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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Conservation Foundation v. Pebble Limited Partnership (5/29/2015) sp-7012
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
ALASKA CONSERVATION )
FOUNDATION, ) Supreme Court Nos. S-15059/15060/
) 15089 (Consolidated)
Petitioner, )
) Superior Court No. 3AN-09-09173 CI
v. )
) O P I N I O N
PEBBLE LIMITED PARTNERSHIP, )
) No. 7012 - May 29, 2015
Respondent. )
NUNAMTA AULUKESTAI, RICKY )
DELKITTIE, SR., VIOLET WILLSON , )
BELLA HAMMOND, and VICTOR )
FISCHER, )
)
Petitioners, )
)
v. )
)
STATE OF ALASKA, DEPARTMENT )
OF NATURAL RESOURCES, and )
PEBBLE LIMITED PARTNERSHIP, )
)
Respondents. )
TRUSTEES FOR ALASKA, )
)
Petitioner, )
)
v. )
)
PEBBLE LIMITED PARTNERSHIP, )
)
Respondent. )
----------------------- Page 2-----------------------
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Eric A. Aarseth, Judge.
Appearances: Susan Orlansky and William J. Wailand,
Feldman Orlansky & Sanders, Anchorage, for Petitioner
Alaska Conservation Foundation. Nancy S. Wainwright,
Victoria Clark, and Stephen E. Cotton, Trustees for Alaska,
Anchorage, for Petitioners Nunamta Aulukestai, et al.
William S. Cummings, Friedman Rubin, Bremerton,
Washington, for Petitioner Trustees for Alaska. Matthew
Singer, Howard S. Trickey, and Robert J. Misulich, Jermain
Dunnagan & Owens, P.C., Anchorage, for Respondent
Pebble Limited Partnership. John A. Treptow, Senior
Assistant Attorney General, Anchorage, and Michael C.
Geraghty, Attorney General, Juneau, for Respondent State of
Alaska. Brettny Hardy, Thomas S. Waldo, and Shawn
Eisele, Earthjustice, Juneau, for Amici Curiae Council on
Foundations, Sierra Club, Northern Alaska Environmental
Center, and Alaska Community Action on Toxics. Joshua A.
Decker and David C. Embree, American Civil Liberties
Union of Alaska Foundation, Anchorage, for Amici Curiae
Alaska Legal Services Corporation, American Civil Liberties
Union of Alaska Foundation, Native American Rights Fund,
Northern Justice Project, LLC, and Planned Parenthood of
the Great Northwest.
Before: Winfree, Maassen, and Bolger, Justices, and
Matthews and Eastaugh, Senior Justices.*
[Fabe, Chief
Justice, and Stowers, Justice, not participating.]
WINFREE, Justice.
* Sitting by assignment made pursuant to article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
-2- 7012
----------------------- Page 3-----------------------
I. INTRODUCTION
Alaska Statute 09.60.010 was enacted to abrogate our previous common
law public interest litigation attorney's fees framework and replace it with a narrower
constitutional litigation framework. The statute both encourages and protects those
challenging governmental action as a violation of federal or state constitutional rights.
First, the statute provides that a successful claimant generally is entitled to an award of
full reasonable attorney's fees and costs incurred in connection with a constitutional
claim, unless the claimant had "sufficient economic incentive" to bring the claim
regardless of its constitutional nature. Second, the statute protects an unsuccessful
claimant from an adverse attorney's fees award if the constitutional claim was not
frivolous and the claimant did not have "sufficient economic incentive" to bring the
claim regardless of its constitutional nature. The primary question raised in this case by
the original applications for relief and petition for review, which seek to quash an order
for wide-ranging discovery about the petitioners' financial information and the third-
party funding of this litigation, is what "sufficient economic incentive" means in this
context.
As presented to us here, the question arose from unsuccessful constitutional
claimants' invocation of the statutory protection against adverse awards of attorney's
fees and the responsive assertion that they had sufficient economic incentive to bring
1
their claim regardless of its constitutional nature. But in a related decision issued today,
we reversed the superior court's decision on the merits of the constitutional claim and
remanded for entry of declaratory judgment in the claimants' favor. The constitutional
claimants have therefore become the prevailing parties, and we assume that on remand
1
Nunamta Aulukestai, et al. v. State, Dep't of Natural Res. , ___ P.3d ___,
Op. No. 7011, 2015 WL ______, (Alaska May 29, 2015).
-3- 7012
----------------------- Page 4-----------------------
they will seek an award of attorney's fees and costs under AS 09.60.010. Because such
an award is conditioned on the absence of sufficient economic incentive to bring the
claim regardless of its constitutional nature, we also assume that on remand the superior
court would enter the same discovery orders regarding the petitioners' financial
information and third-party funding of the litigation. We see no purpose in dismissing
the original applications for relief and petition for review as moot in light of the change
in prevailing party status, only to have them re-filed as a result of further attorney's fees
proceedings in the superior court; we therefore address the meaning of "sufficient
economic incentive."
We first conclude that our earlier public interest litigation case law, outlined
below, provides the guiding parameters for the meaning of "sufficient economic
incentive." We also conclude that in this case the claimants did not have "sufficient
economic incentive" to bring the claim regardless of its constitutional nature. We
therefore vacate the superior court's discovery order and remand for further proceedings
consistent with today's decisions.
II. FACTS AND PROCEEDINGS
A. Underlying Litigation
Four individual Alaskans and Nunamta Aulukestai, a non-profit
organization whose members are village corporations in the Bristol Bay region, sued the
State of Alaska, Department of Natural Resources, for alleged constitutional violations
related to land and water use permits issued to Pebble Limited Partnership (Pebble) for
2
what we will refer to as the Pebble Project. They sought declaratory and injunctive
relief - primarily a court order requiring the State to provide public notice and make
best-interest findings before authorizing land and water use permits for the Pebble
2 See generally id. at 3-10.
-4- 7012
----------------------- Page 5-----------------------
3
Project. Pebble intervened to defend its existing permits and the State's permitting
4 After a non-jury trial the superior court issued findings of fact and conclusions
process.
of law resolving the case in favor of the State and Pebble.5
B. Motions For Attorney's Fees And Related Discovery
The State sought awards of costs and attorney's fees under Alaska Civil
Rules 79 and 82, requesting about $82,000 in costs and 30% of its attorney's fees, about
$484,000. Pebble requested about $105,000 in costs and 30% of its attorney's fees,
about $284,000. Altogether the State and Pebble sought costs and attorney's fees awards
in excess of $950,000 against Nunamta Aulukestai and the individuals.
