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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. West v. State, Board of Game (8/6/2010) sp-6497
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| RONALD T. WEST, | ) | |
| ) Supreme Court Nos. S- 13184/13343 | ||
| Appellant, | ) (Consolidated | ) |
| ) | ||
| v. | ) Superior Court Nos. 3AN- 06-13087 CI | |
| ) and 3AN-06-10956 CI (Consolidated | ) | |
| STATE OF ALASKA, BOARD OF | ) | |
| GAME, and McKIE CAMPBELL, | ) O P I N I O N | |
| COMMISSIONER, DEPARTMENT OF | ) | |
| FISH AND GAME, ALASKA | ) No. 6497 August 6, 2010 | |
| WILDLIFE ALLIANCE, DEFENDERS | ) | |
| OF WILDLIFE, SIERRA CLUB, TOM | ) | |
| CLASSEN, and FRIENDS OF | ) | |
| ANIMALS, | ) | |
| Appellees. | ) | |
| ) | ||
ALASKA WILDLIFE ALLIANCE, )
DEFENDERS OF WILDLIFE, )
)
Cross-Appellants, )
)
v. )
)
RONALD T. WEST, STATE OF )
ALASKA BOARD OF GAME, and )
McKIE CAMPBELL, COMMISSIONER, )
DEPARTMENT OF FISH AND GAME, )
SIERRA CLUB, TOM CLASSEN, and )
FRIENDS OF ANIMALS, )
)
Cross-Appellees.)
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, William F. Morse, Judge.
Appearances: Robert C. Erwin, Robert C.
Erwin, LLC, Anchorage, and Ronald T. West,
Anchorage, for Appellant and Cross-Appellee,
Ronald T. West. Michael J. Frank, Trustees
for Alaska, Anchorage, and Valerie Brown, Law
Office of Valerie Brown, LLC, Anchorage, for
Appellees and Cross-Appellants, Defenders of
Wildlife and Alaska Wildlife Alliance. Kevin
M. Saxby, Senior Assistant Attorney General,
Anchorage, and Richard A. Svobodny, Acting
Attorney General, Juneau, for Appellee, and
Cross-Appellee, State of Alaska. Notice of
non-participation filed by Michael A.
Grisham, Dorsey & Whitney LLP, Anchorage, for
Appellees and Cross-Appellees, Friends of
Animals, Inc. and Tom Classen. No appearance
by Appellee and Cross-Appellee, Sierra Club.
Before: Carpeneti, Chief Justice, Fabe, and
Christen, Justices. [Winfree, Justice, not
participating.]
CHRISTEN, Justice.
I. INTRODUCTION
Two conservation advocacy groups and Ronald T. West
appeal a superior court order granting summary judgment in favor
of the Alaska Board of Game (the Board). The court ruled that
the Boards 2006 predator control plans do not violate article
VIII, section 4 of the Alaska Constitution Alaskas sustained
yield clause and the sustained yield mandate in AS 16.05.255
Alaskas intensive game management statute. Appellants contend
the Board failed to consider and apply the principle of sustained
yield to its management of wolves and bears affected by predator
control plans the Board established in 2006. West also appeals
the superior courts denial of his motion for attorneys fees. We
conclude that the Board has both a constitutional and statutory
duty to apply principles of sustained yield when it establishes
predator control plans, but appellants did not meet their burden
of demonstrating that the 2006 plans fail to comply with
sustained yield principles. We also conclude that the superior
court did not abuse its discretion in denying West attorneys fees
because West was not a prevailing party.
II. FACTS AND PROCEEDINGS
Controlling predator populations to increase prey
populations is a practice with a long and sometimes controversial
history in Alaska.1 Following World War II, the federal
government began a far-reaching predator control program that
used poison baiting and aerial hunting to control wolf
populations throughout Alaska. After statehood, the use of
poison baiting was prohibited in Alaska but aerial wolf hunting
was not. Concerns over aerial wolf hunting and the use of snares
continued in the 1990s, as did the controversy over predator
control.2
Alaskas constitution incorporates principles of natural
resource management that serve as the foundation for the
management of Alaskas wildlife. Alaska was the first state to
have a constitutional article devoted to natural resources, and
it is the only state to have a constitutional provision
addressing the principle of sustained yield.3 Alaskas sustained
yield clause article VIII, section 4 provides that:
[f]ish, forests, wildlife, grasslands, and
all other replenishable resources belonging
to the State shall be utilized, developed,
and maintained on the sustained yield
principle, subject to preferences among
beneficial uses.
