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. Gold Dust Mines, Inc. v. Little Squaw Gold Mining Company (9/28/2012) sp-6711

Gold Dust Mines, Inc. v. Little Squaw Gold Mining Company (9/28/2012) sp-6711

        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, email 

        corrections@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



GOLD DUST MINES, INC.,                          ) 

DELMER M. ACKELS, and                           )       Supreme Court Nos. S-13530/13909 

GAIL ACKELS,                                    )       (Consolidated) 

                                                ) 

                        Appellants,             )       Superior Court No. 4FA-07-01131 CI 

                                                ) 

        v.                                      )       O P I N I O N 

                                                ) 

LITTLE SQUAW GOLD MINING                        )       No. 6711 - September 28, 2012 

COMPANY,                                        ) 

                                                ) 

                        Appellee.               ) 

                                                ) 

                                                ) 

GOLD DUST MINES, INC.,                          ) 

DELMER M. ACKELS, and                           ) 

GAIL ACKELS,                                    ) 

                                                ) 

                        Appellants,             ) 

                                                ) 

        v.                                      ) 

                                                ) 

LITTLE SQUAW GOLD MINING                        ) 

COMPANY,                                        ) 

                                                ) 

                        Appellee.               ) 

_______________________________ )
 



                Appeal     from    the  Superior   Court   of   the  State  of   Alaska,
 

                Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge.
 


----------------------- Page 2-----------------------

              Appearances:       Thomas     R.   Wickwire,    Fairbanks,   for 

              Appellants.     Aisha   Tinker   Bray,  Guess   &   Rudd   P.C., 

              Fairbanks, for Appellee. 



              Before:    Carpeneti,    Chief  Justice,  Fabe,  Winfree,   and 

              Stowers, Justices. [Christen, Justice, not participating.] 



              CARPENETI, Chief Justice. 



I.     INTRODUCTION 



              Two mining companies entered a ten-year mining lease. The lessee was 



responsible for mining and prospecting claims owned by the lessor and its president. 



The companies entered a holdover tenancy after the   expiration of the lease.   During this 



time, an officer of the lessee company staked mining claims that overlapped with the 



claims his company had mined under the ten-year lease.       In his own name, that officer 



filed location notices for the newly staked claims with the State Department of Natural 



Resources.  The parties disagreed about who rightfully owned the claims staked during 



the holdover tenancy and broke off their lease agreement in October 2003. 



              In 2007, the former lessor filed suit against the former lessee and its two 



officer-shareholders, seeking to quiet title to the disputed mining claims, to eject the 



former lessee and its officers from the claims, and to secure damages under several tort 



and contract causes of action.   The former lessee denied various allegations, raised 13 



affirmative defenses, and counterclaimed for the value of labor performed on the claims. 



Following a three-week trial, the superior court resolved the dispute in favor of the 



former lessor.  The former lessee filed two appeals of post-trial orders, which we have 



consolidated for decision.   We affirm the superior court on all but one issue:    Because 



specific findings are needed to pierce the corporate veil, we reverse the entry of judgment 



                                            -2-                                       6711
 


----------------------- Page 3-----------------------

and the award attorney's fees against the wife of the officer of the lessee company and 



remand for further proceedings. 



II.     FACTS AND PROCEEDINGS 



        A.      Background: Mining Laws 



                This case arises under our state's mining laws.   Because the relevant facts 



are intimately related to the requirements of state mining statutes, we begin by briefly 



describing the legal background of this case: 



                Under Alaska law, mining rights on state lands are acquired 

                through the process of "location." This process entails the 

                discovery [of valuable minerals] and marking of the claim, 

                the posting of a notice at the claim site, and the recording of 

                a   certificate   of   location   [with   the   Department   of   Natural 

                Resources]. Through location, a locator acquires a mining 

                claim   priority   against   subsequent   locators   to   the   selected 

                claims.[1] 



Although the locator does not have exclusive use of the surface estate of a mining claim, 

the locator may exclude other parties from unreasonable uses of the surface estate.2               An 



attempted location is void if it overlaps with mining claims held by others.3 



                The   locator   of   a   mining   claim,   when   filing   a   location   notice   with   the 



Department of Natural Resources, gives the claim a name.  (Many long-standing mining 



claims, including some of the claims in dispute here, have colorful names.)              In addition 



to its name, each claim can be identified by a unique Alaska Department of Land or 



"ADL" number.        The names and numbers identify surface estates no greater than 160 



        1       Moore v. State, Dep't of Natural Res. , 992 P.2d 576, 578 (Alaska 1999) 



(citing AS 38.05.195; AS 38.05.210-211; and 11 Alaska Administrative Code (AAC) 

86.200-221); see also  11 AAC 86.105 and .200. 



        2       AS 38.05.255. 



        3       AS 38.05.245(b). 



                                                 -3-                                            6711
 


----------------------- Page 4-----------------------

acres, and often only 40 acres.       Many traditional mining claims are not perfect squares 



staked along north-south, east-west lines. 



                Under   the   Department   of   Natural   Resources'   modern   claim-recording 



system, the geographic location of a claim is identified by reference to the meridian, 



township, range, section, quarter-section, and quarter-quarter-section coordinates of the 

public land survey system.4       The MTRSC system requires miners to locate claims along 



north-south, east-west lines.5     This system has not extinguished the validity of traditional 



mining claims previously recorded under the non-MTRSC system.6  The MTRSC system 



was   adopted   to   "improve   accuracy,   accessibility,   and   timeliness   of   [claim   location] 

data."7   The state's centralized claim-recording system makes it easy to compare the 



geographic locations of recorded claims, and if the recorded information is accurate, to 

identify overlapping claims.8 



        4       AS     38.05.195(b)(1)-(2)      (authorizing     claim-location     by   reference    to 



meridian, township, range, and section); see also  11 AAC 86.202 (defining traditional 

mining claims and MTRSC (meridian/township/range/section) claims by reference to 

AS 38.05.195(b)(1) and (2)). 



        5        AS 38.05.195(b)(2) ("[T]he boundaries of a claim . . . shall run in the four 



cardinal directions unless the claim is a fractional claim or the commissioner determines 

that staking in compliance with this paragraph is impractical . . . ."). 



        6       See AS 38.05.195(b) (recognizing claims recorded under MTRSC system 



and non-MTRSC claims). 



        7       Minutes, Sen. Res. Comm. Hearing on S.B. 175, 21st Leg., 2d Sess. (Feb. 



21, 2000) (testimony of Steve Borrell, Alaska Miners Assoc. Exec. Dir.). 



        8       AS 38.05.195(b)(1) provides that, in the event of a conflict over boundaries 



for the quarter section or quarter-quarter section, "the corners marked on the ground of 

a   claim    established    in  accordance     with    this  paragraph     and   regulations    of   the 

commissioner control." 



                                                  -4-                                            6711
 


----------------------- Page 5-----------------------

                In order to maintain a mining claim, the locator must comply with various 

statutory requirements.      These include making annual rental payments to the state9 and 



performing   annual   labor   for   the   benefit   of   the   claim.10 To   satisfy   the   annual   labor 



requirement,   the   claim-holder   must   submit   annually   to   the   Department   of   Natural 

Resources an affidavit attesting to the work performed.11             When work performed in a 



given year exceeds the statutory requirement for that year, "the excess value may be 



applied against labor required to be done during the subsequent year or years, for as 

many as four years."12      The claim-holder may be required to obtain a permit for certain 



uses   of   the   surface   estate   while   mining.13 Failure   to   comply   with   certain   statutory 



requirements      constitutes    abandonment       of  a  mining    claim.14   However,       in  some 



circumstances, a claim holder may cure the abandonment that resulted from a failure to 

record annual labor or pay rents as required.15 



        9       AS 38.05.211. 



        10      AS 38.05.210. 



        11      11 AAC 86.220(c). 



        12      AS 38.05.210(a). 



        13      11 AAC 96.010.        Cf. 11 AAC 86.150 (authorizing use of mining plan of 



operations instead of permit in some cases). 



        14      AS 38.05.265(a); see also AU Intern., Inc. v. State, Dep't of Natural Res., 



971 P.2d 1034, 1038 (Alaska 1999) ("[F]ailure to record a statement of annual labor 

constitutes abandonment, without regard to intent."). 



        15      See AS 38.05.265(b); see also 11 AAC 86.125 (substantial rather than strict 



compliance authorized by Commissioner on a case-by-case basis). 



                                                  -5-                                            6711
 


----------------------- Page 6-----------------------

                In   addition   to   statutes   and   regulations,   mining   rights   are   governed   by 



longstanding common law and equitable doctrines, including the rules of contract law 



governing mining leases. 



        B.       Facts 

                Little Squaw Gold Mining Company16 is an Alaska corporation that has 



held mining claims in the Chandalar mining district since the early 1970s. In 1972, Little 



Squaw      obtained    the  rights   to  various   mining    claims   from    Eskil   Anderson,     who 



exchanged these claims for shares of Little Squaw   stock and became Little Squaw's 



president that year.     In the 1980s, Anderson and Hollis Barnett located new claims on 



behalf   of   Little   Squaw,   including   Upper   Discovery   on   Big   Creek   (ADL   515447), 



Number Five Below Upper Discovery on Big Creek  (ADL 515452), and  Number Two 



Above   Discovery   on   Little   Squaw   Creek   (ADL   515445).           Around   the   same   time, 



Anderson located, in his own name, other claims that he later transferred to Little Squaw, 



including Star East Fraction (ADL 515473) and Golden Eagle Fraction. (ADL 515474) 



Although these claims were located by Anderson, Little Squaw managed these claims 



from discovery onwards. 



