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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. BP Pipelines (Alaska) Inc. v. State, Dept. of Revenue (5/9/2014) sp-6906

BP Pipelines (Alaska) Inc. v. State, Dept. of Revenue (5/9/2014) sp-6906

        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    


BP PIPELINES (ALASKA)                             )  

INC., CONOCOPHILLIPS                              )  

TRANSPORTATION ALASKA,                            )        Supreme Court Nos. S-14718/14728  

INC., EXXONMOBIL PIPELINE                         )         S-14737 (Consolidated)                        

COMPANY, KOCH ALASKA                              )  

PIPELINE COMPANY, LLC,                            )        Superior Court No. 3AN-06-08446 CI  


UNOCAL PIPELINE COMPANY,                          )  

Owners, and ALYESKA PIPELINE                      )        O P I N I O N  


SERVICE COMPANY, as agent                         )  

for the Owners,                                   )  

                                                  )        No. 6906 - May 9, 2014 

            Appellants/Cross-Appellees,           )  


                 v.                               )  


STATE OF ALASKA,                                  )  

DEPARTMENT OF REVENUE,                            )  

STATE ASSESSMENT REVIEW                           )  

BOARD, and NORTH SLOPE                            )  

BOROUGH,                                          )  


                  Appellees,                      )  


FAIRBANKS NORTH STAR                              )  



        Appellees/Cross-Appellants.               )



----------------------- Page 2-----------------------

                   Appeal from the Superior Court of the State of Alaska, Third  


                   Judicial District, Anchorage, Sharon Gleason and Andrew  

                   Guidi, Judges.  

                   Appearances:  James  M.  Seedorf,  Hughes  Gorski  Seedorf  

                   Odsen & Tervooren, LLC, Anchorage, for Appellants and  

                   Cross-Appellees.  Mauri Long, Jessica Dillon, and Andalyn  


                   Pace, Dillon & Findley, P.C., Anchorage, for Appellee North  


                   Slope  Borough.            Robin  O.  Brena,  Laura  S.  Gould,  and  


                   Anthony   S.   Guerriero,   Brena,   Bell   &   Clarkson,   P.C.,  


                   Anchorage,  and  William  M.  Walker  and  Craig  Richards,  

                   Walker  &  Richards,  LLC,  Anchorage,  for  Appellees  and  

                   Cross-Appellants Fairbanks North Star Borough and City of  



                   Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                   Bolger, Justices.   

                   MAASSEN, Justice.  


                   These appeals concern the attorney's fees and costs awarded in the 2006  

Trans-Alaska Pipeline System tax assessment case.1 

                                                                          The superior court decided that the  


Fairbanks North Star Borough, the City of Valdez, and the North Slope Borough were  

prevailing parties for purposes of attorney's fees and costs because they had prevailed  


on the main issues of the case. The court awarded costs pursuant to Alaska Civil Rule 79  


and attorney's fees pursuant to Alaska Civil Rule 82(b)(2), which governs fee awards  


"[i]n cases in which the prevailing party recovers no money judgment."  The superior  


court also applied the enhancement factors of Rule 82(b)(3)(A), (B), and (H) to raise the  

          1        We decided the merits of the case in BP Pipelines (Alaska) Inc. v. State,  


Dep't of Revenue , ___P.3d ___, Op. No. 6867, 2014  WL 685986 (Alaska, Feb. 19,  


                                                           -2-                                                        6906  

----------------------- Page 3-----------------------

presumptive award from 30 percent to 45 percent of the prevailing parties' reasonable  

attorney's fees.  

                   The owners of the Trans-Alaska Pipeline System appeal.  They argue that  

the superior court should have applied Alaska Appellate Rule 508 instead of Civil Rules  


79 and 82.  In the alternative, they contend that the three municipalities did not prevail  


as against the owners; that fees should have been allocated between separate appeals; that  

none of the prevailing parties were entitled to enhanced attorney's fees; and that the  


Fairbanks North Star Borough's award should have been reduced as recommended by  

a special master.  The Fairbanks North Star Borough and the City of Valdez cross- 


appeal, arguing that the superior court should have viewed this case as one involving a  


money judgment for purposes of an attorney's fees award under Rule 82(b)(1) and, in  

the alternative, that they were entitled to a greater enhancement of their fees.   

                   We affirm.  


          A.       Facts  


                   Alaska Statute 43.56.060 directs the Department of Revenue to annually  


assess the "full and true value" of oil and gas properties for purposes of determining the  


property taxes due the State of Alaska and certain affected municipalities.  Covered  



properties include those used for the pipeline transportation of gas or unrefined oil. 

After the Department conducts its initial assessment, an owner of taxable property or an  


affected municipality may informally appeal the  valuation to the Department.3                                         The  

          2        AS 43.56.060.  

          3        AS 43.56.110(a).  

                                                             -3-                                                         6906  

----------------------- Page 4-----------------------

Department's decision may be further appealed to the State Assessment Review Board.4  


Thereafter, taxpayers and taxing authorities are entitled to appeal the Board's action to  

the superior court for a trial de novo.5  

                    The Trans-Alaska Pipeline System (TAPS) stretches 800 miles from the oil  


fields of the North Slope to a terminal in the City of Valdez.  En route it crosses property  


within  the  North  Slope  Borough  (North  Slope),  the  Fairbanks  North  Star  Borough  

(Fairbanks), and the City of Valdez (Valdez) (called collectively "the Municipalities").6  

TAPS  is  jointly  owned  by  BP  Pipelines  (Alaska)  Inc.  (46.9%);  ConocoPhillips  


Transportation Alaska, Inc. (28.3%); ExxonMobil Pipeline Company (20.3%); Koch  


Alaska Pipeline Company, LLC (3.1%); and Unocal Pipeline Company (1.4%), and is  


managed by their agent Alyeska Pipeline Service Company (called collectively "the  


Owners").  The valuation of TAPS for the 2006 tax year led to a five-week trial de novo  


in the superior court, a superior court valuation that more than doubled that of the Board,  


                                                                             This related appeal and cross-appeal  

and eventual affirmance on appeal by this court.                                                           

concern the costs and attorney's fees awarded by the superior court.  

          B.        The Underlying Case  

                    The proceedings leading up to these appeals began on March 20, 2006,  

when  the  Municipalities  and  Owners  appealed  within  the  Department  its  initial  


assessment of TAPS at $3.344 billion.  The Department's decision adjusted the original  

          4         AS 43.56.120(a); AS 43.56.040.  

          5         AS 43.56.130(i).  

          6         Fairbanks  and  Valdez,  though  separately  represented,  have  a  unified  

position.  For convenience this opinion refers to them as "Fairbanks/Valdez."  

          7         BP Pipelines (Alaska) Inc. v. State, Dep't of Revenue                            , ___ P.3d ___ , Op.   

No. 6867, 2014 WL 685986 at *1-2 (Alaska, Feb. 19, 2014).  

                                                                -4-                                                         6906

----------------------- Page 5-----------------------


assessment (to $3.641 billion), and the Municipalities and Owners appealed to the Board  


on April 19, 2006. Following the Board's decision, which again adjusted the assessment  

upward (to $4.306 billion), the Owners and Municipalities appealed to the superior court.  


