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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. D.H. Blattner & Sons, Inc. v. N.M. Rothschild & Sons, Ltd. (9/20/2002) sp-5630

D.H. Blattner & Sons, Inc. v. N.M. Rothschild & Sons, Ltd. (9/20/2002) sp-5630

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


D.H. BLATTNER & SONS, INC.,   )
                              )    Supreme Court Nos. S-9729/9749
             Appellant and         )
             Cross-Appellee,       )    Superior Court Nos.
                              )    4FA-98-1749 & 98-2976 CI
     v.                       )
                              )    O P I N I O N
N.M. ROTHSCHILD & SONS,       )
LTD.,                              )    [No. 5630 - September 20,
2002]
                              )
             Appellee and          )
             Cross-Appellant.      )
________________________________)



          Appeal  from the Superior Court of the  State
          of   Alaska,    Fourth   Judicial   District,
          Fairbanks, Richard D. Savell, Judge.

          Appearances:  R. Eldridge Hicks, Hicks, Boyd,
          Chandler  &  Falconer,  LLP,  Anchorage,  for
          Appellant  and  Cross-Appellee.   Spencer  C.
          Sneed  and  Jahna  M.  Lindemuth,  Dorsey   &
          Whitney,  LLP,  Anchorage, for  Appellee  and
          Cross-Appellant.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          FABE, Chief Justice.


I.   INTRODUCTION

          At  issue in this appeal are a series of claims by  two

creditors regarding their entitlement to the liquidated assets of

a  defunct  gold  and silver mine in western  Alaska.  After  the

mining operation failed, both D.H. Blattner & Sons, Inc. and N.M.

Rothschild  &  Sons, Ltd. brought separate lien  enforcement  and

foreclosure actions in the superior court.  In cross-motions  for

summary judgment, each party claimed that its own liens are valid

and  have priority.  The superior court ruled that to the  extent

that   Blattners  liens  are  valid,  they  have  priority   over

Rothschilds  liens.   But the superior court  awarded  an  amount

substantially less than Blattner initially requested and  ordered

that the balance of the liquidated assets be paid to Rothschild.

          Blattner  appeals,  alleging that  the  superior  court

erred  in  its definition of work, its assignment of a protection

payment to only one type of lien, and its award of attorneys fees

to Rothschild.  Rothschild cross-appeals, alleging that the trial

court  erred  by  attaching Blattners lien  to  a  Colorado  bank

account  and  allowing  the lien to secure wages  for  managerial

employees.   This  case requires us to apply cases  and  statutes

adopted in Alaskas territorial days to a modern mining operation.

We partially affirm the decision of the superior court and remand

the case for further proceedings consistent with this opinion.

II.  FACTS AND PROCEEDINGS

          In  December  1994  USMX of Alaska, Inc.  acquired  two

state  mining  leases, known jointly as the Illinois  Creek  Gold

Mine,  on  land  east  of Kaltag in the Mt. McKinley  and  Nulato

Recording Districts.  In 1995 USMX formulated a five and one-half

year  plan to build and operate an open-pit gold and silver  mine

and leaching pad on the site.  Blattner won the bid for providing

the  necessary  mining  and  earthwork  services,  finalizing   a

contract  with  USMX to that effect on March 11,  1996.  Blattner

began  work immediately.  The work included: furnishing all labor

and supervision; providing tools; equipment, and heavy machinery;

construction and maintenance of temporary facilities;  and  other

steps  necessary to develop the mine and leaching pad.  The  date

on which Blattner ceased working is in dispute.

          USMX entered a credit agreement with Rothschild on July

11,  1996,  under  which Rothschild advanced  USMX  approximately

$19.5 million.  USMX secured its loan through a deed of trust, to

which  a  pre-existing service contract between USMX and Blattner

was  attached.  USMX filed for protection under Chapter 11 of the

United  States  Bankruptcy Code on May 21, 1998 and  limited  its

mining  operations to leaching and processing minerals  that  had

already  been stockpiled in the heap.  With the consent  of  both

Blattner  and  Rothschild, USMX in a separate action  surrendered

the  mine, heap, and all equipment to the State of Alaska on July

12, 1999.  The proceeds from the sale of gold and silver acquired

from  the  heap  have been deposited in a Norwest  Bank  Colorado

account.  This account now contains approximately $2.3 million in

assets.  After obtaining relief in United States Bankruptcy Court

from  the  automatic stay provisions of 11 U.S.C.  362,  Blattner

began  this  lien enforcement and foreclosure action in  superior

court  on July 21, 1998.  Rothschild obtained similar relief  and

began  its  lien foreclosure on November 2, 1998.  The two  cases

were consolidated on January 15, 1999.

          Blattner  recorded four sets of mining liens  and  dump

liens,1 each of which alleged $1,923,483.55 in unpaid debt.   The

first  set of liens was recorded on January 22, 1998 and included

amounts due at that time for unpaid work at the mine. The  second

set, recorded July 31, 1998, claimed equipment standby costs owed

to  Blattner through July 1998 as part of the contract terms with

USMX.   The  third  set of liens, recorded on December  1,  1998,

covered  additional equipment standby costs from July to November

1998.   On  April  8, 1999, a fourth set of liens  was  recorded,

claiming  accelerated fixed equipment costs that could no  longer

be  recovered  because USMX now had breached  and  abrogated  the

mining contract by moving to dismiss the bankruptcy proceedings.2

Through a stipulation agreement approved by the bankruptcy  court

          on August 10, 1998, Blattner and Rothschild each received an

adequate  protection  payment  of  $500,000.   The  trial   court

appointed  a receiver to take possession of the remaining  liquid

assets, cash proceeds, and gold and silver from the mine,  valued

at the time at $2,481,000.

          Blattner filed a complaint requesting compensation  for

the  full balance due under the contract, which Blattner  claimed

to  be  $1,923,483.55.  Rothschild responded with  a  motion  for

partial  summary judgment, asserting that its deed of  trust  had

priority  over Blattners liens and that Blattners dump  lien  was

limited to costs accrued in production of the dump.  Blattner  in

turn filed a cross-motion for partial summary judgment, asserting

that  it possessed valid liens on the dump and the mining  claims

for  a  total of $7,373,000.  Quoting AS 34.35.930, the  superior

court,  Judge Richard D. Savell presiding, maintained that  liens

should  be  liberally construed.  The superior court  then  ruled

that  to  the  extent that Blattners liens are valid,  they  have

priority  over  Rothschilds  liens.   The  superior  court   held

Blattner  to  be  a  person entitled to  file  a  lien  under  AS

34.35.140.  The superior court further ruled that Blattner  could

include  in its dump lien labor other than that directly involved

in  the  extraction  of  minerals from the  mine.   However,  the

superior  court  concluded that Blattner could not  include  non-

labor charges, such as those for materials, equipment rental, and

standby  time,  in its lien.  Blattner was permitted  to  include

interest  charges on allowable claims in its lien.  The  superior

court then restricted Blattners valid liens to the two dump liens

filed  on  January 27, 1998 during the earthmoving phase  of  the

mining  operation.  Furthermore, because mining work  stopped  on

January  10,  1998, the superior court held that  Blattners  dump

lien is limited by AS 34.35.145 to work performed only within the

previous  nine  months.  The superior court also ruled  that  the

$500,000  protection  payment must be applied  against  Blattners

dump lien rather than against other purported liens.

          In   its  final  judgment  and  findings  of  fact  and

conclusions  of  law, Judge Savell found that Blattner  was  owed

$549,872  for labor costs but reduced this amount by the $500,000

Blattner  had already been paid via the protection payment.   The

court  then added interest on the account,3 resulting in a  total

award  to  Blattner of $74,538.  This amount was to  be  obtained

from  the  deposit account in Colorado derived from the  sale  of

gold  and silver from the dump.  Rothschild was entitled  to  the

remainder  of  the deposit account.  Rothschild  sought  and  was

later granted attorneys fees of $230,500 pursuant to Alaska Civil

Rule 82(b)(1).

          Blattner  appeals  and argues that the  superior  court

erred  (1)  in finding that Blattner ceased work at the  mine  in

November 1997; (2) in denying recovery for standby costs; (3)  in

limiting the definition of work in AS 34.35.140 to work performed

by humans; (4) in limiting recovery to work performed at the mine

site;  (5)  in  applying  the  $500,000  protection  payment   to

Blattners  dump  lien;  and  (6) in refusing  to  award  Blattner

reasonable  attorneys fees for foreclosing  a  lien.   Rothschild

rejects each of these contentions and further argues in its cross-

appeal that the superior court erred in attaching Blattners  dump

lien  to  the proceeds from the dump and in allowing Blattner  to

recover for the wages of supervisory employees.

III. STANDARD OF REVIEW

          Appeals  from summary judgment are reviewed  de  novo;4

they  are  upheld  when  the record shows no  genuine  issues  of

material fact and the movant is entitled to judgment as a  matter

of  law.5  Statutory interpretation is a matter of law for  which

the  court  uses  its independent judgment.6  A statute  must  be

interpreted  in light of the purposes for which it was  enacted,7

mindful  of the common usage interpretation the language  conveys

to others.8

IV.  DISCUSSION

          In  his  memorandum  opinion dated November  30,  1999,

          Judge Savell reached seven conclusions regarding Blattners and

Rothschilds  motions  for  partial summary  judgment.   They  are

presented verbatim below:

               1.   To the extent Blattner has asserted
          valid  and allowable claims in its dump lien,
          that  lien is superior to and preferred  over
          Rothschilds Deed of Trust.
          
