her trailer, where the two of them engaged in sexual relations.

Around two o’clock that morning, McGee came to the trailer and pounded on the door. Once inside the trailer, McGee punched his mother in the face and called her a whore. Then McGee and Alexander began fighting. According to both Alexander’s and McGee’s testimony, Alexander had McGee in a headlock, but McGee was able to slip loose and leave the trailer.

McGee testified that, as he was leaving the trailer, Alexander (who was still naked, according to McGee) told McGee that he was “going to run [his] punk ass over”. Alexander then remained in the trailer and telephoned the police. While Alexander was doing this, McGee went outside to where Alexander’s truck was parked. McGee circled the vehicle and, using a shovel, proceeded to break all of the truck’s windows one by one. McGee claimed that he did this in order to prevent Alexander from using the truck to run him over. The State claimed that McGee did this because he was angry at his mother and at Alexander.

McGee’s attorney asked the trial judge, District Court Judge Joel H. Bolger (sitting pro tempore in the superior court), to instruct the jury that McGee’s destruction of the truck windows was potentially justifiable as an act of self-defense under AS 11.81.330(a) (“use of non-deadly force in defense of self’). But Judge Bolger concluded that McGee had not presented a prima facie case of self-defense with respect to this charge. The judge suggested that McGee may not have met the requirement of reasonably fearing imminent danger. However, the judge ultimately ruled that, because the self-defense statute refers to the use of force “upon another” (ie., upon a person), it would be improper to instruct the jury on self-defense with regard to the criminal mischief charge.

McGee was also being tried on charges of assault for hitting his mother and for hitting Alexander. Judge Bolger instructed the jury on self-defense with respect to the assault charge involving Alexander. The jury acquitted McGee of the assault charge involving Alexander, and they were unable to reach a verdict with regal'd to the assault charge involving McGee’s mother. That latter charge was ultimately dismissed.

Even though Judge Bolger refused to instruct the jury that McGee’s act of breaking the truck windows was potentially justifiable as self-defense, the judge did instruct the jury that McGee’s actions were potentially justifiable under the defense of necessity, AS 11.81.320(a). McGee argued this theory to the jury (unsuccessfully).

On appeal, McGee contends that the trial judge should have instructed the jury on self-defense with regard to the criminal mischief charge. McGee’s first hurdle is that the self-defense statute, AS 11.81.330(a), apparently only applies when a defendant uses force against another person, not when a defendant uses force against an object. The statute reads (with emphasis added):

A person may use nondeadly force upon mother when and to the extent [that] the person reasonably believes [that this use of force] is necessary for self defense against what the person reasonably believes to be the use of unlawful force by the other[.]

A few cases from other jurisdictions have been willing to recognize self-defense as a potential justification for non-assaultive crimes (e.g., theft of a car to escape an imminent assault, or damage to property that results from -the defendant’s use of defensive force upon a person), but the traditional view is that “necessity” is the applicable theory of defense in such circumstances. See Wayne R. LaFave, Substantive Criminal Law (2nd ed.2003), § 10.4(a), Vol. 2, p. 143, n. 2.

We leave resolution of this issue for another day — because we conclude that, even if self-defense is a potential defense to a charge of criminal mischief, the evidence in McGee’s case failed to establish any reason to believe that McGee faced an imminent threat of injury.

A self-defense instruction is proper if there is some evidence to support a finding in the defendant’s favor on each element of self-defense. One of the elements of self-defense is that the defendant reasonably perceived a threat of imminent injury.

Here, even when we view the evidence in the light most favorable to McGee’s request for a self-defense instruction, McGee could not reasonably have believed that he faced imminent attack. According to McGee, Alexander threatened to run him over with his truck. But Alexander had no obvious means of carrying out this threat unless and until he left the trailer and got into his vehicle. And there was no evidence that Alexander made any move to leave the trailer, or that Alexander did anything else to put this purported threat in motion. (Instead, it was McGee who left the trailer, went to the truck, and then proceeded to break the windows one by one.)

On this record, the trial judge did not commit error when he declined to instruct the jury on self-defense with regard to the charge of criminal mischief.

McGee’s speedy trial claim

McGee’s trial was delayed several times because the State had trouble locating Alexander and procuring his presence. McGee’s attorney objected to some of these continuances, arguing that the extra time should count against the State under Alaska’s speedy trial rule, Criminal Rule 45. But when the judge refused to count the time against the State, McGee went along with the continuances. He never filed a motion to dismiss the charges against him under Rule 45.

Now, on appeal, McGee challenges the trial court’s rulings on these continuances. He argues that the time should have been counted against the State, and that therefore the time for holding his trial expired before his trial began.

But McGee’s failure to ask the trial court to dismiss the charges is fatal to his claim on appeal. Criminal Rule 45(f) states that the “[fjailure of a defendant represented by counsel to move for dismissal of the charges under [this rule] prior to [the defendant’s] plea of guilty or [the defendant’s] trial shall constitute [a] waiver of the defendant’s rights under this rule.”

