Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. West v. State, Board of Game (8/6/2010) sp-6497

West v. State, Board of Game (8/6/2010) sp-6497

     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

RONALD T. WEST, )
) Supreme Court Nos. S- 13184/13343
Appellant, ) (Consolidated)
)
v. ) Superior Court Nos. 3AN- 06-13087 CI
) and 3AN-06-10956 CI (Consolidated)
STATE OF ALASKA, BOARD OF )
GAME, and McKIE CAMPBELL, ) O P I N I O N
COMMISSIONER, DEPARTMENT OF)
FISH AND GAME, ALASKA ) No. 6497 August 6, 2010
WILDLIFE ALLIANCE, DEFENDERS)
OF WILDLIFE, SIERRA CLUB, TOM)
CLASSEN, and FRIENDS OF )
ANIMALS, )
Appellees.)
)
ALASKA WILDLIFE ALLIANCE,  )
DEFENDERS OF WILDLIFE,         )
                               )
               Cross-Appellants,   )
                               )
     v.                        )
                               )
RONALD T. WEST, STATE OF       )
ALASKA BOARD OF GAME, and      )
McKIE CAMPBELL, COMMISSIONER,  )
DEPARTMENT OF FISH AND GAME,   )
SIERRA CLUB, TOM CLASSEN, and  )
FRIENDS OF ANIMALS,            )
                               )
               Cross-Appellees.)
                               )
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, William F. Morse, Judge.

          Appearances:   Robert  C.  Erwin,  Robert  C.
          Erwin,  LLC, Anchorage, and Ronald  T.  West,
          Anchorage,  for Appellant and Cross-Appellee,
          Ronald  T. West.  Michael J. Frank,  Trustees
          for Alaska, Anchorage, and Valerie Brown, Law
          Office of Valerie Brown, LLC, Anchorage,  for
          Appellees and Cross-Appellants, Defenders  of
          Wildlife and Alaska Wildlife Alliance.  Kevin
          M.  Saxby, Senior Assistant Attorney General,
          Anchorage,  and  Richard A. Svobodny,  Acting
          Attorney  General, Juneau, for Appellee,  and
          Cross-Appellee, State of Alaska.   Notice  of
          non-participation   filed   by   Michael   A.
          Grisham, Dorsey & Whitney LLP, Anchorage, for
          Appellees  and  Cross-Appellees,  Friends  of
          Animals, Inc. and Tom Classen.  No appearance
          by Appellee and Cross-Appellee, Sierra Club.

          Before:  Carpeneti, Chief Justice, Fabe,  and
          Christen,  Justices.  [Winfree, Justice,  not
          participating.]

          CHRISTEN, Justice.