Alaska Statute 16.05.255 is an implementing statute for Alaskas
sustained yield clause. In 1994, the Alaska legislature amended
AS 16.05.255 to incorporate new principles of intensive
management aimed at increasing big game prey populations in areas
where the Board determines human consumptive use is preferred.4
Alaskas intensive management statute requires that the Board
adopt regulations to provide for intensive management programs to
restore the abundance or productivity of identified big game prey
populations as necessary to achieve human consumptive use goals.5
The changes to AS 16.05.255 set the stage for the current dispute
because the amended statute provides for control of predation in
areas where the Board determines intensive management is
required.6
When the legislature adopted the intensive management
statute in 1994, it expressed a clear policy that providing for
high levels of harvest for human consumptive use in accordance
with the sustained yield principle is the highest and best use of
identified big game prey populations in most areas of the state.7
In 1998 AS 16.05.255 was again amended, this time, to include an
explicit requirement that intensive game management be consistent
with sustained yield, which the legislature defined as the
achievement and maintenance in perpetuity of the ability to
support a high level of human harvest of game, subject to
preferences among beneficial uses, on an annual or periodic
basis.8
Until 2006, the Boards general regulatory framework for
predator control of wolves and bears was found in 5 AAC 92.110
and .115;9 specific wolf and bear control plans were set forth in
5 AAC 92.125. Prior to 2006, any regulation adopting a predator
control plan, including section .125, was required to address a
series of regulatory requirements set forth in sections .110 and
.115. One of the regulatory requirements was that the Board
consider sound wildlife management principles based upon
sustained yield for all predator control plans.10
In a separate and earlier challenge to the Boards wolf
control plans, Judge Sharon Gleason issued an order dated January
17, 2006 invalidating the then-existing predator control plans on
the basis that the Board failed to adequately address the
regulatory requirements of 5 AAC 92.110.11 The Board convened an
emergency meeting in response to Judge Gleasons order and adopted
interim regulations establishing temporary predator control plans
to replace those that had been invalidated. At the next regularly
scheduled meeting, held just a few days later, the Board
eliminated the internal regulatory requirements in sections .110
and .115, including the express requirement that the Board
consider sustained yield principles.
The Board again considered its predator control plans
during meetings it held in March and May of 2006. During these
meetings, the Board heard considerable testimony from biologists
from the Alaska Department of Fish and Game (ADF&G) on the
proposed permanent predator control plans. It also received
extensive written comments from the public regarding the proposed
plans. Ultimately, the Board adopted modified versions of the
interim regulations as permanent regulations, although it
expanded the coverage of the plans in some areas.
Defenders of Wildlife and The Alaska Wildlife Alliance
(collectively Defenders) challenged the validity of the Boards
2006 predator control plans in a complaint filed in August 2006.12
In the superior court, Defenders case focused primarily on
alleged violations of Alaskas Administrative Procedure Act and an
array of other substantive challenges unrelated to sustained
yield. Defenders also claimed that the Boards 2006 predator
control plans were invalid because the Board failed to apply
principles of sustained yield to wolf and bear populations in
predator control areas when it adopted its predator control
plans.
Ronald T. West was allowed to intervene in March 2007.
His complaint in intervention adopts all of Defenders claims by
reference and raises two additional claims. Wests Count X
alleges that defendants have violated their constitutional duty
to manage game populations for the benefit of all citizens on the
grounds that they did not conduct accurate, scientific studies of
prey and predator populations. Wests Count XI alleges that the
Boards predator control plans are unconstitutional . . . in that
[they] do not manage predators for sustained yield. Wests Count
XI substantially overlaps with Defenders Count VIII.13
The parties filed cross-motions for summary judgment
and in March of 2008 the superior court issued a comprehensive
written order addressing all of the parties outstanding claims.
The court dismissed the Administrative Procedure Act claims and
most of the other substantive claims unrelated to sustained yield14
but ruled that article VIII, section 4 of Alaskas Constitution
applies to predators, including wolves and bears. The court
concluded that the Boards 2006 predator control plans did not
violate Alaskas sustained yield clause because the management of
wildlife resources may constitutionally include a selection
between predator and prey populations.15 The court did not
examine whether the Board applied the statutory principle of
sustained yield when it adopted its plans because it concluded
that the sustained yield principle in Alaskas intensive
management statute does not apply to predators.
Although the superior court agreed with West that
Alaskas constitutional sustained yield clause applies to
predators, it did not agree that the Boards 2006 plans violate
this constitutional provision.16 The court also denied Wests
claim that the Boards alleged failure to obtain accurate
scientific studies of prey and predator populations violate its
constitutional duty.17 West moved for attorneys fees under Civil
Rule 82 and AS 09.60.010 arguing that he prevailed as a public
interest litigant on the main issue in the case because the court
agreed that Alaskas sustained yield clause applies to predators.
The superior court denied Wests motion for fees and also denied
Wests and Defenders motions for reconsideration of its summary
judgment ruling.
