DEC Adjudicatory Hearings
Adjudicatory hearings involve administrative appeals of decisions made by department staff. If someone is directly and adversely affected by a decision, they can request a review by a higher authority. Those decisions can be:
- A decision to issue or deny a permit
- A decision to approve or disapprove a plan
- A decision to charge a fee
- A decision to assess a penalty
Typically, a person must exhaust their administrative appeal rights before filing an appeal with the court system. The adjudicatory hearing process addresses the need to provide due process as outlined in the Alaska Constitution. Due process includes the right to a neutral and unbiased decision-maker who presides over proceedings that are fair and that have the appearance of fairness.
Appeals of department decisions are filed with the Office of the Commissioner. The Commissioner initially serves as a gatekeeper to determine:
- Does the requester have standing to file an appeal?
- Does the request meet the criteria for filing an appeal?
- Did the division follow the proper process to reach the decision?
- Does the decision meet the regulatory standards?
- If requested, should the decision be stayed during the pendency of the appeal process?
The Commissioner's gatekeeper role in granting or denying an adjudicatory hearing is limited to determining whether there is a genuine dispute over a material fact or question of law that affects the requester. This role is similar to that of a judge in court reviewing the initial pleadings for a lawsuit. The initial determination by the Commissioner is on whether the threshold standards for granting an adjudicatory hearing have been met, not whether the requester will successfully challenge the agency's decision. The "soundness" of the agency's decision is not the issue before the Commissioner at the point of granting or denying an adjudicatory hearing, as it would not be proper to pre-judge the outcome without having all the facts presented. The requester bears the burden of presenting evidence in the hearing request. Depending on the answers to these questions, the Commissioner can grant the appeal, deny the appeal, or remand the decision to the division.
Requestors have 30 days after release of a permit or decision to file an appeal. Then within 10 working days the Office of the Commissioner should public notice the request and advise the Office of Administrative Hearings that the request will be acted upon after the Commissioner has been briefed.
Following the release of the public notice the requester, the division and the interested public have twenty days to respond to the public notice. The requester then has seven days to reply to the responses filed by the division and the public. Once the requester's reply is received, the Commissioner has thirty days to decide whether to grant the appeal, deny the appeal, or remand the decision to the division. If the requester has asked for a stay of the decision during the pendency of the process, the Commissioner has fifteen days to decide whether to grant the stay. In reviewing the request for stay the Commissioner will consider:
- The relative harm to the person requesting the stay
- The relative harm to the permit applicant
- The relative harm to public health, safety and the environment
- The resources that would be committed during the pendency if the stay were granted or denied
- The likelihood that the person requesting the stay will prevail in the proceedings on the merits
The Commissioner can deny an appeal outright or can deny the adjudicatory hearing request and grant a hearing on the existing agency record and on written briefs. In the decision to grant a hearing the Commissioner can put specific sideboards on the issues and request the administrative law judge to address specific questions that were raised in the appeal. If the Commissioner grants an appeal, the department publishes a notice of the action in a newspaper of general circulation and refers the matter to the Office of Administrative Hearings.
The Office of the Commissioner then advises the division to prepare the administrative record and provide it to the Office of Administrative Hearings. This is a key element of the process; if the appeal is elevated to the Superior Court, the record of the decision needs to be clear, complete and robust. It is the responsibility of the divisions to ensure that the administrative record is clear, complete and robust before finalizing a decision. Having a solid administrative record provides the division with the opportunity to present the information and decision making process in detail. This will serve them well in the permit and in any potential challenge of the permit. This also ensures that if the decision is appealed, the Administrative Law Judge has all the resources and information necessary to make a clear and informed decision.
After the appeal is referred to OAH, the Chief Administrative Law Judge will assign it to one of the Administrative Law Judges located in Juneau or Anchorage. This assignment is subject to challenge by either party in the matter. In theory, the Office of Administrative Hearings should be able to complete the adjudicatory hearing process within the 120 days outlined in regulation.
The Office of Administrative Hearings has their own regulations for conducting appeals that can be found at 2 AAC 64.010 – 990. Many appeals are completed within this time frame, but others appeals have far exceeded that deadline. Once the Administrative Law Judge has drafted a decision that draft decision is provided to the involved parties and the Commissioner for review and comment. The Commissioner has 45 days to return the draft decision to the Administrative Law Judge. The Commissioner can take the following actions:
- Adopt the draft decision as final
- Return the draft decision with further instructions to OAH to act on within 45 days
- Revise the proposed decision and adopted it as final
- Reject, modify or amend a finding in the draft decision and issue a final
- Reject, modify or amend an interpretation in the draft decision and issue a final
- Allow the draft decision to become final by default after 45 days by taking no action
If the requester is not satisfied with the final decision from the Commissioner, they have 30 days to appeal the decision to the Alaska Superior Court.