Manning v. State, Dept. of Fish & Game (5/15/2015) sp-7008

Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother.

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Manning v. State, Dept. of Fish & Game (5/15/2015) sp-7008

Manning v. State, Dept. of Fish & Game (5/15/2015) sp-7008

This has been WITHDRAWN - see Opinion # 7036

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, email

corrections@akcourts.us.

THE SUPREME COURT OF THE STATE OF ALASKA

KENNETH H. MANNING, )

) Supreme Court No. S-15121

Appellant, )

) Superior Court No. 3KN-11-00367 CI

v. )

) O P I N I O N

STATE OF ALASKA, DEPARTMENT )

OF FISH & GAME, KEVIN M. SAXBY, ) No. 7008 - May 15, 2015

and AHTNA TENE NENÃ‰, INC., )

)

Appellees. )

)

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

Judicial District, Kenai, Anna Moran and Charles T.

Huguelet, Judges.

Appearances: Kenneth H. Manning, pro se, Kasilof,

Appellant. Michael G. Mitchell, Assistant Attorney General,

Anchorage, and Michael C. Geraghty, Attorney General,

Juneau, for Appellee State of Alaska. Brenda B. Page, Senior

Assistant Attorney General, Anchorage, and Michael C.

Geraghty, Attorney General, Juneau, for Appellee Saxby.

John M. Starkey, Law Office of John Sky Starkey, LLC,

Anchorage, for Appellee Ahtna Tene NenÃ©, Inc.

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

Bolger, Justices.

WINFREE, Justice.

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

I. INTRODUCTION

The Alaska Board of Game promulgated regulations managing caribou

hunting in Game Management Unit 13. The regulations allow hunting under three types

of permits: a community harvest subsistence permit, an individual subsistence permit,

or a non-subsistence drawing permit. A hunter challenged the regulations on

constitutional and statutory grounds, arguing that they wrongfully interfered with his

subsistence hunting rights, and also sought a judicially imposed public reprimand of an

assistant attorney general representing the Board. The superior court dismissed the claim

against the attorney, granted summary judgment upholding the regulations, and awarded

partial attorney's fees to the State and an intervenor defendant. The hunter appeals. We

affirm the dismissal and summary judgment orders, but vacate the attorney's fees awards

and remand for further proceedings.

II. FACTS AND PROCEEDINGS

This case involves a challenge to the Board of Game's 2010 amendments

to regulations for subsistence caribou hunting in Game Management Unit 13, known as

1 Under the governing statute, if a game population can be harvested

the Nelchina basin.

consistent with sustained yield principles, the Board must "determine the amount of the

harvestable portion that is reasonably necessary for subsistence uses." (This is

1 We recently discussed the history of caribou hunting regulation in the

Nelchina basin in Alaska Fish & Wildlife Conservation Fund v. State (AFWCF II ), ___

P.3d ____, Op. No. 6992 at 2-5, 2015 WL 1393374, at *1-2 (Alaska Mar. 27, 2015)

(concerning subsistence moose and caribou hunting in Game Management Units 11, 12,

and 13, collectively referred to therein as the "Copper Basin") and Ahtna Tene NenÃ© v.

State, Department of Fish & Game, 288 P.3d 452, 455-57 (Alaska 2012) (concerning

subsistence moose and caribou hunting in Game Management Unit 13 only, referred to

therein as the "Nelchina basin").

2 AS 16.05.258(b).

-2- 7008

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

commonly called the "amount reasonably necessary for subsistence," or "ANS." )

Subsistence uses are managed at either the Tier I or Tier II level. Tier I management is

appropriate when the Board concludes that the allowable harvest is sufficient to provide

a reasonable opportunity for all subsistence uses; otherwise Tier II management is

Subsistence hunting under Tier II is more limited, with permits allocated

appropriate.

based on specific eligibility criteria.6

In 1993 the Board determined that the ANS for Nelchina caribou was

"100% of the allowable harvest" because the demand for subsistence hunting

"exceed[ed] supply." The Board therefore managed the Nelchina caribou hunt under

Tier II. Following a stream of complaints that the Tier II system did not provide

sufficient subsistence opportunity for Nelchina caribou, the Board began developing new

regulations in 2006. The Board made new findings about the customary and traditional

uses of Nelchina caribou and adopted regulations requiring that hunters conform to

identified practices. In March 2009 the Board determined the ANS to be 600-1,000

animals, accounting for the demand of only those hunters following the customary and

traditional use practices identified in its findings. Based on the revised ANS and that

year's estimated allowable harvest of 1,000 animals, the Board transitioned management

of the Nelchina caribou hunt from a Tier II to a Tier I system. The regulations created

two types of subsistence hunting permits: a community harvest permit and an individual

3 See 5 Alaska Administrative Code (AAC) 99.025(c)(1) (2014).

4 AS 16.05.258(b); State, Dep't of Fish & Game v. Manning , 161 P.3d 1215,

1216-17 (Alaska 2007).