Defenders and West appeal the superior courts decision
that the Boards predator control plans do not violate Alaskas
sustained yield clause. Defenders also appeal the superior
courts decision that the statutory principle of sustained yield
in Alaskas intensive game management statute does not apply to
predators, and West appeals the superior courts denial of his
motion for attorneys fees. Because West did not appeal his claim
that the Board failed to conduct accurate, scientific studies of
prey and predator populations, that issue is not before us on
appeal.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo.18
Summary judgment is proper if there is no genuine issue of
material fact in dispute and the moving party is entitled to
judgment as a matter of law.19 In reviewing a summary judgment
motion, we draw all reasonable inferences in favor of the
nonmoving party.20
The interpretation of a statute or constitutional
provision is a question of law to which we apply our independent
judgment.21 We interpret the constitution and Alaska law
according to reason, practicality, and common sense, taking into
account the plain meaning and purpose of the law as well as the
intent of the drafters.22
We review an agencys application of law to a particular
set of facts for reasonableness.23 Under this standard, we merely
determine whether the agencys determination is supported by the
facts and is reasonably based in law.24 We do not substitute our
judgment for that of the agency when the agencys decision is
based on its expertise.25 We presume that regulations are valid
and we place the burden of proving otherwise on the challenging
party.26
Awards of attorneys fees are reviewed for abuse of
discretion.27 Such abuse exists if the award is arbitrary,
capricious, manifestly unreasonable, or improperly motivated.28
IV. DISCUSSION
Defenders and West argue that the constitutional and
statutory principles of sustained yield apply to predators and
that the Board did not apply sustained yield when it adopted its
2006 predator control plans. The State counters that it has no
constitutional or statutory duty to apply sustained yield to
wolves and bears in predator control areas, but that it
nonetheless did so. We first consider whether Alaskas sustained
yield clause and intensive management statute require that the
Board apply principles of sustained yield when it adopts predator
control plans. Because we conclude that the Board is bound by
both a constitutional and statutory duty to do so, we next
consider whether Defenders and West have met their burden of
demonstrating that the Boards 2006 predator control plans are
invalid under Alaskas sustained yield clause and intensive
management statute. Ultimately, we uphold the 2006 plans because
Defenders and West failed to meet this burden.
A. The Sustained Yield Clause Applies To Predator Control.
The superior court concluded that Alaskas sustained
yield clause applies to predators, including bears and wolves,
but that the management of wildlife resources may
constitutionally include a selection between predator and prey
populations. We apply our independent judgment to questions of
constitutional interpretation and interpret Alaskas constitution
according to reason, practicality, and common sense, taking into
account the plain meaning and purpose of the law as well as the
intent of the drafters.29
1. The sustained yield clause does not distinguish
between predator and prey populations.
When we interpret the Alaska Constitution, [u]nless the
context suggests otherwise, words are to be given their natural,
obvious[,] and ordinary meaning.30 The text of Alaskas sustained
yield clause provides that [f]ish, forests, wildlife, grasslands,
and all other replenishable resources belonging to the State
shall be utilized, developed, and maintained on the sustained
yield principle.31 According to a plain text reading of this
clause, the sustained yield principle applies to all wildlife.
The natural, obvious, and ordinary meaning of the term wildlife
suggests that the drafters of our constitution intended a broad
application of the sustained yield principle encompassing all
wild animals, including wolves and bears.
The definition of sustained yield principle provided to
the constitutional delegates by the Resources Committee of the
Constitutional Convention is also helpful to our inquiry:
As to forests, timber volume, rate of growth,
and acreage of timber type can be determined
with some degree of accuracy. For fish, for
wildlife, and for some other replenishable
resources such as huckleberries, as an
example, it is difficult or even impossible
to measure accurately the factors by which a
calculated sustained yield could be
determined. Yet the term sustained yield
principle is used in connection with
management of such resources. When so used it
denotes conscious application insofar as
practicable of principles of management
intended to sustain the yield of the resource
being managed. That broad meaning is the
meaning of the term as used in the Article.[32
]
This explanation explicitly states that the term sustained yield
as used in Alaskas constitution has a broad meaning. In
addition, the statement that the sustained yield principle is
used in connection with the management of fish, wildlife and
even huckleberries suggests a broad application of this
principle.
After the drafters of Alaskas constitution finished
their work, the constitution was ratified by the voters. We have
stated that in construing provisions of the Alaska Constitution,
[] the court must look to the meaning that the voters would have
placed on its provisions.33 [A]bsent some signs that [a] term has
acquired a peculiar meaning by statutory definition or judicial
construction, we defer to the meaning the people themselves
probably placed on the provision.34 Our inquiry here is aided by
the Report to the People of Alaska prepared by the Alaska
Constitutional Convention delegates in the period leading up to
the ratification vote. This report informed the voters that:
The [natural resources] articles primary
purpose is to balance maximum use of natural
resources with their continued availability
to future generations. In keeping with that
purpose, all replenishable resources are to
be administered, insofar as practicable, on
the sustained yield principle. This includes
fish, forests, wildlife and grasslands, among
others.[35]
The description in the Report to the People of Alaska, like the
plain meaning of the sustained yield clause itself, does not
suggest any distinction between predator and prey for purposes of
applying sustained yield.
We find nothing in the plain language of the sustained
yield clause suggesting that a distinction should be drawn
between predator and prey populations for purposes of applying
the sustained yield principle, and there is no such distinction
in the descriptions of sustained yield supplied by the delegates
who drafted the constitution or to the voters who ratified it.36
We have acknowledged that the framers of Alaskas constitution
intended the sustained yield clause to play a meaningful role in
resource management,37 and we hold today that the sustained yield
clause in Alaskas constitution applies to both predator and prey
populations, including populations of wolves and bears.