I.   INTRODUCTION
          Two  conservation advocacy groups and  Ronald  T.  West
appeal a superior court order granting summary judgment in  favor
of  the  Alaska Board of Game (the Board).  The court ruled  that
the  Boards  2006  predator control plans do not violate  article
VIII,  section  4  of the Alaska Constitution  Alaskas  sustained
yield  clause   and the sustained yield mandate in  AS  16.05.255
Alaskas  intensive  game management statute.  Appellants  contend
the Board failed to consider and apply the principle of sustained
yield  to its management of wolves and bears affected by predator
control  plans the Board established in 2006.  West also  appeals
the superior courts denial of his motion for attorneys fees.   We
conclude  that the Board has both a constitutional and  statutory
duty  to  apply principles of sustained yield when it establishes
predator control plans, but appellants did not meet their  burden
of  demonstrating  that  the  2006  plans  fail  to  comply  with
sustained  yield principles.  We also conclude that the  superior
court did not abuse its discretion in denying West attorneys fees
because West was not a prevailing party.
II.  FACTS AND PROCEEDINGS
          Controlling  predator  populations  to  increase   prey
populations is a practice with a long and sometimes controversial
history   in  Alaska.1   Following  World  War  II,  the  federal
government  began  a far-reaching predator control  program  that
used   poison   baiting  and  aerial  hunting  to  control   wolf
populations  throughout  Alaska.  After  statehood,  the  use  of
poison  baiting was prohibited in Alaska but aerial wolf  hunting
was not.  Concerns over aerial wolf hunting and the use of snares
continued  in  the  1990s, as did the controversy  over  predator
control.2
          Alaskas constitution incorporates principles of natural
resource  management  that  serve  as  the  foundation  for   the
management  of Alaskas wildlife.  Alaska was the first  state  to
have  a constitutional article devoted to natural resources,  and
it   is  the  only  state  to  have  a  constitutional  provision
addressing  the principle of sustained yield.3 Alaskas  sustained
yield clause  article VIII, section 4  provides that:
          [f]ish,  forests, wildlife,  grasslands,  and
          all  other  replenishable resources belonging
          to  the  State shall be utilized,  developed,
          and   maintained   on  the  sustained   yield
          principle,   subject  to  preferences   among
          beneficial uses.
Alaska  Statute 16.05.255 is an implementing statute for  Alaskas
sustained yield clause.  In 1994, the Alaska legislature  amended
AS   16.05.255   to  incorporate  new  principles  of   intensive
management aimed at increasing big game prey populations in areas
where  the  Board determines human consumptive use is preferred.4
Alaskas  intensive  management statute requires  that  the  Board
adopt regulations to provide for intensive management programs to
restore the abundance or productivity of identified big game prey
populations as necessary to achieve human consumptive use goals.5
The changes to AS 16.05.255 set the stage for the current dispute
because the amended statute provides for control of predation  in
areas   where  the  Board  determines  intensive  management   is
required.6
          When  the  legislature adopted the intensive management
statute  in 1994, it expressed a clear policy that providing  for
high  levels  of harvest for human consumptive use in  accordance
with the sustained yield principle is the highest and best use of
identified big game prey populations in most areas of the state.7
In  1998 AS 16.05.255 was again amended, this time, to include an
explicit requirement that intensive game management be consistent
with  sustained  yield,  which the  legislature  defined  as  the
achievement  and  maintenance in perpetuity  of  the  ability  to
support  a  high  level  of human harvest  of  game,  subject  to
preferences  among  beneficial uses, on  an  annual  or  periodic
basis.8
          Until 2006, the Boards general regulatory framework for
predator  control of wolves and bears was found in 5  AAC  92.110
and .115;9 specific wolf and bear control plans were set forth in
5  AAC 92.125.  Prior to 2006, any regulation adopting a predator
control  plan, including section .125, was required to address  a
series of regulatory requirements set forth in sections .110  and
.115.   One  of  the regulatory requirements was that  the  Board
consider   sound  wildlife  management  principles   based   upon
sustained yield for all predator control plans.10
          In  a separate and earlier challenge to the Boards wolf
control plans, Judge Sharon Gleason issued an order dated January
17, 2006 invalidating the then-existing predator control plans on
the  basis  that  the  Board  failed to  adequately  address  the
regulatory requirements of 5 AAC 92.110.11  The Board convened an
emergency meeting in response to Judge Gleasons order and adopted
interim regulations establishing temporary predator control plans
          to replace those that had been invalidated. At the next regularly
scheduled  meeting,  held  just  a  few  days  later,  the  Board
eliminated the internal regulatory requirements in sections  .110
and  .115,  including  the  express requirement  that  the  Board
consider sustained yield principles.
          The  Board again considered its predator control  plans
during  meetings it held in March and May of 2006.  During  these
meetings,  the Board heard considerable testimony from biologists
from  the  Alaska  Department of Fish and  Game  (ADF&G)  on  the
proposed  permanent  predator control plans.   It  also  received
extensive written comments from the public regarding the proposed
plans.   Ultimately, the Board adopted modified versions  of  the
interim   regulations  as  permanent  regulations,  although   it
expanded the coverage of the plans in some areas.
          Defenders of Wildlife and The Alaska Wildlife  Alliance
(collectively  Defenders) challenged the validity of  the  Boards
2006 predator control plans in a complaint filed in August 2006.12
In  the  superior  court,  Defenders case  focused  primarily  on
alleged violations of Alaskas Administrative Procedure Act and an
array  of  other  substantive challenges unrelated  to  sustained
yield.   Defenders  also claimed that the  Boards  2006  predator
control  plans  were invalid because the Board  failed  to  apply
principles  of  sustained yield to wolf and bear  populations  in
predator  control  areas  when it adopted  its  predator  control
plans.
          Ronald T. West was allowed to intervene in March  2007.
His  complaint in intervention adopts all of Defenders claims  by
reference  and  raises  two additional  claims.   Wests  Count  X
alleges  that defendants have violated their constitutional  duty
to manage game populations for the benefit of all citizens on the
grounds that they did not conduct accurate, scientific studies of
prey  and predator populations.  Wests Count XI alleges that  the
Boards predator control plans are unconstitutional . . . in  that
[they] do not manage predators for sustained yield.  Wests  Count
XI substantially overlaps with Defenders Count VIII.13
          The  parties  filed cross-motions for summary  judgment
and  in  March  of 2008 the superior court issued a comprehensive
written  order addressing all of the parties outstanding  claims.
The  court dismissed the Administrative Procedure Act claims  and
most of the other substantive claims unrelated to sustained yield14
but  ruled  that article VIII, section 4 of Alaskas  Constitution
applies  to  predators, including wolves and  bears.   The  court
concluded  that the Boards 2006 predator control  plans  did  not
violate Alaskas sustained yield clause because the management  of
wildlife  resources  may  constitutionally  include  a  selection
between  predator  and prey populations.15   The  court  did  not
examine  whether  the  Board applied the statutory  principle  of