                    The first superior court appeal was filed in Anchorage on May 25, 2006,  


by  BP,  ExxonMobil,  Unocal,  and  Alyeska,  requesting  a  trial  de  novo  of  the  TAPS  


valuation.  North Slope entered an appearance in the appeal and Fairbanks/Valdez filed  


a cross-appeal.  The remaining TAPS owners, ConocoPhillips and Koch, together with  


Alyeska filed a second superior court appeal in Anchorage on June 21, 2006.  Again,  


North Slope entered an appearance and Fairbanks/Valdez filed a cross-appeal in which  

they listed the same points on appeal as they had in the first appeal.  A week later a third  

superior court appeal was filed by Fairbanks/Valdez in Fairbanks.  In July 2006 the three  

superior court appeals were consolidated for purposes of a single trial de novo before  

Judge Sharon Gleason in Anchorage.  


                    The trial de novo began on August 10, 2009, and lasted for over five weeks.  


The main dispute was over the method to be used to calculate "the full and true value"  


of TAPS.  The Municipalities proposed a valuation of $11.570 billion, employing a cost  


approach that analyzed the replacement cost of TAPS while taking into consideration its  

enhanced value because of the profitability of the entire oil enterprise as an integrated  


entity.  In contrast, the Owners contended that TAPS should be valued at $850 million,  

arguing for a tariff/income approach that considered only the income stream that TAPS  


generated.  In the agency proceedings, both the Department and the Board had opted for  


the cost approach; the superior court ultimately agreed.  It found the cost approach to be  


the  best  indicator  of  value  and  applied  it  using  a  "replacement  cost  new  less  


depreciation" (RCNLD) method, which determines the current replacement cost of the  

property and then deducts for depreciation.  

                                                               -5-                                                         6906

----------------------- Page 6-----------------------

                    A second major point of contention was which cost study should be applied  


to accurately calculate RCNLD:  the Owners' study, which estimated the replacement  


cost  at  about  $8.545  billion,  or  the  study  advanced  by  the  Municipalities,  which  


estimated the replacement cost at $18.712 billion. The superior court concluded that the  


Municipalities' study was more in accord with the statutory standards and accepted its  

estimate of value.  The superior court next decided complex issues regarding the amount  


of  depreciation  to  be  deducted,  then  concluded  that  TAPS  should  be  valued  at  


"approximately $9.977 billion - or just over 50% of its estimated replacement cost."  

          C.        Award Of Attorney's Fees  


                    The Department and the Municipalities asserted prevailing party status and  


moved for attorney's fees and costs.  Each based its request on Civil Rule 82(b)  and 


sought an increase of the award under the enhancement factors of Rule 82(b)(3).  The  

Owners  opposed,  arguing  in  part  that  Fairbanks/Valdez  and  North  Slope  had  not  


prevailed against the Owners, but rather had prevailed against the Department and the  

Board.    The  Owners  also  contested  portions  of  the  Municipalities'  fee  requests  and  


claimed that any attorney's fees, if awarded, should be apportioned between the Owners'  

appeal  and  the  Fairbanks/Valdez  appeal  and  not  subject  to  enhancement  under  

Rule 82(b)(3).  


                    On July 25, 2011, the superior court entered its first order on attorney's fees  

and  costs.    The  court  found  that  the  Department  and  the  Municipalities  were  the  

prevailing parties against the Owners, and it analyzed costs and attorney's fees under  


Civil Rules 79 and 82.  The court awarded fees pursuant to Rule 82(b)(2), applicable to  



                    The Department and Fairbanks/Valdez requested attorney's fees pursuant  

to Rule 82(b)(1), governing cases in which there is a money judgment.  North Slope  


requested attorney's fees pursuant to Rule 82(b)(2), governing cases in which there is no  

money judgment.  

                                                              -6-                                                           6906  

----------------------- Page 7-----------------------

non-money  judgments,  instead  of  Rule  82(b)(1),  applicable  to  money  judgments.  

Consequently, the court began with a presumptive award of 30 percent of reasonable   


actual fees.  It then determined that enhancement to 45 percent was appropriate under  

Rule 82(b)(3)(A) because of "the complexity of the litigation," under (B) because of "the  


length of trial," and under (H) because of "the relationship between the amount of work  

performed and the significance of the matters at stake."  The court declined to increase  


fees based on any of the other Rule 82(b)(3) factors,  including (F) ("the reasonableness  

of the claims and defenses pursued by each side") and (G) ("vexatious or bad faith  


conduct"), which the prevailing parties had urged the court to apply.  The court also  


refused to allocate fees between the appeals as the Owners had requested.  Finally, to  

address  more  specific  objections  to  the  fee  requests,  the  superior  court  appointed  a  

special master to help determine the amount of fees that could be considered fair and  



                    The special master determined that a 15 percent reduction in Fairbanks's  


claimed fees would be fair "[b]ecause of a pattern of unnecessary duplication of effort."  

Fairbanks  opposed  the  recommended  decision,  arguing  that  the  master  failed  to  


recognize that Fairbanks had to put extra time and effort into the case as the leading  

litigant.  On de novo review of the special master's recommendation, the superior court  

agreed  with  Fairbanks  and  declined  to  reduce  its  fees.                               The  court  awarded  the  

Municipalities  their  costs,  totaling  $514,551.14,  and  45  percent  of  their  requested  

attorney's  fees,  with  Fairbanks,  Valdez,  and  North  Slope  receiving  $837,649.84,  

$478,519.47, and $628,586.55 respectively.   


                    The Owners present the following points on this appeal: (1) as an appellate  


court  in  an  administrative  appeal,  the  superior  court  should  have  applied  Appellate  


Rule 508 instead of Civil Rules 79 and 82 to its awards of costs and attorney's fees; (2)  

the Municipalities were not prevailing parties as against the Owners; (3) alternatively,  

                                                               -7-                                                         6906

----------------------- Page 8-----------------------


the superior court abused its discretion when it failed to allocate fees and costs between  


the Municipalities' appeals and the Owners' appeals; (4) the superior court abused its  

discretion when it enhanced the awards of attorney's fees; and (5) the superior court  

abused its discretion when it rejected the special master's recommendation to reduce  


Fairbanks's fee request by 15 percent. Fairbanks/Valdez cross-appeal, arguing that:  (1)  


this case involves a money judgment, and the superior court therefore erred by awarding  

fees pursuant to Rule 82(b)(2) instead of Rule 82(b)(1); and (2) the superior court abused  


its discretion by failing to grant a greater enhancement of attorney's fees under Rule  

82(b)(3), due to the "unreasonableness of the [TAPS] Owners' positions" and the bad  


faith or vexatious conduct demonstrated by the Owners' failure to disclose an important  


study during the case on the merits.     




                          "We apply our independent judgment in reviewing conclusions of law," 

which  includes  the  superior  court's  decision  whether  to  apply  the  Civil  Rules  or  


                                                                                                         We  review  "a  superior  court's  

Appellate  Rule  508  to  awards  of  fees  and  costs. 

             9            The Owners have not appealed the Department's prevailing party status or                      

its right to attorney's fees.  Two of the Owners' arguments nevertheless implicate the   

Department:  that Appellate Rule 508 governed the awards of fees and costs and should                                                             

be applied on remand, and that none of the prevailing parties' fees should have been   

enhanced under Rule 82(b)(3).  The Department has not taken a position on this appeal.                                                            



                          R & Y, Inc. v. Municipality of Anchorage , 34 P.3d 289, 292 (Alaska 2001).  