2. The sustained yield clause permits the State to
establish preferences among beneficial uses.
Having held that the sustained yield clause applies to
predator populations, we must also consider whether the sustained
yield clause permits the Board to give preference to populations
of moose and caribou over populations of wolves and bears through
the use of intensive management practices.
The starting point of this analysis is again the text
of the sustained yield clause itself, which provides wildlife . .
. shall be utilized, developed, and maintained on the sustained
yield principle, subject to preferences among beneficial uses.38
The qualifier that makes sustained yield subject to preferences
among beneficial uses suggests that the legislature and the Board
have some discretion to establish management priorities for
Alaskas wildlife. Such a construction is consistent with the
constitutional history of the sustained yield clause. As we
noted in Native Village of Elim v. State, the primary emphasis of
the framers discussions and the glossarys definition of sustained
yield is on the flexibility of the sustained yield requirement
and its status as a guiding principle rather than a concrete,
predefined process.39 This is reflected in the Report to the
People of Alaska distributed before ratification of Alaskas
constitution, which explains that all replenishable resources are
to be administered, insofar as practicable, on the sustained
yield principle.40 The glossary definition of sustained yield
provided by the Resources Committee of the Constitutional
Convention contains similar language: [the term sustained yield
principle] denotes conscious application insofar as practicable
of principles of management intended to sustain the yield of the
resource being managed.41
Based upon the text and constitutional history of the
sustained yield clause, the State argues that it allows for some
uses, and therefore some resources, to be preferred over others.
And Defenders recognize that [w]hile [the sustained yield clause]
requires that all wildlife, including predators, be managed for
sustained yield, that does not mean the sustained yield principle
precludes predator control in appropriate circumstances. We
agree with both these statements and affirm the superior courts
ruling that the management of wildlife resources may
constitutionally include a selection between predator and prey
populations.
B. The Statutory Principle Of Sustained Yield In Alaskas
Intensive Management Statute Applies To The Boards
Management Of Predator Populations.
Consistent with the States position, the superior court
found it unambiguous that the sustained yield principle in
Alaskas intensive management statute AS 16.05.255 applies only
within the context of the Boards management of moose and caribou
populations and is inapplicable to the Boards management of
predator populations. Defenders counter that the statutory
principle of sustained yield, like the constitutional principle,
does not distinguish between predator and prey populations. The
interpretation of a statute is a question of law to which we
apply our independent judgment; we interpret statutes according
to reason, practicality, and common sense, considering the
meaning of the statutes language, its legislative history, and
its purpose.42
Alaskas intensive management statute states that [t]he
Board of Game shall adopt regulations to provide for intensive
management programs to restore the abundance or productivity of
identified big game prey populations as necessary to achieve
human consumptive use goals of the board.43 The statute also
provides definitions for key terms. Intensive management is
defined as management of an identified big game prey population
consistent with sustained yield through active management
measures to enhance, extend, and develop the population to
maintain high levels or provide for higher levels of human
harvest, including control of predation.44 Sustained yield is
defined by the statute as the achievement and maintenance in
perpetuity of the ability to support a high level of human
harvest of game, subject to preferences among beneficial uses, on
an annual or periodic basis.45
Substituting the meaning of the defined terms into
subsection (e) of the statute produces the following legislative
mandate for intensive management:
The Board of Game shall adopt regulations to
provide for [management of an identified big
game prey population consistent with [the
achievement and maintenance in perpetuity of
the ability to support a high level of human
harvest of game, subject to preferences among
beneficial uses]] to restore the abundance or
productivity of identified big game prey
populations as necessary to achieve human
consumptive use goals of the board.[46]
From this language it follows that whether or not the statutory
principle of sustained yield distinguishes between predator and
prey populations depends on the meaning of the word game. Alaska
Statute 16.05.940(19) defines game as any species of bird,
reptile, and mammal,47 suggesting that intensive management must
be consistent with a principle of sustained yield which
encompasses all animals, including both predator and prey
populations.
The State does not provide an alternative construction
based upon the statutes language, but argues that Defenders
construction turns [the] intensive management law into a
nonsensical, unworkable mess by applying the sustained yield
principle to predators. According to the State, application of
sustained yield to predators requires that the State
simultaneously maximize the populations of predators and their
prey. We disagree. The language of this implementing
legislation does not result in the absurd results the State warns
against because the statutory principle of sustained yield, like
its constitutional counterpart, contains the qualifier that
sustained yield is subject to preferences among beneficial uses.48
Based upon the text of Alaskas intensive management
statute, as well as the principle that a statutory construction
that is consistent with constitutional principles is preferred
over one that is inconsistent,49 we hold that the principle of
sustained yield set forth in Alaskas intensive management statute
applies to predator populations but that the management of
wildlife resources may include a selection between predator and
prey populations.
