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Koyukuk River Tribal Task Force on Moose Management v. Rue (2/7/2003) sp-5662
Koyukuk River Tribal Task Force on Moose Management v. Rue (2/7/2003) sp-5662
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
KOYUKUK RIVER TRIBAL TASK )
FORCE ON MOOSE MANAGEMENT, ) Supreme Court No. S-9865
)
Appellant, )
) Superior Court No.
v. ) 4FA-99-561 CI
)
FRANK RUE, in his official capacity as ) O P I N I O N
Commissioner of Fish and Game, State )
of Alaska, and the BOARD OF GAME, )
State of Alaska, )
)
Appellees. ) [No. 5662 - February
7, 2003]
)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District, Mary E.
Greene, Judge.
Appearances: Michael J. Walleri, Fairbanks,
for Appellant. Kevin M. Saxby, Assistant
Attorney General, Anchorage, Bruce M.
Botelho, Attorney General, Juneau, for
Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
The Koyukuk River Tribal Task Force on Moose Management
appeals the superior court's award of partial costs and
attorney's fees to the Commissioner of the Alaska Department of
Fish and Game and the Board of Game. Because the Task Force may
qualify as a public interest litigant, we remand for a
determination of the Task Force's eligibility for public interest
litigant status and we therefore vacate the award of costs and
attorney's fees.
II. FACTS AND PROCEEDINGS
The Koyukuk River Tribal Task Force on Moose Management
brought suit against the Board of Game, alleging increased moose
hunting and declining moose populations in the Koyukuk River
drainage. The Task Force accused the Board of violating Alaska
statutes and the Alaska Constitution in its management of the
moose populations in the area and sought orders requiring the
Board to comply with the statutes and the constitution.
The Task Force did not raise its issues before the
Board in the form of a regulatory proposal or a petition for
rulemaking, but chose instead to bring a civil lawsuit against
the Board. The superior court dismissed the case on summary
judgment because the Task Force did not exhaust administrative
remedies and alternatively because the doctrine of primary
jurisdiction required that the case be heard first by the Board
of Game. The Board moved for partial costs and attorney's fees,
which the Task Force contested on several grounds, including
claims that Civil Rules 79 and 82 were inapplicable to the case
and that the Task Force was a public interest litigant. The
superior court found for the Board on both issues and awarded
partial costs and attorney's fees in the amount of $5,045.40.
The Task Force appeals the award of costs and attorney's fees,
but does not appeal the summary judgment.
III. STANDARD OF REVIEW
We will overturn an award of attorney's fees if the
award is an abuse of discretion or is manifestly unreasonable.1
"[I]t is an abuse of discretion to award attorneys' fees against
a losing party who has in good faith raised a question of genuine
public interest before the courts."2 We review a superior
court's decision as to whether or not a party is a public
interest litigant for abuse of discretion.3
IV. DISCUSSION
A. The Task Force's Public Interest Litigant Status
Following summary judgment, the Task Force argued that
it was a public interest litigant and the Board challenged this
claim. The superior court awarded the Board partial costs and
attorney's fees, stating that "[t]he court finds that plaintiff
has failed to prove it is a public interest litigant." The Task
Force appeals this award, claiming that the superior court abused
its discretion in refusing to find that it was a public interest
litigant.
To be considered a public interest litigant, a party
must generally satisfy the following criteria:
(1) Is the case designed to effectuate
strong public policies?
(2) If the plaintiff succeeds will numerous
people receive benefits from the lawsuit?
(3) Can only a private party have been
expected to bring the suit?
(4) Would the purported public interest
litigant have sufficient economic incentive
to file suit even if the action involved only
narrow issues lacking general importance?[4]
A party must satisfy all four criteria in order to qualify as a
public interest litigant.5
1. The case is designed to effectuate
strong public policies.
The Task Force contends that its lawsuit was designed
to "reduce the harvest pressure on the Koyukuk River Moose
population, which all parties admit is an important food resource
for subsistence and non-subsistence hunters in Alaska," and
sought to enforce state statutes and the state constitution.
They claim that "litigation seeking to conserve Alaska's natural
resources" serves a public purpose.
We have held that "a suit brought to ensure compliance
with statutory and constitutional policies that concern the
public as a whole effectuates strong public policies."6
Subsistence is an area of great public interest in Alaska and in
challenging the Board's enforcement of subsistence statutes, the
Task Force would appear to be concerned with strong public
policies.
2. If the plaintiff succeeds numerous
people may receive benefits from the lawsuit.
The Task Force contends that "all subsistence users,
which State law defines to include both the residents of the
Koyukuk River Valley and urban subsistence hunters" would benefit
from this litigation. The Board does not contest this claim.
3. Only a private party can have been
expected to bring suit.
The Task Force contends that because the lawsuit is
against the state to enforce compliance with regulations and the
constitution, only a private party could reasonably be expected
to bring this lawsuit. The Board does not challenge this
assertion.
4. The purported public interest litigant
would not have sufficient economic incentive to
file suit even if the action involved only narrow
issues lacking general importance.
The Task Force contends that the relief it requested
sought to limit or eliminate non-subsistence use of moose in the
area. We have said that subsistence use does not create a
sufficient economic incentive to sue such that it would negate
public interest status.7 The Task Force did not request damages,
and economic incentives do not appear to have driven the
litigation.
Although it appears from the record that the Task Force
complies with the criteria for public interest litigant status,
it is impossible to confirm this appearance without proof to
substantiate the Task Force's apparent compliance. As the state
correctly points out, without proof of the Task Force's identity
and purpose, there is no way to confirm that its individual
members would have no economic interest in suing in their own
right. Similarly, absent such evidence it cannot be determined
with confidence that the Task Force brought its action in good
faith to effectuate strong public policies.8
Thus, the question remaining is the exact identity of
the Task Force. In its complaint, the Task Force described
itself and its purpose as follows:
The Koyukuk River Tribal Task Force on
Moose Management is a coalition of village
councils for the villages of Allakaket,
Alatna, Evansville, Hughes, Huslia, Wiseman,
and Koyukuk, which are located along the
Koyukuk River in the Interior of Alaska. The
Task Force's purpose is to protect the local
subsistence use of the moose population in
the Koyukuk drainage, cooperate with the
ADF&G in development of a Koyukuk River Moose
Management Plan, and negotiate cooperative
agreements on behalf of the member tribes
with the ADF&G, the Alaska State Troopers,
and USF&WS for the enforcement and other
management actions necessary to protect the
moose population of the area.
Similarly, in its decision on the merits the superior court found
that "The Koyukuk River Tribal Task Force on Moose Management is
a coalition of the village councils for Allakaket, Alatna,
Evansville, Hughes, Huslia, Wiseman, and Koyukuk."
But no affidavit was submitted by the Task Force
describing its membership. This is understandable since the
court in its decision on the merits had seemingly accepted the
membership description set out in the complaint when the Task
Force filed its opposition to the Board's motion for attorney's
fees. We therefore believe that it is appropriate to remand this
case for a determination of the Task Force's identity. On
remand, the court may call for affidavits or other evidence of
the Task Force's membership. If this is contested, the court may
hold an evidentiary hearing.
B. Attorney's Fees
Following the grant of summary judgment, the Board
requested and the superior court granted partial costs and
attorney's fees pursuant to Civil Rules 79 and 82. The Task Force
argues that the superior court incorrectly treated this case as
an administrative appeal and that Civil Rule 82 does not apply to
administrative appeals. The superior court correctly noted,
however, that "[t]he plaintiff chose to bring this as a regular
civil action, thus Rule 82, not the rule on administrative
appeals is applicable." Because we are remanding for a
determination of the Task Force's status as a public interest
litigant, we vacate the superior court's award of partial costs
and attorney's fees. On remand, Civil Rules 79 and 82 will
appropriately apply if the Task Force is not found to qualify for
public interest litigant status.
V. CONCLUSION
We REMAND this case for a determination of the Task
Force's eligibility as a public interest litigant. We
accordingly VACATE the award of costs and attorney's fees.
_______________________________
1Feichtinger v. Conant, 893 P.2d 1266, 1268 (Alaska 1995).
2Gilbert v. State, 526 P.2d 1131, 1136 (Alaska 1974).
3Citizens Coalition for Tort Reform, Inc. v. McAlpine, 810 P.2d
162, 171 (Alaska 1991).
4Anchorage Daily News v. Anchorage Sch. Dist., 803 P.2d 402, 404
(Alaska 1990).
5Id.
6Gwich'in Steering Comm. v. State, Office of the Governor, 10
P.3d 572, 585 (Alaska 2000).
7Alaska Survival v. State, Dep't of Natural Res. 723 P.2d 1281,
1292 (Alaska 1986) ("[Reliance] on [state] resources for personal
rather than commercial purposes . . . is not the type of
substantial economic interest sufficient to bar a litigant from
qualifying as a public interest plaintiff."). See also Gwich'in,
10 P.3d at 585 (finding that a subsistence interest in caribou is
insufficient to defeat public interest status); Eyak Traditional
Elders Council v. Sherstone, Inc., 904 P.2d 420, 426 (Alaska
1995) ("[W]e [have] held that a group partially motivated by a
threat to its subsistence lifestyle did not have sufficient
economic incentive to sue.").
8As an alternative ground for affirming the superior court's
denial of public interest litigant status, the state argues that
"it is clear from the record that the lawsuit lacked a good faith
basis and so was not brought in the public interest. Ergo, the
case was not `designed to effectuate strong public policies.' "
But the state did not ask the superior court to make an
affirmative finding that the Task Force filed its action in bad
faith or argue bad faith as an independent ground for denying
public interest litigant status; it simply argued that the Task
Force had failed to prove that it pursued a good faith claim
designed to effectuate strong public policies. Because the
state's alternative ground raises factual issues that the
superior court had no occasion to address in its findings, we
decline to consider it here.