             11           Wagner v. Wagner, 183 P.3d 1265, 1267 (Alaska 2008) (citing Strong  


Enters.,  Inc.  v.  Seaward ,  980  P.2d  456,  458  (Alaska  1999))  (considering  de  novo  


whether trial court should have applied Rule 82(b)(1) or Rule 82(b)(2) in calculating the  

fee award).  

                                                                                 -8-                                                                         6906

----------------------- Page 9-----------------------



determination of prevailing party status and attorney's fees for abuse of discretion"                                   and  

"will only reverse if the award is 'arbitrary, capricious, manifestly unreasonable, or  


                                                       If the superior court varies an award under Rule  

stemmed from improper motive.' "  


82(b)(3) it must explain its reasons, and "[l]egal questions involved in exceptions to an  


award of attorney's fees are reviewed de novo, while exceptions that rely on factual  

findings are reviewed for clear error."14  


          A.	      The Superior Court Did Not Err In Applying Civil Rules 82 And 79  

                   Instead Of Appellate Rule 508 To Its Awards Of Fees And Costs.  

                   The Owners argue that the superior court should have awarded fees and  


costs pursuant to Appellate Rule 508 instead of Civil Rules 82 and 79.  They argue that  


although the superior court was required by statute to provide a trial de novo,15 the nature  


of the proceeding was still that of an appeal from an administrative decision; and because  


it was an appeal, any award of fees had to be made pursuant to the appellate rules.  The  


Owners  cite  a  number  of  our  cases  in  support  of  the  contention  that  Appellate  


Rule 508(e) alone governs awards of attorney's fees in administrative appeals.16                                        But  

          12       State v. Jacob, 214 P.3d 353, 358 (Alaska 2009) (quoting Braun v. Denali  

Borough , 193 P.3d 719, 726 (Alaska 2008)) (internal quotation marks omitted).  

          13        Wagner, 183 P.3d at 1266-67 (quoting                   Ware v. Ware, 161 P.3d 1188, 1192  

Alaska 2007)).   

          14        Cizek v. Concerned Citizens of Eagle River Valley, Inc., 71 P.3d 845, 848- 


49, 851 (Alaska 2003) (citing Dobos v. Ingersoll , 9 P.3d 1020, 1026 (Alaska 2000)).  

          15       AS 43.56.130(i) ("An owner or municipality may appeal to the superior  

court for, and is entitled to, trial de novo of the board's action.").  

          16       See Agen v. State of Alaska, Dep't of Revenue, Child Support Enforcement  


Div. , 945 P.2d 1215, 1221 (Alaska 1997) (citing Royal Krest Const. Inc. v. Municipality  



                                                             -9-	                                                     6906

----------------------- Page 10-----------------------

none  of  the  cited  cases  involved  a  situation  like  this  one,  where  the  superior  court  

conducted a trial de novo.  

                    The most  analogous case is Bowers Office Products, Inc. v. Fairbanks  


                                                                 In  Bowers ,  in  what  was  essentially  an  

North  Star  Borough  School  District . 


                                                                                                     the superior court  

administrative appeal from a school district's contracting decision, 


conducted  a  five-day  trial  after  allowing  the  disappointed  bidder  to  supplement  the  

administrative record with evidence of " 'additional irregularities' which [allegedly]  



tainted the bid process."              The superior court awarded attorney's fees pursuant to Civil  


Rule 82, which we held to be an "appropriate" use of the rule.                                      While noting that  


awards of attorney's fees pursuant to Appellate Rule 508 were "the normal course . . .  


in administrative appeals to the superior court," we observed that Bowers presented "a  

hybrid in that it was an administrative appeal with an augmented record," which thus  


of Anchorage, 640 P.2d 133, 134 (Alaska 1981) for the holding that "it is error for a  

superior court acting as an intermediate appellate court to award fees under Civil Rule  


82, rather than under Appellate Rule 508"); see also Diedrich v. City of Ketchikan , 805  


P.2d 362, 371 (Alaska 1991) (holding that where the superior court treated an action as  

an administrative appeal, "the Appellate Rules, not the Civil Rules, govern the award of  


attorney's fees").  

          17        918 P.2d 1012 (Alaska 1996).  



                    The disappointed bidder had filed an original action in superior court, but  


the superior court determined that it was actually "an administrative appeal pursuant to  


AS 22.10.020(d)."  Fairbanks N. Star Borough Sch. Dist. v. Bowers Office Prods., Inc. ,  

851 P.2d 56, 57 (Alaska 1992).   

          19        Bowers Office Prods. , 918 P.2d at 1013.  

          20        Id. at 1015.  

                                                             -10-                                                       6906

----------------------- Page 11-----------------------


"partook of both administrative review and de novo litigation."                                               The use of Rule 82  

acknowledged the reality that the expense and attorney time a party incurs in a trial de                                     

novo are more like those of a trial-court proceeding than an appeal.  It follows that in this   

case, involving an administrative appeal in which proceedings were wholly de novo, the                 

superior court was correct to apply Civil Rules 79 and 82.   


                      Further  support  for  the  superior  court's  decision  is  found  in  Appellate  

Rule 609(b), which states in relevant part:  

                      (1)  In an appeal from an administrative agency, the superior  

                      court may in its discretion grant a trial de novo in whole or in  

                      part.  .  .  .    (2)     All  further  proceedings  in  such  action  are  

                      governed by the rules governing procedure in the superior  

                      court . . . .  


The Owners acknowledge Rule 609's requirement that the "rules governing procedure  


in the superior court" apply in a trial de novo, but they dispute that Rule 82 is one of  


those  rules,  citing  State  v.  Native  Village  of  Nunapitchuk .                                         In  Nunapitchuk  we  


considered whether Rule 82 was a "rule of practice and procedure," thus requiring a two- 


thirds vote of both houses of the legislature to change it, or "substantive law," meaning  

                                                                                           23   According to the Owners, we  


it could be changed by a simple majority of each house.  

acknowledged in Nunapitchuk  that Rule 82 is substantive when we recognized that it  


"creates a right to partial attorney's fees."24  But a more contextually complete quotation  


from the opinion shows otherwise:  

           21         Id.  

           22         156 P.3d 389 (Alaska 2007).  

           23         Id. at 395-96.  

           24         Id. at 397.  

                                                                    -11-                                                               6906

----------------------- Page 12-----------------------


                    Using the  Ware test, when we ask whether Rule 82 "creates,  


                    defines and regulates rights" or is a "method of enforcing the  


                    rights," no clear answer emerges.  On the one hand, the rule  

                    creates a right to partial attorney's fees, and the attorney's  

                    fees awarded under the rule, as Ware recognized, can be quite  


                    substantial in terms of value.  On the other hand, the rule is  


                    part  of  a  method  for  enforcing  rights  external  to  court  

                    proceedings that are vindicated by the judgment in favor of  

                    the prevailing party.  If fees were not allowed, the prevailing  


                    party would suffer a loss in spite of its victory.  A Rule 82  


                    award of partial fees mitigates this effect.  The latter, it seems  


                    to us, is the better view.  We believe that the allocation of  

                    attorney's  fees  under  the  rule  is,  to  use  Judge  Weeks's  

                    language [from his decision in the superior court], "not so  

                    much  a  right  of  itself  but  tends  to  be  how  rights  are  




We concluded that "Rule 82 is a rule of procedure because it more readily falls on the  


procedure side of the substance and procedure divide under the definitions established  



by the precedents of this court."                    The superior court's decision to apply Rules 79 and  


82 in this case thus finds support in the command of Appellate Rule 609(b) that "the  

rules governing procedure in the superior court" apply to trials de novo.27  

          B.	       The        Superior          Court        Did       Not       Err       In     Determining             That  

                    Fairbanks/Valdez  And  North  Slope  Were  Prevailing  Parties  As  

                    Against The Owners.  