Nunamta Aulukestai and the individuals responded by invoking
AS 09.60.010(c)(2)'s constitutional claimant protection, which provides:
[A court] may not order a claimant to pay the attorney fees of
the opposing party devoted to claims concerning
constitutional rights if the claimant . . . did not prevail in
asserting the right, the action . . . was not frivolous, and the
claimant did not have sufficient economic incentive to bring
the action . . . regardless of the constitutional claims involved.
Nunamta Aulukestai and the individuals argued that the court could not award attorney's
fees against them because the case concerned a non-frivolous constitutional claim.
Nunamta Aulukestai's executive director and the individuals disclaimed any economic
interest in the litigation's outcome.6
3 Id. at 7-10.
4 Id. at 10.
5 Id. at 15-17.
6 Nunamta Aulukestai and the individuals also invoked AS 09.60.010(e)'s
"substantial and undue hardship" protection, which provides: "The court, in its
(continued...)
-5- 7012
----------------------- Page 6-----------------------
The State and Pebble disputed Nunamta Aulukestai's protected
constitutional claimant status, arguing that Nunamta Aulukestai had sufficient economic
incentive to bring the claim. According to Pebble, Nunamta Aulukestai made economic
arguments throughout the litigation, particularly during closing statements when
Nunamta Aulukestai's attorney described people who "have lost their livelihoods"
because of Pebble's mineral exploration. Pebble also alleged that Nunamta Aulukestai
acted as a "mere stalking horse," bringing the litigation on behalf of the commercial
fishing industry and other entities with economic interests in stopping the Pebble Project.
The State conceded that it did not know who funded the litigation, but echoed Pebble's
accusation that third parties with economic incentives used Nunamta Aulukestai and the
individuals as alter egos to bring the litigation.
The superior court issued a preliminary order regarding the requests for
costs and attorney's fees. The court determined that Nunamta Aulukestai and the
individuals brought a non-frivolous constitutional claim that "trigger[ed] the possible
protection within AS 09.06.010(c)(2)." But the court also determined that the State and
Pebble "made a prima facie showing that some plaintiffs had an economic incentive to
make the claims litigated at trial." Because the court believed that "some source" had
funded the litigation, it concluded that the State and Pebble were entitled to discovery
and an evidentiary hearing on the economic incentive issue.
6 (...continued)
discretion, may abate, in full or in part, an award of attorney fees and costs . . . if the
court finds . . . that the full imposition of the award would inflict a substantial and undue
hardship upon the party . . . ." According to Nunamta Aulukestai's executive director
and each of the individuals, paying attorney's fees or costs would impose an intolerable
financial burden, resulting in the loss of all assets or bankruptcy. Because Nunamta
Aulukestai and the individuals no longer need protection under AS 09.60.010(e), we do
not consider any aspect of this issue.
-6- 7012
----------------------- Page 7-----------------------
The State and Pebble made discovery requests seeking an array of financial
information from Nunamta Aulukestai and the individuals. The State requested that
Nunamta Aulukestai disclose its members, contributors, and financial information and
identify shareholders of member village corporations who were commercial fishers,
sports fishing guides, tourism promoters, or otherwise worked in the fishing or tourism
industries. Pebble requested that Nunamta Aulukestai provide financial information,
including federal tax filings and identities of all members, and disclose its members'
funding sources. Pebble also requested that the individuals disclose their property and
assets, individual financial information, and details of any promises or assurances from
third parties about paying litigation expenses.
Nunamta Aulukestai and the individuals objected to the discovery requests,
asserting they were overly broad, unduly burdensome, and not reasonably calculated to
lead to admissible evidence. Nunamta Aulukestai also asserted that some requested
information was protected by attorney-client privilege, work product immunity, and
constitutional rights to free speech and association. The individuals disclosed some
financial information, such as annual income, and declared that their attorney-client
agreement made them personally responsible for any litigation fees or costs owed to an
opposing party.
The State and Pebble filed motions to compel discovery of the information
withheld under objection. The State argued that members of the villages connected to
Nunamta Aulukestai included commercial fishers, guides, and tourism promoters -
giving Nunamta Aulukestai an economic incentive to bring litigation that would stop
mineral exploration near Bristol Bay. Pebble claimed its production requests sought
information directly relevant to discovering information about Nunamta Aulukestai's and
the individuals' economic incentives and abilities to pay attorney's fees and costs.
-7- 7012
----------------------- Page 8-----------------------
C. Third-Party Discovery Requests
In addition to seeking discovery from Nunamta Aulukestai and the
individuals, Pebble also subpoenaed information from two third parties, Trustees for
Alaska and Alaska Conservation Foundation.
Trustees for Alaska is a non-profit organization that represents Nunamta
Aulukestai and the individuals in this litigation. Pebble's subpoena for Trustees for
Alaska requested a representative's deposition regarding funding sources for the
litigation, the terms of any grants or other arrangements used for litigation funding, and
the amount actually spent on the litigation. Pebble's subpoena also requested production
of documents related to funding sources, litigation costs paid to third parties, grants and
related correspondence, fundraising appeals and requests, and communications between
Trustees for Alaska and other organizations.
Alaska Conservation Foundation is a non-profit organization established
to promote natural resource conservation in Alaska, including preservation of the Bristol
Bay watershed. Pebble's subpoena requested a representative's deposition regarding
grants or funding arrangements for the litigation, the identity of donors providing
funding through Alaska Conservation Foundation to Trustees for Alaska, and the
identities of any commercial or sport fishers or businesses involved in Alaska
Conservation Foundation's Bristol Bay Fisheries and Watershed Protection Campaign,
a "coalition of commercial and sport [fishers], Alaska Native groups, local businesses,
and environmental groups" opposed to the Pebble Project. The subpoena also requested
documents relating to money given to Trustees for Alaska for the litigation, all litigation-
related communications between Alaska Conservation Foundation and Trustees for
Alaska, federal tax filings, and documents relating to fundraising for the Bristol Bay
Fisheries and Watershed Protection Campaign.
