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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Commercial Fisheries Entry Commission v. Carlson (3/14/2003) sp-5673

State, Commercial Fisheries Entry Commission v. Carlson (3/14/2003) sp-5673

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  ALASKASTATE   OF   ALASKA,

)COMMERCIAL   FISHERIES          )     Supreme  Court   Nos.   S-

10091/10101ENTRY             COMMISSION,                        )

)          Superior       Court      No.               Appellant/

)        3AN-84-5790    CI            Cross-Appellee,           )

)       O   P   I   N   I   O   N    v.                         )

)      [No.   5673   -   March   14,  2003]DONALD   H.   CARLSON;

WARREN       )HART;   GERARD   HASKINS;   EARL     )WEESE;    and

LYLA     C.     WEESE,     )Individually     and     as     Class

)Representatives    on    Behalf     of          )All     Persons

Similarly                    Situated,                          )

)                Appellees/               )                Cross-

Appellants.              )________________________________)Appeal

from   the   Superior  Court  of  the  State  of  Alaska,   Third

Judicial     District,    Anchorage,    Peter    A.    Michalski,

Judge.Appearances:      Stephen     M.      White,      Assistant

Attorney    General,    and   Bruce    M.    Botelho,    Attorney

General,    Juneau,    for    Appellant/Cross-Appellee.     Loren

Domke,   Loren   Domke,   P.C.,  Juneau,   for   Appellees/Cross-

Appellants.Before:      Fabe,    Chief     Justice,     Matthews,

Eastaugh,   Bryner,   and  Carpeneti,  Justices.    FABE,   Chief

Justice.I.     INTRODUCTION

           This  is  the  third appeal arising out of  a  lawsuit

centering  on  whether  Alaska can charge nonresidents  more  for

commercial  fishing licenses than it charges resident  commercial

fishers.   The case is brought as a class action by  a  group  of

nonresident  commercial  fishers.  In previous  rulings  in  this

case,  we  held that different rates can be charged for  resident

and  nonresident commercial fishers, and we derived a formula for

calculating  the acceptable difference.  The components  of  this

formula,  including various budget expenditures and oil revenues,

are  in  dispute  in this appeal.  We conclude  that  direct  and

indirect  costs  associated with the fisheries budget  and  costs

associated with the hatcheries loan fund can be included  in  the

calculation  of the allowable fee differential.  We further  hold

that  at  an earlier stage in this litigation the State  conceded

that the protest requirement for recovery of overpayment of taxes

has  been  satisfied.  Finally, we hold that prejudgment interest

will be applicable if on remand it is determined that a refund of

a portion of fees is required.

II.  FACTS AND PROCEEDINGS

           Litigation  in this case began in 1984.  At  the  time

this  case  was  first before this court, nonresident  commercial

fishers were charged three times as much as resident fishers  for

fishing  license fees.1   The relevant statute at  the  time,  AS

16.05.480(a),  dealt primarily with authorizing the establishment

of  fees  for commercial fishing: "A person engaged in commercial

fishing  shall obtain a commercial fishing license.  The fee  for

the license is $30 for residents, and $90 for nonresidents."  The

relevant  current statute, AS 16.05.480(h), establishes:  "For  a

crewmember fishing license[2] issued for calendar year  2002  and

following years, a nonresident engaged in commercial fishing  who

is 11 years of age or older and who does not hold an entry permit

or an interim_use permit shall pay an annual base fee of $60 plus

an  amount, established by the department by regulation, that  is

as  close as is practicable to the maximum allowed by law."   The

principal difference is that the current statute does not set the

amount which nonresidents can be charged, but rather allows  this

amount to be set at the maximum legal amount.3

           A  similar  fee  structure is  established  for  entry

permits and interim-use permits where the creation of limited use

zones is deemed necessary for controlling, through the permitting

process,  the number of people who can fish in a given geographic

area.4   However,  in 2001 the fees for nonresidents  were  three

times the amount for residents.5  Crewmembers are not required to

have entry or interim-use permits, although they are required  to

have a commercial (crewmember) fishing permit to work on a permit

vessel.6   The class never specifically stated in its brief  that

it  is  challenging  both commercial fishing licenses  and  entry

permit  fees,  but  one of the challenged superior  court  orders

states  that it applies to both "commercial licenses and  limited

entry  permits."   Furthermore, Carlson I defined  the  class  as

consisting of "all persons who participated in one or more Alaska

commercial   fisheries   at  any  time  who   paid   non-resident

assessments  to  the  State for commercial or  gear  licenses  or

permits."7   This  language was taken directly from  the  initial

complaint.   We  therefore find it appropriate  to  address  both

commercial fishing licenses and entry permit fees.  For the  sake

of  simplicity,  the  two  will be referred  to  collectively  as

"commercial fishing fees," except in those instances where it  is

necessary to differentiate between the two.

     A.   Prior Case History Before the Alaska Supreme Court

          Before proceeding with the issues in the present case,

it is helpful to review the decisions in the previous appeals

before this court.  In Carlson I, we held that different fees for

residents and nonresidents did not automatically violate either

the Privileges and Immunities Clause or the Commerce Clause of

the United States Constitution.8  We noted that "[l]ess favorable

treatment by the state towards nonresidents runs afoul of the

Privileges and Immunities Clause if: 1) the activity in question

is `sufficiently basic to the livelihood of the Nation . . . as

to fall within the purview of the [clause], and 2) [it] is not

closely related to the advancement of a substantial state

interest.' "9  We proceeded to determine that "[c]ommercial

fishing is a sufficiently important activity to come within the

purview of the Privileges and Immunities Clause, and license fees

which discriminate against nonresidents are prima facie a

violation of it."10  We recognized that states may "charge

non_residents a differential which would merely compensate the

State for any added enforcement burden they may impose or for any

conservation expenditures from taxes which only residents pay."11

Because the appropriateness of a 3:1 fee differential had not

been addressed, we remanded the case for such a determination,

placing the burden of persuasion on the State.12

          We conducted a similar analysis with regard to the

Commerce Clause.  Noting that the Commerce Clause "limits the

power of the States to erect barriers against interstate trade,"13

we concluded that if a law is shown to discriminate against

interstate commerce, either in its wording or in its effect, the

burden is on the State "to demonstrate both that the statute

`serves a legitimate local purpose,' and that this purpose could

not be served as well by available nondiscriminatory means."14  We

held that the superior court improperly relied upon Salorio v.

Glaser15 in granting summary judgment to the State.16  We

determined that applying Salorio, in which New Jersey imposed

additional fees on nonresidents to pay for transportation

facilities,17 to the present case would result in nonresidents

subsidizing the activities of residents because nonresidents

could then be required "to pay up to 100% of their pro rata share

of expenditures regardless of what percentage of their pro rata

share residents are in fact paying."18  However, because the

majority of the state revenues are derived from petroleum

production, a source to which nonresident fishers make no

contribution, we ruled that the State could recoup conservation

expenditures from nonresidents in the form of differential fees.19

We reasoned that the oil revenues spent on conservation "could

have been used to benefit residents through various other

programs and they are, analytically, equivalent to `taxes which

only residents pay.' "20  In that the extensive use of oil

revenues as a source for state expenditures created a greater

financial burden on nonresidents than residents, a fee

differential based upon residency was justified.21  Consequently,

"the state may equalize the economic burden of fisheries

management; where residents pay proportionately more by way of

foregone benefits than nonresidents for fisheries management,

nonresidents may be charged higher fees to make up the

difference."22  This is the same conclusion that was reached in

the Privileges and Immunities Clause analysis.  Consequently, we

remanded the case for a further determination of the

appropriateness of the fees.23

          In Carlson II, we addressed the question of what would

be an acceptable fee differential for nonresidents to pay.24  We

first affirmed our decision in Carlson I that neither the

Commerce Clause nor the Privileges and Immunities Clause

prevented the imposition of an increased fee for nonresident

commercial fishers.25  The class had argued that two cases, which

held that states violated the negative (also known as dormant)

Commerce Clause by charging greater taxes on out-of-state waste

than on in-state waste, decided by the United States Supreme

Court after Carlson I but before Carlson II, were applicable to

the present case.26  We distinguished these two cases by holding

that the facts in the present case did not involve the

"interstate flow of articles of commerce."27  In response to the

class's Privileges and Immunities Clause argument, we stated that

we did not in Carlson I advance the type of fee-shifting

arrangement denounced in Oregon Waste Systems, but rather

explicitly held that nonresidents could be required to pay only

that amount that would make their contribution to state-provided

benefits substantially equal to the contribution of similarly

situated residents.28

          Accepting the constitutionality of the fee differences,

we next determined a formula for allowable differences.  We

adopted the per capita fee differential formula advocated by the

class as opposed to the pro rata formula offered by the State,

holding that the allowable fee differential could be determined

by: (Fisheries Budget/Alaska Population) X (percentage of State

Budget from oil revenues/1.0).29  We rejected the State's proposed

formula30 because it improperly compared the contributions made by

nonresident commercial fishers to those made only by resident

commercial fishers, rather than viewing the resource expenditures

benefitting the nonresidents in terms of the population of the

state as a whole:31

          Resident commercial fishers are paying the
          license and permit fees they are charged plus
          their per capita share of oil revenues which
          are diverted to fisheries management from
          other benefits or State services.  It is this
          quantity which must be equivalent to the fee
          differential for the fees to be
          constitutional under the Carlson I
          analysis.[32]
          
We remanded the case to the superior court to determine if, under

the formula adopted, the nonresident fee differential exceeded

the resident contribution, including the forgone oil revenues of

the average Alaska resident.33  The superior court on remand was

also to address what budget figures should be included in

executing the formula.34

          On the issues of refunds to the class and prejudgment

interest, we recognized that "the record indicates that the State

agrees that those fees which were paid after June 22, 1984, were

paid under protest sufficient to permit a refund under AS

43.10.210."35  The class admitted that it could not have satisfied

the protest requirement before then and thus would not seek a

refund for any fees prior to that date.36  We remanded the case to

determine if the action of filing suit constitutes sufficient

notice to satisfy the requirements of AS 43.10.210(a)37 and to

determine whether, if the class ultimately prevails, prejudgment

interest is due.38

     B.   Recent Case History After Remand to the Alaska Superior

Court

          On July 17, 1998, Superior Court Judge Peter A.

Michalski issued an opinion addressing class decertification and

prejudgment interest.  Judge Michalski denied the State's motion

for class decertification because all four components of class

certification - numerosity, commonality, typicality, and adequacy

of representation - were met.  The State had argued that because

the class shifted its legal theory from common law theories of

assumpsit to a statutory argument, the original class

certification under Alaska Civil Rule 23(b)(2) must be

reexamined.  The State further argued that numerosity did not

exist because only the named parties actually protested the fee

differential; conceded that commonality existed; asserted that

because different permits and fees were involved, there was no

typicality of claims; and contended that the variety of remedies

that the legislature could adopt if the fees were found to be

unconstitutional rendered it impossible for there to be adequacy

of representation.  The superior court held that the State did

not provide a sufficient change in circumstances to justify

decertifying the class and noted that speculation as to how the

legislature might react to a ruling was also not grounds for

decertification.  Judge Michalski further ruled that the status

of a class as a "unified legal entity" overrode the State's

interest in making distinctions between class members.

Consequently, the superior court concluded that "no distinctions

will be made among class members when determining whether the

state waived the protest requirement or whether the class met the

protest requirement."