          25        Id. at 397-98 (emphasis added) (citing                   Ware v. City of Anchorage, 439 P.2d   

793, 794 (Alaska 1968)).  

          26	       Id. at 402.  



                    Appellate Rule 609(b) contemplates trials de novo granted by the superior  

court "in its discretion."  Here, a trial de novo was required by statute, AS 43.56.130(i).  

We do not need to decide whether Appellate Rule 609(b) nonetheless governed, since  


we hold that the superior court's use of Civil Rule 82 was otherwise justified under our  


case law.  

                                                              -12-	                                                        6906

----------------------- Page 13-----------------------

                    In assessing prevailing party status for purposes of awarding attorney's fees  



and costs, we have consistently held that "[t]he prevailing party is the one who has  


successfully prosecuted or defended against the action, the one who is successful on the  


main issue of the action and in whose favor the decision or verdict is rendered and the  

judgment entered." 28  A prevailing party need not have received all the relief requested,29  

and  a  party  who  recovers  on  only  one  of  several  claims  may  still  be  the  prevailing  




                    In this case, in deciding which parties had prevailed for purposes of Rules  


79 and 82, the superior court assessed "the litigation as a whole"31 and concluded that  

"the State and each of the Municipalities" were prevailing parties "[o]n the main issues  


in dispute in the 2006 tax year litigation - including the applicability of the RCNLD  


approach and the allowable depreciation for economic obsolescence."  Again, we review  


this determination for abuse of discretion.32  

                    The Owners do not dispute that the Municipalities prevailed on the main  


issues in the case.  They argue, however, that the Municipalities' appeals were directed  


against  the  Department  and  the  Board,  not  the  Owners,  and  that  the  Municipalities  

therefore cannot have prevailed against them .  They point out that Fairbanks/Valdez filed  

          28        Schultz v. Wells Fargo Bank, N.A., 301 P.3d 1237, 1242 (Alaska 2013)  

(quoting  Taylor  v.  Moutrie-Pelham,  246  P.3d  927,  929  (Alaska  2011))  (internal  

quotation marks omitted).  

          29        Id. (citing Blumenshine v. Baptiste , 869 P.2d 470, 474 (Alaska 1994)).  

          30        Id.  (citing State, Dep't of Corrs. v. Anthoney,  229 P.3d 164, 167 (Alaska  


          31        Chambers v. Scofield, 247 P.3d 982, 989 (Alaska 2011).  

          32        State v   . Jacob, 214 P.3d 353, 358 (Alaska 2009) (quoting Braun  v. Denali  

Borough , 193 P.3d 719, 726 (Alaska 2008)).  

                                                            -13-                                                       6906

----------------------- Page 14-----------------------

appeals only against the Department and the Board, and that North Slope did not file an  


appeal at all but was a "nominal appellee" in the superior court.  The Owners cite two  

federal cases for the proposition that separate claims tried in a single proceeding may  



retain "their separate and distinct character."                        According to the Owners, their separate  


appeals maintained their separate character despite the consolidation of all appeals in the  


superior  court  for  a  single  trial  de  novo.    Consequently,  the  Owners  argue,  the  

Municipalities, even if prevailing parties, did not prevail against them, and the Owners  

cannot be liable for the Municipalities' costs and attorney's fees.  


                    Alaska Statute 43.56.130(i) provides that "[a]n owner or municipality may  



appeal to the superior court for, and is entitled to, trial de novo of the board's action." 

As  with  most  administrative  appeals,  the  statute  itself  does  not  contemplate  that  


interested parties will be arrayed against each other in the case's caption.  But Appellate  


Rule 602 clarifies the parties' relative postures on an appeal.  Rule 602(h) states in part:  


                    All parties to the trial court or agency action when the final  


                    order or judgment was entered are parties to the appeal.  A  


                    party  who  files  a  notice  of  appeal,  whether  separately  or  

                    jointly, is an appellant under these rules.  All other parties,  

                    including  the  agency  in  an  appeal  from  an  administrative  


                    agency decision, are deemed to be appellees.  


By operation of this rule, the Owners, because they filed an appeal, were appellants, and  


each of the Municipalities was automatically deemed an appellee; the reverse was true  

for the appeals filed by the Municipalities.  

          33        The Owners cite Cont'l Airlines, Inc. v. Goodyear Tire & Rubber Co., 819  

F.2d 1519, 1523 n.1 (9th Cir. 1987) and Johnson v. Manhattan Ry. Co. , 289 U.S. 479,  

496-97 (1933).   

          34        AS 43.56.130(i) (emphasis added).  

          35        Alaska R. App. P. 602(h).  

                                                              -14-                                                         6906

----------------------- Page 15-----------------------

                     Furthermore, our case law has long made it clear that, regardless of how  


parties are formally arranged, fees and costs may be awarded based on actual adversity  


                       In First National Bank of Fairbanks v. Enzler , a bankruptcy trustee filed  

of interests.                                                                                     

an action in the superior court, seeking to set aside an allegedly fraudulent conveyance  



between  the  Enzlers,  a  husband  and  wife.                                The  bank  "was  joined  as  a  nominal  


defendant in the suit" solely because of its status as a creditor.38   The superior court ruled  


for the Enzlers following trial and awarded them attorney's fees and costs against the  


bank.        The bank appealed, arguing that it had only been a party because the trustee  


named it and that the Enzlers would have incurred "substantially the same costs and  

                                                                 40   In response, the Enzlers pointed out that the  

attorney's fees" had it not been involved.                                                      

bank had opposed their motion to require the trustee to post a cost bond, had actively  


participated at trial, and had "join[ed] the trustee on all issues raised on appeal."41                                                In  


light of these arguments, and in recognition of the trial court's discretion in determining  


"which  party  prevails  and  is  entitled  to  costs,"  we  "agree[d]  with  the  trial  court's  

           36        See Moses v. McGarvey, 614 P.2d 1363, 1373 (Alaska 1980) ("Under some   

circumstances a party may be considered to have prevailed over another even though     

neither has filed a claim.").  

           37        537 P.2d 517, 520 (Alaska 1975).

           38        Id.

       Id. at 525.

           40        Id.



                                                                  -15-                                                            6906

----------------------- Page 16-----------------------

alignment of the Bank as a plaintiff below" and affirmed the award of costs and fees   


against it.               