-8- 7012
----------------------- Page 9-----------------------
Trustees for Alaska and Alaska Conservation Foundation sought protective
orders from the superior court. Trustees for Alaska asserted that the constitutional right
to free association justified keeping financial and donor information confidential:
"Disclosure of the information identified in the deposition notice will infringe on the
associational activities of Trustees [for Alaska] and those who fund or contribute to
Trustees [for Alaska]." Trustees for Alaska argued that Pebble was not entitled to the
disclosures because no showing had been made that the information was crucial to the
issue of Nunamta Aulukestai's or the individuals' economic incentives, or that the
requested information would lead to relevant admissible evidence. Alaska Conservation
Foundation similarly argued that Pebble's discovery requests implicated information
protected by the constitutional guarantee of freedom of association, and that Pebble had
not shown a compelling need for the information. Alaska Conservation Foundation's
executive director submitted an affidavit stating that disclosure of Alaska Conservation
Foundation's donors and communications would have a chilling effect on its future
public interest litigation funding.
Pebble responded that the "lawsuit was part and parcel" of Alaska
Conservation Foundation's campaign against the Pebble Project. Pebble contended its
discovery requests sought information "to substantiate its well-founded belief that . . .
Trident Seafoods, the Bristol Bay Regional Seafoods Development Association,
sportfishing lodges, and others, funded this lawsuit in order to further their economic
interests in the Bristol Bay region." Pebble's legal argument centered on the premise that
discovery into the economic motives of those funding the litigation, not merely the
named plaintiffs, was necessary to effectuate AS 09.60.010's purpose. Pebble submitted
a proposed confidentiality order limiting use of the information to the attorney's fees
dispute, arguing that keeping the information confidential eliminated concerns about
Alaska Conservation Foundation's and Trustees for Alaska's constitutional rights.
-9- 7012
----------------------- Page 10-----------------------
D. Discovery Order
The superior court issued a comprehensive order on the discovery motions
and the requested protective orders. The court concluded the case was not "merely about
the permitting," there was sufficient evidence to suggest that significant commercial
interests were behind the litigation, and therefore further discovery was warranted into
the economic incentives of Nunamta Aulukestai, the individuals, and the third parties.
But the court included a protective order for all subsequent discovery. Financial
information from any party could be marked "confidential" and then could be seen only
by attorneys and not disclosed to third parties or clients.
The discovery order required Nunamta Aulukestai, the individuals, Trustees
for Alaska, and Alaska Conservation Foundation to supplement disclosures and respond
to the State's and Pebble's discovery requests. The order required Nunamta Aulukestai
to provide the names of each member village corporation shareholder who worked in the
seafood or tourism industries in Bristol Bay, and to disclose contributions, federal tax
filings, Nunamta Aulukestai's two most recent bank statements, and any information
related to contributors or donations to the organization or lawsuit. The order required
the individuals to disclose the market value of any real property owned, complete tax
filings and earnings statements from 2008 to 2011, their two most recent bank
statements, and statements of any other assets.
The superior court also approved Pebble's requests for depositions and
disclosures from Alaska Conservation Foundation and Trustees for Alaska. The order
required Alaska Conservation Foundation and Trustees for Alaska to produce full and
complete responses during depositions regarding sources and terms of any grants for the
litigation, identification of donors and all other funding sources for the litigation, and
communications between Trustees for Alaska and Alaska Conservation Foundation
regarding the litigation. Alaska Conservation Foundation and Trustees for Alaska also
-10- 7012
----------------------- Page 11-----------------------
were ordered to produce or disclose information relating to fundraising, funding for the
litigation, donors, grants, and written correspondence with donors for the lawsuit.
Alaska Conservation Foundation was ordered to identify fishers or local businesses
involved in its Bristol Bay Fisheries and Watershed Protection Campaign.
E. Applications For Relief And Petition for Review
Alaska Conservation Foundation filed an original application for relief in
this court, seeking to reverse the superior court's third-party discovery order. First, it
argued that AS 09.60.010 does not authorize discovery into the economic motivations
or finances of third-party funders of constitutional litigation. Second, it argued that even
if the statute generally allows a court to compel discovery from third parties, the
discovery order in this case violated constitutional associational rights.
Trustees for Alaska also filed an original application for relief in this court,
seeking the same relief and arguing that AS 09.60.010 does not authorize discovery from
non-parties to litigation. Trustees for Alaska further argued that the discovery order
violated constitutional rights to free association and privacy and improperly compelled
disclosure of attorney work product.
Nunamta Aulukestai and the individuals filed a petition for review, asking
us to vacate the discovery order. They contested the superior court's decision to allow
discovery on the economic incentive issue "despite the absence of any plausible direct
economic benefit to [the] claimants." They argued that the injunctive and declaratory
relief sought in the litigation could not confer an economic benefit to the named plaintiffs
or any third parties. They also claimed that the superior court lacked authority to allow
discovery from third parties unless there was a showing that those third parties controlled
the claimant or were the "[r]eal part[ies] in [i]nterest."
We granted the original applications for relief and the petition for review
and consolidated the cases for oral argument and decision. We held oral argument in this
-11- 7012
----------------------- Page 12-----------------------
matter and in the related appeal regarding the underlying litigation's merits on the same
day. In a separate decision issued today, we reversed the superior court's decision in
favor of the State and Pebble and remanded for entry of declaratory relief in favor of
7
On remand
Nunamta Aulukestai and the individuals on their constitutional claim.
Nunamta Aulukestai and the individuals will be the prevailing parties, and under
AS 09.60.010(c)(1) they will be entitled to an award of attorney's fees and costs so long
as they "did not have sufficient economic incentive to bring the suit, regardless of the
8
constitutional claims involved." Thus, absent the illogical notion that "sufficient
economic incentive" means something different with respect to the statutory affirmative
award of attorney's fees and costs than it would with respect to the statutory protection
from an adverse award of attorney's fees, the question presented remains alive.
III. STANDARD OF REVIEW
Interpretation of AS 09.60.010 is a question of law to which we apply our
9
independent judgment. When interpreting statutes, "[w]e look to 'the meaning of the
10
and
language, the legislative history, and the purpose of the statute in question' "
"adopt[] 'the rule of law that is most persuasive in light of precedent, reason, and
11
policy.' "
7 Nunamta Aulukestai , Op No. 7011 at 48-49.
8 AS 09.60.010(d)(2).
9 See Krone v. State, Dep't of Health & Soc. Servs ., 222 P.3d 250, 252-53,
257-58 (Alaska 2009).
10 Fancyboy v. Alaska Vill. Elec. Coop., Inc., 984 P.2d 1128, 1132 (Alaska
1999) (quoting Muller v. BP Ex ploration (Alaska), Inc ., 923 P.2d 783, 787 (Alaska
1996)).
11 Krone , 222 P.3d at 252 (quoting Glamann v. Kirk, 29 P.3d 255, 259
(continued...)
- 12- 7012
----------------------- Page 13-----------------------
IV. DISCUSSION
A. Alaska Statute 09.60.010 Adopted Our Common Law Public Interest
Litigation Meaning Of "Sufficient Economic Incentive."
1. The public interest litigation exception to Alaska Civil Rule 82
Civil Rule 82 generally entitles a prevailing party to an attorney's fees
award from the opposing party.12
But in Gilbert v. State we recognized an exception for
public interest litigation, concluding that an adverse attorney's fees award in a case
13
Three years later
raising important matters of public interest was against public policy.
in Anchorage v. McCabe we expanded the public interest litigation doctrine to include
awards of full reasonable attorney's fees to successful parties raising important matters
of public interest, adopting a three-part test to determine whether a party qualified as a
14 The test required that the litigation: (1) effectuate strong public
public interest litigant.
policies; (2) provide benefits to numerous people if successful; and (3) be capable of
15 We noted that the public interest exception to Rule
initiation only by a private party.
82 was judicially "designed to encourage plaintiffs to bring issues of public interest to
11 (...continued)
(Alaska 2001)).
12 See Alaska R. Civ. P. 82(a).
13 526 P.2d 1131, 1136 (Alaska 1974) ("As a matter of sound policy, we hold
that it is an abuse of discretion to award attorneys' fees against a losing party who has
in good faith raised a question of genuine public interest before the courts."), superseded
by statute, ch. 86, §§ 1-2, SLA 2003 (codified at AS 09.60.010(b)-(e)).
14
568 P.2d 986, 991, 993-94 (Alaska 1977) (quoting La Raza Unida v. Volpe ,
57 F.R.D. 94, 101 (N.D. Cal. 1972)), superseded by statute, ch. 86, §§ 1-2, SLA 2003
(codified at AS 09.60.010(b)-(e)).
15 Id . at 991 (quoting La Raza Unida , 57 F.R.D. at 101), superseded by
statute, ch. 86, §§ 1-2, SLA 2003 (codified at AS 09.60.010(b)-(e)).
-13- 7012
----------------------- Page 14-----------------------
16
the courts" without risk of adverse attorney's fees awards if they lost. In a dissenting
opinion Justice Boochever argued for the inclusion of a fourth prong to the public
interest litigant test, to consider the economic interests of the party invoking the public
17
interest exception to Rule 82. He stated that "[w]here the sums at stake in the
controversy are sufficiently large to prompt suit regardless of the public interest, an
18
He
award of attorney's fees against the losing party has been found reasonable."
argued that in cases involving potential financial gain there was no need to remove the
potential for an adverse attorney's fees award.19
In Kenai Lumber Co. v. LeResche we adopted the core concept of Justice
Boochever's McCabe dissent by requiring that litigants demonstrate a lack of economic
20
incentive to bring the litigation before attaining public interest litigant status. In that
case a timber company challenged the State's timber contract with a competing
21
company. The superior court ruled in favor of the State and the competing company,
upholding the challenged contract and awarding attorney's fees to the competing
22
company. The timber company appealed, claiming that it satisfied the three-part public
interest test because challenging allegedly invalid State contracts was in the public
16 Id . at 990.
17 Id . at 996 (Boochever, J., dissenting).
18 Id .
19 Id .
20 646 P.2d 215, 223 (Alaska 1982).
21 Id . at 217.
22 Id . at 217, 222.
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----------------------- Page 15-----------------------
23
interest. We affirmed the superior court's award of attorney's fees against the timber
company, noting that although it satisfied the three-prong test, courts must consider a
fourth prong to prevent abuses of the public interest litigation doctrine: whether the
24
litigant had sufficient economic incentive for bringing suit. We reasoned that a
claimant with sufficient economic incentive to bring a lawsuit is "less apt than a party
lacking this incentive to be deterred from bringing a good faith claim by the prospect of
25
an adverse award of attorney's fees." We concluded that because the timber company
"was seeking a continuing source of timber to process in its mill, the [superior] court
could have concluded that it had sufficient economic reasons to challenge the [contract]
26
amendment regardless of the grounds for the challenge."
2. Alaska Statute 09.60.010's constitutional claimant exception to
Rule 82
In 2003 the Alaska Legislature abrogated and replaced our public interest
litigation exception to Rule 82 with a new statutory provision that encourages and
27
protects parties bringing constitutional claims. The new law requires courts to award
23 Id . at 222 & n.19.
24 Id . at 223.
25 Id .
26 Id .
27 Ch. 86, §§ 1-2, SLA 2003 (codified at AS 09.60.010(b)-(e)); Krone v. State,
Dep't of Health & Soc. Servs ., 222 P.3d 25 0, 253-54 (A laska 2009); State v. Native Vill.
of Nunapitchuk, 156 P.3d 389, 391-95 (Alaska 2007) (providing the history of ch. 86,
SLA 2003 (referred to as House Bill (H.B.) 145)). In Nunapitchuk we determined the
statutory provision abrogating our common law public interest litigant exception to Rule
82 was constitutional. 156 P.3d at 395. We recognized that the Legislature did not
modify Rule 82, but rather enacted substantive law eliminating and replacing the
(continued...)
-15- 7012
----------------------- Page 16-----------------------
full reasonable attorney's fees to a successful constitutional claimant, but only if the
claimant lacked sufficient economic incentive to bring the claim:
(c) In a civil action or appeal concerning the
establishment, protection, or enforcement of a right under the
United States Constitution or the Constitution of the State of
Alaska, the court
(1) shall award, subject to (d) . . . of this
section, full reasonable attorney fees and costs to a
claimant, who, as plaintiff, counterclaimant, cross
claimant, or third-party plaintiff in the action or on
appeal, has prevailed in asserting the right;
. . . .