          In addition, the superior court held that notice to the

State existed as of December 13, 1984.  The State had argued that

every member of the class was required to protest to obtain any

refund.  However, Judge Michalski, quoting Principal Mutual Life

Insurance v. State, Division of Insurance,39 stated that the

purpose of the protest requirement was to provide the State "with

notice of the claimed tax illegality, the grounds advanced in

support of the claimed illegality, and [to] afford[] the state

the opportunity to fashion budget appropriations, or

expenditures, taking into account the magnitude of the claimed

tax illegality."  Because the class was defined extensively

enough to include all commercial license and permit holders,

Judge Michalski held that the State should have known the

magnitude of the potential claims and budgeted appropriately.  It

was therefore not necessary for each class member to protest the

fee differential because to impose such a requirement would be a

mere technicality.  Judge Michalski thus held that the protest

requirement of AS 43.10.210(a) was satisfied by the certification

of the class in the suit.

          As to prejudgment interest, the State asserted that AS

45.45.010, which had been invoked in Carlson II as the basis for

a determination of whether prejudgment interest was due,40 only

set the maximum interest rate and did not specifically authorize

prejudgment interest.  The superior court conceded that the

State's interpretation of AS 45.45.010 was correct, but concluded

that this court intended the superior court to look beyond just

that statute in addressing the issue of prejudgment interest.

Looking to AS 43.05.280, the superior court determined that

interest was allowed on an overpayment of taxes.  Because we held

in Carlson I that Title 43 applied to the present case even

though fees, and not taxes, were involved,41 Judge Michalski held

that the class could recover prejudgment interest on their

overpaid commercial fishing fees were they ultimately to prevail

on their claim.

          Left undecided was the issue of what comprised the

different components of the formula derived in Carlson II.  This

was resolved by the superior court at an evidentiary hearing held

June 12-14, 2000.  The court adopted the State's methodology for

computing the fisheries budget with regard to both direct and

indirect operating expenditures, but agreed with the class that

general government costs, capital costs, the hatcheries loan fund

subsidy, and forgone revenue from fishery resources could not be

included when computing the fisheries budget.  The resulting

fisheries budget for fiscal year 1996 was $127,289,000.  Both

sides agreed on the methodology for determining Alaska's

population, namely the yearly estimate made by the Alaska

Department of Labor, yielding a state population of 605,212 in

fiscal year 1996.  The superior court agreed with the State that

the oil revenues component should "include general fund petroleum

revenues, the draw on the constitutional budget reserve, and the

net income from the Alaska Permanent Fund appropriated each

year."  In fiscal year 1996 this resulted in a calculation that

seventy-four percent of the state budget came from oil revenues.

From these figures, a maximum fee differential of $155.64 was

calculated for fiscal year 1996.  The parties were then ordered

to use the methodologies adopted by the superior court to

calculate the allowable fee differential back to December 13,

1984 and any corresponding refund that may be necessary.  This

accounting has not yet been made.  The State appealed and Carlson

cross-appealed.

III. STANDARD OF REVIEW

          The constitutionality of a statute and matters of

constitutional or statutory interpretation are questions of law

to which we apply our independent judgment.42  We adopt the rule

of law "that is most persuasive in light of precedent, reason,

and policy."43  Findings of fact are reviewed for clear error,44 a

standard that requires that great deference be given to the

findings of the superior court.45

IV.  DISCUSSION

          A.   We Decline To Readdress the Constitutional Issues
          Already Raised and Resolved in Carlson II.
          
          The constitutionality of charging nonresidents more for

commercial fishing licenses and permits has already been

addressed, first in Carlson I 46 and then reaffirmed in Carlson

II.47  Whether we should readdress the issue here is a threshold

question.  In Pratt & Whitney Canada, Inc. v. Sheehan, we noted

the importance of stare decisis but also recognized the need

occasionally to deviate from existing precedent.48  We stated that

we "will overrule a prior decision only when `clearly convinced

that the rule was originally erroneous or is no longer sound

because of changed conditions, and that more good than harm would

result from a departure from precedent.' "49  A prior ruling may

be "originally erroneous" if it proves to be "unworkable in

practice."50  Changed conditions exist where "related principles

of law have so far developed as to have left the old rule no more

than a remnant of abandoned doctrine, [or] facts have so changed

or come to be seen so differently, as to have robbed the old rule

of significant application."51  This law of the case doctrine52

maintains that issues previously adjudicated can only be

reconsidered where there exist "exceptional circumstances"53

presenting a "clear error constituting a manifest injustice."54

Once a case has been heard,55 there are strong policy reasons for

refusing to rehear it.56

          The State accuses the class of rearguing the same case

they brought in 1996, particularly with regard to the class's

interpretation of Oregon Waste Systems, Inc. v. Department of

Environmental Quality, which the United States Supreme Court

decided in 1994.57  The State dismisses the only two post-Carlson

II cases cited by the class - Fulton Corp. v. Faulkner58 and Camps

Newfound/Owatonna, Inc. v. Town of Harrison, Maine59 - as

inapplicable to the present case.60  The class counters that there

is no final judgment necessary to invoke the law of the case

doctrine as delineated in Wolff.61  The class further asserts that

the law of the case doctrine is only a general principle and not

an unyielding prohibition on revisiting prior decisions.62  We

agree with the State that our previous decisions on this issue

preclude its reconsideration.63

          The question before us is whether any legal precedent

has arisen subsequent to Carlson II to indicate that that

decision was somehow in error.  A United States Supreme Court

decision contradicting our holding in Carlson II would indicate a

clear error and require us to revisit the issue of the

constitutionality of the fee differentials.  We interpret Fulton

and Camps Newfound as clarifying the Supreme Court's position in

Oregon Waste Systems; these two cases do not, however, alter the

law in a way that would cause us to rethink our decision in

Carlson II.  We therefore do not believe that such a

contradiction exists, nor do we find any other reason to revisit

our holding in Carlson II.

                    1.   Fulton Corp. v. Faulkner64

          Fulton Corp. v. Faulkner addressed an intangibles tax

by the state of North Carolina on corporate stock.  The tax was

assessed on the fair market value of corporate stock owned by

North Carolina residents.65  However, residents were allowed to

take a tax deduction equal to the percentage of the corporation's

income that was subject to tax in North Carolina.66  This resulted

in an inverse relationship between the tax that North Carolina

residents were required to pay and the extent to which the

company did its business in North Carolina, such that, for

example, if the company did all of its business within the state,

a resident owning its stock would not be required to pay any

intangibles tax on that stock.67  The Court rejected this tax as a

violation of the Commerce Clause.68  The Court explicitly

recognized the applicability of the dormant Commerce Clause to

the case,69 but further acknowledged that a tax that facially

discriminates against interstate commerce may be constitutional

if the effect on interstate commerce is incidental70 or if the tax

is designed to make those engaged in interstate commerce bear the

same economic burden as those engaged in intrastate commerce.71

The Court then outlined a three-part test for determining if a

compensatory tax was constitutional: (1) the State must identify

the intrastate tax burden being compensated; (2) the tax must be

shown to approximate but not exceed the burden on intrastate

commerce; and (3) the events which are being taxed must be shown

to be substantially equivalent between interstate and intrastate

commerce.72

          Although Fulton will be relevant in our analysis of

what expenses can be included in the "fisheries budget," it has

no bearing on the basic allowability of fee differentials for

nonresidents because commercial fishing licenses are not objects

of interstate commerce.  We held in Carlson II that "[u]nlike the

fee differentials in Oregon Waste Systems and Chemical Waste,73

the fee differentials at issue in this case are not predicated

upon the movement of articles of commerce across state lines, but

rather upon the residency status of those applying for permits."74

Consequently, we held that the negative or dormant Commerce

Clause did not apply to the present case, but rather that the fee

differentials were properly analyzed under the Privileges and

Immunities Clause.75  Nothing in Fulton causes us to abandon this

position.  The tax in Fulton was tied directly to whether the

corporation in question engaged in interstate or intrastate

commerce.76  It was therefore clearly "predicated upon the

movement of articles of commerce across state lines."77  No

similar situation exists here, with the fee differential for

nonresident commercial fishers relating not to commerce but

rather to the opportunity to utilize Alaska's natural resources.

Consequently, Fulton does not provide a reason to revisit an

issue decided in Carlson II.78

          2.   Camps Newfound/Owatonna, Inc. v. Town of Harrison,

Maine79

          In Camps Newfound, the United States Supreme Court

struck down a local Maine property tax exemption for a charitable

camp that primarily served state residents.80  A Maine town had

attempted to argue that the business of the camp did not involve

articles of commerce because the services of the camp were

"delivered and `consumed' entirely within Maine."81  The Court

noted that "[t]he attendance of these campers necessarily

generates the transportation of persons across state lines that

has long been recognized as a form of `commerce.' "82  We find

there to be no direct analogy between the campers in Camps

Newfound and the movement of commercial fishers into Alaska.  The

Court in Camps Newfound drew a comparison of the summer camps to

hotels.83  This comparison indicates a sufficient distinction from

commercial fishing licenses and permits to allay concerns about

the constitutionality of the fee differential.

          The Court in Camps Newfound further compared the summer

camps to a natural resource.84  The Court pointed out that there

is a long history of allowing residents and nonresidents alike

equal access to natural resources in a state.85  Quoting from New

England Power Co. v. New Hampshire,86 a case in which the Court

struck down a New Hampshire law attempting to place restrictions

on a public utility's sales of hydroelectric energy generated in

the state to out-of-state consumers, the Court stated that "[w]e

have `consistently . . . held that the Commerce Clause . . .

precludes a state from mandating that its residents be given a

preferred right of access, over out_of_state consumers, to

natural resources located within its borders or to the products

derived therefrom.' "87  The Court considered the two situations

analogous because in both cases "the burden fell on out_of_state

access both to a natural resource, and to related services

provided by state residents."88  The Court explained that "[b]y

encouraging economic isolationism, prohibitions on out_of_state

access to in_state resources serve the very evil that the dormant

Commerce Clause was designed to prevent."89

          The law in the present case, however, does not hinder

or deny access to Alaska's natural resources, which in this case

are the fisheries.  Rather, the law merely allows the State to

recoup from nonresidents the amount spent on maintaining the

natural resource of the fisheries that it would be able to

recover from nonresidents were they instead residents of Alaska.

Nonresidents are being provided with equal access to the resource

on the condition that they make a contribution to the maintenance

of the resource equal to that made by state residents.90  The

situation in the present case can therefore be distinguished from

that in Camps Newfound.  Thus, there is no reason to revisit our

decision in Carlson II.

          B.   The Formula for Calculating the Allowable Fee
          Differential for Nonresident Commercial Fishing Fees
          
          In Carlson II, we held the per capita formula advanced

by the class to be, in comparison to the pro rata formula

proposed by the State, "the correct method for calculating the

contribution made by residents."91  The formula calculates the per

capita resident contribution to the cost of fisheries management,

regardless of whether this person is a fisher, as follows:

(Fisheries Budget/Alaska Population) X (percentage of State

Budget from oil revenues/1.0).92  The figure determined by this

formula for any given year is then compared to the actual fee

differential charged.  If the fee differential paid by the

nonresident commercial fishers, i.e., the nonresident fee minus

the resident fee for the same access, exceeds the resident

contribution as calculated by the formula, then "the State will

have failed to demonstrate that the means employed by its statute

have a substantial enough relationship to the legitimate interest

of the statute to survive Privileges and Immunities Clause

review."93

          It should be noted that the formula advanced by the

class and adopted in Carlson II is not the only conceivable means

for calculating an allowable fee differential for nonresidents.

