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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Manning v. State, Dept. of Fish & Game (5/15/2015) sp-7008

Manning v. State, Dept. of Fish & Game (5/15/2015) sp-7008

This has been WITHDRAWN - see Opinion # 7036

         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@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



KENNETH H. MANNING,                                       )  

                                                          )     Supreme Court No. S-15121  

                           Appellant,                     )  

                                                          )     Superior Court No. 3KN-11-00367 CI  

         v.                                               )  

                                                          )     O P I N I O N  

STATE OF ALASKA, DEPARTMENT                               )
  

OF FISH & GAME, KEVIN M. SAXBY, )                              No. 7008 - May 15, 2015
  

and AHTNA TENE NENÉ, INC.,                                )
  

                                                          )  

                           Appellees.                     )  

                                                          )  



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

                                                                   

                  Judicial   District,   Kenai,   Anna   Moran   and   Charles   T.  

                  Huguelet, Judges.  



                  Appearances:      Kenneth   H.   Manning,   pro   se,   Kasilof,  

                  Appellant.  Michael G. Mitchell, Assistant Attorney General,  

                  Anchorage,  and  Michael  C.  Geraghty,  Attorney  General,  

                  Juneau, for Appellee State of Alaska. Brenda B. Page, Senior  

                                                                                    

                  Assistant  Attorney  General,  Anchorage,  and  Michael  C.  

                                                                             

                  Geraghty,  Attorney  General,  Juneau,  for  Appellee  Saxby.  

                  John  M.  Starkey, Law  Office  of  John  Sky  Starkey,  LLC,  

                                                                                

                  Anchorage, for Appellee Ahtna Tene Nené, Inc.  



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

                               

                  Bolger, Justices.  



                  WINFREE, Justice.  


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

I.          INTRODUCTION  



                       The Alaska Board of Game promulgated regulations managing caribou  



                                                                                                           

hunting in Game Management Unit 13. The regulations allow hunting under three types  



of permits:  a community harvest subsistence permit, an individual subsistence permit,  



or  a  non-subsistence  drawing  permit.    A  hunter  challenged  the  regulations  on  



                                                                                                                     

constitutional and statutory grounds, arguing that they wrongfully interfered with his  



                                                                           

subsistence hunting rights, and also sought a judicially imposed public reprimand of an  



                                                                                     

assistant attorney general representing the Board. The superior court dismissed the claim  



              

against the attorney, granted summary judgment upholding the regulations, and awarded  



                                                                                                                                               

partial attorney's fees to the State and an intervenor defendant. The hunter appeals.  We  



                                                                                                                                  

affirm the dismissal and summary judgment orders, but vacate the attorney's fees awards  



and remand for further proceedings.  



II.         FACTS AND PROCEEDINGS  



                                                                                        

                       This case involves a challenge to the Board of Game's 2010 amendments  



                                                                                                                               

to regulations for subsistence caribou hunting in Game Management Unit 13, known as  

                                 1  Under the governing statute, if a game population can be harvested  

the Nelchina basin.                                                                      



consistent with sustained yield principles, the Board must "determine the amount of the  

                                                                               



                                                                                                                                 2  

harvestable  portion  that  is  reasonably  necessary  for  subsistence  uses."     (This  is  

                                                  



            1          We  recently   discussed   the history                        of caribou          hunting   regulation   in  the  



Nelchina basin in Alaska Fish & Wildlife Conservation Fund v. State                                                    (AFWCF II ), ___  

P.3d ____, Op. No. 6992 at 2-5, 2015 WL 1393374, at *1-2 (Alaska Mar. 27, 2015)                                                     

(concerning subsistence moose and caribou hunting in Game Management Units 11, 12,                                              

and 13, collectively referred to therein as the "Copper Basin") and                                                Ahtna Tene Nené v.  

State, Department of Fish & Game, 288 P.3d 452, 455-57 (Alaska 2012) (concerning  

subsistence moose and caribou hunting in Game Management Unit 13 only, referred to  

                                                                                                                          

therein as the "Nelchina basin").  



            2          AS 16.05.258(b).  



                                                                        -2-                                                                 7008
  


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

                                                                                                                                   3  

commonly  called  the  "amount  reasonably  necessary  for  subsistence,"  or  "ANS." ) 



                                                                                                   4  

Subsistence uses are managed at either the Tier I or Tier II level.   Tier I management is  

                                                                                        



appropriate when the Board concludes that the allowable harvest is sufficient to provide  

                                  



a  reasonable  opportunity  for  all  subsistence  uses;  otherwise  Tier  II  management  is  



                   5  

                      Subsistence hunting under Tier II is more limited, with permits allocated  

appropriate.                                                                            

based on specific eligibility criteria.6  



                                                                              

                     In  1993  the  Board  determined  that  the  ANS  for  Nelchina  caribou  was  



"100%   of   the   allowable   harvest"   because   the   demand   for   subsistence   hunting  



                                                                                                                      

"exceed[ed] supply."  The Board therefore managed the Nelchina caribou hunt under  



                                                                                                                    

Tier  II.    Following  a  stream  of  complaints  that  the  Tier  II  system  did  not  provide  



sufficient subsistence opportunity for Nelchina caribou, the Board began developing new  



                                                                   

regulations in 2006.  The Board made new findings about the customary and traditional  



                             

uses of Nelchina  caribou and adopted regulations requiring that hunters conform to  



identified practices.  In March 2009 the Board determined the ANS to be 600-1,000  



                                                             

animals, accounting for the demand of only those hunters following the customary and  



                                                                               

traditional use practices identified in its findings.  Based on the revised ANS and that  



                                                                                       

year's estimated allowable harvest of 1,000 animals, the Board transitioned management  



of the Nelchina caribou hunt from a Tier II to a Tier I system.  The regulations created  



                                                                  

two types of subsistence hunting permits: a community harvest permit and an individual  



          3          See 5 Alaska Administrative Code (AAC) 99.025(c)(1) (2014).  



          4          AS 16.05.258(b); State, Dep't of Fish & Game v. Manning                                 , 161 P.3d 1215,   



1216-17 (Alaska 2007).  



