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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ahtna Tene Nené v. State, Dept. of Fish & Game (11/9/2012) sp-6720

Ahtna Tene Nené v. State, Dept. of Fish & Game (11/9/2012) sp-6720

        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  


AHTNA TENE NENÉ,                              ) 

                                              )       Supreme Court Nos. S-13968/14297 

                       Appellant,             )       (Consolidated) 


        v.                                    )       Superior Court No. 3KN-09-00178 CI 


STATE OF ALASKA,                              )       O P I N I O N 

DEPARTMENT OF FISH & GAME,                    ) 

KENNETH MANNING, and                          )       No. 6720 - November 9, 2012 

ALASKA FISH & WILDLIFE                        ) 

CONSERVATION FUND,                            ) 


                       Appellees.             ) 


AHTNA TENE NENÉ,                              ) 


                       Appellant,             ) 


        v.                                    ) 


STATE OF ALASKA,                              ) 

DEPARTMENT OF FISH & GAME,                    ) 

KENNETH MANNING, and                          ) 

ALASKA FISH & WILDLIFE                        ) 

CONSERVATION FUND,                            ) 


                       Appellees.             ) 


               Appeals from the Superior Court of the State of Alaska, Third 

                Judicial District, Kenai, Carl J. Bauman, Judge. 

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

                Appearances:        John     M.   Sky    Starkey,    Anchorage,      for 

                Appellant.    Michael C. Kramer, Borgeson & Kramer, P.C., 

                Fairbanks, for Appellee Alaska Fish & Wildlife Conservation 

                Fund.   No appearances for other Appellees. 

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

                Justices. [Christen, Justice, not participating.] 

                CARPENETI, Chief Justice. 


                Before 2009 the Alaska Board of Game employed a controversial scoring 

system in order to distribute permits to subsistence hunters in   a popular caribou and 

moose hunting area between Anchorage and Fairbanks.  In 2009, the Board amended its 

regulations to abolish the scoring system and replace it with two separate subsistence 

hunts:   a community harvest hunt for groups and a separate hunt for individuals.  A local 

tribe was subsequently granted a community harvest permit pursuant to the new rules. 

An individual resident brought suit challenging the new system, alleging violations of the 

Alaska   Administrative   Procedure   Act,   his   due   process   rights,   the   Board's   governing 

statutes, and several provisions of the Alaska Constitution.            The tribe intervened on the 

side of the State and a private organization intervened on the side of the individual.  In 

July 2010, the superior court granted summary judgment and enjoined the community 

harvest hunt as unconstitutional.   The superior court later awarded attorney's fees to the 

individual and private organization. 

                The    tribe  appeals    both   decisions,    which    we   have    consolidated     for 

consideration.    We conclude that the underlying appeal is moot because the challenged 

regulation has been substantively changed since 2009; because we decline to reach the 

merits of these claims, this appeal is dismissed. Accordingly, we vacate the attorney's fee 

award granted to the private organization as it stands against the tribe, but otherwise leave 

                                                  -2-                                           6720

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

it undisturbed. We vacate the grant of attorney's fees to the individual as he is not an 

attorney and such an award was improper. 


                The Ahtna people have hunted caribou and moose for centuries in Alaska, 

primarily in a region surrounded by Anchorage, Fairbanks, and the Matanuska-Susitna 

Valley.    This   case   involves   a   roughly   23,000   square-mile   stretch   of   land   called   the 

Nelchina basin, known as Game Management Unit 13.  Due to the area's popularity with 

local Native hunters and other Alaska residents from throughout the state, the Board has 

struggled to find a coherent, workable regulatory policy that satisfies Alaska's subsistence 

law.1   After the subsistence law was modified in 1992, the entire harvestable surplus of 

the   Nelchina    caribou    and   bull   moose   herds   was   allocated   to  subsistence    uses   and 

designated   as   a   Tier   II   hunt. The   criteria   considered   under   the   Tier   II   system   were 

(1) "the customary and direct dependence on the game population by the subsistence user 

for   human     consumption      as  a  mainstay    of  livelihood,"    and   (2)  "the  ability  of  the 

subsistence   user   to   obtain   food   if   subsistence   use   is   restricted   or   eliminated."2 This 

system was controversial and the Board frequently received complaints about inequality, 

unfairness, and false applications. The local tribe, Ahtna Tene Nené (Ahtna) claimed that 

under this system it could not obtain enough permits to meet its people's subsistence 

needs.  It also argued that the system discriminated against members with higher incomes 

and that it prevented young people from obtaining permits, keeping the tribe from passing 

down its long-standing hunting traditions and way of life.              In 2006, the Board of Game 

        1       See AS 16.05.330. 

        2       5 Alaska Administrative Code (AAC) 92.062(a) (2009); see also State, 

Dep't of Fish & Game v. Manning , 161 P.3d 1215, 1217 (Alaska 2007). 