               2.    Blattner  is a person entitled  to
          file a dump lien under AS 34.35.140.
          
               3.    Blattners lien may include work of
          the  nature described in AS 34.35.140(a)  and
          any  of  the  kinds of work mentioned  in  AS
          34.35.125.   Blattner  need  not  prove  that
          covered  work  produced the minerals  against
          which the lien is claimed.
          
               4.     Blattners  dump  lien  may   only
          include  costs  and charges for  labor;  non-
          labor  charges, such as for tools, materials,
          equipment rental, and standby time,  may  not
          be included and recovered under a dump lien.
          
               5.     Interest  charges  on   Blattners
          allowable  claims  may  be  included   in   a
          judgment upon lien foreclosure.
          
               6.     The   only  dump  liens  claiming
          charges  for  labor  are the  two  filed  and
          recorded January 27, 1998.  The lien may only
          include unpaid charges for the work performed
          within  the nine months immediately preceding
          January 10, 1998.
          
               7.    The  $500,000 adequate  protection
          payment  received by Blattner in August  1998
          must  be  applied  first to  claims  properly
          included in and secured by Blattners  January
          27, 1998, dump lien.
          
          For  the  reasons  provided in the  remainder  of  this

opinion,  we  affirm conclusions 1-3 and 5-7.9   With  regard  to

conclusion  4, we affirm the exclusion from the lien  of  charges

for  materials but reverse on the exclusion of charges for  tools

and  equipment.  We further hold that anticipated standby charges

are lienable for the nine-month period prior to January 10, 1998,

pursuant to AS 34.35.145.10

          Judge Savell clarified and supplemented his findings on

May 16, 2000.  The four conclusions of law provided:

               1.    The  dump lien under AS  34.35.140
          secures only amounts due for labor.  The dump
          lien  under  AS  34.35.140  does  not  secure
          amounts  due for materials, tools,  supplies,
          equipment,  standby, or any  other  non-labor
          items.
          
               2.    The  dump lien under AS  34.35.140
          secures only amounts due for labor in, on, or
          about the mine site.  The dump lien under  AS
          34.35.140  does  not secure amounts  due  for
          labor distant from the mine site.
          
               3.    The  dump lien under AS  34.35.140
          secures  amounts  due for the  labor  of  all
          persons who performed labor in, on, or  about
          the mine site, including those whose labor is
          supervisory or managerial in nature.
          
               4.    The  dump lien under AS  34.35.140
          does   not  secure  charges  for  profit   or
          overhead or any other non-labor charges.
          
          We  affirm  conclusions 2 and 3.  We partially  reverse

conclusion  1  to include tools, supplies,11 and equipment  costs

within  the  dump  lien; anticipated standby costs  may  also  be

included for the nine months prior to the cessation of work.   We

affirm  conclusion 4 to the extent that it excludes  charges  for

profit or overhead but reverse its blanket exclusion of all  non-

labor charges.

     A.   Blattners  Dump Lien, to the Extent that It  Is  Valid,
          Attaches to the Colorado Bank Account.
          
          As  a  threshold issue, we must determine  whether  the

dump  lien  claimed  by Blattner attaches to  the  money  in  the

Norwest  Bank Colorado account.  Because the mine, dump, and  all

equipment  have  been  transferred,  with  the  consent  of  both

Blattner  and Rothschild, to the control of the State of  Alaska,

the  only remaining property in dispute is the approximately $2.3

million in the account.

          Rothschild  asserts that Blattners dump lien  does  not

attach to the Norwest Bank Colorado account because the funds  in

the  account  do not fall under the scope of AS 34.35.140,  which

provides  to those who work on a dump or well a lien on the  dump

or  mass, and the gold, gold dust, or other minerals contained in

          or extracted from it.  Rothschild admits that the cash in this

account is derived from the sale of gold and silver from the dump

obtained  from the mine.12  The processing of the dump to  refine

the gold and silver for sale was performed by a third party at  a

site not part of the mine.

          Rothschild  asserts that the dump lien  created  by  AS

34.35.140  does  not  reach  to the proceeds  from  the  sale  of

minerals  extracted from the dump.  Rothschild bases its argument

on  the provision in AS 34.35.140(b) that the dump must remain in

one  mass  and the corresponding definition in AS 34.35.170(a)(1)

of  dump or mass as minerals while in mass at the mine or on  the

mining claim or adjacent to it.  Rothschild contends that because

the  dump lien only attaches to the dump while it is at the  mine

site,  once  the dump leaves the mine site, even if  only  to  be

processed, there can be no dump lien on the dump and consequently

no  dump  lien on the proceeds generated by processing the  dump.

Under  Rothschilds logic, any lien that Blattner has on the  dump

has been effectively terminated, especially since what remains of

the physical dump is now under the control of the state.

          Because of the wording of the stipulation agreements to

which  both  Blattner  and Rothschild were  parties,  it  is  not

necessary  for us to reach the legal issue raised by  Rothschild.

Rothschild argues that, in addition to its dump lien, Blattner is

asserting  a  lien  on the cash proceeds.  Rothschild  speculates

that  Blattner is basing this new lien either on the  stipulation

agreements  allowing USMX to spend part of the dump  proceeds  to

maintain the account and service its bankruptcy proceedings or on

the  stipulated order granting the receiver the ability to  spend

money  from the account.  Blattner, though, claims no such liens.

The  stipulation agreements contain provisions clearly  meant  to

protect  any pre-existing liens that each party had on  the  dump

and  to  transfer  those liens to the proceeds derived  from  the

dump.   Indeed, a statement to this effect is contained  both  in

the  USMX  stipulations13 and in the receivership  stipulation.14

          Such statements would not be necessary, and in fact would be

inappropriate,  if the dump lien did not attach  to  the  account

covered  by the stipulation agreements.  This signals  a  respect

for  old liens, not the creation of new ones.  By signing  on  to

these stipulations, Rothschild conceded that Blattners dump  lien

attached to the Norwest Bank Colorado account.

          Furthermore, Rothschild previously expressed the belief

that  Blattners  liens, to the extent that  they  are  valid,  do

attach  to  the account.  In a hearing in August 1998 before  the

United  States Bankruptcy Court for the District of Colorado,  to

negotiate  what  would eventually become the  Fourth  Stipulation

Agreement   and   the   $500,000  adequate  protection   payment,

Rothschild agreed with the characterization of the proceedings by

Blattner that the hearing was to make no findings on the priority

of  the  liens  that  either side had with regard  to  the  dump.

Implicit  in the conversation was the assumption that  the  liens

did  in  fact  attach  to the account.  The  same  sentiment  was

expressed  in  an  evidentiary hearing  in  superior  court  when

Rothschild stated that the cash and the heap together are feeding

themselves  .  .  .  theres no deterioration  of  that  batch  of

collateral.   This statement was made after a long discussion  by

the  lawyer  for  the receiver for the account  about  how  money

generated  by  processing  the  heap  shall  be  subject  to  the

respective  liens  of Blattner and Rothschild and  how  Blattners

primary  concern is protecting its interest in the  receivers  $2

million  of cash.  In both instances, Rothschild made no argument

that  Blattner did not have any right to the money in the account

in  the  first  place.   A reasonable conclusion  would  be  that

Rothschild believed Blattner did have such rights.

          Thus,  we hold that Blattners dump lien, to the  extent

that  it  is valid, attaches to the Norwest Bank Colorado account

derived from processing the heap because of the language  in  the

stipulation agreements and the conduct of the parties.

     B.   The Definition of Work Under AS 34.35.140

          Most  of the major issues in the case center around  an

interpretation of AS 34.35.140, which governs liens on a dump  or

a  mass of minerals.15  Considering the historical importance  of

mining  for  precious metals and the present  importance  of  oil

drilling to the Alaska economy, there have been surprisingly  few

cases  in  recent  years  involving the  interpretation  of  this

statute.  Indeed, most of the important cases remain from Alaskas

territorial days.  Technological advances in the mining  industry

and  overall  changes in the conduct of business  in  this  state

since those times require us to adapt the language in those cases

to modern times.  At the same time we must respect the underlying

principles  embodied in those cases and the statutes  upon  which

they relied.

          1.   The  definition  of  work  under  AS  34.35.140(a)
               includes some equipment costs.
               
          The  provision for determining who can have a dump lien

is  found  in  AS 34.35.140(a), which assigns such a  lien  to  a

person  who  performs work on the dump for  the  amount  due  the

laborer  in the production of the minerals.  The issue before  us

is how to interpret the terms person, work, and laborer.

          The superior court ruled that Blattner was a person for

the purposes of AS 34.35.140 and therefore could sue to enforce a

lien.   The court reasoned that the definition of person  in  the

general  provisions  of  Alaskas  statutes  applies  because   AS

34.35.170, which defines terms in the mines and wells section  of

which  AS  34.35.140  is  a  part,  does  not  define  a  person.

Consequently, the superior court concluded, one must look  to  AS

01.10.060(8), which provides definitions applicable to all Alaska

statutes,  to  see  that  the definition  of  a  person  includes

corporations.   Because the Alaska Legislature did  not  restrict

the definition of a person to natural persons, the superior court

ruled  that  this more inclusive definition of a person  applies.

The   superior   court  noted  that  the  legislature   elsewhere

establishes the priority of mechanics and materialmans liens  for

an individual16 defined as a natural person.17  No such definition

          was provided with regard to dump liens.  The superior court also

noted  that the interpretation of corporations as being  included

with  the definition of a person is consistent both with  a  1921

Ninth Circuit timber lien case interpreting Alaska law18 and with

other Alaska decisions allowing corporations to claim liens.19

          Rothschild does not challenge the status of Blattner as

a  person  for the purposes of AS 34.35.140.  Instead, Rothschild

contends that even if Blattner can recover a lien, the amount  of

the  lien cannot be more than the value of the work performed  by

the  individual laborers.  This in essence limits the  definition

of  work under AS 34.35.140(a) to mining activities performed  by

humans.   Blattner,  on the other hand, asserts  that  equipment-

related  costs,  including materials, should be included  in  the

definition  of  work.  Blattner argues that  such  a  holding  is

necessary  for a liberal interpretation of the phrase  any  other

kind of work in AS 34.35.140(a).20  Blattner further contends that

companies  will  be much less willing to provide their  services,

especially  for  financially risky mining operations,  if  mining

companies  are  not  allowed to recover liens for  equipment  and

related costs.

          The  superior court gave two explanations  for  holding

that the lien was limited to charges for labor.  Neither of these

explanations  supports  the conclusion reached  by  the  superior

court.   First, the court reasoned that to include equipment  and

material  costs  in  the  lien would ignore  the  distinction  in

coverage and priority between mine liens in AS 34.35.125 and  the

dump  lien.   This  is  an  overly narrow  interpretation  of  AS

34.35.140.    The   language   of  AS   34.35.140(a)   explicitly

incorporates  all  of  the definitions of work  contained  in  AS

34.35.125, along with other categories of labor, into its list of

the  types of work for which dump liens can be claimed.  In other

words,  the  definition of work in section .140  should  be  more

expansive than that in section .125, not less so.21

          The  other  basis for the superior courts decision  was

          Walbridge v. New York Alaska Gold Dredging Co., a territorial

case  which noted that liens were meant to cover a person who  is

compelled  to earn his daily bread by honest toil.22  The  Alaska

case23  and  the  Oregon case24 on which the Alaska  case  relied

distinguished  between  a  supervisory employee  and  a  physical

laborer.   While  these  cases, then,  may  say  something  about

different  types  of  labor, we do not agree  with  the  superior

courts  reliance  on them for the proposition  that  there  is  a

distinction between the individual physical laborer and the tools

that laborer uses.

          The legislative history of AS 34.35.140(a) provides  us

with  little guidance for determining whether the scope  of  work

covered under the statute includes equipment costs.25  Similarly,

existing Alaska case law is of little assistance.26  Therefore, we

are  forced  to  turn  to  other jurisdictions  for  guidance  in

interpreting  the proper scope of a dump lien.   While  no  other

state  has  a  dump  lien separate from a mechanics  lien,27  the

decisions of other state courts do articulate principles that are

applicable to the present case.  To the extent that the issue  is

addressed   under  mechanics  lien  statutes,  cases   in   other

jurisdictions support the contention that equipment costs can  be

included  in  a lien.  The Oregon Supreme Court held  that  labor

costs in a lien context include equipment and other related costs

because  these  costs, even if nonlienable if  taken  separately,

were  anticipated by the buyer in fixing the reasonable value  of

the particular labor involved.28  In other words, the buyer hired

the  construction  subcontractor in large part because  it  could

provide  the  heavy  machinery necessary for  completion  of  the

project.   As  such,  the  lien  should  cover  the  charges  for

equipment  actually  used  in  and necessary  to  the  project.29

Similar  conclusions were reached by Wyoming,30  Oklahoma,31  and

Minnesota32 courts.

          Absent  precedent to the contrary, we decide the  scope

of  work  under  AS 34.35.140(a) on the basis of  reason,  policy

          considerations, and the language of the statute.33  In developing

a  contemporary  mine,  heavy machinery  has,  to  a  significant

extent, replaced physical labor.  Gone are the days of an army of

pickaxes.  To the extent that the legislature may long  ago  have

meant  to  protect physical laborers by providing a lien  on  the

dump produced by their labor in case they were not paid for those

efforts,  so  should  todays  provider  of  heavy  machinery   be

compensated  for the work those machines supply.   When  Blattner

was  hired to develop the mine, it was hired not just to  provide

physical  labor but machinery as well.  Because a corporation  is

considered a person under AS 34.35.140, equipment costs  must  be

internalized  into the labor that the corporation provides.   For

Blattner  to  be  adequately compensated for the  efforts  it  is

expending,   Blattner  must  therefore  be  allowed  to   include

equipment  costs  in  the  amount  due  the  laborer   under   AS

34.35.140(a).34   These expenses are a vital part  of  the  labor

Blattner provides.

          Blattner, however, may not include the entire  cost  of

its  heavy machinery in the dump lien.  Alaska Statute 34.35.160,

describing  the  requirements for filing  liens,  including  dump

liens,  states that the party claiming the lien must  provide  an

amount  that it is claiming for the lien.  If there is an  amount

stipulated  for damages in the contract between the two  parties,

that amount is used.  In the absence of an express contract,  the

claim must state the reasonable value of the work and services.35

There  is  no express contract contained in the record  providing

the  compensation information necessary here.36  Upon remand, the

superior  court should determine what, if anything,  the  service

contract  between Blattner and USMX provided as  to  compensation

for   equipment  usage.   It  may  be  that  the  contract   rate

intermingles lienable and unlienable components to such an extent

that it is of no use in determining the measure of the lien.   If

it  is  not  practicable  to determine  the  lienable  amount  of

equipment  charges in accordance with the terms of the  contract,

          the superior court shall determine the lienable amount in

accordance  with  the reasonable value of the work  and  services

measure required by AS 34.35.160(c).

          Blattner  argues that it should be allowed  to  recover

its  equipment  costs according to an accelerated cost  basis  in

which the value of the machinery is compressed into the truncated

contract  that resulted from USMXs bankruptcy.  To allow Blattner

to  recover the full contract value of the equipment would remove

from  Blattner  the obligation to mitigate its damages.   In  the

lien it filed on January 22, 1998, Blattner alleged that work had

stopped  on January 10, 1998.  Yet, Blattner apparently  took  no

action regarding the status or use of its machinery other than to

file subsequent liens for standby costs.  The superior court held

that  equipment costs could not be included in the dump lien  and

thus  did  not  address  the  issue whether  Blattner  failed  to

mitigate  the damages caused by Rothschilds breach.   Alaska  law

requires   that  parties  to  a  contract  mitigate  damages   in

situations  of breach.37  A determination of Blattners obligation

to  mitigate damages and whether this obligation was met is  left

for remand.

          Assuming there are no damages provisions in an  express

contract  between  Blattner and either  USMX  or  Rothschild  and

assuming  that Blattner failed to mitigate its damages,  Blattner

may only recover the quantum meruit value of the equipment costs38

based  on reasonable hourly schedules for the period of  time  in

which the equipment was used.39  The value of the equipment costs

should  be amortized over the full five-and-a-half years  of  the

anticipated contract, with Blattner able to recover only for that

period  during which its lien is valid.  Some determination  will

also  need to be made as to what depreciation and other equipment

costs  are due to this particular project.  Blattner claims  this

amount  is $3,726,268.  Blattner also claims a lien of $1,459,000

on  residual  equipment  value.  We reject  Blattners  claim  for

residual equipment value because it falls outside the scope of  a

          quantum meruit recovery.

          Because  the superior court held that non-labor charges

could  not  be  included in the dump lien,  it  did  not  make  a

determination  of the validity of Blattners expense  claims.   An

accounting of the various charges reasonably attributable to  the

labor  supplied for the development of the USMX mine and leaching

pad will be necessary upon remand.

          2.   Blattners  dump lien is limited to work  performed
               in  the nine months preceding January 10, 1998 and
               does not include subsequent standby costs.
               
          Alaska  Statute 34.35.145 limits the scope  of  a  dump

lien to work performed within a period of nine months immediately

before  the cessation of the work.  Noting that the lien Blattner

filed on January 22, 1998 stated that work had stopped on January

10,  1998, the superior court held that Blattners dump lien  only

secured the amount for labor performed between April 10, 1997 and

January 10, 1998.  We affirm this holding.

          Blattner disputes the date of cessation of work on  the

grounds  that  it was engaged in standby work at the  mine  until

February  26,  1999  and  thus is owed $121,000  per  month  plus

interest  in  standby  charges for that  time  period.   Blattner

maintains that February 26, 1999 is the date work ceased  because

that  was  the  day  on  which  USMXs  bankruptcy  petition   was

dismissed.40  Hence, according to Blattner, it was the  day  USMX

abrogated its contract and thus the first instance when  Blattner

could reasonably and lawfully conclude that mining operations had

ceased.   Blattner  does not contend that it performed  any  work

other  than standby work on the mine following January 10,  1998.

Consequently, the only real issue is whether standby charges  can

be  incorporated  into  a dump lien.  The trial  court  dismissed

standby charges as non-lienable because they were incurred  after

the mine ceased operating.

          Blattner contends that in Alaskas harsh winter climate,

standby  charges for the winter must be contemplated in virtually

any  construction contract.  Standby charges are  those  expenses

          incurred while the services contracted for, in this case the use

of heavy machinery, are idle.  Blattner points out that the trial

court, based on its finding that Blattner worked continuously  on

the  mine  between  March  1996  and  November  1997,  apparently

accepted  that  Blattner worked during the winter  of  1996-1997,

when  actual  earthmoving and leaching were suspended.   However,

the mere fact that Blattner was allowed to incur standby costs in

the  past  does  not  mean that it can continue  incurring  these

charges indefinitely into the future.

          Alaska case law supports the availability of liens  for

standby charges.  In Fremming v. Southeastern Alaska Mining  Co.,

the  Alaska  territorial district court held that a watchman  and

caretaker was a workman for lien purposes because the work  of  a

watchman and caretaker may not only be convenient to [the] future

development,  operation,  work,  or  mining,  but  may  in   many

instances  be  necessary to it.41  In Southeastern Alaska  Mining

Corp.  v.  Zavodsky,  the Ninth Circuit affirmed  on  appeal  its

decision  that  a watchman and caretakers work was  necessary  or

convenient as required by the 1915 lien statute and that he could

therefore claim a mining lien, even though the mine had not  been

operational  for five years prior to the time he began  to  serve

his duties.42  However, because the watchman at issue was hired to

preserve the mining machinery on the property,43 this case  leads

to  the  conclusion that a lien can be obtained for standby  work

only  where that work is anticipated by the employer.   In  order

for  standby  charges to be lienable, they must work  toward  the

future  development of the mine.44  Standby charges,  even  where

ordered by the employer, do not generate a lien where the standby

charges  are  not  contemplated in the plan for  development  and

improvement of the mine.45

          The  events surrounding the first lien filing,  though,

defeat  Blattners  claim for standby charges  after  January  10,

1998.   When  it  recorded its first lien on  January  22,  1998,

Blattner was aware that the mining operations were falling apart.46

          In January 1998 Blattner had been ordered by USMX to suspend its

operations, which is apparently the source of its claim  to  have

stopped  work on January 10, 1998.  Having claimed  that  it  had

ceased  work, Blattner was no longer a laborer and thus could  no

longer  claim  a  lien for the amount due the  laborer  under  AS

34.35.140(a).  Blattner did assert in its first lien filing  that

the   lien   would   increase  due  to   equipment   maintenance,

demobilization  costs  and standby time, but  charges  for  these

items  are framed as being separate from the work which  Blattner

claims  to  have ceased and thus present a separate  question  of

lienability.

          Furthermore,  Blattners later  liens  were  solely  for

either equipment standby time or for unreimbursed fixed equipment

costs,  suggesting  that  Blattner  wanted  to  recover  for  the

depreciation  and  inactivity costs of its  expensive  machinery.

Because they were not anticipated in the plan for development  of

the  mine,  these  charges are not work as  contemplated  by  the

Alaska   dump  lien  statute.   Having  known  that  the   mining

operations  were  in  serious trouble,  Blattner  should  not  be

allowed to prolong indefinitely the charges it levied on USMX  by

neglecting  to  put  the machinery to other uses.   As  with  the

discussion  of  quantum meruit recovery, Blattner  was  under  an

obligation to mitigate its damages once work on the mine  ceased.

Though  the  initial plan for developing the mine contemplated  a

five-and-a-half year timeframe, any work on the mine had  stopped

by  the  time  Blattner  filed its first lien.47   There  are  no

findings   by  the  superior  court  that  Blattner  subsequently

undertook any actions to mitigate its damages.  Evidence  may  be

presented  on remand that efforts at mitigation either were  made

or  were  impractical, but charges for equipment standby time  do

not  create an independent basis for recovery.  The denial  of  a

lien  for  standby  charges  does not  necessarily  preclude  the

possibility of contract damages for Blattner,48 but  a  lien  can

only cover improvements or anticipated improvements to the mine.49

          The measure of the value of the work and services to the mine as

defined  by  AS 34.35.140 and AS 34.35.125 is either  a  contract

measure or, if there is no such measure or it is unworkable,  the

reasonable  value  of  the  work and services.50   We  hold  that

Blattner ceased work on the mine on January 10, 1998 and can only

recover  charges  under its dump lien for work performed  in  the

preceding nine months.

          3.   Blattner  can only include in its dump lien  those
               supervision and management charges derived from on-
               site labor.
               
          Blattner  asserts it should also be able to include  in

its  dump  lien expenses related to supervision or management  of

the  mining operations.  The superior court held that because  AS

34.35.140(a)  incorporates AS 34.35.125 into  its  definition  of

work,  Blattner  may recover for supervisory  work  necessary  or

convenient  to  the  development  and  operation  of  the   mine.

Rothschild  contends  that  this  creates  an  almost   limitless

definition of work, whereby supervisors in remote locations could

obtain  liens  with priority over those obtained  by  the  manual

laborers  at the site.51  We hold that supervisory labor  can  be

included in a dump lien, but only when the labor is performed  at

or adjacent to the mine site.

          The  statute  at issue, AS 34.35.140(a), requires  that

the work for which the lien is acquired be performed upon, in, or

about  the  mine.   In some of its lien claims, Blattner  asserts

that  all  of the work, including supervision, was performed  in,

on,  or about the [mine].  However, Blattner also asserts in  its

brief  that it should be allowed to include in its lien  expenses

for  such  workers  as  Fairbanks payroll  clerks  and  Anchorage

expeditors  who  assist  with shipments.  Blattner  thus  clearly

seeks the inclusion of charges for some off-site labor.  Blattner

contends  that the phrase upon, in, or about the mine  should  be

read  to  encompass off-site work performed in a broad geographic

area.

          If equipment-related expenses are to be included in the

          amount due the laborer,52 it is hard to imagine why supervision

and   management  charges  would  not  be  included.   Certainly,

supervision and management expenses can be incorporated into  the

contract  for  services in the same way as are  equipment-related

expenses.  The construction and maintenance of the mine could not

take   place  without  some  form  of  supervision.   As   mining

technology   becomes  increasingly  advanced,   with   additional

emphasis  on  computers and heavy machinery, more  labor  can  be

classified in some sense as supervisory.

          However,  these supervisory charges cannot be  extended

infinitely  to  cover all of Blattners expenses.  If  the  phrase

upon, in, or about the mine is to be of any import, it must be to

place  some sort of limitation on the scope of labor for which  a

dump  lien  can  be levied.  While Blattners payroll  clerks  and

expeditors  may aid in the development of the mine, they  do  not

perform  the direct work on the mine that the dump lien is  meant

to protect.

          In  describing who can assert a dump lien, AS 34.35.140

lists  those  who perform work in the production, piling  up,  or

storing of a dump or mass of mineral.53  The statute, then, refers

not  so  much to those activities tangentially necessary  to  the

development of the mine as to work performed on the physical mine

itself  or  the physical dump extracted from the mine.   This  is

consistent  with  the types of work listed in  AS  34.35.125  and

subsequently  incorporated  into  AS  34.35.140(a).   This   list

includes   work   opening  up,  developing,  sinking,   drilling,

drifting,  stoping [sic], mucking, stripping, shoveling,  mining,

hoisting,  firing,  cooking,  [and]  teaming.54   This  list   of

activities  focuses  on direct labor on the physical  mine.   The

statute  further  lists as work those activities  tending  to  or

assisting   in   the  development,  extraction,  separation,   or

reduction  to  a commercial value of the minerals and  activities

involving  work  on  a  water right,  ditch,  flume,  pipe  line,

tramway,  tram,  road,  or trail, used  in  connection  with  the

          opening up, or to facilitate the opening up, operation, or

development  of  the  claim or well, or  the  extraction  of  the

minerals.55  This list of activities similarly implies work  done

directly on the mine itself.  While AS 34.35.125 includes as work

any  other class or kind of work necessary or convenient  to  the

development, operation, working, or mining of the claim or  well,

this  does  not  imply an absence of a direct connection  to  the

development   of  the  mine.   Rather,  the  phrase   is   better

interpreted  as incorporating into the definition of  work  those

activities  similar  to  the  ones listed  but  not  specifically

mentioned.

          The  type  of work implied by this restriction includes

supervisory work performed at the mine site because this work  is

performed  directly on the mine and has a direct  impact  on  the

construction and maintenance of the mine.56  As such, supervisory

labor  falls  within  the spirit of the activities  meant  to  be

protected  in  AS 34.35.125 and AS 34.35.140(a).   It  does  not,

however,   include   the  labor  of  off-site   payroll   clerks,

expeditors, or other general employees of the company.  The  work

that these people perform may to a certain extent be necessary to

the  development of the mine but their work is peripheral to  the

physical mine itself and more akin to the standard overhead costs

that any business incurs.

          This  distinction between direct and indirect labor  is

consistent  with case law in Alaska and other jurisdictions.   In

Walbridge  v.  New  York  Alaska Gold Dredging  Co.,  the  Alaska

district  court  held  that a person employed  by  the  board  of

directors as a superintendent and general manager of the business

and  properties owned by the corporation in the Bethel precinct57

could  not  exercise a lien on the mine or on the dump  resulting

from  the mine because his activities were more in the nature  of

an executive officer . . . than a person who is compelled to earn

his daily bread by honest toil.58  In reaching this decision, the

court   relied  upon  an  Oregon  case  denying  a  lien   to   a

          superintendent and general manager because allowing liens for non-

physical  labor  would  allow  the  upper  management   to   vote

themselves  salaries, and hence liens, even though they  did  not

perform actual labor upon the mine.59  The Walbridge court further

relied  upon  a United States Supreme Court case holding  that  a

foreman who planned and personally superintended and directed the

work,  with  a view to develop the mine and make it a  successful

venture,  could possess a lien on the mine.60  The Supreme  Court

was careful to distinguish the labor of the foreman from that  of

a general superintendent.61  The distinction between a foreperson

and  a  general superintendent is analogous to the limitation  of

the dump lien to direct work on the mine that we establish today.

This   holding   is  also  consistent  with  those   from   other

jurisdictions.62

          While   we  hold  that  supervisory  charges  must   be

restricted  to  on-site services, we do see a  need  for  limited

flexibility in the determination of what counts geographically as

being  on-site.  More specifically, supervisory work need not  be

performed on the property legally owned by the owner of the mine;

rather,  it also includes work performed on land that is adjacent

to  the  site  of the mine, especially where convenient  for  the

development of the mine.  In McConnell v. Empire Tin Mining  Co.,

the  court  held that a laborer employed by a mining  company  to

maintain a mill and water ditch for the mines possessed a lien on

the mines, even though the mill was about two miles away from the

mines,  because the work was integral to the development  of  the

mine and because this was probably the closest suitable site  for

such mill.63

          Although  the  present case does not involve  a  public

construction project,64 we choose to adopt the logic of Board  of

Trade, Inc. v. State, Department of Labor, where we held that the

definition   of  on-site  includes  those  locations   in   close

geographic   proximity   to   the   project   footprint.65    The

determination  of  whether adjacent or nearby activities  can  be

          considered part of the project must be made on a case-by-case

basis and take into account whether the activity could have  been

carried out at an alternative site closer to the project.66   The

interpretation  contained  in  the  Alaska  Administrative   Code

provides a reasonable elaboration of this issue when it specifies

that in order for a location or activity to be considered on-site

it  must be dedicated exclusively or nearly so to performance  of

the contract.67  The code specifically exempts from the definition

of on-site activities at those locations which are governed by  .

.  . general business operations, even if the activities focus on

construction  of  a particular project.68  We conclude  that  the

logic behind this interpretation should apply to the present case

in  determining what activities are to be considered on-site  for

purposes  of  the dump lien.  More exact determinations  will  be

necessary upon remand.

     C.   Blattners  $500,000 Protection Payment Applies  Against
          Its Dump Lien.
          
          Blattner argues that it should be allowed to assign the

$500,000  adequate protection payment, received from USMX  via  a

stipulation agreement with Rothschild on August 2, 1998,  to  the

mining  liens  that Blattner possessed under AS  34.35.125.   The

superior court discussed the $500,000 protection payment  not  in

terms of whether it could be assigned to particular liens but  in

terms  of  whether the payment could be assigned to unsecured  as

opposed  to  secured  debt.  Noting that  the  payment  was  made

pursuant  to a bankruptcy hearing, and thus under the  guidelines

set  forth  in 11 U.S.C.  363, the superior court held  that  the

protection  payment must be applied first against secured  claims

so  as  to replace the lost value of collateral suffered  by  the

secured  party.    Consequently, the  superior  court  held  that

Blattner  must  use the protection payment to reduce  the  amount

owed under its dump lien.

          Blattner  does  not challenge this finding  on  appeal.

Apparently conceding that the protection payment must be  applied

to  a secured claim, Blattner contends that it is allowed to  use

          the protection payment to reduce the mining liens it possessed at

the time but which now have been extinguished by the transfer  of

the  mine to state ownership, leaving the dump lien claim at  its

full  amount.69  In support of its argument, Blattner relies upon

Jalasko  Associates, Inc. v. Newbery Energy Corp.,  which  states

that  absent  a  requirement to the contrary  by  the  debtor,  a

creditor [is permitted to] apply a debtors payment to any of  the

debtors obligations.70

          The  facts  of  the  present  case,  however,  make  it

necessary  to determine whether from a legal standpoint  Blattner

could apply its protection payment to the lien of its choice.  It

is  true that Blattner filed both a mining lien and a dump  lien.

However,  the  two  liens were not really separate,  as  Blattner

argues,  because  each claimed the same work.  Indeed,  in  every

instance, the mining lien and the dump lien were part of the same

document,  with both the dump and the mining liens  covering  the

same amount and demand pursuant to AS 34.35.160.

          The superior court held, and Blattner alleges, that the

lien filings included a claim for a mechanics lien.  This is  not

reflected  in  the  record, as the liens filed  make  no  express

reference  to  a mechanics lien.  Instead, only mining  and  dump

liens  are  explicitly claimed.71  On remand, the superior  court

will need to re-examine the costs recoverable under the different

liens,  including any mechanics liens that might  be  found.   If

there are differences in the type of debt properly recoverable by

Blattner under each lien, an allocation of funds to the repayment

of  one  lien  would not necessarily reduce the recoverable  debt

under the other liens.

          If  no  such  differences can be  found,  the  adequate

protection payment of $500,000 will be used to reduce the overall

debt  owed to Blattner.  Absent differences in the source of  the

debt to be recovered, Blattner in essence would have recorded two

different  liens  by  which  it  sought  to  recover   the   same

indebtedness.72  The $500,000 adequate protection payment was  to

          be directed toward reducing the principal in the outstanding debt

owed by USMX to Blattner.  Because the source of the indebtedness

was  apparently  the  same  for  both  liens,  any  reduction  in

indebtedness for the mining lien should result in a corresponding

reduction in indebtedness for the dump lien.  Blattners claim  is

therefore  effectively  moot.  To allow  Blattner  to  apply  the

$500,000  protection payment to its mining lien and still  retain

the full indebtedness on its dump lien would be to allow Blattner

to profit by a phantom $500,000.

     D.   Blattner  May  Recover Reasonable  Attorneys  Fees  for
          Enforcing its Dump Lien.
          
          The  superior court awarded $230,500 in attorneys  fees

to  Rothschild  under  Alaska Civil Rule 82(b)(1).   It  did  not

explain  the  reasoning behind this award.   The  superior  court

later  awarded  Rothschild  an additional  $43,307.35  in  costs.

Trial  courts are granted great discretion in awarding  attorneys

fees.73  An award of attorneys fees is only overturned if  it  is

manifestly unreasonable,74 a standard equivalent to an  abuse  of

discretion.75  However, because this case is being remanded on  a

variety  of  issues,  the underlying suppositions  on  which  the

superior  court initially awarded attorneys fees  are  no  longer

valid.  Consequently, this award must be vacated.

          Furthermore,  the  applicable authority  for  attorneys

fees  in  this  case  is not Civil Rule 82(b)(1),  the  authority

relied  upon  by the superior court, but rather AS  34.35.005(b).

Civil  Rule  82  is not applicable where a statute  provides  for

other means of awarding attorneys fees.76  Such other means exist

in  the  present situation.  A separate statute for  recovery  of

attorneys  fees for enforcing a lien, AS 34.35.005(b),  provides:

In  an action to enforce a lien, the court shall allow as part of

the  costs all money paid for drawing the lien and for filing and

recording the lien claim, and a reasonable attorney fee  for  the

foreclosure  of  the  lien.   We have previously  noted  that  AS

34.35.005(b)  applies to the dump lien statute in AS 34.35.140.77

Because Blattner is bringing an action to enforce a dump lien, it

          is entitled to the recovery of preparation costs and attorneys

fees  as outlined in AS 34.35.005(b).  The $500,000 Blattner  has

received  as a protection payment shall be considered a  part  of

Blattners lien recovery in determining reasonable attorneys  fees

since  the  payment  was  meant to offset Blattners  lien  claim.

Blattner  need  not  prevail on all of its  claims  in  order  to

satisfy  the  requirements  of  AS  34.35.005(b).78   Rather,  we

interpret AS 34.35.005(b) as providing for a mandatory  award  of

attorneys fees whenever a party is successful in enforcing a lien

created  by  AS 34.35.005 to AS 34.35.425.79  A determination  of

reasonable fees is to be made upon remand.80

V.   CONCLUSION

          There  are six central issues at dispute in this  case.

We hold as follows: Because of the stipulation agreements entered

into  by  both  Blattner  and  Rothschild,  Blattners  dump  lien

attaches  to  the  Norwest Bank Colorado  account;  Blattner  can

include  the  cost of heavy machinery in its dump lien  under  AS

34.35.140; Blattner cannot include unanticipated standby  charges

in  its  dump lien; supervisory charges can be included  only  if

they  are  on-site;  Blattner,  subject  to  remand  for  further

findings  on applicable liens, must apply the $500,000 protection

payment  against the amount for which it claims a dump lien;  and

Blattner  is entitled to reasonable attorneys fees for  enforcing

its  lien.   We  REMAND  to the superior  court  for  proceedings

consistent with this opinion.

_______________________________
     1     Because the mine covered two recording districts, each
lien  filing  i.e., each set of liens  included an identical lien
filing  in each recording district.  In order to avoid confusion,
Blattners  two  lien filings on each of four  occasions  will  be
referred  to  collectively as Blattners dump lien,  except  where
differentiation of the lien filings is necessary.  The  issue  of
the  four  occasions on which liens were filed addresses  standby
costs, which will be discussed in Part IV.B.2.

     2     The  bankruptcy cases were dismissed on  February  26,
1999 on the motion of USMX.

     3     Rothschild does not challenge the award of interest on
lien charges.

     4    Sonneman v. State, 969 P.2d 632, 635 (Alaska 1998).

     5     Ellingstad  v. State, Dept of Natural Res.,  979  P.2d
1000, 1004 (Alaska 1999).

     6     Progressive  Ins. Co. v. Simmons, 953  P.2d  510,  512
(Alaska 1998).

     7    Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746
P.2d 896, 904 (Alaska 1987).

     8    Id. at 905.

     9     Conclusions  2 and 5 are not challenged  upon  appeal.
Conclusion  7  is subject to remand for further findings  on  the
types of liens possessed by Blattner.

     10     Other  standby  charges may be  recoverable  under  a
contract  measure.  This issue, however, is not presently  before
the court.

     11    We understand supplies to be different from materials.
Supplies  are  those  items necessary to the maintenance  of  the
working environment, such as food and fuel.  Materials are  those
items  and  resources used in the construction of the contracted-
for project; examples would include lumber and cement.

     12    Later in its brief, Rothschild alleges that there is no
evidence to support the superior courts finding that the proceeds
in the account came entirely from the heap and were not comingled
[sic]  with  minerals or proceeds from any other  source.   In  a
motion for summary judgment, all factual inferences must be drawn
in  favor  of  the party opposing summary judgment.   Makarka  v.
Great  American  Ins.  Co.,  14  P.3d  964,  966  (Alaska  2000).
However,  this requires sufficient evidence from which the  court
can draw its conclusions.  Rothschild supports its claim of error
with  an  affidavit  given subsequent to the  February  28,  2000
hearing  that generated the disputed order.  Rothschild  explains
its  lack  of prior briefing by asserting that it had no  way  of
anticipating  that  the  commingling  issue  would   be   raised.
However,  in  a  March 30, 2000 order denying reconsideration  of
summary  judgment in light of the affidavit, Judge Savell pointed
to  statements made by Rothschilds lawyer at the February hearing
in  which  the lawyer asserted that there had been no commingling
of  funds.   Given  the information before it  and  the  lack  of
evidence  to  the contrary at the time it ruled  on  the  summary
judgment  motions, it was not clear error for the trial court  to
find that there was no commingling of funds.

     13     The  parties reserve all rights with respect to,  and
acknowledge  and agree that, their claims, rights and  liens,  if
any,  in  the  Cash  Collateral  shall  continue  with  the  same
priority,  dignity and effect, post-petition,  as  these  claims,
rights  or  liens existed on the Petition Date in the  production
from operations.  Nothing herein, however, shall be construed  or
considered  an agreement as to the extent, validity, priority  or
dignity  of  any  of the parties claims or liens,  if  any.   All
rights with respect thereto are reserved.

     14     Any  monies  generated by further processing  of  the
existing  heap  shall  be  subject to  the  respective  liens  of
Blattner  and  Rothschild to the same extent and  with  the  same
priority  such liens presently have with respect to the  existing
heap  and  proceeds  therefrom.  This  exact  language  was  also
included in the superior court order  approving the November 1998
budget  to administer the processing of the heap pursuant to  the
ongoing bankruptcy proceedings.

     15    AS 34.35.140 provides:

               (a)   A  person who, at the instance  of
          another who has the right of possession of  a
          mine,  or  mining  claim, oil  or  gas  well,
          performs upon, in, or about the mine or  well
          any  of  the  kinds of work mentioned  in  AS
          34.35.125, or who performs any other kind  of
          work in the production, piling up, or storing
          of  a dump or mass of mineral, has a lien  on
          the dump or mass, and the gold, gold dust, or
          other minerals contained in or extracted from
          it,  to secure the amount due the laborer  in
          the production of the minerals.
          
               (b)   The  lien attaches to the dump  or
          mass,  and to the gold, gold dust,  or  other
          mineral,  whether they are deposited  on  the
          ground  in a mass, or dumped into bunkers  or
          hoppers, or stored in tanks or reservoirs, or
          placed  in  sluice  boxes at  the  mine,  and
          attaches  to the gold, gold dust,  and  other
          minerals so long as they are in one mass  and
          can  be  identified as being produced by  the
          labor of the lienor.
          
               (c)   The  lien  provided  for  in  this
          section  is prior and preferred over a  deed,
          mortgage, bill of sale, attachment, or  other
          claim whether given before or after the  work
          for which the lien is claimed is started.
          
     16    AS 34.35.060(c).

     17    AS 34.35.120(10).

     18     McDonald-Weist Logging Co. v. Cobb, 278 F.  167,  168
(9th Cir. 1921).

     19     See,  e.g., Donnybrook Building Supply Co. v.  Alaska
Natl  Bank  of  the North, 736 P.2d 1147, 1153-54  (Alaska  1987)
(holding  the mechanics lien under AS 34.35.050-.120  to  be  the
exclusive  remedy  for  a company supplying building  materials);
Frontier  Rock & Sand, Inc. v. Heritage Ventures, Inc., 607  P.2d
364,  365-66  (Alaska 1980) (allowing assertion of mechanics  and
materialmans  liens  by  a contracting company);  Dannemiller  v.
AMFAC  Distribution  Corp.,  566  P.2d  645,  653  (Alaska  1977)
(allowing   a  corporate  supplier  of  plumbing  and  electrical
materials to record a materialmans lien under AS 34.35.050).

     20     Both  by  statute and by precedent,  the  intent  and
purpose  of  lien  laws are to be liberally  construed  once  the
determination  of  who  qualifies as  a  lienholder  is  strictly
construed.  AS 34.35.930 (The intent of this chapter is  remedial
and  its provisions shall be liberally construed.); H.A.M.S.  Co.
v.  Electrical Contractors of Alaska, Inc., 563 P.2d 258,  262-63
(Alaska  1977)  (holding that portions of  Alaska  lien  statutes
which  articulate  mandatory conditions  precedent  to  the  very
creation   and  existence  of  the  lien  are  to   be   strictly
interpreted, whereas those portions which are remedial in  nature
are to be construed liberally).

     21    The primary difference between the two sections is that
section  .125 places a lien on the mine or mining claim,  whereas
section .140 places a lien on the dump or mass.  AS 34.35.125; AS
34.35.140(a).

     22     8  Alaska 36, 41 (D. Alaska Terr. 1928), reversed  on
other  grounds by New York Alaska Gold Dredging Co. v. Walbridge,
38   F.2d  199  (9th  Cir.  1930)  (relying  upon  Durkheimer  v.
Copperopolis Copper Co., 104 P. 895, 897 (Or. 1909)).

     23    Walbridge, 8 Alaska at 39-40.

     24    Durkheimer, 104 P. at 42.

     25     The legislature changed the language of its dump lien
statute in 1933 from a recovery for the full amount of wages to a
recovery for the amount due the laborer. (Compare the current  AS
34.35.140 to Compiled Laws of the Territory of Alaska 1913,  sec.
164.   The  1913 Alaska statute was taken from 36 Stat.  L.  848,
which  also  contains the phrase for the full amount  of  wages.)
This   possibly   suggests  a  desire  for   a   more   expansive
interpretation  of  what fell under a dump  lien  under  the  new
statute,  though there is nothing in the legislative  history  to
support this interpretation.

          The  current  law  is adapted from  26-2-5  ACLA  1949,
which  uses  the  phrase the amount due the said  laborer.   (The
language throughout the statute has been modernized slightly, but
with no apparent change in the meaning of the statute.  It is not
clear when these minor changes in the language took place.)  This
version  of  the statute was adopted in 1933.  CLA  1933,   2005.
There  is nothing in the legislative history to suggest  why  the
amount  due for the lien was changed from for the full amount  of
wages  to  the amount due the laborer.  The change took place  as
part  of  a  larger bill on a variety of lien issues.   The  bill
passed  unanimously in both houses, though there were some  House
of Representatives amendments on an unrelated issue.

     26     In  Mitchell v. Beaver Dredging Co.,  the  court,  in
reference  to the 1933 Session Laws that included the  dump  lien
statute,  stated that [o]n the whole the acts of the  Legislature
have the very definite purpose of assisting the miner and laborer
to  recover his wages. 8 Alaska 566, 572 (D. Alaska Terr.  1935).
This perhaps suggests that a change in the language and scope  of
dump  liens was not the primary focus of the legislature, as  the
reference  to wages is preserved.  At the same time, though,  the
passage from Mitchell is a rather general statement and does  not
necessarily  imply  that the change of wages to  amount  due  the
laborer  was completely without meaning.  Furthermore,  the  lien
before  the court in Mitchell was either a mechanics or a  miners
lien (both were referenced) and not a dump lien.

          The  remaining Alaska case law on this issue is no more
helpful in determining how to interpret the definition of work in
AS  34.35.140(a).  Donaldson v. Henning held that  materials  and
equipment  use  could not be included in a dump lien.   4  Alaska
642,  651  (D. Alaska Terr. 1913) (disallowing lien  charges  for
purchase  of  a cable and use of a boiler).  However,  when  this
case  was decided, the statute read as applying to wages  instead
of  to  the  laborer, so this case has no precedential value  for
interpreting  the  change in the statutory language.   Similarly,
McConnell  v. Empire Tin Mining Co., decided in 1916,  maintained
that  the  purpose of a dump lien is the protection of the  miner
and the securing to him of his lien for wages.  5 Alaska 506, 509
(D.  Alaska Terr. 1916).  This case also cannot dictate  a  post-
1933 interpretation of the dump lien statute.

     27     Oklahoma has a statute specific to oil and gas  wells
which includes a lien on the proceeds from the sale of oil or gas
produced  therefrom.  Okla. Stat. tit. 42,  144.   This  statute,
which applies both to those who provide services and to those who
provide materials for the development of the mine, also places  a
lien  on  fixtures  and equipment owned by  the  mining  company,
making  it  impossible to separate the elements that would  apply
strictly  to  a  dump-specific lien as compared  to  more  common
mechanics or materialmans liens.

     28     Timber  Structures, Inc. v. C.W.S. Grinding  &  Mach.
Works, 229 P.2d 623, 631 (Or. 1951).

     29    Timber Structures, 229 P.2d at 630-31:

          Labor,   within  the  meaning  of  the   lien
          statute,  is  no  less labor  because  it  is
          carried   on   with  the  use  of   expensive
          machinery  instead  of hand  tools,  and  its
          reasonable value is not determined simply  by
          the out-of-pocket payments by the employer to
          the employee.  Plaintiff, as a subcontractor,
          furnished labor for this particular  building
          of  a  special kind for the special  purposes
          and needs of the structure.  The question  is
          what   is   the  reasonable  value  of   this
          particular labor, not some other.  To be able
          to  furnish this sort of labor, plaintiff was
          required  to  construct  a  plant,  buy   and
          install  machinery, purchase power to operate
          the  machinery, carry insurance,  pay  taxes,
          employ  engineers, and incur other  expenses.
          It  also had to consider the profit and  loss
          angle   of  its  operations.   All  of   such
          expenses are a part of making this particular
          labor  available  and are increments  of  its
          value.
          
(Emphasis in original.)

     30     United  Pac.  Ins.  Co. v. Martin  &  Luther  General
Contractors,  Inc.,  455  P.2d 664,  674  (Wyo.  1969)  (allowing
equipment-related costs in the calculation of a lien  and  noting
that  the  basic principle underlying all mechanics lien statutes
is  one  of  equity,  that unconscionable and  unjust  enrichment
should be prevented in the field of construction).

     31     Schraeder  v. Gormley, 259 P. 869, 872  (Okla.  1927)
(holding  that a company hired to provide a rig for oil  drilling
operations  possessed  a lien on the well for  the  equipment  it
provided);  William M. Graham Oil & Gas Co. v.  Oil  Well  Supply
Co., 264 P. 591, 599 (Okla. 1927) (To hold that the statute gives
to  the one a lien for commodities furnished which become a  part
of  the property, either by consumption in the use thereof, or by
attachment  as a part of the equipment or machinery or otherwise,
and   that   it  denies  to  the  other  who  likewise  furnished
commodities  [in  this  case,  the  costs  of  renting   drilling
machinery] equally as essential and necessary as furnished by the
one,  though  such  commodities furnished by  the  other  be  not
consumed  nor  become  a  part  of the  properties  developed  by
attachment, and retain individuality, and be capable  of  further
use upon completion of the immediate purposes for which they were
purchased,  is to say that the lawmaking body of the state  acted
in  a most discriminatory manner in the enactment of the statute,
when  it  is known as a matter of common knowledge that  a  large
quantity of such necessary and essential commodities never become
a  part  of  the  leasehold either by consumption  or  attachment
thereto.).

     32     Martin  v.  Wakefield, 43 N.W. 966, 967 (Minn.  1889)
(Remedial  statutes are to be liberally construed to advance  the
remedy.   The legislature could not have intended to exclude  the
use of those appliances or instrumentalities which are absolutely
necessary to the performance of the various departments of  labor
enumerated  in  the statute.  We are therefore  of  opinion  that
manual  labor, as used in this connection, includes the  use  and
earnings of all implements, instrumentalities, or agencies,  such
as  axe, cant-hook, team, or the like, which are actually used in
and  necessary to the performance of such labor by the  lumberman
or logger.).

     33    See Alderman v. Iditarod Properties, Inc., 32 P.3d 373,
380  (Alaska 2001) (On questions of law, our duty is to adopt the
rule  of  law  that  is  most persuasive in light  of  precedent,
reason, and policy.) (citing Guin v. Ha, 591 P.2d 1281, 1284  n.6
(Alaska  1979)); Tesoro Alaska Petroleum Co. v. Kenai  Pipe  Line
Co.,  746  P.2d 896, 904-05 (Alaska 1987) (Our starting point  in
[interpreting  a statute] is the language of the  statute  itself
construed in light of the purposes for which it was enacted. .  .
.   The  goal of statutory construction is to give effect to  the
legislatures  intent,  with  due  regard  for  the  meaning   the
statutory language conveys to others.  In this respect,  we  have
repeatedly  stated  that unless words have  acquired  a  peculiar
meaning,  by  virtue of statutory or judicial construction,  they
are  to  be  construed  in accordance with their  common  usage.)
(citations omitted).

     34     These costs include those expenses for supplies, such
as  food  and fuel, necessary to the maintenance of the  worksite
and  not  incorporated into the contracted-for project.   Without
the  necessary supplies, neither the human workers nor the  heavy
equipment  could  function properly.  The  cost  of  supplies  is
therefore an integral part of the amount due the laborer under AS
34.35.140(a)  and,  as such, can be included in  the  dump  lien.
This  inclusion of supplies in the dump lien does not  extend  to
materials, defined as those items and resources incorporated into
the  construction of the mine or well itself, or any  surrounding
buildings.

          Blattner does not assert before this court a claim  for
materials  supplied  to  the  mining operation,  though  such  an
argument  was raised before the superior court and rejected.   To
the  extent  that  this  claim is still valid,  Blattner  is  not
permitted to recover for the cost of materials in its dump  lien.
The   furnishing  of  materials  is,  by  statute,   specifically
contemplated  in  a materialmans lien.  See AS  34.35.050(3).   A
materialmans  lien  attaches  to the  structures  resulting  from
construction  and hence is fundamentally different  from  a  dump
lien, which attaches to the mass of mined minerals.  See id.;  AS
34.35.140(a).  Although we hold that equipment costs are included
in  Blattners dump lien, there is no interpretation of  the  dump
lien statute and its language of performing work that would allow
incorporation  of the cost of materials.  Thus, the  prospect  of
any  recovery  at  all  for the cost of  materials  can  only  be
accomplished   through  a  materialmans  lien  on  the   physical
structures  remaining  at the mine.  However,  Blattner  concedes
that  the  only  remaining interest in real property  in  dispute
concerns  the proceeds from the dump.  Consequently, a claim  for
the cost of materials cannot be included in the present action.

     35    AS 34.35.160(c).

     36     While certain contract specifications for performance
of  the  work  and  associated costs exist, the record  does  not
provide  sufficient information upon which to base  a  claim  for
damages in case of breach of contract.  The record does contain a
proposed  contract by USMX used to solicit bids for the  project,
but  there is no indication that this is the same as the contract
agreed to by Blattner.  The proposed contract states that payment
will  be  made  for  that  part of the Work  actually  completed,
including: (a) engineering; plus (b) material or equipment  under
fabrication  in  Contractors own plant;  plus  (c)  materials  or
equipment  under fabrication in subcontractors plants;  plus  (d)
materials or equipment which have already been shipped; plus  (e)
construction,  if  any,  completed to  date  on  Site;  less  any
payments  previously made to the Contractor.  Further,  documents
in  the record, mostly letters between USMX and Blattner, involve
negotiations over the terms of the contract, but no indication is
given  that this documentation is complete, nor does there appear
to  be  any discussion of calculation of damages.  Such  a  fact-
intensive inquiry we leave to the superior court upon remand.

     37     Alaska Childrens Servs., Inc. v. Smart, 677 P.2d 899,
902  (Alaska  1984)  (The duty to mitigate  damages  is  a  well-
recognized rule of contract law in Alaska.).

     38    See Krossa v. All Alaskan Seafoods, Inc., 37 P.3d 411,
419 (Alaska 2001) (When parties to a contract dispute do not have
a  valid  contract, plaintiffs may generally recover  in  quantum
meruit for services rendered.  The measure of recovery in quantum
meruit  is the reasonable value of the services rendered  to  the
defendant. (citations omitted)).

     39    This time period will be discussed in the next section.

     40     It is worth noting that under the nine-month rule set
forth  in  AS 34.35.145, the February 26, 1999 date advocated  by
Blattner would likely be less favorable than the January 10, 1998
date  adopted by the superior court if standby costs are held  to
be  non-lienable.  Blattner does not challenge the  applicability
of AS 34.35.145 to the present case.

     41    8 Alaska 309, 310 (D. Alaska Terr. 1931).

     42     60 F.2d 24, 26 (9th Cir. 1932).  The phrase necessary
or  convenient  is now included in AS 34.35.125, which  has  been
partially incorporated into AS 34.35.140(a), at least as  far  as
types of lienable work are concerned.  The relevant portion of AS
34.35.125 provides: A person who, at the instance of the owner, .
.  .  performs  any  other class or kind  of  work  necessary  or
convenient to the development, operation, working, or  mining  of
the  claim or well . . . has a lien on the mine or mining  claim,
oil,  gas, or other claim or well as security for the payment  of
the work.

     43    See Zavodsky, 60 F.2d at 25-26.

     44     See  id. at 26 (The fact that work had been suspended
does  not, in our opinion, restrict the application of  the  lien
statute.   It  can  be  assumed that  the  very  purpose  of  the
employment  by  appellant of Fremming was to  have  the  property
guarded and protected until such time as mining operations  might
be  resumed.); cf. Colonial Supply Co. v. Smith, 272 P. 879, 880-
81 (Okla. 1928) (holding that one employed to guard idle oil well
tools  possessed a lien for his services); Skinner v.  Quadrangle
Oil  Co., 212 P. 684, 686 (Kan. 1923) (holding that a lien  could
include waiting time because under the contract this time must be
considered as a part of the labor necessary to drill the well).

     45    See United States for Use of E. & R. Constr. Co., Inc.
v.  Guy  H. James Constr. Co., 390 F. Supp. 1193, 1246 (D.  Tenn.
1972),  affd  by United States v. Guy H. James Constr.  Co.,  489
F.2d  756 (6th Cir. 1974) (Those items of plaintiffs claims which
involve  damages for stand-by time of equipment are not  properly
recoverable  under the Miller Act.); Kerr-McGee Oil Indus.,  Inc.
v.  W.J.  McCray, 361 P.2d 734, 737 (Ariz. 1961)  (overturning  a
lien  for  standby  machinery  because  the  machinery  did   not
contribute to the improvement of the property and hence  was  not
within  the  manifest purpose of the statute);  Nelson  v.  Boise
Petroleum  Corp., 32 P.2d 782, 783-84 (Idaho 1934) (holding  that
an  employee was not entitled to a lien for time in which he  was
idle,  though he could still recover contract damages); Blake  v.
Crystaline Lime Co., 221 P. 1100, 1101 (Idaho 1923) (holding that
persons employed but not performing work were not entitled  to  a
lien for time after completion of actual work).

     46     Blattner contends that the trial court believed  that
the  mine  remained in operation at least until  USMX  filed  for
bankruptcy  protection on May 21, 1998.  This  might  be  a  more
appropriate date for termination of the standby work by  Blattner
were  it  not for Blattners own admission that it ceased work  on
January 10, 1998.  See Kerr-McGee, 361 P.2d at 738 (holding  that
work  ceased when both parties were of the belief that there  was
nothing further to be performed even though the well had not been
completed).  If the May 21, 1998 date were to have been  adopted,
the  nine-month  limit of AS 34.35.145 would be applied  to  that
date.

     47     Indeed, the trial court held that Blattner had ceased
work  in  November 1997, though it allowed recovery for the  lien
from the nine months prior to the January 10, 1998 date set forth
in the first lien.

     48     The  contract  between Blattner and USMX  includes  a
monthly charge of $121,000 for periods when the equipment  is  in
standby mode.  The issue of whether Blattner can recover contract
damages for its standby costs is not before this court.

     49    See Zavodsky, 60 F.2d at 26.

     50    AS 34.35.160(c).

     51    Rothschild admits that this would only be applicable if
the corporate entity of Blattner had not filed a lien claim.

     52    AS 34.35.140(a).

     53    AS 34.35.140(a).

     54    AS 34.35.125.

     55    Id.

     56     See Amarex, Inc. v. El Paso Natural Gas Co., 772 P.2d
905,  910  (Okla.  1987) (Managerial functions qualify  as  labor
within  the  mechanics lien statute. . . .  Even under  a  strict
construction  of the statute, there appears to be no  reason  why
the  services performed in the operation of an oil and  gas  well
should not be within the labor and services provision of 42  O.S.
1981  144.).

     57     8 Alaska 36, 37 (D. Alaska Terr. 1928), revd on other
grounds by New York Alaska Dredging Co. v. Walbridge, 38 F.2d 199
(9th Cir. 1930).

     58    Walbridge, 8 Alaska at 41.

     59     Walbridge,  8  Alaska  at 39  (citing  Durkheimer  v.
Copperopolis Copper Co., 104 P. 895, 897 (Or. 1909)).

     60     Walbridge,  8  Alaska at 40  (citing  Mining  Co.  v.
Cullins, 104 U.S. 176, 177 (1881)).

     61     Walbridge,  8  Alaska at 40 (citing Flagstaff  Silver
Mining Co., 104 U.S. at 178).

     62     Compare White v. Constitution Mining & Mill. Co.,  55
P.2d  152,  158  (Idaho  1936) (holding that  a  worker  who  was
employed in looking after and taking care of the property and . .
.  personally  planned, mapped out, laid out, and determined  the
work to be performed at the mine, and inspected the property  for
the purpose of determining that the mine was being properly cared
for  and  preserved possessed a lien on the mine),  and  Hahn  v.
Anaconda  Gold  Mining  Co., 128 N.W.  128,  128-29  (S.D.  1910)
(allowing  a  lien for a superintendent and general  manager  who
during  a  greater  portion of his said  employment  .  .  .  was
required  to  be  upon  the  mining claims  of  defendant),  with
Wintermote  v.  MacLafferty,  233  F.  95,  96  (9th  Cir.  1916)
(disallowing a lien for an executive whose duties in the  company
included   supervision  of  workers,  repairing  machinery,   and
directing  sales), Hulsey v. LaMance, 242 P.2d  554,  556  (Ariz.
1952)  (holding  that  an employee who maintained  equipment  and
showed land to potential investors did not qualify for a laborers
lien  against  the  mining  property),  and   Manpower,  Inc.  v.
Phillips,  179  N.E.2d 922, 925-26 (Ohio 1962)  (holding  that  a
company  that  furnished laborers who worked under  direction  of
contractor  was  not itself a laborer within the  mechanics  lien
statute).

     63    5 Alaska 506, 508-09 (D. Alaska Terr. 1916).

     64    Consequently, the Little Davis-Bacon Act (AS 36.05.010-
110),  the applicable definition of public construction as  being
on-site (AS 36.95.010(3)), and the interpretation of on-site in 8
Alaska Administrative Code (AAC) 30.910 (2000) are not binding on
the present case.

     65    968 P.2d 86, 92 (Alaska 1998).

     66    Id. at 92-93.

     67    8 AAC 30.910(a); see also 8 AAC 30.910(b) ([L]aborers,
mechanics,  or  field surveyors who are engaged by  a  person  or
business  that  is  hired or contracted by a  prime  construction
contractor  or  subcontractor  to  provide  services  which   are
integral  and  necessary  to the construction  project  shall  be
considered on-site in the performance of those duties  which  the
contractor or subcontractor was required to perform.).

     68    8 AAC 30.910(c).

     69     Rothschild  asserts that Blattner did not  make  this
argument  at  trial and thus should be precluded from  making  it
here.   Arguments  not raised in the trial court  are  waived  on
appeal  except  where  plain  error has  occurred.   Wettanen  v.
Cowper,  749 P.2d 362, 364 (Alaska 1988).  However, while  not  a
focus  of  its argument below, Blattner sufficiently  raised  the
issue  by  asserting  mechanics and mining  liens  against  which
Blattner now argues the $500,000 payment should apply.

     70    663 P.2d 946, 948 (Alaska 1983).

     71     Each  lien  contained in the record begins  with  the
following statement:

               The  undersigned, D.H. Blattner &  Sons,
          Inc.  .  .  . claims a mining lien  upon  the
          mineral property more commonly known  as  the
          Roundtop   Upland  Mining  Lease,   as   more
          particularly described below; and  separately
          and  in  addition, claims a mining lien  upon
          the  dumps or masses produced from, or  piled
          or  stored  upon, said leased real  property,
          including  the minerals contained therein  or
          extracted therefrom (hereinafter the dump  or
          mass).
          
Each lien claim also ends with a similar statement:

               The  Claimant  therefore claims  a  lien
          against  the  property that  is  leased,  and
          separately  claims a lien against the  masses
          or  dumps  for  the amount due,  plus  costs,
          reasonable attorneys fees, and interest.
          
          These  passages  refer to two, and only  two,  distinct
liens, describing them in terms akin to a mining lien and a  dump
lien.   Though some of the work described elsewhere in the  liens
might be recoverable under a mechanics lien, such a lien does not
appear  to have been claimed.  Furthermore, Judge Savell  limited
Blattners  lien  claims  to the two [liens]  filed  and  recorded
January  27,  1998,  which  contain the  above  passages  and  no
separate reference to a mechanics lien.

     72    Indeed, as the superior court notes, both the mine and
the  dump were transferred to state control on July 12, 1999,  so
the  only thing that Blattner and Rothschild are disputing is the
distribution  of the amount in the Norwest Bank Colorado  account
resulting  from  the sale of gold and silver  acquired  from  the
dump.  Yet, Blattner recorded its liens from January 22, 1998  to
April  8,  1999,  when the mine and dump were  potentially  being
contested, so the transfer of the dump and mine to state  control
does not per se defeat Blattners argument here.

          Rothschild  alleges  that the  protection  payment  was
intended  to  protect against the depletion of the cash  proceeds
and that consequently Blattner could not apply the payment to the
mining  lien  and  possibly not even  to  the  dump  lien.   This
misconstrues the situation.  The cash proceeds from the mine  and
dump  are only a proxy for the debt owed by USMX to Blattner  for
which  Blattner has claimed mining and dump liens.  To the extent
that these liens are valid, the payments made to Blattner are  to
be used to reduce the indebtedness secured by these liens.

     73    Girves v. Kenai Peninsula Borough, 536 P.2d 1221, 1227
(Alaska  1975) (asserting that trial courts have wide  discretion
in  determining attorneys fees); Owen Jones & Sons, Inc. v.  C.R.
Lewis  Co.,  497  P.2d 312, 314 (Alaska 1972) (holding  that  the
determination  of who is the prevailing party and who  should  be
awarded  attorneys  fees is within the discretion  of  the  trial
judge).

     74     Girves,  536 P.2d at 1227; Froelicher v. Hadley,  442
P.2d 51, 53 (Alaska 1968).

     75     United Servs. Auto. Assn v. Pruitt, 38 P.3d 528,  531
(Alaska 2001); Froelicher, 442 P.2d at 53.

     76    Alaska Civil Rule 82(a) provides:  Except as otherwise
provided by law or agreed to by the parties, the prevailing party
in  a civil case shall be awarded attorneys fees calculated under
this  rule.   (Emphasis  added.)  See also Gamble  v.  Northstore
Partnership, 28 P.3d 286, 288 (Alaska 2001) (holding  that  Civil
Rule  82  may be overridden by statute or agreement);  Bobich  v.
Hughes,  965  P.2d  1196,  1200 (Alaska  1998)  (holding  that  a
statutory   provision   for  attorneys  fees   in   an   overtime
compensation case trumped Civil Rule 82).

     77    See Brand v. First Fed. Sav. & Loan Assn of Fairbanks,
478 P.2d 829, 833-34 (Alaska 1970).

     78     Brand, 478 P.2d at 834 (holding that the trial  court
had  in  that instance properly set off the fees for  one  partys
lien  enforcement  claims against the successful  claims  of  the
other party).

     79     See  Boyd v. Rosson, 713 P.2d 800, 802 (Alaska  1986)
(holding  that  full  fees should be awarded to  successful  lien
claimants  [under  AS  34.35.005(b)] so  long  as  the  fees  are
reasonable); Brand, 478 P.2d at 833-34.

     80    See Boyd, 713 P.2d at 802.