5 AS 16.05.258(b); Manning , 161 P.3d at 1216-17; 5 AAC 92.990(a)(47),

(48).

6 Manning , 161 P.3d at 1216-17; 5 AAC 92.062.

-3- 7008

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

permit. The regulations were challenged in superior court and invalidated on the

grounds that (1) they were unconstitutional and (2) the Board's decision to change the

caribou hunt from Tier II to Tier I was arbitrary and unreasonable and violated the

Alaska Administrative Procedure Act's notice requirement.8

The Board addressed the invalidated regulations at its October 2010

meeting. After reviewing extensive evidence on population and hunting trends for

Nelchina caribou, the Board again calculated the ANS at 600-1,000 animals. Because

the estimated allowable harvest of 2,300 caribou was greater than the ANS, the Board

concluded that the Nelchina caribou subsistence hunt must be managed under Tier I.

The Board then reinstated the bifurcated community/individual subsistence hunt system,

with revisions, and also allowed issuance of non-subsistence hunt drawing permits.

The regulations establish that any group of 25 or more persons may apply

for a community harvest subsistence permit entitling each group member to harvest one

caribou during the regulatory year. The group must follow the customary and

traditional use pattern identified by the Board for community subsistence hunts.11

Individual subsistence permit holders also are entitled to harvest one caribou per

household during the regulatory year, but are not subject to the community harvest

7 See Ahtna Tene NenÃ© v. State, Dep't of Fish & Game , 288 P.3d 452, 455-56

(Alaska 2012).

8 Id. at 456. The ruling was appealed, but we dismissed the appeal as moot

after the Board again amended its regulations. Id. at 458, 463.

9 5 AAC 85.025(a)(8). See generally AFWCF II , ___ P.3d ___, Op. No.

6992 at 2-5, 2015 WL 1393374, at *1-2 (Alaska Mar. 27, 2015) (describing amended

permitting scheme and restrictions); Ahtna Tene NenÃ© , 288 P.3d at 456-57.

10 5 AAC 85.025(a)(8), 92.072(c)(1).

11 5 AAC 92.072(c)(1)(D).

-4- 7008

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

hunt's customary and traditional use restrictions. Up to 300 caribou may be taken each

year under community harvest permits, while no cap is placed on the total number of

All subsistence permit holders are

caribou that may be taken under individual permits.

subject to the same hunting regulations and their hunting seasons and areas are the

14 And all subsistence permits prohibit taking more than one caribou per household

same.

and hunting caribou in any other location during the permit year.15

In April 2011 Kenneth Manning filed suit against the Alaska Department

of Fish and Game (Department) and Assistant Attorney General Kevin Saxby. Manning

sought an injunction preventing the Department from implementing the Nelchina caribou

community subsistence hunt regulations on various constitutional and statutory grounds,

and sought a judicially imposed reprimand of Saxby for alleged violations of law while

he was representing the Board. Ahtna Tene NenÃ© (Ahtna) was permitted to intervene as

a defendant. Shortly thereafter the superior court dismissed the claim against Saxby,

concluding that he was entitled to discretionary and qualified immunity and that the court

could not grant the specific relief Manning sought.

In late October 2011 the Department issued an emergency order closing the

Nelchina caribou hunt to non-subsistence drawing permit holders. Manning, who held

an individual subsistence hunt permit, moved for an "emergency expedited ex parte

preliminary injunction" enjoining the closure, but the superior court denied the motion

because Manning lacked standing. In early December 2011 the Department closed the

12 5 AAC 85.025(a)(8), 92.071(a).

13 5 AAC 85.025(a)(8).

14 Id. ; 5 AAC 92.072(d).

15 5 AAC 92.050(a)(4)(I).

-5- 7008

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

individual subsistence hunt, and three days later the Department closed the community

harvest subsistence hunt.

Manning filed a summary judgment motion in June 2012, and the

Department and Ahtna filed cross-motions for summary judgment. In April 2013 the

superior court denied Manning's motion and granted the Department's and Ahtna's

cross-motions, concluding that the Board's decision to change the Nelchina caribou hunt

and that

from a Tier II hunt to a Tier I hunt was reasonable and consistent with statute

the new regulations were constitutional and did not violate the public trust doctrine. The

court also rejected Manning's argument that the Department provided insufficient notice

under the Administrative Procedure Act before it closed the individual and community

harvest subsistence hunts by emergency order.

