Memorandum decisions of this court do not create legal precedent. A party wishing to cite such a decision in a brief or at oral argument should review Alaska Appellate Rule 214(d).
MEMORANDUM OPINION AND JUDGMENT
In the face of prospective nearby road construction a property owner sought recognition of his property as a historic place. He filed his request at the agency level, appealed the agency decision to the superior court, then appealed that decision to us. Because the road construction adjacent to his property is complete and he has other avenues to obtain the relief he seeks, we now dismiss his appeal as moot.
1. Kenneth Ray owns real property on Fairview Loop in Wasilla, which he alleged includes items of historical significance. The Department of Transportation (DOT) began planning a state-funded road improvement project for Fairview Loop. The project envisioned resurfacing travel lanes, widening shoulders to four feet, improving drainage, installing guardrails, and constructing a separated multi-use pathway. The Alaska Historic Preservation Act directs the Department of Natural Resources (DNR) to "locate, identify, and preserve in suitable records information regarding historic, prehistoric, and archeological sites, locations, and remains."
2. In this case DOT, not DNR, conducted a survey. DOT found no properties over 45 years old in the direct "[a]rea of [p]otential [e]ffect." After reviewing Fairview Loop properties more than 45 years old in the indirect area of potential effect — including Ray's — DOT determined that only two properties, neither of them Ray's, were eligible to be considered "historic" properties using eligibility criteria for listing on the National Register of Historic Places.
3. DOT forwarded this conclusion to DNR's Historic Preservation Officer, who concurred with DOT's assessment. Ray disagreed with the decision that his property was not "recommended as eligible for listing" on the National Register and appealed to DNR's Director of Parks and Outdoor Recreation. The Director agreed with DNR's concurrence and gave Ray information about appealing DNR decisions to the Commissioner. The Commissioner allowed Ray to appeal the Director's decision, despite some doubts about whether a concurrence was appealable.
4. Ray appealed the agency's final decision to the superior court, arguing that: (1) the Commissioner lacked authority to limit the issues at the hearing; (2) the survey inappropriately relied on federal regulations rather than on regulations promulgated by DNR pursuant to AS 41.35.050; (3) the Commissioner erred in affirming the finding of no adverse impact to Ray's property; and (4) the Commissioner erred in deciding that Ray suffered no prejudice from DNR's concurrence. After requesting supplemental briefing from the parties, the superior court concluded that it did not have subject matter jurisdiction to hear the appeal. The superior court noted that it had jurisdiction only when appeal was provided by law, and it concluded that no law gave it jurisdiction to hear the appeal. In the alternative the court reached the merits of the appeal and held that evidence in the record supported the Commissioner's determination that the construction project would not adversely affect the property and that DNR did not need to promulgate the National Register guidelines as regulations. Ray appealed to us.
5. We asked the parties to brief whether Ray's appeal was moot in light of the current road construction status. Construction initially was slated to occur in several phases, but the parties agree that the project scope was reduced and currently consists of two phases. The first phase, which minimally affected Ray's property, has been completed. Work related to the second phase has no direct effect on Ray's property because the closest work is approximately a quarter mile away. Ray's agency appeal was related to his own property — not property belonging to others — and in his hearing brief before the agency he sought reconsideration related to his property alone. Because the road work that directly affected Ray's property has been completed, no meaningful relief can be granted with respect to the superior court's decision as it applies to Ray's property, and the case is thus moot.
6. That a decision is not needed in this case is best demonstrated by the following two responses to Ray's primary points on appeal to us, (1) that he somehow has been adversely impacted preventing his property's inclusion on the National Register of Historic Places,
7. No exception to the mootness doctrine applies.
8. This appeal is DISMISSED.
DNR has a process through which property owners can nominate properties for inclusion in the National Register; a summary of the process is available online. See http://dnr.alaska.gov/Assets/uploads/DNRPublic/parks/oha/hpseries/hp06.pdf. As part of this process State Historic Preservation Officers review nominations. Id. National Park Service regulations permit an internal appeal when a Preservation Officer fails or refuses to nominate a property that an individual believes meets the criteria for inclusion in the National Register. 36 C.F.R. § 60.12(a) (2016).