Opinion
Supreme Court No. S-10436.
November 3, 2004.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, John Reese, Judge. Superior Court No. 3AN-98-8560 Civil.
Nancy S. Wainwright, Law Offices of Nancy S. Wainwright, Anchorage, for Appellant.
Breck C. Tostevin, Assistant Attorney General, Anchorage, Gregg D. Renkes, Attorney General, Juneau, for Appellee State of Alaska.
Charles P. Flynn, Michael W. Seville, Burr, Pease Kurtz, Anchorage, for Appellee Polar Tankers, Inc. (f/k/a ARCO Marine, Inc.), and BP Oil Shipping Company.
Kevin Callahan, Patton Boggs, LLP, Anchorage, for Appellee SeaRiver Maritime.
Andrew K. Sorenson, Alyeska Pipeline Service Co., Valdez, for Appellee Alyeska Pipeline Service Company.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Tom Copeland and others challenged the Alaska Department of Environmental Conservation's approval of twenty-one oil discharge prevention and contingency plans required for the operation of oil tank vessels in state waters. After the majority of the claims were dismissed in an administrative appeal, Copeland appealed to the superior court. While the appeal was pending, the Department of Environmental Conservation approved five renewal contingency plans, replacing the previous plans. After ruling that the administrative proceeding was not procedurally flawed and that Copeland was not entitled to de novo review of the administrative proceeding, the superior court granted the Department's motion to dismiss on the grounds of mootness because Copeland had failed to challenge the new contingency plans which had replaced those plans that were the subject of his suit. Following dismissal, the superior court denied Copeland's motion for attorney's fees. Copeland appeals, challenging the denial of attorney's fees. We affirm.
II. FACTS AND PROCEEDINGS
Under AS 46.04.030, in order for a tank vessel or oil barge to operate in state waters, the Alaska Department of Environmental Conservation ("DEC") must approve an oil discharge prevention and contingency plan ("C-plan") for the vessel or barge. These plans are required to demonstrate the operator's preparedness to deal with containment and cleanup in the event of an oil spill.
AS 46.04.030(c) states in relevant part:
[A] person may not operate a tank vessel or an oil barge within the waters of the state, or cause or permit the transfer of oil to or from a tank vessel or an oil barge, unless an oil discharge prevention and contingency plan for the tank vessel or oil barge has been approved by the department and the person is in compliance with the plan.
In October 1995 DEC approved, with conditions, twenty-one C-plans for oil tankers transporting crude oil from the Valdez Marine Terminal through Prince William Sound. Tom Copeland ("Copeland") and several others (collectively "Requestors") challenged the approval and requested a hearing pursuant to DEC regulations. Subsequently, Requestors sought additional hearings regarding DEC's use of conditions of approval in its adoption of the C-plans. Requestors raised numerous challenges to the substance of DEC's C-plan requirements as well as challenging the procedure DEC used in adopting the C-plans. The hearing requests were consolidated, and in February and March 1998 a nineteen-day hearing was held. By the time of the hearing, Copeland was the only remaining Requestor.
Other requestors seeking review of the C-plans included: Tom Lakosh, Kristin Stahl-Johnson, Cordova District Fishermen United and United Fishermen for Alaska, BP Oil Shipping Co., SeaRiver Maritime, Inc., City of Cordova, and Kodiak Island Borough.
A. Agency Proceedings
Prior to the hearing on the 1995 C-plan approval, the deciding officer issued several dispositive decisions on Copeland's claims. Of the eight issues decided prior to the hearing, six were resolved in favor of DEC and Shippers, or left open for factual development during the hearing. The deciding officer decided one issue, Issue A — concerning consistency determinations under the Alaska Coastal Management Program — in Copeland's favor but noted that although DEC was required to include a consistency determination in the process of C-plan approval, "[the deciding officer] was without jurisdiction to order such proceedings." The Requestors withdrew the final prehearing issue, Issue T.
In his final decision, the deciding officer separated the issues raised by Requestors, giving them alphanumeric labels and titles, i.e., "Issue A. Alaska Coastal Management Program (ACMP) Review." Those issues decided in favor of Shippers and DEC or left open for the hearing were: (1) Issue B. Best Available Technology (BAT) Requirements; (2) Issue C. Copper River Delta and Flats; (3) Issue D. Dispersants; (4) Issue E. Environmentally Sensitive Areas; (5) Issue G. Ex Parte Contacts; and (6) Issue P. Improper Phasing; Delay; Non-Public Decision Making.