C. Defenders And West Failed To Meet Their Burden To Prove
That The Boards 2006 Predator Control Plans Violate
Principles Of Sustained Yield.
Having held that both the constitutional and statutory
principles of sustained yield apply to wolf and bear populations,
we now consider the contention that the Board failed to apply
principles of sustained yield to its 2006 predator control plans.
The superior court ruled that to the extent that [the States
existing management of the predator populations] was challenged
by any Plaintiff it does not violate th[e] constitutional mandate
of Alaskas sustained yield clause. The court did not reach the
question of whether the Boards 2006 plans are consistent with the
statutory principle of sustained yield because it determined the
statutory mandate did not apply to predators.50 Appellant and
cross-appellants had the burden of demonstrating the invalidity
of the Boards 2006 predator control plans.51 To survive summary
judgment, they were required to establish that a genuine issue of
material fact was in dispute.52
Defenders acknowledge that the sustained yield
principle does not preclude predator control in appropriate
circumstances, but Defenders contend that the Board did not
consider or apply the sustained yield principle to wolves and
bears when it adopted its 2006 predator control plans.53
Defenders argue that we should decline to infer that the Board
applied sustained yield when there is no mention or discussion of
applying sustained yield to wolf and bear populations in either
the Boards predator control plans or in the administrative
record. Defenders also argue that the Boards repeal of the
express sustained yield requirements in 5 AAC 92.110 and .115
along with the statement in its bear management policy that
[g]enerally, bear hunting will be conducted on a sustained yield
basis, except in areas where a bear predation control program is
authorized54 demonstrates that the Board chose not to apply
sustained yield to wolf and bear populations.
The State argues the Board was not required to apply
sustained yield to wolf and bear populations in its predator
control plans. Nonetheless, the State maintains that the Boards
plans and the supporting administrative record illustrate the
conscious application of sustained yield principles, although
that term is not used explicitly.
In considering whether the Board actually applied
principles of sustained yield when it adopted its 2006 predator
control plans, we first examine the language of the plans
themselves and observe that the plans do not expressly mention
the sustained yield mandate. But the regulation adopting the
2006 plans 5 AAC 92.125 sets management objectives for the wolf
and bear populations in each predator control area, establishes
procedures for tracking when predator populations are in danger
of falling below the management objectives, and requires that the
Board suspend predator control activities and close hunting and
trapping seasons when necessary to ensure that minimum population
objectives are met.55 The regulation also sets specific
geographic boundaries for predator control areas56 and includes
sunset provisions establishing expiration dates for the Boards
authority to engage in predator control.57
The regulations also contain numerous statements
relating to the continuation and maintenance of wolf and bear
populations within predator control areas. For example, the
regulations state it is the intent of this plan to maintain
wolves as part of the natural ecosystem within the geographical
area described for this plan.58 In balancing the goal of
substantially reduc[ing] wolf numbers compared to the pre-control
level in order to relieve predation pressure on moose and allow
for improved recruitment to the moose population with the goal of
maintain[ing] wolves as part of the natural ecosystem within the
predator control area, the regulation sets a minimum wolf
population objective for each plan in order to ensure that wolves
persist within the plan area.59 The predator control regulation
also states that if wolf predation control efforts continue and
the wolf population is reduced according to the wolf population
and harvest objectives, the wolf population will be maintained at
[the control population objective] for several years, but once
the moose population increases and wolf control efforts are
discontinued, the wolf population will increase in response to
the increased prey base.60 Even where the regulation sets an
objective of reducing black and brown bear populations to the
lowest level possible within the bear control area in GMU 19(D)-
East, the regulation states that because the [bear control area]
is a relatively small geographic area, removing black [and brown]
bears from within it will have only a minor effect on the black
[and brown] bear population[s] in Unit 19(D)-East overall.61
The predator control regulation also provides for
continued harvest of wolves and bears for human consumption as an
integral component of the predator control plans, setting annual
harvest objective[s]62 for wolves and bears in the predator
control areas and acknowledging that some hunters and trappers
will continue to pursue wolves . . . regardless of
same-day-airborne wolf control efforts.63
We also find it significant that while the Board
eliminated the regulatory requirements set forth in sections .110
and .115 including the express requirement that it consider
sustained yield it appears that the Board nonetheless adopted
its 2006 predator control plans to be consistent with these
requirements. The subsection headings in the Boards predator
control plans closely mirror the requirements of subsections
.110(b) and .115(b), and the content of the predator control
plans reflects the substantive requirements of subsections
.110(d) and .115(c).64
A review of the administrative record demonstrates that
the Board considered a great deal of information about how the
long-term viability and sustainability of wolf and bear
populations would be impacted by predator control efforts. Most
significantly with respect to wolf control, the Board heard
testimony from ADF&G biologists that wolf populations would
recover to, or even exceed, pre-control levels within three to
five years after wolf control ends.65 And while testimony
relating to bears suggested that bear recovery would take longer
given the lower reproductive and immigration rates of bears,
ADF&G biologists did not suggest that the long-term viability or
sustainability of bear populations would be put at risk by the
2006 bear control plans.