Because McGee went to trial and never sought dismissal of the charges under Rule 45, he is not entitled to seek dismissal of those charges now.

McGee’s sentencing arguments

McGee was a second felony offender for presumptive sentencing purposes. He had been convicted of second-degree assault in 2000. In that prior offense, McGee and four other men beat up and robbed a hitchhiker that they had picked up on the way from Valdez to the Talkeetna Bluegrass Festival. At the end of the robbery, the hitchhiker was thrown down a steep embankment near the highway.

As a second felony offender, McGee faced a 2-year presumptive term for the class C felony of third-degree criminal mischief. Judge Bolger found that the State had proved one aggravating factor: AS 12.55.155(c)(20) — that McGee was on felony probation at the time he committed the current offense. Based on this aggravating faetor, Judge Bolger increased McGee’s presumptive term by 6 months; he sentenced McGee to 2½ years’ imprisonment.

McGee proposed four different mitigating factors under AS 12.55.155(d) at his sentencing, and Judge Bolger rejected each of these mitigators. On appeal, McGee argues that Judge Bolger was mistaken in these rulings. To prevail on appeal, McGee must show that the judge’s rulings were clearly erroneous.

McGee proposed mitigator (d)(3) — that he “committed the offense under some degree of duress, coercion, threat, or compulsion ... which significantly affected [his] conduct”. McGee argued that his destruction of the truck windows was provoked by Alexander’s threat to run him over.

However, Judge Bolger rejected this assertion about McGee’s motivation for committing the crime. Based on the evidence presented at McGee’s trial, Judge Bolger concluded that McGee broke the windows of Alexander’s truck because he was enraged at Alexander for having sexual relations with his mother. This conclusion finds support in the record. For this reason, Judge Bolger’s rejection of the proposed mitigating factor was not clearly erroneous.

McGee also proposed mitigating factor (d)(7), which required proof that his conduct was provoked by Alexander. However, as we have just explained, Judge Bolger found that McGee’s conduct was motivated by his anger at discovering that Alexander had slept with his mother. Alexander’s act of sexual relations with McGee’s mother was not “provocation” within the meaning of miti-gator (d)(7) because this conduct was not directed at McGee. As we explained in Roark v. State, 758 P.2d 644 (Alaska App.1988),

In common usage, “to provoke” means: “1. to excite to some action or feeling 2. to anger, irritate, or annoy 3. to stir up (action or feeling) 4. to call forth; evoke.” Webster’s New World Dictionary (2nd College ed.1980). This definition plainly suggests something more direct and purposive than a mere causal link between the person who provokes a response and the action or feeling that is provoked. When the victim directs actions or words at the defendant for the express purpose of eliciting a response, it is clear that the defendant may be said to have been “provoked”. Wflien the victim’s conduct is neither directed at the defendant nor intended to influence the defendant’s actions or emotions, however, the mere fact that it has the incidental effect of prompting the defendant to react, thereby contributing in a causal sense to the commission of the crime, would not in itself justify a finding of provocation.

Id. at 647.

McGee proposed mitigator (d)(4), which applies when “the conduct of a youthful defendant was substantially influenced by another person more mature than the defendant”. McGee argued that he had been provoked to commit his crime by the actions of his mother (to wit, her decision to engage in sexual relations with Alexander). But miti-gator (d)(4) applies to situations in which a more mature person solicits or otherwise prevails on a youthful, less mature defendant to engage in criminal behavior. This miti-gator does not apply to the facts of McGee’s case.

Finally, McGee proposed mitigator (d)(9) — that his conduct was among the least serious included within the definition of third-degree criminal mischief. McGee argued that his destruction of the truck windows was a spur-of-the-moment reaction to a disturbing situation, and he also pointed out that the value of the destroyed property (approximately $2100) was at the lower end of the range for his offense ($600 to $100,000).

Judge Bolger acknowledged that the amount of damage was toward the lower end of the statutory range, but he also concluded that McGee had acted intentionally, angered when he discovered that his mother was sleeping with a man whom he did not know. The judge found that McGee had not shown, by clear and convincing evidence, that this conduct was among the least serious within the definition of the offense. We conclude that the judge’s finding is not clearly erroneous.

McGee’s final argument on appeal is that Judge Bolger was clearly mistaken in increasing McGee’s time to serve from the presumptive term of 2 years’ imprisonment to an enhanced term of 2½ years’ imprisonment. Judge Bolger imposed this additional 6 months based on the aggravating factor that McGee was on felony probation at the time of this offense, and based on the serious nature of McGee’s prior felony assault conviction. Having independently reviewed the record, we conclude that Judge Bolger was not clearly mistaken in adding six months to McGee’s presumptive term.

Conclusion

The judgement of the district court is AFFIRMED.

      . AS 11.46.482(a)(1).

      . Ha v. State, 892 P.2d 184, 190 (Alaska App.1995).

      . Id. at 190-91.

      . AS 12.55.125(e)(1).

      . See Lepley v. State, 807 P.2d 1095, 1099 n. 1 (Alaska App.1991).

      . See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).