                    Similarly, in State ex rel. Palmer Supply Co. v. Walsh & Co., a supplier had  

brought a claim against a general contractor's bonding company, which impleaded a  

                                                        43  We found no abuse of discretion in the superior  

subcontractor as the likely liable party. 

court's award of attorney's fees against the supplier and in favor of the subcontractor,  


despite  the  supplier's  contention  that  it  could  not  be  liable  for  fees  to  a  third-party  


                                                And  in  Moses  v.  McGarvey ,  in  which  a  group  of  

defendant  it  had  not  sued. 

shareholders had sued The Aleut Corporation and its president, Moses, we affirmed the  


superior  court's  order  that  Moses  reimburse  the  corporation  for  the  fees  and  costs  


assessed against it in the plaintiffs' favor;45  but at the same time we reversed an award  


to the corporation of its own fees and costs against Moses, noting that "Moses and the  


corporation were not aligned on opposing sides of the controversy," and they "used the  


same attorney and had the same goal."                              

                    In this case, the Owners were clearly aligned against the Municipalities on  


every substantive issue.   The Owners and the Municipalities were not just nominally  


opposing parties; they were the primary litigants.  North Slope, too, was bound by any  


decision regardless of whether it participated in the appeal as more than a "nominal  


appellee."  The great disparity in the value of TAPS urged by the Owners ($850 million)  

          42        Id. at 526.  

          43        575 P.2d 1213, 1216 (Alaska 1978).  

          44        Id. at 1220-21.  

          45        614 P.2d 1363, 1366-68 (Alaska 1980).  

          46        Id. at 1373.  

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----------------------- Page 17-----------------------


and  that  urged  by  the  Municipalities  ($11.570  billion)  assured  that  neither  the  


Municipalities nor the Owners could prevail on the substantive issues in the case without  

the other side having lost.  



                    The federal cases cited by the Owners are procedurally inapposite. 


prevailing party determination in this case was governed by our own case law, and the  


superior court's decision that the Municipalities were the prevailing parties against the  


Owners was consistent with that case law and  well within the bounds of the court's  


          C.         The  Superior  Court  Did  Not  Err  By  Declining  To  Allocate  Fees  

                    Between The Owners' Appeals And The Municipalities' Appeals.  


                    The Owners also  argue that our case law required the superior court to  

allocate  fees  between  the  appeals  brought  by  the  Owners  and  those  brought  by  the  


Municipalities.  According to the Owners, "[w]hile there is no question that both appeals  


were addressed within a single trial proceeding  and that the claims in the two sets of  

appeals overlapped with each other, there was never any restructuring of the case that  


altered the separate and distinct nature of the pleadings," and "[i]n the absence of such  


a restructuring, the fact that [Fairbanks/Valdez] prevailed in their appeal against [the  

Department] does not make them prevailing parties with respect to the Owners' separate  


appeal."  This appears to be largely a restatement of the preceding argument:  that is, that  

          47        In  Cont'l Airlines v. Goodyear Tire and Rubber Co.                              , the court held  that  

consolidation  of  two  federal  products  liability  cases  did  not  affect  the  diversity  

jurisdiction in either case, as diversity jurisdiction "depends upon the state of the parties  

at the commencement of the suit."  819 F.2d 1519, 1523 n.1 (9th Cir. 1987) (quoting  


 Connolly v. Taylor, 27 U.S. (2 Pet.) 556, 565 (1829)).  In Johnson v. Manhattan Ry. Co. ,  


the Court held that despite the consolidation of two suits, one a receivership and the other  


a creditor's challenge to the receiver's orders, the second suit was still "collateral" to the  

first and therefore required proof that the receiver lacked jurisdiction, not simply that he  

erred, before his orders could be set aside.  289 U.S. 479, 496-97 (1933).        

                                                               -17-                                                        6906

----------------------- Page 18-----------------------

while the Municipalities may have prevailed in their separate appeals, the Owners were  


not parties to those appeals and cannot be liable for attorney's fees allocated to those  

appeals;   and   while   the   Owners   did   not   prevail   in   their   separate   appeals,   the  


Municipalities were not parties to those appeals and cannot be awarded attorney's fees  

allocated to those appeals.  We reject this argument for the reasons given above.  The  


issues in the appeals were the same; the adversity of interests was the same; and the  


appeals  were  logically  consolidated  and  tried  together.    The  superior  court  was  not  


required to treat the appeals as if they maintained a "separate and distinct nature" that  

was belied by the actual proceedings.  


                    The Owners cite two cases  in  support of their allocation argument.  In  


                                                                                  we held that the superior court's  

Myers v. Snow White Cleaners & Linen Supply, Inc. ,  


award of 20 percent of actual attorney's fees to a prevailing defendant "was a reasonable  


allocation between [the defendant's] actual attorney fees and costs necessarily incurred  


defending  against  the  [plaintiffs']  direct  claim,  as  opposed  to  fees  spent  defending  


against the cross-claims of the other defendants."                             We did not hold in Myers that the  

allocation  among  these  claims  was  required  -  only  that  it  was  within  the  superior  

court's  discretion.    In  the  Owners'  other  suggested  authority,  Lyman  v.  State ,50  we 

reversed a Rule 82 award of attorney's fees against a pro se litigant in a case in which  


four of his five causes of action were brought under federal civil rights statutes, and  


federal law, with a higher standard of frivolousness, governed any fee awards related to  


          48        770 P.2d 750 (Alaska 1989).   

          49        Id. at 753.  

          50        824 P.2d 703 (Alaska 1992).  

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----------------------- Page 19-----------------------


those claims.           The Owners argue that "the need for allocation of fees between separate   

federal  and  state  claims"  is  "akin  to  the  need  for  an  allocation  where  separate  


proceedings are consolidated for trial purposes," but we disagree.  The federal and state  


claims at issue in Lyman  implicated different rules governing the award of fees; the  

consolidated appeals at issue here do not.  


                     In declining the Owners' request that attorney's fees be allocated between  

the appeals of the Owners and the Municipalities, the superior court explained:  


                     The Alaska Supreme Court has held that "[e]ach request for  


                     fees  or  costs  to  a  prevailing  party  in  a  multiparty  lawsuit  

                     should be considered objectively on its own merits."  Myers  


                     v. Snow White Cleaners & Linen Supply, Inc., 770 P.2d 750,  


                     753 (Alaska 1989).  In this case, on most of the main issues  


                     in the 2006 tax year trial de novo, the Owners were aligned  


                     against the positions of both the State and the Municipalities.  

                     All of the moving parties received a substantial additional tax  

                     payment  as  a  result  of  the  2006  decision.    As  such,  with  


                     respect to each of the requests for fees and costs before this  

                     court,  this  court  finds  that  the  Owners  should  be  solely  

                     responsible  for  the  amounts  to  be  awarded  to  each  of  the  


                     moving parties.  Stated differently, even though the different  

                     appeals of the parties were consolidated into one trial de novo  

                     for the 2006 tax year, this court finds that it is appropriate to  


                     allocate 100% of each of the moving parties' fee award[s] to  


                     the Owners.   

Again, we conclude that the superior court's decision on this issue - whether to allocate  


attorney's fees between the appeals - was consistent with our case law and well within  


its discretion.  

          51         Id.  at  707  (citing  28  U.S.C.    1875(d)(2)  (1988)  and  DeNardo  v.  

Municipality of Anchorage , 775 P.2d 515, 518 (Alaska 1989).  

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----------------------- Page 20-----------------------

          D.	       The  Superior  Court  Correctly   Applied  Rule  82(b)(2)  For  A  Non- 

                    Money Judgment Instead Of Rule 82(b)(1) For A Money Judgment.  