sustained  yield when it adopted its plans because  it  concluded
that   the   sustained  yield  principle  in  Alaskas   intensive
management statute does not apply to predators.
          Although  the  superior  court agreed  with  West  that
Alaskas   constitutional  sustained  yield  clause   applies   to
predators,  it  did not agree that the Boards 2006 plans  violate
this  constitutional provision.16  The court  also  denied  Wests
          claim that the Boards alleged failure to obtain accurate
scientific  studies of prey and predator populations violate  its
constitutional duty.17  West moved for attorneys fees under Civil
Rule  82  and AS 09.60.010 arguing that he prevailed as a  public
interest litigant on the main issue in the case because the court
agreed  that Alaskas sustained yield clause applies to predators.
The  superior court denied Wests motion for fees and also  denied
Wests  and  Defenders motions for reconsideration of its  summary
judgment ruling.
          Defenders and West appeal the superior courts  decision
that  the  Boards  predator control plans do not violate  Alaskas
sustained  yield  clause.   Defenders also  appeal  the  superior
courts  decision that the statutory principle of sustained  yield
in  Alaskas intensive game management statute does not  apply  to
predators,  and West appeals the superior courts  denial  of  his
motion for attorneys fees.  Because West did not appeal his claim
that the Board failed to conduct accurate, scientific studies  of
prey  and  predator populations, that issue is not before  us  on
appeal.
III. STANDARD OF REVIEW
          We  review  a  grant  of summary  judgment  de  novo.18
Summary  judgment  is  proper if there is  no  genuine  issue  of
material  fact  in dispute and the moving party  is  entitled  to
judgment  as a matter of law.19  In reviewing a summary  judgment
motion,  we  draw  all  reasonable inferences  in  favor  of  the
nonmoving party.20
          The  interpretation  of  a  statute  or  constitutional
provision  is a question of law to which we apply our independent
judgment.21   We  interpret  the  constitution  and  Alaska   law
according to reason, practicality, and common sense, taking  into
account the plain meaning and purpose of the law as well  as  the
intent of the drafters.22
          We review an agencys application of law to a particular
set of facts for reasonableness.23  Under this standard, we merely
determine whether the agencys determination is supported  by  the
facts and is reasonably based in law.24  We do not substitute our
judgment  for  that  of the agency when the agencys  decision  is
based  on its expertise.25  We presume that regulations are valid
and  we  place the burden of proving otherwise on the challenging
party.26
          Awards  of  attorneys fees are reviewed  for  abuse  of
discretion.27   Such  abuse exists if  the  award  is  arbitrary,
capricious, manifestly unreasonable, or improperly motivated.28
IV.  DISCUSSION
          Defenders  and  West argue that the constitutional  and
statutory  principles of sustained yield apply to  predators  and
that the Board did not apply sustained yield when it adopted  its
2006  predator control plans.  The State counters that it has  no
constitutional  or  statutory duty to apply  sustained  yield  to
wolves  and  bears  in  predator  control  areas,  but  that   it
nonetheless did so.  We first consider whether Alaskas  sustained
yield  clause and intensive management statute require  that  the
Board apply principles of sustained yield when it adopts predator
          control plans.  Because we conclude that the Board is bound by
both  a  constitutional and statutory duty  to  do  so,  we  next
consider  whether  Defenders and West have met  their  burden  of
demonstrating  that the Boards 2006 predator  control  plans  are
invalid  under  Alaskas  sustained  yield  clause  and  intensive
management statute.  Ultimately, we uphold the 2006 plans because
Defenders and West failed to meet this burden.
     A.   The Sustained Yield Clause Applies To Predator Control.
          The  superior  court concluded that  Alaskas  sustained
yield  clause applies to predators, including bears  and  wolves,
but    that   the   management   of   wildlife   resources    may
constitutionally  include a selection between predator  and  prey
populations.   We apply our independent judgment to questions  of
constitutional interpretation and interpret Alaskas  constitution
according to reason, practicality, and common sense, taking  into
account the plain meaning and purpose of the law as well  as  the
intent of the drafters.29
          1.   The  sustained  yield clause does not  distinguish
               between predator and prey populations.
          When we interpret the Alaska Constitution, [u]nless the
context  suggests otherwise, words are to be given their natural,
obvious[,] and ordinary meaning.30  The text of Alaskas sustained
yield clause provides that [f]ish, forests, wildlife, grasslands,
and  all  other replenishable resources belonging  to  the  State
shall  be  utilized, developed, and maintained on  the  sustained
yield  principle.31  According to a plain text  reading  of  this
clause,  the  sustained yield principle applies to all  wildlife.
The  natural, obvious, and ordinary meaning of the term  wildlife
suggests that the drafters of our constitution intended  a  broad
application  of  the sustained yield principle  encompassing  all
wild animals, including wolves and bears.
          The definition of sustained yield principle provided to
the  constitutional delegates by the Resources Committee  of  the
Constitutional Convention is also helpful to our inquiry:
          As to forests, timber volume, rate of growth,
          and  acreage of timber type can be determined
          with  some degree of accuracy. For fish,  for
          wildlife,  and  for some other  replenishable
          resources  such  as  huckleberries,   as   an
          example,  it is difficult or even  impossible
          to measure accurately the factors by which  a
          calculated   sustained   yield    could    be
          determined.  Yet  the  term  sustained  yield
          principle   is   used  in   connection   with
          management of such resources. When so used it
          denotes  conscious  application  insofar   as
          practicable   of  principles  of   management
          intended to sustain the yield of the resource
          being  managed.  That broad  meaning  is  the
          meaning of the term as used in the Article.[32
          ]
This  explanation explicitly states that the term sustained yield
as  used  in  Alaskas  constitution  has  a  broad  meaning.   In
addition,  the  statement that the sustained yield  principle  is
used  in  connection with the management of fish,  wildlife   and
even   huckleberries   suggests  a  broad  application  of   this
principle.
          After  the  drafters  of Alaskas constitution  finished
their work, the constitution was ratified by the voters.  We have
stated  that in construing provisions of the Alaska Constitution,
[]  the court must look to the meaning that the voters would have
placed on its provisions.33  [A]bsent some signs that [a] term has
acquired  a peculiar meaning by statutory definition or  judicial
construction,  we  defer  to the meaning  the  people  themselves
probably placed on the provision.34  Our inquiry here is aided by
the  Report  to  the  People of Alaska  prepared  by  the  Alaska
Constitutional Convention delegates in the period leading  up  to
the ratification vote.  This report informed the voters that:
          The   [natural  resources]  articles  primary
          purpose  is to balance maximum use of natural
          resources  with their continued  availability
          to  future generations.  In keeping with that
          purpose, all replenishable resources  are  to
          be  administered, insofar as practicable,  on
          the  sustained yield principle. This includes
          fish, forests, wildlife and grasslands, among
          others.[35]

