Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
KENNETH H. MANNING, )
) Supreme Court No. S-15121
Appellant, )
) Superior Court No. 3KN-11-00367 CI
v. )
) OPINION ON REHEARING
STATE OF ALASKA, DEPARTMENT )
OF FISH & GAME, KEVIN M. SAXBY , ) No. 7036 – August 28, 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.
I. INTRODUCTION
The Alaska Board of Game promulgated regulations managing caribou
hunting in Game Management Unit 13. The regulations allow hunting under three types
of permits: a community harvest subsistence permit, an individual subsistence permit,
or a non-subsistence drawing permit. A hunter challenged the regulations on
constitutional and statutory grounds, arguing that they wrongfully interfered with his
subsistence hunting rights, and also sought a judicially imposed public reprimand of an
assistant attorney general representing the Board. The superior court dismissed the claim
against the attorney, granted summary judgment upholding the regulations, and awarded
partial attorney’s fees to the State and an intervenor defendant. The hunter appeals. We
affirm the dismissal and summary judgment orders, but vacate the attorney’s fees awards
and remand for further proceedings.
II. FACTS AND PROCEEDINGS
This case involves a challenge to the Board of Game’s 2010 amendments
to regulations for subsistence caribou hunting in Game Management Unit 13, known as
the Nelchina basin.1 Under the governing statute, if a game population can be harvested
consistent with sustained yield principles, the Board must “determine the amount of the
harvestable portion that is reasonably necessary for subsistence uses.”2 (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- 7036
commonly called the “amount reasonably necessary for subsistence,” or “ANS.”3)
Subsistence uses are managed at either the Tier I or Tier II level.4 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
appropriate.5 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),
(48).
6
Manning, 161 P.3d at 1216-17; 5 AAC 92.062.
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permit.7 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.9
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.10 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).
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hunt’s customary and traditional use restrictions.12 Up to 300 caribou may be taken each
year under community harvest permits, while no cap is placed on the total number of
caribou that may be taken under individual permits.13 All subsistence permit holders are
subject to the same hunting regulations and their hunting seasons and areas are the
same.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).
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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
from a Tier II hunt to a Tier I hunt was reasonable and consistent with statute16 and that
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
in connection with those claims under AS 09.60.010.17 The court awarded attorney’s
16
Specifically the superior court concluded: (1) the decision to change the
ANS for Nelchina caribou was reasonable and supported by sufficient evidence; (2) the
ANS range calculated by the Board in October 2010 was reasonable and supported by
sufficient evidence; and (3) the Board’s decision to transition from a Tier II to a Tier I
hunt was supported by sufficient evidence.
17
AS 09.60.010(c)(2) provides that a court:
[M]ay not order a claimant to pay the attorney fees of the
(continued...)
-6- 7036
fees for all time spent on “non-constitutional, procedural issues,” and for 50% of the time
spent on work in which the type of claim could not be identified. The court also reduced
the hourly rates the Department and Ahtna claimed by half because Manning was
indigent, resulting in final awards of $4,573 to the Department and $1,080 to Ahtna.
Manning appeals.
III. STANDARD OF REVIEW
“We review grants of motions to dismiss and grants of summary judgment
de novo . . . .”18
“We presume that regulations are valid and we place the burden of proving
otherwise on the challenging party”:19
We review an agency’s regulation for whether it is
“consistent with and reasonably necessary to implement the
statutes authorizing [its] adoption.” Toward this end we
consider: (1) whether [the agency] exceeded its statutory
authority in promulgating the regulation; (2) whether the
regulation is reasonable and not arbitrary; and (3) whether the
17
(...continued)
opposing party devoted to claims concerning constitutional
rights if the claimant . . . did not prevail in asserting the right,
the action or appeal asserting the right was not frivolous, and
the claimant did not have sufficient economic incentive to
bring the action or appeal regardless of the constitutional
claims involved.
18
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)).
