text:
    COOK INLET KEEPER, Appellant, v. STATE of Alaska, Office of Management and Budget, Division of Governmental Coordination, Appellee, Forest Oil Corporation, Intervenor-Appellee.
    No. S-9730.
    Supreme Court of Alaska.
    May 3, 2002.

      Michael J. Frank and Rebecca L. Bernard, Trustees for Alaska, Anchorage, for Appellant.
    Lisa A. Weissler and Kirsten Swanson, Assistant Attorneys General, and Bruce M. Botelho, Attorney General, Juneau, for Ap-pellee State of Alaska.
    Kyle W. Parker and David J. Mayberry, Patton Boggs, LLP, Anchorage, for Interve-nor-Appellee Forest Oil Corporation.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

Alaska law requires all projects affecting coastal areas to be reviewed for consistency with the Alaska Coastal Management Program. The state issued a final consistency determination approving the installation and operation of a new offshore exploratory drilling platform in the Cook Inlet over the Redoubt Shoals. In finding the project consistent with the Coastal Program, the state excluded from its consistency review the platform's proposed discharges of various wastes-discharges that were already authorized under a general federal permit covering exploratory drilling discharges throughout the upper Cook Inlet area. Because the state had a statutory duty to conduct a project-specific consistency review encompassing all activities for which the Osprey project needed a permit, including a general permit that already existed, we reverse and remand for a new consistency determination.

II. FACTS AND PROCEEDINGS

The Alaska Coastal Management Act requires the state to establish and enforce the Alaska Coastal Management Program (Coastal Program), which protects Alaska's coastal areas by ensuring that commercial and industrial development is consistent with Alaska's environmental and cultural interests. Under the Act, state agencies can authorize activities involved in a project having significant impacts in Alaska's. coastal areas only if the state determines that the project is consistent with the applicable Coastal Program standards. The Alaska Governor's Office of Management and Budget is responsible for determining whether projects requiring approval from two or more state resource agencies are consistent with the Coastal Program; within that office, the responsibility is assigned to the Division of Governmental Coordination. The Alaska Coastal Policy Council promulgates the Coastal Program's regulations and hears petitions for review of consistency determinations.

In May 1998 Forcenergy Inc.-now Forest Oil Corporation-filed with the state a project questionnaire, permit applications, and supporting information seeking to install an exploration platform over the Redoubt Shoals in Cook Inlet to- conduct exploratory drilling for oil and gas; the platform would later be converted to a production operation if Forest Oil discovered sufficient oil and gas reserves. Forest Oil named the proposed platform "the Osprey," described it as a new project, and stated that the company did not "currently have any State, federal, or local permits related to the activity." Forest Oil noted that the platform would discharge wastewater from industrial or commercial operations, that it would use a disposal system, that the wastewater discharge would exceed 500 gallons per day, and that the company expected to request a mixing zone permit-a permit option when discharges exceed Alaska water quality standards. It also listed as pending a United States Environmental Protection Agency (EPA) discharge permit.

The state initiated a ninety-day Coastal Program consistency review for the Osprey project by letter dated August 26, 1998. The state's letter initiating the review listed seven permits within the seope of the Osprey project's consistency review process, including an individual federal wastewater discharge permit. The letter also stated that .the EPA was in the process of finalizing a general wastewater permit that was expected to cover all discharges into the Cook Inlet by various exploratory drilling operations and that Forest Oil's individual wastewater permit application would be withdrawn in favor of the general permit if the general permit was issued first. © 2

Cook Inlet Keeper, which describes itself as "a member-supported nonprofit organization dedicated to protecting habitat and water quality in the Cook Inlet watershed," submitted comments during the public comment period of the Osprey project's consistency review process. The public comment period ultimately ended on July 80, 1999. By then, the EPA had finalized and issued its general permit authorizing specified waste-water discharges for existing and future exploratory drilling projects throughout state waters within the upper Cook Inlet. The general permit had undergone its own consistency review process, which culminated in the state's issuance of a final consistency determination finding the general permit to be consistent with the Coastal Program.

In its comments on the Osprey project's consistency review, Cook Inlet Keeper acknowledged that the EPA's general wastewa-ter permit covered the Osprey's proposed operations." But Cook Inlet Keeper asserted that state law-specifically, the standards adopted under the Alaska Coastal Management Act-nonetheless provided greater environmental protection.. Cook Inlet Keeper urged the state to prohibit the Osprey from discharging toxic wastes created during exploration because discharging the wastes would not "maintain or enhance" habitat and so would violate the Coastal Program's habitat standards. Cook Inlet Keeper further asserted that the Osprey platform would be installed in an area of significant fresh water inputs and so should be held to the habitat standard's specific criterion for estuaries, which broadly requires avoidance of toxic waste discharges. Alternatively, Cook Inlet Keeper argued, the offshore criterion of the habitat standard would prohibit the Osprey from discharging toxic wastes because fisheries would not be maintained or enhanced. Cook Inlet Keeper also expressed concerns about the Osprey's potential interference with whale migration and feeding areas.

On September 2, 1999, about a month after the public comment period closed, the state issued its proposed consistency determination for the Osprey project. The state found the Osprey project to be consistent with the Coastal Program, provided that certain conditions were met. But the state specifically noted that it had excluded the Osprey's wastewater discharge activities from the project's consistency review because the EPA's recently issued exploratory discharge general permit already covered those activities:

Discharge of water-based drill cuttings and muds, wastewater discharges, including gray water, treated sewage and treated effluent from the rig oil/water separator will be regulated by the U.S. Environmental Protection agency (EPA) Cook Inlet National Pollutant Discharge Elimination System (NPDES) General Permit. This general permit has been previously reviewed for consistency with the [Coastal Program], so activities associated with the general permit are not part of [the Osprey] consistency review.

In September 1999 the state issued a final consistency determination for the Osprey project that essentially conformed to its earlier proposed consistency finding. Cook Inlet Keeper appealed to the superior court; Forest Oil intervened as an appellee. The superior court affirmed the consistency determination, concluding that the state properly excluded the Osprey's exploration-related discharges from the project's consistency review process because those activities had already been considered and found to be consistent with the Coastal Program in the state's consistency review that occurred during the EPA's general permit process.