The "acrimonious" administrative hearing was delayed by numerous disputes between the parties, including pre-hearing disputes over selecting the hearing officer, discovery disputes, and disputes over Copeland's duty under 18 AAC 15.280 (am. 7/11/2002) to pay transcription costs. During the hearing, Copeland learned that he would be required to bear costs of transcription. Copeland refused to pay and the deciding officer conditioned Copeland's ability to file proposed findings of fact and conclusions of law on payment of the transcription fees. Copeland declined to pay and did not file proposed findings of fact and conclusions of law.
18 AAC 15.280 states:
As soon as the hearing transcript has been prepared, the deciding officer shall certify the record of the hearing and provide notice of certification to all parties. Except for good cause shown, the cost of transcribing the hearing must be borne by the requestor. Where there is more than one requestor, the deciding officer may apportion the costs.
After the hearing, the deciding officer issued extensive technical findings of fact and conclusions of law and ruled against Copeland on nearly every issue. Numerous claims were dismissed for lack of sufficient evidence including: Issue A (Alaska Coastal Management Program), Issue B (BAT prevention), Issue H (training — wildlife), Issue I (individual tanker plan inadequacies), Issue K (Kodiak Island Borough), Issue L (lightering), Issue Q (fishing vessel contracts), Issue R (recreational areas), and several conditions of approval (Conditions 4, 5, 6 and 7).
The deciding officer determined that DEC did not err with respect to the following issues: out-of-region response planning standard; near shore response (Condition 3); additional fishing vessels training; tanker escort cost benefit analysis (Condition 2(b)); Copper River Delta spill planning; environmentally sensitive areas spill trajectories; fire hazard response planning; best available technology; and realistic maximum response operating limitations. The deciding officer determined that DEC had taken a hard look at these issues and had a reasonable basis for its decisions.
Copeland partially prevailed on one issue, the issue of improper phasing, Issue P. On that issue, the deciding officer ruled that DEC erred by not initiating a formal public review on the "to-be-determined" conditions of approval in the C-plans. However, the deciding officer found that remand to DEC on this issue was unnecessary because Copeland had not argued "remedy," he had notice of the conditions of approval, and was not prejudiced by DEC's failure to formally provide for public notice and comment. The deciding officer also noted that "[i]n light of the upcoming renewal of these plans and the revisiting of BAT, sensitive area protection and other contingency plan issues contained in the conditions, a remand of the conditions of approval for review of the 1995 C-Plan . . . is not warranted."
In summarizing his decision, the deciding officer remarked:
Notwithstanding the sincerity of Copeland (or the other Requestors in this proceeding who withdrew prior to the entry of this decision) in seeking to protect Alaska's extraordinary environment, Copeland's preferences and recommendations on what ought to appear in an appropriate C-Plan or C-Plan process do not, in the context of this adjudication, establish remediable error of law or fact by DEC.
The record as presented in the hearing and as argued prior to the hearing supports a finding that DEC properly and reasonably interpreted its regulations (other than as noted and respecting which the issue of remedy has been addressed) and rendered its approval decisions after taking a "hard look" at the issues before it.
Copeland failed to meet his burden of proof in establishing an error by DEC (other than as noted and respecting which the issue of remedy has been addressed) as a matter of law or fact.
The deciding officer found concurrent grounds for dismissing Copeland's claims, based on Copeland's failure to pay the transcription costs. The deciding officer observed that "Copeland . . . never offered or established a factual basis for indigency as a reason for waiving transcription fees" and that "Copeland purposely failed to comply with valid orders" to pay a modified amount of the transcription fees. Based on the concurrent grounds that Copeland failed to prevail on the substantive issues and that he failed to pay the ordered transcription costs, the deciding officer dismissed Copeland's claims.
The deciding officer issued his final decision on August 14, 1998. A month earlier, in July 1998, plan holders submitted renewal C-plans to DEC. Copeland submitted comments on the 1998 renewals, incorporating by reference the earlier comments and appeals that had been made regarding the 1995 renewals, explaining, "[t]he incorporation by reference of these prior statements, evidence and comments is necessary because we are raising the same concerns in the 1998 plan review, due to the same inadequacies, and the Shipper recalcitrance in remedying these deficiencies." DEC considered and responded to Copeland's comments and issued a Findings Document in October 1999. In November 1999 DEC approved with conditions the 1998 C-plan renewal. Copeland did not request a hearing to challenge the approval of the new C-plans.