          5          AS 16.05.258(b); Manning , 161 P.3d at 1216-17; 5 AAC 92.990(a)(47),  



(48).  



          6           Manning , 161 P.3d at 1216-17; 5 AAC 92.062.  



                                                                 -3-                                                          7008
  


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

           7  

permit.        The  regulations  were  challenged  in  superior  court  and  invalidated  on  the  

                                                                                                



grounds that (1) they were unconstitutional and (2) the Board's decision to change the  

                                                                                                  



caribou hunt from Tier II to Tier I was arbitrary  and unreasonable and violated the  

                                                                              

Alaska Administrative Procedure Act's notice requirement.8  



                    The  Board  addressed  the  invalidated  regulations  at  its  October  2010  



meeting.    After  reviewing  extensive  evidence  on  population  and  hunting  trends  for  

                                                          



Nelchina caribou, the Board again calculated the ANS at 600-1,000 animals.  Because  

                                                                      



the estimated allowable harvest of 2,300 caribou was greater than the ANS, the Board  



                                                          

concluded that the Nelchina caribou subsistence hunt must be managed under Tier I.  



                                             

The Board then reinstated the bifurcated community/individual subsistence hunt system,  



                                                                                                                              9  

with revisions, and also allowed issuance of non-subsistence hunt drawing permits.   



                    The regulations establish that any group of 25 or more persons may apply  

                                                                                               



for a community harvest subsistence permit entitling each group member to harvest one  

                                                                   



                                                         10  

caribou  during  the  regulatory  year.                        The  group  must  follow  the  customary  and  

traditional  use  pattern  identified  by  the  Board  for  community  subsistence  hunts.11  



Individual  subsistence  permit  holders  also  are  entitled  to  harvest  one  caribou  per  

                                                             



household  during  the  regulatory  year,  but  are  not  subject  to  the  community  harvest  



          7         See Ahtna Tene Nené v. State, Dep't of Fish & Game                            , 288 P.3d 452, 455-56  



(Alaska 2012).  



          8         Id. at 456.  The ruling was appealed, but we dismissed the appeal as moot  

                                                              

after the Board again amended its regulations.  Id. at 458, 463.  



          9         5 AAC 85.025(a)(8).  See generally AFWCF II , ___ P.3d ___, Op. No.  

                                                                              

6992 at 2-5, 2015 WL 1393374, at *1-2 (Alaska Mar. 27, 2015) (describing amended  

permitting scheme and restrictions); Ahtna Tene Nené , 288 P.3d at 456-57.  



          10        5 AAC 85.025(a)(8), 92.072(c)(1).  



          11        5 AAC 92.072(c)(1)(D).  



                                                               -4-                                                         7008
  


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

                                                                   12  

hunt's customary and traditional use restrictions.                     Up to 300 caribou may be taken each  



year under community harvest permits, while no cap is placed on the total number of  



                                                                       13 

                                                                           All subsistence permit holders are  

caribou that may be taken under individual permits. 



                                                                                                                

subject to the same hunting regulations and their hunting seasons and areas are  the  

        14  And all subsistence permits prohibit taking more than one caribou per household  

same.                                                                                       

and hunting caribou in any other location during the permit year.15  



                   In April 2011 Kenneth Manning filed suit against the Alaska Department  



                                                                                          

of Fish and Game (Department) and Assistant Attorney General Kevin Saxby.  Manning  



sought an injunction preventing the Department from implementing the Nelchina caribou  



                                                             

community subsistence hunt regulations on various constitutional and statutory grounds,  



                                                                                                         

and sought a judicially imposed reprimand of Saxby for alleged violations of law while  



he was representing the Board.  Ahtna Tene Nené (Ahtna) was permitted to intervene as  



a defendant.  Shortly thereafter the superior court dismissed the claim against Saxby,  



                                                                                                               

concluding that he was entitled to discretionary and qualified immunity and that the court  



could not grant the specific relief Manning sought.  



                   In late October 2011 the Department issued an emergency order closing the  



                                                                                               

Nelchina caribou hunt to non-subsistence drawing permit holders.  Manning, who held  



an individual subsistence hunt permit, moved for an "emergency expedited ex parte  



                                                      

preliminary injunction" enjoining the closure, but the superior court denied the motion  



                                                                              

because Manning lacked standing.  In early December 2011 the Department closed the  



          12       5 AAC 85.025(a)(8), 92.071(a).  



          13       5 AAC 85.025(a)(8).  



          14       Id. ; 5 AAC 92.072(d).  



         15        5 AAC 92.050(a)(4)(I).  



                                                           -5-                                                    7008
  


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

individual subsistence hunt, and three days later the Department closed the community  



harvest subsistence hunt.  



                    Manning  filed  a  summary  judgment  motion  in  June  2012,  and  the  



Department and Ahtna filed cross-motions for summary judgment.  In April 2013 the  



superior court denied Manning's motion and granted  the Department's and Ahtna's  



                                                                                                    

cross-motions, concluding that the Board's decision to change the Nelchina caribou hunt  



                                                                                                                     16 

                                                                                                                        and that  

from a Tier II hunt to a Tier I hunt was reasonable and consistent with statute 



                               

the new regulations were constitutional and did not violate the public trust doctrine.  The  



                                                              

court also rejected Manning's argument that the Department provided insufficient notice  



                                                                                             

under the Administrative Procedure Act before it closed the individual and community  



harvest subsistence hunts by emergency order.  