                Gold Dust Mines, Inc. is an Alaska corporation.               Its sole shareholders, 



directors, and officers are Delmer M. Ackels (Del) and Gail E. Ackels (Gail).                   (In this 



opinion,   we   use   "Gold   Dust"   to   refer   to   the   appellants   collectively   and   "Gold   Dust 



Mines" to refer to the company.)           Del began mining on Gold Dust Creek in the late 



1960s and in the Chandalar district in 1989.            In 1989, Gold Dust Mines entered into a 



ten-year    lease   with   Little  Squaw,     and  Del   personally    guaranteed     the   company's 



        16      During the course of this litigation, Little Squaw Gold Mining Company 



changed its name to Goldrich Mining Company.                  To avoid confusion, we follow the 

parties' practice of referring to this company as Little Squaw, the name under which it 

had been operating when it filed this action. 



                                                  -6-                                               6711 


----------------------- Page 7-----------------------

obligations under the lease.   Under the terms of the lease, Gold Dust Mines was to mine 



and    prospect    Little  Squaw's     Chandalar     district  mining    claims   and   complete     the 



statutorily required annual labor on those claims.            In addition, Gold Dust Mines was 



required to pay Little Squaw an annual fee and a percent of royalties on minerals and 



metals extracted. 



                In 1999, Little Squaw managed 112 mining claims in the Chandalar mining 



district, including several      mining claims relevant to the present dispute.         Little Squaw 



was required to complete $11,200 of labor to meet the statutory labor requirement on 



those claims.     That year Del completed   $108,000 worth of work on behalf of Little 



Squaw,      including   airstrip  and   road   maintenance,     mine-site    preparation,    stripping, 



processing, and reclamation on Little Squaw's claims 7 Below Discovery on Big Creek, 



7 Below East on Big Creek, and other unspecified locations on Tobin Creek and Big 



Creek. He submitted to the Department of Natural Resources an affidavit describing this 



work and listing the 112 mining claims that Little Squaw managed at the time. 



                In   1999,   Gold   Dust   Mines'   compliance   with   other   terms   of   the   lease 



faltered.   The company failed to make its annual payment to Little Squaw.  It also failed 



to pay the royalty due on production and state rental payments due on Little Squaw's 



claims.   Around that time, Del was having financial trouble; he asserts that his mining 



business suffered as a result of broken equipment and a dispute with the equipment 



dealer. Both Del and Gail filed a petition for personal bankruptcy in February 2000, five 



months after the scheduled expiration of Gold Dust Mines and Little Squaw's ten-year 



lease.  On the bankruptcy petition, Gold Dust Mines was listed among the assets as an 



"inactive" company without liabilities or assets.  The lease with Little Squaw was listed 



under the heading of executory contracts and unexpired leases in which the debtors have 



                                                  -7-                                            6711
 


----------------------- Page 8-----------------------

 an interest.  Little Squaw was listed as a debtor for the sum of $7,500, the amount of the 



 lease payment that Gold Dust Mines owed from 1999. 



                 Around 2000, by failing to make statutorily required payments to the state, 



 Little Squaw abandoned 86 of the mining claims it managed in the Chandalar mining 



 district.  The record strongly suggests that the missed payments and abandonment were 



 the result of Gold Dust Mines' failure to pay Little Squaw $7,500 due under the lease in 



 1999.17  Little Squaw and Anderson held on to the remaining 26 mining claims, including 



 Number Two Above Discovery on Little Squaw Creek (ADL 515445); Upper Discovery 



 on Big Creek (ADL 515447); Number Five Below Upper Discovery on Big Creek (ADL 



 515452); Star East Fraction (ADL 515473); and Golden Eagle Fraction (ADL 515474). 



 In 2000, Little Squaw relied on excess assessment work that Del had performed in 1999 



 in   order   to   comply   with   state   labor   requirements   for   its   26   claims   in   the   Chandalar 



 mining district. 



                Although the parties continued to communicate about the mining claims 



through 2003, they dispute whether they renewed the terms of the original lease upon its 



expiration in 1999.      Gold Dust Mines did not make payments under the lease between 



2000 and 2002.       However, during this period, Del's mining equipment remained on the 



surface of claims that, as Gold Dust Mines' agent, he had mined for Little Squaw.  Little 



Squaw maintained that Gold Dust Mines and Little Squaw continued to operate under the 



terms of the lease in a "holdover tenancy" until October 2003.   Del asserted that in 2000 



he and Little Squaw were operating under the terms of a separate oral contract, which 



         17      Some evidence suggests that Anderson, who was unable to testify in 2008 



 because of dementia, may have lost track of details of Little Squaw's business several 

 years before this case went to trial while some evidence suggests that Little Squaw may 

 have deliberately abandoned the claims. 



                                                  -8-                                              6711 


----------------------- Page 9-----------------------

allowed him to store his equipment on Little Squaw's claims in exchange for performing 



annual labor on the claims.   A jury ultimately found that a holdover tenancy existed and 



that the parties were not operating under the terms of a separate oral contract. 



               In   July   2003,   Del   recorded   with   the   Department   of   Natural   Resources 



location notices for various mining claims he had staked that summer.18         There is evidence 



suggesting that all of these claims overlap with the locations that Del had mined for Little 



Squaw under their 1989 lease agreement. 



               In 2003, Richard   Walters replaced Eskil Anderson as president of Little 



Squaw.    Around the same time, Anderson transferred to Little Squaw title to Star East 



Fraction and Golden Eagle Fraction, two claims that Little Squaw had managed since the 



late   1980s.   In  September   2003,   Walters   and   Del   Ackels   had   a   confrontation   at   a 



Fairbanks restaurant.    Shortly thereafter the holdover tenancy was terminated. 



               In 2003 and 2004, Little Squaw recorded new location notices for mining 



claims that overlapped with its previously recognized claims.           It identified the relevant 



claims as: LSGMC 811 (ADL 641356); LSGMC 910 (ADL 641528); LSGMC 911 (ADL 



641529);   LSGMC   912   (ADL   641530);   LSGMC   1012   (ADL   641540);   LSGMC   1117 



(ADL 641553); and [2004] No. Two Above Discovery (ADL 645852). After Little Squaw 



had re-staked some of its claims, Gold Dust Mines filed amendments to correct errors in 



some of its 2003 filings.     Three amendment notices changed the recorded locations of 



         18     These claims included:      GDM 1 (ADL 641352), GDM 2 (ADL 641353), 



 GDM 3 (ADL 641354), GDM 4 (ADL 641355), GDM 5 (ADL 641356), GDM 6 (ADL 

 641357), GDM 7 (ADL 641358), GDM 8 (ADL 641359), GDM 9 (ADL 641360), GDM 

 10 (ADL 641361), GDM 11 (ADL 641362), GDM 12 (ADL 641363), GDM 13 (ADL 

 641364), GDM 14 (ADL 641365), GDM 15 (ADL 641366), GDM 16 (ADL 641367), 

 and GDM 17 (ADL 641368), LSO 1, LSO 2 (ADL 641349), LSO 3 (ADL 641350), 

 LSO 4 (ADL 641351). 



                                                -9-                                           6711
 


----------------------- Page 10-----------------------

GDM 1, GDM 2, and LSO 4; and one corrected a deficiency in the location date of GDM 



17. 



                During the course of this competitive staking, the parties communicated with 



employees at the Department of Natural Resources about the validity of the claims and 



amendments filed in 2003 and 2004.  In September 2003, the Department invited Del to 



amend deficient posting dates in the Location Notices for GDM 16 and GDM 17 and 



notified him that GDM 17 might conflict with one of Little Squaw's claims (Number 5 



Below Upper Discovery; ADL 515452).               In the fall of 2008, shortly before the trial to 



resolve this dispute began in superior court, the Department of Natural Resources issued 



a written determination stating that four Amended Location Notices filed by Del Ackels 



for GDM 1, GDM 2, GDM 17, and LSO 4 were invalid. 



        C.      Proceedings 



                In February 2007, Little Squaw filed suit in superior court alleging that Gold 



Dust    improperly    staked   and   recorded    claims   that  belonged    to  Little  Squaw.     The 



complaint presented 16 causes of action including quiet title, removal of clouds on title, 



ejectment,   trespass,   conversion   of   gold   and   other   personal   property,   conversion   of 



information, breach of contract, breach of fiduciary duty, piercing the corporate veil, and 



indemnity for liabilities of Gold Dust Mines.         In its answer to the complaint, Gold Dust 



denied    various    allegations   and  raised   13  affirmative    defenses   including    statute  of 



limitations, forfeiture of mining claims, discharge in bankruptcy, estoppel, laches, unclean 



hands, breach of covenant of good faith and fair dealing, and several reasons that the lease 



was   not   enforceable   (including   lack   of   consideration   and   performance   excused      by 



breach). Gold Dust also counterclaimed for $52,000 for assessments that it performed on 



claims that Little Squaw abandoned. 



                                                 -10-                                           6711
 


----------------------- Page 11-----------------------

                Superior Court Judge Randy M. Olsen resolved some issues on summary 



judgment, decided others by directed verdict, and submitted others to a jury.                  Based on 



trial testimony, the court reversed a partial grant of summary judgment that it had issued 



earlier in the case concerning Gold Dust Mines' right to stake claims on its own behalf 



under the terms of the lease.        At trial, Gold Dust attempted to show that by failing to 



satisfy statutory requirements in 2000, Little Squaw had abandoned the relevant claims 



and had no rights in those claims under the lease.  In turn, Gold Dust argued that the lease 



was invalid and that it owed Little Squaw no duty to stop from staking claims.                  At trial, 



Little Squaw maintained that it had preserved its rights to the disputed claims, with which 



Del and Gold Dust Mines improperly interfered. 



                After   a   three-week   trial,   the   case   was   resolved   in   Little   Squaw's   favor. 