The United States Supreme Court requires only a "reasonable

relation between the higher fees and the higher cost."94  In

Carlson II, we found the per capita formula advanced by the class

to be an acceptable method for calculating the resident

contribution to fisheries management and hence the allowable

nonresident fee differential.95  We continue to uphold the

applicability of this formula.

          We should clarify, however, that a refund will only be

necessary if the difference between the actual fees charged to

resident and nonresident commercial fishers is substantially in

excess of the allowable fee differential indicated by the

formula, such that the actual fees do not bear a reasonable

relationship to costs not otherwise paid by nonresidents.96  We

leave to the superior court on remand to determine whether

proportionality exists in any particular instance and whether a

refund is due.  These determinations are subject to review using

an abuse of discretion standard.97

          1.   Components of the fisheries budget

          The findings of fact and conclusions of law by the

superior court describe the fisheries budget as being comprised

of the State's "direct operating expenditures" and the State's

"indirect operating expenditures."  The State in its pre-trial

brief contended that the fisheries budget consists of six

components: "(1) direct operating expenditures; (2) indirect

operating expenditures; (3) general government expenditures; (4)

capital costs; (5) hatchery loan fund subsidy; and (6) foregone

revenues from fishery resources."  Judge Michalski only accepted

the first two of these items.

          The concept of a fisheries budget goes well beyond what

any particular agency requests from the State.  It is necessary,

then, to determine what the State spends from its general funds

on its commercial fisheries.  The record must support the belief

that a rational relationship exists between the fee differential

and the average cost of fisheries management to the resident.98

          In determining the fisheries budget, Judge Michalski

found that the figures the State provided for direct operating

expenditures were justifiable and should be included in the final

calculations.  This figure totaled $126,099,100 for fiscal year

1996.  Judge Michalski also held that indirect operating

expenditures could be included in the fisheries budget as "based

upon the federal formula for identifying indirect operating

expenses[.]"  The class does not challenge these indirect costs,

which totaled $1,189,900 in fiscal year 1996.99  Judge Michalski

rejected the State's proposed inclusion of general government

expenditures, capital costs, the hatchery loan fund, and forgone

revenue from fisheries resources in the fisheries budget.  The

State challenges each of these exclusions.

          The class challenged the list of fisheries expenditures

provided by the State for direct operating expenditures as overly

broad.  The State sought to include in direct operating

expenditures all those expenditures which go directly to support

the commercial fishing industry as a whole.  The Carlson cases

hold that nonresidents can be made to pay for their share of the

costs of fisheries management.100  There is no precedent for

determining if direct costs, indirect costs, general government

expenditures, capital costs, the hatchery loan fund, and forgone

revenue from fisheries resources in the fisheries budget are

properly to be included in the expenses for fisheries management.

Because this issue turns upon the legality of including different

types of expenses in the budget for fisheries management, we

decide the issue as a question of law.101  Once the parameters of

these budget components are established, the issue of calculating

the exact amount of each component is a question of fact which is

reviewed for clear error.

                              a.   Judge Michalski was not
                    clearly erroneous in adopting the State's
                    budget figures for direct and indirect costs.
                    
          Judge Michalski held that both direct and indirect

operating expenditures should be included in the fisheries

budget.  We agree with this conclusion.  In Carlson I, we stated

that the State may "equalize the economic burden of fisheries

management" by recovering from nonresidents the forgone revenues

that residents pay for this expense.102  The direct operating

expenditures of fisheries management are implicitly included in

this holding.  The indirect operating expenditures are also

contemplated by this holding because without the direct operating

expenditures the indirect operating expenditures would not have

been generated.103

          The class does not challenge the general validity of

either direct or indirect operating expenditures.  Rather, it

challenges the State's methodology for determining these figures

by arguing that some of the amounts claimed by the State as

direct operating expenses are not in fact directly associated

with the costs of fisheries management.104  However, following

arguments by the parties on the appropriateness of the inclusion

of different sub-components within the direct operating

expenditures, Judge Michalski found that "the State's

methodologies for valuing [direct and indirect operating

expenditures] are appropriate."  The class presents no persuasive

argument on cross-appeal that this determination by the superior

court is clearly erroneous.  Judge Michalski agreed with the

testimony by the State's expert witness that the disputed costs

were directly related to the costs of fisheries management.105  The

testimony was sufficient to show that Judge Michalski was not

clearly erroneous in his findings.  Therefore, we affirm the

findings of the superior court with regard to the methodology for

determining direct and indirect operating expenditures and the

corresponding calculations.

                              b.   General governmental
                    expenditures cannot be included in the
                    fisheries budget.
                    
          The State argues that it should be able to include

"general governmental expenditures," such as "corrections, health

care, and education," in determining the fisheries budget because

if these services were not provided "the commercial fishing

industry would either be inefficient or could not exist."  The

State further argues that these figures are tied to population

and economic growth in the sense that an increase in commercial

fishing leads to an increase in population, which results in a

corresponding growth in state expenditures on basic services.106

          Toomer v. Witsell, a United States Supreme Court case

on which the prior Carlson decisions rely, stated hypothetically

that a fee differential allowing the State to recover

conservation expenditures from taxes which only residents pay

would be permissible.107  Carlson I and Carlson II discussed

allowing a fee differential to "equalize the economic burden of

fisheries management."108  Neither conservation expenditures nor

fisheries management is as expansive as the general governmental

expenditures that the State contends should be included in the

fisheries budget.  Judge Michalski noted that "the laws that

relate to a particular case or the laws of the state are not

necessarily the same as the economic laws and the rules that

apply to things."  While in economic terms the State may bear

much of the cost of government generated by the fishing industry,

this does not translate into a legal justification for including

these costs in the fisheries expenditures.

          There is clear precedent against including the general

costs of government in any fee differential for nonresidents as

part of a compensatory tax scheme.  Citing Oregon Waste Systems,

Fulton noted "the danger of treating general revenue measures as

relevant intrastate burdens for purposes of the compensatory tax

doctrine."109  And Camps Newfound described Chemical Waste as

holding that "special fees assessed on nonresidents directly by

the State when they attempt to use local services impose an

impermissible burden on interstate commerce."110  The Supreme

Court, rejecting the State's claim that its surcharge on out-of-

state garbage was compensatory in nature, stated in Oregon Waste

Systems that

          permitting discriminatory taxes on interstate
          commerce to compensate for charges
          purportedly included in general forms of
          intrastate taxation "would allow a state to
          tax interstate commerce more heavily than
          in_state commerce anytime the entities
          involved in interstate commerce happened to
          use facilities supported by general state tax
          funds."  We decline respondents' invitation
          to open such an expansive loophole in our
          carefully confined compensatory tax
          jurisprudence."[111]
          
          Nonresident commercial fishers may be expected to

reimburse the State for a share of the costs of fisheries

management.  But to include general governmental costs in the

manner in which the State suggests would expand the scope of the

fisheries budget beyond the bounds of constitutionality.

                              c.   Capital costs directly
                    supporting the commercial fishing industry
                    can be included in the fisheries budget.
                    
          The State claims that both those capital expenditures

that directly support the commercial fishing industry and general

capital expenditures driven by population growth should be

included in the fisheries budget.  Judge Michalski rejected the

inclusion of all capital costs in the fisheries budget, and the

State has appealed.

          The general capital expenditures are rejected for the

reasons given in the previous section.  As for the capital

expenditures directly related to the commercial fishing industry,

such as for boat harbors and salmon hatcheries, those costs

should be included in the fisheries budget to the extent that

they are not already included in the direct operating

expenditures.  These direct capital expenditures are a clearly

identifiable result of the costs of fisheries management and as

such justify the contribution of nonresidents to their payment

thereof.  Because the superior court rejected outright the

inclusion of all capital costs, no differentiation was made

between general capital costs and those directly supporting the

commercial fishing industry.  Such a determination will be

necessary upon remand.  If these costs are already included in

the direct operating expenditures, the State will not be allowed

to count them twice.

                              d.   The hatchery loan fund subsidy
                    should be included in the fisheries
                    expenditures.
                    
          The State operates a revolving loan fund to support

investments in developing and operating fish hatcheries and other

fish enhancement projects.  The legislature created the Fishing

Enhancement Revolving Loan Fund in 1977 to provide loans with

favorable interest rates and repayment terms to private fishing

corporations.  By subtracting the present value of the future

loan returns from the amount presently loaned, the State's expert

was able to calculate what he considered a subsidy for the

hatchery loan fund.  However, testimony also was given that the

funds collected in loan repayments do not go into the general

fund but rather are used for new loans.  Judge Michalski held

that the supposed deficit incurred by the hatcheries loan fund

was not a budgetary item "within the meaning of Carlson II" and

thus could not be included in the fisheries expenditures for the

purpose of determining nonresident contributions.

          The State contends that the loan subsidy represents

forgone revenues that the State could otherwise spend at present

value.  We agree.  The hatcheries loan fund certainly benefits

the commercial fishing industry.  As such, it can be included in

the costs of maintaining commercial fisheries.  The State's

expert at trial calculated the cost to the State attributed to

the hatcheries loan fund to be approximately $2.3 million for

1996.  Because there appears to be some confusion as to whether

the State is presently transferring any funds to the hatcheries

loan fund and because the superior court did not make a ruling on

what this amount would be, we remand on this issue for a

determination of the yearly amount expended by the State to

support this program.  As with the capital costs, the expenditure

for the hatcheries loan fund must not already have been included

in the direct operating expenditures.

                              e.   Forgone revenues from
                    commercial fishery resources cannot be
                    included in the fisheries expenditures.
                    
          The State argues that because Alaska has the authority

to manage its fish resources and could manage them in a way that

is more profitable than the current method of fish management, it

incurs an opportunity cost that should be included in the

fisheries expenditures.  The State cites a District of Columbia

Circuit case in which the court remanded for consideration of

whether a city could include "the value [the City] could have

obtained in the best alternative use" in its calculation of the

fair market value of the airfield land for the purpose of

calculating user airplane landing fees.112  That same court also

held that opportunity costs can be used in setting utility rates.113

Both of these property or energy rate value assessments, however,

are fundamentally different from the State making a policy

decision to allocate and utilize its resources in a particular

way.  The State has consciously chosen the manner in which it

manages its fish, and has therefore decided to forgo any revenues

that could be obtained from alternate forms of management.  The

State cannot recoup from nonresidents the possible revenue it

forgoes in making policy decisions regarding its fisheries

management.  We therefore affirm the holding of Judge Michalski

to exclude forgone revenues from the cost of commercial fisheries

management.

          2.   What can be included in oil revenues?

          The class argues that the trial court erred by

including interest income deposited into state savings accounts

as a part of oil revenues.  The class contends that because

nonresidents do not benefit from deposits into the permanent fund

and the constitutional budget reserve, those amounts should not

be included in the calculation of oil revenues.  However, because

the class proposes including deposits into the permanent fund and

the constitutional budget reserve in the figure for the total

state budget, by which the oil revenues would be divided, its

recommended calculation of the percentage of the state budget

derived from oil revenues is clearly unworkable.  One cannot

exclude deposits into state savings accounts from the numerator

of the formula determining the percentage of the state budget

that is derived from oil revenues but include such deposits in

the denominator, as this would inappropriately and dramatically

reduce the percentage of the state budget derived from oil

revenues.114  Apples must be divided by apples, not oranges.

          The class alternately proposes that investment earnings

be removed from both the oil revenues and the total state budget

expenditures by which the oil revenues are divided to determine

the percentage of the budget funded by oil revenues.  The class

supports its position by noting that we have previously relied

upon budget figures that included a variety of petroleum taxes,

royalties, and rents, but not any interest income, in determining

petroleum-related income.115  Furthermore, the State, in its bi-

yearly Revenue Source Book, uses this methodology in determining

the percentage of unrestricted petroleum revenue as compared to

unrestricted general funds.116

          The State counters by arguing that because the source

of the funds that generates the interest income is ultimately

petroleum-derived, it should be included in the oil revenues

component.  It should not matter, the State contends, how these

funds are spent, only how they are derived, even if the

expenditure of the funds is of no benefit to nonresidents.  The

State proceeds to demonstrate how the 74% figure was calculated

by including the petroleum-derived revenues deposited in state

savings accounts in both the numerator and denominator of the

percentage of the state budget derived from oil revenues.

          Judge Michalski accepted the State's methodology for

calculating the  percentage of the state budget derived from oil

revenues, resulting in a figure of 74%. This calculation includes

the interest income and permanent fund expenditures in both the

numerator and the denominator.  As with the basic formula for

maximum allowable fee differential, there is no single correct

method by which to calculate the percentage of the state budget

derived from oil revenues.  The key inquiry is that the

methodology adopted bear a reasonable relationship to the figure

to be calculated.  The decision of the superior court to adopt

the State's method of calculation is therefore reviewed for an

abuse of discretion.117  Because the State's methodology provides a

reasonable means for calculating the percentage of the state

budget derived from oil revenues, we find there to be no abuse of

discretion and accordingly affirm the superior court.

          C.   The State Has Previously Conceded that the Class
          Met the Protest Requirement.
          
          The class filed suit on June 22, 1984, questioning the

"legality of the State of Alaska's discriminatory fees for

nonresident commercial fishing permits and licenses." The class

on behalf of which the suit was filed was defined as "all persons

who participated in one or more Alaska commercial fisheries at

any time who paid nonresident assessments to [the] State for

commercial or gear licenses or permits."  On December 10, 1984,

the State entered its nonopposition to certification of the case

as a class action, though it did reserve the right to request

that the class be divided into subclasses.  On December 13, 1984,

Superior Court Judge Milton M. Souter entered an order certifying

the class.  A later motion to decertify the class was denied by

Judge Michalski on July 17, 1998.  Judge Michalski held that the

elements of numerosity, commonality, typicality, and adequacy of

representation existed to justify continued certification of the

class.

          Alaska Statute 43.10.210(a) requires that in order for

a refund to be given on an illegal tax, the tax must have been

paid under protest.  We held in Carlson I that a license was a

tax within the meaning of the refund statute and that therefore

the protest requirement applied to the class.118  In Principal

Mutual Life Insurance Co. v. State, Division of Insurance, we

held that "[t]he protest requirement called for by AS

43.15.010(a)[119] serves . . . as proof that the payment of the tax

in question was involuntarily made and it provides notice to the

taxing authority that the tax is claimed to be illegal as well as

the basis of the taxpayer's assertion."120  A requirement of

protest provides the state with notice of more than mere

opposition to the tax - it provides the state with notice that it

may soon be facing a lawsuit to recover the allegedly illegal

amount.  Once on notice, the state can budget accordingly to

prepare for the possibility of losing at trial and being forced

to refund the disputed amount.121

          Judge Michalski held that the purpose of the notice

requirement was met by the certification of the class action

suit.  The certification of a lawsuit over allegedly illegal

taxes puts the state on notice that the taxes are being protested

and that future tax recovery may be subject to being refunded.

The State, however, argues that notice of named plaintiffs does

not translate into notice of the entire class of plaintiffs and

that at the very least the class should not be entitled to

retrospective relief.122  Judge Michalski held that the expansive

definition of the class as containing all fee-paying commercial

fishers gave the state sufficient notice of the potential scope

of the recovery.  Judge Michalski further held that the

certification of a class action suit obviated the need for

individual protest by each class member, reasoning that

"[r]equiring individual protest for each class member would do

nothing to further inform the state.  Instead, it would be merely

an exercise in formality and technicality."

          The State has long since conceded that, as to fees paid

after June 22, 1984,  the protest requirement was met by the

filing of the class action suit and that sufficient notice had

been given "for purposes of AS 43.10.210(a)."  In its reply brief

in the superior court, dated September 2, 1992, the State

asserted:

               Plaintiffs are wrong when they assert
          that the State has conceded the right to a
          refund of any unconstitutional fees paid
          after the date plaintiffs filed their
          lawsuit.  While this point is irrelevant to
          the issue immediately before the court, the
          State concedes only that the lawsuit serves
          as an adequate notice of protest for purposes
          of AS 43.10.210(a).  In other words, all fees
          paid after June 22, 1984, by nonresident
          commercial fishers who ultimately elect to
          join the class, in excess of fees paid by
          similarly situated resident commercial
          fishers, are deemed to have been paid under
          protest.  The protest requirement of AS
          43.10.210(a), however, is merely one
          precondition to the "[r]ecovery of
          overpayments and protested payments." [citing
          an earlier memorandum]  The State does not
          concede that plaintiffs have satisfied any
          other procedural or substantive requirements
          that may apply.[123]
This admission that the protest requirement had been met is

consistent with the State's earlier admissions that it was

provided with sufficient notice.  In an opposition to plaintiff's

motion for a preliminary injunction, dated February 19, 1991, the

State asserted that

          [w]ith regard to any nonresident

          differentials which have been received by the

          state since this class action was filed, the

          state views the lawsuit itself as a protest

          giving the state the contemplated notice.

          Thus, for any differentials received between

          now and the conclusion of this case, should

          any portion of those be determined to be

          invalid, plaintiffs can avail themselves of

          the statutory refund remedy identified by the

          supreme court to obtain damages.

          The State presently contends that prior to Judge

Michalski's ruling in 1998 it had no reason to believe that it

would be required to pay a refund and thus should not be required

to pay a refund retrospectively all the way back to 1984.

However, the purpose of the protest requirement, as stated above,

is to give the state notice that it may eventually be required to

pay a refund.124  The fact that the litigation may take a long time

to resolve and that the refund may thus grow increasingly large

does not absolve the State of its eventual responsibility to pay.

Thus, the only relevant question is whether the filing of a class

action gives the State sufficient notice that every member of the

class may be due a refund.125  We agree with Judge Michalski that

it does.

          The State cites Era Aviation in support of its claim

that a separate protest must be attached to each separate

complaint.126  Era Aviation involved a suit by several air carriers

to protest increased landing fees at rural airports.127  After the

original set of plaintiffs were granted summary judgment, a

different set of air carriers tried to join the suit and recover

fees retroactively.128  We held that the second set of air carriers

did not satisfy the necessary protest requirement at the time of

the payment of the fees, even though they had stated their

opposition to the landing fees on numerous occasions and even

though the suit by the original set of air carriers put the state

on notice that the fees might be illegal.129  As the State is

careful to point out, however, in Era Aviation we expressly

declined to answer the question whether a class action suit would

satisfy the protest requirement.130  Era Aviation is thus not

dispositive of the present situation.

          In a further attempt to prove that the protest

requirement would not be satisfied by a class action, the State

cites a series of cases where class status has been denied for

failure to satisfy the proper administrative procedures for

protest.131  These cases, however, are not applicable to the

present case, where the class has already been certified.  The

present class satisfied the necessary procedural hurdles, and the

State did not object to the certification of the class.

Furthermore, the State, because it was the entity issuing the

commercial fishing licenses and permits, had ample opportunity to

keep records of those to whom these licenses and permits were

being issued.  It is therefore disingenuous for the State to

claim that it was somehow caught unaware as to the ultimate size

of the class or the potential recovery.  For this reason, we

affirm the holding of Judge Michalski that the protest and notice

requirement was satisfied.

          As to the date from which the fees can be measured,

Judge Michalski selected December 13, 1984, which was the day the

class was certified.132  The class does not challenge the date of

certification as the date from which fees can be measured.  We

therefore affirm December 13, 1984 as the date from which fees

can be measured.

                    1.   Named class members can sue for tax
               relief on behalf of unnamed class members.
               
          Even if a class action suit constitutes notice, there

is a separate question as to whether the named class members can

sue on behalf of the unnamed class members without the unnamed

class members themselves protesting the increased nonresident

fees.  Judge Michalski held that the class was to be treated as a

unified legal entity and that therefore absent and non-protesting

(i.e., unnamed) class members could not be excluded from the

recovery of excess fees.  This is consistent with both Carlson I

and Carlson II, both of which speak of the class as a whole and

neither of which mentions the possibility that only the named

class members will be able to receive a refund.133

          The State asserts that named class members should not

be allowed to sue for unnamed class members because there are too

many variables that determine exactly what each nonresident

commercial fisher is to recover.  Because individual interests in

recovery are so unique, the State argues, only the individual

taxpayers should be allowed to sue for their own recovery.  The

State also cites two cases where class status was denied to a

taxpayer attempting to sue on behalf of a similarly situated

taxpayer who had not protested the tax.134

          These arguments would be appropriate in a motion to

decertify the class, but the State lost on its bid to decertify

the class and does not challenge that holding on appeal.

Instead, the State attempts to circumvent the class certification

issue by arguing that named class members cannot sue on behalf of

unnamed class members.  Yet, this is precisely the purpose of

forming a class in the first place.  Indeed, in Nolan v. Sea

Airmotive, Inc., we stated that one of the reasons for revising

Alaska Civil Rule 23, the rule for establishing class actions,

into its current form was "to end the `perverse anomaly' by which

there could `be such a thing as a class action that did not run

fully for or against the class.' "135  Class action suits, in which

the result for one becomes the result for many in the same legal

predicament, are necessary to avoid a multiplicity of duplicative

lawsuits.136  Requiring that each nonresident commercial fisher

file suit on his or her own behalf, which is what the State seems

to be advocating, would produce exactly that result.  Therefore,

Judge Michalski's decision that named class members may sue on

behalf of unnamed class members is affirmed.

                    2.   The State's "sovereign immunity" defense
               cannot first be raised at this late date and was
               outside the scope of remand.
               
          The State asserts that it "has not waived its sovereign

immunity" from class actions for fee refunds.  Although the State

frames its argument in terms of sovereign immunity, it is not

making a core sovereign immunity claim that the State is immune

from suit on a particular claim or issue.  Rather, the State

appears to be arguing that based on its interpretation of the

language of AS 43.10.210(a), plaintiffs are precluded from using

one particular means of seeking a tax refund - a class action.

Therefore, the State's argument addresses a question of statutory

interpretation of the requirements of AS 43.10.210(a), an

analysis which necessarily has some sovereign immunity overtones.

          We reject the State's argument that it has not waived

its "sovereign immunity" claim for two reasons.  First, the State

failed to raise this argument when the issue of the class's right

to a refund was being litigated in the trial court and before us

in the first appeal.  Prior to the appeal leading to Carlson I,

the class filed a cross-motion for partial summary judgment

seeking a declaration, in principle, that the class was entitled

to a refund.  The State opposed this cross-motion on several

grounds, but not on the ground that AS 43.10.210(a) did not allow

refund class actions.  After the trial court declined to grant

the class's motion, the class appealed the court's refusal to

rule that the class was entitled to a refund.  Again, the State

did not defend on the basis that the statute did not allow class

actions for refund claims.  We agreed with the class in Carlson I

that in principle it would be entitled to a refund if there were

unconstitutional discrimination, subject to the condition that

the statutory protest requirement had to be either satisfied or

waived.137  Thus, in Carlson I, the class prevailed on its argument

that it was entitled to a refund if unconstitutional

discrimination were found.  The State's failure to raise its

immunity argument before the superior court and before this court

at the time this issue was being litigated precludes the State

from raising this defense now.138

          Second, the State's defense is outside the scope of

Carlson II's remand.  The State maintains that its argument was

properly raised because it falls within Carlson II's remand order

that the superior court "decide whether the filing of this suit

constituted notice sufficient to comply with the protest

requirement of AS 43.10.210(a)[.]"139  The State's argument,

however, does not address the adequacy of notice or protest.

Rather, what the State argues is that the word "taxpayer" in AS

43.10.210(a) does not include a class and that therefore the

statute does not permit a class to sue for a tax refund.   "When

an appellate court issues a specific mandate a trial court has no

authority to deviate from it."140  The State's defense could not

have fallen within the scope of Carlson II's remand because the

State did not argue it before the trial court prior to the final

judgment that led to Carlson II, nor did the State appeal on this

ground in Carlson II.

          Successive appeals should narrow the issues in a case,

not expand them.141  Other jurisdictions have explicitly ruled that

all matters that were or might have been determined in a former

appeal may not be presented in a subsequent appeal of the same

case.142  The basis for this rule is that "[j]udicial economy and

the parties' interests in the finality of judgments are in no way

furthered if parties are allowed to engage in piecemeal appeals."143

We have expressed a similar rule in the context of res judicata,

which involves subsequent suits rather than subsequent appeals.144

Because it could have been raised in earlier appeals but was not,

and because it therefore falls outside the scope of our specific

remand in Carlson II, we decline to address the State's

"sovereign immunity" defense that AS 43.10.210(a) does not permit

class actions for fee refunds.

          To the extent that the State is arguing that sovereign

immunity bars class actions in which the class includes taxpayers

who have not met the administrative prerequisite of providing

notice via protest, we have already addressed the issues of

protest, notice, and division of the class in this opinion.

Because the State conceded notice and protest, there was no need

for the trial court to address the "sovereign immunity" defense

in considering these arguments.  Moreover, we have already upheld

in this opinion the superior court's treatment of the class as a

unified legal entity.  Accordingly, we need not address the

State's argument in the context of absent class members' refund

claims.

          D.   The Class May Recover Prejudgment Interest on Any
          Refund that May Be Due.
          
          In Carlson II, we directed the superior court to

determine on remand whether prejudgment interest is due under AS

45.45.010.145  As the superior court correctly noted, AS 45.45.010

"merely sets the maximum rate of interest that may be charged."

Consequently, the superior court looked to related statutory

provisions to address the prejudgment interest issue.  The

superior court concluded that because Carlson I applied Title 43

as it relates to the allowable statute of limitations,146 Title 43

should also apply to the question of prejudgment interest. The

superior court reasoned that because AS 43.05.280 allows for

prejudgment interest for an overpayment of taxes, prejudgment

interest should be allowed in the present case.

          The State argues that while prejudgment interest is

allowed for taxes derived under Title 43, it is not allowed for

taxes derived under Title 16, which is the title authorizing the

commercial fishing fees.  Noting again the importance of

construing waivers of sovereign immunity strictly, the State

proceeds to discuss a wide range of cases holding that waivers of

sovereign immunity imposing monetary liability on the federal or

state government must be narrowly interpreted.147  We have

expressed similar sentiments, holding that "only the legislature

has the power to direct the assessment of interest against the

sovereign"148 and that "except where the constitution directs

otherwise, interest may not be assessed against the State except

where interest is specifically authorized by the legislature."149

However, we have also held that "it would be unduly technical to

deny [a claimant bringing suit against the state] interest based

on a mere matter of form."150  Furthermore, the Ninth Circuit

allowed prejudgment interest under the territorial predecessor to

AS 43.10.210(a).151

          The introductory language of AS 43.05.275, applied to

the present case in Carlson I,152 is fundamentally the same as the

introductory language at issue here in AS 43.05.280 in that both

apply to a tax under this title.  It is hard to imagine applying

section .275 and not section .280 to the present case even if one

interprets the latter more strictly than the former.  Alaska

Statute 43.05.280 applies to all overpayment of taxes under Title

43.153  This statutory section should therefore apply to the

provisions for recovery of overpayments laid out in AS 43.10.210.

Because AS 43.05.280 serves as the primary justification for

providing the class with a refund, the prejudgment interest

available under AS 43.10.210 in other actions extends to the

recovery of prejudgment interest for overpayment of commercial

fishing fees, even though these are ostensibly created under

Title 16.154

V.   CONCLUSION

          We have previously addressed the constitutionality of

charging nonresidents more than residents for commercial fishing

licenses and entry permits.  The class has failed to present any

valid arguments as to why we should reconsider this position.  We

therefore AFFIRM the formula adopted in Carlson II for

calculating the maximum allowable fee differential for

nonresidents.  We further AFFIRM the holding of the superior

court adopting the State's methodology for calculating direct and

indirect costs associated with fisheries management.  We AFFIRM

the exclusion of general government expenditures and forgone

revenues from fishing, but we REVERSE and REMAND on the issue of

the hatcheries loan fund subsidy, and we partially REMAND on the

issue of capital costs.  We conclude that the State has waived

its objection to the protest and notice requirement of AS

43.10.210(a), as well as a related sovereign immunity claim.  We

AFFIRM the decision of Judge Michalski that the refund applies to

unnamed class members.  Finally, we hold that the class may

recover prejudgment interest if it obtains a refund on remand.

_______________________________
1Carlson v. State, Commercial Fisheries Entry Comm'n (Carlson I),
798 P.2d 1269, 1270 (Alaska 1990).
2"Crewmember  fishing license" and "commercial  fishing  license"
are  used  interchangeably  in  AS  16.05.480  with  no  apparent
distinction  made between the two.  A "commercial  fisherman"  is
elsewhere defined to include crewmembers. AS 16.05.940(4).
3This  amount  is  to  be set by the Alaska Commercial  Fisheries
Entry  Commission.  AS 16.43.100(16) (authorizing  commission  to
"establish reasonable user fees for services").
4See generally AS 16.43.200-.225.
5The  relevant  sections of former 20 Alaska Administrative  Code
(AAC) 05.240(a)(1), (2), (4) (2002) provide:

                (a)   For  2001,  the  commission  will
          determine the annual fee for the issuance  or
          renewal  of  an  entry permit or  interim_use
          permit according to the following:
          
                (1)  the  resident annual fee  for  the
          issuance  or  renewal of an entry  permit  or
          interim_use  permit in a limited  fishery  is
          .25  percent  of the estimated value  of  the
          entry  permit,  rounded to  the  nearest  fee
          class  amount  established  in  (4)  of  this
          subsection;  the non_resident annual  fee  is
          three times this amount, as set out in (4) of
          this subsection; . . .
          
                (2)   the resident annual fee  for  the
          issuance or renewal of an interim_use  permit
          in an unlimited fishery is .25 percent of the
          estimated  average gross earnings per  permit
          in the most recent three years for which data
          are  available,  rounded to the  nearest  fee
          class  amount  established  in  (4)  of  this
          subsection;  the non_resident  fee  is  three
          times this amount, as set out in (4) of  this
          subsection;
          
               . . . .
          
                (4)   the  resident and non_resident annual  fees
are:

               FEE CLASS             ANNUAL FEE
                           Resident             Non_resident
                              I                         $250
               $750
                             II                          200
               600
                              III                        150
               450
                              IV                         100
               300
                              V                           50
               150
6See  AS  16.43.140(b) ("A permit is not required of a crewmember
or  other  person assisting in the operation of a  unit  of  gear
engaged in the commercial taking of fishery resources as long  as
the holder of the entry permit or the interim_use permit for that
particular  unit  of  gear is at all times present  and  actively
engaged  in the operation of the gear."); AS 16.05.480(a)  (2001)
("A   person  engaged  in  commercial  fishing  shall  obtain   a
commercial  fishing  license  and shall  retain  the  license  in
possession  and  readily available for inspection during  fishing
operations.   An entry permit or interim_use permit entitles  the
holder to participate as a gear operator in the fishery for which
the  permit is issued and to participate as a crewmember  in  any
fishery."); AS 16.05.940(4) (" `[C]ommercial fisherman' means  an
individual  who  fishes commercially for, takes, or  attempts  to
take fish, shellfish, or other fishery resources of the state  by
any  means, and includes every individual aboard a boat  operated
for  fishing purposes who participates directly or indirectly  in
the  taking  of these raw fishery products, whether participation
is  on  shares or as an employee or otherwise."); AS 16.05.940(5)
("  `[C]ommercial  fishing' means the  taking,  fishing  for,  or
possession  of  fish, shellfish, or other fishery resources  with
the  intent of disposing of them for profit, or by sale,  barter,
trade, or in commercial channels.").
7Carlson I, 798 P.2d at 1270.
8Id. at 1274-78.
9Id. at 1274 (quoting Supreme Court of Virginia v. Friedman,  487
U.S. 59, 64_65 (1988) (citations omitted)).
10Carlson I, 798 P.2d at 1274.
11Id.  at  1274-75 (quoting Toomer v. Witsell, 334 U.S. 385,  399
(1948)).
12Carlson I, 798 P.2d at 1276, 1278.
13Id. at 1277 (quoting Maine v. Taylor, 477 U.S. 131, 137 (1986)).
14Carlson I, 798 P.2d at 1277 (quoting Maine v. Taylor, 477  U.S.
at 138).
15414 A.2d 943 (N.J.), cert. denied, 449 U.S. 874 (1980).
16Carlson I, 798 P.2d at 1278.
17414 A.2d at 953.
18Carlson I, 798 P.2d at 1278.
19Id.
20Id.
21Id.
22Id.
23Id.  We made two other rulings in Carlson I:  We held that  the
Commercial  Fisheries Entry Commission was authorized by  statute
to  impose different commercial fishing fees, assuming  that  the
ratio  itself  was  constitutional.  Id.  at  1278-79.   We  also
remanded  on the issue of whether the protest requirement  in  AS
43.15.010(a) had been met.  Id. at 1279-80.  We further noted  on
this  issue that a two-year statute of limitations from the  time
the  tax  was paid governed instead of the six-year limit assumed
by the superior court.  Id. at 1280.
24Carlson  v.  State, Commercial Fisheries Entry Comm'n  (Carlson
II),  919  P.2d 1337 (Alaska 1996).  Certiorari was  subsequently
requested but denied.  519 U.S. 1101 (1997).
25Id. at 1340-42.
26Carlson II, 919 P.2d at 1340 (citing Oregon Waste Sys., Inc. v.
Dep't  of Envtl. Quality, 511 U.S. 93, 99 (1994); Chemical  Waste
Mgmt., Inc. v. Hunt, 504 U.S. 334, 340-41 (1992)).
27Carlson II, 919 P.2d at 1340 (citing Oregon Waste Sys., 511 U.S.
at 98).
28Carlson II, 919 P.2d at 1340.
29Id. at 1342-43.
30The  State  had advocated the following pro rata formula:  "(1)
calculate  the expenditures or costs of the commercial  fisheries
(enforcement  and conservation); (2) determine the  resident  and
nonresident  commercial fishers' respective pro  rata  shares  of
those  expenditures;  and  (3)  compare  the  percentage  of  its
respective pro rata share each group is paying."  Id. at 1343.
31A  similar  plan  was  rejected by the  Fourth  Circuit,  which
overturned a Virginia law that required all fishers to pay a  fee
determined by dividing the state costs of fishing funded  by  all
taxpayers by the number of fishers in the state, requiring  as  a
result  that  nonresident fishers pay an additional  $1,150  fee.
Tangier  Sound Waterman's Ass'n v. Pruitt, 4 F.3d 264,  268  (4th
Cir. 1993).
32Carlson II, 919 P.2d at 1343.
33Id. at 1344.
34Id.
35Id.
36Id.
37The statute provides:

                The Department of Administration shall,
          with the approval of the attorney general and
          the  Department  of  Revenue,  refund  to   a
          taxpayer  the  amount of a tax  paid  to  the
          Department  of  Revenue  under  protest   and
          deposited in the treasury if
          
                (1)   the  taxpayer  recovers  judgment
          against  the  Department of Revenue  for  the
          return of the tax; or
          
               (2)  in the absence of a judgment, it is
          obvious to the Department of Revenue that the
          taxpayer  would  obtain  judgment  if   legal
          proceedings were prosecuted by the taxpayer.
          
38Carlson II, 919 P.2d at 1344.
39780 P.2d 1023, 1030-31 (Alaska 1989).
40919 P.2d at 1344.
41798 P.2d at 1280.
42Tesoro Petroleum Corp. v. State, 42 P.3d 531, 535 (Alaska 2002);
Sampson v. State, 31 P.3d 88, 91 (Alaska 2001).
43State  v. Planned Parenthood of Alaska, 35 P.3d 30, 34  (Alaska
2001)  (quoting  Guin  v.  Ha, 591 P.2d 1281,  1284  n.6  (Alaska
1979)).
44See  Vezey v. Green, 35 P.3d 14, 19-20 (Alaska 2001) (citations
omitted) ("We review the trial court's findings of fact under the
clearly erroneous standard.  Under this standard, we will  reject
a factual finding only if we are `left with the definite and firm
conviction  on  the  entire  record  that  a  mistake  has   been
committed.'   In  addition, we have stated that `[w]hen  a  trial
court's   decision  of  a  factual  issue  depends   largely   on
conflicting oral testimony, the trial court's competence to judge
credibility  of  witnesses provides even  a  stronger  basis  for
deference  by  the  reviewing court.' "); see  also  Rockstad  v.
Global  Fin.  &  Inv. Co., Inc., 41 P.3d 583, 586  (Alaska  2002)
("[W]hen the trial court relies on extrinsic testimonial evidence
to  provide a factual basis for its interpretation of a contract,
we  apply the clearly erroneous standard in reviewing the court's
background findings of fact.").
45See Matanuska Elec. Ass'n, Inc. v. Rewire the Bd., 36 P.3d 685,
700-01  (Alaska  2001)  (noting that  use  of  clearly  erroneous
standard  of  review for factual findings in contempt proceedings
"is  consistent  with the deferential review used  by  courts  in
other jurisdictions").
46798 P.2d at 1274-78.
47919 P.2d at 1340-42.
48852 P.2d 1173, 1175 (Alaska 1993)  ("When a common law court is
asked  to  overrule one of its prior decisions, the principle  of
stare  decisis  is  implicated.  .  .  .  [S]tare  decisis  is  a
practical,   flexible  command  that  balances  our   community's
competing interests in the stability of legal norms and the  need
to adapt those norms to society's changing demands.").
49Id. at 1176 (quoting State v. Dunlop, 721 P.2d 604, 610 (Alaska
1986)).
50Pratt & Whitney Canada, 852 P.2d at 1176.
51Id.  (quoting Planned Parenthood v. Casey, 505  U.S.  833,  855
(1992)).
52Wolff  v.  Arctic Bowl, Inc., 560 P.2d 758, 763  (Alaska  1977)
("The   doctrine   of   the  law  of  the  case   prohibits   the
reconsideration  of  issues  which have  been  adjudicated  in  a
previous  appeal  in the same case.  Even issues  not  explicitly
discussed  in the first appellate opinion, but directly  involved
with or `necessarily inhering' in the decision will be considered
the  law  of the case.  This doctrine is akin to the doctrine  of
res  judicata,  in  that it requires that  a  final  judgment  be
rendered  with  respect  to  the  issues  at  hand.")  (citations
omitted).
53Patrick v. Sedwick, 413 P.2d 169, 173-74 (Alaska 1966).
54Alaska  Diversified Contractors, Inc. v. Lower  Kuskokwim  Sch.
Dist.,  778 P.2d 581, 583 (Alaska 1989).
55U.S. v. Hatter, 532 U.S. 557, 566 (2001) ("The law of the  case
doctrine presumes a hearing on the merits.").
56See  Pratt  & Whitney Canada, 852 P.2d at 1175 ("[N]o  judicial
system  could do society's work if it eyed each issue  afresh  in
every  case  that raised it.") (quoting  Planned Parenthood,  505
U.S. at 854).
57511 U.S. 93 (1994).
58516 U.S. 325 (1996).
59520 U.S. 564 (1997).
60The   State   further  argues  that  if  there  were   anything
questionable   about   the   constitutionality   of    the    fee
differentials, the United States Supreme Court could  have  taken
the  case  on  certiorari but refused to do so.   519  U.S.  1101
(1997).   However,  the  United States  Supreme  Court  can  deny
certiorari  for  a  variety  of reasons.   Therefore,  denial  of
certiorari should not be taken as a judgment on the merits of the
case.  See Bridgers v. Texas, 532 U.S. 1034 (2001).  It is easily
conceivable that the Court refused certiorari because Carlson  II
was  partially remanded and the Court wanted to wait to see  what
the final resolution of that case would be.
61The  class asserts that the law of the case doctrine  is  meant
primarily as a restraint on trial courts.  While this may be  one
of  the  functions, it is certainly not the exclusive purpose  of
the doctrine.
62See  Smith  v. Cleary, 24 P.3d 1245, 1248 (Alaska  2001)  ("The
doctrine  of  the law of the case is a matter of judicial  policy
and  describes  `the practice of courts generally  to  refuse  to
reopen what has been decided,' but does not limit their power  to
do  so.") (quoting West v. Buchanan, 981 P.2d 1065, 1067  (Alaska
1999)) (citations omitted).
63See Smith, 24 P.3d at 1248 ("[T]he policy against reconsidering
issues adjudicated in a prior appeal or issues `directly involved
with or necessarily inhering' in a prior decision applies only if
there has been `a final judgment . . . with respect to the issues
at hand.' ") (citations omitted); Brandon v. State, 839 P.2d 400,
403-04  (Alaska App. 1992) ("The doctrine of the law of the  case
prohibits  the  reconsideration of issues  that  this  court  has
adjudicated in a previous appeal in the same case.").
64516 U.S. 325 (1996).
65Id. at 327.
66Id. at 328.
67Id.
68Id. at 346.
69Id.  at  330  ("In  its negative aspect,  the  Commerce  Clause
prohibits  economic protectionism - that is, regulatory  measures
designed  to  benefit  in_state economic interests  by  burdening
out_of_state competitors.") (internal quotations omitted).
70Id. at 331 ("In evaluating state regulatory measures under  the
dormant Commerce Clause, we have held that the first step .  .  .
is  to  determine  whether it regulates  evenhandedly  with  only
incidental  effects  on  interstate  commerce,  or  discriminates
against  interstate commerce.") (quoting Oregon Waste Sys.,  Inc.
v.  Dep't  of  Envtl. Quality, 511 U.S. 93, 99  (1994)  (internal
quotations and citation omitted)).
71Fulton, 516 U.S. at 331 ("[A] facially discriminatory  tax  may
still   survive  Commerce  Clause  scrutiny  if  it  is  a  truly
compensatory tax designed simply to make interstate commerce bear
a  burden  already  borne  by  intrastate  commerce.")  (internal
quotations and citation omitted).
72Id.  at  333.   The Court, however, found that  none  of  these
conditions  was  satisfied by North Carolina's  intangibles  tax.
Id.  at  333-44.   North Carolina attempted  to  argue  that  the
intangibles  tax  "compensates for  the  burden  of  the  general
corporate income tax paid by corporations doing business in North
Carolina." Id. at 334.  North Carolina further argued that one of
the services supported through a general corporate income tax "is
the  maintenance of a capital market for corporations wishing  to
sell  stock to North Carolina residents."  Id. at 335.  The Court
found this argument to be "unconvincing."  Id.  Drawing on Oregon
Waste  Systems,  the Court found the use of a tax  on  interstate
commerce  to compensate for general revenues to be an  "expansive
loophole."   Id.  (quoting Oregon Waste Sys., Inc.  v.  Dep't  of
Envtl.  Quality,  511  U.S.  93,  105  n.8  (1994)).   The  Court
proceeded  to reject the specific application of the  intangibles
tax  because of doubts that North Carolina used the tax  proceeds
to maintain an intrastate capital market, and the state's failure
to  detail  the proportion of the corporate income  tax  used  to
support  the  capital  market, as well as a lack  of  equivalence
between  out-of-state  corporations  and  resident  shareholders.
Fulton, 516 U.S. at 336-40.
73Chemical Waste Mgmt., Inc. v. Hunt, 504 U.S. 334 (1992).
74919 P.2d at 1340.
75Id. at 1340-41.  The Privileges and Immunities Clause does allow
for nonresidents to be taxed on their business enterprises within
a state.  See Shaffer v. Carter, 252 U.S. 37, 52-53 (1920) ("That
a  state,  consistently  with the federal Constitution,  may  not
prohibit the citizens of other states from carrying on legitimate
business  within its borders like its own citizens, of course  is
granted; but it does not follow that the business of nonresidents
may  not be required to make a ratable contribution in taxes  for
the  support of the government.  On the contrary, the  very  fact
that  a  citizen of one state has the right to hold  property  or
carry  on  an  occupation  or  business  in  another  is  a  very
reasonable  ground for subjecting such nonresident, although  not
personally,  yet  to  the extent of his  property  held,  or  his
occupation or business carried on therein, to a duty to pay taxes
not  more  onerous  in  effect  than  those  imposed  under  like
circumstances upon citizens of the latter state.").
76Fulton, 516 U.S. at 327-28.
77Carlson II, 919 P.2d at 1340.
78Even if we were to reach this issue, the fee differential would
fall  under  the  exception listed in Fulton whereby  states  can
impose  a  facially  discriminatory tax as long  as  it  "make[s]
interstate  commerce  bear a burden already borne  by  intrastate
commerce."  516  U.S.  at  331.  We reached  this  conclusion  in
Carlson  I,  where  we stated that "the state  may  equalize  the
economic  burden  of  fisheries management; where  residents  pay
proportionately   more   by  way  of   foregone   benefits   than
nonresidents  for  fisheries  management,  nonresidents  may   be
charged  higher  fees to make up the difference."   798  P.2d  at
1278.  We affirmed this decision in Carlson II. 919 P.2d at 1341-
42.   Furthermore, the fee differential satisfies the  three-part
test   laid   out  in  Fulton:   (1)  the  fee  differential   is
compensating for a clearly defined intrastate burden; (2) the fee
differential is limited such that it does not exceed  the  burden
borne  by state residents; and (3) the event being taxed,  namely
the license to use state fisheries, is the same for residents and
nonresidents.  See Fulton, 516 U.S. at 333; Carlson II, 919  P.2d
at 1342-44.  Therefore, even if the fee differential were held to
bear  on  interstate commerce, it would fall  under  one  of  the
exceptions to the negative Commerce Clause.
79520 U.S. 564 (1997).
80Id. at 568-95.
81Id. at 572.
82Id. at 573.
83Id. at 573.
84Id. at 576-77; see also Hughes v. Oklahoma, 441 U.S. 322, 337-38
(1979)  (striking down as violation of Commerce  Clause  Oklahoma
law  that  placed no limits on number of minnows  that  could  be
caught  and  used  within state but prohibited transportation  of
minnows  out  of  state  for sale because regulation  of  natural
resources does not allow state to circumvent Commerce Clause).
85Camps Newfound, 520 U.S. at 576.
86455 U.S. 331, 338 (1982).
87Camps Newfound, 520 U.S. at 576.
88Id. at 577.
89Id. at 578.
90Oregon  Waste  Systems v. Department of  Environmental  Quality
specifically  distinguishes the situation in that case,  where  a
higher  fee  was  charged for the disposal of out-of-state  waste
than for in-state waste even though the cost of disposal of waste
was  the  same  no matter where the waste was generated,  from  a
situation  such  as  the  present  one  where,  absent  a  higher
nonresident  fee,  the  use  of the fisheries  and  the  cost  of
maintaining  them  imposes a higher cost  on  residents  than  on
nonresidents.  511 U.S. 93, 101 (1994).  Because the present case
is  properly  analyzed as a Privileges and Immunities  case,  the
primary  concern  is  "to  insure to a citizen  of  State  A  who
ventures  into State B the same privileges which the citizens  of
State  B  enjoy."  Toomer v. Witsell, 334 U.S. 385,  395  (1948).
While  nonresidents  cannot be disadvantaged  by  their  movement
across  state lines, there is nothing requiring that they benefit
by  such movement either.  Nonresidents can therefore be required
to  compensate  the  state  for the  state  resources  they  use.
Complete  Auto Transit, Inc. v. Brady, 430 U.S. 274,  281  (1977)
("[T]he   Court  consistently  has  indicated  that   `interstate
commerce  may  be made to pay its way,' and has  moved  toward  a
standard  of  permissibility of state  taxation  based  upon  its
actual  effect rather than its legal terminology.").  The holding
in  Carlson II accomplishes this by limiting the fee differential
to  the per capita resident contribution. Carlson II, 919 P.2d at
1343.
91919 P.2d at 1342.
92Id. at 1343.
93Id. at 1344.
94Mulaney  v. Anderson, 342 U.S. 415, 418 (1952).   It  is  worth
noting  in  passing  that  a  multitude  of  other  states  allow
nonresident  commercial fishers to be charged  higher  fees  than
resident commercial fishers without any apparent reliance upon  a
formula  to  calculate the allowable fee differential.   Delaware
charges  $150 for a resident commercial food fishing license  and
$1,500 for a comparable nonresident license. Del. Code Ann.  tit.
7,   914  (2001).  Florida requires residents to pay  $50  for  a
saltwater products license for an individual and $100 for a boat.
Nonresidents are required to pay twice these amounts.  Fla. Stat.
370.06(2)(a)  (West 2001).  Georgia charges $12  for  a  resident
commercial fishing or crabbing license and $118 for a nonresident
fishing  or  crabbing license.  Ga. Code  27-2-23 (2001).   Maine
establishes a fee of $89 for a commercial fishing license  for  a
resident  operator and all crewmembers and $334 for a  commercial
fishing  license for a nonresident operator and all  crewmembers.
Me.  Rev.  Stat.  Ann.  tit.  12,  6501  (West  2001).   Michigan
charges nonresidents five times the amount charged a resident for
the  same license. Mich. Comp. Laws ANN.  324.47330 (West  2001).
For   commercial   eel  fishing  licenses  New   Jersey   charges
nonresidents the greater of the New Jersey fee or the amount that
the  nonresident  would pay in their state  of  residence.   N.J.
Stat.   Ann.   23:3-72  (West  2001).   In  Oregon,  a   resident
commercial fishing license costs $50 and a nonresident commercial
fishing  license  costs  $100.  Or. Rev. Stat.   508.285(d),  (e)
(2001).   South  Carolina  charges nonresidents  five  times  the
amount it charges residents for a variety of commercial equipment
licenses.   S.C.  Code Ann.  50-5-325 (Law  Co-op  2001).   Texas
charges  nonresidents  $100 for a general commercial  fisherman's
license as compared to $15 for residents and $125 as compared  to
$65 for a commercial finfish fisherman's license.  Tex. Parks and
Wild. Code Ann.  47.002-03 (Vernon 2001).
95919 P.2d at 1342-43.
96See Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287, 297
(1998)  ("[A]s a practical matter, the Privileges and  Immunities
Clause  affords  no  assurance of precise  equality  in  taxation
between  residents and nonresidents of a particular State.   Some
differences  may  be inherent in any taxing scheme,  given  that,
`[l]ike many other constitutional provisions, the privileges  and
immunities  clause  is  not an absolute,'  and  that  `[a]bsolute
equality   is   impracticable  in   taxation.'    Because   state
legislatures  must  draw some distinctions  in  light  of  `local
needs,'  they  have  considerable discretion in  formulating  tax
policy.  Thus, `where the question is whether a state taxing  law
contravenes  rights  secured by [the federal  Constitution],  the
decision  must  depend  not  upon  any  mere  question  of  form,
construction, or definition, but upon the practical operation and
effect  of  the tax imposed.' " (citations omitted)); Maxwell  v.
Bugbee, 250 U.S. 525, 543 (1919) ("[I]nequalities that result not
from hostile discrimination, but occasionally and incidentally in
the  application  of  a  system that  is  not  arbitrary  in  its
classification, are not sufficient to defeat the law."); see also
Shaffer  v. Carter, 252 U.S. 37, 55 (1920) ("[W]here the question
is  whether a state taxing law contravenes rights secured by that
instrument,  the decision must depend not upon any mere  question
of  form,  construction, or definition, but  upon  the  practical
operation and effect of the tax imposed."); Travelers'  Ins.  Co.
v.  Connecticut, 185 U.S. 364, 371 (1902) ("It is enough that the
state  has  secured a reasonably[] fair distribution of  burdens,
and  that  no  intentional discrimination has been  made  against
nonresidents.").
97See Breck v. Moore, 910 P.2d 599, 606 (Alaska 1996) ("This court
reviews  an  award  of  damages for an abuse  of  discretion  and
independently reviews the law applied by the trial court.").
98See  Tangier Sound Waterman's Ass'n v. Pruitt, 4 F.3d 264,  267
(4th  Cir.  1993)  ("[T]he  record does  not  disclose  that  the
Commonwealth  of Virginia has shown that it created any  credible
method  of allocating costs as between residents and nonresidents
which  places  the burden equally or approximately  equally  upon
residents and nonresidents.").
99The class at trial did raise some objections to the way in which
the  State calculated indirect expenditures, mostly having to  do
with   a  blurring  of  the  line  between  direct  and  indirect
expenditures.   On  its cross-appeal, the class  seems  satisfied
with  the  stipulated indirect expenditures in  the  findings  of
fact.  However, if the amount of direct fisheries expenditures is
adjusted,  the  indirect expenditures will have  to  be  adjusted
accordingly.
100Carlson I, 798 P.2d at 1278; Carlson II, 919 P.2d at 1342-43.
101See  Moody v. Delta Western, Inc., 38 P.3d 1139, 1140  (Alaska
2002) (holding that in question of law that is coming to court as
case of first impression, de novo standard of review is applied).
102Carlson I, 798 P.2d at 1278.
103See  State  v. Northwestern Constr., Inc., 741 P.2d  235,  240
(Alaska 1987) (allowing inclusion of overhead costs in breach  of
contract suit against state).
104As  the  class  notes, the State in Carlson I identified  four
sources  as  the "aggregate cost of fisheries management"  -  the
annual  operating  budget  of  the  Commercial  Fisheries   Entry
Commission,  40.6%  of  the  annual  operating  budget   of   the
Department of Public Safety, the annual operating budget  of  the
Division  of Commercial Fisheries of the Department of  Fish  and
Game,   and   the  annual  operating  budget  of  the   Fisheries
Rehabilitation  Enhancement  and  Development  Division  of   the
Department  of Fish and Game.  798 P.2d at 1272.  In Carlson  II,
the  State similarly provided a chart in defense of its  proposed
pro  rata  formula  listing "Expenditures By  Four  Agencies  For
Commercial  Fishery Management."  919 P.2d at 1346.   This  chart
goes  from  1982 to 1989 and ranges from $29.0 million  to  $34.8
million;  the amount in 1989 was $29.9 million.  Id.   The  State
presently seeks to include in the direct operating costs expenses
beyond those limited to the four agencies it previously advanced.
However,  in the previous iterations of this case, the State  did
not  have  the  benefit  of  knowing the  formula  by  which  the
allowable  fee differential is to be calculated.  Therefore,  the
State  was  justified in offering a different definition  of  the
fisheries budget than the one under which it previously  operated
since this earlier definition had effectively been rendered moot.
Judge  Michalski was consequently not in error to hear  arguments
on this matter.
105For  example, the second largest single expense for the direct
operating  costs is that of the "shared fish taxes."   The  class
argues that these funds should not be counted as revenues because
they  are  provided to local municipalities to defray  fisheries-
related  impacts.  The State responds that the revenue  from  the
taxes  goes to the general fund and is only then appropriated  to
municipalities.  Judge Michalski did not rule explicitly on  this
issue.   We  hold that there is no difference between the  shared
fish  taxes and other components of the fisheries budget.   Judge
Michalski  accepted  in whole the State's  determination  of  the
direct  operating expenditures, which included  the  shared  fish
taxes.    While  testimony  was  offered  that  the   taxes   are
essentially  just  a  bookkeeping maneuver, it  was  not  clearly
erroneous for Judge Michalski to find them otherwise.
106The  State  and the class disagree as to the admissibility  of
expert  testimony on the issue of the inclusion or  exclusion  of
general   governmental  expenditures  in  the   total   fisheries
expenditures; this, however, is a question of law and  thus  does
not  turn  on  expert testimony.  We therefore need  not  address
their dispute.

107334 U.S. 385, 399 (1948).
108Carlson I, 798 P.2d at 1278; see also Carlson II, 919 P.2d  at
1342.
109Fulton Corp. v. Faulkner, 516 U.S. 325, 335 (1996).
110Camps Newfound/Owatonna, Inc. v. Town of Harrison, Maine,  520
U.S.  564, 578 (1997) (citing Chemical Waste Mgmt., Inc. v. Hunt,
504 U.S. 334, 342 (1992)).
111Oregon Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93,
105  n.8  (quoting Gov't Suppliers Consolidating Servs., Inc.  v.
Bayh, 975 F.2d 1267, 1284 (7th Cir. 1992)).
112City of Los Angeles Dep't of Airports v. United States Dep't of
Transp., 103 F.3d 1027, 1034 (D.C. Cir. 1997).
113See Pa. Elec. Co. v. F.E.R.C., 11 F.3d 207, 209-10 (D.C.  Cir.
1993).
114The class approach yields a figure of 29.7%, far less than the
74% adopted by Judge Michalski.
115Trustees for Alaska v. State, Dep't of Natural Res., 795  P.2d
805, 810 (Alaska 1990).
116This calculation yields the 86% figure previously relied upon by
this court in Trustees for Alaska.  795 P.2d at 810.
117See  Seattle Master Builders Ass'n v. Pacific Northwest  Elec.
Power  & Conservation Planning Council, 786 F.2d 1359, 1370  (9th
Cir.  1986)  ("The  choice of methodology is a  highly  technical
question  which falls within the unique expertise of the Council.
Unless  an  abuse of discretion is demonstrated, this court  will
not substitute its judgment on particular testing methodology.");
United  States Steel Group_A Unit of USX Corp. v. United  States,
873 F. Supp. 673, 700 (Ct. Int'l Trade 1994) (holding that choice
of methodology by trade commission was subject to review by abuse
of  discretion standard); see also Dansereau v. Ulmer,  955  P.2d
916, 919 (Alaska 1998) (holding that superior court did not abuse
its  discretion in adopting particular methodology  to  calculate
number  of  hours  litigants' attorneys  worked  for  purpose  of
determining  award of attorney's fees); Gallant v.  Gallant,  882
P.2d  1252, 1257 (Alaska 1994) (reviewing for abuse of discretion
allocation  of child support in novel case involving  nonparental
custody).
118798 P.2d at 1280.
119The statute has subsequently been renumbered as AS 43.10.210(a).
120780 P.2d 1023, 1030 (Alaska 1989).
121Id. at 1030-31 ("The burden of requiring a taxpayer to file  a
protest at the time of payment of the tax is at most minimal.  On
the  other hand the requirement of a protest serves the important
function of providing state government with notice of the claimed
tax  illegality, the grounds advanced in support of  the  claimed
illegality,  and  affords the state the  opportunity  to  fashion
budget  appropriations, or expenditures, taking into account  the
magnitude  of  the claimed tax illegality.  We  think  these  are
significant  considerations which warrant the  retention  of  the
requirement of a protest.").
122The State asserts that an early superior court argument created
an estoppel argument against retroactive fees.  The protest issue
of this superior court opinion, however, was remanded for further
inquiry in Carlson I, albeit without specifically addressing  the
estoppel argument alluded to by the superior court. 798  P.2d  at
1280.
123This statement was given in a reply brief opposing waiver of the
protest  issue.  The State made a similar statement on  March  1,
1991 in a memorandum in support of a motion for summary judgment:
"The  state does not dispute here that the differential  paid  by
nonresidents to engage in commercial fishing since the date  that
this  class action was filed, June 22, 1984, have been paid under
protest."
124See Principal Mutual Life Ins., 780 P.2d at 1030-31.
125The class argues that federal due process prevents the denial of
retroactive  tax  recovery under McKesson Corp.  v.  Division  of
Alcoholic  Beverages  &  Tobacco, 496 U.S.  18,  39  (1990)  ("To
satisfy the requirements of the Due Process Clause, therefore, in
this  refund  action the State must provide taxpayers  with,  not
only  a  fair  opportunity to challenge the  accuracy  and  legal
validity  of their tax obligation, but also a `clear and  certain
remedy,'  for any erroneous or unlawful tax collection to  ensure
that  the  opportunity to contest the tax is a meaningful  one.")
(citations  omitted).   In McKesson, the  United  States  Supreme
Court  ordered  that a refund be given for an  illegal  tax  even
though  Florida  claimed  this  would  cause  the  state  serious
economic  injury.   496 U.S. at 51 n.35 ("We reject  respondents'
intimation  that the cost of any refund considered by  the  State
might justify a decision to withhold it.  Just as a State may not
object  to an otherwise available remedy providing for the return
of  real  property unlawfully taken or criminal fines  unlawfully
imposed simply because it finds the property or moneys useful, so
also  Florida cannot object to a refund here just because it  has
other  ideas  about how to spend the funds.").  The  class  errs,
however,  when  it  invokes  Harper  v.  Virginia  Department  of
Taxation. 509 U.S. 86, 97 (1989) (holding that federal remedy for
unlawful  tax  applies  not only to case at  issue  but  also  to
parties in all other open cases).  In the present case, the class
either  exists  as a whole or it does not exist at  all  for  the
purposes  of  the protest requirement.  There are thus  no  other
open cases to which a due process concern could apply.
126Era Aviation, Inc. v. Campbell, 915 P.2d 606, 609 (Alaska 1996)
("[U]nder common law as well as under statute, a protest  at  the
time  of  payment  is  a prerequisite for an  action  to  recover
taxes.").
127Id. at 607.  The original plaintiffs did not form a class.
128Id. at 607-08.
129Id. at 612.
130Id.  at  612-13  (noting  that state's  ability  to  determine
accurately  its  potential liability for fee  refunds  "would  be
undermined  if  a  single lawsuit (which was  not  even  a  class
action)  were  deemed sufficient notice to make all payers  under
the regulation eligible for refunds").
131Aronson  v. City of Pittsburgh, 510 A.2d 871, 873 (Pa.  Commw.
1986);   Aronson  v.  Commonwealth, 516 N.E.2d  137,  144  (Mass.
1987).
132The  class action suit was filed on June 22, 1984.  In Carlson
II, we held that "the record indicates that the State agrees that
those  fees which were paid after June 22, 1984, were paid  under
protest  sufficient to permit a refund under AS 43.10.210."   919
P.2d  at  1344.   As  noted above, the State several  times  also
stated that the protest requirement was met as of June 22,  1984.
These prior statements, however, do not require us to reverse the
decision  of  the  superior court, which  was  not  an  abuse  of
discretion.
133See Carlson I, 798 P.2d at 1279-80; Carlson II, 919 P.2d at 1343-
45.
134Hooks  v.  Comptroller of Treasury, 289 A.2d 332, 333-34  (Md.
1972);  Edisto Fleets, Inc. v. S.C. Tax Comm'n, 182  S.E.2d  713,
714 (S.C. 1971).
135627 P.2d 1035, 1044 (Alaska 1981) (quoting Benjamin Kaplan, "The
Continuing  Work of the Civil Committee: 1966 Amendments  of  the
Federal  Rules  of Civil Procedure," 81 Harv. L.  Rev.  356,  386
(1967)).   We therefore struck down a statutory requirement  that
an  individual be named in a wage and hour suit in order for  the
statute  of limitations to be tolled.  627 P.2d at 1046-47.   The
class   correctly  notes  that  AS  43.10.210  does  not  require
prospective class members to opt into the class.
136Nolan, 627 P.2d at 1044 ("These policies implicate the questions
of  when joinder of parties and claims should be allowed, and the
proper procedure for handling cases in which numerous parties  or
claims  are  involved.  Absent an ability to  provide  for  these
matters  by  appropriate rules of procedure, it is possible  that
vast  amounts of judicial, administrative, and private  resources
would be wasted.").
137Carlson I, 798 P.2d at 1279-80.
138Cf. Univ. of Alaska v. Simpson Bldg. Supply Co., 530 P.2d 1317,
1323-24 (Alaska 1975).
139Carlson II, 919 P.2d at 1344.
140Gaudiane v. Lundgren, 754 P.2d 742, 744 (Alaska 1988)  (citing
King  v. Alaska State Hous. Auth., 571 P.2d 1010, 1011-12 (Alaska
1977)).
141Cf. Watts v. Seward Sch. Bd., 421 P.2d 586, 618 (Alaska  1966)
(Rabinowitz,  J.,  dissenting in part and  concurring  in  part),
vacated,  391 U.S. 592 (1968) (explaining that law  of  the  case
doctrine,  which  prohibits reconsideration of issues  that  have
been  explicitly  or inherently adjudicated in  previous  appeal,
promotes  judicial  economy  by "narrowing  down  the  issues  in
successive  stages  of  litigation"); Hudson  v,  Wakefield,  711
S.W.2d  628,  630  (Tex.  1986)  ("By  narrowing  the  issues  in
successive stages of the litigation, the law of the case doctrine
is intended to achieve uniformity of decision as well as judicial
economy and efficiency.").
142E.g., MacKay v. Hardy, 973 P.2d 941, 947 (Utah 1998); Penrich,
Inc. v. Sullivan, 669 A.2d 1363, 1367 (N.H. 1995); Hartford Nat'l
Bank & Trust Co. v. Tucker, 487 A.2d 528, 530 (Conn. 1985); First
Am.  Nat'l  Bank  v.  Booth,  606  S.W.2d  70,  71  (Ark.  1980);
Kazubowski v. Kazubowski, 259 N.E.2d 282, 288 (Ill. 1970); E.  F.
Prichard  Co. v. Heidelberg Brewing Co., 234 S.W.2d  486,  487-88
(Ky.  1950); Montgomery v. Trisler, 771 N.E.2d 1234,  1239  (Ind.
App. 2002); Bike Fashion Corp. v. Kramer, 46 P.3d 431, 436 (Ariz.
App.  2002); Baker v. Nat'l State Bank, 801 A.2d 1158, 1167 (N.J.
Super. A.D. 2002).
143MacKay, 973 P.2d at 947.  See also First Am. Nat'l  Bank,  606
S.W.2d  at 71; Kazubowski, 259 N.E.2d at 288; Bike Fashion Corp.,
46 P.3d at 436.
144Robertson v. Am. Mech., Inc., 54 P.3d 777, 780 (Alaska  2002);
Sengupta  v.  University of Alaska, 21 P.3d  1240,  1254  (Alaska
2001).
145919 P.2d at 1344.
146See 798 P.2d at 1280.
147See, e.g., Library of Cong. v. Shaw, 478 U.S. 310, 311  (1986)
("The  no_interest rule is to the effect that interest cannot  be
recovered in a suit against the Government in the absence  of  an
express   waiver  of  sovereign  immunity  from   an   award   of
interest."), superseded by statute on other grounds as stated  in
Landgraf v. USI Film Products, 511 U.S. 244, 251 (1994)).
148Stewart & Grindle, Inc. v. State, 524 P.2d 1242, 1245  (Alaska
1974).
149Danco  Exploration, Inc. v. State, Dep't of Natural Res.,  924
P.2d 432, 434 (Alaska 1996).
150Id.
151Mullaney v. Hess, 189 F.2d 417, 420 (9th Cir. 1951).
152798 P.2d at 1280.
153AS 43.05.280(a) provides:  "Interest shall be allowed and paid
on  an  overpayment of a tax under this title at the rate and  in
the manner provided in AS 43.05.225(1)."
154We are not here ruling on whether the class will be due a refund
upon remand.  Rather, we are only stating that if upon remand  it
is  determined that a refund is due, prejudgment interest can  be
obtained on that refund.