                    Fairbanks/Valdez appeal the superior court's decision to award attorney's   

fees pursuant to Rule 82(b)(2) instead of Rule 82(b)(1).  Rule 82(b)(1) governs "the   

award  of  attorney's  fees  to  a  party  recovering  a  money  judgment  in  a  case,"  while  


Rule  82(b)(2)  governs  "cases  in  which  the  prevailing  party  recovers  no  money  

judgment."  The key distinction here is in how the award is calculated.  The presumptive  


fee schedule of Rule 82(b)(1) awards a prevailing party 20 percent of the first $25,000  


of the total money judgment and 10 percent of the remainder.  Rule 82(b)(2) awards a  


presumptive 30 percent of reasonable actual attorney's fees for a case going to trial.  In  


cases resulting in a large money judgment, a Rule 82(b)(1) award will often exceed the  

allowable percentage of actual reasonable attorney's fees calculated under Rule 82(b)(2).  

In  this  case,  Fairbanks/Valdez  claim  they  would  receive  $4,089,208.50  under  Rule  


82(b)(1), as opposed to the $1,316,169.31 they were collectively awarded under Rule  

82(b)(2)-(3), based on their actual fees.  

                    In assessing which section of Rule 82 should apply, the superior court  

                                                                          52 which involved a dispute between  

relied upon Strong Enterprises, Inc. v. Seaward,  


Seaward  and  his  former  partners.                   Seaward  prevailed  in  the  superior  court  on  the  


majority of the issues, and the superior court ordered an accounting and required his  


former partners to pay for his stake in the partnership.                                Seaward was awarded the  


presumptive 30 percent of his actual reasonable attorney's fees under Rule 82(b)(2), but  

on appeal his former partner, Strong, argued that Rule 82(b)(1) should apply because  

          52        980 P.2d 456 (Alaska 1999).  

          53        Id. at 457-58.  

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----------------------- Page 21-----------------------

money was to change hands as a result of the judgment.                         54  Though we acknowledged that  


a  money  judgment  is  generally  one  "that  requires  money  to  'change hands,'                                   "    we  

disagreed that Seaward had obtained a money judgment:  

                    Several  circumstances  persuade  us  that  Seaward  did  not  

                    recover  a  money  judgment.    The  final  judgment  required  

                    Seaward's  former  partners  to  perform  accountings  and  

                    required  Strong  to  pay  Seaward  for  his  interests  in  two  

                    partnerships.  It did not specify the amounts payable, nor did  


                    it specify how the parties should calculate those amounts.  It  


                    simply specified the general procedure by which Seaward's  


                    total  recovery  could  be  determined.    Nor  was  it  merely  

                    preliminary to entry of a more specific judgment.  Rather, it  

                    was self-executing and did not require the parties to return to  


                    court for approval of the accountings or the amounts to be  

                    paid as determined by the accountings.  Assuming no further  


                    disputes, complying with the judgment would have required  

                    no  further  judicial  intervention  and  no  entry  of  a  specific  


                    damages award.  

                    In  this  case,  the  superior  court  found  Strong  Enterprises  to  be  closely  

analogous.    The  superior  court  held  that  the  Department  would  have  to  perform  an  


accounting of sorts to determine taxes due; that the final judgment only stated a general  

procedure  for  how  the  calculations  would  be  made;  that  the  calculations  were  not  


preliminary  to  a  final  and  more  specific  judgment;  and  that  the  judgment  was  self- 


executing, requiring no further judicial intervention.  Consequently, the superior court  

determined that the Municipalities did not receive a money judgment and that Rule  

82(b)(2) applied.  

          54       Id.  

          55       Id.  

          56       Id.  

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----------------------- Page 22-----------------------

                   Fairbanks/Valdez  dispute  the  superior  court's  application  of  Strong  


Enterprises .  They contend primarily that the judgment's procedure for payment, though  


not specifying the exact amount to be paid, prescribed a statutory process that would  

result in an exact calculation of the amounts owed to the Municipalities.  They argue that  


unlike  the  accountings  in  Strong  Enterprises,  the  final  judgment  allowed  for  no  

discretion, but rather ordered the Department to issue a supplemental assessment roll  

                                                      57                                     58  

based on the new 2006 value of TAPS                      pursuant to statutory law.              

                   Fairbanks/Valdez also direct our attention to Atlantic Richfield Co. v. State 59  


and State, Commercial Fisheries Entry Commission v. Carlson,   both of which, they  


contend, demonstrate that a money judgment exists whenever the judgment results in  


                                         In  Atlantic  Richfield ,  taxpayers  disputed  the  oil  and  gas  

money  changing  hands. 

         57        The superior court's final judgment on the merits stated:   

                   The     Alaska       Department          of    Revenue        shall     issue     a  

                   supplemental  certified  assessment  roll  reflecting  the  2006  


                   value  of  TAPS  within  30  days  of  the  date  of  this  Final  

                   Judgment Entered Under Civil Rule 54(b), which shall form  


                   the basis for the affected municipalities to issue new tax bills,  


                   and for the calculation by the Department of any applicable  

                   tax credits under AS 43.56.010(d).  

         58        See AS 43.56.140 and 15 Alaska Administrative Code (AAC) 56.045.  

         59        723 P.2d 1249, 1252 (Alaska 1986).  

         60        270 P.3d 755, 765 (Alaska 2012).  

         61        Fairbanks/Valdez also direct us to a Ninth Circuit case, but we do not find  


it particularly apt.  In Ministry of Defense & Support for the Armed Forces of the Islamic  

Republic  of  Iran  v.  Cubic  Defense  Systems,  Inc.,  the  court  held  that  a  judgment  

confirming an arbitral award was a "money judgment" for purposes of post-judgment  

interest, reasoning that "although the judgment does not spell out the amount of the  


                                                          -22-                                                    6906

----------------------- Page 23-----------------------



corporate income tax and requested a refund of taxes already paid.                                     We upheld the tax  


as constitutional; we also held that the State had not received a money judgment for  



purposes  of  Rule  82  because  no  money  changed  hands.                                 We  reasoned  that  "[t]he  


taxpayers  paid  the  challenged  tax  under  protest, then  sued  for  a  refund; hence,  the  


[S]tate's  victory  resulted  in  no  money  judgment."                              Fairbanks/Valdez  read  this  as  

implying that if money had changed hands - if the taxpayers had not already paid the  

challenged  taxes  and  were  required  to  do  so  as  a  result  of  the  judgment,  or  if  the  


taxpayers had prevailed, requiring the State to refund the taxes already paid - then there  

would have been a money judgment.  


                    Carlson was a class action suit brought by non-resident fishermen who  


                                                                                                               We held that  

challenged the higher cost of non-resident commercial fishing licenses. 


the law violated the privileges and immunities clause of the federal constitution, and we  

remanded to the superior court to determine the difference between fees paid by non- 


resident and resident fishermen so the amount could be refunded.                                      The superior court  

calculated the refund and entered a final judgment for the plaintiffs totaling over $82  


[arbitration] award, a definite and certain designation of the amount [owed] is readily  


discernible by looking to the arbitration award itself."   665 F.3d 1091, 1101 (9th Cir.  



2011).  Here, in contrast, supplemental taxes still needed to be calculated and assessed  


at the time the judgment was entered.  Unlike in Ministry of Defense , a "definite and  

certain designation of the amount [owed]" could not be "readily discern[ed.]"   