Cook Inlet Keeper appeals, arguing that the state impermissibly omitted the Osprey's wastewater discharge activities from the project's consistency review.

III. DISCUSSION

A. Standard of Review

When we consider an administrative appeal from a decision rendered by the superior court acting as an intermediate appellate tribunal, we review the administrative agency's determination directly. Because our decision in this appeal turns on issues of statutory interpretation and related legal questions concerning waiver and estoppel, we apply our independent judgment.

B. Exclusion of Federally Permitted Toxic Discharges from the Osprey Project's Consistency Review

1. Statutory and regulatory framework

In Hammond v. North Slope Borough, we described the relevant effects of the Alaska Coastal Management Act as follows:

The Alaska Coastal Management Act, AS 46.40.010-.210, provides for the establishment of an Alaska Coastal Management Program (ACMP), which is partly designed to ensure that the development of industrial and commercial enterprises is consistent with the environmental and cultural interests of the state. AS 46.40.020. The Act provides that the ACMP is to consist of standards issued by a Coastal Policy Council and district management programs established by coastal resource districts. AS 46.40.0830. The current ACMP establishes an Office of Coastal Management which must, among other things, "review state and federal actions for consistency with the Alaska coastal management program, subject to council review." 6 AAC 80.030(a2)(B). The regulations also provide that a state agency may authorize uses or activities in the coastal area under its statutory authority only if "the agency finds that the use or activity is consistent with the applicable district program and the standards contained in this chapter." 6 AAC 80.010(b). ...
The ACMP consists of two elements: the local district programs and the state standards found in 6 AAC 80.040.120. The state standards are extremely protective of the environment. For example, in areas in which there is a "substantial possibility that geophysical hazards may occur," state agencies must ensure that measures have been taken to minimize property damage and protect against loss of life before development of the area may begin. 6 AAC 80.050. State agencies must also "recognize and assure opportunities for subsistence usage of coastal areas and resources." 6 AAC 80.120.... With regard to the habitats in coastal areas, they "must be managed so as to maintain or enhance the biological, physical, and chemical characteristics of the habitat which contribute to its capacity to support living resources." 6 AAC 80.130(b).... Agencies must also "discourage activities which would decrease the use of barrier islands by coastal species, including polar bears and nesting birds." 6 AAC 80.130(c)(5).
These requirements, however, are not absolute. .. Conflicting uses and activities may be allowed by the district or appropriate state agency if;
(1) there is a significant public need for the proposed use or activity;
(2) there is no feasible prudent alternative to meet the public need for the proposed use or activity ...;
(3) all feasible and prudent steps to maximize conformance with the standards ... will be taken.
6 AAC 80.130(d)....
Thus, there are two alternative methods a state agency may use. Either the agency must find that all the specific environmental protections have been met or, if there will be conflicting uses, the agency must find that the three pronged test delineated above has been satisfied.

2. Analysis

Cook Inlet Keeper asserts that the state violated this process by completely excluding the Osprey's wastewater discharge activities from the project's consistency review process. It maintains that when a project like the Osprey platform undergoes a consistency review, the state must evaluate all licensed or permitted activities involved in the entire project, regardless of whether individual permits have already been issued.

According to Cook Inlet Keeper, the entire Osprey exploratory platform is a single project encompassing all the activities associated with the Osprey. In particular, Cook Inlet Keeper contends, the Osprey's wastewater discharges are part of the Osprey project because they are reasonably foreseeable impacts of the platform's construction and operation.

The state and Forest Oil respond that the EPA's general permit authorizing exploratory drilling discharges covers all oil and gas exploration in the Cook Inlet-including the Osprey's exploration activities. Because the general permit underwent its own consistency review process and was found to be consistent with the Coastal Program, they reason, the consistency review process for the Osprey project had no need to consider these already-permitted activities.

But Cook Inlet Keeper answers that even though the state determined the EPA's general permit to be consistent with the Coastal Program, the state has not conducted a specific consistency review of the Osprey's discharge activities in the particularized context of the Osprey project; this project-specific evaluation, Cook Inlet Keeper insists, is mandated by law and necessary as a practical matter to enable the state to accurately assess the environmental consequences of the Osprey project as a whole.

Cook Inlet Keeper's arguments have merit. In contending that the issuance of a general permit for a given activity exempts that activity from project-specific review in future projects, the state mistakenly conflates two separate processes. As the Alaska Coastal Management Act's implementing regulations make clear, the Act's consistency review requirements apply independently of, and in addition to, any requirements that attach to the issuance of a permit authorizing a discrete activity:

In authorizing uses or activities in the coastal area under its statutory authority, each state agency shall grant authorization if, in addition to finding that the use or activity complies with the agency's statutes and regulations, the ageney finds that the use or activity is consistent with the applicable district program and the standards contained in this chapter.

By distinguishing consistency review from compliance with ageney permitting requirements, this regulation strongly suggests that an activity generally found to meet permitting requirements cannot, by mere virtue of already having been generally permitted, evade inclusion in a subsequent consistency review process that is statutorily mandated for a specific new project in which that activity will occur.

Added support for this proposition is found in statutory provisions requiring project-specific consistency review. Under AS 44.19.145(a)(11), the Governor's Office of Management and Budget must conduct a consistency review and make a consistency determination "when a project requires a permit, lease, or authorization from two or more state resource agencies." A consistency review also must be performed when a project requires a permit, lease, or authorization from only a single agency; but in such cases the issuing agency is responsible for coordinating the project's consistency review: "If a consistency review is not subject to AS 44.19.145(a)(11) because the project for which a consistency review is made requires a permit, lease, or authorization from only one state agency, that state ageney shall coordinate the consistency review of the project."

Read together, these statutory provisions unequivocally establish that consistency review must be a project-specific process. And this point becomes even clearer when these provisions are read in conjunction with the above-quoted regulation requiring the state to determine consistency "in addition to finding that the use or activity complies with the agency's statutes and regulations" that govern issuance of permits.