B. Superior Court Proceedings
In September 1998, after the deciding officer rendered his decision, Copeland appealed the case to the superior court. Copeland sought review of eighty-four points on appeal. The points on appeal included Copeland's claims that the deciding officer's substantive findings regarding C-plan issues were in error and that the hearing was procedurally flawed. Copeland moved for de novo review on four of the substantive C-plan issues that were decided in the administrative proceeding. The superior court bifurcated the briefing into two phases: the first phase (Phase I) addressed Copeland's claims for which he sought de novo review and his claim that the administrative proceeding was procedurally flawed. Copeland's remaining substantive claims were to be addressed in the second phase (Phase II) of briefing before the superior court.
The superior court ruled on the Phase I issues, denying Copeland's request for de novo review and affirming the deciding officer's decision regarding the procedural claims. DEC then moved to dismiss the remaining issues on appeal as moot. The superior court granted the motion, dismissing the appeal as moot on the grounds that "[t]he 1995 C-plans and conditions of approval have been replaced and superceded by new contingency plans" and that "Copeland has not challenged DEC's new contingency plan approvals and has indicated that these approvals have satisfied his substantive issues on appeal." Copeland belatedly opposed the motion to dismiss and the superior court vacated its prior order. After additional briefing, the superior court again granted DEC's motion to dismiss.
Following dismissal of the superior court case, Copeland moved for $77,350 in attorney's fees and $12,194.86 in costs. The superior court denied Copeland's motion for attorney's fees. Copeland appealed to this court, raising ninety-one points on appeal. In his opening brief, Copeland "agree[d] to the dismissal of this action due to mootness," leaving the attorney's fees question as the only remaining issue on appeal.
III. DISCUSSION
The superior court may, in its discretion, award attorney's fees and costs to a prevailing party in an administrative appeal under Alaska Appellate Rule 508. We will "interfere with the exercise of that discretion only where it has been abused. An abuse of discretion is established where it appears that the trial court's determination as to attorney's fees was manifestly unreasonable."
State, Dep't of Natural Res. v. Tongass Conservation Soc'y, 931 P.2d 1016, 1017 (Alaska 1997).
Palfy v. Rice, 473 P.2d 606, 613 (Alaska 1970) (citation omitted).
The prevailing party "is the one who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not to the extent of the original contention. He is the one in whose favor the decision or verdict is rendered and judgment entered." In deciding which party prevailed, "the court must determine, in an overall sense, which party the decision favors."
Buza v. Columbia Lumber Co., 395 P.2d 511, 514 (Alaska 1964).
Gwich'in Steering Comm. v. State, Office of the Governor, 10 P.3d 572, 584 (Alaska 2000) (quoting Alaska Wildlife Alliance v. Rue, 948 P.2d 976, 981 (Alaska 1997)).
In cases where there is no final judgment on the merits, such as where settlement has been reached or where subsequent events render a claim moot, a litigant may still be a prevailing party if he or she achieved the goals of the lawsuit. In DeSalvo v. Bryant, we noted that in order for a plaintiff to prevail under a catalyst theory, the plaintiff must "show both a causal connection between the filing of the suit and the defendant's actions and that the defendant's conduct was required by law, i.e., not a wholly gratuitous response to an action that in itself was frivolous or groundless." This is a two-part inquiry: First, the plaintiff must show that the goal of litigation has been achieved. Only a showing of success on a "significant issue which achieves some of the benefit sought in bringing the suit" is necessary for this step. Next, the court must find "a causal connection between the defendant's action generating relief and the lawsuit." Such a connection exists if the plaintiff's suit is a "substantial factor or significant catalyst in motivating" the action taken by defendant. As we noted in DeSalvo, "[t]his intensely factual test emphasizes the chronology of events as an important element in determining causation."
See, e.g., City of Yakutat v. Ryman, 654 P.2d 785, 792-93 (Alaska 1982) (plaintiff was prevailing party where suit caused defendant to change operations rendering plaintiff's claims moot); DeSalvo v. Bryant, 42 P.3d 525, 530 (Alaska 2002) ("When a plaintiff prevails under the catalyst theory by settling the case and achieving the goal of the lawsuit, the court should award attorney's fees under Rule 82(b)(2).").