The  description in the Report to the People of Alaska, like  the
plain  meaning  of  the sustained yield clause itself,  does  not
suggest any distinction between predator and prey for purposes of
applying sustained yield.
          We  find nothing in the plain language of the sustained
yield  clause  suggesting  that a  distinction  should  be  drawn
between  predator and prey populations for purposes  of  applying
the  sustained yield principle, and there is no such  distinction
in  the descriptions of sustained yield supplied by the delegates
who  drafted the constitution or to the voters who ratified it.36
We  have  acknowledged  that the framers of Alaskas  constitution
intended the sustained yield clause to play a meaningful role  in
resource management,37 and we hold today that the sustained yield
clause in Alaskas constitution applies to both predator and  prey
populations, including populations of wolves and bears.
          2.   The  sustained yield clause permits the  State  to
               establish preferences among beneficial uses.
          Having held that the sustained yield clause applies  to
predator populations, we must also consider whether the sustained
yield  clause permits the Board to give preference to populations
of moose and caribou over populations of wolves and bears through
the use of intensive management practices.
          The  starting point of this analysis is again the  text
of the sustained yield clause itself, which provides wildlife . .
.  shall  be utilized, developed, and maintained on the sustained
yield  principle, subject to preferences among beneficial uses.38
The  qualifier that makes sustained yield subject to  preferences
among beneficial uses suggests that the legislature and the Board
have  some  discretion  to  establish management  priorities  for
Alaskas  wildlife.   Such a construction is consistent  with  the
          constitutional history of the sustained yield clause.  As we
noted in Native Village of Elim v. State, the primary emphasis of
the framers discussions and the glossarys definition of sustained
yield  is  on  the flexibility of the sustained yield requirement
and  its  status as a guiding principle rather than  a  concrete,
predefined  process.39  This is reflected in the  Report  to  the
People  of  Alaska  distributed before  ratification  of  Alaskas
constitution, which explains that all replenishable resources are
to  be  administered, insofar as practicable,  on  the  sustained
yield  principle.40  The glossary definition of  sustained  yield
provided   by  the  Resources  Committee  of  the  Constitutional
Convention  contains similar language: [the term sustained  yield
principle]  denotes conscious application insofar as  practicable
of  principles of management intended to sustain the yield of the
resource being managed.41
          Based  upon the text and constitutional history of  the
sustained yield clause, the State argues that it allows for  some
uses,  and therefore some resources, to be preferred over others.
And Defenders recognize that [w]hile [the sustained yield clause]
requires  that all wildlife, including predators, be managed  for
sustained yield, that does not mean the sustained yield principle
precludes  predator  control  in appropriate  circumstances.   We
agree  with both these statements and affirm the superior  courts
ruling   that   the   management  of   wildlife   resources   may
constitutionally  include a selection between predator  and  prey
populations.
          B.   The Statutory Principle Of Sustained Yield In Alaskas
Intensive    Management   Statute   Applies   To    The    Boards
Management Of Predator Populations.
          Consistent with the States position, the superior court
found  it  unambiguous  that  the sustained  yield  principle  in
Alaskas intensive management statute  AS 16.05.255  applies  only
within  the context of the Boards management of moose and caribou
populations  and  is  inapplicable to the  Boards  management  of
predator  populations.   Defenders  counter  that  the  statutory
principle  of sustained yield, like the constitutional principle,
does not distinguish between predator and prey populations.   The
interpretation  of a statute is a question of  law  to  which  we
apply  our  independent judgment; we interpret statutes according
to  reason,  practicality,  and  common  sense,  considering  the
meaning  of  the statutes language, its legislative history,  and
its purpose.42
          Alaskas intensive management statute states that  [t]he
Board  of  Game shall adopt regulations to provide for  intensive
management  programs to restore the abundance or productivity  of
identified  big  game  prey populations as necessary  to  achieve
human  consumptive use goals of the board.43   The  statute  also
provides  definitions  for key terms.   Intensive  management  is
defined  as  management of an identified big game prey population
consistent   with  sustained  yield  through  active   management
measures  to  enhance,  extend, and  develop  the  population  to
maintain  high  levels  or provide for  higher  levels  of  human
harvest,  including control of predation.44  Sustained  yield  is
defined  by  the  statute as the achievement and  maintenance  in
          perpetuity of the ability to support a high level of human
harvest of game, subject to preferences among beneficial uses, on
an annual or periodic basis.45
            Substituting  the meaning of the defined  terms  into
subsection  (e) of the statute produces the following legislative
mandate for intensive management:
          The Board of Game shall adopt regulations  to
          provide for [management of an identified  big
          game  prey  population consistent  with  [the
          achievement and maintenance in perpetuity  of
          the  ability to support a high level of human
          harvest of game, subject to preferences among
          beneficial uses]] to restore the abundance or
          productivity  of  identified  big  game  prey
          populations  as  necessary to  achieve  human
          consumptive use goals of the board.[46]