19
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- 7036
regulation conflicts with other statutes or constitutional
provisions.[20]
Reviewing whether a regulation is reasonable and not arbitrary “consists primarily of
ensuring that the agency has taken a hard look at the salient problems and has genuinely
engaged in reasoned decision making.”21
“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.23 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)).
22
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)).
23
Alaska Fish & Wildlife Conservation Fund v. State, Dep’t of Fish & Game,
Bd. of Fisheries (AFWCF I), 289 P.3d 903, 907 (Alaska 2012) (citing Koyukuk River
Basin Moose Co-Mgmt. Team v. Bd. of Game, 76 P.3d 383, 386 (Alaska 2003)).
24
Id.
25
Lake & Peninsula Borough Assembly v. Oberlatz, 329 P.3d 214, 221
(Alaska 2014) (alteration omitted) (quoting Marron v. Stromstad, 123 P.3d 992, 998
(continued...)
-8- 7036
IV. DISCUSSION
A. The Regulation Managing The Nelchina Caribou Hunt Under Tier I
Is Consistent With The Statute And Is Reasonable And Not Arbitrary.
Manning argues that the Board’s decision to manage the Nelchina caribou
hunt under Tier I — executed through 5 AAC 85.025(a)(8)26 — is unlawful, and that the
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.27
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
sufficient to provide a reasonable opportunity for subsistence uses.”28 We construe
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- 7036
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,29 so the Board’s determination that a reasonable opportunity exists
is consistent with statute if the determination has a reasonable basis.30
Manning argues the Board cannot conclude that a reasonable opportunity
for subsistence uses exists because the Board relied on an ANS value it had “unlawfully
reduce[d].” And because the Board must manage a hunt at the Tier II level if the
harvestable surplus is below the ANS,31 the Board could not reasonably conclude that
a reasonable opportunity for subsistence uses existed if it relied on an improper ANS
value.
Manning argues the ANS determination is unlawful in two ways: (1) the
Board violated the Alaska Constitution by relying on impermissible user characteristics
in its ANS calculation; and (2) the ANS determination is unreasonable. Although the
ANS determination was published as a regulation — 5 AAC 99.025(a)(4) — the
29
See AS 16.05.258(f) (“For purposes of this section, ‘reasonable
opportunity’ means an opportunity, as determined by the appropriate board, that allows
a subsistence user to participate in a subsistence hunt or fishery that provides a normally
diligent participant with a reasonable expectation of success of taking of fish or game.”
(emphasis added)).
30
See Davis Wright Tremaine LLP v. State, Dep’t of Admin., 324 P.3d 293,
299 (Alaska 2014) (citing Marathon Oil Co. v. State, Dep’t of Natural Res., 254 P.3d
1078, 1082 (Alaska 2011)).
31
A LASKA D EP ’T OF FISH & G AME , D IV . OF SUBSISTENCE , G UIDELINES FOR
PREPARING O PTIONS FOR THE A LASKA BD . OF FISHERIES & A LASKA BD . OF G AME FOR
A MOUNT REASONABLY N ECESSARY FOR SUBSISTENCE (ANS) FINDINGS 1 (vers. 1.0,
2009); see also 5 AAC 99.025(c)(1) (defining ANS as “the total amount of animals from
a population that must be available for subsistence hunting in order to provide a
reasonable opportunity for subsistence uses”).
-10- 7036
determination is an application of law to facts which is reviewed for a reasonable basis.32
The Board’s discretion under this standard is limited, however: “The Board’s ultimate
decisions must be reasonably related to the purposes of the subsistence law; in other
words, the Board may not manipulate [an underlying determination] simply to achieve
a predetermined outcome.”33
1. The Board’s ANS calculation was not based on unconstitutional
factors.