Using factual determinations made by the jury, the court concluded that Little Squaw was 



not time-barred from bringing its claims, recognized Little Squaw's title to the disputed 



mining claims, granted judgment to Little Squaw on the ejectment and trespass claims, 



dismissed Gold Dust's counterclaims, and authorized Little Squaw to pierce Gold Dust 



Mines' corporate veil (thereby holding the Ackelses personally liable) for losses arising 



after 2003.   These conclusions were summarized in the superior court's  written findings 



and conclusions of March 20, 2009. 



                After   trial   and   before   the   superior   court   issued   its   findings   of   fact   and 



conclusions of law, Del submitted an application to the Department of Natural Resources 



for a five-year permit to mine claims located at Township 31, Range 3 West, Sections 10, 



 15, and 16.  Del traveled to those claims in March 2009 and obtained a copy of the court's 



findings and conclusions upon his return to Fairbanks. 



                Following the entry of the superior court's order, Del applied for another 



permit to mine     in Fairbanks Meridian, Township 31 North, Range 3 West, Section 28. 



                                                  -11-                                             6711
 


----------------------- Page 12-----------------------

In July 2009, Del traveled to these claims to begin mining them for the season.                    Little 



Squaw believed that Del was mining within the boundaries of its claims and moved for 



the superior court's intervention.        On July 29, 2009, the superior court issued an Order 



in Aid of Final Judgment, which ordered Del off all of Little Squaw's mining claims. 



Following his receipt of this order, Del stopped his mining activity. 



                In November 2009, the superior court held a hearing in which it considered 



Little Squaw's motion to hold Del in contempt for refusing to obey court orders.19                   The 



superior court concluded that "[Del's] explanation [of his 2009 mining activity] is flaky, 



but not illegal . . . there's enough wiggle room . . . not to find that he was in contempt of 



the court order."     At the end of that hearing, the superior court explained that it would 



address the issue of reclamation costs resulting from the 2009 mining at another time. 



                Following a hearing on damages in May 2010, the superior court ordered 



Gold Dust Mines and the Ackelses to pay $15,862.24 for the costs of reclaiming the land 



Del   mined   in   July   2009.    This   damages   award   was   based   on   the   superior   court's 



conclusion that Del's 2009 mining activity took place within the boundaries of Little 



Squaw's GRMC 14 and 15 claims, and not within the boundaries of GDM 18.  The 



superior   court   entered   an   enhanced   attorney's   fees   award,   naming   Little   Squaw   the 



prevailing party. 



                Gold   Dust   Mines   and   Del   and   Gail   Ackels   appeal   the   superior   court's 



findings and conclusions of March 2009 as well as the post-trial order for damages arising 



from the summer 2009 mining activity.            We have consolidated these two appeals. 



         19      A Department of Natural Resources employee had informed Little Squaw's 



 counsel   that   the   Department   would   revoke   Del's   permit   to   mine   if   he   were   held   in 

 contempt for trespassing on Little Squaw's claims. 



                                                   -12-                                               6711 


----------------------- Page 13-----------------------

III.    STANDARD OF REVIEW 



                This case involves   both factual and legal questions.          The court's factual 



findings20 - such as those concerning credibility and why Del Ackels stopped mining in 



2009   -   should   not   be   overturned   unless   they   are   clearly   erroneous.21  In   reviewing 



questions     of  law  -    here,  concerning     the  application   of  state  mining    statutes  and 



regulations - we "adopt the rule of law that is most persuasive in light of precedent, 



reason and policy."22 



                Attorney fee awards are reviewed for abuse of discretion.23              We will not 



reverse an award unless it is "manifestly unreasonable."24 



IV.     DISCUSSION 

                The   issues   before   us   are  complicated.25   In   the   15-part   discussion   that 



follows, we explain our resolution of each of Gold Dust's arguments.               But at the outset, 



         20      In this case, none of the jury's factual findings as set out in the special 



 verdict were challenged by Gold Dust. 



         21      McCormick v. City of Dillingham , 16 P.3d 735, 738 (Alaska 2001). 



         22      Miscovich v. Tryck , 875 P.2d 1293, 1297 (Alaska 1994) (citing Guin v. Ha, 



 591 P.2d 1281, 1284, n.6 (Alaska 1979)). 



         23      Joseph v. Jones , 639 P.2d 1014, 1019 (Alaska 1982). 



         24      Welcome v. Jennings, 780 P.2d 1039, 1043 (Alaska 1989). 



         25      They concern the duration and terms of the mining lease, the interpretation 



 of state mining statutes, the effect of      Department of Natural Resources' adjudications, 

 the   equitable   doctrines   of   estoppel   and   constructive   trust,   the   applicable   statute   of 

 limitations, whether the superior court's reversal of its own grant of partial summary 

 judgment was proper, whether certain issues were tried by consent, whether the enhanced 

 attorney's fees award was justified, and whether entry of judgment against an officer- 

 shareholder was proper. 



                                                 -13-                                            6711
 


----------------------- Page 14-----------------------

we   note   the   similarity   between   this   case   and  Miscovich       v.   Tryck .26 The   equitable 



reasoning utilized in that case helps resolve much of the present dispute.                  In Miscovich , 



we affirmed the application of a constructive trust in an action to quiet title to disputed 



mining claims,27      relying on the following rule: 



                 One     who    has    contracted     or  agreed     to  perform     annual 

                 assessment work on a claim cannot, by relocating it after his 

                 failure to do the work, acquire any interest adverse to that of 

                 the prior claimant. Courts have either held his location void, 

                 or held him to be trustee for the benefit of the prior locator.[28] 



That is just what the superior court did in the present case.               Based on the jury's finding 



that the lease was in operation until October 2003, the superior court concluded that 20 



claims Del staked in July 2003 were held in constructive trust for Little Squaw.                     Based 



on   our   review   of   the   record,   we   believe   the   award   of   best   title   to   Little   Squaw   was 



justified.   Evidence in the record suggests all of the   claims   awarded to Little Squaw 



overlapped with locations Gold Dust had mined for Little Squaw under the 1989 lease. 



Although       the   parties   here   did   not   give   much   attention   to   that   case,   it   was   clearly 



instructive to the superior court and provides a context for the parties' dispute. 



         A.	     The   Superior   Court   Did   Not   Err   In   Reversing   Its   October   3,   2008, 

                 Partial Order Of Summary Judgment. 



                 Gold Dust argues that we should reverse the jury finding that the mining 



lease   was   in   operation   until   October   2003   and   reinstate   the   court's   earlier   summary 



judgment ruling interpreting the contract.           According to Gold Dust, the superior court's 



decision to reverse its earlier summary judgment ruling more than a week into the trial 



          26      875 P.2d 1293 (Alaska 1994). 



          27      Id. at 1299-1300 (quieting title to disputed mining claims). 



          28      Id. (citing 2 AMERICAN LAW OF MINING ,  38.03[4]). 



                                                    -14-                                                 6711 


----------------------- Page 15-----------------------

was barred by the law of the case doctrine.             It seems to further argue that the court's 



decision to reverse its earlier ruling was procedurally unsound and resulted in prejudice: 



"If Ackels had thought that going to trial on the remaining issues would put the claims 



and rights awarded him by summary judgment at risk, he would have weighed the trial 



risks differently, altered his settlement position, and perhaps the case would have settled." 



                 Little   Squaw   defends   the   superior   court's   decision   to   reverse   its   earlier 



summary judgment ruling based on Del's trial testimony.  Citing our precedents in West 

v. Buchanan29 and Bylers Alaska Wilderness Adventures, Inc. v. City of Kodiak ,30 Little 



Squaw contends that the superior court may reconsider a prior ruling that is unreasonable 



or untenable.     Little Squaw explains that Del's own testimony about the meaning of the 



lease prompted the superior court's decision to revisit the contract issue and points out 



that Gold Dust failed to raise any objection when the superior court stated its intention to 



revisit the earlier ruling. 



                  "The law of the case doctrine in Alaska 'generally requires adherence by 



a lower court to an appellate court's decision and generally prohibits reconsideration of 

issues which have been adjudicated in an appeal of the case.' "31 But "a superior court 



judge's failure to follow an order of a prior superior court judge does not violate the law 

of the case doctrine."32     The law of the case doctrine is of limited relevance in evaluating 



the superior court's decision to vacate a pre-trial ruling, and it does not apply here. 



         29       981 P.2d 1065 (Alaska 1999).
 



         30
      197 P.3d 199 (Alaska 2008). 



         31       Id. at 206. (quoting Mogg v. Nat'l Bank of Alaska , 846 P.2d 806, 810 



 (Alaska 1993)). 



         32      Id. 



                                                   -15-                                              6711
 


----------------------- Page 16-----------------------

                 Gold Dust's second argument invokes a more relevant legal concept - 



prejudice resulting from party's reliance on a court's earlier ruling.                But this argument 



also misses the mark.        As we explained in  West, "it is entirely reasonable for a judge 



whose   responsibility   it   is   to   try   a   case   to   reconsider   and   reverse   an   earlier   ruling   if 

convinced      that   that  ruling   was   erroneous."33       We    have   not   before   addressed     the 



circumstances in which a superior court can reverse its own prior ruling, but the policy 



applied in West and Byler applies here with equal force; that is, the superior court should 



be allowed to reconsider and reverse an earlier ruling if convinced that the earlier ruling 



was erroneous. 



                 In this case, the court was compelled to reverse its earlier ruling because Del 



testified at trial that any claims he staked under the lease would have been staked for 



Little Squaw.     The court's earlier interpretation of the contract was untenable in light of 



this testimony and at odds with our reasoning in Miscovich .                   Moreover, the superior 



court's decision   to   reverse its earlier interpretation   of the contract still left   open   the 



question of how long the contract was in operation, and the parties litigated this issue 



vigorously.     Finally, because Gold Dust did not object to the superior court's treatment 

of the contract issue at trial, we review this question for plain error.34             We find no plain 



error in the superior court's decision.   Moreover, we perceive no prejudice to Gold Dust 



as a result of the superior court's decision to reverse its earlier summary judgment ruling. 



