Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Dana Olson filed an administrative appeal challenging a State of Alaska Department of Natural Resources timber sale. The superior court granted the State's motion to dismiss and Olson appeals the dismissal. Because Olson did not meet the statutory eligibility requirements to appeal the agency's determination, we affirm the superior court's order dismissing the appeal.
II. FACTS AND PROCEEDINGS
On May 1, 2006, Dana Olson appealed the Department of Natural Resource's (DNR's) decision to proceed with the West Petersville # 1 Timber Sale. The sale was scheduled for the next day. Prior to her superior court appeal, Olson had not been involved in the administrative process.
The sale was the result of a multi-year planning process throughout which the State solicited and responded to public comments. In January 2005 DNR published the Five-Year Schedule of Timber Sales (FYSTS), which included the West Petersville # 1 Timber Sale. The Department provided notice of the sale and accepted public comment until March 7, 2005. According to DNR, "[t]wenty-nine comments were received and used to identify issues that were later addressed in the Forest Land Use Plans." Olson did not submit comments on the proposed timber sale.
Notice was published in the ANCHORAGE DAILY NEWS and MAT-SU VALLEY FRONTIERSMAN newspapers, was
posted in all Mat-Su post offices and on the State of Alaska Public Notice and the Division of Forestry websites, [and was] also sent to agencies, Mat-Su community councils, tribal councils, Native corporations, planning commissions, Legislative offices, conservation groups, small mill operators, timber industry representatives, and private citizens who had requested such mailings.
DNR then issued a preliminary Forest Land Use Plan (FLUP) on October 11, 2005. DNR invited public comment on the preliminary FLUP and "[f]or each point raised, either a change was made to the proposed timber sale contract . . ., the final FLUP was amended . . ., or the response explained why a change was not appropriate." Following the public comment period, DNR published the final FLUP on January 3, 2006.
The final FLUP provided that "[any] person affected by this decision who provided timely written comment [could] request reconsideration [of the decision]." The requests for reconsideration were due to the State by January 24, 2006; on March 22, 2006, the agency released its final decision on reconsideration. DNR indicated that the decision could be appealed to the superior court within thirty days.
Olson appealed the administrative decision to the Palmer Superior Court on May 1, 2006, ten days after the thirty-day window had closed. She appealed the FLUP, contending that "notice [was] not afforded," and sought a "court order to revise/amend Susitna Area Plan."
The State moved to dismiss the appeal. The superior court dismissed Olson's appeal with prejudice because "it [was] untimely, because the appellant failed to participate in the underlying administrative process, and because the issues raised are moot." Olson filed a motion for reconsideration, which was denied. Olson appeals the dismissal.
III. DISCUSSION
A. Standard of Review
We review decisions granting or denying motions to dismiss de novo. When reviewing these decisions, we take the allegations contained in the complaint to be true. We affirm the grant of motions to dismiss when it appears that the claimants "can prove no set of facts which would entitle them to relief." B. The Superior Court Properly Dismissed Olson's Appeal Under AS 38.05.035.
Varilek v. City of Houston, 104 P.3d 849, 851 (Alaska 2002).
Valdez Fisheries Dev. Ass'n v. Alyeska Pipeline Serv. Co., 45 P.3d 657, 664 (Alaska 2002).
Id.
Alaska Statute 38.05.035(i) designates those individuals who may appeal agency decisions like the Forest Land Use Plan:
A person is eligible to file an administrative appeal or a request for reconsideration if the person
(1) meaningfully participated in the process set out in this chapter for receipt of public comment by
(A) submitting written comment during the period for receipt of public comment; or
(B) presenting oral testimony at a public hearing, if a public hearing was held; and
(2) is affected by the final written finding.
The State argues that because Olson "did not comment, testify or request an administrative appeal or reconsideration as described in AS 38.05.035(i)," she was not eligible to bring an appeal to the superior court.
We have previously held that "the pleadings of pro se litigants should be held to less stringent standards than those of lawyers." But in this case, the statutory scheme specifically identifies the persons who are "eligible to file an administrative appeal" of the agency decision, and the superior court had no discretion to disregard the statutory scheme. Olson fails to offer any evidence that she "meaningfully participated in the [public] process" at any stage before she filed her appeal. And she does not dispute that the agency's deadlines for comment or testimony were clear. She simply failed to participate until she filed her administrative appeal in the superior court, and she was thus ineligible to file an administrative appeal under the statute.
DeNardo v. Calista Corp., 111 P.3d 326, 330 (Alaska 2005).
See AS 38.05.035(i).
See id.
See id.
Because the statute identifies the individuals who are eligible to bring administrative appeals and because Olson's lack of participation in the underlying administrative process rendered her ineligible, she can "prove no set of facts which would entitle [her] to relief." The superior court appropriately dismissed her appeal.
Valdez Fisheries, 45 P.3d at 664.
IV. CONCLUSION
We AFFIRM the decision of the superior court.