Logger wins case against borough

ANCHORAGE — A Big Lake logger was not given a fair shake when he tried to appeal the Mat-Su Borough’s termination of his logging contract, the state Supreme Court has ruled.

The case dates back to 1998 when Charles Nash won a contract to log land near Trapper Creek in the Oilwell Road area. The road wasn’t much of a road at the time and Nash repeatedly asked for extensions to the time he was allowed to cut the trees while he upgraded the road. According to the Supreme Court decision penned by Justice Walter Carpeneti released Friday, Nash was given 12 extensions in all.

But in 2002, the borough terminated his contract because he never was able to get enough logs off the property. Nash appealed that decision to the borough’s Board of Adjustments and Appeals, claiming the borough was anti-development and threw roadblocks in his way because he wouldn’t ship the logs through Port MacKenzie.

Superior Court Judge Eric Smith slapped down all of Nash’s arguments, pointing to evidence that showed the borough manager had quashed any notion his staff might have had of ginning up violations against Nash to pressure him to use the port and stating that any problems Nash had were of his own making. He also ruled that while Nash’s hearing at the borough didn’t follow the same rules as a civil trial in a court of law, there is no requirement that board hearings mimic exactly hearings in state court.

Carpeneti’s decision didn’t deal with Nash’s allegations and only looked at whether the board process was fair and whether Judge Smith was right to deny Nash a trial. Smith had ruled the board process afforded Nash due process under the law and that therefore a new trial in Superior Court was unnecessary.

Carpeneti writes that the borough should have allowed Nash to call witnesses, and that the borough didn’t give him enough notice about how the board hearing would proceed.

He writes the borough argued that if Nash had brought any witnesses to the hearing they would have been allowed to testify. But that’s not quite good enough, Carpeneti wrote, because Nash had repeatedly asked and was not told if witnesses would be allowed. Nash argued that he could not ask his witnesses to take time off work to come to the hearing if he did not know for sure they would be heard.

“We cannot find due process in a hearing where parties do not know if they will be allowed to call witnesses until the hearing has actually begun,” the justice wrote.

The board, Carpeneti wrote, also seemed to have instituted a double standard. The borough was allowed to submit an affidavit from a borough employee without having that employee present, which denied Nash the right to question that employee.

The decision essentially sends the case back to Smith and orders him to hold a trial on the matter. Court records show the case has not yet been reopened.

Contact Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.