The statutory definition of "consistency review" further reinforces the project-specific nature of the consistency review process; and this definition also clarifies that each consistency review determination must encompass the entire project: " '[Clonsistency review means the evaluation of a proposed project against the standards adopted by the council under AS 46.40.040 and a district coastal management program approved by the council under AS 46.40.060." Regulations governing the Division of Governmental Coordination cement the latter point-that a consistency determination must encompass the entire project it covers-by broadly defining "project" to encompass any

activity or use that will be located in or may affect the coastal zone of this state and that is subject to consistency review under 16 U.S.C. 1456(c), or that requires the issuance of at least one state permit; "project" includes each phase of a project when a land or water activity is developed or authorized in discrete phases, and each phase requires a state decision regarding permits[.] []

And as Cook Inlet Keeper further correctly points out, additional, albeit less direct, support for the same point may be found in 6 AAC 50.050, which sets out two exclusive mechanisms for shorteutting the full consistency review process-categorical approval (subsection (b)) and general concurrence (subsection (c)). Neither of these shortcuts includes omitting from the seope of a particular project's consistency review process a project activity that happens to be preau-thorized under the terms of a general, area-wide permit.

Other provisions similarly underscore the importance of including within the seope of a project's consistency review all proposed project uses and activities for which permits are required, not just those for which permits have yet to be issued. For example, a state agency conducting a consistency review must . solicit comments from any "coastal resource district in which a project is proposed to be located or which may experience a direct and significant impact from a proposed project[.]" And AS 46.40.210(7)(C) includes within the definition of "use of direct and significant impact" any use or associated activity that "proximately contributes to a material change or alteration in the natural or social characteristics of a part of the state's coastal area and in which ... the use would, of itself, constitute a tolerable change or alteration of the resources within the coastal area but which, cumulatively, would have an adverse effect."

Moreover, in the analogous context of phased consistency review, it is noteworthy that the issuance of a permit or authorization based on a consistency review conducted at an early phase of a project does not exempt the permitted use or activity from further review. Even though AS 46.40.094 specifically allows the state discretion to segment projects into progressive phases and provides that each phase may undergo its own consistency review and permitting process, the statutory phasing mechanism expressly restricts this approach to situations in which each successive phase must undergo further discretionary review and the reviewing agency conditions its current consistency determination by requiring that a new consistency determination be made at each successive phase. The phasing statute thus assures repeated consistency review and gives no indication that the earlier consistency determination should truncate the presumably more comprehensive scope of each successive determination. To the contrary, as we expressly observed when we interpreted AS 46.40.094 in Kachemak Bay Conservation Society v. State, Department of Natural Resources, the statute's authorization of a phased consistency review process does not allow the state to avoid "thorough review of a project or its potential effects by artificially dividing the project," because it does not relieve the state "of its duty to take a continuing 'hard look at future development.... To the contrary, [the state] is obliged, at sach phase of development, to issue a ... conclusive consistency determination relating to that phase before the proposed development may proceed."

Just as with phased review under AS 46.40.094, then, the division of the Osprey project's actual permitting process into two distinct permitting segments-one federal process and one state process-should provide no occasion for an artificially segmented consistency review process in which neither consistency review comprehensively considers or finally determines the consistency of all permitted uses and activities included in the whole project at issue. For as we have observed on other occasions, "the more segmented an assessment of environmental hazards, the greater the risk that prior permits will compel [the state] to approve later, eavi-ronmentally unsound permits."

Despite the state's and Forest Oil's protests to the contrary, we find little danger of superfluity or inefficiency in requiring the Osprey's discharge activities to undergo two separate reviews for consistency with the Coastal Program. The two separate consistency reviews at issue here encompassed two separate projects. The first broadly focused on the consistency of the EPA general permit that authorizes various levels of discharges by exploratory platforms throughout the upper Cook Inlet region, while the second should have more specifically focused on the consistency of the activities encompassed by all necessary Osprey project permits-those already issued and those still to be issued. Nor do the terms of the general permit purport to exempt the Osprey project from a further, project-specific consistency review process. To the contrary, Part VI(K) of the EPA general permit expressly states that "Injothing in this permit must be construed to ... relieve the Permittee from any responsibilities :.. established pursuant to any applicable state law or regulation[.]"

To be sure, the general permit's review process covered much ground that ordinarily would have been covered by the Osprey project's individualized review process had the Osprey's review process included Forest Oil's discharge activities.. And by the same token, the favorable consistency determination given to the general permit certainly might have provided a strong foundation for evaluating the consistency of Forest Oil's proposed discharges in the context of the Osprey's project-specific review process. To this extent, then, the evidence presented in the earlier review and the state's evaluation of that evidence in its first consistency determination could have illuminated the latter process: the need for a second, project-specific review certainly would not have required the state to ignore the first or to redetermine issues that it had already fully considered. But on the other hand, the mere existence of an earlier consistency determination for the EPA's general permit could not by itself justify completely excluding the subject of wastewater discharge activities from the Osprey project's project-specific consistency review. Nor could it excuse the state from complying with its usual duty to take a hard look at the whole Osprey project and make an appropriately explained determination of the entire project's consistency with all relevant Coastal Program standards.

Because the Osprey's discharge activities unquestionably comprised part of the Osprey project, we hold that a complete consistency review for the project could not be conducted without considering those activities.

C. Waiver and Res Judicata/Collateral Estoppel ©

Forest Oil nonetheless protests that Cook Inlet Keeper either is barred by the doctrines of res judicata or collateral estop-pel from arguing for project-specific review or waived its right to raise this argument by failing to raise it below. Neither argument has merit.