From  this  language it follows that whether or not the statutory
principle  of sustained yield distinguishes between predator  and
prey populations depends on the meaning of the word game.  Alaska
Statute  16.05.940(19)  defines game  as  any  species  of  bird,
reptile, and mammal,47 suggesting that intensive management  must
be   consistent  with  a  principle  of  sustained  yield   which
encompasses  all  animals,  including  both  predator  and   prey
populations.
          The  State does not provide an alternative construction
based  upon  the  statutes language, but  argues  that  Defenders
construction  turns  [the]  intensive  management  law   into   a
nonsensical,  unworkable  mess by applying  the  sustained  yield
principle  to predators.  According to the State, application  of
sustained   yield   to   predators  requires   that   the   State
simultaneously  maximize the populations of predators  and  their
prey.    We   disagree.   The  language  of   this   implementing
legislation does not result in the absurd results the State warns
against because the statutory principle of sustained yield,  like
its  constitutional  counterpart,  contains  the  qualifier  that
sustained yield is subject to preferences among beneficial uses.48
            Based  upon the text of Alaskas intensive  management
statute,  as  well as the principle that a statutory construction
that  is  consistent with constitutional principles is  preferred
over  one  that is inconsistent,49 we hold that the principle  of
sustained yield set forth in Alaskas intensive management statute
applies  to  predator  populations but  that  the  management  of
wildlife  resources may include a selection between predator  and
prey populations.
     C.   Defenders And West Failed To Meet Their Burden To Prove
          That  The  Boards 2006 Predator Control  Plans  Violate
          Principles Of Sustained Yield.
          Having  held that both the constitutional and statutory
principles of sustained yield apply to wolf and bear populations,
we  now  consider the contention that the Board failed  to  apply
principles of sustained yield to its 2006 predator control plans.
The  superior  court ruled that to the extent  that  [the  States
existing  management of the predator populations] was  challenged
          by any Plaintiff it does not violate th[e] constitutional mandate
of  Alaskas sustained yield clause.  The court did not reach  the
question of whether the Boards 2006 plans are consistent with the
statutory principle of sustained yield because it determined  the
statutory  mandate did not apply to predators.50   Appellant  and
cross-appellants had the burden of demonstrating  the  invalidity
of  the Boards 2006 predator control plans.51  To survive summary
judgment, they were required to establish that a genuine issue of
material fact was in dispute.52
          Defenders   acknowledge  that   the   sustained   yield
principle  does  not  preclude predator  control  in  appropriate
circumstances,  but  Defenders contend that  the  Board  did  not
consider  or  apply the sustained yield principle to  wolves  and
bears   when  it  adopted  its  2006  predator  control  plans.53
Defenders  argue that we should decline to infer that  the  Board
applied sustained yield when there is no mention or discussion of
applying  sustained yield to wolf and bear populations in  either
the  Boards  predator  control plans  or  in  the  administrative
record.   Defenders  also argue that the  Boards  repeal  of  the
express  sustained yield requirements in 5 AAC  92.110  and  .115
along  with  the  statement in its bear  management  policy  that
[g]enerally, bear hunting will be conducted on a sustained  yield
basis, except in areas where a bear predation control program  is
authorized54  demonstrates that the  Board  chose  not  to  apply
sustained yield to wolf and bear populations.
          The  State argues the Board was not required  to  apply
sustained  yield  to wolf and bear populations  in  its  predator
control plans.  Nonetheless, the State maintains that the  Boards
plans  and  the  supporting administrative record illustrate  the
conscious  application  of sustained yield  principles,  although
that term is not used explicitly.
          In  considering  whether  the  Board  actually  applied
principles  of sustained yield when it adopted its 2006  predator
control  plans,  we  first  examine the  language  of  the  plans
themselves  and  observe that the plans do not expressly  mention
the  sustained  yield mandate.  But the regulation  adopting  the
2006 plans  5 AAC 92.125  sets management objectives for the wolf
and  bear  populations in each predator control area, establishes
procedures for tracking when predator populations are  in  danger
of falling below the management objectives, and requires that the
Board  suspend predator control activities and close hunting  and
trapping seasons when necessary to ensure that minimum population
objectives   are  met.55   The  regulation  also  sets   specific
geographic  boundaries for predator control areas56 and  includes
sunset  provisions establishing expiration dates for  the  Boards
authority to engage in predator control.57
          The   regulations  also  contain  numerous   statements
relating  to  the continuation and maintenance of wolf  and  bear
populations  within  predator control areas.   For  example,  the
regulations  state  it  is the intent of this  plan  to  maintain
wolves  as  part of the natural ecosystem within the geographical
area  described  for  this  plan.58  In  balancing  the  goal  of
substantially reduc[ing] wolf numbers compared to the pre-control
level  in order to relieve predation pressure on moose and  allow
          for improved recruitment to the moose population with the goal of
maintain[ing] wolves as part of the natural ecosystem within  the
predator  control  area,  the  regulation  sets  a  minimum  wolf
population objective for each plan in order to ensure that wolves
persist  within the plan area.59  The predator control regulation
also  states that if wolf predation control efforts continue  and
the  wolf  population is reduced according to the wolf population
and harvest objectives, the wolf population will be maintained at
[the  control population objective] for several years,  but  once
the  moose  population  increases and wolf  control  efforts  are
discontinued,  the wolf population will increase in  response  to
the  increased  prey base.60  Even where the regulation  sets  an
objective  of  reducing black and brown bear populations  to  the
lowest  level possible within the bear control area in GMU 19(D)-
East,  the regulation states that because the [bear control area]
is a relatively small geographic area, removing black [and brown]