        B.      Jury Instruction No. 18 Was Not Erroneous. 



                 Gold Dust challenges the superior court's Jury Instruction No. 18 because 



it   did  not   require  a  finding   of  agreement   between        the  lessor  and   tenant   as  to  the 



         33       West, 981 P.2d at 1067 (internal quotation marks and citation omitted). 



         34      Adams v. State , 261 P.3d 758, 764 (Alaska 2011) (quoting Raphael v. State , 



 994 P.2d 1004, 1015 (Alaska 2000)). 



                                                    -16-                                                6711 


----------------------- Page 17-----------------------

consequences of a lessee continuing in possession after the termination of the lease.  And 



it   argues   that   whether   the   lease   was   in   operation   after   2000   should   not   have   been 



submitted to the jury because Little Squaw was incapable of leasing out claims it had 



abandoned.      Thus, Gold Dust maintains that there could not have been a meeting of the 



minds over whether to extend the lease. 



                 Little   Squaw   responds   that   the   jury   instruction   properly   stated   the   law 



governing      holdover     tenancy    and    points   out   that   Gold  Dust   failed   to  object   to  the 



instruction at trial.     Little Squaw further contends that it did   not abandon any of the 



mining claims at issue in this litigation. 



                 In the absence of a proper objection, we "will not review a jury instruction 

unless the instruction constitutes plain error."35           Our law on holdover tenancies is quite 



clear:   "[W]hen a tenant continues in possession, or holds over, beyond the term of a 



lease, the landlord has the election of treating him as a trespasser or permitting him to 

remain in possession."36         If the landlord chooses to treat the tenant as a holdover, the 



landlord may continue to collect rents under the lease.37                Alternatively, if the landlord 



elects   to   treat   the   tenant   as   a   trespasser,   the   landlord   may   evict   the   tenant   and   seek 



         35       Aviation Assocs., Ltd. v. TEMSCO Helicopters, Inc. , 881 P.2d 1127, 1131, 



 n.7  (Alaska 1994) (defining plain error as a circumstance where the "jury instruction 

 obviously creates high likelihood that the jury will follow erroneous theory resulting in 

 miscarriage of justice") (internal quotation marks omitted). 



         36       Brown v. Music, Inc. , 359 P.2d 295, 297 (Alaska 1961). 



         37       Id. 



                                                     -17-                                               6711
 


----------------------- Page 18-----------------------

damages for the reasonable value of the use of the premises.38                 The landlord, however, 



may not choose to pursue both remedies.39 



                 In this case, the court instructed the jury, in relevant part: 



                 If   the   lessee   is   a   holdover   the   landlord   has   two   choices   of 

                 action: 



                         a. Eviction - the lessor may treat the holdover lessee 

                 as a trespasser and evict him. 



                         b. Creation of periodic tenancy - The landlord in his 

                 sole discretion, may bind the lessee to a new periodic tenancy. 

                 The terms and conditions of the expired lease apply to the new 

                 tenancy. If the original lease was for a term of more than one 

                 year, a year-to-year tenancy results from holding over. 



This   jury   instruction   is   not   plain   error;   indeed,   it   provides   a   clear   statement   of   the 



governing law.  Because Gold Dust did not object to the instruction, we need not address 



the effect of the alleged abandonment on the lease.              We find no error. 



        C.	      Del Ackels's Personal Bankruptcy Does Not Bar The Operation Of A 

                 Holdover Tenancy. 



                 Gold Dust argues that any obligations under the lease were extinguished 



when     the   Ackelses    filed   for  bankruptcy     in  2000.     Little  Squaw     contends     that   the 



bankruptcy   order   did   not   extinguish   Gold   Dust   Mines'   obligations   under   the   lease 



because      the  company's       obligations    resulted    from    its  conduct    after  Del    filed  the 



bankruptcy petition. 



         38       Id. 



         39       Id. 



                                                    -18-	                                                6711 


----------------------- Page 19-----------------------

                 A   discharge     order   from    a  bankruptcy      court   prohibits    creditors   from 

collecting prior debts subject to the discharge.40          The bankruptcy code looks to state law 



to determine when a corporate entity is a legal person distinct from its shareholders.41 



Although       we   have    not   specifically    considered     whether     a  person    filing   personal 



bankruptcy and a company owned by that person are distinct legal entities, the conclusion 



that   the   individual   debtor   and   a   company   co-owned   by   the debtor   are   distinct   flows 

directly from the foundations of Alaska corporate law.42 



                 On February 1, 2000, Del and Gail Ackels filed a voluntary petition for 



Chapter     7  bankruptcy.      Three     months    later,   the  U.S.   Bankruptcy     Court   ordered     a 



discharge "to the person[s] named   as the debtor[s]," Delmer M. and Gail E. Ackels. 



These bankruptcy proceedings did not discharge the obligations of Gold Dust Mines, a 



distinct legal entity.  The superior court did not err in concluding that the bankruptcy did 



not discharge Gold Dust Mines' debts. 



        D.	      The Superior Court Did Not Err In Concluding That Claims Staked By 

                 Del Ackels In 2003 Were Held In Constructive Trust For Little Squaw. 



         40       See  11 U.S.C.  524(a) (2006) ("A discharge in a case under this title . . . 



 voids    any   judgment      at  any  time   obtained,    to  the   extent   that  such   judgment     is  a 

 determination of the personal liability of the debtor with respect to any debt discharged 

 . . . ."). 



         41       See, e.g., In re Blatstein , 192 F.3d 88, 100-01 (3d Cir. 1999) (rejecting 



 argument to reverse judgment piercing corporate veil under Pennsylvania corporate law 

 because company co-owned by Chapter 7 bankruptcy debtor was a distinct legal entity 

 from, and alter ego of, the debtor). 



         42      Marine Solution Servs., Inc. v. Horton , 70 P.3d 393, 401 (Alaska 2003) ("It 



 is well-established that the corporate entity is distinct although all or a majority of its 

 stock is owned by a single individual or corporation, or although the corporation is a 

 so-called 'family' or 'close' corporation.") (internal citations omitted). 



                                                    -19-	                                             6711
 


----------------------- Page 20-----------------------

                Gold Dust challenges the superior court's interpretation of the lease in the 



companion case, S-13909. It argues that the superior court improperly ruled "that Ackels 



was the agent of Little Squaw when he staked and filed his claims in 2003."  Little Squaw 



again defends the superior court's interpretation of the lease. It argues that any claims Del 



staked during the holdover tenancy were staked on behalf of Little Squaw. 



                A constructive trust is an equitable remedy that becomes available upon 



clear and convincing proof that a party holds a property interest "by reason of unjust, 

unconscionable, or unlawful means."43           In imposing a constructive trust, the court vests 



the   ill-begotten   property   interest   in   the   wronged   party.44 A   constructive   trust   is   an 



appropriate remedy when a mining claim lessee stakes over claims that he is obligated to 

maintain for the lessor.45     As noted above, in Miscovich , we held that a party agreeing to 



perform annual assessment work cannot, by relocating the claim after failing to do the 

work, "acquire any interest adverse to that of the prior claimant."46             In the present case, 



the superior court was guided not only by the equitable principles of Miscovich , but by 



Del's own testimony about the terms of the lease between Gold Dust and Little Squaw. 



At trial Del testified that any claims he staked under the operation of the lease would have 



been staked for Little Squaw.  On this basis, the superior court concluded that claims Del 



         43      Riddell v. Edwards , 76 P.3d 847, 852 (Alaska 2003) (quoting McKnight v. 



 Rice, Hoppner, Brown, & Brunner , 678 P.2d 1330, 1335 (Alaska 1984)). We further 

 explained that "a constructive   trust presupposes a transfer or holding of property in 

 which the equitable beneficiary has a legal interest and unconscionable conduct by the 

 property's holder in connection with its acquisition." Id. 



         44      McKnight , 678 P.2d at 1335. 



         45      Miscovich v. Tryck , 875 P.2d 1293, 1299 (Alaska 1994). 



         46      Id. (citing 2 AMERICAN LAW OF MINING ,  38.03[4]). 



                                                  -20-                                             6711
 


----------------------- Page 21-----------------------

staked during the holdover tenancy were held in constructive trust for Little Squaw.  We 



find no error. 



        E.	     The Superior Court Did Not Err In Ruling On The Frustration Of 

                Purpose Contract Defense. 



                Gold Dust also seems to argue that the lease could not have been in operation 



under the doctrine of frustration of purpose.          At trial it proposed a jury instruction on 



frustration of purpose, which the superior court declined to use.            Little Squaw maintains 



that Gold Dust failed to object to the ruling on frustration of purpose and argues that the 



court correctly instructed the jury. 



                We have recognized "frustration or supervening impossibility" as a defense 

to enforcement of a contract.47       Under this defense, performance is excused if, without 



fault of either party, an implied condition of the contract is not met.48               Frustration of 



purpose is applicable where "parties enter into a contract on the assumption that some 



particular thing essential to its performance will continue to exist and be available for the 



purpose     and    neither   agrees    to  be   responsible     for  its  continued     existence    and 

availability."49 



                In the present case, neither party suggests that maintaining the validity of the 



claims was outside the scope of the parties' agreement.   In fact, each party asserts that the 



         47	     Merl F. Thomas Sons, Inc. v. State , 396 P.2d 76, 79 (Alaska 1964). 



         48      Id. at 78 ("[W]here parties enter into a contract on the assumption that some 



 particular thing essential to its performance will continue to exist and be available for the 

 purpose and neither agrees to be responsible for its continued existence and availability, 

 the contract must be regarded as subject to an implied condition that if, without the fault 

 of either party, the particular thing ceases to exist or be available for the purpose, the 

 contract   shall   be   dissolved   and   the   parties   excused   from   performing   it.")   (quoting 

 Parrish v. Stratton Cripple Creek Mining & Dev. Co. , 116 F.2d 207, 209-10 (10th Cir. 