          62        723 P.2d at 1250-52.  

          63        Id. at 1252.  

          64        Id. at 1252 n.5 (citation omitted).  

          65        270 P.3d at 757.  

          66        Id. at 759.  

                                                              -23-                                                         6906

----------------------- Page 24-----------------------

million for principal and prejudgment interest, along with attorney's fees calculated on  



the money judgment pursuant to Rule 82(b)(1).                                  Fairbanks/Valdez point out that the  


judgment in  Carlson was based on the State's calculations of the refunds due; that here,  


too, the payments to the taxing authorities are based on the State's calculations; and that  


in Carlson we upheld the superior court's use of Rule 82(b)(1) to calculate attorney's  

fees.    But  in  Carlson,  unlike  this  case,  the  superior  court  actually  entered  a  money  


judgment; and the superior court's consequent use of Rule 82(b)(1), as opposed to Rule  


 82(b)(2), was not challenged on appeal.                           

                     Neither Atlantic Richfield nor Carlson is sufficiently like this case to direct  


its outcome.  An important factor here is the nature of the task set for the superior court  


on the administrative appeal. The superior court's task was to conduct a trial de novo of  

                            69                                                                                                70 

the Board's action             - principally, to determine the "full and true value" of TAPS.                                    No  


party asked for entry of a money judgment, nor was it the superior court's task to enter  


one.    To  calculate,  assess,  and  collect  taxes  on  the  basis  of  the  superior  court's  


assessment of the "full and true value" of TAPS was the responsibility of the taxing  


authorities after the superior court had completed its work.  

                     We accordingly agree with the superior court that the result in this case  


follows from our holding in Strong Enterprises.  As in Strong Enterprises, the final  


judgment in this case did not specify the amount of the Owners' tax liability; it did not  

           67        Id. at 757, 759-60.  

           68        See id. at 766.  The State in Carlson  challenged the trial court's use of the                     

Rule 82(b)(1) schedule for cases that are "contested with trial," arguing that a three-day                            

evidentiary hearing did not qualify as a "trial."  Id.  The State did not challenge the  

premise that the case fell under some category of Rule 82(b)(1).    

           69        AS 43.56.130(i).  

           70        AS 43.56.060.  

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----------------------- Page 25-----------------------

direct the parties how to calculate the amount of taxes due; it "simply specified the  


general procedure" for determining that amount.                             Furthermore, like the judgment in  

Strong Enterprises, the judgment here was not "preliminary to entry of a more specific  


judgment [but rather] was self-executing and did not require the parties to return to court  


                                                                                                         And finally, as  

for approval" of the determination of the amounts of taxes to be paid. 


in Strong Enterprises, "[a]ssuming no further disputes, complying with the judgment  


would have required no further judicial intervention and no entry of a specific damages  


award."           We  conclude  that  the  superior  court  properly  awarded  fees  under  the  

provisions of Rule 82(b)(2).  

          E.	       The Superior Court Did Not Abuse Its Discretion In Its Consideration  

                    Of The Rule 82(b)(3) Enhancement Factors.  

                    1.	      The superior court did not err by granting the Municipalities a  


                             15 percent enhancement under Rule 82(b)(3)(A), (B), and (H).  

                    Civil Rule 82(b)(3) allows the court to vary an attorney's fee award if it  


determines a variance is warranted based on listed factors.  Here, the superior court  


enhanced attorney's fees from Rule 82(b)(2)'s presumptive rate of 30 percent (for a  


contested case that goes to trial) to 45 percent.  This enhancement was based on several  


listed factors: (A) ("the complexity of the litigation"), (B) ("the length of trial"), and (H)  

("the relationship between the amount of work performed and the significance of the  

matters at stake").  The Owners challenge the enhancement on several grounds.  


                    First,  the Owners assert that the complexity and length of trial are already  

reflected in the attorneys' billable hours, and they argue that these factors therefore  

          71        See Strong Enters., Inc. v. Seaward,  980 P.2d 456, 458 (Alaska 1999).

          72        See id.

          73        See id.

                                                            -25-	                                                         6906  

----------------------- Page 26-----------------------

cannot stand alone as justification for an enhancement.  The Owners cite                                          Tenala, Ltd. v.  


                 in  which  we  observed  that  "complexity  works  poorly  as  an  independent  

Fowler ,                                               

enhancing factor in Rule 82(b)(2) cases where hourly fees, rather than the amount of a  



money judgment, serve as the measure of the fees to be awarded."                                             But in Tenala we  


nonetheless affirmed the superior court's use of complexity as the sole enhancing factor,  


explaining that the over-counting that results from considering both hourly billings and  


                                                                                                                      In  Cizek v.  

complexity "points to a weakness in the rule, not to trial court error." 

Concerned  Citizens  of  Eagle  River  Valley,  Inc.,  too,  we  accepted  both  length  and  


complexity as proper factors for enhancement, noting that they are "explicitly listed as  


permissible considerations under Civil Rule 82(b)(3), and therefore are an appropriate  


                                                            And in  Ware v. Ware we stated, "While we have  

basis for the trial court's decision." 

occasionally  expressed  concern  about  the  use  of  factor  (A)  -  complexity  of  the  


litigation - to enhance fees . . . we have repeatedly upheld its use."78   Accordingly, as  


there is no question that the trial in this case was lengthy and complex, we cannot say  

that the superior court abused its discretion when it used factors (A) and (B) of Rule  


82(b)(3) to enhance its award of attorney's fees.  

                     The Owners also argue that the superior court improperly referred to a  


theoretical award of attorney's fees made under Rule 82(b)(1), for cases involving a  


money judgment, in deciding whether to apply factor (H), "the relationship between the  

           74        993 P.2d 447 (Alaska 1999).  

           75        Id. at 451 n.19.  

           76        Id.  

           77        71 P.3d 845, 851 (Alaska 2003).  

           78        161 P.3d 1188, 1199 (Alaska 2007).  

                                                                 -26-                                                           6906

----------------------- Page 27-----------------------


amount of work performed and the significance of the matters at stake."   But we see  


nothing objectionable in the superior court's reference to Rule 82(b)(1) by analogy.  The  


court wrote, "One indication of [the significance of the issues at stake] is demonstrated  


by the far greater amount of fees that would have been awarded had the 2006 judgment  

constituted a 'money judgment,' as set forth in the Municipalities' briefing."  The court  


went on to state that "[t]he case involved the valuation of one of the largest assets in the  


state, and while not public interest litigation, the 2006 tax year litigation certainly has a  

significant impact on the taxing authorities, the taxpayers and the public."  

                    We further note that this case has been litigated for over eight years, and  

the  Municipalities  calculate  that  it  will  result  in  the  Owners  paying  the  State  and  

Municipalities a combined total of $152,491,572 in supplemental taxes for the 2006 tax  

year.  That the issues at stake were significant and that they justified a large amount of  


work by both sides cannot seriously be disputed.  The superior court did not abuse its  

discretion when it applied the factor of Rule 82(b)(3)(H) to enhance the fees awarded.  