                                                   -3-                                            6720 

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

conducted a series of investigations in response to the many complaints it received about 

its Tier II system. 

                The Board found that under the current system hunting permits had shifted 

from the most dependent local residents to less subsistence-dependent urban residents. 

After applying the criteria of the Joint Boards of Fisheries and Game,3 the Board found 

that   the  current   policy   did  not   adequately    accommodate        customary     and  traditional 

subsistence uses.4     Based on a proposal from eight Ahtna villages, the Board abolished 

the   Tier   II   system   and   established   a   new   Tier   I   system   consisting   of   two   hunts: a 

community   hunt   and   an   individual   hunt.     The   community   hunt   allowed   any   village, 

community, group, or individual to apply for a caribou community harvest permit as long 

as it met the necessary requirements and had a designated hunt administrator.5                      Each 

member included in the caribou community harvest permit would be granted one harvest 

ticket each year.  A similar moose community harvest program was also established.  The 

other hunt, open to all individual Alaskan residents, consisted of a lottery-type drawing 

system that limited each family to one caribou harvest ticket every four years.  Ahtna was 

subsequently granted a community harvest permit for the designated community hunt area 

specified in its application. 

                In March 2009, Kenneth Manning challenged the new Tier I system put in 

place    by  the  Board.    In   April   2009,   Ahtna    moved     to  intervene   and   answered     the 

complaint.     The Alaska Fish & Wildlife Conservation Fund (AFWCF) then moved to 

intervene and   filed its own   complaint.         Manning   then   filed a motion   for   preliminary 

        3       See 5 AAC 99.010(b) (2009). 

        4       See    Findings     for   Caribou    and    Moose     Subsistence     Uses    in   Game 

Management Unit 13, Findings No. 2006-170-BOG. 

        5       See 5 AAC 92.072(c) (2009). 

                                                   -4-                                             6720

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injunction and AFWCF filed a memorandum in partial support. The superior court denied 

the request for preliminary injunction against the community harvest permit issued to 

Ahtna     in  June  2009,   but  found   that  Manning     had  raised   "serious   and  substantial 

questions" about whether the community hunt was unconstitutionally residency-based. 

Thus,    the   court  severed    the  community      residency    requirement     and   ordered   the 

implementation of a sharing opportunity for non-locals. 

               In July 2009, AFWCF filed a motion for summary judgment and in August 

Manning filed a motion for declaratory relief under the public trust doctrine.            The court 

found that the State and Ahtna were substantially in compliance with its earlier order and 

allowed the hunt to proceed given the modified community harvest permit and secondary 

Tier I system.  The State and Ahtna filed cross motions for summary judgment at the end 

of August 2009. Oral argument was heard on the summary judgment motions in January 

2010.    In July 2010, the superior court granted summary judgment for Manning and 

AFWCF        and   enjoined   the  Ahtna    community      harvest   permit   as   unconstitutional, 

concluding that it was fundamentally a residency-based permit and an impermissible 

delegation of authority under the public trust doctrine.  The superior court also concluded 

that   the   public   notice   of  the  changes    noted    above    was   insufficient   under   the 

Administrative Procedure Act and that the Board decision to change the caribou hunt 

from a Tier II to Tier I hunt was arbitrary and unreasonable.   The court either declined to 

reach    or   rejected   the   other   challenges   to  the   regulations  brought  by   Manning  and 


               Ahtna and the State both moved for stays of the decision and the superior 

court entered final judgment on July 22, 2010.   On July 26, 2010, the State and AFWCF 

filed a stipulation acknowledging that the time necessary to revert back to the Tier II 

system would cause hunters to miss the prime hunting season and asked for the Tier I 

non-communal   hunt   to   proceed   as   planned   with   an   allowance   for   Ahtna   community 

                                                 -5-                                          6720

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hunters that had intended to hunt under the community harvest permit. On July 28, 2010, 

the superior court denied the stay requested by Ahtna, but accepted the State-AFWCF 

stipulation   for   a   partial,   temporary   stay. On   that   same   day,   the   Board   met   to   adopt 

emergency regulations in response to the superior court's order.  On August 5, 2010, 

Ahtna filed an appeal with this court and an emergency motion for stay of judgment.6  We 

denied the stay on August 11, 2010. 

                The   Board   amended   its   system   for   caribou   permits   in   October   2010   in 

response to the superior court's grant of summary judgment to AFWCF and Manning. 

The   first   amendment   adopted   by   the   Board   added   express   language   stating   that   the 

application for any community harvest permit was open to any group   of 25 or more 

Alaskans that wished to harvest as a community, regardless of residency.7                   The second 

amendment changed the individual Tier I hunt so that any individual or household that 

participated in that hunt would be awarded a permit every year it applies, instead of once 

every four years.8     These regulations were not yet final at the time this appeal was filed, 

but became effective in 2011.9 

                The superior court also awarded attorney's fees to AFWCF and Manning, 

a pro se litigant who held a law degree but not a bar license.             The superior court issued 

judgment for costs holding the State and Ahtna jointly and severally liable for payment 

of $5,000 to both Manning and AFWCF, and later issued another judgment for costs 

holding   the   State   and   Ahtna   jointly   and   severally   liable   for   payment   of   $5,000   to 

AFWCF.       Ahtna appealed these judgments, arguing that (1) the superior court erred by 

        6       Neither the State nor Manning submitted briefs in this appeal. 

        7       5 AAC 92.072(c)(1) (2012). 

        8       5 AAC 92.071 (2012). 

        9       See 5 AAC 92.071-.074, history. 

                                                   -6-                                             6720

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awarding fees to Manning, a pro se non-attorney litigant; and (2) if this court overturned 

the superior court on appeal, the fee award should be remanded because Manning and 

AFWCF would no longer be the prevailing parties. 

                We heard oral argument in the substantive appeal, case number S-13968, in 

September 2011. Shortly afterward, we issued an order requesting supplemental briefing 

regarding mootness.       Both parties submitted briefs asking us to review the underlying 

substantive claims presented. 


                "We     resolve  issues   of  standing   and   mootness    using   our   independent 

judgment because, as matters of judicial policy, these are questions of law." 10 

                Whether the court applied the proper legal analysis in awarding attorney's 

fees is a question of law that we review de novo.11 


        A.      This Appeal Is Moot. 

                "We refrain from deciding questions where the facts have rendered the legal 

issues    moot."12    A    claim   is  moot   if  it  "has  lost  its  character  as  a  present,  live 

controversy."13     A controversy is a claim that affects   the   legal rights of a party; it is 

"definite and concrete . . . admitting of specific relief through a decree of a conclusive 

        10      Ulmer v. Alaska Rest. & Beverage Ass'n (ARBA), 33 P.3d 773, 776 (Alaska 


        11      Weimer v. Cont'l Car & Truck, 237 P.3d 610, 613 (Alaska 2010) (footnotes 


        12      Ulmer, 33 P.3d at 776 (quoting O'Callaghan v. State, 920 P.2d 1387, 1388 

(Alaska 1996)) (internal grammatical marks omitted). 

        13      Kleven v. Yukon-Koyukuk Sch. Dist ., 853 P.2d 518, 523 (Alaska 1993) 

(citing United States v. Geophysical Corp. of Alaska, 732 F.2d 693, 698 (9th Cir. 1984)). 

                                                 -7-                                           6720

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character,   as   distinguished   from   an   opinion   advising   what   the   law   would   be   upon   a 

hypothetical state of facts."14      "[A] case is moot if the party bringing the action would not 

be entitled to any relief even if it prevails."15      Issuing a decision regarding regulations that 

are no longer in effect is merely an academic exercise; it provides no explanation of a 

party's rights under the existing law. 

                 We have previously recognized that we must be especially careful while 

reviewing requests for a declaratory judgment because those cases may easily become 

advisory opinions if the controversy is moot.16           New or amended regulations may present 

unique factual situations that do not result in the same disagreement between the parties. 

By issuing a declaratory judgment on former versions of amended regulations, the court 

assumes that the dispute has remained the same. This assumption may not be true.  "Even 

in a declaratory judgment case . . . where the rights or obligations of parties are delineated 

by   the   court,   courts   should   avoid   becoming   involved   in   premature   adjudication   of 

disputes that are uncertain to occur."17         If a regulation is amended, the case may become 

moot if the specific relief that the parties seek is no longer available. 

                 Here, the parties principally sought declaratory relief regarding the Board's 

2009     regulation.     Manning       brought     his  suit   for  declaratory     and   injunctive    relief 

challenging the Board's regulation and alleging violations of the Alaska Administrative 

Procedure   Act,   his   due   process   rights,   the   Board's   governing        statutes,   and   several 

         14      Kodiak Seafood Processors Ass'n v. State , 900 P.2d 1191, 1195 (Alaska 

1995)   (emphasis   added)   (quoting Jefferson   v.   Asplund ,   458   P.2d   995,   999   (Alaska 


         15      Ulmer, 33 P.3d at 776 (quoting O'Callaghan, 920 P.2d at 1388) (internal 

quotation omitted). 

         16      Id. 

         17      Id . 

                                                     -8-                                               6720

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

provisions of the Alaska Constitution.   In July 2010, the superior court granted summary 

judgment   for   Manning   and   AFWCF   and   enjoined   the   community   harvest   permit   as 

unconstitutional.  On appeal, Ahtna argued that (1) the community harvest permit granted 

to Ahtna was not fundamentally a local-residency based permit; (2) the Board acted 

within its authority in issuing the community harvest permit, thereby providing different 

hunting    opportunities    based  on   different  patterns  of  subsistence   use;  and   (3)  the 

administrative responsibilities of the hunt administrator through the community harvest 

permit did not constitute an illegal delegation of statutory authority.       AFWCF disputed 

Ahtna's     arguments    and   maintained    that  the  system    granted   preferential   harvest 

opportunities     to  community     harvest   permit   participants   based   on  residency    and 

distinguished between Tier I participants in violation of the Alaska Constitution. 

               The Board amended the challenged regulation in October 2010.             The first 

amendment adopted by the Board added express language stating that the application for 

any community harvest permit was open to any group of 25 or more Alaskans that wished 

to harvest as a community, regardless of residency.18          This amendment clarified that 

eligibility for a community harvest permit was not dependent on residency.  The second 

amendment changed the individual Tier I hunt so that any individual or household that 

participated in that hunt would be awarded a permit every year that the individual or 

household applies, instead of once every four years.19         This amendment addressed the 

challenge to substantially different hunting opportunities.        As noted above, these new 

regulations became effective on July 1, 2011.20 

        18     See 5 AAC 92.072(c)(1). 

        19     See 5 AAC 92.071. 

        20     See 5 AAC 92.071-.072, history. 

                                                -9-                                        6720 

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

                 This   appeal   is   moot   because   the   regulation   that   Manning   and   AFWCF 

originally challenged is no longer in effect.            Moreover, the core issues of their dispute 

have been addressed by the adopted changes.                Thus, there is no live controversy for the 

court to decide and the relief sought by these parties is no longer available through court 

intervention.21    AFWCF now asks for a broad declaration that the subsistence statutes and 

entire permitting scheme are unconstitutional, but those claims are not properly raised by 

the facts of this case.      We have long held that challenges to administrative permitting 

decisions based on rules that are no longer valid are moot, despite the fact that permit 

opponents seek declaratory judgments that the agency actions were unlawful.22 

        21      See Peninsula Mktg. Ass'n v. State, 817 P.2d 917, 919-20 (Alaska 1991) 

(validity   of   chum   cap   moot   in   light   of   amendment   raising   cap;   since   no   claim   for 

damages   incurred   as   a   result   of   the   cap,   we   declined   to   "speculate   as   to   whether 

injunctive relief would be proper in a similar situation in the future"); see also Ulmer, 

33 P.3d at 776 (initiative no longer in effect; even if state prevailed on appeal, no relief 

could be granted). 

        22      See Mullins v. Local Boundary Comm'n , 226 P.3d 1012, 1017 & n.12 

(Alaska 2010) (election vote against incorporation mooted petitioner's appeal of the 

board's decision to grant the petition to put it on the ballot in the first place) (citing Akpik 

v. State, Office of Mgmt. & Budget, 115 P.3d 532, 534-35 (Alaska 2005) (challenge to 

agency's decision not to accept comments on proposed exploratory drilling project and 

to   approve   project   was   moot   where   project   was   completed   and   project   permits   had 

expired); State, Dep't of Natural Res. v. Greenpeace Inc., 96 P.3d 1056, 1068 (Alaska 

2004) (challenge to agency's decision to lift stay on issuance of permit was moot where 

permit had expired); Kodiak Seafood Processors Ass'n v. State , 900 P.2d 1191, 1195-96 

(Alaska 1995) (challenge to agency's decision to issue exploratory permit was moot 

where   permit was   revoked   before   trial, but considering   merits   under   public   interest 


                                                    -10-                                             6720

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

                Even where an appeal is moot, we retain the discretion to address an issue.23 

Our inquiry in such a case focuses on whether any exception to the mootness doctrine 

applies to the appeal.24     We turn now to that question. 

                1.	     The public interest exception to the mootness doctrine does not 


                We will hear moot cases if they fall under the public interest exception. 

                The   public   interest   exception   requires   the   consideration   of 

                three main factors: (1) whether the disputed issues are capable 

                of repetition, (2) whether the mootness doctrine, if applied, 

                may cause review of the issues to be repeatedly circumvented, 

                and (3) whether the issues presented are so important to the 

                public     interest   as   to   justify   overriding    the   mootness 


However, "we have refused to apply the   public interest exception to unusual factual 

circumstances that were unlikely to repeat themselves or situations where the applicable 

statute or regulation was no longer in force."26 

                Both Ahtna and AFWCF argue that the public interest exception applies here 

and    ask  us   to  address   the  substantive    merits   and   underlying    constitutional    claims 

presented.  Ahtna contends that (1) the constitutionality of a separate community harvest 

permit system with different hunting opportunities for the two hunts is the source of 

        23      Hayes   v.   Charney ,   693   P.2d   831,   834   (Alaska   1985)   ("Ultimately,   the 

determination whether to review a moot question is left to the discretion of the court."); 

see also Fairbanks Fire Fighters Ass'n, Local 1324 v. City of Fairbanks, 48 P.3d 1165, 

1168 (Alaska 2002); Taylor v. Gill St. Invs., 743 P.2d 345, 347 (Alaska 1987). 

        24      Mullins, 226 P.3d at 1015. 

        25      Ulmer, 33 P.3d at 777-78. 

        26      Akpik , 115 P.3d at 535 (quoting Fairbanks Fire Fighters Ass'n, 48 P.3d 

at 1168). 

                                                  -11-	                                           6720

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

ongoing litigation between the parties and is capable of repetition, as demonstrated by 

subsequent lawsuits challenging the amended versions of these regulations; (2) this issue 

is   likely   to   circumvent   review   since   the   Board's   regulations   are   frequently   changed, 

especially those related to controversial hunts; and (3) deciding these issues is in the 

public interest because a ruling in this case would legitimize the community subsistence 

hunt system and lend some finality to the issue. 

                 AFWCF   similarly   argues   that   this   case   falls   within   the   public   interest 

exception.   AFWCF claims that (1) the disputed issues do not rely on the now moot 2009 

regulations, but actually focus on the legitimacy of the community hunt enabling statute, 

AS 16.05.330(c), and related regulations that provide different hunting opportunities and 

allocations for different groups of Tier I subsistence users, issues which have not been 

resolved by subsequent amendments to the regulations; (2) these issues will continue to 

evade   review   because   the   Board   can   make   minor   adjustments   to   "replace   previous 

unconstitutional regulations with new regulations that must be continually challenged in 

separate lawsuits"; and (3) these issues are clearly in the public interest because they 

affect "thousands of Alaskan hunters" that must "wage an expensive fight for equality." 

                 These   arguments   are   misguided   because   they   ignore   the   relief   initially 

sought     in  this   appeal   and    instead   make    broad    requests    for  premature      declaratory 

judgments regarding the constitutionality of the community harvest system as a whole 

unrelated   to   any   factual   dispute.   The   requested   relief   in   this   case   was   initially   very 

narrow:      Manning's initial complaint sought to invalidate the current regulations, those 

specifically adopted in 2009, not the system as a whole.                  Ahtna's arguments on appeal 

were     similarly    limited   to  these    regulations:     Ahtna     sought    a  declaration     that  the 

community harvest permit it was granted was not fundamentally a local-residency based 

permit, that the Board acted within its authority in issuing that specific permit, and that 

the administrative responsibilities of the hunt administrator did not constitute an illegal 

                                                     -12-                                              6720

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

delegation   of   statutory   authority.     These   issues   are   not   capable   of   repetition   as   this 

regulation is no longer in force and the subsequent amended versions are substantially 

different from the disputed 2009 versions:              The amended regulation clarifies that any 

group of 25 or more individuals may apply for a community harvest permit, not only 

residents of a certain area, and it changed the hunting opportunities so that all subsistence 

hunters were subject to substantially similar terms.27 

                 The     mootness      doctrine    will   not   cause    review    of   any   issue    to  be 

circumvented, as subsequent appeals may address the constitutionality of the current 

hunting   opportunities   available   to   those   Tier   I   users   that   choose   to   participate   in   a 

communal or individual hunt.  And the validity of the old regulations, including the focus 

on their alleged dependence on residency, is irrelevant to the current statutory scheme. 

Any opinion issued on the validity of the 2009 regulations would be merely advisory and, 

as   AFWCF   acknowledges,   "[s]uch   a   ruling   would   do   little   to   advance   the   ultimate 

resolution of this ongoing dispute."  The "ongoing dispute" about the constitutionality of 

the community harvest system does not center on the claims raised in this appeal, which 

were related to whether this specific permit was constitutional.  We decline to make broad 

declarations of law that ignore the facts of the case in front of us.28              This is particularly 

true when the State is not participating in the appeal.   Ahtna and AFWCF seek review of 

         27      Compare 5 AAC 92.072 (2009, Register 190), with 5 AAC 92.072 (2011, 

Register 198).  Also note changes in  5 AAC 85.025 & .045. 

         28      See Harrod v. State, Dep't of Revenue, 255 P.3d 991, 1002 (Alaska 2011) 

("Standing is a rule of judicial self-restraint based on the principle that courts should not 

resolve     abstract   questions    or   issue  advisory     opinions."    (quoting     Law    Project   for 

Psychiatric Rights, Inc. v. State , 239 P.3d 1252, 1255 (Alaska 2010))); see also Larson 

v. State, 254 P.3d 1073, 1078 (Alaska 2011) (noting that petitioner sought "declaratory 

judgment without an active controversy to place it in context," which supported dismissal 

because "[c]ourts do not lightly issue advisory opinions"). 

                                                    -13-                                              6720

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

issues that are certainly germane to the public interest, but those issues are simply not ripe 

for adjudication in this case. 

               2.	    The issue of attorney's fees does not warrant consideration of the 

                      underlying merits of this case. 

               We will hear an otherwise moot case if it is necessary   to determine the 

prevailing party for the purpose of attorney's fees.29       We will review a case for that 

purpose only if it has some substantive issues remaining and the lower court actually 

made an award of attorney's fees.30     However, we do not have to reach the merits of an 

otherwise moot case where no substantive issues remain merely because of the possibility 

that a losing party might prevail and thus would be entitled to an award of attorney's fees 

from the superior court after appeal.31 

               Ahtna did not receive an award of attorney's fees below so it cannot now 

argue that we must reach the merits of an otherwise moot appeal based solely on the 

possibility that it may be entitled to a fee award if it prevails. A prevailing party has 

already been determined and the Board amended the challenged regulations.               As we 

discuss below, the award of attorney's fees to Manning was improper so the only fees still 

in dispute are those awarded to AFWCF.        The State did not appeal the superior court's 

grant of attorney's fees so it remains liable for the judgment of costs awarded to AFWCF. 

       29      Gold Country Estates Pres. Grp., Inc. v. Fairbanks N. Star Borough, 270 

P.3d 787, 794-95 (Alaska 2012) (quoting Smallwood v. Cent. Peninsula Gen. Hosp., 

Inc. , 227 P.3d 457, 461 (Alaska 2010)). 

       30      Ulmer, 33 P.3d at 777; Hickel v. Se. Conference , 868 P.2d 919, 928 n.11 

(Alaska 1994); Lamoureaux v. Totem Ocean Trailer Exp., Inc. , 651 P.2d 839, 840 n.1 

(Alaska 1982). 

       31      See Ulmer, 33 P.3d at 777 (holding that consideration of a moot case was 

not required when "there was no award of attorney's fees that would be affected by 

appellate review and the issue has not been preserved for appeal"). 

                                             -14-	                                       6720

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

Since this fee award is based on joint and several liability, appellate review will not affect 

that award so it is unnecessary for us to decide the merits of this case solely for purposes 

of attorney's fees.32    Thus, we vacate the judgment of costs against Ahtna, but leave the 

judgment of costs against the State undisturbed. 

        B.       The Grant Of Attorney's Fees To Manning Was Improper. 

                 Alaska Civil Rule 82 allows prevailing parties in civil litigation to recover 

a portion of their attorney's fees. Alaska Statute 09.60.010 allows public interest litigants 

to recover full fees if they prevail on their claim.         Manning was awarded fees under the 

latter   rule   after   the  superior    court   found    he   met   "the   'claimaint'     standards    of 

AS 09.60.010(c) because he prevailed on constitutional grounds on one or more issues 

in the case."  But Alaska law makes clear that pro se litigants may not recover attorney's 

fees under Rule 82; this bar applies to public interest litigants as well.33               The superior 

court explained that "[t]he questions surrounding pro se  litigant[s'] entitlement to fee 

        32      See Hickel, 868 P.2d at 928 n.11 (quoting Hensley v. Eckerhart, 461 U.S. 

424, 442 (1983)) (internal quotation marks omitted): 

                 Although we continue to generally support [the notion that 

                 otherwise moot claims may be heard in order to determine the 

                prevailing party for purposes of attorney's fees, we caution 

                 attorneys not to read this   line of cases] as an invitation to 

                 losing defendants to engage in . . . one of the least socially 

                productive      types    of  litigation   imaginable:     appeals    from 

                 awards of attorney's fees, after the merits of a case have been 

                 concluded,   when   the   appeals   are   not   likely    to   affect   the 

                 amount of the final fee. 

        33      See Maloney v. Progressive Specialty Ins. Co. , 99 P.3d 565, 568 (Alaska 

2004) ("Our cases uniformly hold that unrepresented litigants have no right to recover 

attorney's fees under Rule 82 (unless they are attorneys themselves)."); J.L.P. v. V.L.A. , 

30   P.3d 590, 599 (Alaska 2001) ("[O]ur law is clear that lay pro se litigants   cannot 

recover attorney's fees.") (internal quotation marks omitted). 

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awards as attorneys versus lay individuals are the same under Civil Rule 82 as they are 

under AS 09.60.010."          Thus, the analysis of who is entitled to fees is identical under 

either provision. We explained the reason for this differential treatment in Alaska Federal 

Savings & Loan Ass'n of Juneau v. Bernhardt,34 where we considered the policy reasons 

for and against such fee awards for non-attorney litigants and ultimately held that pro se 

litigants could not collect fee awards.          These reasons include: 

                 (1)  the   difficulty   in   valuing   the   non-attorney's   time   spent 

                 performing       legal    services,    i.e.,  the    problem     of    over 

                 compensating        pro   se  litigants   for  excessive     hours    spent 

                 thrashing about on uncomplicated matters; (2) the danger of 

                 encouraging       frivolous    filings  by   lay  pro   se  litigants   and 

                 creating a 'cottage industry' for non-lawyers; (3) our view 

                 that   the   express    language      of  Civil   Rule    82   specifying 

                 "attorneys fees" is not easily susceptible to a construction 

                 allowing awards to non-attorneys; and (4) the argument that, 

                 in   cases   where   a   litigant   incurs   no   actual   fees,   the   award 

                 amounts to a penalty to the losing party and a windfall to the 

                 prevailing one.[35] 

And pro se litigants do not generally record or bill for specific tasks they perform during 

litigation.   Thus, it is nearly impossible for a court to review these tasks and determine 

whether the time spent and amount billed is appropriate. 

                 Moreover,   we   suggested   our   concern   that   non-lawyers   may   try   to   use 

recovery of attorney's fees to subvert the stringent requirements of bar membership.36  As 

noted above, the plain language of Rule 82 precludes recovery by non-attorneys because 

        34       794 P.2d 579 (Alaska 1990). 

        35       Id .   at   581   (internal   citations   and   quotation   omitted);  see   also   Juelfs   v. 

Gough, 41 P.3d 593, 598-99 & n.26 (Alaska 2002). 

        36       Id. (referring to danger of "creating a 'cottage industry' for non-lawyers"). 

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" '[a]ttorney's fees' presupposes attorney representation."37               Lastly, our rule considers the 

motivation for allowing plaintiffs to recover fees in the first place:  The general purpose 

behind   Rule   82   and   similar   provisions   is   principally   to   compensate   litigants   for   the 

expense of hiring attorneys, which may otherwise be so onerous that it would deter the 

litigant from bringing suit.         "The purpose of Rule 82 attorney's fees is to compensate 

litigants for fees they incur through legal representation, not to compensate litigants for 

the economic detriment of litigating."38 

                 Pro   se   litigants   who   are   also   attorneys   may   recover   fees   when   they   are 

successful, but they can only do so for time spent acting as an attorney in the litigation, 

not for time expended   as a client.39        We have previously explained the rationale for why 

attorney and non-attorney pro se litigants are treated differently: 

                 The rule permitting the recovery of attorney fees by pro se 

                 attorney litigants is well founded.  An attorney has expended 

                 considerable time and effort in obtaining the skills necessary 

                 to   practice   law.   Whether   those   skills   are   directed   to   the 

                 representation   of   others   or   oneself,   the   attorney   skills   and 

                 time   have   a   clear   marketable   value.      None   of   the   policy 

                 reasons     given    in  Bernhardt      to  deny    lay  pro   se litigants 

                 attorney     fees   are   applicable     to  attorneys     who    represent 


Unlike   lay   pro   se   litigants,   a   court   can   value   the   time   of   attorney   pro   se   litigants. 

Moreover,   the   policy   reasons   that   justify   denying   fees   to   lay   pro   se   litigants   do   not 

         37      Bernhardt , 794 P.2d at 581. 

         38      Shearer v. Mundt, 36 P.3d 1196, 1198-99 (Alaska 2001). 

         39      See Sherry v. Sherry, 622 P.2d 960, 966 (Alaska 1981); Burrell v. Hanger , 

650 P.2d 386, 387 (Alaska 1982) (extending Sherry 's holding to Rule 82 fees). 

         40      Pratt & Whitney Canada, Inc. v. Sheehan , 852 P.2d 1173, 1181 (Alaska 

1993) (quoting superior court opinion). 

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similarly   apply   to   attorney   pro   se   litigants   so   attorneys   representing   themselves   are 

allowed to recover fees. 

                 The superior court concluded that "[b]ecause Manning has a law degree but 

is not a member of the Alaska Bar Association, his legal status is somewhere between the 

case law authorizing fee awards to lawyer pro se  litigants and the case law preclusion of 

fee   awards   to  lay pro   se   litigants."  The   superior   court   acknowledged   that   only   one 

consideration justifying fee awards for attorney pro se litigants applies here; principally 

that Manning   "invested   the   time,   effort,   and   expense   to   obtain   a   law   degree."      The 

superior court also noted that Manning is not admitted to practice law in this state and 

"[i]n that sense his legal skills and time do not have a clear marketable value" so it would 

be   difficult   to   value   Manning's   time.   Despite   these   reservations,   the   superior   court 

concluded that fees "should be awarded to a law-school-graduate, non-attorney-pro-se 

claimaint, at an appropriate reduced hourly rate, for legal work on the issues on which the 

claimaint prevailed." 

                 The question  whether a non-attorney pro se litigant with a law degree may 

recover attorney's fees is a question of law we review de novo.                   We disagree with the 

superior court's analysis of the law:          Manning is not somewhere between attorney and 

non-attorney.     Because he has not passed the bar, he is not an attorney.41              Thus, he must 

be treated like any other non-attorney pro se litigant.            As such, he may not recover fees. 

                 A   law   school   graduate   is   not   an   attorney   and   the   policy   rationales   for 

denying fees for lay pro se litigants apply equally to Manning.                  As Ahtna emphasized, 

"[t]he lower court's finding that Manning is a law school graduate does not qualify him 

to practice law in Alaska, nor does it have any bearing on whether he is entitled to an 

award of attorney's fees."  Although Manning did not file a brief in this appeal, his main 

        41       Alaska Civil Rule 81(a). 

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argument below was that with his law degree, he is a "non-Bar attorney" who is entitled 

to costs and   fees.    Alaska Civil Rule 81(a) defines persons who may practice law in 

Alaska as (1) members of the Alaska Bar Association and (2) other attorneys, defined as 

"[a] member in good standing of the bar of a court of the United States."42                 This rule does 

not allow unsupervised law school graduates that have not been admitted to the bar the 

right to practice.  Alaska Statute 08.08.230 makes it a misdemeanor for one to pretend to 

be an attorney, a member of the Alaska Bar Association, or a person licensed to practice 

law in Alaska.  Law school graduates may be convicted under this statute if they are not 

licensed   to   practice   law   even   though   they   may   have   the   skills   and   knowledge   to   be 

admitted to the bar if they chose to apply. 

                 Moreover, the policy rationales for denying fee awards to lay pro se litigants 

apply equally to law school graduates who are not licensed to practice.  As the superior 

court   noted,   it   is   hard   to   value   the   non-attorney's   time   spent   performing   true   legal 

services.   Second, allowing law school graduates to recover fees is a slippery slope, even 

more likely to lead to a "cottage industry" for individuals who do not wish to engage in 

the   study    or  expense    of   being   admitted     to  and   maintaining     membership       in  a  bar 

association.    The superior court noted: 

                 [Manning] does not pay bar dues . . ., is not subject to the 

                 Alaska Rules of Professional Conduct, is not subject to the 

                 Alaska Bar Rules, does not maintain a year round legal staff 

                 .   .   .   or   law   office   .   .   .,   does   not   carry   legal   malpractice 

                 insurance,     does    not  have    an   IOLTA      account,    does   not 

                 provide pro bono services to the indigent, is not available for 

                 Administrative Rule 12 legal assignments, and does not serve 

                 on    discipline,    fee   arbitration,    or   other   committees       or 

                 volunteer programs within the Alaska Bar Association. 

        42       See also AS 08.08.210. 

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Allowing Manning to reap the benefits of being a lawyer, including the ability to recover 

fees,   without   taking   on   the  obligations   and   responsibilities   of  being   a  lawyer   is 

fundamentally unfair.   A law school graduate is a non-attorney; thus, the plain language 

of these rules and statutes prohibit the award of fees.          As we reiterated in Shearer v. 

Mundt ,43 "attorney and non-attorney pro se litigants are not similarly situated [because] 

[a]ttorneys' representational services have a 'clear marketable value.' "44        Unlike licensed 

attorneys,    Manning's     representational    services   have   no  clear  marketable     value  so 

awarding him fees would amount to a windfall.  Manning would not be able to represent 

anyone other than himself in an Alaskan court, just like any other lay pro se litigant. 

Thus, he is barred from recovering attorney's fees.          We vacate the superior court's fee 

award as it was incorrect as a matter of law. 


                Because    this  case  is  moot   and   we  decline   to  reach  the  merits   of  the 

underlying claims, the appeal on the merits is DISMISSED.   We VACATE the award of 

attorney's fees as levied against Ahtna, but otherwise leave the grant of attorney's fees 

to AFWCF undisturbed.   We VACATE the award of attorney's fees to Manning as it was 

erroneous as a matter of law. 

        43      36 P.3d 1196, 1199 (Alaska 2001). 

        44     Id. ; see also Sheehan, 852 P.2d at 1181. 

                                                -20-                                          6720 

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