 1940), cert. denied, 312 U.S. 698 (1941)). 



         49      Parrish , 116 F.2d at 209-10 (emphasis added). 



                                                  -21-	                                           6711
 


----------------------- Page 22-----------------------

other failed to satisfy an obligation related to maintaining the premises. Thus, the doctrine 



of frustration of purpose does not apply here. We reject Gold Dust's argument that the 



lease was ineffective under the frustration of purpose doctrine. 



        F.	     The Superior Court Did Not Err In Applying The Ten-Year Statute Of 

                Limitations To Little Squaw's Claims Of Best Title To The Mining 

                Claims Staked And Filed During The Lease. 



                Gold Dust argues that Little Squaw's claim of best title to the mining claims 



staked in 2003 is a "bootstrap argument" that depends on the operation of the lease at the 



time the claims were staked. According to Gold Dust, the three-year statute of limitations 



for contracts bars Little Squaw from asserting best title to the mining claims staked in 



2003 because Little Squaw filed suit in February 2007, three years and four months after 



the lease was terminated. 



                Little Squaw defends the superior court's decision to apply the ten-year 



statute of limitations for actions involving title to real property.  It argues that the statute 



of limitations for contracts does not apply because Little Squaw "was not seeking any 



damages for the non-payment of rents or royalties during the lease, or the failure to do any 



act required under the lease." 



                In determining which statute of limitations applies, we look to "the nature 

of   the   injury   alleged,   rather   than   to   the   technical   cause   of   action."50 We   have   also 



"expressed a policy of applying the longer of two limitations periods if two limitations 

statutes apply to a claim."51      In this case, we must decide between the three-year statute 



         50      McDowell v. State , 957 P.2d 965, 968 (Alaska 1998) (applying six-year 



 statute of limitations for trespass rather than two-year statute of limitations for torts). 



         51      Id . 



                                                   -22-                                               6711 


----------------------- Page 23-----------------------

of limitations that applies to contract actions52 and the ten-year statute of limitations that 



applies to actions to recover real property.53 



               Had Little Squaw sought contract damages, Gold Dust's argument that the 



statute of limitations has expired would be appropriate.           But the remedy Little Squaw 



seeks is title to its mining claims, not breach-of-contract damages.            While the leading 



issues changed over the course of the litigation, the claims Little Squaw pursued at trial 



and continues to defend on appeal are aptly characterized as claims seeking best title to 



the disputed mining claims.  Under our precedent, the superior court's decision to apply 



the ten-year statute of limitations to these claims was proper. 



               In addition, we find no error in the superior court's decision to award Little 



Squaw damages for trespass, a claim that is subject to a six-year statute of limitations that 

has not expired.54    Because no damages were awarded for conversion of gold, we need 



not consider whether the proper statute of limitations was applied to that claim. 



        G.	     The    Superior     Court's     Ruling    On    The   Department       Of    Natural 

               Resources' November 11 Determination Is Not Reversible Error. 



                Gold Dust argues that the superior court improperly deferred to the 2008 



adjudication   of   the   mining   claims   by   the   Department   of   Natural   Resources,   which 



determined that four Amended Location Notices filed by Del were invalid.                 According 



to Gold Dust, the decision was "issued without statutory authority, without notice, or an 



         52	    AS 09.10.053. 



         53     AS 09.10.030.  This provision also suggests that there may be no statute of 



 limitations for actions to quiet title. AS 09.10.030 ("An action may be brought at any 

 time . . . in order to (1) quiet title to [] real property; (2) eject a person from that real 

 property.").   Little Squaw's claims would not be barred under any of these provisions, 

 and this court does not need to determine which of these provisions applies to Little 

 Squaw's claims. 



         54     AS 09.10.050. 



                                                -23-	                                          6711
 


----------------------- Page 24-----------------------

opportunity to offer evidence or argument, was not the result of a procedure that provided 



due   process   and   was   issued   after   at   least   two   ex   parte   communications   with   Little 



Squaw."       Gold    Dust    further  argues    that  the  particular   employee      who    issued   the 



adjudication      in  this  case   was   not   authorized    to  do   so,  that  the   opportunity     for 



administrative appeal of Department of Natural Resources decisions is inadequate to 



remedy the injuries of an improper adjudication, and that Little Squaw was not required 



to comply with the same administrative requirements as Gold Dust. 



                Little   Squaw contends that the superior court reasonably and justifiably 



relied    on   the  Department       of  Natural    Resources'     adjudication     of   the  Ackelses' 



amendments to their mining claim location notices. 



                Alaska mining statutes authorize the commissioner of the Department of 

Natural Resources to oversee the implementation of the Alaska Land Act.55                This includes 



the authority to adjudicate disputed mining-claim amendments, which must be recorded 

with the Department.56        The commissioner may delegate this authority to Department 



employees as "necessary to carry out the provisions and objectives" of the governing 

statute.57  Although these adjudications are not governed by the Alaska Administrative 



         55      AS 38.05.020. 



         56      AS 38.05.195-.200; see also Chalovich v. State, Dep't of Natural Res., 104 



 P.3d 125, 130 (Alaska 2004) (concluding AS 38.05.210 authorizes the Department of 

 Natural Resources to define the labor year for mining claims); Moore v. State, Dep't of 

 Natural Res. , 992 P.2d 576, 581 (Alaska 1999) ("Because the commissioner, acting 

 within his authority, was entitled to find that PRI was . . . not qualified to acquire mining 

 rights under AS 38.05.190(a), his decision voids and nullifies PRI's mining rights."); AU 

 Intern.,   Inc.   v.   State,   Dep't   of   Natural   Res. ,   971  P.2d   1034,   1041  (Alaska   1999) 

 (rejecting due process challenge to Department's determination that 1,035 mining claims 

 were abandoned by failure to properly file affidavit of annual labor). 



         57      AS 38.05.020(b)(4). 



                                                  -24-                                             6711
 


----------------------- Page 25-----------------------

Procedures Act,58 the Department's authority is constrained by constitutional and statutory 



requirements, as well as by the Department's own regulations and judicial review.59 



                 In   this  case,  the  Department      of  Natural    Resources     issued    a  letter  on 



November 11, 2008, which concluded that four mining-claim amendments filed by Del 

were invalid on the ground that they overlapped with Little Squaw's existing claims.60 



It   is   clear   from   the   face   of   the   November   11   letter   that   ex   parte   contacts   with   Little 



Squaw's       president,   Dick    Walters,    prompted     the  Department's       adjudication    of   the 



amendments in question.         These ex parte contacts and the timing of this letter - issued 



just over three weeks before trial, more than three years after Del's amendments were 



filed - raise serious doubts about the fairness and adequacy of the Department's process 



for adjudicating mining-claim disputes.   Furthermore, we share Gold Dust's concern that 



deference by the superior court to the adjudication in these unusual circumstances would 



         58       See   AS     44.62.330(a)      (listing   agencies     subject    to   the   procedural 



 requirements   of   AS   44.62.330-.630);   AS   38.05.020   (subjecting   regulations,   but   not 

 adjudications,   of   the   Department   of   Natural   Resources   to   the   requirements   of   the 

 Administrative Procedure Act). 



         59       See, e.g., AS 38.05.020(b)(1) (requiring that procedures established by the 



 commissioner be "reasonable [and]. . . necessary to carry out" the statutory mandate); 

 Moore v. State , 553 P.2d 8, 31 (Alaska 1976) (Rabinowitz, J., concurring) (concluding 

 "our courts can review the performance of administrative tasks by an executive agent to 

 ensure compliance with specific procedural safeguards imposed by the legislature in 

 accordance       with   Alaska's    constitutional    mandates");  see     also   id. at   30  (requiring 

 compliance with separate opinion of Justice Rabinowitz). 



         60        The November 11 letter replaced a letter issued by the Department of 



 Natural Resources on October 29, 2009.  The conclusions in both letters are the same and 

 much of the language in the letters is identical.  The only difference between the letters 

 is that the November 11 letter includes additional information that helps to identify the 

 claims in dispute (ADL numbers, MTRSC locations, document numbers). To avoid 

 confusion, we follow the superior court's practice of referring to this as the "November 

  11" letter. 



                                                   -25-                                              6711
 


----------------------- Page 26-----------------------

have been misplaced.         But the superior court here did not defer to the administrative 



agency. 



                As to the first of the four claims in question, GDM 17, Gold Dust's opening 



brief states: 



                The court ruled this letter was a decision of an administrative 

                agency      and   adopted    its  findings    before   trial  began,    by 

                "directed verdict," . . . and told Ackels his remedy was an 

                administrative appeal.  This took GDM #17 from Ackels and 

                removed Ackels'[s] claim to it from the trial. 



But the superior court did not, in fact, remove ownership of GDM 17 from the issues to 



be resolved at trial. The court specifically stated, "we'll still go forward with 17 and we'll 



see how that shakes out."        The parties presented evidence about GDM 17, and halfway 



through   the   trial,   the   court   reiterated   its   understanding   that   ownership   of   GDM   17 



remained an issue in dispute.  On the special verdict form, the jury specifically found that 



Del had not satisfied the statutory requirements for staking and recording that claim.  On 



the basis of the jury verdict, the superior court granted Little Squaw title to GDM 17. 