Res judicata precludes subsequent litigation of a claim that could have been brought during a prior administrative or judicial adjudication that resulted in a final judgment. Here, as already noted above, the state conductéd a consistency review in connection with the EPA's general permitting process for Cook Inlet discharges; that review addressed a distinct "project" and had a markedly different scope than the specific project addressed in the state's separate consistency review of the Osprey project. As a practical and legal matter, Cook Inlet Keeper could not have litigated the proposed Osprey project's specific consistency with the Coastal Program in the procedural context of the general permit's consistency review. Moreover, Forest Oil identifies nothing from the record of the state's review process of the general permit that served timely notice on Cook Inlet Keeper or other interested parties that its consistency determination in that proceeding would not be subject to case-specific re-evaluation as part of the usual review process that would later be required for any newly proposed exploration project involving discharges covered by the general permit. '

Nor does Forest Oil point to any specific issue of fact or law that was actually and necessarily decided in the former review proceeding so as to collaterally estop Cook Inlet Keeper from raising any issues it sought to assert in the Osprey project's review proceedings. There are three necessary elements to a claim of collateral estop-pel:

(1) the issue decided in a prior adjudication was precisely the same as that presented in the action in question; (2) the prior litigation must have resulted in a final judgment on the merits; and (3) there must be "mutuality" of parties, Le., collateral estoppel may be invoked only by those who were parties or privies to the action in which the judgment was rendered.[]

Here, even assuming that Forest Oil satisfied its burden of establishing the second and third elements, it has failed to establish the first.

Forest Oil fares no better with its waiver argument. In Trustees for Alaska v. State, Dep't of Natural Resources, we stated that a party must meaningfully raise an issue in administrative proceedings so as to preserve it for appeal by alerting the agency to the party's position and contentions. Here, in soliciting public comment on the Osprey project, the state noted that, if the general permit was finally approved before the conclusion of the Osprey project's consistency review process, Forest Oil would rely on the EPA general discharge permit rather than on the project-specific permit it had requested.

By the time public comments were due, the EPA general permit had been finally approved. Responding to the state's request for comment, Cook Inlet Keeper's comment acknowledged that the general permit covered the Osprey platform's discharge activities but argued that the state had authority to apply more stringent state-law standards. The comment expressly noted the facial inconsistency between the Osprey project's discharge activities and the Coastal Program's general habitat standard. It went on to emphasize that the project's location would require compliance with the habitat standards governing estuarine and offshore areas. The comment further reminded the state that Forest Oil bore the burden of proving compliance with the applicable standards: "Regardless of the standard applied, the applicant carries the burden of showing compliance with the ACMP, and at a minimum, the applicant must make a conclusive showing of 'no harm' in order to prove the project will 'maintain' habitat and fisheries."

In our view, these comments easily sufficed to alert both the state and Forest Oil to Cook Inlet Keeper's contentions and position. True, they only implicitly asserted Cook Inlet Keeper's present contention. that Alaska law required a separate, project-specific consistency determination. But when it submitted its initial comment, Cook Inlet Keeper had no obvious need to advance a more elaborate argument on this point: before the Osprey project's public comment period closed, the state gave no express notice of its intent to completely omit the Osprey's discharge activities from the seope of the pro-jeet's consistency review determination. Given the apparently unprecedented nature of this omission, Cook Inlet Keeper can hardly be faulted for failing to predict the state's position.

Finding no ground to sustain Forest Oil's claims of res judicata, collateral estoppel, or waiver, we must vacate the final consistency determination and remand for a new consistency determination that considers the Osprey's discharge activities within the seope of the project's overall consistency review.

IV. CONCLUSION

For the foregoing reasons, we VACATE the Division of Governmental Coordination's Final Consistency Determination of September 14, 1999, and REMAND for a new consistency determination in keeping with this opinion.

      . AS 46.40.010-.210 (2000).

      . Hammond v. North Slope Borough, 645 P.2d 750, 761 (Alaska 1982).

      . See AS 46.40.094; AS 46.40.096, AS 46.40.210(3), (7); 6 AAC 80.010(b) (2000); see also Hammond, 645 P.2d at 761.

      . AS 44.19.145(a)(11); see also AS 46.40.094; AS 46.40.096; 6 AAC 50.030; Trustees for Alaska v. State, Dep't of Natural Res., 795 P.2d 805, 811 (Alaska 1990).

      . 6 AAC 50.010(1); 6 AAC 50.030(a). For simplicity's sake, this opinion will refer to the Division of Governmental Coordination as the state.

      . AS 46.40.040; AS 46.40.096; 6 AAC 50.370.

      . AS 46.03.100 (requiring a permit); 18 AAC 70.015 (listing permit options); 18 AAC 70.240 (providing mixing zones permit).

      . See 6 AAC 80.130(b).

      . See 6 AAC 80.130(c)(2).

      . See 6 AAC 80.130(c)(1).

      . Cook Inlet Keeper separately contends that the final consistency determination fails to address the violation of the habitat standard that would inevitably result from towing the Osprey platform from its construction site at Port Graham to its installation point on the Redoubt Shoals. But the platform's towing and installation have now been completed, and since Cook Inlet Keeper has failed to show that this issue is likely to recur and evade future review, the issue appears to be functionally moot. Cf. Smith v. Cleary, 24 P.3d 1245, 1251-52 (Alaska 2001).

      . N. Alaska Envtl. Ctr. v. State, Dep't of Natural Res., 2 P.3d 629, 633 (Alaska 2000).

      . Id. (statutory interpretation); State, Dep't of Commerce & Econ. Dev., Div. of Ins. v. Schnell, 8 P.3d 351, 359 (Alaska 2000) (res judicata); Wall v. Stinson, 983 P.2d 736, 739 (Alaska 1999) (collateral estoppel); Trustees for Alaska v. State, Dep't of Natural Res., 865 P.2d 745, 747-48 (Alaska 1993) (waiver).

      . 645 P.2d 750 (Alaska 1982).

      . Id. at 761-62 (internal emphasis omitted).

      . 6 AAC 80.010(b) (emphasis added).

      . AS 44.19.145(a)(11) (emphasis added). The full text of paragraph .145(a)(11) is as follows:
      (a) The [Office of Management and Budget] shall

      (11) on behalf of the state, all federal consistency determinations and certifications authorized by 16 U.S.C. 1456 (Sec. 307, Coastal Zone Management Act of 1972), and each conclusive state consistency determination when a project requires a permit, lease, or authorization from two or more state resource agencies.

      . AS 46.40.096(b) (emphasis added).

      . 6 AAC 80.010(b) (emphasis added).

      . AS 46.40.2106).

      . 6 AAC 50.990(22). Under 6 AAC 50.990(7), " 'consistency review' has the meaning given in , AS 46.40.210."

