Mortvedt v. State, Department of Natural Resources

BURKE, Justice,

with whom COMPTON, Justice, joins, dissenting in part.

I respectfully dissent from that part of today’s decision requiring a remand on the issue of equitable estoppel.

I

The court concedes that the issue of equitable estoppel was not properly raised by *1145Mortvedt. It chooses, nevertheless, to order the case remanded to the department on that issue, because “Mortvedt, ... both before the superior court and at the administrative level, ... advance[d] facts which potentially could serve as a foundation for invocation of equitable estoppel against the Department of Natural Resources, State of Alaska.” Majority Op. at 1142, n. 5. The brief that Mortvedt filed in this appeal, containing a very clear assertion of his claim of equitable estoppel, makes it abundantly clear that Mortvedt was perfectly capable of making that argument in a timely and proper fashion. This being the case, there is no reason to depart from the standard rules of appellate procedure.

There are many cases in which the record contains facts which “potentially” could serve to establish a claim not made by a party prior to submission of the party’s brief. Nevertheless, it is necessary that there be limits to the amount of oversight that will be allowed, and there must be standards by which this court and litigants can determine which failures will be forgiven and which will not. Also, the court must be careful not to become an advocate for one of the parties. In the case at bar, the court appears to ignore established standards governing the right to appellate review, and its conduct comes perilously close to advocacy on Mortvedt’s behalf.

Mortvedt failed to raise the issue of equitable estoppel in the superior court, and it is not one of the issues listed in his statement of points on appeal. We should, therefore, decline to reach the issue in this appeal. Alaska R.App.P. 210(e), 501 P.2d 769, 770 n. 1 (Alaska 1972).1

II

If the issue of equitable estoppel must be addressed, I still see no reason to order a remand. Mortvedts’ estoppel claim is based upon the alleged promise by Nancy Falley to send him additional information about the cabin permit program. Falley, however, was a lower echelon employee in the Department of Natural Resources without actual or apparent statutory or regulatory authority to bind her employer to the particular course of action allegedly promised to Mortvedt. cf LeDoux v. Kodiak Island Borough, 827 P.2d 1121, 1123-24 (Alaska 1992); Messerli v. Department of Natural Resources, 786 P.2d 1112, 1121 (Alaska 1989); Municipality v. Schneider, 685 P.2d 94, 97-98 (Alaska 1984). Given this evidence, I think only one conclusion is reasonably possible: Mortvedt’s alleged reliance, whether real or not, was wholly unreasonable.

On the remaining issues, I concur in the opinion of the court.

. The doctrine of plain error is quite obviously inapplicable.