                    2.	      The  superior  court  did  not  abuse  its  discretion  by  failing  to  


                             award a greater enhancement of Fairbanks/Valdez's attorney's  



                             a.        The 2005 study and Rule 82(b)(3)(G)  

                    Rule 82(b)(3)(G) provides for the enhancement of attorney's fees because  


of the other side's "vexatious or bad faith conduct."  The superior court declined to find  


such conduct in this case.  Fairbanks/Valdez allege, however, that the Owners acted in  

bad  faith  and  vexatiously  when  they  failed  to  disclose  a  2005  study  that  allegedly  

contradicted some of their positions at trial.  Fairbanks/Valdez contend that they are  


entitled      to    further       enhancement           of     their     reasonable         attorney's        fees     under  

Rule 82(b)(3)(G) to reach at least 75 percent, if not 100 percent.   

                                                             -27-	                                                      6906

----------------------- Page 28-----------------------

                   Fairbanks/Valdez contend that they made numerous requests for studies like  


the 2005 study during discovery but that it was not made available until the subsequent  


trial de novo involving the 2007-2009 tax years.  They assert that the superior court was  

not aware of the existence of the study until June 2011 and could not have reviewed the  


study's conclusions before July 25, 2011, the date it issued its Order re Motions for Costs  

and Attorney's Fees.  


                   But this argument was never raised in the superior court.  Fairbanks/Valdez  

concede that they had a copy of the 2005 study as early as December 2010, and they  

referenced its key conclusions in a June 2011 motion.  They could have presented the  


information to the superior court before it ruled on the attorney's fees motions, or, if  

justified, they could have asked the superior court to reconsider its attorney's fees order  

on the basis of newly discovered evidence.  Simply put, the superior court in the 2006  


tax appeals never heard an argument for enhancement based on the late production of the  

2005 study, and we will not consider the issue in the first instance on appeal.79  


                             b.	       The  reasonableness  of  the  Owners'  claims  under  Rule  


                   Rule 82(b)(3)(F) allows the court to vary the presumptive 30 percent of  

reasonable actual attorney's fees under Rule 82(b)(2) based on "the reasonableness of  

the  claims  and  defenses  pursued  by  each  side."    In  its  order  on  attorney's  fees,  the  


superior court took note of the Owners' "trial position . . . that TAPS was worth a total  


of  $850  million"  and  stated  that  the  reasonableness  of  this  position  "could  be  


questioned," juxtaposing that amount with "the comparable amounts that have recently  

been invested into replacing far shorter transit pipelines from Prudhoe Bay to Pump  

          79       Mills v. Hankla , 297 P.3d 158, 167 (Alaska 2013) (noting that we do not  

address new issues or theories that were not presented in the trial court).  

                                                            -28-	                                                        6906  

----------------------- Page 29-----------------------



Station 1."         The superior court declined to give the "reasonableness" factor any weight,  


however, given the lack of controlling precedent on the governing valuation standards  

in AS 43.56.060(e).  


                    Fairbanks/Valdez maintain that the Owners' reliance on the tariff income  

valuation method was unreasonable.  They also note that the Owners' proposed valuation  


of $850 million was less than 10 percent of the value ultimately found by the superior  

court.  Consequently, they argue that the superior court abused its discretion when it  


failed  to  apply  an  additional  enhancement  under  Rule  82(b)(3)(F)  based  on  the  

unreasonableness of the Owners' position.  


                    But  the  superior  court  has  wide  discretion  in  determining  awards  of  


attorney's fees.          Despite the superior court's observation that "the reasonableness of the  

Owners' 2006 trial position could be questioned,"  its further conclusion - that there  


was no controlling law to constrain the parties' litigation positions - is also sound.  The  


court was not required to further enhance the fee award beyond the 45 percent it had  

reached by applying other relevant factors of Rule 82(b)(3).82  

          F.	       The Superior Court Did Not Abuse Its Discretion When It Rejected  


                    The Special Master's Recommendation That Fairbanks's Fee Request  

                    Be Reduced By 15 Percent.  


                    In its July 25, 2011order on costs and attorney's fees, the superior court  


asked that a special master review the prevailing parties' billings for reasonableness.  The  

          80        The superior court's amended decision noted that "there are two, 24-mile- 

long  transit  lines  from  the  Prudhoe  Bay  field  to  Pump  Station  1  that  were  recently  


replaced at a cost in excess of $600 million."  

          81       Keenan v. Wade , 182 P.3d 1099, 1109 (Alaska 2008).  



                    Rule 82(b)(3) specifies that "[t]he court may vary an attorney's fee award  

. . . if, upon consideration of the factors listed below, the court determines a variation is  

warranted" (emphasis added).  

                                                             -29-	                                                      6906

----------------------- Page 30-----------------------


special  master  determined  that  "[Fairbanks's]  redacted  billing  records  suggest  that  


[Fairbanks] often had two and sometimes three attorneys working on the same effort."  

Though recognizing that "this litigation was highly complex and that the money stakes  

were  considerable,"  the  special  master  found  that  "[Fairbanks]  had  a  pattern  of  


duplication of work that was unreasonable for purposes of a Rule 82 analysis."  He  

therefore  concluded  that  only  85  percent  of  Fairbanks's  actual  attorney's  fees  were  


                    Fairbanks objected to the recommended reduction.  The  superior court  



reviewed the special master's findings de novo                          and determined that the reduction was  

not warranted.  


                    The Owners argue that the superior court abused its discretion in setting  


aside the reduction, because its acknowledgment of duplicative work is inconsistent with  

          83        Alaska  Civil  Rule  53(d)(2)(B)  requires  that  when  a  party  objects  to  a  


special master's recommendation, "[t]he court must consider under a de novo standard  


of review all objections to findings of fact made or recommended in the report, and must  

rule on each objection."   

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----------------------- Page 31-----------------------


its ultimate conclusion that the attorneys' efforts were "not unreasonable."                                      But the  

superior court's decision of the issue was expressly based on its own "considerably  


greater familiarity with the details of the case."  Specifically, the court concluded that the  

master made a mistake in underestimating the amount of discovery in the case, and the  

court relied on its own better understanding of the "role of each of the lead attorneys  


participating in the case, the complexity of the document management, and the extensive  

legal issues that were presented."  The court found the research, drafting, and discovery  

tasks were not in fact duplicative, and it noted in particular that it was not unreasonable  


for  Fairbanks  to  sometimes  have  several  lawyers  in  court  given  the  way  the  court  

conducted its proceedings.  This detailed explanation, explicitly based on the superior  

court's close familiarity with the litigation and supported by findings of fact that are not  

clearly erroneous, is more than sufficient to support the court's decision to reject the  

special master's recommended reduction in fees.  

V.        CONCLUSION  

                   We AFFIRM the superior court's decisions on attorney's fees and costs.  

          84       The Owners cite Demoski v. New , 737 P.2d 780, 787 (Alaska 1987), in      

which duplicative billings were one factor supporting the trial court's modest fee award.         

But the award in Demoski was based on a number of findings without parallel here:   

                   The court found that one of the attorneys [for the plaintiffs]  

                   had impermissibly overcharged them, that the billings were  

                   duplicative,   that   a   substantial   amount   of   the   services  

                   performed related to [unrelated claims], and that counsel for  

                   the [prevailing parties] generated much unnecessary work by  

                   making vituperative attacks on opposing counsel and parties  


                   and by failing to follow the civil rules and the provisions of  


                   the pre-trial order. 

  737 P.2d at 787.   

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