Because title to GDM 17 was litigated at the trial and properly submitted to the jury, we 



find no error in the superior court's decision to award this claim to Little Squaw. 



                As to the three other parcels that were the subject of the DNR letter - LS0 



4, GDM 1, and GDM 2 - Gold Dust was given the opportunity at the outset of trial to 



contest the correctness of the agency decision.  It indicated that it was not at that time in 



a position to do so.     The superior court, noting that "[n]ow's the time [for trial]," then 



stated that "those [parcels] are not a matter for trial," and that Gold Dust would have to 



appeal the agency decision if it believed the decision to be flawed.  It is true that the time 



between the agency decision and the start of trial was short.              But Little Squaw - faced 



with the same time limitation - had investigated and was prepared to present evidence 



supporting the agency decision, while Gold Dust admitted that it was "not in a position 



                                                   -26-                                             6711
 


----------------------- Page 27-----------------------

to contest."    And Gold Dust did not seek a continuance of trial (to   allow it either to 



present   evidence   at   trial   or   to   appeal   the   DNR's   administrative   decision).   In   these 



circumstances, the superior court's decision to allow the uncontested decisions of the 



                   61                  62 

agency to stand       was not error. 



        H.	     The     Superior      Court     Did   Not    Err    In  Attributing      Excess     Labor 

                Performed By Del In 1999 To Little Squaw. 



                Gold Dust challenges the superior court's ruling that Little Squaw could use 



excess labor performed by Del in 1999 in order to satisfy its statutory labor requirements 



in subsequent years.        Gold Dust argues that   when   Little Squaw abandoned 86 of its 



mining claims around 2000, Little Squaw's remaining 26 claims were no longer adjacent 



to   or  in  common   ownership   with   the   claims   on   which   labor   had       been    performed. 



According to Gold Dust, Little Squaw was not entitled to carry forward excess labor that 



had been performed on abandoned claims.               Gold Dust may also be arguing, as it did at 



trial, that because the affidavit submitted in 1999 did not specifically state that excess 



labor   would   be   carried   forward,   Little   Squaw   was   barred   from   applying   the   excess 



$96,000 of labor to future years. 



                Little Squaw defends the superior court's ruling.               It argues that Del was 



equitably estopped from relying on deficiencies in the affidavit of labor that he submitted 



in   1999   because   both   he   and   Little   Squaw    believed   that   the   claims   on   which   Del 



         61      Judge Olsen noted that Gold Dust had the right to appeal the DNR decision 



 if it believed it to be erroneous.        The record before us shows no such administrative 

 appeal. 



         62      We also note that evidence at trial suggested that these three claims (LSO 



 4, GDM 1, and GDM 2) overlapped with claims that Del mined under Gold Dust Mines' 

 lease with Little Squaw, including Upper Discovery and Number Two Above Discovery. 

 If the claims overlap, the Department's administrative decision with respect to them was 

 correct. 



                                                   -27-	                                             6711
 


----------------------- Page 28-----------------------

performed labor were part of a common claim group.  Further, Little Squaw argues that 



labor performed outside the boundaries of the mining location may qualify as annual labor 



if it develops or benefits the location. 



                As noted above, AS 38.05.210 requires annual labor be performed "on or 



for the benefit or development of each mining claim."                If adjacent claims are held in 



common,       labor   performed     on   any   of  the  claims    may    satisfy  the   statutory   labor 

requirement for the other claims.63      Excess labor performed in a given year may be carried 



forward for up to four years.64      The owners of these mineral rights must submit annually 



to the Department of Natural Resources affidavits attesting to the work performed on their 

claims.65    In Ashbrook   v.   O'Harra ,66     we   held   that   a   former   mining   claim   lessee   was 



equitably estopped from challenging the accuracy of affidavits of labor that he submitted 

on behalf of the lessor.67     The superior court applied the same rule in this case.          We find 



no error. 



                Insofar as Gold Dust argues that Little Squaw cannot carry forward excess 



labor because it did not state its intention to carry forward the excess in 1999, we reject 



that argument.  Excess labor can be carried forward even where the affidavits submitted 

do not include "an express statement that excess labor will be carried over."68 



         63       AS 38.05.210. 



         64      11 AAC 86.220(c). 



         65      Id. 



         66      581 P.2d 218 (Alaska 1978). 



         67      Id. at 221. 



         68      Ashbrook , 581 P.2d at 220. 



                                                  -28-                                             6711
 


----------------------- Page 29-----------------------

        I.	     The Superior Court Did Not Err In Awarding Little Squaw Title To 

                GDM 16. 



                Gold Dust argues that the superior court's decision to grant Little Squaw title 



to GDM 16 constitutes legal error because this mining claim was neither pleaded in the 



complaint nor tried before the jury.         Little Squaw responds that GDM 16 was properly 



granted   to   Little   Squaw    because   this   claim   "was   both   pled   by   Little   Squaw  in   its 



Complaint and by the Ackles in their Counterclaim, and was actively litigated by both 



parties at trial." 



                We have recognized that issues not raised in the pleadings may be tried by 

implied consent of the parties.69       These issues "shall be treated in all respects as if they 



had been raised in the pleadings."70 



                Although   GDM   16   was   not   specifically   pleaded   in   the   complaint,   that 



document did seek "a court order imposing a constructive trust in favor of Little Squaw 



on the claims asserted by [Gold Dust]."  This appears to refer to all claims staked by Gold 



Dust, including GDM 16.          In addition, Gold Dust sought to quiet title to GDM 16 in its 



counterclaims.      The   court   heard   evidence   about   Del's   compliance   with   the   statutory 



requirements   for   staking   GDM   16,      and   Gold   Dust's    attorney   did   not   object   to   the 



admission of the location notice for GDM 16.  Later, the attorney voiced concerns about 



submitting claims to the jury that were not in dispute, but after some discussion with the 



court, both parties agreed to an open-ended jury instruction, which allowed the jury to list 



GDM 16 as an improperly staked claim.               On the basis of this jury finding,      the superior 



court granted Little Squaw title to GDM 16.               Because this claim   was   both generally 



         69      E.g. , Bevins v. Ballard , 655 P.2d 757, 761 (Alaska 1982). 



         70      Alaska R. Civ. P. 15(b). 



                                                   -29-                                               6711 


----------------------- Page 30-----------------------

covered in the pleadings and specifically tried by consent, we find no error in the superior 



court's decision to award it to Little Squaw. 



        J.	     The Superior Court Did Not Err In Ejecting Del From Little Squaw's 

                Mining Claims. 



                Gold   Dust   challenges   the   superior   court's   post-trial   ejectment   order.   It 



argues that the superior court improperly "merged the surface estate into the mineral 



estate" when it ordered Del off the surface of Little Squaw's claims.   According to Gold 



Dust, the superior court interfered with the Department of Natural Resources' permitting 

process and lacked the authority to do so.71 



                Little Squaw defends the superior court's ejectment order.                Little Squaw 



argues that it was entitled to an ejectment order restoring its possession of the disputed 



mining claims and that Del continued to interfere with Little Squaw's property rights even 



after the superior court awarded Little Squaw title to the disputed claims. 



                Under Alaska law, a person who acquires mining rights to located claims 



also has rights to make use of the corresponding surface estate as "necessary for the 

prospecting for, extraction of, or basic processing of minerals."72           The mining claimant's 



         71      Gold Dust frames this as a question of subject matter jurisdiction, arguing 



 that the superior court did not have "jurisdiction" over the surface estate, which belongs 

 to the State of Alaska.  This is misguided. "The superior court is the trial court of general 

 jurisdiction . . . ." AS 22.10.020.       Gold Dust does not argue that the superior court is 

 barred from resolving disputes about the surface estate of mining claims. 



                 Nor does Gold Dust advance a valid personal jurisdiction argument.  Gold 

 Dust suggests that the court should not have issued an order affecting the surface estate 

 because   the   state,   which   retains   rights   to   the   surface,   was   not   named   a   party. This 

 argument sounds in personal jurisdiction, but it is unavailing.             As Little Squaw points 

 out, the superior court resolved the dispute between Little Squaw, Gold Dust Mines, and 

 Del, over whom the court "undeniably" had personal jurisdiction. 



         72       AS 38.05.255. 



                                                  -30-	                                            6711
 


----------------------- Page 31-----------------------

rights are "subject to reasonable concurrent uses."73   We recognized in Shope v. Sims74 



that the holder of a mining claim may have a claim for ejectment under AS 09.45.630.75 



The same holds true today; a mining claimant may recover possession of property by 



showing   that   he   has   the   right   to   possession   of   the  claim   from   which   he   has   been 

improperly ousted.76 



                Following the trial in this case, Del applied for a five-year mining permit to 



mine claims located at Township 31, Range 3 West, Sections 10, 15, and 16.  He traveled 



to those claims in March 2009 while the superior court's resolution of the issues litigated 



at trial was still pending.       While Del was in transit, the superior court issued written 



findings and conclusions which stated: 



                Based on the conclusion that [Little Squaw] is the holder of 

                best title to its mining claims No.2 Above Discovery on Little 

                Squaw Creek and Star East Fraction, Golden Eagle Fraction, 

                Upper Discovery, and No.5 Below Upper Discovery on Big 

                Creek as well as those claims staked by [the Ackelses] in July 

                2003, LSQ #2-#4 and GDM #1-#17, [Little Squaw] is entitled 

                to   an   order   ejecting   [the   Ackelses]   from   those   claims   and 

                 [Little    Squaw]'s      structures     on    those    mining     claims, 

                specifically      including,    but   not   limited   to,  vacating    and 

                removing all their personal property from the cabin, tool shed, 

                and all other structures on No.5 Below Upper Discovery. [The 

                Ackelses] must make prior arrangements with [Little Squaw] 

                for    the  removal     of   their  personal    property     from   [Little 

                Squaw]'s property, the court recognizing that [the Ackelses], 



         73       Id. ; see also Parker v. Alaska Power Auth., 913 P.2d 1089, 1091 (Alaska 



 1996) ("The State, as the owner of the surface estate, is permitted to convey all or part 

 of its interest to other parties and it has done so in this case . . . ."). 