(d) In calculating an award of attorney fees and
costs under (c)(1) of this section,
. . . .
(2) the court shall make an award only if the
claimant did not have sufficient economic incentive to
bring the suit, regardless of the constitutional claims
[28]
involved.
The new law also provides that a party bringing a non-frivolous
constitutional claim will not face an adverse attorney's fees award if the claim is
unsuccessful and the party lacked sufficient economic incentive to bring the claim:
(c) In a civil action or appeal concerning the
establishment, protection, or enforcement of a right under the
United States Constitution or the Constitution of the State of
Alaska, the court
27 (...continued)
judicially created common law public interest litigant exception to attorney's fees awards
under Rule 82. Id . at 404-05.
28 AS 09.60.010(c)-(d).
-16- 7012
----------------------- Page 17-----------------------
. . . .
(2) may not order a claimant to pay the attorney
fees of the opposing party devoted to claims
concerning constitutional rights if the claimant as
plaintiff, counterclaimant, cross claimant, or third-
party plaintiff in the action or appeal 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
[29]
involved.
Although the Legislature abrogated our decisions creating and applying the
public interest litigation exception to Rule 82,30 it adopted our language from the fourth
prong of the public interest litigant test: The statute requires that a constitutional
claimant lack "sufficient economic incentive" to bring the claim regardless of the nature
of the constitutional claim - the same phrase we used in Kenai Lumber when creating
31
When the legislature creates
the fourth prong of the public interest litigant test.
statutory language using terms of art with an existing judicial construction, we will
presume that the legislature intended to give the statutory provisions the same historical
29 AS 09.60.010(c)(2).
30 Ch. 86, § 1(b), SLA 2003 (abrogating Dansereau v. Ulmer , 955 P.2d 916
(Alaska 1998); Se. Alaska Conservation Council, Inc. v. State, 665 P.2d 544 (Alaska
1983); Thomas v. Bailey, 611 P.2d 536 (Alaska 1980); Anchorage v. McCabe , 568 P.2d
986 (Alaska 1977); Gilbert v. State, 526 P.2d 1131 (Alaska 1974)); see also
Nunapitchuk , 156 P.3d at 395.
31
Kenai Lumber Co. , 646 P.2d at 223. In Simpson v. Murkowski, 129 P.3d
435, 448 (Alaska 2006), we noted that the "[statutory] provision mirrors the fourth prong
of the [public interest litigant] test."
-17- 7012
----------------------- Page 18-----------------------
32
meaning. And legislative history supports the conclusion that the "sufficient economic
incentive" requirement in AS 09.60.010 is the same as the fourth prong of our prior
33
public interest litigant test. During legislative hearings supporters of the bill testified
that the constitutional claimant exception "recreates something very similar to the public
34
interest doctrine by statute." We therefore conclude that our prior cases interpreting
32 Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 267 P.3d 624, 633
n.33 (Alaska 2011) ("We assume the legislature is aware of the common law when it
passes legislation." (citing Young v. Embley, 143 P.3d 936, 945 (Alaska 2006))); Joseph
v. State, 293 P.3d 488, 492 (Alaska App. 2012) ("[T]he legislature is presumed to be
aware of pertinent court decisions when it amends a statute."); see also Buckhannon Bd.
& Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 615-16
(2001) (Scalia, J., concurring) ("[W]here Congress borrows terms of art in which are
accumulated the legal tradition and meaning of centuries of practice, it presumably
knows and adopts the cluster of ideas that were attached to each borrowed word . . . and
the meaning its use will convey to the judicial mind unless otherwise instructed." (first
alteration in original) (quoting Morissette v. United States , 342 U.S. 246, 263 (1952))
(internal quotation marks omitted)); Cannon v. Univ. of Chicago, 441 U.S. 677, 699
(1979) ("In sum, it is not only appropriate but also realistic to presume that Congress was
thoroughly familiar with these unusually important precedents from this and other federal
courts and that it expected its enactment to be interpreted in conformity with them.");
Commonwealth v. Colturi, 864 N.E.2d 498, 501 (Mass. 2007) ("We also presume that
when the Legislature amends a statute it is aware of the prior state of the law as
explicated by the decisions of this court, and where it has reenacted statutory language
without material change, [it is] presumed to have adopted the judicial construction put
upon it." (citations and internal quotation marks omitted)).
33
One of the bill's supporters argued that "this law does not abolish public
interest litigant status . . . . What [the bill] really does is [retain] the essence of the public
interest litigant doctrine for the cases that relate to our most important rights . . . ."
Debate on C.S.H.B. 145 (FIN) Before the Senate, 23d Leg., 1st Sess. (May 20, 2003)
(statement of Sen. Ralph Seekins).
34
Hearing on C.S.H.B. 145 (FIN) Before the House Fin. Comm., 23d Leg.,
1st Sess. (May 12, 2003) (testimony of Christopher Kennedy, Assistant Attorney Gen.,
(continued...)
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the economic incentive prong of the public interest litigant test provide the guiding
parameters for the meaning of "sufficient economic incentive" under AS 09.60.010.
B. A Claimant Lacks "Sufficient Economic Incentive" If The Litigation's
Primary Purpose Is Not Economic Gain.
Since Kenai Lumber our focus has been on primary purpose: A litigant has
sufficient economic incentive to bring a claim when it is brought primarily to advance
the litigant's direct economic interest, regardless of the nature of the claim. We generally
examine two factors - the nature of the claim and relief sought and the direct economic
interest at stake - to determine primary purpose.
1. Nature of the claim and relief sought
The nature of the claim and the type of relief requested are strong indicators
of primary purpose. We look to statements made in the pleadings and proceedings about
35 36
the rationale for the lawsuit, to whether the relief requested was equitable or legal, and
34 (...continued)
Dep't of Law); see also Minutes, House Fin. Comm. Hearing on C.S.H.B. 145 (FIN),
23d Leg., 1st Sess. (May 9, 2003) (statement of Sen. Therriault, bill's sponsor, quotation
from minutes) (explaining that constitutional claimants were "a class of litigants
recognized by the court as receiving special provisions that provide for the possibility
of having attorney fees covered if the case is successful . . . [and] that the bill proposed
to restrict those criteria to constitutional issues").
