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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This has been WITHDRAWN - see Opinion # 7036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  



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 NENÉ, 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 Nené, 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.  



                       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 Nené 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  


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),  


          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 Nené 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 Nené , 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  


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 Nené (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  


                                                                -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.  


                   "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  


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  


                                                           -8-                                                     7008

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


         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  



                      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)).  






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  



                      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  


                                                          -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  



           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  

         46        See Ahtna Tene Nené v. State, Dep't of Fish & Game, 288 P.3d 452, 457               

(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  



         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 . . . .").  

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----------------------- 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.").  

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----------------------- 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.  


                                                          -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  


         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

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