         74      658 P.2d 1336 (Alaska 1983). 



         75      Id. at 1339. 



         76      Id. 



                                                   -31-                                              6711
 


----------------------- Page 32-----------------------

                along with the public in general, retain the right to use the 

                airstrips on [Little Squaw]'s mining claims, and has access 

                across the surface of the claims. 



Following the entry of this judgment, Del applied for another permit to mine GDM 18. 



In July 2009, Del traveled to these claims to begin mining them for the season.   As 



addressed   further   below,   the   parties   disagree   about   whether   Del's   July   2009   mining 



activity took place within the boundaries of Little Squaw's mining claims.                  On July 29, 



2009, the superior court issued an Order in Aid of Final Judgment, which ordered Del off 



all of Little Squaw's mining claims.   Following his receipt of this order, Del stopped his 



mining activity. 



                Gold Dust seems to argue that the superior court's order ejecting Del from 



Little Squaw's claims was improper because it required him to vacate the surface of the 



mining   claims.      This   argument   fails.   Shope   makes   clear   that   a   court   may   order   a 



trespasser to vacate a mining claim. Moreover, in this case, the superior court's ejectment 



order was not overly broad.   The post-trial findings and conclusions recognized that Del, 



along   with   the   public   in   general,   may   access   the   surface   estate   in   ways   that   do   not 



unlawfully or unreasonably interfere with Little Squaw's use of the claim.                    The later 



Order in Aid of Final Judgment was similarly limited to ejecting Del from Little Squaw's 



claims.   We find no error in the superior court's ejectment orders. 



        K.	     The Superior Court Did Not Err In Concluding That Del's 2009 Mining 

                Activity Took Place Within The Boundaries Of Little Squaw's Mining 

                Claims. 



                Gold     Dust   argues   that   Del's  July  2009    mining    took   place  within    the 



boundaries of his claim GDM 18 and cannot support the post-judgment award of damages 



for reclamation costs.  Gold Dust maintains that "there was no dispute over where Ackels 



was mining in 2009, (just over how to describe its location)."             It argues that because the 



only evidence concerning where the GDM 18 stakes were placed was Del's testimony, 



                                                  -32-	                                            6711
 


----------------------- Page 33-----------------------

there should be no dispute that the mining took place within the boundaries of GDM 18. 



According to Gold Dust, the location of the GDM 18 stakes (not the description in the 



GDM   18   Location   Notices)   controls   the   boundary   determination.          It   insists   that   this 



question   of   law   -   whether   the   description   of   the   claim   controls   over   the   physical 



placement of the claim stakes - resolves the appeal of the reclamation damages award. 



                By contrast, Little Squaw contends that "the issue is truly whether the trial 



court['s] finding [concerning the location of] . . . Ackels's undisputed mining activities 



in 2009 . . . was clearly erroneous."        According to Little Squaw's expert witness, James 



C. Barker, Del's 2009 mining took place within the boundaries of Little Squaw's GRMC 



14 and 15 and on open state land subsequently staked by Little Squaw as GRMC 30. 



                Gold Dust concedes that the 2009 mining activity took place where Barker 



identified it on photographs.  Gold Dust does not specifically concede - nor specifically 



deny   -   that   Del's   2009   mining   took   place   in   Township   31   North,   Range   3   West, 



Sections 21 and 28, and it does not offer any definitive statement about where the 2009 



mining     took   place    in  terms   of  GPS    coordinates     or  township,     range,   and   section 



coordinates. Instead, Gold Dust relies on Del's testimony that all his 2009 mining activity 



took place within the boundary marked by his GDM 18 stakes.                    The closest Del comes 



to locating his GDM 18 claim in geographic terms is his testimony that Barker identified 



the claim "much farther down the creek" than Del believed it to be.  Gold Dust maintains 



that because Del had staked his claims 100 feet short, the corner posts of GDM 18 "would 



be quite far from the corners of the quarter-quarter section" listed on the Location Notice. 



Gold Dust's position that Del's 2009 mining took place within the boundaries of his claim 



GDM 18 depends on his testimony about the location of the GDM 18 stakes - testimony 



that the superior court specifically discredited. 



                                                   -33-                                              6711
 


----------------------- Page 34-----------------------

               Particular     deference     is   due    to  the    superior    court's   credibility 

determinations.77   Even if we accept Gold Dust's legal argument that the physical location 



of the stakes controls over the description of the location,78 that alone would not justify 



reversing the superior court's damages award.          Reversing the superior court's damages 



award is justified only if Del had produced definitive evidence of the stake locations that 



refuted the information on the GDM 18 claim notice.            But Gold Dust did not meet this 



burden. 



               Its evidence fell far short of being definitive.      In fact, Del's testimony was 



riddled with gaps and inconsistencies about his use of GPS, the geographic location of the 



GDM 18 stakes, and his 2009 mining activity.  Looking to the record, the superior court 



properly resolved a factual dispute about how far downstream the GDM 18 posts were 



placed.    Its  decision   to  discredit  Del's   testimony    was   reasonable    and  not  clearly 



erroneous. 



               Gold     Dust's   arguments    challenging    this  credibility  determination     are 



misguided.    Gold Dust first argues that "there was no dispute on where [Del's] stakes 



were."  But the portion of the transcript cited supports only the more limited proposition 



that Little Squaw did not dispute that GDM 16 and GDM 18 shared corner posts.  As the 



cited portion of the transcript shows, Little Squaw did indeed dispute "where [the corner 



posts] are on the   creek."     And despite its argument that there is no dispute over the 



         77      Wasserman v. Bartholomew, 38 P.3d 1162, 1167 (Alaska 2002) (citing 



 Whitesides v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 20 P.3d 1130, 1136 

 (Alaska 2001)). 



         78     AS 38.05.195(b)(1) provides that, in the event of a conflict over boundaries 



 for the quarter section or quarter-quarter section, "the corners marked on the ground of 

 a   claim   established    in  accordance     with   this  paragraph    and   regulations   of   the 

 commissioner control."  Because this issue has not been briefed, we express no opinion 

 on the interpretation of this statute. 



                                                -34-                                           6711
 


----------------------- Page 35-----------------------

location of the corner posts, Gold Dust admits that Little Squaw's expert "located [Del's] 



GDM #18 further downstream than where [Del] put his corner."                        Not only was Del's 



testimony about how he staked GDM 18 in relation to GDM 16, how he used the stakes 



of other claims and GPS technology to locate his GDM 18 stakes, and the dimensions of 



his claims insufficient to directly answer this factual question, but the superior court was 



under no obligation to credit his testimony. 



                 Gold Dust also argues that inconsistencies in Del's testimony might have 



resulted from "good faith confusion."            But of course that does not obligate the superior 



court to credit the testimony.   In making credibility determinations, the superior court is 



not limited to identifying deliberate misrepresentations.              The superior court may refuse 



to   credit   testimony   based   on   inaccuracies   in   a   witness's   ability   to   perceive   or   recall 



events.  It was within the superior court's discretion in this case to determine whether - 



and on what grounds - to disbelieve Del's testimony. 



                 Finally, Gold Dust seems to argue that not every false statement is a lie and 



that   any   false   statements   made   by   Del   were   not   "lies."  It   cites   sample   pattern   jury 



instructions   for   the   proposition   that   honest   people   may   "forget   or   remember   things 



incorrectly" and that "inconsistencies and contradictions in a witness' testimony . . . do 

not necessarily mean that you should disbelieve the witness."79                 But this argument does 



not   justify   reversing   the   superior   court's   credibility   determination   in   this   case.   The 



superior court may overlook inconsistencies and contradictions in testimony where the 



weight of the evidence counsels the court to do so.  And the superior court may focus on 



inconsistencies in testimony when the weight of the evidence so counsels.  The superior 



court did the latter in this case, and Gold Dust offers no justification adequate to reverse 



this credibility determination. Because the superior court found no credible evidence that 



         79       Alaska Civil Pattern Jury Instructions, 1.07 Credibility of Witnesses. 



                                                    -35-                                                 6711 


----------------------- Page 36-----------------------

the GDM 18 stakes were placed outside their recorded location, the contention that Del 



mined GDM 18 fails. 



        L.	     The    Superior     Court's     Finding    That   Del   Knew     He   Was   On     Little 

                Squaw's Claim In 2009 Was Not Clearly Erroneous. 



                Gold Dust denies that Del stopped his summer 2009 mining activity because 



he knew he was on Little Squaw's claims and challenges the superior court's finding to 



that   effect. It   offers   other   reasons   that   Del   stopped   mining   in   2009:   (1)   because   he 



believed his mining permit had been invalidated, and (2) in order to retrieve equipment 



he had stored on another claim, Number Five Below Discovery. 



                Little Squaw defends the superior court's finding, noting that Del stopped 



mining claims after receiving an order ejecting him from Little Squaw's claims.                   Little 



Squaw argues that the order did not eject him from his own claims and if he had been 



mining his own claims, he would not have had to stop. 



                We     will  not  overturn    a  factual   finding   unless   that  finding   is  clearly 

erroneous.80    The record in this case does not compel us to reverse the superior court's 



finding.    Del   testified   that   he   halted   his   2009   mining   activity   and   began   moving   his 



equipment when he received an order stating that Gold Dust was ejected from Little 



Squaw's   mining   claims.      This   testimony   is   sufficient   to   support   the   superior   court's 



finding that Del knew that he was on Little Squaw's land.              We find no error. 