                                                                                            

                    During and following the summary judgment proceedings Manning filed  



several motions to disqualify the presiding judge and a motion for new proceedings,  



alleging the judge was biased and incompetent.  Each motion was denied.  



                    The Department and Ahtna moved for attorney's fees, and the superior  



court awarded them partial fees as prevailing parties under Alaska Civil Rule 82.  The  



                                                                                  

court concluded that 15 of the 30 counts in Manning's complaint requested constitutional  



                                                                               

relief and were not frivolous, so Manning could not be liable for attorney's fees incurred  



                                                                                  17  

                                                                                       The court awarded attorney's  

in connection with those claims under AS 09.60.010. 



          16         Specifically the superior court concluded:  (1) the decision to change the                     



ANS for Nelchina caribou was reasonable and supported by sufficient evidence; (2) the   

ANS range calculated by the Board in October 2010 was reasonable and supported by   

sufficient evidence; and (3) the Board's decision to transition from a Tier II to a Tier I                            

hunt was supported by sufficient evidence.  



          17        AS 09.60.010(c)(2) provides that a court:  



                                

                     [M]ay not order a claimant to pay the attorney fees of the  

                                                                                                                (continued...)  



                                                                -6-                                                         7008
  


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

                       

fees for all time spent on "non-constitutional, procedural issues," and for 50% of the time  



spent on work in which the type of claim could not be identified.  The court also reduced  



the  hourly  rates  the  Department  and  Ahtna  claimed  by  half  because  Manning  was  



indigent, resulting in final awards of $4,573 to the Department and $1,080 to Ahtna.  



                   Manning appeals.  



III.	     STANDARD OF REVIEW  



                   "We review grants of motions to dismiss and grants of summary judgment  

de novo . . . ."18  



                                                                                                  

                   "We presume that regulations are valid and we place the burden of proving  

otherwise on the challenging party":19  



                   We   review   an   agency's   regulation   for   whether   it   is  

                                     

                   "consistent with and reasonably necessary to implement the  

                   statutes  authorizing  [its]  adoption."    Toward  this  end  we  

                   consider:    (1)  whether  [the  agency]  exceeded  its  statutory  

                   authority  in  promulgating  the  regulation;  (2)  whether  the  

                   regulation is reasonable and not arbitrary; and (3) whether the  

                                      



          17	      (...continued)  



                   opposing party devoted to claims concerning constitutional  

                   rights if the claimant . . . did not prevail in asserting the right,  

                                     

                   the action or appeal asserting the right was not frivolous, and  

                   the claimant did not have sufficient economic incentive to  

                   bring  the  action  or  appeal  regardless  of  the  constitutional  

                                                                               

                   claims involved.  



          18  

                                                              

                   Smith v. State, 282 P.3d 300, 303 (Alaska 2012) (citing Interior Cabaret,  

Hotel,  Rest.  &  Retailers  Ass'n  v.  Fairbanks  N.  Star  Borough ,  135  P.3d  1000,  1002  

(Alaska 2006)).  



          19  

                                                          

                   West v. State, Bd. of Game, 248 P.3d 689, 694 (Alaska 2010) (citing Lakosh  

v. Alaska Dep't of Envtl. Conservation , 49 P.3d 1111, 1114 (Alaska 2002)).  



                                                           -7-	                                                    7008
  


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

                   regulation  conflicts  with  other  statutes  or  constitutional  

                   provisions.[20]  



Reviewing whether a regulation is reasonable and not arbitrary "consists primarily of  



                                                           

ensuring that the agency has taken a hard look at the salient problems and has genuinely  



                                                        21  

engaged in reasoned decision making."                        



                   "We apply the reasonable basis standard to questions of law involving  



                                                                                                                   

'agency expertise or the determination of fundamental policies within the scope of the  

agency's statutory functions.' "22  We also review an agency's application of law to facts  



                                                    23  

under the reasonable basis standard.                    But we exercise our independent judgment in  

reviewing whether an agency action is consistent with the Alaska Constitution.24  



                   "We review de novo whether the trial court applied the law correctly in  

awarding attorney's fees."25  



          20       Wilber v. State, Commercial Fisheries Entry Comm'n, 187 P.3d 460, 464- 



65 (Alaska 2008) (first alteration in original) (quoting Grunert v. State, 109 P.3d 924,  

                                   

929 (Alaska 2005)).  



          21       Interior Alaska Airboat Ass'n v. State, Bd. of Game , 18 P.3d 686, 690  



(Alaska 2001) (citing Tongass Sport Fishing Ass'n v. State, 866 P.2d 1314, 1319 (Alaska  

                                                                

1994); Gilbert v. State, Dep't of Fish & Game, 803 P.2d 391, 398 (Alaska 1990)).  



          22  

                                                                                  

                   Davis Wright Tremaine LLP v. State, Dep't of Admin. , 324 P.3d 293, 299  

                                                            

(Alaska 2014) (quoting Marathon Oil Co. v. State, Dep't of Natural Res. , 254 P.3d 1078,  

1082 (Alaska 2011)).  



          23  

                                                                                                        

                   Alaska Fish & Wildlife Conservation Fund v. State, Dep't of Fish & Game,  

Bd. of Fisheries (AFWCF I ), 289 P.3d 903, 907 (Alaska 2012) (citing Koyukuk River  

Basin Moose Co-Mgmt. Team v. Bd. of Game , 76 P.3d 383, 386 (Alaska 2003)).  



