DEC Adjudicatory Hearings

Overview

Adjudicatory hearings involve administrative appeals of decisions made by department staff. If someone is directly and adversely affected by a department decision, they can request a review by a higher authority within the department. 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.

DEC Timelines

Requestors have 30 days after release of a permit or decision to file an appeal. Then within ten days the Office of the Commissioner should post a notice of the request and conditionally refer the request to the Office of Administrative Hearings.

Following the release of the notice, the requester, the division, the permittee, and the interested public have twenty calendar days to respond to the notice. The requester then has seven calendar days to reply to the response filed by the division. Once the requester’s reply is received, the Office of Administrative Hearings has ten calendar days to prepare a recommended decision for the Commissioner to grant or deny, or remand the decision to the Division for additional work. The Commissioner has ten calendar days after receiving the recommended decision from the Office of Administrative Hearings to make a final decision on whether to grant the request. If the requester has asked for a stay of the decision during the pendency of the process, the Commissioner sets the deadline on whether to grant or deny 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.

Following the referral, the division prepares the administrative record and provide it to the Office of Administrative Hearings (OAH). 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.

OAH Timelines

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. OAH adjudication is subject to compressed deadlines, and parties should expect to convene immediately for a planning conference, and to complete briefing and hearing preparation under short deadlines. However, it is common for these deadlines to be extended by mutual agreement. Parties can also agree to stay the OAH process if they wish to engage in alternative dispute resolution under 18 AAC 15.205.

The Office of Administrative Hearings has their own regulations for conducting appeals that can be found at 2 AAC 64.010 – 990.

Under Alaska Statute at AS 44.64.060(c), the Commissioner may request the Chief Administrative Law Judge to participate with the assigned administrative law judge (ALJ) in the conduct of the administrative hearing. In this scenario, (1) the Commissioner and the ALJ sit jointly to hear evidence and arguments at a time set for the convenience of the Commissioner; (2) the ALJ makes evidentiary and procedural rulings, but the Commissioner is permitted to question witnesses and counsel; (3) the ALJ and the Commissioner deliberate jointly, with the ALJ preparing a draft decision after those deliberations. In this scenario, the decision is final when issued by OAH

In a second scenario, the Commissioner does not participate in the adjudicatory hearing. In that scenario, the ALJ hears evidence and arguments, makes evidentiary and procedural rulings, and questions witnesses and counsel. The ALJ then drafts a decision after the adjudicatory hearing is completed. 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

Court Deadlines

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.