Manning asserts that the Board improperly used “rail belt and urban
residency, ‘community,’ and/or Ahtna racial customs and traditions to pre-determine
who is or is not a subsistence user” in calculating the ANS, and asserts that consideration
of these factors violates the Alaska Constitution. (Emphasis in original.) But
AS 16.05.258(b) refers to ANS in terms of subsistence uses, not users.34 The record
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- 7036
or to utilize that permit in a subsistence area.”35 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- 7036
management regimes — including a Tier II hunt — after calculating the ANS, suggesting
the ANS calculation was not merely a pretext for switching to a Tier I hunt. The Board
concluded that “Tier II is off [the] table” only after comparing the adopted ANS to the
harvestable surplus.
Although there is some evidence that the Board preferred that the ANS
determination ultimately allow for a Tier I hunt, it does not appear that the ANS was
improperly manipulated to achieve a predetermined outcome. The record provides
sufficient evidentiary support demonstrating that the Board’s ANS calculation is both
procedurally and substantively reasonable. Accordingly the Board reasonably concluded
that there is a reasonable opportunity for subsistence uses. Managing the Nelchina
caribou hunt under Tier I through 5 AAC 85.025(a)(8) is consistent with the statute and
is reasonable and not arbitrary.
B. The 2011 Closures By Emergency Order Did Not Violate The
Administrative Procedure Act’s Notice Requirements.
Manning contends that the Department violated the Administrative
Procedure Act by failing to give permit applicants sufficient notice that the individual
subsistence and the non-subsistence drawing hunts “may be closed by Emergency Order
prior to achieving the annual harvest quota, while allowing or granting a priority
preference for ‘community’ permit hunters (CHP) to continue to hunt the same resource
prior to the annual harvest quota.” (Emphasis in original.) Manning appears to be
referring to the emergency closures of the Nelchina caribou hunt in 2011.39
39
Although Manning refers to the individual subsistence and non-subsistence
drawing hunt closures in his brief, Manning’s Administrative Procedure Act challenge
in the superior court involved only the individual and community harvest subsistence
hunt closures; the court previously had denied Manning standing to challenge the
drawing hunt closure. Accordingly we consider Manning’s Administrative Procedure
(continued...)
-13- 7036
Alaska Statute 16.05.060 authorizes closures by emergency orders, which have the force
of law.40 Emergency orders are not subject to the Administrative Procedure Act, so no
notice is required prior to their issuance.41 Manning’s concern about the three-day
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.42 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.
42
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- 7036
simply asking that a public official be reprimanded does not present a justiciable
controversy.43
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.45
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).
45
___ P.3d ___, Op. No. 6992 at 6-10, 2015 WL 1393374 at *2-4 (Alaska
Mar. 27, 2015).
-15- 7036
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
1993))).
47
See Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991).
-16- 7036
of the 30 counts concerned protection of constitutional rights.48 Fifteen counts clearly
concerned protection of constitutional rights, including the right to equal access to
subsistence hunting opportunities,49 the right to sustainable yield management,50 and the
right to equal protection.51 Other counts present closer questions. Three 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 right to equal
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. VIII, §§ 3, 17; State, Dep’t of Fish & Game v.
Manning, 161 P.3d 1215, 1224 (Alaska 2007); McDowell v. State, 785 P.2d 1, 8-9
(Alaska 1989); see also Alaska Fish & Wildlife Conservation Fund v. State, 347 P.3d 97,
102 (Alaska 2015) (“Section 15 provides that there shall be ‘[n]o exclusive right or
special privilege of fishery . . . in the natural waters of the State’; though the clause
addresses only fishing, we apply its underlying principles when interpreting sections 3
and 17.” (alterations in original) (quoting Alaska Const. art. VIII, § 15)).
50
Alaska Const. art VIII, §4.
51
Id. art. I, § 1.
-17- 7036
access to subsistence hunting opportunities52 — even absent this statute, Manning would
have a constitutional basis for his claim against the Board for failing to protect this
right.53 But it is not evident that the remaining 11 counts concerned constitutional rights,
so Rule 82 attorney’s fees might be awarded for those claims.
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.”54 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.”55
52
See id. art. VIII, §§ 3, 17; Manning, 161 P.3d at 1224; McDowell, 785 P.2d
at 8-9.
53
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 . . . .”).
54
Id. (emphasis added).
55
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,
(continued...)
-18- 7036
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
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
constitutional claims.56 Simply awarding a pro rata share of attorney’s fees based on the
55
(...continued)
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.”).
56
As the United States Supreme Court explained in Fox:
(continued...)
-19- 7036
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.”57
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.’ ”58 “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,
56
(...continued)
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).
57
Harris v. Maricopa Cnty. Superior Court, 631 F.3d 963, 972 (9th Cir.
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))).
58
Fox, 131 S. Ct. at 2216 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437
(1983)).
-20- 7036
but for the need to defend against the [non-constitutional] claims, fees associated with
that work cannot be awarded, even in part.”59
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.
59
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 governing prevailing plaintiffs’ 42 U.S.C. § 1988
attorney’s fees is more generous 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 against the [defendant] that did
not concern the [plaintiffs’] constitutional rights . . . .” (citing AS 09.60.010(c)(1))).
-21- 7036
In the Supreme Court of the State of Alaska
Kenneth H. Manning, )
) Supreme Court No. S-15121
Appellant, )
v. ) Order
) Petition for Rehearing
State of Alaska, et al., )
)
Appellees. ) Date of Order: 8/28/15
)
Trial Court Case # 3KN-11-00367 CI
Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and Bolger,
Justices
Both Kenneth H. Manning and the State of Alaska filed petitions for
rehearing after our May 15, 2015 opinion issued. All parties were given an opportunity
to be heard on the petitions. After considering the petitions and responses,
IT IS ORDERED:
1. Manning’s petition for rehearing is DENIED.
2. The State’s petition for rehearing is GRANTED, and the paragraph
beginning at the bottom of page 16 and carrying over to the bottom of page 17 is
modified as shown in the following redlined format:
*****
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
Manning v. State, et al.
Supreme Court No. S-15121
Order of 8/28/15
Page 2
of the 30 counts concerned protection of constitutional rights.48 Fifteen counts clearly
concerned protection of constitutional rights, including the right to equal access to
subsistence hunting access opportunities,49 the right to sustainable yield management,50
and the right to equal protection.51 Other counts present closer questions. Three 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 equal
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. VIII, §§ 3, 17; State, Dep’t of Fish & Game v.
Manning, 161 P.3d 1215, 1224 (Alaska 2007); McDowell v. State, 785 P.2d 1, 8-9
(Alaska 1989); see also Alaska Fish & Wildlife Conservation Fund v. State, 347 P.3d 97,
102 (Alaska 2015) (“Section 15 provides that there shall be ‘[n]o exclusive right or
special privilege of fishery . . . in the natural waters of the State’; though the clause
addresses only fishing, we apply its underlying principles when interpreting sections 3
and 17.” (alterations in original) (quoting Alaska Const. art. VIII, § 15)).
50
Alaska Const. art VIII, § 4.
51
See Alaska Const. Id. art. I, § 1; id. art. VIII, §§ 3, 4, 15, 17.
Manning v. State, et al.
Supreme Court No. S-15121
Order of 8/28/15
Page 3
access to subsistence hunting access opportunities 52 — even absent this statute, Manning
would have a constitutional basis for his claim against the Board for failing to protect
subsistence hunting access this right.53 But it is not evident that the remaining 11 counts
concerned constitutional rights, so Rule 82 attorney’s fees might be awarded for those
claims.
52
See id. art. VIII, §§ 3, 17; Manning, 161 P.3d at 1224; McDowell, 785 P.2d
at 8-9.
53
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 . . . .”).
*****
3. Opinion No. 7008, issued on May 15, 2015, is WITHDRAWN, and
Opinion 7036 is issued on this date in its place, reflecting the changes.
Entered at the direction of the full court.
Clerk of the Appellate Courts
/S/
Marilyn May
cc: Supreme Court Justices
Judge Moran
Trial Court Appeals Clerk
Publishers