      . 6 AAC 50.050 provides:
      (a) The consistency review of a project will be expedited as provided in (b) or (c) of this section if the project meets the requirements of one of those subsections.
      (b) A project which requires one or more state or federal permits, each of which appears on the list published under (e) of this section listing permits which have been categorically approved by DGC as being consistent with the ACMP, is considered to have been conclusively determined by DGC to be consistent with the ACMP. A permit will be categorically approved if DGC determines that the activity authorized .by the permit will have no significant impact in the coastal zone.
      (c) A project which requires one or more state or federal permits not categorically approved as provided in (b) of this section will be considered consistent without further review, if it meets the requirements of a general concurrence determination contained on the list published under (e) of this section. A "general concurrence determination" is a consistency determination for a type of project which in"cludes only routine activities, and which can be effectively made consistent with the ACMP by imposing standard stipulations on the applicable permit. If a subsequent project of any applicant fits the description in a general concurrence determination, the project will be considered consistent with the ACMP if it complies with the stated standard stipulations.
      (d) A project which requires one or more state or federal permits, and which is not within the categories described in (b) or (c) of this section, is subject to review as an individual project as provided in this chapter.
      (e) DGC will publish a list of permits which have been categorically approved as being consistent with the ACMP, and a list of general concurrence determinations, and will identify on each list those permits or projects for which a coastal project questionnaire is not necessary. DGC will amend these lists as necessary on its own initiative, or on the request of a coastal resource district or a resource agency based on new information regarding the impacts of these activities, including cumulative impacts. Before publishing or amending these lists, DGC will distribute the proposed lists or amendments for comment in the manner provided in 6 AAC 50.070 for a project consistency review.

      . AS 46.40.096(d)(1), (g).

      . AS 46.40.094(a), (b)(1); see also Kachemak Bay Conservation Soc. v. State, Dep't of Natural Res., 6 P.3d 270, 289 (Alaska 2000). AS 46.40.094(a) and (b) provide:
      (a) The provisions of this section apply to a use or activity for which a consistency determination is required if
      (1) at the time the proposed use or activity is initiated, there is insufficient information to evaluate and render a consistency determination for the entirety of the proposed use or activity;
      (2) the proposed use or activity is capable of proceeding in discrete phases based upon developing information obtained in the course of a phase; and
      (3) each subsequent phase of the proposed use or activity is subject to discretion to implement alternative decisions based upon the developing information.
      (b) When a use or activity is authorized or developed in discrete phases and each phase will require decisions relating to a permit, lease, or authorization for that particular phase, the agency responsible for the consistency determination for the particular phase
      (1) may, in its discretion, limit the consistency review to that particular phase if, but only if,
      (A) the agency or another state agency must carry out a subsequent consistency review and make a consistency determination before a later phase may proceed; and
      (B) the agency responsible conditions its consistency determination for that phase on a requirement that a use or activity authorized in a subsequent phase be consistent with the Alaska coastal management program; and
      (2) shall, when the consistency review is limited under (1) of this subsection, conduct the consistency review for the particular phase and make the consistency determination based on
      (A) applicable statutes and regulations;
      (B) the facts pertaining to a use or activity for which the consistency determination is sought that are
      (i) known to the state agency responsible or made a part of the record during the consistency review; and .
      (ii) material to the consistency determination; and
      (C) the reasonably foreseeable, significant effects of the use or activity for which the consistency determination is sought;
      (3) shall, when the consistency review is limited under (1) of this subsection, describe in the consistency determination the reasons for its decision to make the consistency determination for the use or activity in phases.

      . Kachemak Bay Conservation Soc., 6 P.3d at 290, 294 (initial internal emphasis added).

      . Trustees for Alaska v. State, Dep't of Natural Res., 851 P.2d 1340, 1344 (Alaska 1993) (citing Trustees for Alaska v. Gorsuch, 835 P.2d 1239, 1246 n. 6 (Alaska 1992)); see also Kachemak Bay Conservation Soc., 6 P.3d at 293-94.

      . The state does not appear to join Forest Oil's arguments on these points.

      . See Calhoun v. State, Dep't of Transp. & Pub. Facilities, 857 P.2d 1191, 1195-96 (Alaska 1993).

      . Briggs v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 732 P.2d 1078, 1081-82 (Alaska 1987).

      . See generally Johnson v. Alaska State Dep't of Fish & Game, 836 P.2d 896, 908 (Alaska 1991) (stating that administrative findings should only be used preclusively if doing so would be fair and that fairness minimally requires that the prior proceedings included "the essential elements of adjudication").

      . 865 P.2d 745, 748 (Alaska 1993) (citing Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)).

      . See 6 AAC 80.130(b).

      . See 6 AAC 80.130(c)(1), (2).

      . The comment additionally noted a factor that has not arisen in subsequent proceedings and seems to have no lasting significance in the context of this appeal: the need to ensure that the project's activities not interfere with beluga whale migration and feeding, a concern that prompted Cook Inlet Keeper to ask the state to require the National Marine Fisheries Service to approve Forest Oil's plan of operations.

      . Our decision makes it unnecessary to give detailed attention to Cook Inlet Keeper's argument that the final consistency determination should have applied the tripartite test of 6 AAC 80.130(d) by considering the existence of significant public need, a feasible prudent alternative, or additional steps that could be taken to maximize conformance of the Osprey to the habitat standard. Because the new consistency determination on remand will be based on all project activities, including discharges, the determination must include appropriate findings under 6 AAC 80.130.


source: Caselaw Access Project

author: MATTHEWS, Justice.

license: Public Domain

text:
    Andrew C. WELLS, Appellant/Cross-Appellee, v. STATE of Alaska and Chugach Electric Association, Inc., Appellees/Cross-Appellants.
    Nos. S-9538, S-9567, S-9568.
    Supreme Court of Alaska.
    May 3, 2002.