Based on our review of the record, we are unpersuaded
by Defenders argument that the Board failed to apply sustained
yield altogether. Failing to show that the Board did not apply
sustained yield at all, Defenders burden was to show that the
Boards application of sustained yield to predator populations
lacked a reasonable basis, was arbitrary or capricious, or failed
to consider important factors66 by showing, for example, that the
Board used incorrect estimates of populations, or because harvest
levels were set too high. Defenders did not contend that the
Board acted arbitrarily in applying sustained yield principles to
its 2006 plans; it focused entirely on its claim that the Board
failed to apply the sustained yield principles at all. Defenders
did express concern over whether the Boards minimum population
objectives will be large enough to permit a yield, sustained or
otherwise, now or in the future but Defenders did not elaborate
or support this concern with evidence. Because the Board is
entitled to deference in areas where it has special expertise,
such as application of sustained yield, Defenders bore a
significant burden in demonstrating that it acted in an arbitrary
manner. On this record, we must conclude that Defenders failed
to meet their burden, and that the superior court properly
declined to vacate the 2006 predator control regulations on those
grounds.
In reaching this decision, we expressly reject the
Boards position that the application of sustained yield to wolf
and bear populations in predator control areas is discretionary
and based only on its policy view that these highly valued
resources should be maintained as healthy and necessary
components of our ecosystems, rather than any constitutional or
statutory mandate.67 It is the Boards constitutional and
statutory duty to apply principles of sustained yield when it
adopts predator control plans; this is not a policy question
subject to Board discretion.
D. The Superior Court Did Not Err In Denying West
Attorneys Fees.
West argues that the superior court erred in denying
him attorneys fees as a prevailing party under Alaska Civil Rule
82 and AS 09.60.010. The superior court ruled that although West
prevailed on his argument that the constitutional principle of
sustained yield applies to predators, he failed on the main issue
he pursued: invalidating the 2006 predator control regulations.
As such, the superior court concluded that he was not a
prevailing party entitled to attorneys fees. Our court reviews
awards of attorneys fees for abuse of discretion.68 Abuse of
discretion exists if the award is arbitrary, capricious,
manifestly unreasonable, or improperly motivated.69
West did not prevail on the main issue in this
litigation. His claim was that the Boards predator control
regulations do not comply with Alaskas sustained yield clause.70
He did not successfully prosecute[] or defend[] against the
action, nor was he successful on the main issue of the action and
he was not the party in whose favor the decision or verdict [was]
rendered and the judgment entered.71 We recognize the care West
took to research the constitutional question raised in this case,
but the main issue was whether the adoption of a particular
regulation passed constitutional muster; this litigation was not
an untethered inquiry into constitutional meaning. The superior
court correctly entered summary judgment in the States favor on
Wests Count XI. We affirm the superior courts decision denying
West attorneys fees.
V. CONCLUSION
We AFFIRM the superior courts ruling regarding the
applicability of Alaskas sustained yield clause to predator
populations but REVERSE its ruling that AS 16.05.255 does not
apply to predator populations. We AFFIRM the courts ruling that
Defenders and West failed to meet their burden to show that the
Boards 2006 predator control plans violate Alaskas sustained
yield clause, and hold that Defenders and West also failed to
show that the plans violate the sustained yield provisions of
Alaskas intensive management statute. We AFFIRM the superior
courts order denying Wests motion for attorneys fees.
_______________________________
1 Some anthropologists believe that, long before European
contact, indigenous people in Alaska sought to reduce predator
populations, particularly wolf populations, in order to increase
their harvest of prey species. See Comm. on Mgmt. of Wolf and
Bear Populations in Alaska, National Research Council, Wolves,
Bears, and Their Prey in Alaska: Biological and Social Challenges
in Wildlife Management 27-28 (1997).
2 A 1996 public initiative banned aerial and land-and-
shoot wolf hunting except by state employees when a biological
emergency was declared in a specific geographical area. In 1999
the legislature expanded the grounds for authorizing a wolf
control program, including to increase prey populations. See AS
16.05.783. The following year, the legislature passed a statute
that would have allowed the general public to engage in land-and-
shoot wolf hunting in areas where a wolf control program was
authorized, but the statute was overturned by public referendum
several months later. A 2008 public initiative sought to
reimpose strict limits on authorizing predator control programs,
but it was defeated.
3 Gerald A. McBeath, The Alaska State Constitution: A
Reference Guide 146 (1997); Bret Adams et al., Environmental and
Natural Resources Provisions in State Constitutions, 22 J. Land
Resources & Envtl. L. 73, 255-263 (2002) (listing state
constitutional provisions relating to the environment and natural
resources).
4 AS 16.05.255(e)(1), as enacted by Ch. 13, 2, SLA 1994.
Before the Board adopts an intensive management program in a
given area, it must first determine that reductions in the
productivity of big game prey populations may result in
reductions in human harvest and that an increase in productivity
is feasible using intensive management. AS 16.05.255(e)(2), (3).