35
See, e.g., Leisnoi, Inc. v. Stratman , Mem. Op. & J. No. 1369, 2010 WL
3719166, at *3 (Alaska Sept. 22, 2010) (citing statements made in previous
administrative hearings and evidence of the claimant's prior behavior to conclude
claimant had an economic incentive); Musser v. Wells Fargo Home Mortg., Inc. , Mem.
Op. & J. No. 1307, 2008 WL 1914375, at *4 (Alaska Apr. 30, 2008) (examining "main
action" in complaint); Puddicombe v. Fitzgerald , Mem. Op. & J. No. 930, 1999 WL
33958803, at *2 (Alaska Aug. 25, 1999) (examining affirmative defenses to conclude
"motivation in this case was in good measure due to [economic incentives]").
36
Compare City of Kotzebue v. State, Dep't of Corr., 166 P.3d 37, 47 (Alaska
(continued...)
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37
to the amount of money in controversy, to determine whether the litigant had sufficient
economic incentive to bring the claim. But the type of relief sought is not always
38
and requesting
conclusive: "Economic interest need not take the form of damages,"
39
We also have stated
injunctive relief does not guarantee a lack of economic motivation.
36 (...continued)
2007) (determining that party seeking reimbursement for costs had sufficient economic
incentive), with Kodiak Seafood Processors Ass'n v. State , 900 P.2d 1191, 1199 (Alaska
1995) ("The fact that [claimants] sought only equitable relief, rather than damages, also
indicates that economic motivation was not a significant factor in bringing this case.");
see also Patterson v. State, Dep't of Envtl. Conservation , Mem. Op. & J. No. 989, 2000
WL 34545820, at *7 (Alaska Aug. 30, 2000) (noting complaint was amended to add a
request for damages and finding an economic incentive); Ninilchik Traditional Council
v. Noah , 928 P.2d 1206, 1219 (Alaska 1996) ("[T]he parties here have made no claim
for monetary damages, indicating that economic motivation was not a significant factor
in bringing the claim.").
37
See Bruner v. Petersen, 944 P.2d 43, 50 (Alaska 1997) ("[T]he economic
incentive of $10,000 in wages, coupled with the request for punitive damages for an
additional $10,000, demonstrates a sufficient economic incentive to bring the suit
regardless of the possible public interest elements of his claim . . . ." (internal quotation
marks omitted)); Murphy v. City of Wrangell , 763 P.2d 229, 233 (Alaska 1988) (finding
sufficient economic incentive after considering possible award of punitive damages and
the fact the case was filed in superior court seeking more than $25,000 in total damages).
38
Matanuska-Susitna Borough Sch. Dist. v. State , 931 P.2d 391, 403 (Alaska
1997).
39
See, e.g., Kachemak Bay Watch, Inc. v. Noah , 935 P.2d 816, 827-28
(Alaska 1997). In Kodiak Seafood Processors Ass'n we suggested that a request only
for injunctive relief indicated a lack of economic incentive. 900 P.2d at 1199. But we
later clarified that the type of relief by itself is not dispositive - in Fairbanks North Star
Borough v. Interior Cabaret, Hotel, Restaurant & Retailer's Ass'n , we stressed that "the
lack of potential for a monetary recovery, while relevant, is not conclusive." 137 P.3d
289, 292 (Alaska 2006) (footnote omitted) (citing Eyak Traditional Elders Council v.
Sherstone, Inc., 904 P.2d 420, 426 (Alaska 1995); Kodiak Seafood Processors Ass'n ,
(continued...)
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that courts must " 'look to the facts of the case to determine the litigant's primary
40
The facts of the case, including the pleadings, relief
motivation for filing the suit.' "
requested, standing declarations, and types of arguments made during the proceedings
inform the determination of primary purpose.41
In Gwich'in Steering Committee v. State, Office of the Governor we
examined the type of relief requested and determined that the claimant did not have
42
sufficient economic incentive to bring its claim. In that case a nonprofit organization
dedicated to protecting caribou filed suit seeking public records about state lobbying
43
activities for drilling operations in the Arctic National Wildlife Refuge. After the
44
organization lost its suit, the superior court ordered it to pay attorney's fees to the State.
We reversed that order, concluding that the organization did not have sufficient
economic incentive to litigate because the relief requested - disclosure of records under
the Public Records Act - "sought access to information, not money or other economic
advantage,"and because the organization's economic interest in protecting caribou for
39 (...continued)
900 P.2d at 1199).
40 O'Callaghan v. State, 920 P.2d 1387, 1390 (Alaska 1996) (quoting Eyak
Traditional Elders Council, 904 P.2d at 426).
41 Standing declarations can be indicative of the claimant's motivations, but
standing based on economic harm is "not synonymous with economic incentive."
Griswold v. City of Homer, 925 P.2d 1015, 1030 (Alaska 1996) (quoting Oceanview
Homeowners Ass'n v. Quadrant Constr. & Eng'g , 680 P.2d 793, 799 n.3 (Alaska 1984))
(internal quotation marks omitted.
42 10 P.3d 572, 584-85 (Alaska 2000).
43 Id . at 576-77.
44 Id . at 584.
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subsistence uses was not substantial.45
In McCormick v. Smith we similarly relied on the type of relief requested
to conclude that a claimant lacked sufficient economic incentive to bring a claim.46 In
McCormick an individual prevailed in the superior court on her challenge to a recall
petition to remove her from a school board, requesting an injunction against the recall
47 We reversed and ordered the individual to pay the prevailing appellant's
election.
48
attorney's fees on appeal. We vacated that order on rehearing, concluding that the
individual was entitled to public interest litigant status because she did not have a
sufficient economic incentive to bring her claim:
[The individual] sought only to enjoin the recall election, not
to recover money damages. Moreover, according to [the
individual], she serves on the school board "without
compensation." Thus, prevention of her recall election was
not intended to protect a paycheck. Accordingly, [the
individual] appears to meet the fourth prong of the [public
[49]
interest litigant] test.