      Marcus R. Clapp, John -J. Tiemessen, Clapp, Peterson & Stowers, Fairbanks, for Appellant/Cross-Appellee.
    Venable Vermont, Ir., Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, for Appellee/Cross-Appellant State of Alaska.
    Tlmothy M. Lynch, Lynch & Blum, PC, Anchorage, for Appellee/Cross-Appellant Chugach Electric Association, Inc.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

Andrew Wells was driving downhill through a curve on DeArmoun Road in Anchorage when his truck left the roadway and rolled. Wells, who had not been wearing a seatbelt, was ejected from the truck and was later found next to some boulders that had been placed in the right-of-way by Chugach Electric Association, Inc. (Chugach). Wells's injuries left him a paraplegic.

Wells sued the State of Alaska for negh— gently designing and maintaining DeArmoun Road. Healso sued Chugach for negligently placing the boulders. Among Wells's complaints against the State was his claim that the State should have installed a guardrail at the curve in DeArmoun Road. The State moved for partial summary judgment on the guardrail and the negligent design claims and moved for a directed verdict that Wells's failure to wear his seatbelt constituted negligence per se. Wells opposed the State's motions and eross-moved for summary judgment on his claim that the State negligently failed to remove the boulders from the "clear zone" alongside DeArmoun Road.

The trial court granted partial summary judgment to the State on both the guardrail and the negligent design issues and denied Wells's eross-motion for summary judgment, holding that the State was immune as to clear zone requirements. The trial court also denied the State's motion for a directed verdict on the seatbelt issue. The parties thus proceeded to trial on Wells's general negligence claim against the State and Chugach.

At trial, the court made several witness-related rulings. The court permitted the State and Chugach to add an expert witness to their witness list and to call that witness at trial to rebut surprise testimony of one of Wells's experts. The trial court also permitted Dr. Arthur Geuss to testify as a lay witness about his years of experience driving DeArmoun Road, but excluded a portion of Senior Captain Baird McKibben's lay witness testimony offering a reconstruction of how Wells's accident had occurred. The jury ultimately concluded that although both the State and Chugach had been negligent, their negligence was not a legal cause of Wells's injuries. '

Wells appeals, arguing that the trial court erred in granting the State summary judgment on the guardrail and negligent design issues, in failing to find the State negligent as a matter of law for not removing the boulders from the clear zone, and in permitting the State to amend its expert witness list. The State and Chugach cross-appeal, arguing that the trial court erred in not finding Wells negligent as a matter of law for not wearing his seatbelt, and in permitting Dr. Geuss's testimony while exeluding the portion of Captain McKibben's. We affirm the judgment.

A. The Trial Court's Grant of the State's Motion for Summary Judgment on the Guardrail Issue Was Proper, Because the Decision Whether To Install a Guardrail Is a Discretionary Decision Immune from Suit under AS 09.50.250(1).

Wells's appeal as to the State's failure to install a guardrail turns upon whether the installation of a guardrail is a discretionary act subject to immunity under AS 09.50.250. Alaska Statute 09.50.250(1) immunizes the State against tort suits "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state ageney ...." The State is thus immune for its "policy-level (or 'diseretionary') decisions about whether to undertake activities ...." Applying de novo review, we reiterate here that the decision of whether or not to install a guardrail is a discretionary act covered by AS 09.50.250.

Our holding in Industrial Indemmity Co. v. State decided exactly this issue. In that case, the plaintiff sued the State for failing to install a protective guardrail at the site of the plaintiff's accident. We held that the deci-gion whether or not to install a guardrail was a policy decision, and that "an affirmative decision to go ahead with the installation had to be made at the discretionary level in order to advance the chain of events to the operational stage." Thus, under this court's precedent, the State is immune from suit for claims based on its decision to install or not to install guardrails. Accordingly, in this case the State is immune from liability for not installing a guardrail at the curve on DeArmoun Road.

B. The Trial Court Correctly Found that the State's Responsibility To Maintain DeArmoun Road Does Not Include Adhering to "Clear Zone" Standards that Were Not in Place When the Road Was Designed and Constructed.

We similarly affirm the trial court's denial of Wells's motion for summary judgment on the issue of clear zone requirements. While Wells correctly asserts that the State is responsible for the construction and maintenance of the state highway system, as well as for preparing and adopting uniform standard plans and specifications for construction and maintenance that conform as closely as possible to those of the American Association of State Highway and Transportation Officials (AASHTO), Wells errs in assuming that the clear zone requirements of the State's rules on construction apply to its duties to maintain DeArmoun - Road.

Alaska law makes an important distinction between the construction and maintenance of highways. Construction is defined to include "construction, reconstruction, alteration, improvement, or major repair." Maintenance, by contrast, is defined as "the preservation of each type of highway, roadside structure and facility as nearly as possible in its original condition as constructed, or as subsequently improved, and the operation of highway facilities and services to provide satisfactory and safe highways."

While AASHTO's "Roadside Design Guide" and the State's Preconstruction Manual interpreting, amending, and augmenting AASHTO policies both include clear zone requirements, AASHTO's and the State's construction and design policies do not apply to highway maintenance. Because the State merely maintained, as opposed to constructing or reconstructing DeArmoun Road, the State is not responsible for meeting the clear zone requirements applicable to a new road. Wells admits that when DeAr-moun Road was originally designed, the concept of a "clear zone" was not part of roadway design,. The State's duty to maintain the road in its original condition, accordingly, did not require it to add a clear zone to a road that lacked one when it was designed and built. Thus the trial court was correct to find that the State cannot be held negligent for failing to provide a clear zone on DeArmoun Road.

C. The Trial Court Was Within Its Discretion in Allowing the State and Chugach To Amend Their Expert Witness List.

Aside from the trial court's rulings on the summary judgment motions, Wells also argues that he was unfairly prejudiced by the trial court's decision to permit the State and Chugach to add an expert witness after the deadline for naming experts had passed. The State and Chugach argue that Wells's expert, Dr. Harry Smith, did not state his belief that Wells's injuries had been caused by his striking the boulders until after the deadline for naming experts had passed, and that the State and Chugach would have been unable to adequately rebut Dr. Smith's testimony on that important issue unless they were permitted to add an expert witness.

Dr. Smith's report did not expressly say that Wells was injured by striking the boulders, though it could reasonably have been read to imply that conclusion. The State's and Chugach's claim of surprise was sufficiently plausible, however, so that we are unable to say that the court abused its discretion by allowing them to supplement their witness list by adding a witness to rebut Dr. Smith's claims. Further, any error in this respect would be harmless, for Wells was able to depose the new witness before trial and his biomechanical expert was able to respond on the theory of the new witness at the trial.