5 AS 16.05.255(e).
6 AS 16.05.255(k)(4), as enacted by Ch. 13, 2, SLA 1994.
7 Ch. 13, 1, SLA 1994 (emphasis added).
8 AS 16.05.255(k), as amended by Ch. 76, 4, 5, SLA 1998.
9 5 AAC 92.110 related to control of predation by wolves,
.115 related to control of predation by bears.
10 5 AAC 92.110(d)(3) (repealed 3/10/2006, Register 177);
5 AAC 92.115(c)(3) (repealed 3/10/2006, Register 177) (emphasis
added).
11 Friends of Animals v. State, Dept of Fish & Game, 3AN-
03-13489 CI (Alaska Super., January 17, 2006). Friends of
Animals did not involve the issue of sustained yield.
12 Sierra Club was also a plaintiff in this action below,
but does not participate on appeal.
13 Friends of Animals, Inc. and Tom Classen separately
filed suit in November 2006. Most of their claims failed to
survive summary judgment, but they do not participate on appeal.
14 The superior court did rule that to the extent 5 AAC
92.125 authorizes airborne or same day airborne shooting of
wolves in subunits 16(A), 20(A)-(D), and 25(C), that
authorization is invalid, based on the Boards failure to make the
requisite findings under AS 160.05.783(a)(1).
15 In reaching this decision, the superior court noted
that it was making no decision concerning the actual conduct of
these or any other predator control programs.
16 The superior court concluded that the plans do not
violate the constitutional mandate of the sustained yield clause
to the extent that the [States existing management of the
predator populations] was challenged by any Plaintiff.
17 West does not appeal the superior courts dismissal of
this claim.
18 Parson v. State, Dept of Revenue, Alaska Hous. Fin.
Corp., 189 P.3d 1032, 1036 (Alaska 2008).
19 Id.; McCormick v. Reliance Ins. Co., 46 P.3d 1009, 1011
(Alaska 2002).
20 Parson, 189 P.3d at 1036.
21 Id.
22 Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska
1999).
23 Koyukuk River Basin Moose Co-Mgmt. Team v. Bd. of Game,
76 P.3d 383, 386 (Alaska 2003) (citing Native Vill. of Elim, 990
P.2d at 5).
24 Id.
25 Id.
26 Lakosh v. Alaska Dept. of Envtl. Conservation, 49 P.3d
1111, 1114 (Alaska 2002).
27 Rhodes v. Erion, 189 P.3d 1051, 1053 (Alaska 2008).
28 Id.
29 Parson v. State, Dept. of Revenue, Alaska Hous. Fin.
Corp., 189 P.3d 1032, 1036 (Alaska 2008); Native Vill. of Elim v.
State, 990 P.2d 1, 5 (Alaska 1999).
30 Hammond v. Hoffbeck, 627 P.2d 1052, 1056 n.7 (Alaska
1981).
31 Alaska Const. art. VIII, 4 (emphasis added).
32 Resources Committee, Alaska Constitutional Convention,
Terms (1955).
33 Div. of Elections v. Johnstone, 669 P.2d 537, 539
(Alaska 1983) (internal citations and quotations omitted).
34 Hickel v. Halford, 872 P.2d 171, 177 (Alaska 1994).
35 The Alaska Constitutional Convention, Proposed
Constitution for the State of Alaska: A Report to the People of
Alaska (1956).
36 The State does not contest the plain meaning of the
sustained yield clause, and instead highlights the statement of
Delegate Burke Riley, Secretary of the Constitutional Conventions
Resources Committee, that predators would not be maintained on a
sustained yield basis. 4 Proceedings of the Alaska Constitutional
Convention 2451 (January 17, 1956). But individual comments from
delegates do not necessarily indicate constitutional intent,
Glover v. State, Dept. of Transp., 175 P.3d 1240, 1248 (Alaska
2008), and we conclude that the text of the sustained yield
clause itself, along with the descriptions provided to the voters
and the delegates, contradicts the view presented by Secretary
Riley.
37 Native Vill. of Elim v. State, 990 P.2d 1, 7 (Alaska
1999).
38 Alaska Const. art. VIII, 4 (emphasis added).
39 990 P.2d at 7-8.
40 The Alaska Constitutional Convention, Proposed
Constitution for the State of Alaska: A Report to the People of
Alaska (1956) (emphasis added).
41 Resources Committee, Alaska Constitutional Convention,
Terms (1955) (emphasis added).
42 Parson v. State, Dept. of Revenue, Alaska Hous. Fin.
Corp., 189 P.3d 1032, 1036 (Alaska 2008).
43 AS 16.05.255(e) (emphasis added). The superior court
focused its analysis on subsection (g) of the statute, which
requires that the Board establish population and harvest goals
and seasons for intensive management, rather than subsection (e)
of the statute, which establishes the framework under which the
Board shall adopt regulations to establish intensive management
programs.
44 AS 16.05.225(k)(4) (emphasis added).
45 AS 16.05.225(k)(5) (emphasis added). The superior
courts order incorrectly states that the term sustained yield is
not defined.
