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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Wildlife Alliance v. State (7/25/2003) sp-5716

Alaska Wildlife Alliance v. State (7/25/2003) sp-5716

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA
                                

ALASKA WILDLIFE ALLIANCE,     )
EASTERN KENAI PENINSULA  )    Supreme Court No. S-10520
ENVIRONMENTAL ACTION          )
ASSOCIATION, FRIENDS OF  )    Superior Court No. 3AN-01-07062 CI
McNEIL RIVER, and KACHEMAK    )
BAY CONSERVATION SOCIETY,     )    O P I N I O N
                              )
             Appellants,      )    [No. 5716 - July 25, 2003]
                              )
     v.                       )
                              )
STATE OF ALASKA, and TONY     )
KNOWLES, GOVERNOR of          )
ALASKA,                       )
                              )
             Appellees.            )
________________________________)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Reese, Judge.

          Appearances:   Thomas E. Meacham,  Anchorage,
          for  Appellants.  Sabrina E. L. Fernandez and
          Kevin  M. Saxby, Assistant Attorneys General,
          Anchorage,  and  Bruce M.  Botelho,  Attorney
          General, Juneau, for Appellees.

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

          EASTAUGH, Justice.

I.   INTRODUCTION

           The day after the superior court dismissed a complaint

filed  by  public  interest litigants,  a  second,  substantially

identical, complaint was filed.  The superior court dismissed the

second  complaint on res judicata grounds, and awarded attorney's

fees  against the public interest litigants because it found  the

complaint was frivolous and brought in bad faith.  We affirm  the

res  judicata dismissal of the second complaint because  we  hold

that the dismissal of the first complaint under Alaska Civil Rule

12(b)(6)  was  a  decision on the merits.   But  we  reverse  the

attorney's fees award because it was reasonably debatable whether

res  judicata barred the second complaint; it was therefore error

to  conclude that the second complaint was frivolous and filed in

bad faith.

II.  FACTS AND PROCEEDINGS

            The   Alaska  Wildlife  Alliance  and  several  other

environmental  conservation groups (collectively,  the  alliance)

first sued the Alaska Board of Game, the Commissioner of Fish and

Game,  and the Governor of Alaska in November 2000 to remedy  the

allegedly unlawful composition of the Board of Game's membership.1

           The  Board  of  Game  oversees  the  conservation  and

development  of Alaska's wild game resources.  Its membership  is

governed  by AS 16.05.221(b).2  The governor appoints  the  seven

board  members  subject  to legislative confirmation.   The  only

statutory  qualifications for appointment to  the  board  are  an

"interest  in  public  affairs,  good  judgment,  knowledge,  and

ability in the field of action of the board."3  The statute  also

encourages  the governor to consider "diversity of  interest  and

points of view."4

           In  the  November 2000 lawsuit (AWA I),  the  alliance

claimed  that  the composition of the board violated  the  Alaska

Constitution and AS 16.05.221(b) because all seven board  members

were  hunters, trappers, hunting guides, or persons  representing

those interests.

           The  AWA  I complaint asserted five causes of  action.

The  first  count  alleged  that the  composition  of  the  board

violated  what  the  alliance  called  the  "requirement"  in  AS

16.05.221(b) of a diversity of interest and points of view.   The

second  count alleged that the composition of the board  violated

the  common use section of the Alaska Constitution.5   The  third

count  asserted  that the composition of the board  violated  the

state's  "trust  duty and . . . fiduciary obligation"  under  the

common use section.  The fourth count alleged that the failure to

include members who were not hunters, hunting guides, or trappers

violated   the   uniform  application  section  of   the   Alaska

Constitution.6   The  fifth count asserted that  the  common  use

section  required  membership  by  non-hunters  proportionate  to

Alaska's  non-hunter population, and that because  no  more  than

twenty-five  percent of Alaskans were licensed  hunters,  hunting

guides,  or trappers, those groups combined should have  no  more

than two of the seven seats on the board.

           The  alliance  sought a judgment  declaring  that  the

board's  composition violated AS 16.05.221(b) and the common  use

and uniform application sections of the Alaska Constitution.   It

also  asked the superior court to transfer the board's regulatory

authority over wildlife to the Alaska Department of Fish and Game

until  the  board's  membership met statutory and  constitutional

standards.   Finally, the alliance asked the court to order  that

the  board's  membership be reconstituted via  new  gubernatorial

appointments and legislative confirmations.