2. Direct economic interest
We also look to the direct economic interest at stake when determining
primary purpose. When direct economic benefits will flow to the claimant as a result of
successful litigation, that is strong evidence the litigant had economic incentive to bring
the claim. But direct economic benefits do not flow only from lawsuits seeking damages.
45 Id. at 585.
46 799 P.2d 287, 288 (Alaska 1990).
47 Id . at 287-88.
48 Id . at 287.
49 Id. at 288 (citation omitted).
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In Shepherd v. State, Department of Fish & Game we determined that a big game
hunting guide had sufficient economic incentive to bring a claim challenging Alaska
50
Board of Game regulations giving preferences to subsistence hunting in certain areas.
We concluded that the guide "was primarily motivated to litigate by concerns for his own
economic livelihood" because he had a direct economic interest in eliminating the
51
preferences to increase his guiding area.
On the other hand, we have concluded that litigation was not primarily
motivated by economic interests when it would confer only indirect or attenuated
economic benefits. In Kodiak Seafood Processors Ass'n v. State a fishing trade
association sued the state alleging that an improper decision had been made to allow
52 The trade
scallop dredge fishing in areas previously closed to protect juvenile crabs.
association, representing seafood processors, claimed that opening those areas would
cause potential harm to the crabs and the sea floor, and, impliedly, to fishers'
53
livelihoods. But we stated that even though the trade association's members had an
economic interest in crab and bottom fish fisheries, "[t]he potential economic benefit to
[the association] from this litigation is indirect. [The association] will gain only if the
54
areas are eventually reopened to crab fishing." A favorable outcome in the trade
50 897 P.2d 33, 35, 45 (Alaska 1995).
51 Id . Similarly see Kenai Lumber Co. v. LeResche, 646 P.2d 215, 223
(Alaska 1982) (concluding that timber company challenging State timber contract with
another company was seeking continuing timber supply, supporting superior court's
determination that timber company had sufficient economic incentive to bring suit).
52 900 P.2d 1191, 1193 (Alaska 1995).
53 See id . at 1193-95.
54 Id . at 1198-99.
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association's litigation would not have led to direct economic benefits because other
independent administrative decisions stood in the way of any economic gain.55
In Ninilchik Traditional Council v. Noah fishing associations and
environmental groups sued the State over procedural and substantive violations in an oil
56
We noted
and gas lease sale, asking for injunctive relief against one particular lease.
that the fishing associations may have had an economic interest to stop oil and gas
leasing but that "any economic benefit to the parties from the litigation is indirect."57 In
Keane v. Local Boundary Commission we determined that a lawsuit challenging a state
decision to incorporate a local area, which then would implement a sales tax, "was
directed at the formation of a municipality, rather than at the imposition of a tax;
58
economic interests were affected only indirectly." And in Spenard Action Committee
v. Lot 3, Block 1, Evergreen Subdivision a nonprofit neighborhood organization sued for
injunctive relief against the development of a subdivision; we concluded that the
organization "will not receive any direct financial benefit from the successful outcome
of this litigation," despite the possibility that its members "may benefit indirectly based
on improved property values."59
55 See id.
56 928 P.2d 1206, 1218-19 (Alaska 1996).
57 Id . at 1219.
58 893 P.2d 1239, 1251 (Alaska 1995).
59 902 P.2d 766, 782 (Alaska 1995).
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C. There Was Not Sufficient Economic Incentive To Bring This Litigation
Regardless Of The Constitutional Claim Involved.
60
Under any standard of review, it was error for the superior court to look
at future possibilities and contingencies well outside the contours of the litigation to
conclude that this case was not merely about permitting. Just as Kodiak Seafood
Processors Ass'n was only about stopping scallop dredge fishing in a previously
61
protected area and not about the possible economic effect on crab fishers' livelihoods,
and just as Ninilchik Traditional Council was only about injunctive relief relating to one
oil and gas lease and not about the potential impact of oil and gas leasing on commercial
60 The parties have not briefed the possible standards of review for
determinations relevant to protected constitutional claimant status under AS 09.60.010.
We previously used a discretionary standard for encouraging or protecting common law
public interest litigants. See, e.g., Fairbanks N. Star Borough v. Interior Cabaret, Hotel,
Rest. & Retailers Ass'n , 137 P.3d 289, 291 (Alaska 2006). But the legislature has
couched the encouragement and protection of qualifying constitutional claimants in
seemingly mandatory terms - AS 09.60.010(c)(1) states that a court "shall award"
attorney's fees and costs to a qualifying successful claimant, and AS 09.60.010(c)(2)
states that a court "may not order" a qualifying unsuccessful claimant to pay attorney's
fees. The statute does not suggest new standards for determining the reasonableness of
requested attorney's fees, but under AS 09.60.010(e) a court seemingly has discretion
to abate attorney's fees and costs awards upon a finding of "substantial and undue
hardship." See supra note 6. The specific determination of "sufficient economic
incentive" conceivably could be a discretionary determination by the superior court or
a mixed question of fact and law. We do not need to decide that question here, but either
way the basis for the determination rarely should require examination beyond the factual
contours of the litigation itself, and even more rarely should require the broad and free-
ranging discovery ordered here. The legislature intended AS 09.60.010 to encourage and
protect constitutional litigants; it is unlikely the legislature intended lengthy and
expensive litigation over the rights it created.
61 900 P.2d 1191, 1193-95, 1198-99 (Alaska 1995).
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62
fishing, this case is only about constitutional limitations on the State's issuance of land
and water use permits to Pebble and not about whether the Pebble Project should proceed
or whether the Pebble Project may harm Bristol Bay fisheries.
The complaint and arguments advanced by Nunamta Aulukestai and the
individuals make clear that their primary objective was making the State's permitting
process compliant with the Alaska Constitution. The declaratory and injunctive relief
requested accord with Nunamta Aulukestai and the individuals' consistent emphasis on
63
public involvement in the permitting process. Nunamta Aulukestai and the individuals
did not claim money damages or attempt to use the lawsuit to secure direct economic
gain; their references to public use of the area and private economic loss supported their
argument for public notice and involvement in the permitting process, not an argument
for economic relief.