46 AS 16.05.255(e), (k)(4), (k)(5) (emphasis added).
47 This definition applies to AS 16.05-16.40, including AS
16.05.255.
48 AS 16.05.255(k)(5).
49 Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d
183, 192 (Alaska 2007) ([C]ourts should if possible construe
statutes so as to avoid the danger of unconstitutionality.)
(internal citations and quotations omitted).
50 The question of whether the Board adopted its predator
control plans consistent with the statutory principle of
sustained yield was argued by the parties below, and neither
party suggests that the constitutional and statutory principles
of sustained yield demand separate analyses. We therefore
examine this question ourselves rather than remanding for further
proceedings.
51 Koyukuk River Basin Moose Co-Mgmt. Team v. Bd. of Game,
76 P.3d 383, 389 n.27 (Alaska 2003).
52 McCormick v. Reliance Ins. Co., 46 P.3d 1009, 1011
(Alaska 2002).
53 We focus on Defenders arguments here because, on
appeal, West primarily focuses his argument on the propriety of
the superior court even addressing the issue of whether the
Boards plans were adopted in accordance with the sustained yield
clause. To the extent the superior court addressed this issue,
we conclude that it acted properly.
54 Board of Game Bear Conservation and Management Policy,
Findings of the Alaska Board of Game 2004-147-BOG, at 4 (March 8,
2004).
55 For example, 5 AAC 92.125(c)(6) provides that with
respect to the predator control area in Game Management Unit
(GMU) 13, the commissioner will suspend wolf control activities
when (i) wolf inventories or accumulated information from
permittees indicate the need to avoid reducing wolf numbers below
the management objective of 135 wolves specified in this
subsection. It also provides that the commissioner will annually
close wolf hunting and trapping seasons, as appropriate to ensure
that the minimum wolf population objective is met. This
regulation is based upon testimony presented by the field
biologists covering the GMUs for each of the predator control
areas, as well as the Boards prior findings authorizing predator
control in these areas.
56 For example, 5 AAC 92.125(c) sets forth the geographic
boundaries of the predator control area for GMU 13.
57 For example, 5 AAC 92.125(c)(6)(B)(ii) provides that
wolf control activities will be terminated . . . (ii) upon
expiration of the period during which the commissioner is
authorized to reduce predator numbers in the predator control
plan area. For GMU 13, for example, the commissioner is
authorized to engage in predator control efforts for up to five
years . . . . 5 AAC 92.125(c)(5)(A).
58 5 AAC 92.125(c)(1)(C)(i).
59 5 AAC 92.125(c)(2)(B).
60 5 AAC 92.125(e)(1)(C)(vi).
61 5 AAC 92.125(f)(3)(E) and (F).
62 5 AAC 92.125(c)(1)(C)(ix).
63 5 AAC 92.125(c)(1)(D)(iii).
64 It appears the reason the Boards predator control plans
reflect the requirements of 5 AAC 92.110 and .115, even though
these requirements were later repealed, is that the permanent
regulation was based largely upon the interim regulation adopted
when the requirements were still in effect. Judge Gleason issued
her ruling that the Boards previous predator control plans were
invalid because they failed to address the requirements of .110
on January 17, 2006. The Board adopted its interim regulation
during an emergency teleconference meeting on January 25, 2006.
The Board did not repeal .110 (b) and (d) and .115 (b) and (c)
until the Boards regularly scheduled meeting on January 29, 2006.
65 ADF&G Wildlife Research Biologist Mark McNay gave a
lengthy presentation to the Board during its March 12, 2006
meeting on this topic, and he reported that in studies reviewed
by the National Research Council, wolf populations rebounded to
88 to 112 percent of the precontrolled population size in three
to five years. He also highlighted that the National Research
Council concluded that [n]o available data suggests that the
killing of wolves by humans has adversely affected the long-term
social organization, reproductive rates, or population dynamics
of the species.
66 Trustees for Alaska v. State, Dept of Natural Res., 795
P.2d 805, 809 (Alaska 1990) (stating that determinations
involv[ing] complex subject matter or fundamental policy
formulations are reviewed only to the extent necessary to
ascertain whether the decision has a reasonable basis, . . . was
not arbitrary, capricious, or prompted by corruption, and did not
fail[] to consider an important factor in making its decision.)
(internal quotations omitted).
67 The State further comments in its brief that despite
its position that predators need not be maintained on a sustained
yield basis, the Department and Board, exercising their
discretion to manage for beneficial uses of all wildlife, have
always maintained that Alaskas wolf and bear populations should
be managed in accordance with the sustained yield principle.
68 Rhodes v. Erion, 189 P.3d 1051, 1053 (Alaska 2008).
69 Id.
70 West claims that in his cross-motion for summary
judgment he only argued the constitutional issue. While this may
be the case, the State sought summary judgment on all of Wests
claims, and the superior court ruled in its favor.
71 Day v. Moore, 771 P.2d 436, 437 (Alaska 1989).
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