42 P.3d at 530 (quoting Hennigan v. Ouachita Parish Sch. Bd., 749 F.2d 1148, 1151 (5th Cir. 1985)).
Id.
Id.
Id.
Id.
Id.
Copeland argues that he is the prevailing party because he prevailed on the main issues in the case. Copeland claims he prevailed on the main issues by prevailing on the improper phasing issue (Issue P), and by being the impetus for DEC to change the 1999 C-plans such that the new plans "satisfied Mr. Copeland's position on the issues."
The superior court rejected Copeland's claim that he was the prevailing party and denied his motion for attorney's fees. The superior court explained its reasons:
This appeal was dismissed as moot. Prior to dismissal, appellant prevailed on few issues, and none of significance. Furthermore, his claim that the subsequent regulatory action (1999 Plan) adopted his position is unsupported by the record. Even if it were supported, that would not necessarily affect the application of Appellate Rule 508.
We conclude that the superior court did not abuse its discretion in coming to this conclusion.
Copeland raised numerous challenges to DEC's actions in the agency proceeding, but prevailed on only one issue, Issue P. And there, Copeland was denied a remedy. On appeal, he fared no better. The superior court ruled against him on his claims that the agency hearing was procedurally flawed and denied his request for de novo review of numerous substantive issues. Copeland's remaining claims were dismissed as moot since he failed to challenge the 1999 C-plans that superceded the challenged 1995 plans. On this record, the superior court did not err in finding that Copeland was not the prevailing party under Rule 508.
But Copeland argues that his prevailing party status is based not only on his success or failure in the agency and judicial proceedings, but also on what his litigation caused to happen outside of the courtroom. Copeland asserts that in the 1999 C-plan renewals, DEC adopted his position with respect to five major substantive issues including the use of best available technology, protection of the Copper River Delta, protection of environmentally sensitive areas, use of primary response contractors, and the proper phasing of the C-plan approval process. Copeland premises his argument that he prevailed on these issues on the fact that the superior court dismissed as moot Copeland's remaining claims "due to DEC's changed position."
The superior court rejected this argument, finding that Copeland's claim that "the subsequent regulation action (1999 Plan) adopted his position [was] unsupported by the record." We agree.
There are two steps involved in a catalyst analysis for purposes of awarding attorney's fees. First, the litigant must have achieved some significant goal of the litigation. And second, the litigant must show that the litigation in some substantial way caused that outcome. Copeland failed to establish either factor to the satisfaction of the superior court.
Though Copeland argued his desired outcome had been achieved through the changes in the 1999 C-plans, he had previously repeatedly argued that the 1999 C-plans were just as flawed as the 1995 ones and that his remaining claims were not moot. As late as his "Opposition to DEC Motion to Dismiss Appeal as Moot," Copeland argued against a finding of mootness and claimed that "[t]he DEC illegal actions on appeal in the PWS Tanker Plans have continued, and are still live issues to be resolved by this Court." In the same motion, he stated, "[T]he appeal is not moot because the challenged aspects of the Prince William Sound Tanker Oil Discharge Prevention and Contingency Plans (PWS Tanker Plans) are still in effect as `renewed' 1999 PWS Tanker Plans. Second, even if the challenged portions of the renewed plans were somehow changed (which they were not). . . ." In light of these positions, we cannot say that the superior court clearly erred in finding that Copeland's claim that the 1999 Plan adopted his position was unsupported by the record.
Furthermore, Copeland failed to meet his burden of proof on the causation prong of the catalyst analysis. Copeland failed to establish any causal link between his suit and the changes to the 1999 C-plans before the superior court. Though he attempts in his reply brief before this court to outline the ways in which he catalyzed DEC's action, those arguments are waived due to Copeland's failure to raise them below. With no proof of causation, the superior court did not abuse its discretion in determining that Copeland was not the prevailing party based on a catalyst theory for purposes of an award of attorney's fees.
In light of our decision affirming the superior court's conclusion that Copeland was not the prevailing party, we need not address Copeland's argument that he is entitled to full reasonable attorney's fees as a prevailing public interest litigant.
IV. CONCLUSION
The decision of the superior court is AFFIRMED.