During and following the summary judgment proceedings Manning filed

several motions to disqualify the presiding judge and a motion for new proceedings,

alleging the judge was biased and incompetent. Each motion was denied.

The Department and Ahtna moved for attorney's fees, and the superior

court awarded them partial fees as prevailing parties under Alaska Civil Rule 82. The

court concluded that 15 of the 30 counts in Manning's complaint requested constitutional

relief and were not frivolous, so Manning could not be liable for attorney's fees incurred

The court awarded attorney's

in connection with those claims under AS 09.60.010.

16 Specifically the superior court concluded: (1) the decision to change the

ANS for Nelchina caribou was reasonable and supported by sufficient evidence; (2) the

ANS range calculated by the Board in October 2010 was reasonable and supported by

sufficient evidence; and (3) the Board's decision to transition from a Tier II to a Tier I

hunt was supported by sufficient evidence.

17 AS 09.60.010(c)(2) provides that a court:

[M]ay not order a claimant to pay the attorney fees of the

(continued...)

-6- 7008

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

fees for all time spent on "non-constitutional, procedural issues," and for 50% of the time

spent on work in which the type of claim could not be identified. The court also reduced

the hourly rates the Department and Ahtna claimed by half because Manning was

indigent, resulting in final awards of $4,573 to the Department and $1,080 to Ahtna.

Manning appeals.

III. STANDARD OF REVIEW

"We review grants of motions to dismiss and grants of summary judgment

de novo . . . ."18

"We presume that regulations are valid and we place the burden of proving

otherwise on the challenging party":19

We review an agency's regulation for whether it is

"consistent with and reasonably necessary to implement the

statutes authorizing [its] adoption." Toward this end we

consider: (1) whether [the agency] exceeded its statutory

authority in promulgating the regulation; (2) whether the

regulation is reasonable and not arbitrary; and (3) whether the

17 (...continued)

opposing party devoted to claims concerning constitutional

rights if the claimant . . . did not prevail in asserting the right,

the action or appeal asserting the right was not frivolous, and

the claimant did not have sufficient economic incentive to

bring the action or appeal regardless of the constitutional

claims involved.

Smith v. State, 282 P.3d 300, 303 (Alaska 2012) (citing Interior Cabaret,

Hotel, Rest. & Retailers Ass'n v. Fairbanks N. Star Borough , 135 P.3d 1000, 1002

(Alaska 2006)).

West v. State, Bd. of Game, 248 P.3d 689, 694 (Alaska 2010) (citing Lakosh

v. Alaska Dep't of Envtl. Conservation , 49 P.3d 1111, 1114 (Alaska 2002)).

-7- 7008

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

regulation conflicts with other statutes or constitutional

provisions.[20]

Reviewing whether a regulation is reasonable and not arbitrary "consists primarily of

ensuring that the agency has taken a hard look at the salient problems and has genuinely

engaged in reasoned decision making."

"We apply the reasonable basis standard to questions of law involving

'agency expertise or the determination of fundamental policies within the scope of the

agency's statutory functions.' "22 We also review an agency's application of law to facts

under the reasonable basis standard. But we exercise our independent judgment in

reviewing whether an agency action is consistent with the Alaska Constitution.24

"We review de novo whether the trial court applied the law correctly in

awarding attorney's fees."25

20 Wilber v. State, Commercial Fisheries Entry Comm'n, 187 P.3d 460, 464-

65 (Alaska 2008) (first alteration in original) (quoting Grunert v. State, 109 P.3d 924,

929 (Alaska 2005)).

21 Interior Alaska Airboat Ass'n v. State, Bd. of Game , 18 P.3d 686, 690

(Alaska 2001) (citing Tongass Sport Fishing Ass'n v. State, 866 P.2d 1314, 1319 (Alaska

1994); Gilbert v. State, Dep't of Fish & Game, 803 P.2d 391, 398 (Alaska 1990)).

Davis Wright Tremaine LLP v. State, Dep't of Admin. , 324 P.3d 293, 299

(Alaska 2014) (quoting Marathon Oil Co. v. State, Dep't of Natural Res. , 254 P.3d 1078,

1082 (Alaska 2011)).

Alaska Fish & Wildlife Conservation Fund v. State, Dep't of Fish & Game,

Bd. of Fisheries (AFWCF I ), 289 P.3d 903, 907 (Alaska 2012) (citing Koyukuk River

Basin Moose Co-Mgmt. Team v. Bd. of Game , 76 P.3d 383, 386 (Alaska 2003)).

24 Id.

25 Lake & Peninsula Borough Assembly v. Oberlatz , 329 P.3d 214, 221

(Alaska 2014) (alteration omitted) (quoting Marron v. Stromstad, 123 P.3d 992, 998

(continued...)

-8- 7008

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

IV. DISCUSSION

A. The Regulation Managing The Nelchina Caribou Hunt Under Tier I

Is Consistent With The Statute And Is Reasonable And Not Arbitrary.

Manning argues that the Board's decision to manage the Nelchina caribou

- is unlawful, and that the

hunt under Tier I - executed through 5 AAC 85.025(a)(8)

hunt must be managed under Tier II. But the Board's decision is lawful so long as

5 AAC 85.025(a)(8) is consistent with the statute and is reasonable and not arbitrary.

Alaska Statute 16.05.258(b) requires the Board to adopt regulations managing a game

population under Tier II only "if the harvestable portion of the . . . population is not

We construe

sufficient to provide a reasonable opportunity for subsistence uses."

Manning's argument to be that 5 AAC 85.025(a)(8) is inconsistent with its authorizing

statute - AS 16.05.258(b) - because it impermissibly allows the Board to manage the

subsistence hunt under Tier I when the allowable harvest of Nelchina caribou is

insufficient to provide a reasonable opportunity for subsistence uses. Manning's

argument thus turns on whether the Board lawfully could conclude that a reasonable

25 (...continued)

(Alaska 2005)) (internal quotation marks omitted).

26 5 AAC 85.025(a)(8) establishes bag limits and hunting seasons for

Nelchina caribou under a Tier I management scheme.

27 See Wilber v. State, Commercial Fisheries Entry Comm'n, 187 P.3d 460,

464-65 (Alaska 2008) (citing Grunert v. State, 109 P.3d 924, 929 (Alaska 2005)). It is

undisputed that the Board has statutory authority to promulgate regulations managing

subsistence game hunts. See AS 16.05.258. The fact that the Board previously

determined the Nelchina caribou hunt had to be managed under Tier II does not affect

the standard of review or analysis. See AFWCF I, 289 P.3d at 912 (noting Board of

Fisheries "is not required to strictly adhere to its early determinations, especially when

provided new contradictory data").

28 AS 16.05.258(b)(4).

-9- 7008

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

opportunity for subsistence uses exists. The meaning of "reasonable opportunity for

subsistence uses" involves the Board's expertise and is committed to the Board's

discretion by statute, so the Board's determination that a reasonable opportunity exists

is consistent with statute if the determination has a reasonable basis.30

Manning argues the Board cannot conclude that a reasonable opportunity

for subsistence uses exists because the Board relied on an ANS value it had "unlawfully

reduce[d]." And because the Board must manage a hunt at the Tier II level if the

harvestable surplus is below the ANS,31 the Board could not reasonably conclude that

a reasonable opportunity for subsistence uses existed if it relied on an improper ANS

value.

Manning argues the ANS determination is unlawful in two ways: (1) the

Board violated the Alaska Constitution by relying on impermissible user characteristics

in its ANS calculation; and (2) the ANS determination is unreasonable. Although the

ANS determination was published as a regulation - 5 AAC 99.025(a)(4) - the

29 See AS 16.05.258(f) ("For purposes of this section, 'reasonable

opportunity' means an opportunity, as determined by the appropriate board, that allows

a subsistence user to participate in a subsistence hunt or fishery that provides a normally

diligent participant with a reasonable expectation of success of taking of fish or game."

(emphasis added)).

See Davis Wright Tremaine LLP v. State, Dep't of Admin. , 324 P.3d 293,

299 (Alaska 2014) (citing Marathon Oil Co. v. State, Dep't of Natural Res. , 254 P.3d

1078, 1082 (Alaska 2011)).

31 ALASKA DEP 'T OF FISH & GAME , DIV . OF SUBSISTENCE , GUIDELINES FOR

PREPARING OPTIONS FOR THE ALASKA BD . OF FISHERIES & ALASKA BD . OF GAME FOR

AMOUNT REASONABLY NECESSARY FOR SUBSISTENCE (ANS) FINDINGS 1 (vers. 1.0,

2009); see also 5 AAC 99.025(c)(1) (defining ANS as "the total amount of animals from

a population that must be available for subsistence hunting in order to provide a

reasonable opportunity for subsistence uses").

-10- 7008

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

determination is an application of law to facts which is reviewed for a reasonable basis.

The Board's discretion under this standard is limited, however: "The Board's ultimate

decisions must be reasonably related to the purposes of the subsistence law; in other

words, the Board may not manipulate [an underlying determination] simply to achieve

a predetermined outcome."33

1. The Board's ANS calculation was not based on unconstitutional

factors.

Manning asserts that the Board improperly used "rail belt and urban

residency, 'community,' and/or Ahtna racial customs and traditions to pre-determine

who is or is not a subsistence user" in calculating the ANS, and asserts that consideration

of these factors violates the Alaska Constitution. (Emphasis in original.) But

The record

AS 16.05.258(b) refers to ANS in terms of subsistence uses, not users.

reveals that the Board included a broad variety of subsistence uses in its ANS

calculation. And even if the Board had defined subsistence uses of Nelchina caribou to

include only local community hunting practices, it would not necessarily have violated

the Alaska Constitution - considering certain users' patterns to define the subsistence

uses placing demand on a game population affects only that game population's

classification; it "does not affect any individual's ability to obtain a subsistence permit

32 See AFWCF I , 289 P.3d at 907 (citing Koyukuk River Basin Moose Co-

Mgmt. Team v. Bd. of Game , 76 P.3d 383, 386 (Alaska 2003)) (application of law to

facts is reviewed for reasonable basis); see also State v. Kenaitze Indian Tribe, 894 P.2d

632, 641 (Alaska 1995) (stating fish and game allocation decisions generally are

reviewed for reasonable basis).

33 Native Vill. of Elim v. State , 990 P.2d 1, 11 (Alaska 1999).

34 AS 16.05.258(b) states, "[T]he board shall determine the amount of the

harvestable portion that is reasonably necessary for subsistence uses."

-11- 7008

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

or to utilize that permit in a subsistence area." The Board's subsistence definition

applies equally to all of Alaska's citizens. Accordingly, the Board's ANS calculation

does not implicate, nor violate, the equal access, uniform application, or equal protection

clauses of the Alaska Constitution.36

2. The Board's ANS calculation is reasonable.

Manning also asserts that the ANS calculation was improperly reduced for

the purpose of converting the hunt to Tier I and implementing a community subsistence

hunt. But Manning points to nothing in the record indicating the Board "manipulate[d]"

the ANS "simply to achieve a predetermined outcome."37 On the contrary, considerable

evidence in the record justifies the Board's ANS calculation and demonstrates that the

Board took "a hard look at the salient problems and . . . genuinely engaged in reasoned

decision making."38

The Board reviewed extensive evidence on long-term harvest, customary

and traditional use patterns, and caribou population trends, and it considered a number

of proposals for defining subsistence uses of Nelchina caribou in making its ANS

determination. It concluded the 600-1,000 ANS best fit the available data after

considering at least eight possible ANS options. The Board identified substantial

evidentiary support justifying the customary and traditional use definition applied in its

ANS determination. And the Board continued to consider a number of proposed

35 AFWCF I , 289 P.3d at 910.

36 See id.

37 Native Vill. of Elim , 990 P.2d at 11.

38 Interior Alaska Airboat Ass'n v. State, Bd. of Game , 18 P.3d 686, 690

(Alaska 2001) (citing Tongass Sport Fishing Ass'n v. State, 866 P.2d 1314, 1319 (Alaska

1994); Gilbert v. State, Dep't of Fish & Game, 803 P.2d 391, 398 (Alaska 1990)).

-12- 7008

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

management regimes - including a Tier II hunt - after calculating the ANS, suggesting

the ANS calculation was not merely a pretext for switching to a Tier I hunt. The Board

concluded that "Tier II is off [the] table" only after comparing the adopted ANS to the

harvestable surplus.

Although there is some evidence that the Board preferred that the ANS

determination ultimately allow for a Tier I hunt, it does not appear that the ANS was

improperly manipulated to achieve a predetermined outcome. The record provides

sufficient evidentiary support demonstrating that the Board's ANS calculation is both

procedurally and substantively reasonable. Accordingly the Board reasonably concluded

that there is a reasonable opportunity for subsistence uses. Managing the Nelchina

caribou hunt under Tier I through 5 AAC 85.025(a)(8) is consistent with the statute and

is reasonable and not arbitrary.

B. The 2011 Closures By Emergency Order Did Not Violate The

Administrative Procedure Act's Notice Requirements.

Manning contends that the Department violated the Administrative

Procedure Act by failing to give permit applicants sufficient notice that the individual

subsistence and the non-subsistence drawing hunts "may be closed by Emergency Order

prior to achieving the annual harvest quota, while allowing or granting a priority

preference for 'community' permit hunters (CHP) to continue to hunt the same resource

prior to the annual harvest quota." (Emphasis in original.) Manning appears to be

referring to the emergency closures of the Nelchina caribou hunt in 2011.39

39 Although Manning refers to the individual subsistence and non-subsistence

drawing hunt closures in his brief, Manning's Administrative Procedure Act challenge

in the superior court involved only the individual and community harvest subsistence

hunt closures; the court previously had denied Manning standing to challenge the

drawing hunt closure. Accordingly we consider Manning's Administrative Procedure

(continued...)

-13- 7008

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

Alaska Statute 16.05.060 authorizes closures by emergency orders, which have the force

of law. Emergency orders are not subject to the Administrative Procedure Act, so no

Manning's concern about the three-day

notice is required prior to their issuance.

difference in the emergency closures of the individual subsistence hunt and the

community subsistence hunt has little to do with notice; to the extent his concern is about

equal protection, his argument is undeveloped and we do not consider it.

C. The Claim Against Saxby Was Properly Dismissed.

The superior court dismissed Manning's claim against Saxby on the

alternative grounds of discretionary function immunity, official immunity, and the

court's lack of authority to grant the relief requested. Manning provides no authority

establishing that the superior court has general jurisdiction to issue a public reprimand

for attorney misconduct extrinsic to court proceedings. Nor does Manning cite any

authority that the superior court has general jurisdiction to issue a reprimand against a

public official for conduct extrinsic to court proceedings. Insofar as Manning may have

been requesting declaratory relief against Saxby, such relief is not available in this case:

39 (...continued)

Act challenge on appeal to relate only to the individual and community harvest

subsistence hunt emergency closures.

40 We note that Manning's 2011 individual subsistence hunt permit expressly

states: "This caribou hunt may be closed by Emergency Order (EO). It is your

responsibility to be aware of hunt closures."

41 AS 16.05.060(c), 44.62.190.

The proper forum for seeking attorney discipline for such misconduct is the

Alaska Bar Association. See Alaska Bar R. 10(c). A superior court may, of course,

sanction an attorney for misconduct occurring in the course of court proceedings. See,

e.g., Alaska R. Civ. P. 16(f), 77(j); see also Alaska Bar R. 9(c).

-14- 7008

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

simply asking that a public official be reprimanded does not present a justiciable

controversy.

D. Manning's Other Issues Lack Merit.

Manning argues that conditioning Tier I eligibility on "community criteria"

violates article I, section 1 and article VIII, sections 3, 15, and 17 of the Alaska

Constitution, and that these arguments must be reviewed under strict scrutiny.44 We

construe these arguments to allege that the community harvest permit eligibility criteria

are unconstitutional. But we upheld the constitutionality of these criteria in AFWCF II .

Manning also argues that the superior court erred by denying him standing

to challenge the 2011 drawing hunt emergency closure order. The issue is now moot,

43 See State v. Am. Civil Liberties Union of Alaska , 204 P.3d 364, 368 (Alaska

2009) (noting that under Alaska's declaratory judgment statute, AS 22.10.020(g),

declaratory relief is appropriate only when an "actual controversy" exists); see also

Thuma v. Kroschel, 506 N.W.2d 14, 21 (Minn. App. 1993) (holding allegation that city

mayor acted "ultra vires," without more, could not support an action for declaratory

judgment because there was no genuine, adversarial conflict); Port Isabel/S. Padre

Island Taxpayers Ass'n v. S. Padre Island , 721 S.W.2d 405, 406-07 (Tex. App. 1986)

(refusing to grant declaratory relief for town's alleged failure to put a tax rollback

provision on the ballot when a later tax rollback provision made it onto the ballot but was

defeated because declaratory relief would be "nothing more than a reprimand to the

[town] for its rejection of [the]first petition").

44 Manning also argues the criteria violate the public trust doctrine, but the

public trust doctrine was "constitutionalize[d]" in the common use clause of article VIII,

section 3; so Manning's public trust argument is simply another way of arguing a section

3 violation. Owsichek v. State, Guide Licensing & Control Bd., 763 P.2d 488, 493

(Alaska 1988).

___ P.3d ___, Op. No. 6992 at 6-10, 2015 WL 1393374 at *2-4 (Alaska

Mar. 27, 2015).

-15- 7008

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

as the order applied only to the 2011-2012 Nelchina caribou hunt, and we decline to

address it.46

Manning briefly raises several other points on appeal. Specifically he

contends that: the regulations violate the sustainable yield requirement of article VIII,

section 4 of the Alaska Constitution; the prohibition on Unit 13 permit holders hunting

caribou or moose elsewhere in the state is unconstitutional; the restrictions on a killed

caribou's use are unlawful; the regulations "unlawfully grant and provide a special

preference priority granting new aboriginal rights in violation [of the] Alaska Native

Claims Settlement Act"; and the denials of his motions regarding the presiding judge's

alleged bias were erroneous. But because his arguments on these points are conclusory

and inadequately developed, we consider them waived.47

E. The Attorney's Fees Awards Were Calculated Improperly And Must

Be Vacated.

The superior court awarded the Department and Ahtna attorney's fees under

Alaska Civil Rule 82 for defending 15 of the 30 counts in the complaint, reasoning that

Manning was immune under AS 09.60.010(c)(2) from paying fees related to the 15

counts the court believed concerned constitutional claims. Manning argues that the court

erred because each of the 30 counts concerns a constitutional right.

The superior court did not indicate which counts of Manning's complaint

concerned constitutional rights. But based on our de novo review, we conclude that 19

(Alaska 2012) ("A claim is moot if it 'has lost its character as a present, live

controversy.' " (quoting Kleven v. Yukon-Koyukuk Sch. Dist. , 853 P.2d 518, 523 (Alaska

1993))).

47 See Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991).

-16- 7008

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

of the 30 counts concerned protection of constitutional rights. Fifteen counts clearly

concerned protection of constitutional rights to subsistence hunting access, sustainable

Other counts present closer questions. Three

yield management, and equal protection.

counts involved claims that the Board failed to consider relevant statutory factors and

that its administrative process was flawed, leading to its promulgation of the allegedly

unconstitutional community harvest system and the alleged "elimination" of individual

subsistence rights. Although these claims can be construed to assert a statutory right to

a lawful administrative process, they are more correctly viewed as seeking to protect the

constitutional common use right from improper infringement by agency action.

Likewise, Manning alleged in one count that under AS 16.05.258(b) - requiring that

game management provide a reasonable opportunity for subsistence uses - the

regulations exceeded the Board's statutory authority. Although this facially is a statutory

argument, AS 16.05.258(b) functions to protect Alaskans' constitutional rights to

subsistence hunting access - even absent this statute, Manning would have a

constitutional basis for his claim against the Board for failing to protect subsistence

But it is not evident that the remaining 11 counts concerned

hunting access.

constitutional rights, so Rule 82 attorney's fees might be awarded for those claims.

48 Specifically, counts 1, 2, 3, 4, 8, 9, 10, 11, 12, 14, 15, 16, 18, 21, 23, 26, 27,

28, and 29 concerned constitutional rights.

49 See Alaska Const. art. I, § 1; id. art. VIII, §§ 3, 4, 15, 17.

Lake & Peninsula Borough v. Oberlatz , 329 P.3d 214, 227 (Alaska 2014)

("It does not matter that the deprivations [of the plaintiffs' constitutional rights] also

violated statutes designed to regulate the [constitutional] right . . . or that the statutes

provide the rule of law for determining whether the constitutional right has been

infringed. The ultimate question is whether the [claimants] sought to protect themselves

from deprivation of their constitutional rights . . . .").

-17- 7008

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

As we recently explained in Lake & Peninsula Borough Assembly v.

Oberlatz, "[d]etermining whether [claimants] are immune from paying attorney['s] fees

to . . . defendants requires consideration of the nature of each claim against those

defendants." And "Rule 82 attorney['s] fees may be awarded only for work that would

not have been necessary but for a non-constitutional claim; AS 09.60.010(c)(2) applies

to work in which a constitutional claim is implicated in any way."52

The superior court awarded attorney's fees for work done on "non-

constitutional, procedural issues." It is unclear whether the court was referring to work

defending solely against non-constitutional claims or work on procedural issues

involving the merits of a constitutional claim. Rule 82 attorney's fees are allowable only

for the former. Work on general procedural issues, such as the motions to disqualify the

presiding judge, cannot be disconnected from Manning's constitutional claims. Unless

the Department or Ahtna can provide sufficiently detailed documentation segregating the

time spent on specific procedural work by claim type, the court must assume that the

51 Id. (emphasis added).

52 Id. at 228 (citing Fox v. Vice , 131 S. Ct. 2205, 2215 (2011)). Fox v. Vice

involved the federal rule that a plaintiff cannot be liable for attorney's fees under

42 U.S.C. § 1988 unless the " 'action was frivolous, unreasonable, or without

foundation.' " 131 S. Ct. at 2213 (quoting Christiansburg Garment Co. v. EEOC, 434

U.S. 412, 421 (1978)). That rule and AS 09.60.010(c)(2) are analogous in that both

serve to protect plaintiffs seeking to protect important rights from paying attorney's fees

if they do not prevail, unless the defendant incurred the fees defending against a claim

that did not concern protection of an important right - e.g., a frivolous or non-

constitutional claim. Compare id. (stating § 1988 intended to remove cost barrier of

vindicating one's civil rights), with Debate on C.S.H.B. 145 (FIN) Before the Senate,

23d Leg., 1st Sess. (May 20, 2003) (statements of Sen. Seekins) ("What [AS 09.60.010]

really does is it retains the essence of the public interest litigant doctrine for the cases that

relate to our most important rights, the constitutional rights. And actually it enlarges

those protections.").

-18- 7008

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

billed time for procedural work was all connected to Manning's constitutional claims.

This assumption protects against the possibility of improperly awarding fees for work

responding to constitutional claims. On remand, the superior court should not award

attorney's fees for work on a procedural issue unless the applicant provides the requisite

documentation that the procedural issue is related solely to a non-constitutional claim.

Based on its conclusion that 15 of Manning's 30 counts involved

constitutional claims, the superior court also awarded the Department and Ahtna

attorney's fees for 50% of work for which the nature of the claim involved was not

identified. Such a pro rata approach is improper. Although we do not hold that a

superior court can never award partial fees for work when the type of claim cannot be

clearly identified, the court must ensure that fees are not awarded for work involving

53 Simply awarding a pro rata share of attorney's fees based on the

constitutional claims.

ratio of non-constitutional to constitutional claims "would be to risk requiring a plaintiff

to pay defendants' attorney[']s fees incurred in defeating his [constitutional] claims."

53 As the United States Supreme Court explained in Fox :

The essential goal in shifting fees [under 42 U.S.C. § 1988]

is to do rough justice, not to achieve auditing perfection. So

trial courts may take into account their overall sense of a suit,

and may use estimates in calculating and allocating an

attorney's time. . . .

But the trial court must apply the correct standard . . . .

That means the trial court must determine whether the fees

requested would not have accrued but for the frivolous claim.

. . . A trial court has wide discretion when, but only when, it

calls the game by the right rules.

131 S. Ct. at 2216-17 (citations omitted).

54 Harris v. Maricopa Cnty. Superior Court , 631 F.3d 963, 972 (9th Cir.

(continued...)

-19- 7008

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

Such an approach is impermissible under AS 09.60.010(c)(2) and may not be applied on

remand. Defendants seeking attorney's fees for work on non-constitutional claims must

"submit appropriate documentation to meet 'the burden of establishing entitlement to an

award.' " "If defendants do not demonstrate that the work would not have been

performed in order to defend against the [constitutional claims], or to put it differently,

but for the need to defend against the [non-constitutional] claims, fees associated with

that work cannot be awarded, even in part."56

V. CONCLUSION

We AFFIRM the superior court's orders dismissing the claim against Saxby

and granting summary judgment for the Department and Ahtna, VACATE the attorney's

fees awards, and REMAND for further proceedings consistent with this opinion.

54 (...continued)

2011) (reversing pro rata award of 42 U.S.C. § 1988 attorney's fees based on ratio of

frivolous to non-frivolous claims); see also McKenna v. City of Phila., 582 F.3d 447, 458

(3d Cir. 2009) (rejecting calculation of attorney's fees award " 'using a simple

mathematical approach based on the ratio between a plaintiff's successful and

unsuccessful claims' " (quoting McKenna v. City of Phila., Civ. Action No. 07-110, 2008

WL 4435939, at *13 (E.D. Pa. Sept. 30, 2008))).

55 Fox , 131 S. Ct. at 2216 (quoting Hensley v. Eckerhart , 461 U.S. 424, 437

(1983)).

56 Harris , 631 F.3d at 973.

We do not suggest that a prevailing constitutional claimant seeking

attorney's fees under AS 09.60.010(c)(1) necessarily bears the same burden. Cf. Fox,

131 S. Ct. at 2215 n.3 (noting test g overning prevailing plaintiffs' 42 U.S.C. § 1988

attorney's fees is m ore g enerous than that governing prevailing defendants' fees). But

see Oberlatz, 329 P.3d at 227 n.38 ("We note that the [plaintiffs] are not entitled to an

attorney['s] fees award for work done solely on claims a gainst the [d efendant] that did

not concern the [plaintiffs'] constitutional rights . . . ." (citing AS 09.60.010(c)(1))).

-20- 7008

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC