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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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.