          24       Id.  



          25       Lake  &  Peninsula  Borough  Assembly  v.  Oberlatz ,  329  P.3d  214,  221  



(Alaska 2014) (alteration omitted) (quoting Marron v. Stromstad, 123 P.3d 992, 998  

                                                                                                       (continued...)  



                                                           -8-                                                     7008
  


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

IV.	     DISCUSSION  



         A.	       The Regulation Managing The Nelchina Caribou Hunt Under Tier I  

                                                                                              

                   Is Consistent With The Statute And Is Reasonable And Not Arbitrary.  



                                                                   

                   Manning argues that the Board's decision to manage the Nelchina caribou  



                                                                                  26 

                                                                                     - is unlawful, and that the  

hunt under Tier I - executed through 5 AAC 85.025(a)(8) 



                                            

hunt must be managed  under Tier II.  But the Board's decision is lawful so long as  



                                                                                                                        27  

                                                                                                 

5 AAC 85.025(a)(8) is consistent with the statute and is reasonable and not arbitrary. 



Alaska Statute 16.05.258(b) requires the Board to adopt regulations managing a game  



population under Tier II only "if the harvestable portion of the . . . population is not  



                                                                                                   28  

                                                                                                       We construe  

sufficient to  provide a reasonable opportunity for subsistence uses." 



Manning's argument to be that 5 AAC 85.025(a)(8) is inconsistent with its authorizing  



                                                                                               

statute - AS 16.05.258(b) - because it impermissibly allows the Board to manage the  



                                                                                             

subsistence  hunt  under  Tier  I  when  the  allowable  harvest  of  Nelchina  caribou  is  



                                   

insufficient  to  provide  a  reasonable  opportunity  for  subsistence  uses.    Manning's  



argument thus turns on whether the Board lawfully could conclude that a reasonable  



         25        (...continued)  



(Alaska 2005)) (internal quotation marks omitted).  



         26        5   AAC  85.025(a)(8)  establishes  bag  limits  and  hunting  seasons  for  



Nelchina caribou under a Tier I management scheme.  



         27        See Wilber v. State, Commercial Fisheries Entry Comm'n, 187 P.3d 460,  

                                                                                                       

464-65 (Alaska 2008) (citing Grunert v. State, 109 P.3d 924, 929 (Alaska 2005)).  It is  

                                                                                                                      

undisputed that the Board has statutory authority to promulgate regulations managing  

subsistence  game  hunts.    See  AS  16.05.258.                      The  fact  that  the  Board  previously  

                                                                              

determined the Nelchina caribou hunt had to be managed under Tier II does not affect  

the standard of review or analysis.  See AFWCF I, 289 P.3d at 912 (noting Board of  

                                  

Fisheries "is not required to strictly adhere to its early determinations, especially when  

provided new contradictory data").  



         28        AS 16.05.258(b)(4).  



                                                           -9-	                                                    7008
  


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

opportunity for subsistence uses exists.  The meaning of "reasonable opportunity for  



                                                                                                                             

subsistence  uses"  involves  the  Board's  expertise  and  is  committed  to  the  Board's  



                                   29  

                                                                                        

discretion by statute,                so the Board's determination that a reasonable opportunity exists  

is consistent with statute if the determination has a reasonable basis.30  



                                                                                                  

                      Manning argues the Board cannot conclude that a reasonable opportunity  



                                                                             

for subsistence uses exists because the Board relied on an ANS value it had "unlawfully  



                                                                                                                                         

reduce[d]."    And  because  the  Board  must  manage  a  hunt  at  the  Tier  II  level  if  the  

harvestable surplus is below the ANS,31 the Board could not reasonably conclude that  



                       

a reasonable opportunity for subsistence uses existed if it relied on an improper ANS  



value.  



                                                          

                      Manning argues the ANS determination is unlawful in two ways:  (1) the  



Board violated the Alaska Constitution by relying on impermissible user characteristics  



in its ANS calculation; and (2) the ANS determination is unreasonable.  Although the  



                                                                                                               

ANS  determination  was  published  as  a  regulation  -  5  AAC  99.025(a)(4)  -  the  



           29         See      AS       16.05.258(f)            ("For       purposes           of   this   section,   'reasonable  



opportunity' means an opportunity,                          as determined by the appropriate board, that allows  

a subsistence user to participate in a subsistence hunt or fishery that provides a normally                

diligent participant with a reasonable expectation of success of taking of fish or game."                                         

(emphasis added)).  



           30  

                                                                                              

                      See Davis Wright Tremaine LLP v. State, Dep't of Admin. , 324 P.3d 293,  

                       

299 (Alaska 2014) (citing Marathon Oil Co. v. State, Dep't of Natural Res. , 254 P.3d  

1078, 1082 (Alaska 2011)).  



           31         ALASKA  DEP 'T OF FISH &   GAME ,  DIV . OF  SUBSISTENCE , GUIDELINES FOR  



                                                                                                                     

PREPARING OPTIONS FOR THE ALASKA BD . OF FISHERIES & ALASKA BD . OF  GAME FOR  



                                                                                                            

AMOUNT  REASONABLY  NECESSARY  FOR  SUBSISTENCE  (ANS) FINDINGS 1 (vers. 1.0,  

2009); see also 5 AAC 99.025(c)(1) (defining ANS as "the total amount of animals from  

                                                                                                                         

a  population  that  must  be  available  for  subsistence  hunting  in  order  to  provide  a  

                                                                                             

reasonable opportunity for subsistence uses").  



                                                                     -10-                                                                7008
  


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

                                                                                                                                              32  

                                                                    

determination is an application of law to facts which is reviewed for a reasonable basis. 



                                                          

The Board's discretion under this standard is limited, however:  "The Board's ultimate  



decisions must be reasonably related to the purposes of the subsistence law; in other  



                                                                                                                    

words, the Board may not manipulate [an underlying determination] simply to achieve  

a predetermined outcome."33  



                                                                                                     

                       1.	        The Board's ANS calculation was not based on unconstitutional  

                                  factors.  



                                                             

                      Manning  asserts  that  the  Board  improperly  used  "rail  belt  and  urban  



residency, 'community,' and/or Ahtna racial customs and traditions to pre-determine  



                                                                                                  

who is or is not a subsistence user" in calculating the ANS, and asserts that consideration  



of  these  factors  violates  the  Alaska  Constitution.    (Emphasis  in  original.)                                                      But  



                                                                                                                         34  

                                                                                                                               The record  

AS 16.05.258(b) refers to ANS in terms of subsistence uses, not users.  



reveals  that  the  Board  included  a  broad  variety  of  subsistence  uses  in  its  ANS  



                                                                   

calculation.  And even if the Board had defined subsistence uses of Nelchina caribou to  



                                                                  

include only local community hunting practices, it would not necessarily have violated  



                                                                   

the Alaska Constitution - considering certain users' patterns to define the subsistence  



                                              

uses  placing  demand  on  a  game  population  affects  only  that  game  population's  



                                                                                                

classification; it "does not affect any individual's ability to obtain a subsistence permit  



           32         See  AFWCF I , 289 P.3d at 907 (citing Koyukuk River Basin Moose Co-                          



Mgmt. Team v. Bd. of Game                        , 76 P.3d 383, 386 (Alaska 2003)) (application of law to                              

facts is reviewed for reasonable basis);                         see also State v. Kenaitze Indian Tribe, 894 P.2d  

632,  641  (Alaska  1995)  (stating  fish  and  game  allocation  decisions  generally  are  

reviewed for reasonable basis).  



           33         Native Vill. of Elim v. State , 990 P.2d 1, 11 (Alaska 1999).  



           34         AS 16.05.258(b) states, "[T]he board shall determine the amount of the  



harvestable portion that is reasonably necessary for subsistence uses."  



                                                                     -11-	                                                              7008
  


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

                                                                     35  

                   

                                                                                               

or to utilize that permit in a subsistence area."                          The Board's subsistence definition  



                                                                 

applies equally to all of Alaska's citizens.  Accordingly, the Board's ANS calculation  



                                                            

does not implicate, nor violate, the equal access, uniform application, or equal protection  

clauses of the Alaska Constitution.36  



                    2.       The Board's ANS calculation is reasonable.  



                    Manning also asserts that the ANS calculation was improperly reduced for  

                                                    



the purpose of converting the hunt to Tier I and implementing a community subsistence  



                                                                                          

hunt.  But Manning points to nothing in the record indicating the Board "manipulate[d]"  

the ANS "simply to achieve a predetermined outcome."37  On the contrary, considerable  



                                                                 

evidence in the record justifies the Board's ANS calculation and demonstrates that the  



                       

Board took "a hard look at the salient problems and . . . genuinely engaged in reasoned  

decision making."38  



                    The Board reviewed extensive evidence on long-term harvest, customary  



                                                                                                 

and traditional use patterns, and caribou population trends, and it considered a number  



                                        

of  proposals  for  defining  subsistence  uses  of  Nelchina  caribou  in  making  its  ANS  



determination.    It  concluded  the  600-1,000  ANS  best  fit  the  available  data  after  



considering  at  least  eight  possible  ANS  options.    The  Board  identified  substantial  



                                                                                                                         

evidentiary support justifying the customary and traditional use definition applied in its  



                                                          

ANS  determination.    And  the  Board  continued  to  consider  a  number  of  proposed  



          35       AFWCF I , 289 P.3d at 910.  



          36        See id.  



          37       Native Vill. of Elim , 990 P.2d at 11.  



          38       Interior Alaska Airboat Ass'n v. State, Bd. of Game , 18 P.3d 686, 690  



(Alaska 2001) (citing Tongass Sport Fishing Ass'n  v. State, 866 P.2d 1314, 1319 (Alaska  

1994); Gilbert v. State, Dep't of Fish & Game, 803 P.2d 391, 398 (Alaska 1990)).  



                                                             -12-                                                       7008
  


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

management regimes - including a Tier II hunt - after calculating the ANS, suggesting       



the ANS calculation was not merely a pretext for switching to a Tier I hunt.  The Board   



concluded that "Tier II is off [the] table" only after comparing the adopted ANS to the   



harvestable surplus.  



                   Although there is some evidence that the Board preferred that the ANS  



                      

determination ultimately allow for a Tier I hunt, it does not appear that the ANS was  



improperly  manipulated  to  achieve  a  predetermined  outcome.    The  record  provides  



 sufficient evidentiary support demonstrating that the Board's ANS calculation is both  



procedurally and substantively reasonable.  Accordingly the Board reasonably concluded  



                                                         

that there is a reasonable opportunity  for subsistence uses.  Managing the Nelchina  



                                                                                                

caribou hunt under Tier I through 5 AAC 85.025(a)(8) is consistent with the statute and  



is reasonable and not arbitrary.  



                                    

          B.	      The  2011   Closures  By  Emergency  Order  Did  Not  Violate  The  

                   Administrative Procedure Act's Notice Requirements.  



                   Manning  contends  that  the  Department  violated  the  Administrative  



                 

Procedure Act by failing to give permit applicants sufficient notice that the individual  



 subsistence and the non-subsistence drawing hunts "may be closed by Emergency Order  



                                                          

prior  to   achieving  the  annual  harvest  quota,  while  allowing  or  granting  a  priority  



                                                   

preference for 'community' permit hunters (CHP) to continue to hunt the same resource  



prior to the annual harvest quota."  (Emphasis in original.)  Manning appears to be  

referring   to   the   emergency   closures   of   the   Nelchina   caribou   hunt   in   2011.39  



          39       Although Manning refers to the individual subsistence and non-subsistence  



drawing hunt closures in his brief, Manning's Administrative Procedure Act challenge  

in the superior court involved only the individual and community harvest subsistence  

hunt  closures;  the  court  previously  had  denied  Manning  standing  to  challenge  the  

drawing hunt closure.  Accordingly we consider Manning's Administrative Procedure  

                                                                                                       (continued...)  



                                                          -13-	                                                    7008
  


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

                                                                                                  

Alaska Statute 16.05.060 authorizes closures by emergency orders, which have the force  



          40  

                                          

of law.       Emergency orders are not subject to the Administrative Procedure  Act, so no  



                                                              41  

                                                                    Manning's  concern  about  the  three-day  

notice  is  required  prior  to  their  issuance. 



difference  in  the  emergency  closures  of  the  individual  subsistence  hunt  and  the  



                                                        

community subsistence hunt has little to do with notice; to the extent his concern is about  



equal protection, his argument is undeveloped and we do not consider it.  



          C.        The Claim Against Saxby Was Properly Dismissed.  



                    The  superior  court  dismissed  Manning's  claim  against  Saxby  on  the  



alternative  grounds  of  discretionary  function  immunity,  official  immunity,  and  the  



                                                                                 

court's lack of authority to grant the relief requested.  Manning provides no authority  



                                                                                                       

establishing that the superior court has general jurisdiction to issue a public reprimand  



                                                                                 42  

for attorney misconduct extrinsic to court proceedings.    Nor does Manning cite any  



authority that the superior court has general jurisdiction to issue a reprimand against a  



                                                                                                    

public official for conduct extrinsic to court proceedings.  Insofar as Manning may have  



                         

been requesting declaratory relief against Saxby, such relief is not available in this case:  



          39        (...continued)  



Act  challenge  on  appeal  to  relate  only  to  the  individual  and  community  harvest  

subsistence hunt emergency closures.  



          40       We note that Manning's 2011 individual subsistence hunt permit expressly  



states:    "This  caribou  hunt  may  be  closed  by  Emergency  Order  (EO).    It  is  your  

                                                                        

responsibility to be aware of hunt closures."  



          41       AS 16.05.060(c), 44.62.190.  



          42  

                                                                                                                        

                    The proper forum for seeking attorney discipline for such misconduct is the  

Alaska Bar Association.  See Alaska Bar R. 10(c).  A superior court may, of course,  

sanction an attorney for misconduct occurring in the course of court proceedings.  See,  

e.g., Alaska R. Civ. P. 16(f), 77(j); see also Alaska Bar R. 9(c).  



                                                            -14-                                                       7008
  


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

simply  asking  that  a  public  official  be  reprimanded  does  not  present  a  justiciable  



                    43  

controversy. 



           D.        Manning's Other Issues Lack Merit.  



                     Manning argues that conditioning Tier I eligibility on "community criteria"  



violates  article  I,  section  1  and  article  VIII,  sections  3,  15,  and  17  of  the  Alaska  

Constitution, and that these arguments must be reviewed under strict scrutiny.44                                                We  



                                             

construe these arguments to allege that the community harvest permit eligibility criteria  



                                                                                                                                   45  

                                                                                                    

are unconstitutional.  But we upheld the constitutionality of these criteria in AFWCF II .  



                     Manning also argues that the superior court erred by denying him standing  



                                                         

to challenge the 2011 drawing hunt emergency closure order.  The issue is now moot,  



           43        See State v. Am. Civil Liberties Union of Alaska                       , 204 P.3d 364, 368 (Alaska  



2009)  (noting   that  under  Alaska's  declaratory  judgment  statute,  AS  22.10.020(g),  

declaratory   relief is   appropriate   only   when   an   "actual controversy"  exists); see also  

 Thuma v. Kroschel, 506 N.W.2d 14, 21 (Minn. App. 1993) (holding allegation that city                     

mayor acted "ultra vires," without more, could not support an action for declaratory   

judgment  because  there  was  no  genuine,  adversarial  conflict);  Port  Isabel/S.  Padre  

Island Taxpayers Ass'n v. S. Padre Island , 721 S.W.2d 405, 406-07 (Tex. App. 1986)  

                                                                                               

(refusing  to  grant  declaratory  relief  for  town's  alleged  failure  to  put  a  tax  rollback  

provision on the ballot when a later tax rollback provision made it onto the ballot but was  

defeated because declaratory relief would be "nothing more than a reprimand to the  

                                                                                                                             

 [town] for its rejection of [the]first petition").  



           44        Manning also argues the criteria violate the public trust doctrine, but the  



                                                                                                

public trust doctrine was "constitutionalize[d]" in the common use clause of article VIII,  

                                                                                                  

section 3; so Manning's public trust argument is simply another way of arguing a section  

3 violation.   Owsichek v. State, Guide Licensing & Control Bd., 763 P.2d 488, 493  

(Alaska 1988).  



           45  

                                                                                                              

                     ___ P.3d ___, Op. No. 6992 at 6-10, 2015 WL 1393374 at *2-4 (Alaska  

Mar. 27, 2015).  



                                                                -15-                                                         7008
  


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

as the order applied only to the 2011-2012 Nelchina caribou hunt, and we decline to  

                                                                                                        

address it.46  



                   Manning  briefly  raises  several  other  points  on  appeal.    Specifically  he  



                                                                                                       

contends that:  the regulations violate the sustainable yield requirement of article VIII,  



                                                                                       

section 4 of the Alaska Constitution; the prohibition on Unit 13 permit holders hunting  



caribou or moose elsewhere in the state is unconstitutional; the restrictions on a killed  



                     

caribou's  use  are  unlawful;  the  regulations  "unlawfully  grant  and  provide  a  special  



preference priority granting new aboriginal rights in violation [of the] Alaska Native  



                                                                                              

Claims Settlement Act"; and the denials of his motions regarding the presiding judge's  



alleged bias were erroneous.  But because his arguments on these points are conclusory  

and inadequately developed, we consider them waived.47  



                                                                                          

         E.	       The Attorney's Fees Awards Were Calculated Improperly And Must  

                   Be Vacated.  



                   The superior court awarded the Department and Ahtna attorney's fees under  



                                                                     

Alaska Civil Rule 82 for defending 15 of the 30 counts in the complaint, reasoning that  



Manning was immune under AS 09.60.010(c)(2) from paying fees related to the 15  



counts the court believed concerned constitutional claims.  Manning argues that the court  



erred because each of the 30 counts concerns a constitutional right.  



                                                                                         

                   The superior court did not indicate which counts of Manning's complaint  



concerned constitutional rights.  But based on our de novo review, we conclude that 19  



         46        See Ahtna Tene Nené v. State, Dep't of Fish & Game, 288 P.3d 452, 457               



(Alaska  2012)  ("A  claim  is  moot  if  it  'has  lost  its  character  as  a  present,  live  

controversy.' " (quoting Kleven v. Yukon-Koyukuk Sch. Dist. , 853 P.2d 518, 523 (Alaska  

                                                                                       

1993))).  



         47        See Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991).  



                                                          -16-	                                                    7008
  


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

                                                                                                  48  

of the 30 counts concerned protection of constitutional rights.                                       Fifteen counts clearly  



                                                                        

concerned protection of constitutional rights to subsistence hunting access, sustainable  



                                                               49  

                                                                    Other counts present closer questions.  Three  

yield management, and equal protection.  



                                                                                                                        

counts involved claims that the Board failed to consider relevant statutory factors and  



                                                 

that its administrative process was flawed, leading to its promulgation of the allegedly  



                                                           

unconstitutional community harvest system and the alleged "elimination" of individual  



                                                                                                   

subsistence rights.  Although these claims can be construed to assert a statutory right to  



                                                                                                         

a lawful administrative process, they are more correctly viewed as seeking to protect the  



                        

constitutional  common  use  right  from  improper  infringement  by  agency  action.  



Likewise, Manning alleged in one count that under AS 16.05.258(b) - requiring that  



game  management  provide  a  reasonable  opportunity  for  subsistence  uses  -  the  



                                                                                     

regulations exceeded the Board's statutory authority. Although this facially is a statutory  



                                                                                                   

argument,  AS  16.05.258(b)  functions  to  protect  Alaskans'  constitutional  rights  to  



subsistence  hunting  access  -  even  absent  this  statute,  Manning  would  have  a  



constitutional basis for his claim against the Board for failing to protect subsistence  



                         50  

                                But  it  is  not  evident  that  the  remaining  11  counts  concerned  

hunting  access.                                       



constitutional rights, so Rule 82 attorney's fees might be awarded for those claims.  



           48        Specifically, counts 1, 2, 3, 4, 8, 9, 10, 11, 12, 14, 15, 16, 18, 21, 23, 26, 27,                         



28, and 29 concerned constitutional rights.  



           49        See Alaska Const. art. I, § 1; id. art. VIII, §§ 3, 4, 15, 17.  



           50  

                                                                                                            

                     Lake & Peninsula Borough v. Oberlatz , 329 P.3d 214, 227 (Alaska 2014)  

                                                                                

("It does not matter that the deprivations [of the plaintiffs' constitutional rights] also  

violated statutes designed to regulate the [constitutional] right . . . or that the statutes  

provide  the  rule  of  law  for  determining  whether  the  constitutional  right  has  been  

infringed.  The ultimate question is whether the [claimants] sought to protect themselves  

from deprivation of their constitutional rights . . . .").  



                                                                 -17-                                                            7008
  


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

                    As  we  recently  explained  in  Lake  &  Peninsula  Borough  Assembly  v.  



                                                                     

Oberlatz, "[d]etermining whether [claimants] are immune from paying attorney['s] fees  



to  .  .  .  defendants  requires  consideration  of  the  nature  of  each  claim  against  those  



                   51  

                               

defendants."          And "Rule 82 attorney['s] fees may be awarded only for work that would  



not have been necessary but for a non-constitutional claim; AS 09.60.010(c)(2) applies  

to work in which a constitutional claim is implicated in any way."52  



                    The  superior  court  awarded  attorney's  fees  for  work  done  on  "non- 



                                                                                                        

constitutional, procedural issues."  It is unclear whether the court was referring to work  



defending  solely  against  non-constitutional  claims  or  work  on  procedural  issues  



                                     

involving the merits of a constitutional claim.  Rule 82 attorney's fees are allowable only  



                                                 

for the former. Work on general procedural issues, such as the motions to disqualify the  



                                                                     

presiding judge, cannot be disconnected from Manning's constitutional claims.  Unless  



the Department or Ahtna can provide sufficiently detailed documentation segregating the  



time spent on specific procedural work by claim type, the court must assume that the  



          51        Id. (emphasis added).  



          52        Id. at 228 (citing Fox v. Vice , 131 S. Ct. 2205, 2215 (2011)).  Fox v. Vice  



involved  the  federal  rule  that  a  plaintiff  cannot  be  liable  for  attorney's  fees  under  

42  U.S.C.  §  1988  unless  the  "  'action  was  frivolous,  unreasonable,  or  without  

foundation.' "  131 S. Ct. at 2213 (quoting Christiansburg Garment Co. v. EEOC, 434  

                                                                                                             

U.S. 412, 421 (1978)).  That rule and AS 09.60.010(c)(2) are analogous in that both  

serve to protect plaintiffs seeking to protect important rights from paying attorney's fees  

                                                                                

if they do not prevail, unless the defendant incurred the fees defending against a claim  

                                                                                                           

that  did  not  concern  protection  of  an  important  right  -  e.g.,  a  frivolous  or  non- 

                                                       

constitutional claim.   Compare id. (stating § 1988 intended to remove cost barrier of  

vindicating one's civil rights), with Debate on C.S.H.B. 145 (FIN) Before the Senate,  

                                                       

23d Leg., 1st Sess. (May 20, 2003) (statements of Sen. Seekins) ("What [AS 09.60.010]  

                             

really does is it retains the essence of the public interest litigant doctrine for the cases that  

                                                                                             

relate to our most important rights, the constitutional rights.  And actually it enlarges  

                                                                                                     

those protections.").  



                                                             -18-                                                        7008
  


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

billed time for procedural work was all connected to Manning's constitutional claims.  

                                              



This assumption protects against the possibility of improperly awarding fees for work  



responding to constitutional claims.  On remand, the superior court should not award  



attorney's fees for work on a procedural issue unless the applicant provides the requisite  



documentation that the procedural issue is related solely to a non-constitutional claim.  



                   Based  on  its  conclusion  that  15  of  Manning's  30  counts  involved  



constitutional  claims,  the  superior  court  also  awarded  the  Department  and  Ahtna  



                                                                                                               

attorney's fees for 50% of work for which the nature of the claim involved was not  



                                                           

identified.    Such  a  pro  rata  approach  is  improper.    Although  we  do  not  hold  that  a  



superior court can never award partial fees for work when the type of claim cannot be  



clearly identified, the court must ensure that fees are not awarded for work involving  

                              53   Simply awarding a pro rata share of attorney's fees based on the  

                                                                        

constitutional claims. 



ratio of non-constitutional to constitutional claims "would be to risk requiring a plaintiff  



                                                                                                                       54  

                                                                                      

to pay defendants' attorney[']s fees incurred in defeating his [constitutional] claims." 



         53        As the United States Supreme Court explained in Fox :  



                   The essential goal in shifting fees [under 42 U.S.C. § 1988]  

                   is to do rough justice, not to achieve auditing perfection.  So  

                                                        

                   trial courts may take into account their overall sense of a suit,  

                   and  may  use  estimates  in  calculating  and  allocating  an  

                   attorney's time. . . .  



                            But the trial court must apply the correct standard . . . .  

                   That means the trial court must determine whether the fees  

                                                                 

                   requested would not have accrued but for the frivolous claim.  

                   . . . A trial court has wide discretion when, but only when, it  

                                                        

                   calls the game by the right rules.  



131 S. Ct. at 2216-17 (citations omitted).  



         54        Harris v. Maricopa Cnty. Superior Court , 631 F.3d 963, 972 (9th Cir.  



                                                                                                      (continued...)  



                                                          -19-                                                    7008
  


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

                                                           

Such an approach is impermissible under AS 09.60.010(c)(2) and may not be applied on  



                                                                                

remand.  Defendants seeking attorney's fees for work on non-constitutional claims must  



                                                                                                    

"submit appropriate documentation to meet 'the burden of establishing entitlement to an  



              55  

                                                                             

award.'  "         "If  defendants  do  not  demonstrate  that  the  work  would  not  have  been  



                                                                                                

performed in order to defend against the [constitutional claims], or to put it differently,  



                        

but for the need to defend against the [non-constitutional] claims, fees associated with  

that work cannot be awarded, even in part."56  



V.        CONCLUSION  



                   We AFFIRM the superior court's orders dismissing the claim against Saxby  



                                                                                          

and granting summary judgment for the Department and Ahtna, VACATE the attorney's  



fees awards, and REMAND for further proceedings consistent with this opinion.  



          54       (...continued)  



2011)  (reversing  pro  rata  award  of  42  U.S.C.   §   1988  attorney's  fees  based  on  ratio of  

frivolous to non-frivolous claims); see also McKenna v. City of Phila., 582 F.3d 447, 458  

(3d  Cir.  2009)  (rejecting  calculation  of  attorney's  fees  award  "  'using  a  simple  

                                        

mathematical  approach  based  on  the  ratio  between  a  plaintiff's  successful  and  

unsuccessful claims' " (quoting McKenna v. City of Phila., Civ. Action No. 07-110, 2008  

                                                               

WL 4435939, at *13 (E.D. Pa. Sept. 30, 2008))).  



         55        Fox ,   131 S.  Ct.  at 2216 (quoting Hensley v. Eckerhart , 461 U.S. 424, 437  



(1983)).  



         56        Harris , 631 F.3d at 973.  



                   We  do  not  suggest  that  a  prevailing  constitutional   claimant  seeking  

attorney's fees under AS 09.60.010(c)(1) necessarily bears the same  burden.   Cf. Fox,  

131 S. Ct. at 2215 n.3 (noting   test g              overning prevailing plaintiffs' 42 U.S.C. § 1988  

attorney's fees is m        ore g  enerous than that governing prevailing defendants' fees).  But  

see Oberlatz, 329 P.3d at 227 n.38 ("We note that  the [plaintiffs] are not entitled to an  

attorney['s] fees award for work done solely  on  claims a   gainst the [d                       efendant] that did  

not concern the [plaintiffs'] constitutional rights . . . ." (citing AS 09.60.010(c)(1))).  



                                                          -20-                                                     7008
  

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