Eyak Traditional Elders Council v. Sherstone, Inc.

MOORE, Chief Justice,

with whom, EASTAUGH, Justice, joins, dissenting.

In reversing the award of attorney’s fees to Sherstone, the majority treads upon a function that we have traditionally reserved for the discretion of the superior court. After review of the record, I am convinced that this case presents at least a “close call.” As such, I would affirm the fee award as a proper exercise of the trial court’s discretion.

The majority correctly observes that determining whether a party qualifies as a public interest litigant is always a fact-specific endeavor. See, e.g., Anchorage Daily News v. Anchorage Sch. Dist., 803 P.2d 402, 403-04 (Alaska 1990). Although we have identified four factors to assist the trial court in evaluating whether a party has litigated a matter of genuine public interest, id. at 404, we have held on numerous occasions that a trial court’s application of these factors, and thus its ultimate decision on the public interest status of a party, is entitled to abuse of discretion review. Stein v. Kelso, 846 P.2d 123, 127 (Alaska 1993); Anchorage Daily News, 803 P.2d at 404 n. 2; Citizens for the Preservation of Kenai River, Inc. v. Sheffield, 758 P.2d 624, 626 (Alaska 1988). Significantly, we have never applied a more stringent standard of review in public interest fee cases than we have when reviewing challenges to traditional Alaska Civil Rule 82 attorney’s fee awards. See, e.g., Adoption of V.M.C., 528 P.2d 788, 795 (Alaska 1974) (court will not disturb Rule 82 fee award unless there has been a “clear abuse of discretion ... being established only where it appears that the court’s determination is manifestly unreasonable”).

I am not convinced that the superior court abused its discretion by denying the Council’s request for public interest litigant status. The majority painstakingly explains how the Council’s claims satisfy each of the four factors which we have deemed relevant in the past. However, with the possible exception of the first factor — that the Council’s claims themselves were designed to advance strong public policies — there exists more than ample evidence in the record to support the superi- or court’s implied ruling that the Council’s claims are not the sort that merit immunity from an attorney fee award. I address the remaining factors in turn.

This is not necessarily a ease in which, had the Council been successful, numerous people would have benefitted. Rather, the Council’s dispute with the Eyak Corporation and Sher-stone can easily be viewed as a commonplace, private suit initiated by a small group of dissident shareholders, based upon their opposition to the board of directors’ use of corporate assets. The business asset was timber held on the native corporation’s private land; the proposed use was liquidation by clearcut. And although the Council would probably prefer to have the Eyak Corporation move in the direction of preservation *428rather than economic development, this type of private, philosophical conflict between in-tra-corporate factions does not offer the type of far-reaching benefits that the public interest exception has facilitated in the past. See, e.g., Thomas v. Bailey, 611 P.2d 536, 538-39 (Alaska 1980) (Trustees for Alaska challenging constitutionality of voter initiative qualifies as public interest litigant); Gilbert v. State, 526 P.2d 1131, 1136 (Alaska 1974) (potential candidate for state senate attacking constitutionality of election residency requirements litigated issues in genuine public interest). Questions which primarily affect the private rights of the parties before the court lack the requisite public character to prohibit a fee award, even if some statutory Or constitutional issues are involved. Thomas, 611 P.2d at 539.

Additionally, under the circumstances presented here, even if there were sound factual and legal support for the Council’s claim against Sherstone under the Alaska Historic Preservation Act (AHPA), AS 41.35.010 et seq., it cannot be said that only a private party could have been expected to bring suit. Under the express provisions of the AHPA, it is the State that is charged with the duty to enforce the Act. AS 41.35.220. Presumably, if it had detected any empirical data indicating that artifacts or gravesites were actually located at Eyak River East, the State would have taken appropriate measures, including refusing to authorize the cut and, if necessary, initiating an enforcement action under the AHPA. The fact that the State chose not to pursue enforcement in this case does not, by itself, demonstrate that the State was legally or even practically prevented from doing so. The Council should not be permitted to technically circumvent this requirement by simply naming the DNR as a defendant.

Finally, the record contains substantial evidence indicating that in filing this action, the Council was motivated by sizeable economic incentives. When the Council amended its complaint, it added claims for $200,000 in compensatory damages against Sherstone and the State. At stake was clearly a substantial sum of money. Alaska courts have disallowed public interest status for claims which sought far less. See Murphy v. City of Wrangell, 763 P.2d 229, 233 (Alaska 1988) (prisoner challenging city’s failure to credit his sentence for good time served and seeking at least $25,000 in damages clearly possessed adequate economic incentive to bring suit). While it is true that when assessing a litigant’s motivations for filing suit the court must consider all of the facts, I cannot subscribe to the majority’s decision to essentially disregard the fact that the Council sought $200,000 in damages — perhaps the only objective factor available for our review.

Thus, I conclude that in reversing the fee award, the majority substitutes its own judgment for that of the superior court. Because I am persuaded that there is sufficient evidence in the record indicating that the Council does not qualify as a public interest litigant, and because the trial court may condition Alaska Rule 41(a)(2) voluntary dismissal on partial payment of attorney fees, I would affirm the attorney fee award.