           The  state moved to dismiss the complaint under Alaska

Civil  Rule  12(b)(6) for failure to state  a  claim  upon  which

relief  may  be  granted.7  The state argued: that the  complaint

presented   a  non-justiciable  political  question;   that   the

complaint  did  not  implicate  the  equal  access  and   uniform

application  sections  of  the  Alaska  Constitution;  that   the

complaint  should  be  dismissed under  principles  of  statutory

interpretation; and that the issues raised by the  alliance  were

based  on  false  premises. On May 7, 2001 Superior  Court  Judge

Peter  A. Michalski granted the state's motion and dismissed  the

AWA I complaint under Rule 12(b)(6).

           The  next  day counsel for the alliance  filed  a  new

complaint:  Edgar P. Bailey v. State of Alaska and Tony  Knowles,

Governor  (AWA II).  Although the complaint was filed on  May  8,

2001,  it was not served on the state until July 9, 2001. Between

those  dates, the complaint was amended to substitute for  Bailey

the  same  plaintiffs  who  had  brought  AWA  I.    The  amended

complaint  in  AWA II alleged that the membership  of  the  board

violated  AS 16.05.221(b), the common use and uniform application

sections  of the Alaska Constitution, and the state's trust  duty

and  fiduciary  obligation  under the Alaska  Constitution.   The

alliance  sought declaratory relief but did not ask the  superior

court  to  reassign regulatory authority or to  order  the  board

reconstituted.

           Meanwhile, on June 1, 2001, after AWA II was filed but

before  it was served, the superior court issued a written  final

judgment  dismissing  AWA I.   Neither the oral  ruling  nor  the

written  order included findings of fact, conclusions of law,  or

any other explanation of the court's reasoning.

          On June 26, 2001 the superior court in AWA I denied the

state's  motion  for attorney's fees.  The court ruled  that  the

plaintiffs were public interest litigants and that the  suit  was

not  frivolous.   The court also stated that  the  procedure  for

appointing and confirming board members "is a political process."

           The  state  then moved to dismiss AWA  II  under  Rule

12(b)(6).  The state advanced the same arguments it had  made  in

its  motion to dismiss the complaint in AWA I, but added that the

AWA  II  complaint  should  also be  dismissed  on  res  judicata

grounds.

           Superior  Court Judge John Reese granted  the  state's

motion to dismiss AWA II on res judicata grounds because he  held

that  the  AWA  I  dismissal was on the merits.  The  court  then

awarded   the  state  $4,000  in  attorney's  fees  against   the

plaintiffs because it found that the complaint in AWA II had been

filed in bad faith and was frivolous.

           The alliance appeals both the dismissal of AWA II  and

the award of attorney's fees in AWA II.

III. DISCUSSION

          A.   Standard of Review

          Whether res judicata prevents a plaintiff from bringing

an action presents a question of law that we review de novo.8

           Complaints  are  to  be liberally  construed  so  that

motions  to  dismiss  are rarely granted.9   To  survive  a  Rule

12(b)(6)  motion, a complaint only needs to show "a set of  facts

consistent  with  and  appropriate to some enforceable  cause  of

action."10

           We  review  an award of attorney's fees for  abuse  of

discretion.11   An abuse of discretion exists if  the  award  was

"arbitrary,  capricious,  manifestly  unreasonable,  or  [if  it]

stemmed from an improper motive."12









          B.   Res Judicata Bars the Alliance's Complaint.

           Res  judicata bars a subsequent action when a judgment

in  a  prior action was "(1) a final judgment on the merits,  (2)

from  a  court  of competent jurisdiction, and (3) in  a  dispute

between the same parties (or their privies) about the same  cause

of action."13

          The alliance argues that under Alaska Civil Rules 41(b)

and  52(a), res judicata cannot apply because the superior  court

in  AWA I did not issue a "reasoned decision."  The alliance also

claims  that  the dismissal of AWA I was based on  jurisdictional

grounds rather than on the merits.  Finally, it claims that AWA I

and AWA II involved different defendants and claims for relief.

           The state argues that the superior court dismissed AWA

I  on the merits under Rule 41(b) and that res judicata therefore

bars  the AWA II complaint.  The state also argues that  the  two

complaints involved the same parties and causes of action.

                     1.    The  absence of findings of  fact  and
               conclusions  of  law does not prevent  the  AWA  I
dismissal from having res judicata effect.
               