        M.	     The Entry Of Judgment Against Gail Ackels For Reclamation Costs 

                Caused By The 2009 Mining Activity Was In Error. 



                Gold Dust argues that Gail Ackels should not be liable for damages arising 



from the 2009 mining work, which the superior court concluded took place on Little 



Squaw's claims GRMC 14 and 15.               It argues that even if Del is liable in damages for 



         80      See   Miscovich   v.   Tryck,   875   P.2d   1293,   1297   (Alaska   1994); see   also 



 Commercial Recycling Ctr., Ltd. v. Hobbs Indus., Inc., 228 P.3d 93, 98 (Alaska 2010). 



                                                  -36-	                                              6711 


----------------------- Page 37-----------------------

trespassing   on   Little   Squaw's   claims   in   2009,   Gail   should   be   shielded   from   liability 



because her status as Del's wife and her status as a shareholder of Gold Dust Mines, Inc. 



are insufficient to support liability. 



                 Little Squaw contends that Gail physically participated in the 2009 mining 



activity on GRMC 14 and 15 and can be held liable for any damages arising from that 



activity.  It points to evidence suggesting that Gail was on the mining claims in 2009 and 



shared Del's financial interest in the development of the mining claims. 



                 In a civil case where multiple defendants   are held liable, AS 09.17.080 



instructs the fact-finder to make findings explaining "the percentage of the total fault that 

is allocated to each . . . defendant."81         This statute further instructs the court to "enter 



judgment against each party liable on the basis of several liability in accordance with that 

party's percentage of fault."82        Under this general rule, a defendant's liability is limited 



to   its   share   of   the   comparative   fault.83 Because   the   superior   court   did   not   make   the 



findings required by AS 09.17.080, we reverse the judgment against Gail and remand for 



consideration of such findings. 



                 Because   the   superior   court   did   not   enter   comparative   fault   findings   in 



accordance with AS 09.17.080, the superior court's                decision to enter judgment against 



Gail may have been based on its ruling that Little Squaw was entitled to pierce Gold 



Dust's corporate veil.   Shareholders of a corporation may be liable for corporate debts if 



the shareholders control the corporation and abuse the corporate structure to prejudice an 



          81      AS 09.17.080(a)(2). 



          82      AS 09.17.080(d). 



          83      Petrolane Inc. v. Robles , 154 P.3d 1014, 1020 (Alaska 2007). 



                                                    -37-                                                 6711 


----------------------- Page 38-----------------------

opposing party.84       "[T]he corporate veil may be pierced when a corporation is nothing 



more than a 'mere instrument' of a shareholder."85             We have identified six primary factors 



to   consider   in   imposing   personal   liability   on   the   shareholder.     In   applying   the   mere 



instrumentality test, we ask whether 



                 (a) the shareholder sought to be charged owns all or most of 

                 the    stock    of   the   corporation;      (b)   the   shareholder      has 

                 subscribed   to   all   of   the   capital   stock   of   the   corporation   or 

                 otherwise   caused   its   incorporation;   (c)   the   corporation   has 

                 grossly     inadequate      capital;   (d)   the  shareholder      uses   the 

                 property of the corporation as his own; (e) the directors or 

                 executives of the corporation act independently in the interest 

                 of   the   corporation     or   simply    take   their   orders    from   the 

                 shareholder   in   the   latter's   interest;   and   (f)   the   formal   legal 

                 requirements of the corporation are observed.[86] 



"[These] factors help the fact-finder to decide whether the evidence favors piercing the 

veil."87   It is not necessary for all six factors to be satisfied before imposing personal 



liability.88  "[T]he primary consideration in determining whether to 'pierce the corporate 



veil' is whether the corporate form has been abused by the person sought to be charged."89 



          84       See Klondike Indus. Corp. v. Gibson, 741 P.2d 1161, 1171-72 (Alaska 



 1987) (upholding trial court's decision to pierce corporate veil). 



          85      L.D.G., Inc. v. Brown , 211 P.3d 1110, 1125 (Alaska 2009). 



          86      Id. at 1126. 



          87      Id. 



          88      Nerox Power Sys., Inc. v. M-B Contracting Co. , 54 P.3d 791, 802 (Alaska 



 2002)      (affirming     conclusion      that   companies       were     "mere     instrumentalities"       of 

 shareholders where there was evidence of five of the six factors). 



          89      Murat   v.   F/V   Shelikof   Strait ,   793   P.2d   69,   76   (Alaska   1990)   ("[T]he 



 primary consideration in determining whether to 'pierce the corporate veil' is whether 

                                                                                              (continued...) 



                                                     -38-                                                6711
 


----------------------- Page 39-----------------------

The court's ruling authorized Little Squaw to seek judgment against Gold Dust's officers 



and sole shareholders, Del and Gail Ackels. 



                 But the superior court did not analyze the veil-piercing factors on the record 



when it authorized Little Squaw to pierce the corporate veil.              Nor did the superior court 



explain its decision to pierce the corporate veil in its written findings and conclusions. 



Because specific findings         under the mere instrumentality test are needed to pierce the 

corporate veil,90  we reverse the award of reclamation costs against Gail and remand for 



specific findings. 



        N.	      Holding Gail Ackels Jointly Liable For The Attorney's Fees Award 

                 Was Error. 



                 Gold Dust also challenges the superior court's decision to hold Gail Ackels 



jointly liable for the attorney's fees award in this case.   It argues that Gail was not a party 



to the lease nor a guarantor on the lease and that her role as a shareholder of Gold Dust 



Mines   does   not   justify   holding   her   liable   for   the   corporation's   debts. Little   Squaw 



defends the superior court's attorney's fees award. 



                 This question implicates the veil-piercing doctrine discussed in Part IV.M. 



Because   the   superior   court   did   not   enter   specific   findings   to   justify   its   veil-piercing 



decision and did not apportion liability among the defendants, we reverse the award 



against Gail.  We remand this issue for further consideration and entry of findings by the 



superior court. 



        89       (...continued) 



 the corporate form has   been   abused by the person sought to be charged."); see also 

 L.D.G. , 211 P.3d at 1125 ("[T]he corporate veil may be pierced when a corporation is 

 nothing more than a 'mere instrument' of a shareholder."). 



         90      Murat , 793 P.2d at 76-77. 



                                                   -39-	                                             6711
 


----------------------- Page 40-----------------------

        O.	      The Superior Court Did Not Err In Awarding Enhanced Attorney's 

                 Fees To Little Squaw. 



                 Gold   Dust   challenges   the   superior   court's   decision   to   award   enhanced 



attorney's fees to Little Squaw.          It denies that Del engaged in unreasonable or bad faith 



conduct and argues that these aggravating factors do not justify the enhanced award in 



this case.   Little Squaw contends that the enhanced fee award was proper based on the 



complexity of the case, length of the trial, and the "unreasonable claims and vexatious, 



even bad faith, conduct by the Ackels[es]." 



                 Alaska Civil Rule 82 authorizes the superior court to award attorney's fees 



to the prevailing party in a civil case.  The rule sets out a number of factors the court may 

consider   in   fashioning   a   fee   award.91   In   this   case,   the   superior   court   concluded   that 



because Little Squaw secured title to the disputed mining claims, it was the prevailing 



party on the main issues in the litigation.            The court awarded Little Squaw enhanced 



attorney's fees in light of the complexity and length of the case, which was "made more 



complex by delays in discovery" by Gold Dust and Del's inconsistent testimony on key 



issues   concerning   the   interpretation   of   the   lease.      According   to   the   superior   court, 



         91        These factors include: (A) the complexity of the litigation; (B) the length 



 of trial; (C) the reasonableness of the attorneys' hourly rates and the number of hours 

 expended; (D) the reasonableness of the number of attorneys used; (E) the attorneys' 

 efforts to minimize fees; (F) the reasonableness of the claims and defenses pursued by 

 each side; (G) vexatious or bad faith conduct; (H) the relationship between the amount 

 of work performed and the significance of the matters at stake; (I) the extent to which a 

 given   fee   award   may   be   so   onerous   to   the   non-prevailing   party   that   it   would   deter 

 similarly situated litigants from the voluntary use of the courts; (J) the extent to which 

 the   fees   incurred   by   the   prevailing   party   suggest   that   they   had   been   influenced   by 

 considerations apart from the case at bar, such as a desire to discourage claims by others 

 against   the   prevailing   party   or   its   insurer;   and   (K)   other   equitable   factors   deemed 

 relevant.      If   the   court   varies   an   award,   the   court   shall   explain   the   reasons   for   the 

 variation.    Alaska R. Civ. P. 82(b)(3). 



                                                    -40-	                                              6711
 


----------------------- Page 41-----------------------

"[a]nother example of the unreasonableness of the claim, even bordering on bad faith, was 



[Del's]   argument   that   because   the   affidavit   of   annual   work   he   had   filed   on   [Little 



Squaw]'s behalf was in fact defective, causing their claims to be void, that he was able 



to re-file in his own name."       The superior court concluded that Little Squaw "incurred 



significantly higher attorney's fees than it should have if [the Ackelses] had pressed 



legitimate claims, founded on actual facts, [rather] than pursuing litigation with shifting 



facts and unreasonable arguments."          The superior court's decision to award enhanced 



attorney's fees on the basis of these findings was not manifestly unreasonable.  We find 



no error. 



V.      CONCLUSION 



                For the reasons described above, we AFFIRM the superior court's decision 



to award Little Squaw title to the disputed mining claims and its resolution of the other 



issues raised at trial. Because specific findings are needed to pierce the corporate veil, we 



REVERSE the superior court's decisions to enter judgment and award attorney's fees 



against Gail Ackels and REMAND for further proceedings consistent with this opinion. 



                                                 -41-                                            6711
 

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