We reiterate and emphasize the necessity of direct economic benefit from
constitutional litigation for "sufficient economic incentive," and from that perspective
also address the State's and Pebble's "stalking horse" argument. We do not suggest that
there never could be a third party seeking some direct economic benefit by funding a
nominal plaintiff's constitutional litigation, and we agree that in such an instance the
third party's direct economic incentive might be relevant to an attorney's fees award
62 928 P.2d at 1219.
63 See Oceanview Homeowners Ass'n v. Quadrant Constr. & Eng'g, 680 P.2d
793, 799 (Alaska 1984) ("Oceanview's consistent emphasis on health and safety to the
virtual exclusion of economic concerns indicates that it would not have had 'sufficient
economic incentive to bring the lawsuit.' " (quoting Kenai Lumber Co. v. LeResche , 646
P.2d 215, 223 (Alaska 1982))).
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64
under AS 09.60.010. But the third party's economic interest still must be direct, not
indirect. Many people and organizations are opposed to the Pebble Project, and some
of that opposition is based on concerns that the Pebble Project ultimately may have
65
Commercial
negative effects on the Bristol Bay watershed and commercial fisheries.
fishery interests may fund litigation by others seeking to delay or stop the Pebble Project,
but this does not automatically transform otherwise indirect economic benefit into direct
economic benefit. Here the underlying litigation was limited to constitutional
requirements for the State's permitting process. No matter the result, the underlying
litigation could not directly affect any Pebble Project opponent's economic interests.
Focusing on the funding of constitutional litigation rather than on the
litigation itself to determine primary purpose, as was done here, can lead easily to the
wrong result. And as Trustees for Alaska and Alaska Conservation Foundation make
64 Direct economic incentive of a third party would be relevant if that third
party controlled the litigation or the claimant were merely acting on behalf of the third
party. See Carmony v. McKechnie, 217 P.3d 818, 823 (Alaska 2009) ("The superior
court made ample findings in support of its conclusion that Carmony acted on behalf of
his employer . . . and that [the employer] had economic incentives to promote the
initiative in question."); Petitioners for Dissolution of Skagway & Incorporation of a
Skagway Borough v. Local Boundary Comm'n, 186 P.3d 571, 572-74 (Alaska 2008)
(discussing third-party "control" of litigation where third party " 'bankrolled the action,
directed it, and is the real litigant here' "); Matanuska Elec. Ass'n. v. Rewire the Bd ., 36
P.3d 685, 698 (Alaska 2001) ("[E]vidence might have supported, but did not compel, a
finding that Rewire's suit was aimed at improving [a third party's] bargaining position
. . . .").
65
See, e.g., Hughes v. Treadwell , 341 P.3d 1121, 1123, 1125 (Alaska 2014)
(confirming previous order for election ballot placement for the "Bristol Bay Forever"
initiative requiring final legislative authorization for any new large-scale metallic sulfide
mining operations in Bristol Bay Fisheries Reserve watershed); Pebble Ltd. P'ship ex rel.
Pebble Mines Corp. v. Parnell , 215 P.3d 1064, 1078-81 (Alaska 2009) (rejecting
Pebble's argument that proposed clean water initiative would be unlawful special
legislation despite current application only to Pebble Project and one other mine).
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clear in their arguments, discovery and collateral litigation about funding sources may
implicate separate constitutional concerns, which, in light of our decision, we do not
need to address at this time. We also suggest that there rarely, if ever, should be a
situation where the economic interests of lawyers representing a constitutional claimant
are relevant to AS 09.60.010. For example, the possibility of an attorney's fees award
under the statute should not be "sufficient economic incentive" to bring constitutional
litigation; nor should indirect economic benefits, such as lawsuit-generated publicity and
fundraising, be "sufficient economic incentive" to bring constitutional litigation.
Finally, we address the State's argument that Nunamta Aulukestai had
economic incentive to bring the litigation to protect the Bristol Bay area for subsistence
uses, including hunting and fishing. Throughout the litigation Nunamta Aulukestai
stressed that its members rely on the Bristol Bay area for subsistence uses, suggesting
that the lawsuit was designed to protect those uses from the Pebble Project. But, as
noted, Nunamta Aulukestai's arguments were focused on reasons for public notice and
involvement, not for economic compensation, and we consistently have held that
protecting subsistence uses is not sufficient economic incentive to bring a lawsuit. In
Alaska Survival v. State, Department of Natural Resources we rejected the argument that
protecting subsistence uses conferred an economic incentive to litigants, explaining that
"a more substantial financial interest is required before a litigant will be deemed to have
66
an independent economic incentive to bring suit." And in Gwich'in Steering
Committee we rejected the idea that a nonprofit tribal-based organization "whose
[litigation] sought access to information" had an economic incentive based on its interest
66 723 P.2d 1281, 1292 (Alaska 1986) (citing Kenai Lumber Co. v. LeResche ,
646 P.2d 215, 223 (Alaska 1982); Mobil Oil Corp. v. Local Boundary Comm'n , 518 P.2d
92, 104 (Alaska 1974)).
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67
in protecting caribou for subsistence uses. Thus, Nunamta Aulukestai's emphasis on
protecting subsistence uses of the Bristol Bay area does not mean there was direct
economic incentive to bring this litigation.
D. Summary Of Our Decision
We interpret AS 09.60.010's "sufficient economic incentive" language in
the same manner we interpreted that language in our public interest litigation cases. We
conclude that there was not sufficient economic incentive for Nunamta Aulukestai and
the individuals to bring their constitutional claim regardless of its constitutional basis.
The nature of the claim and the equitable relief requested indicate that their primary
purpose was securing changes to and increasing notice and public involvement in the
State's mineral exploration permitting process. And neither they nor any opponents of
the Pebble Project, even if they helped fund this litigation, had a direct economic interest
in the outcome - the indirect economic interests possibly at stake and Nunamta
Aulukestai's interests in protecting subsistence uses are not enough to demonstrate
"sufficient economic incentive" under AS 09.60.010. We agree with Nunamta
Aulukestai and the individuals that it was error to allow discovery into economic
incentive in light of the nature of the relief sought and "despite the absence of any
plausible direct economic benefit to [the] claimants."
V. CONCLUSION
We VACATE the discovery order and REMAND for further attorney's fees
proceedings consistent with today's opinions.
67 10 P.3d 572, 585 (Alaska 2000).
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