bears  from within it will have only a minor effect on the  black
[and brown] bear population[s] in Unit 19(D)-East overall.61
          The  predator  control  regulation  also  provides  for
continued harvest of wolves and bears for human consumption as an
integral component of the predator control plans, setting  annual
harvest  objective[s]62  for wolves and  bears  in  the  predator
control  areas and acknowledging that some hunters  and  trappers
will   continue   to   pursue  wolves  .  .   .   regardless   of
same-day-airborne wolf control efforts.63
          We  also  find  it  significant that  while  the  Board
eliminated the regulatory requirements set forth in sections .110
and  .115   including the express requirement  that  it  consider
sustained  yield   it appears that the Board nonetheless  adopted
its  2006  predator  control plans to be  consistent  with  these
requirements.   The  subsection headings in the  Boards  predator
control  plans  closely  mirror the requirements  of  subsections
.110(b)  and  .115(b),  and the content of the  predator  control
plans   reflects  the  substantive  requirements  of  subsections
.110(d) and .115(c).64
          A review of the administrative record demonstrates that
the  Board considered a great deal of information about  how  the
long-term   viability  and  sustainability  of  wolf   and   bear
populations would be impacted by predator control efforts.   Most
significantly  with  respect to wolf  control,  the  Board  heard
testimony  from  ADF&G  biologists that  wolf  populations  would
recover  to, or even exceed, pre-control levels within  three  to
five  years  after  wolf  control ends.65   And  while  testimony
relating to bears suggested that bear recovery would take  longer
given  the  lower  reproductive and immigration rates  of  bears,
ADF&G biologists did not suggest that the long-term viability  or
sustainability of bear populations would be put at  risk  by  the
2006 bear control plans.
          Based  on  our review of the record, we are unpersuaded
by  Defenders  argument that the Board failed to apply  sustained
yield  altogether.  Failing to show that the Board did not  apply
sustained  yield at all, Defenders burden was to  show  that  the
Boards  application  of sustained yield to  predator  populations
lacked a reasonable basis, was arbitrary or capricious, or failed
          to consider important factors66 by showing, for example, that the
Board used incorrect estimates of populations, or because harvest
levels  were  set too high.  Defenders did not contend  that  the
Board acted arbitrarily in applying sustained yield principles to
its  2006 plans; it focused entirely on its claim that the  Board
failed to apply the sustained yield principles at all.  Defenders
did  express  concern over whether the Boards minimum  population
objectives  will be large enough to permit a yield, sustained  or
otherwise,  now or in the future but Defenders did not  elaborate
or  support  this concern with evidence.  Because  the  Board  is
entitled  to  deference in areas where it has special  expertise,
such  as  application  of  sustained  yield,  Defenders  bore   a
significant burden in demonstrating that it acted in an arbitrary
manner.   On this record, we must conclude that Defenders  failed
to  meet  their  burden,  and that the  superior  court  properly
declined to vacate the 2006 predator control regulations on those
grounds.
          In  reaching  this  decision, we expressly  reject  the
Boards  position that the application of sustained yield to  wolf
and  bear  populations in predator control areas is discretionary
and  based  only  on  its policy view that  these  highly  valued
resources   should  be  maintained  as  healthy   and   necessary
components  of our ecosystems, rather than any constitutional  or
statutory  mandate.67   It  is  the  Boards  constitutional   and
statutory  duty to apply principles of sustained  yield  when  it
adopts  predator  control plans; this is not  a  policy  question
subject to Board discretion.
     D.   The   Superior  Court  Did  Not  Err  In  Denying  West
          Attorneys Fees.
          West  argues that the superior court erred  in  denying
him  attorneys fees as a prevailing party under Alaska Civil Rule
82 and AS 09.60.010.  The superior court ruled that although West
prevailed  on  his argument that the constitutional principle  of
sustained yield applies to predators, he failed on the main issue
he  pursued:  invalidating the 2006 predator control regulations.
As  such,  the  superior  court  concluded  that  he  was  not  a
prevailing  party entitled to attorneys fees.  Our court  reviews
awards  of  attorneys fees for abuse of discretion.68   Abuse  of
discretion   exists  if  the  award  is  arbitrary,   capricious,
manifestly unreasonable, or improperly motivated.69
          West  did  not  prevail  on  the  main  issue  in  this
litigation.   His  claim  was that the  Boards  predator  control
regulations do not comply with Alaskas sustained yield  clause.70
He  did  not  successfully prosecute[] or  defend[]  against  the
action, nor was he successful on the main issue of the action and
he was not the party in whose favor the decision or verdict [was]
rendered and the judgment entered.71  We recognize the care  West
took to research the constitutional question raised in this case,
but  the  main  issue was whether the adoption  of  a  particular
regulation passed constitutional muster; this litigation was  not
an  untethered inquiry into constitutional meaning.  The superior
court  correctly entered summary judgment in the States favor  on
Wests  Count XI.  We affirm the superior courts decision  denying
West attorneys fees.
V.   CONCLUSION
          We  AFFIRM  the  superior courts ruling  regarding  the
applicability  of  Alaskas  sustained yield  clause  to  predator
populations  but  REVERSE its ruling that AS 16.05.255  does  not
apply to predator populations.  We AFFIRM the courts ruling  that
Defenders and West failed to meet their burden to show  that  the
Boards  2006  predator  control plans violate  Alaskas  sustained
yield  clause,  and hold that Defenders and West also  failed  to
show  that  the  plans violate the sustained yield provisions  of
Alaskas  intensive  management statute.  We AFFIRM  the  superior
courts order denying Wests motion for attorneys fees.
_______________________________
     1    Some anthropologists believe that, long before European
contact,  indigenous people in Alaska sought to  reduce  predator
populations, particularly wolf populations, in order to  increase
their  harvest of prey species.  See Comm. on Mgmt. of  Wolf  and
Bear  Populations  in Alaska, National Research Council,  Wolves,
Bears, and Their Prey in Alaska: Biological and Social Challenges
in Wildlife Management 27-28 (1997).

     2     A  1996  public initiative banned aerial and land-and-
shoot  wolf  hunting except by state employees when a  biological
emergency was declared in a specific geographical area.  In  1999
the  legislature  expanded the grounds  for  authorizing  a  wolf
control program, including to increase prey populations.  See  AS
16.05.783.  The following year, the legislature passed a  statute
that would have allowed the general public to engage in land-and-
shoot  wolf  hunting  in areas where a wolf control  program  was
authorized,  but the statute was overturned by public  referendum
several  months  later.   A  2008  public  initiative  sought  to
reimpose  strict limits on authorizing predator control programs,
but it was defeated.

     3     Gerald  A.  McBeath, The Alaska State Constitution:  A
Reference Guide 146 (1997); Bret Adams et al., Environmental  and
Natural  Resources Provisions in State Constitutions, 22 J.  Land
Resources   &  Envtl.  L.  73,  255-263  (2002)  (listing   state
constitutional provisions relating to the environment and natural
resources).

     4    AS 16.05.255(e)(1), as enacted by Ch. 13,  2, SLA 1994.
Before  the  Board adopts an intensive management  program  in  a
given  area,  it  must  first determine that  reductions  in  the
productivity  of  big  game  prey  populations  may   result   in
reductions  in human harvest and that an increase in productivity
is feasible using intensive management.  AS 16.05.255(e)(2), (3).

     5    AS 16.05.255(e).

     6    AS 16.05.255(k)(4), as enacted by Ch. 13,  2, SLA 1994.

     7    Ch. 13,  1, SLA 1994 (emphasis added).

     8    AS 16.05.255(k), as amended by Ch. 76,  4, 5, SLA 1998.

     9    5 AAC 92.110 related to control of predation by wolves,
.115 related to control of predation by bears.

     10    5 AAC 92.110(d)(3) (repealed 3/10/2006, Register 177);
5  AAC  92.115(c)(3) (repealed 3/10/2006, Register 177) (emphasis
added).

     11    Friends of Animals v. State, Dept of Fish & Game, 3AN-
03-13489  CI  (Alaska  Super., January  17,  2006).   Friends  of
Animals did not involve the issue of sustained yield.

     12    Sierra Club was also a plaintiff in this action below,
but does not participate on appeal.

     13     Friends  of Animals, Inc. and Tom Classen  separately
filed  suit  in  November 2006.  Most of their claims  failed  to
survive summary judgment, but they do not participate on appeal.

     14     The superior court did rule that to the extent 5  AAC
92.125  authorizes  airborne or same  day  airborne  shooting  of
wolves   in   subunits   16(A),  20(A)-(D),   and   25(C),   that
authorization is invalid, based on the Boards failure to make the
requisite findings under AS 160.05.783(a)(1).

     15     In  reaching this decision, the superior court  noted
that  it was making no decision concerning the actual conduct  of
these or any other predator control programs.

     16     The  superior court concluded that the plans  do  not
violate the constitutional mandate of the sustained yield  clause
to  the  extent  that  the  [States existing  management  of  the
predator populations] was challenged by any Plaintiff.

     17     West does not appeal the superior courts dismissal of
this claim.

     18     Parson  v. State, Dept of Revenue, Alaska Hous.  Fin.
Corp., 189 P.3d 1032, 1036 (Alaska 2008).

     19    Id.; McCormick v. Reliance Ins. Co., 46 P.3d 1009, 1011
(Alaska 2002).

     20    Parson, 189 P.3d at 1036.

     21    Id.

     22     Native Vill. of Elim v. State, 990 P.2d 1, 5  (Alaska
1999).

     23    Koyukuk River Basin Moose Co-Mgmt. Team v. Bd. of Game,
76  P.3d 383, 386 (Alaska 2003) (citing Native Vill. of Elim, 990
P.2d at 5).

     24    Id.

     25    Id.

     26    Lakosh v. Alaska Dept. of Envtl. Conservation, 49 P.3d
1111, 1114 (Alaska 2002).

     27    Rhodes v. Erion, 189 P.3d 1051, 1053 (Alaska 2008).

     28    Id.

     29     Parson v. State, Dept. of Revenue, Alaska Hous.  Fin.
Corp., 189 P.3d 1032, 1036 (Alaska 2008); Native Vill. of Elim v.
State, 990 P.2d 1, 5 (Alaska 1999).

     30     Hammond v. Hoffbeck, 627 P.2d 1052, 1056 n.7  (Alaska
1981).

     31    Alaska Const. art. VIII,  4 (emphasis added).

     32    Resources Committee, Alaska Constitutional Convention,
Terms (1955).

     33     Div.  of  Elections v. Johnstone, 669 P.2d  537,  539
(Alaska 1983) (internal citations and quotations omitted).

     34    Hickel v. Halford, 872 P.2d 171, 177 (Alaska 1994).

     35      The   Alaska  Constitutional  Convention,   Proposed
Constitution for the State of Alaska: A Report to the  People  of
Alaska (1956).

     36     The  State does not contest the plain meaning of  the
sustained  yield clause, and instead highlights the statement  of
Delegate Burke Riley, Secretary of the Constitutional Conventions
Resources Committee, that predators would not be maintained on  a
sustained yield basis. 4 Proceedings of the Alaska Constitutional
Convention 2451 (January 17, 1956).  But individual comments from
delegates  do  not  necessarily indicate  constitutional  intent,
Glover  v.  State, Dept. of Transp., 175 P.3d 1240, 1248  (Alaska
2008),  and  we  conclude that the text of  the  sustained  yield
clause itself, along with the descriptions provided to the voters
and  the  delegates, contradicts the view presented by  Secretary
Riley.

     37     Native Vill. of Elim v. State, 990 P.2d 1, 7  (Alaska
1999).

     38    Alaska Const. art. VIII,  4 (emphasis added).

     39    990 P.2d at 7-8.

     40      The   Alaska  Constitutional  Convention,   Proposed
Constitution for the State of Alaska: A Report to the  People  of
Alaska (1956) (emphasis added).

     41    Resources Committee, Alaska Constitutional Convention,
Terms (1955) (emphasis added).

     42     Parson v. State, Dept. of Revenue, Alaska Hous.  Fin.
Corp., 189 P.3d 1032, 1036 (Alaska 2008).

     43     AS 16.05.255(e) (emphasis added).  The superior court
focused  its  analysis on subsection (g) of  the  statute,  which
requires  that  the Board establish population and harvest  goals
and  seasons for intensive management, rather than subsection (e)
of  the statute, which establishes the framework under which  the
Board  shall adopt regulations to establish intensive  management
programs.

     44    AS 16.05.225(k)(4) (emphasis added).

     45     AS  16.05.225(k)(5) (emphasis added).   The  superior
courts order incorrectly states that the term sustained yield  is
not defined.

     46    AS 16.05.255(e), (k)(4), (k)(5) (emphasis added).

     47    This definition applies to AS 16.05-16.40, including AS
16.05.255.

     48    AS 16.05.255(k)(5).

     49    Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d
183,  192  (Alaska  2007) ([C]ourts should if  possible  construe
statutes  so  as  to  avoid  the danger of  unconstitutionality.)
(internal citations and quotations omitted).

     50    The question of whether the Board adopted its predator
control   plans  consistent  with  the  statutory  principle   of
sustained  yield  was argued by the parties  below,  and  neither
party  suggests that the constitutional and statutory  principles
of  sustained  yield  demand  separate  analyses.   We  therefore
examine this question ourselves rather than remanding for further
proceedings.

     51    Koyukuk River Basin Moose Co-Mgmt. Team v. Bd. of Game,
76 P.3d 383, 389 n.27 (Alaska 2003).

     52     McCormick  v. Reliance Ins. Co., 46 P.3d  1009,  1011
(Alaska 2002).

     53     We  focus  on  Defenders arguments here  because,  on
appeal,  West primarily focuses his argument on the propriety  of
the  superior  court  even addressing the issue  of  whether  the
Boards plans were adopted in accordance with the sustained  yield
clause.   To the extent the superior court addressed this  issue,
we conclude that it acted properly.

     54    Board of Game Bear Conservation and Management Policy,
Findings of the Alaska Board of Game 2004-147-BOG, at 4 (March 8,
2004).

     55     For  example, 5 AAC 92.125(c)(6) provides  that  with
respect  to  the  predator control area in Game  Management  Unit
(GMU)  13,  the commissioner will suspend wolf control activities
when   (i)  wolf  inventories  or  accumulated  information  from
permittees indicate the need to avoid reducing wolf numbers below
the   management  objective  of  135  wolves  specified  in  this
subsection.  It also provides that the commissioner will annually
close wolf hunting and trapping seasons, as appropriate to ensure
that   the  minimum  wolf  population  objective  is  met.   This
regulation  is  based  upon  testimony  presented  by  the  field
biologists  covering  the GMUs for each of the  predator  control
areas,  as well as the Boards prior findings authorizing predator
control in these areas.

     56    For example, 5 AAC 92.125(c) sets forth the geographic
boundaries of the predator control area for GMU 13.

     57     For example, 5 AAC 92.125(c)(6)(B)(ii) provides  that
wolf  control  activities will be terminated  .  .  .  (ii)  upon
expiration  of  the  period  during  which  the  commissioner  is
authorized  to  reduce predator numbers in the  predator  control
plan  area.   For  GMU  13,  for  example,  the  commissioner  is
authorized to engage in predator control efforts for up  to  five
years . . . .  5 AAC 92.125(c)(5)(A).

     58    5 AAC 92.125(c)(1)(C)(i).

     59    5 AAC 92.125(c)(2)(B).

     60    5 AAC 92.125(e)(1)(C)(vi).

     61    5 AAC 92.125(f)(3)(E) and (F).

     62    5 AAC 92.125(c)(1)(C)(ix).

     63    5 AAC 92.125(c)(1)(D)(iii).

     64    It appears the reason the Boards predator control plans
reflect  the  requirements of 5 AAC 92.110 and .115, even  though
these  requirements  were later repealed, is that  the  permanent
regulation was based largely upon the interim regulation  adopted
when the requirements were still in effect.  Judge Gleason issued
her  ruling that the Boards previous predator control plans  were
invalid  because they failed to address the requirements of  .110
on  January  17, 2006.  The Board adopted its interim  regulation
during  an emergency teleconference meeting on January 25,  2006.
The  Board did not repeal .110 (b) and (d) and .115 (b)  and  (c)
until the Boards regularly scheduled meeting on January 29, 2006.

     65     ADF&G Wildlife Research Biologist Mark McNay  gave  a
lengthy  presentation  to the Board during  its  March  12,  2006
meeting  on this topic, and he reported that in studies  reviewed
by  the National Research Council, wolf populations rebounded  to
88  to  112 percent of the precontrolled population size in three
to  five  years.  He also highlighted that the National  Research
Council  concluded  that [n]o available data  suggests  that  the
killing  of wolves by humans has adversely affected the long-term
social  organization, reproductive rates, or population  dynamics
of the species.

     66    Trustees for Alaska v. State, Dept of Natural Res., 795
P.2d   805,   809  (Alaska  1990)  (stating  that  determinations
involv[ing]   complex  subject  matter  or   fundamental   policy
formulations  are  reviewed  only  to  the  extent  necessary  to
ascertain whether the decision has a reasonable basis, . . .  was
not arbitrary, capricious, or prompted by corruption, and did not
fail[]  to  consider an important factor in making its decision.)
(internal quotations omitted).

     67     The  State further comments in its brief that despite
its position that predators need not be maintained on a sustained
yield   basis,   the  Department  and  Board,  exercising   their
discretion  to  manage for beneficial uses of all wildlife,  have
always  maintained that Alaskas wolf and bear populations  should
be managed in accordance with the sustained yield principle.

     68    Rhodes v. Erion, 189 P.3d 1051, 1053 (Alaska 2008).

     69    Id.

     70     West  claims  that  in his cross-motion  for  summary
judgment he only argued the constitutional issue.  While this may
be  the  case, the State sought summary judgment on all of  Wests
claims, and the superior court ruled in its favor.

     71    Day v. Moore, 771 P.2d 436, 437 (Alaska 1989).

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC