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Alaska v. Cook Inlet Drift Assoc. et al (2/18/94), 868 P 2d 913
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska 99501, in
order that corrections may be made prior to permanent
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court Nos. S-4966/4967
Cross-Appellee, ) Superior Court No.
) 3KN-91-596 CI
) O P I N I O N
UNITED COOK INLET DRIFT )
ASSOCIATION, KENAI PENINSULA ) [No. 4054 - February 18, 1994]
SPORTSMAN'S ASSOCIATION, )
RONALD COX, TIMOTHY MOORE, )
and HENRY WOJTUSIK, )
NINILCHIK TRADITIONAL )
Appeal from the
Superior Court of the State of Alaska,
Third Judicial District, Kenai,
Charles C. Cranston, Judge.
Appearances: Sarah E. Gay, Assistant
Attorney General, Anchorage, Charles E. Cole,
Attorney General, Juneau, for Appellant/Cross-
Appellee. Eric Smith, Anchorage, for
Appellee/Cross-Appellant. Michael A. D.
Stanley, Juneau, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews and Compton,
In McDowell v. State, 785 P.2d 1 (Alaska 1989), this
court determined that the preference given to rural residents
under Alaska's subsistence laws to harvest Alaska's fish and game
resources violated sections 3, 5, and 17 of article VIII of the
Alaska Constitution. Id. at 9. On remand the superior court
held that the rural preference provisions were severable from the
remaining subsistence provisions. The Attorney General's office
subsequently advised the Alaska Department of Fish and Game and
the Joint Boards of Fisheries and Game that where harvestable
surpluses of a stock were sufficient to satisfy all subsistence
uses of that stock, any Alaskan who desired to participate in the
subsistence use of that fish or game stock was eligible to do so.
On October 28, 1990 the Joint Boards of Fisheries and
Game adopted Policy Statement No. 90-18-JB, on the premise that
they had "no other option than to apply the standard that all
Alaskans are now eligible subsistence users under Tier I during
the upcoming regulatory cycle." Pursuant to this "all-Alaskan"
policy, the Board of Fisheries adopted regulations that codified
subsistence salmon fishery management plans for coho salmon in
Cook Inlet's Southern District and for all salmon species in the
Northern and Central Districts. See 5 Alaska Administrative Code
(AAC) 01.596 (repealed 1993); 5 AAC 01.598 (repealed 1993).
Prior to the scheduled effective date of these
regulations, United Cook Inlet Drift Association (UCIDA) filed
suit seeking declaratory and injunctive relief regarding 5 AAC
01.596 and 5 AAC 01.598. UCIDA sought a declaration that the
regulations were invalid and unenforceable "because they are
based on a policy statement of the Board of Fisheries that in
another action has been held invalid and of no force and effect."1
The prior action to which UCIDA refers is Morry v.
State, No. 2BA-83-87 Civ. (Alaska Super., May 23, 1991), in which
Judge Michael I. Jeffery issued a partial final judgment pursuant
to Alaska Civil Rule 54(b). This partial final judgment provided
in relevant part:
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that any policy statement by the
Joint Boards of Fisheries and Game, or the
Board of Game individually, declaring that
"all Alaskans are now eligible subsistence
users" is invalid and of no force and effect
unless interpreted to mean that "all Alaskans
are eligible to be considered subsistence
users" if, prior to the subsistence hunting,
their individual use of the fish or game
meets criteria for "noncommercial, customary
and traditional" subsistence uses of the
particular fish and game population being
harvested, under criteria established by
regulation such as 5 AAC 99.010(b). McDowell
v. State, 785 P.2d 1, 11 (Alaska 1989).
The Ninilchik Traditional Council (Ninilchik) moved to
intervene, contending that the challenged regulations adversely
affected the subsistence lifestyle and culture of its members.
Ninilchik's motion was subsequently granted.2
The superior court's Decision on Motion for Declaratory
Judgment concluded that the same all-Alaskan policy statement
being challenged in this case had been previously considered and
held invalid in Morry. The superior court observed that Judge
Jeffery's invalidation of the all-Alaskan policy was not confined
to the facts of Morry. The superior court further held that it
was bound by application of the doctrine of collateral estoppel
to follow Judge Jeffery's ruling invalidating the all-Alaskan
policy.3 Based on Judge Jeffery's ruling the superior court
granted final judgment to UCIDA on Count I of its complaint:
5 AAC 01.596 and .598 are declared
invalid for the reason that the state is
collaterally estopped from asserting their
validity because of the decision of [Judge
Jeffery] in Morry v. State, 2BA-83-87 Civ.,
in which that court invalidated the Alaska
Board of Fisheries and Game's policy that
"all-Alaskans [sic] are eligible to
participate in subsistence uses."
Following the entry of final judgment, both UCIDA and
Ninilchik moved for awards of full attorney's fees on the ground
that they were public interest litigants. The superior court
denied the motions for full fees, but awarded partial fees of
$4,237.50 to UCIDA and $3,206.25 to Ninilchik.
The State has appealed from the superior court's
invalidation of the "all-Alaskan" policy. Ninilchik has
cross-appealed from the superior court's refusal to award it full
reasonable attorney's fees on the basis of its status as a public
II. NON-MUTUAL COLLATERAL ESTOPPEL
A. Standard of Review
This court is not bound by the superior court's
resolution of questions of law. Rather we will adopt the rule of
law that is most persuasive in light of precedent, reason, and
policy. Ford v. Municipality of Anchorage, 813 P.2d 654, 655
(Alaska 1991). The applicability of collateral estoppel to a
particular set of facts is a question of law subject to
independent review. Rapoport v. Tesoro Alaska Petroleum Co., 794
P.2d 949, 951 (Alaska 1990).
The parties disagree on whether the disputed legal
issue underlying the State's appeal is moot. Judge Jeffery's
ruling in Morry invalidating the "all-Alaskan"policy was later
overruled in State v. Morry, 836 P.2d 358 (Alaska 1992).
Therefore, UCIDA and Ninilchik contend that the superior court's
judgment in this case is now moot.5 The State argues that even
if we conclude that the non-mutual offensive collateral estoppel
issue is technically moot, we still should consider it under our
discretionary review authority.
This case is not moot. The underlying judgment of the
superior court exists until it is vacated by the superior court
or vacated or reversed by this court. We do so in this case
based on our decision in Morry.
The question that may be moot is the propriety of using
non-mutual collateral estoppel against the State. As to this
question, we think the State's arguments are persuasive.
Assuming this aspect of the case has been mooted by subsequent
developments, we conclude that the question of the application of
non-mutual collateral estoppel against the State should be
addressed under the public interest exception to the doctrine of
C. Application of Non-Mutual Offensive Collateral
Estoppel Against the State7
There are three requirements for application of
(1) The plea of collateral estoppel must
be asserted against a party or one in privity
with a party to the first action;
(2) The issue to be precluded from
relitigation by operation of the doctrine
must be identical to that decided in the
(3) The issue in the first action must
have been resolved by a final judgment on the
Murray v. Feight, 741 P.2d 1148, 1153 (Alaska 1987). Although we
have abandoned the requirement of mutuality of parties, we have
stated that "[i]f the particular circumstances of the prior
adjudication would make it unfair to allow a person who was not a
party to the first judgment to invoke . . . collateral estoppel
then the requirement of mutuality must still be applied."
Pennington v. Snow, 471 P.2d 370, 377 (Alaska 1970), limited on
other grounds by Kott v. State, 678 P.2d 386, 391-93 (Alaska
1984) (declining to abandon mutuality requirement in criminal
cases); see also Pruitt v. State, Dep't of Pub. Safety, 825 P.2d
887, 890 (Alaska 1992).
The State concedes that the three requirements for the
application of collateral estoppel identified in Murray are
present in the instant case.8 The State contends, however, that
considerations of basic fairness and the policy reasons endorsed
by the U.S. Supreme Court in United States v. Mendoza, 464 U.S.
154 (1984), support a reversal of the superior court's
application of non-mutual offensive collateral estoppel against
the State on a significant question of law.
We conclude that the superior court properly applied
non-mutual collateral estoppel against the State.9 The exception
to this doctrine which the Mendoza court created was one
especially fashioned for the federal government as a litigant.10
In Mendoza the U.S. Supreme Court identified the following
factors that militated against application of non-mutual
offensive collateral estoppel against the United States
(1) the desirability of "permitting
several courts of appeals to explore a
difficult question before this Court grants
(2) the government's need for
flexibility in determining when to appeal;
(3) the importance of preserving policy
choices for successive administrations.
Id. at 160-61.
We think UCIDA's and Ninilchik's arguments
distinguishing state litigation from federal litigation in the
context of these three factors are persuasive. As to the first
factor, they note that in contrast to a federal district court,
the superior court's jurisdiction is statewide,11 and that since a
litigant in Alaska can appeal as a matter of right, there is no
need to let an issue percolate prior to authorizing an appeal.12
Additionally, allowing the State unlimited discretion to
relitigate issues adversely decided against it would inevitably
result in agency disregard for court orders.
Concerning the second factor, the State's attempt to
equate the functions of Alaska's Attorney General with those of
the United States Solicitor General do not withstand scrutiny.
Unlike the Solicitor General, Alaska's Attorney General
essentially litigates in a single jurisdiction. Consequently,
the need to authorize appeals of only the strongest cases is not
as compelling as it is in the diverse federal judicial system.
As to the third Mendoza factor, preserving policy
choices for successive administrations, we agree with UCIDA and
Ninilchik that this factor does not carry significant weight.
Given the wide variety of options a new state administration has
in regard to pursuing its own policy initiatives, we are not
persuaded that this factor compels adoption of the Mendoza
federal government exception to application of non-mutual
offensive collateral estoppel.13
Furthermore, exempting the State from application of
non-mutual collateral estoppel would result in inconsistent
application of the law.14 Where private litigants would be barred
from litigating the same issue over and over against different
litigants, the State would be free to do so. A state exemption
would result in fundamental unfairness to private litigants and a
loss of public respect for the judicial system.
We conclude that the State's argument for adoption of
the Mendoza exception for the state government to the application
of nonmutual collateral estoppel should be rejected.15
The superior court's entry of final judgment on Count I
of UCIDA's complaint is reversed based on State v. Morry, 836
P.2d 358 (Alaska 1992). We have considered and rejected the
State's contention that it should be exempted from application of
the doctrine of non-mutual offensive collateral estoppel.
Whether Ninilchik is a public interest litigant entitled to
recover full reasonable attorney's fees against the state is a
moot question, since, in view of our disposition herein, the
State was the prevailing party and public interest litigants who
are not prevailing parties are not entitled to an award of
1 In its superior court complaint UCIDA also asserted
that the regulations were invalid because they were inconsistent
with existing subsistence statutes and were not adopted in
conformity with the Administrative Procedure Act, AS 44.62.
After the complaint was filed the superior court issued
a temporary restraining order prohibiting the state from
implementing the Upper Cook Inlet Subsistence Management Plan, 5
AAC 01.598. The state then petitioned for review. We granted
the petition and reversed because the superior court had failed
to consider the potential injury to subsistence users that would
result from issuance of a T.R.O., and on the further ground that
AS 16.05.258(c) granted a preference to subsistence users over
commercial users. State v. United Cook Inlet Drift Ass'n, 815
P.2d 378, 379 (Alaska 1991).
2 The superior court concluded that Ninilchik met
requirements for intervention set out in Civil Rule 24(a) and
State v. Weidner, 684 P.2d 103, 113-14 (Alaska 1984).
3 In so holding the superior court determined that UCIDA
met requirements for application of the doctrine of collateral
estoppel identified in Murray v. Feight, 741 P.2d 1148, 1153
(Alaska 1987). The superior court further concluded that the
State was afforded a full and fair opportunity to litigate the
validity of the all-Alaskan policy in the Morry case.
4 Ninilchik raised several other issues on cross-appeal,
but has chosen not to pursue them. UCIDA does not appeal from
the denial of attorney's fees.
5 UCIDA and Ninilchik also note that the legislature
subsequently amended the subsistence laws, Ch. 1, 2d Special
Sess., SLA 1992. "The Cook Inlet subsistence salmon regulations
at issue in this case have been reinstated, and there is now no
case or controversy concerning the all Alaskans policy underlying
6 The test for application of the public interest
exception to the mootness doctrine involves three main factors:
"(1) whether the disputed issues are capable of repetition, (2)
whether the mootness doctrine, if applied, may repeatedly
circumvent review of the issues and, (3) whether the issues
presented are so important to the public interest as to justify
overriding the mootness doctrine." Hayes v. Charney, 693 P.2d
831, 834 (Alaska 1985); see also Peninsula Mktg. Ass'n v. State,
817 P.2d 917, 920 (Alaska 1991). In our view, the State
persuasively demonstrates that the issue here meets all three
requirements for invocation of the public interest exception to
the mootness doctrine.
7 Relitigation of issues that have been litigated and
determined in an earlier action by a final judgment are precluded
by application of collateral estoppel. DeNardo v. Municipality
of Anchorage, 775 P.2d 515, 517 (Alaska), cert. denied, 493 U.S.
922 (1989). Offensive use of collateral estoppel occurs where a
plaintiff seeks to preclude a defendant from relitigating an
issue that the defendant previously litigated unsuccessfully
against the same or a different party. United States v. Mendoza,
464 U.S. 154, 159 n.4 (1984). Defensive use of collateral
estoppel occurs where a defendant seeks to prevent a plaintiff
from relitigating an issue the plaintiff has previously litigated
unsuccessfully in another action against the same or different
8 The State's concession reads in part: "[T]he state was
a party to the prior Morry litigation, the issue of the 'all-
Alaskan' interpretation of the subsistence statute was identical,
and there was a final judgment on the merits in the superior
9 Our use of the term non-mutual offensive collateral
estoppel in this case is limited to the decretal provisions of
the lower court's decision. The term does not encompass the
court's rationale or its judgment, nor does it encompass
evidentiary facts as distinguished from ultimate facts.
10 In Mendoza the U.S. Supreme Court stated:
We have long recognized that "the
Government is not in a position identical to
that of a private litigant,"both because of
the geographic breadth of Government
litigation and also, most importantly,
because of the nature of the issues the
Government litigates. It is not open to
serious dispute that the government is a
party to a far greater number of cases on a
nationwide basis than even the most litigious
private entity . . . . Government litigation
frequently involves legal questions of
substantial public importance; indeed,
because the proscriptions of the United
States Constitution are so generally directed
at governmental action, many constitutional
questions can arise only in the context of
litigation to which the Government is a
party. . . .
A rule allowing nonmutual
collateral estoppel against the Government in
such cases would substantially thwart the
development of important questions of law by
freezing the first final decision rendered on
a particular legal issue. Allowing only one
final adjudication would deprive this Court
of the benefit it receives from permitting
several courts of appeals to explore a
difficult question before this Court grants
464 U.S. at 159-60 (citation omitted).
11 AS 22.10.020(b).
12 UCIDA also notes that any potential benefit that Alaska
courts might derive from relitigating legal issues would be
minimal, since superior court opinions are generally unpublished
and therefore not readily available throughout the Alaska
13 Federal courts in New York also have declined to extend
the Mendoza exception to state government, on the ground that the
factors warranting the federal exception did not apply to the
state. See Benjamin v. Coughlin, 708 F. Supp. 570, 573 (S.D.N.Y.
1989), aff'd, 905 F.2d 571, 576 (2d Cir.), cert. denied, 498 U.S.
14 Professor Motomura cites three goals that are commonly
advanced in support of giving collateral estoppel effect to prior
judgments: (1) efficiency, (2) repose, and (3) consistency.
Hiroshi Motomura, Using Judgments as Evidence, 70 Minn. L. Rev.
979, 1003-04 (1986). Respect for prior judgments and a desire
for consistent results is "the goal most clearly shared by
collateral estoppel and evidence." Id. at 1005. Professor
"According insufficient weight to prior
decisions encourages disrespect and disregard
of courts and their decisions and invites
litigation." Both collateral estoppel and
use of judgments as evidence are devices by
which the fact finder in later litigation
will give appropriate weight to prior
proceedings. . . .
The degree of deference a legal
system gives to prior findings is an
indication of how seriously the legal system
regards those findings. It also reflects how
seriously the legal system views itself or,
if it did not make the finding, how seriously
it views the system that made it. The degree
of deference given to prior judgments also
helps to determine whether an inevitably
imperfect system can achieve the consistency
of results that is the basis of public
Id. at 1005-06 (quoting Edward W. Cleary, Res Judicata
Reexamined, 57 Yale L.J. 339, 345 (1948)) (footnotes omitted).
15 We also note our agreement with the superior court's
ruling that the State in the Morry case was afforded a full and
fair opportunity to litigate the validity of the all-Alaskan
One additional facet of this question remains to be
addressed. In its reply brief the State concedes that it "is
still bound by the decisions of the superior court with respect
to the specific parties and the facts before that court. For
example, if the superior court invalidates a regulation, the
state is bound by that ruling unless it is stayed or overturned
In the instant case we think a persuasive argument can
be made that under the terms of Judge Jeffery's judgment in the
Morry case the State's all-Alaskan policy/regulation was
invalidated, and that thereafter the Joint Boards of Game and
Fisheries were prohibited by the terms of the judgment from
employing their all-Alaskan policy in promulgating any future
fish and game regulations. Given the statewide jurisdiction of
the superior court, the Morry decree was arguably binding on the
Boards of Game and Fisheries in all four of Alaska's judicial
16 Though our holding makes the State the prevailing party
in this case, the State cannot recover attorney's fees from
Ninilchik. We have consistently denied awards of attorney's fees
against losing parties who have in good faith litigated issues of
genuine public interest. See Oceanview Homeowners Ass'n v.
Quadrant Constr. & Eng'g, 680 P.2d 793, 799 (Alaska 1984);
Anchorage v. McCabe, 568 P.2d 986, 989 (Alaska 1977); Gilbert v.
State, 526 P.2d 1131, 1136 (Alaska 1974).
We have previously rejected arguments that subsistence
use constitutes a private interest sufficient to deny public
interest status. Alaska Survival v. State, Dep't of Natural
Resources, 723 P.2d 1281, 1292 (Alaska 1986). If a litigant
relies on hunting, fishing, and gathering resources "for personal
rather than commercial purposes,"then the party's economic
interests are not so "substantial"that he or she would not
qualify as a public interest litigant. Id. Under Alaska
Survival, Ninilchik meets our test for determination of public