Because we uphold the trial court's rulings upon review, the State's cross-appeal is moot.

For the foregoing reasons the judgment is AFFIRMED.

      . Brady v. State, 965 P.2d 1, 16 (Alaska 1998).

      . See id. at 8 (summary judgment).

      . 669 P.2d 561 (Alaska 1983).

      . Id. at 562.

      . Id. at 563.

      . See id.; see also Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 261 (Alaska 2000) (recognizing that, decision whether to install highway guardrails is planning decision for which state is immune). The same rule applies in the federal courts under the Federal Tort Claims Act. Rich v. United States, 119 F.3d 447, 450-52 (6th Cir.1997) (decision to replace damaged guardrail with guardrail of similar design shielded by discretionary function immunity); Rothrock v. United States, 62 F.3d 196, 199-200 (7th Cir.1995) (failure to require reinstallation of guardrail shielded by discretionary function immunity); ARA Leisure Servs. v. United States, 831 F.2d 193, 195 (9th Cir.1987) (decision to construct road without guardrails shielded by discretionary function immunity); Bowman v. United States, 820 F.2d 1393, 1395 (4th Cir.1987) (decision not to install guardrails shielded by discretionary function immunity).

      . Wells also argues that the trial court erred in granting summary judgment to the State on the issue of negligent design of the road. The trial court held that "the State can not be Hable for the design of DeArmoun as it did not design that Road. DeArmoun was designed and built by the federal government in the 1950's." While the State presented uncontradicted evidence that DeArmoun Road was constructed prior to Alaska statehood, Wells now argues that DeArmoun was designed by the territorial road commission and that the territorial road commission's liability for negligently designed roads was inherited by the State under article XV, section 2 of the Alaska Constitution. Article XV, section 2 provides:
      Except as otherwise provided in this constitution, all rights, titles, actions, suits, contracts, and liabilities and all civil, criminal, or administrative proceedings shall continue unaffected by the change from territorial to state government, and the State shall be the legal successor to the Territory in these matters.
      Whether this provision would apply to inchoate design liabilities not accruing before statehood is an interesting question. But as it was not raised in the trial court it is waived. See Hoffman Constr. Co. v. U.S. Fabrication & Erection, Inc., 32 P.3d 346, 355 (Alaska 2001) ("As a general rule, we will not consider arguments for the first time on appeal."). Although our precedent allows for consideration of arguments not raised explicitly below if the issue "is 1) not dependent on any new or controverted facts; 2) closely related to appellant's trial court arguments; and 3) could have been gleaned from the pleadings," Wells's constitutional argument does not fit within this exception. Hoffman, 32 P.3d at 355 (quoting McConnell v. State, 991 P.2d 178, 183 (Alaska 1999) (internal quotations and citations omitted)). See also Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985). We have also held that waiver will not be found where an issue raises plain error. Hoffman, 32 P.3d at 355 n. 29. But the court's decision was not plain error, for whether article XV, section 2, should apply to inchoate liabilities is not clear.

      . AS 19.10.030.

      . AS 19.10.160.

      . AS 19.45.001(2), (10).

      . Wells counters that the State has an unchallenged duty to provide safe highways. He specifically argues that AS 19.45.001(10), which defines "maintenance," states that "the State must preserve the highway (which by definition includes the right-of-way) 'to provide satisfactory and safe highways.'" However, Wells takes the statute's language out of context. The language that he quotes is applicable not to the preservation of highways, but to the "operation of highway facilities and services." See AS 19.45.001(10).
      In addition the trial court did not prevent Wells from arguing that the State failed in its duty to safely maintain DeArmoun Road; the trial court specifically held that "[the State ... is not immune from negligence in maintaining DeArmoun Road." Indeed, the jury found that the State had been negligent, although it also found that the State's negligence was not a legal cause of Wells's injury.


author: PER CURIAM.

text:
    Robert HAYES, Petitioner, v. MUNICIPALITY OF ANCHORAGE, and Clerk of the Municipal Assembly, in his official capacity, Respondents.
    No. S-10602.
    Supreme Court of Alaska.
    May 3, 2002.

      Richard D. Kibby, Anchorage, for Petitioner.
    William A. Greene, Municipal Attorney, Anchorage, for Respondent Municipality of Anchorage.
    Thomas F. Klinkner, Birch, Horton, Bitt-ner and Cherot, Anchorage, for Respondents Anchorage Municipal Clerk and Assembly.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

PER CURIAM.

I. INTRODUCTION AND PROCEDURAL BACKGROUND

Less than two weeks before the Municipality of Anchorage's impending run-off election for an assembly seat in District 5, Robert Hayes filed suit in superior court to disqualify candidate Brian Whittle from appearing on the ballot. Hayes moved for a temporary restraining order and temporary injunction to stop the May 7 election. He alleged that Whittle fails to meet the one-year residency requirement for municipal candidates set out in Anchorage Municipal Charter § 4.02(b)(2) because, before Anchorage's assembly districts were redrawn as part of the municipality's regular redistricting process in September 2001, Whittle's home was located outside the boundaries of the former "District 5."

Superior Court Judge Peter A. Michalski issued a ruling four days after Hayes filed his complaint, denying his motion to stop the election. The following day, Hayes filed an emergency petition with this court, urging us to review the superior court's decision on an expedited basis so that Whittle's eligibility for office could 'be determined before the election-then less than a week away.

We ordered an immediate response because Hayes's petition appeared to raise an important legal issue of first impression and to warrant expedited attention. Having now considered the petition and responses, we grant review and decide the merits of Hayes's claim on an expedited basis. As the municipality correctly observes in joining Hayes's request for an immediate resolution, this court has previously held that "[rJulings in election cases should, if possible, be made prior to the election in order to avoid the needless expense and the shock to the public expectations which would result if an election were overturned."