           The superior court in AWA I did not issue findings  of

fact or conclusions of law when it dismissed the complaint.   The

alliance  argues that res judicata should not bar AWA II  because

there was no "reasoned decision" in AWA I.  The alliance uses the

"reasoned  decision" shorthand to refer to an opinion  containing

findings  of  fact  and conclusions of law.   For  simplicity  we

accept the alliance's terminology in our discussion, but in doing

so,  we  do not intend to suggest that Judge Michalski's decision

in AWA I was not "reasoned," despite its lack of findings of fact

or conclusions of law.

           The alliance bases its argument on its reading of  the

interplay between Alaska Civil Rules 52(a) and 41(b).  Rule 52(a)

states in part:

          If  an  opinion or memorandum of decision  is
          filed,  it will be sufficient if the findings
          of   fact  and  conclusions  of  law   appear
          therein.  Findings of fact and conclusions of
          law  are  unnecessary on decisions of motions
          under  Rules  12  or 56 or any  other  motion
          except as provided in Rule 41(b).
          
Rule 41(b) states in part:

          If  the  court renders judgment on the merits
          against  the plaintiff, the court shall  make
          findings  as provided in Rule 52(a).   Unless
          the   court   in  its  order  for   dismissal
          otherwise specifies, a dismissal . . .  other
          than  a  dismissal for lack of  jurisdiction,
          for improper venue, or for failure to join  a
          party . . . operates as an adjudication  upon
          the merits.
          
           The alliance argues that for a Rule 12 dismissal to be

a  judgment on the merits under Rule 41(b), the court must  issue

findings of fact and conclusions of law under Rule 52(a).

          We do not read Rules 41(b) and 52(a) to require a court

to  issue findings  of fact or conclusions of law for a dismissal

decision to be on the merits.  Rule 52(a) states that findings of

fact  and conclusions of law are not necessary for decisions made

under  Rule  12,  except as provided in Rule 41(b).   Rule  41(b)

states that if a court renders a judgment on the merits, it shall

make findings as required by Rule 52(a).  But Rule 52(a) does not

require  findings  of fact for Rule 12 dismissals.   Furthermore,

Rule  41(b)  states that unless the court otherwise specifies  or

the  decision  is  based on a lack of jurisdiction,  a  dismissal

operates  as an adjudication on the merits.  Here, the court  did

not  "otherwise specify," and, for reasons we will  discuss,  the

dismissal was not based on a lack of jurisdiction.  The dismissal

of  AWA I was an adjudication on the merits, notwithstanding  the

absence  of findings of fact and conclusions of law.  The absence

of  findings of fact and conclusions of law does not prevent  the

application of res judicata to the AWA I dismissal.

          The alliance invokes Usibelli Coal Mine, Inc. v. State,

Department  of Natural Resources in support of its argument  that

res   judicata  cannot  apply  in  the  absence  of  a  "reasoned

decision."14  We held in Usibelli that res judicata did not apply

if  a  prior  decision  did not address or consider  one  of  the

plaintiff's arguments.15  We relied on the Restatement (Second) of

Judgments  and  identified several indicia that a prior  judgment

was  final:  "that the parties were fully heard, that  the  court

supported  its decision with a reasoned opinion, [and]  that  the

decision  was  subject  to  appeal or was  in  fact  reviewed  on

appeal."16  The alliance emphasizes the "reasoned opinion" factor.

But  Usibelli did not say that all the factors had to be  present

for  res  judicata  to  apply.  Moreover, Usibelli  listed  those

factors to determine whether a decision is final, not whether  it

was on the merits.

           The  alliance  also looks to federal  case  law.   The

federal  courts typically require trial courts to issue  reasoned

decisions  explaining  their rulings.   The  alliance  points  to

Couveau  v.  American  Airlines, Inc.,  in  which  the  plaintiff

appealed  a  grant of summary judgment for the defendant.17   Res

judicata  was  not  an issue.  The defendant  moved  for  summary

judgment on several grounds, and the trial court granted  summary

judgment without explaining its reasoning or indicating which  of

the  defendant's  arguments it found  persuasive.18   The  United

States  Court  of  Appeals for the Ninth Circuit  explained  that

"when  multiple  grounds are presented  by  the  movant  and  the

reasons for the district court's decision are not otherwise clear

from  the  record, [we] may vacate a summary judgment and  remand

for a statement of reasons."19   But the court in Couveau did not

say  that  a  reasoned decision must be issued  in  order  for  a

decision  to  be  treated as being on the  merits.   Moreover,  a

review  of  the  entire record here permits us to  ascertain  the

basis for the superior court's dismissal in AWA I.

           In most cases involving dismissal or summary judgment,

the grounds for the superior court's ruling can be discerned from

the parties' motion papers.  As we noted above, "findings of fact

and  conclusions of law are unnecessary on decisions  of  motions

under Rules 12 or 56."20  We agree with the implied reasoning  of

the  Ninth  Circuit  in  Couveau that a  trial  court  addressing

multiple theories for dismissal or summary judgment should always

identify  the grounds for its ruling with sufficient  clarity  to

permit  meaningful appellate review.  But here, even  though  the

AWA  I  dismissal order did not explain the reason for dismissal,

we can infer the court's reasons for the AWA I dismissal from its

subsequent  opinion denying the state's attorney's  fees  motion.

We  do  not  want  to discourage superior courts from  explaining

their  reasons for granting relief under Rule 12(b)(6).   But  in

this  case,  Judge Michalski's attorney's fees  order  in  AWA  I

permits us, in considering whether res judicata barred AWA II, to

determine why the superior court dismissed AWA I.

                     2.    A  ruling on justiciability is  not  a

               ruling on jurisdiction.

            Alaska  Civil  Rule 41(b) states that  "[u]nless  the

court in its order for dismissal otherwise specifies, a dismissal

.  .  .  other than a dismissal for lack of jurisdiction  .  .  .

operates as an adjudication on the merits."21  The court's  order

in  AWA  I  did  not specify that it was not a dismissal  on  the

merits.  The alliance argues that the court dismissed AWA  I  for

raising  a  political question, and that this basis for dismissal

is jurisdictional.

          The alliance correctly notes that we have taken a broad

view  of the meaning of "jurisdiction" in context of Rule  41(b).

In  Blake  v.  Gilbert  we interpreted jurisdiction  "to  include

preconditions and other initial bars to suit, where the defendant

has not yet incurred any significant prejudice."22

          A claim implicates the political question doctrine when

there is "(1) a textually demonstrable commitment of the issue to

a  coordinate  political department; (2) the impossibility  of  a

court's undertaking an independent resolution of the case without

expressing lack of respect due coordinate branches of government;

and  (3)  the need for adherence to a political decision  already

made."23   We  also  consider whether there are  any  "judicially

discoverable and manageable standards for resolving the issue."24

            The  alliance  argues  that  the  political  question

doctrine is a jurisdictional matter because "[i]t cares not about

the  substantive merits of a lawsuit."  But in Baker v. Carr  the

United  States  Supreme Court classified the  political  question

doctrine  as  an  issue  of  justiciability.25   The  Court  then

distinguished jurisdiction from justiciability:

          In   the   instance   of   nonjusticiability,
          consideration of the cause is not wholly  and
          immediately  foreclosed; rather, the  Court's
          inquiry necessarily proceeds to the point  of
          deciding  whether the duty  asserted  can  be
          judicially   identified   and   its    breach
          judicially determined, and whether protection
          for  the  right  asserted can  be  judicially
          molded.    In   the  instance  of   lack   of
          jurisdiction the cause either does not "arise
          under"  the  Federal  Constitution,  laws  or
          treaties  (or  fall within one of  the  other
          enumerated  categories of Art. III,   2),  or
          is  not  a  "case or controversy" within  the
          meaning of that section; or the cause is  not
          one    described    by   any   jurisdictional
          statute.[26]
          
           We  agree that the political question doctrine is more

than  jurisdictional  and is instead a substantive  basis  for  a

dismissal.   Although we give a broad meaning  to  "jurisdiction"

for  purposes of Rule 41(b) involuntary dismissals, that view  is

designed  to  allow plaintiffs to remedy defects that  prevent  a

court  from reaching the merits of a complaint.27  But  when  the

merits  raise  a political question, the defect is  not  curable.

The  superior court's dismissal of AWA I was not a dismissal  for

lack  of  jurisdiction.  Under Rule 41(b), the dismissal  was  an

adjudication on the merits.

                     3.    AWA  I  and  AWA II involve  the  same

               parties and claims.

           Res  judicata applies when two cases involve the  same

parties  or  their privies and the same causes of action.28   The

alliance argues that the differences between the AWA I and AWA II

defendants  and claims for relief were sufficient  to  avoid  res

judicata.

           The  alliance  first  asserts  that  the  parties  are

different  because it sued the Board of Game and the Commissioner

of  Fish and Game in AWA I but it did not sue those defendants in

AWA  II.  But in AWA II the alliance simply replaced lesser state

entities  with  the  State of Alaska.   And  in  both  cases  the

alliance  sued  the  Governor of Alaska.   Res  judicata  is  not

defeated  by substituting one state entity for another  when  the

claim is based on the same conduct, and when the same defense  of

non-justiciability  applies regardless of  which  specific  state

entity is named as a defendant.

           The alliance next argues that the causes of action  in

the  two cases differed considerably because the alliance dropped

its  request  that  the  court transfer  the  board's  regulatory

authority  to  the  Commissioner  of  Fish  and  Game  until  the

defendants re-constituted the board's membership.  But the  court

in  AWA  I  dismissed all of the alliance's causes of action  and

claims  for relief, not merely the request for injunctive relief.

The  remaining  claims  in AWA II are  the  same  as  in  AWA  I.

Deleting  one  request  for relief did not alter  the  underlying

causes of action.

          C.    It Was Error To Award Attorney's Fees Against the

          Alliance.

           In AWA II the superior court awarded $4,000 as partial

attorney's  fees under Alaska Civil Rule 82 against the  alliance

plaintiffs  because it determined that the second  complaint  was

frivolous and brought in bad faith.  The alliance argues that  it

was  an  abuse of discretion to award fees because the  complaint

was neither frivolous nor brought in bad faith.  We agree.

           We  have  held that under Rule 82, "it is an abuse  of

discretion  to award attorney's fees against a losing  party  who

has  in  good faith raised a question of genuine public  interest

before  the courts."29  But fees may be awarded against a  public

interest  plaintiff if the claim is frivolous or brought  in  bad

faith.30

           The  order awarding fees identifies three reasons  for

deciding  that the complaint in AWA II was frivolous and  brought

in  bad  faith.  First, it states that the action was  previously

dismissed  with prejudice and that the alliance was  barred  from

refiling the complaint under res judicata.  Second, it finds that

the  complaint  "was  subject to a number of obvious  affirmative

defenses  which [the alliance] failed to address or  present  any

good faith argument for overcoming."  Finally, it states that the

alliance  "made no effort to explain or justify [its] attempt  to

collaterally attack the ruling of the prior court on this  matter

and  [it]  presented  no  good faith authority  or  argument  for

overcoming the application of res judicata in this matter."

           We  are  not  persuaded that  the  filing  of  AWA  II

demonstrates bad faith.  It was reasonably debatable whether  the

first  complaint had been dismissed on the merits.   Although  we

held above that the alliance's second complaint was barred by res

judicata, this result was not so self-evident that the filing  of

AWA II indicates bad faith.

           We are also not persuaded that the alliance failed  to

address  several obvious affirmative defenses in its response  to

the motion to dismiss AWA II.  The state argues that the alliance

"conceded  or  did not really address" five affirmative  defenses

that  the state raised in its motion to dismiss AWA II, and  that

therefore the alliance's claims were frivolous and brought in bad

faith.   But  the alliance's opposition to the motion to  dismiss

did  respond,  at  least in some way, to each of the  affirmative

defense  arguments.   Its  responses  may  have  been  less  than

exhaustive, but they were sufficient to preclude a finding of bad

faith.

           Finally,  we are unpersuaded by the order's  statement

that  the  alliance "made no effort to explain or  justify  [its]

attempt  to collaterally attack the ruling of the prior court  on

this  matter  and  [it]  presented no  good  faith  authority  or

argument for overcoming the application of res judicata  in  this

matter."   The  question  whether res judicata  attached  to  the

dismissal in AWA I was reasonably debatable, even though we  have

ruled  for  the state on that issue.  Moreover, the alliance  was

not  attempting to collaterally attack the dismissal  of  AWA  I.

Instead,   it   asserted   -  in  good   faith   but   ultimately

unpersuasively  -  that the parties and claims  in  AWA  II  were

different  from  AWA I, and that AWA I was not dismissed  on  the

merits.

           It is true that the AWA II complaint was filed the day

after  the  AWA I complaint was dismissed, and that the  alliance

did  not appeal the AWA I dismissal or ask the superior court  to

explain  its  reasoning.  But the course the  alliance  chose  to

follow  does  not  demonstrate bad faith or that  the  claim  was

frivolous.   Just  because  a  complaint  is  found  to  raise  a

political  question does not necessarily mean it  was  frivolous.

That  a  complaint  is  deemed barred by res  judicata  does  not

necessarily mean that it was filed in bad faith.  We hold that it

was error to award the state attorney's fees against these public

interest litigants.  This result moots the alliance's claim  that

it  was  error  to  deny  its motion for reconsideration  of  the

attorney's fees award.

IV.  CONCLUSION

           We  therefore  AFFIRM the order of the superior  court

granting  the state's motion to dismiss on res judicata  grounds,

but  VACATE  the  order awarding attorney's fees and  REMAND  for

correction of the judgment.

_______________________________
1     Alaska Wildlife Alliance v. Alaska Bd. of Game, No. 3AN-00-
12369 CI (Alaska Super., June 1, 2001).
2    AS 16.05.221(b) provides in part:

                For  purposes  of the conservation  and
          development  of  the game  resources  of  the
          state,  there  is  created a  Board  of  Game
          composed  of seven members appointed  by  the
          governor,  subject  to  confirmation   by   a
          majority of the members of the legislature in
          joint  session.  The governor  shall  appoint
          each  member  on  the basis  of  interest  in
          public affairs, good judgment, knowledge, and
          ability in the field of action of the  board,
          and  with  a  view to providing diversity  of
          interest   and   points  of   view   in   the
          membership.  The appointed members  shall  be
          residents of the state and shall be appointed
          without  regard  to political affiliation  or
          geographical location of residence.
          
3    Id.
4    Id.
5     "Common  Use.   Wherever occurring in their natural  state,
fish,  wildlife, and waters are reserved to the people for common
use."  Alaska Const. art. VIII,  3.
6     "Uniform  Application.  Laws and regulations governing  the
use  or disposal of natural resources shall apply equally to  all
persons  similarly situated with reference to the subject  matter
and  purpose  to  be  served by the law or  regulation."   Alaska
Const. art. VIII,  17.
7     Alaska  Civil  Rule  12(b)(6)  provides:  "[T]he  following
defenses may at the option of the pleader be made by motion: .  .
. (6) failure to state a claim upon which relief can be granted."
8    Dixon v. Pouncy, 979 P.2d 520, 523 (Alaska 1999); Renwick v.
State, Bd. of Marine Pilots, 971 P.2d 631, 633 (Alaska 1999).
9     Odom  v.  Fairbanks Mem'l Hosp., 999 P.2d 123, 128  (Alaska
2000).
10    Id.
11    Tenala, Ltd. v. Fowler, 993 P.2d 447, 449 (Alaska 1999).
12    Id.
13     Plumber  v. Univ. of Alaska Anchorage, 936 P.2d  163,  166
(Alaska 1997).
14    921 P.2d 1134, 1142 (Alaska 1996).
15    Id.
16     Id. (quoting Restatement (Second) of Judgments  13 cmt.  g
(1982)).
17    218 F.3d 1078 (9th Cir. 2000).
18    Id. at 1081.
19    Id.
20    Alaska R. Civ. P. 52(a); see also Christensen v. NCH Corp.,
956 P.2d 468, 477 (Alaska 1998).
21    Alaska R. Civ. P. 41(b).
22    702 P.2d 631, 636-38 (Alaska 1985).
23    Malone v. Meekins, 650 P.2d 351, 357 (Alaska 1982).
24    State, Dep't of Natural Res. v. Tongass Conservation Soc'y,
931  P.2d  1016, 1019 (Alaska 1997) (quoting Baker v.  Carr,  369
U.S. 186, 217 (1962)).
25    369 U.S. 186, 198, 208-37 (1962).
26    Id. at 198.
27     See,  e.g., Blake v. Gilbert, 702 P.2d 631, 637-38 (Alaska
1985)  (ruling dismissal of corporation's complaint for  lack  of
capacity  to  sue based on failure to pay taxes and  file  annual
report  was  jurisdictional and not bar  to  subsequent  suit  by
shareholder  in privity with corporation bringing same  cause  of
action).
28    Id. at 634-35.
29    Eyak Traditional Elders Council v. Sherstone, Inc., 904 P.2d
420, 422 (Alaska 1995).
30    Cabana v. Kenai Peninsula Borough, 21 P.3d 833, 837 (Alaska
2001)   ("frivolous  claims  preclude  public  interest  litigant
status");    Municipality   of   Anchorage   v.   Citizens    for
Representative  Governance, 880 P.2d  1058,  1062  (Alaska  1994)
("Public  interest litigants must file and pursue their  suit  in
good faith.").