II. THE SUPERIOR COURTS RULING

In denying Hayes's motion to enjoin the election, the superior court relied chiefly on the conclusion that Hayes's claim lacks legal merit. Judge Michalski's decision ably explains the facts of the case and the judge's assessment of Hayes's claim:

Robert Hayes seeks to enjoin the run-off election set for May 7, 2002, claiming the ballot should not include Brian Whittle. After review of the motion [and] responses, . the court finds the plaintiffs "Complaint for Temporary Restraining Order, Injunction and Declaratory Relief" to be wholly without merit. The court denies the temporary restraining order and injunction.
The [Anchorage] municipal charter [seetion 4.02] provides in part:
(b) A candidate for the office of assemblyman:
(1) Shall be a qualified voter of Anchorage; and
(2) Shall be a resident of the district from which he/she seeks election for at least one year immediately preceding the election.
Election districts were redrawn in September 2001. The next regular election was April 2002. .
As a result of the redrawing, the residence of Mr. Whittle-the winner of a plurality of votes-was included in what is called District 5. Whittle has lived in the same place over 20 years. Because his house was not in the District previously known as District 5, the plaintiff argues that Mr. Whittle fails the residency requirement noted above.
Mr. Hayes's legal position is completely without merit. Mr. Whittle has lived at the same residence for over 20 years. The redrawing of the districts around him does not change that. A common sense reading of the Charter must be to consider the period a citizen has lived within the area newly drawn, not whether the area the citizen is in has the same numerical designation it previously had.
In effect, the present District 5 (though it may in some part- overlap old District 5) is a new entity. Part of the confusion in thinking may be a result in using "District 5" as the name of the district. Given an entirely different name, say "District A," the thought process causing this complaint may have been avoided. The court interprets the Charter to mean that anyone who has lived within what is the newly drawn district for more than one year meets the residency requirement. |
To test the question presented, one might ask in what district Mr. Whittle may run under Mr. Hayes's interpretation of the Charter. The answer is nowhere. Mr. Hayes's interpretation of the Charter results in broad ineligibility for office anytime districts are redrawn, it would encourage misconduct by redistricting authorities, and it tests the limits of common sense.
The request for temporary restraining order and preliminary injunction is denied.[]

HI. DISCUSSION

Although Judge Michalski addressed an issue of first impression in Alaska, the judge's interpretation of Charter § 4.02 finds substantial support in an opinion of the Alaska Attorney General and in case law construing similar provisions in other states.

Hayes nevertheless urges us to preclude Whittle's candidacy because, according to Hayes, Whittle has not literally complied with Charter § 4.02's mandate-that is, he has not been "a resident of the district from which he[ ] seeks election for at least one year immediately preceding the election." Hayes's argument literally reads the charter's reference to "district" as requiring Whittle to have lived in "District 5" for more than a year before the election. But this literal reading ultimately proves too much and defeats itself.

Charter § 4.02's use of the word "district" unequivocally refers to a district as constituted at the time of the current election. Thus, if we were to construe § 4.02's reference to "district" to require continuous residency in Assembly District 5, as Hayes suggests we should, § 4.02's foeus on the currently constituted district would require us to conclude that only residents who lived in the currently constituted district for at least one year immediately before the April 2002 municipal election would qualify for office. By definition, however, the redistricting process establishes new districts: Assembly District 5, as currently constituted, had no existence a year ago. Under Hayes's logic, then, the conclusion would necessarily follow that nobody has lived in the current assembly district long enough to qualify for office.

In support of Hayes's interpretation, the Municipality of Anchorage advances a somewhat different argument, ostensibly based on Charter § 4.02's underlying policy of maintaining an informed electorate. The municipality reasons that the voters of "District 5" need Whittle to live in that district for a year so that they have an "opportunity to know the candidate"; conversely, it reasons, Whittle needs a year in-district to have "an opportunity to know the peculiar issues and factors affecting the election district."

But the municipality's logic suffers from the same flaw as Hayes's: it mistakenly focuses on District 5 as it existed before redistricting, rather than the currently constituted District 5, where Charter § 4.02 places the focus. When viewed from the perspective of the current district, the municipality's policy argument raises a two-way problem. If we presumed that Whittle's lack of opportunity to acquaint himself with the voters and issues of former District 5 should disqualify him for office for a year after redistricting, then by parity of logic we would also have to presume that any candidates like Hayes, who resides within former District 5's boundaries, should likewise be disqualified from office; for they would similarly lack the opportunity to acquaint themselves with the voters and issues in the areas of the current District 5 that were formerly in another district.

In effect, then, the municipality's argument simply seeks to give a preference to its own chosen segment of the electorate, while disenfranchising another segment. But Anchorage Charter § 4.02 unites all residents within the boundaries of the current district, leaving no reason to presume that any resident's knowledge of its people and issues is superior to any other resident's. And the Alaska Constitution gives all current district residents an equal right to vote and an equal opportunity to run.

In short, Charter § 4.02 makes sense only if construed, as Judge Michalski construed it, to require residency for at least one year before the election within the geographical boundaries of an election district as it is drawn at the time of election.

IV. CONCLUSION

Because the superior court's interpretation of the disputed residency requirement finds support in the law, comports with sound pub-lie policy, and makes common sense, we conclude that Hayes's claim has no legal merit, AFFIRM the superior court's decision, and REMAND with directions to enter a final judgment dismissing the action.

      . Faipeas v. Municipality of Anchorage, 860 P.2d 1214, 1216 (Alaska 1993).

      . We have edited Judge Michalski's decision to conform to this court's technical guidelines for publication and to eliminate portions that are not germane to the issues presented on review.

      . See 1994 Informal Op. Att'y Gen. 283 (July 1, 1994; File No. [ XXX-XX-XXXX ]) (advising that candidate whose residence, as a result of redistricting, had been placed in a different senate district was entitled to run for that senate district because "[her residence [was] within the current, final boundaries" of the senate district and she had "resided at her current residence for over a decade").

      . See, e.g., Wenke v. Hitchcock, 6 Cal.3d 746, 100 Cal.Rptr. 290, 493 P.2d 1154, 1160 (1972).

      . Anchorage Municipal Charter § 4.02(b)(2).

      . Emphasis omitted.

      . Cf. Gilbert v. State, 526 P.2d 1131, 1135 (Alaska 1974).