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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cook Inlet Fisherman's Fund v. State, Dept. of Fish & Game (9/25/2015) sp-7056

Cook Inlet Fisherman's Fund v. State, Dept. of Fish & Game (9/25/2015) sp-7056

         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  



COOK INLET FISHERMAN'S FUND,                              )  

                                                          )    Supreme Court No. S-15595  

                           Appellant,                     )  

                                                          )    Superior Court No. 3AN-13-08259 CI  

         v.                                               )  

                                                          )    O P I N I O N  

STATE OF ALASKA, DEPARTMENT                               )
  

OF FISH & GAME,                                           )    No. 7056 - September 25, 2015
  

                                                          )  

                           Appellee.                      )  

                                                          )  



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

                                                                  

                  Judicial District, Anchorage, Andrew Guidi, Judge.  



                  Appearances:  Bruce B. Weyhrauch, Gayle Horetski, Larri  

                  Irene Spengler, Law Office of Bruce B. Weyhrauch, LLC,  

                  Juneau,  for  Appellant.    Michael  G.  Mitchell,  Assistant  

                  Attorney  General,  Anchorage,  and  Craig  W.  Richards,  

                  Attorney General, Juneau, for Appellee.  



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

                              

                  Bolger, Justices.  



                  WINFREE, Justice.  



I.       INTRODUCTION  



                  Alaska's Upper Cook Inlet fishery  accommodates many resource users.  

                                                                    



Relevant to this appeal, set net and drift net commercial fishers both target sockeye  

              



salmon returning to the Kasilof and Kenai Rivers.  The 2013 commercial fishing season  

                                                                    



in the Upper Cook Inlet saw strong sockeye salmon  runs, but the Kenai River king  

                                                                                   


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

salmon run was the weakest on record.  The Alaska Department of Fish and Game  



(Department)  regulates  commercial  and  sport  fishing.    Attempting  to  achieve  the  



minimum escapement goal for Kenai River kings while also keeping the strong sockeye  



                                                                     

run in check, and recognizing that set netters' incidental harvest of those kings posed a  



                                                                                          

greater risk to the king run than did drift netters' substantially smaller incidental harvest,  



                                                                                                                

the Department's Commissioner (Commissioner) used her emergency order authority to  



limit time for and then close the set net fishery while also increasing the drift net fishery  



time.  



                                                                          

                    The set netters filed suit and sought an emergency preliminary injunction  



                                                                                     

to re-open their fishery.  The superior court declined to issue an injunction.  The set  



                                                                                                        

netters  amended  their  complaint  to  request  a  declaratory  judgment  recognizing  the  



validity of the Board of Fisheries' (Board) management plans and a permanent injunction  



               

directing the Department to follow those plans.  They also sought damages, asserting  



                                                                                                                          

constitutional claims and a claim for negligent or willful fisheries mismanagement.  The  



                                                                                

superior court granted summary judgment in full to the Department and assessed an  



                                                      

attorney's fees award against the set netters, who now appeal both orders.  Because there  



are no genuine issues of material fact and the Department is entitled to judgment as a  



                                                        

matter of law, we affirm the grant of summary judgment.  Because we see no abuse of  



discretion in the superior court's attorney's fees award, we affirm that award as well.  



II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                            

                    Cook Inlet Fisherman's Fund (CIFF) represents commercial fishers in the  



          

Cook Inlet fishery, including both set net and drift net fishers.  The Cook Inlet fishery  



                                                                                         

accommodates commercial, sport, personal, and subsistence users, and is a complex and  



                                                                        

crowded fishery. All five Pacific salmon species make their way through Cook Inlet and  



into its numerous river systems, including the Kasilof and Kenai Rivers.  



                                                             -2-                                                        7056
  


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

                    1.	       Overview   of   the   2013  sockeye   and  king  salmon  commercial  

                              fishery in Upper Cook Inlet  



                    The Department manages salmon stocks to achieve certain escapement  

           1   According to a Department scientist the upper and lower limits of a range  

ranges.    

represent numbers of spawning salmon which should produce the same sustained yield.2  

                                 



                    In  2013  the  Kasilof  River  sockeye  run  was  particularly  robust  -  by  



                                                   

June  29  the  run  was  at  record  strength  and  on  July  23  the  run  had  exceeded  the  



                                                                                     

Department's upper escapement goal of 390,000 fish by more than 40,000.  By August 7  



                                                                                             

nearly 490,000 sockeye had escaped into the Kasilof River.  Although the Kenai River  



                              

sockeye run began at an average level, it increased throughout the season and eventually  



exceeded the upper escapement goal of 1,200,000 fish by nearly 160,000.  



                                                                                                                  

                    By contrast the 2013 Kenai River king run was weak.  Kenai River kings  



return during an early run in May and June and a late run in July and early August.  



                                                                              

Since  1986  the  Kenai  River  king  run  never  has  failed  to  exceed  the  Department's  



minimum escapement goal, but according to the Department the "Kenai River [kings]  



                                                                                                                     

are experiencing a period of lower abundance, with the 2013 run being one of the lowest  



          1         See 5 Alaska Administrative Code (AAC) 39.222(c)(2) (2015);                                    see also id.  



(f)(10)  (defining  escapement  as  "the  annual  estimated  size  of  the  spawning  salmon  

stock").  For example Kasilof River sockeye have an escapement range of 160,000- 

390,000, and the late-run Kenai River kings have an escapement range of 15,000-30,000.  

                                                                                                

5  AAC  21.365(b);  5  AAC  21.359(b).    The  management  plans  at  issue  have  been  

amended since the 2013 commercial fishing season, but none of the amendments impact  

                                                                                                 

the provisions involved in our analysis.  We therefore refer to the current management  

                                                                                    

plans.  



          2         Sustained yield "denotes conscious application insofar as practicable of  



                                                                                            

principles of management intended to sustain the yield of the resources being managed."  

                                                                            

West v. State, Bd. of Game, 248 P.3d 689, 695  (Alaska 2010) (quoting RESOURCES  

COMMITTEE,  ALASKA  CONSTITUTIONAL CONVENTION ,  TERMS (1955)).  



                                                               -3-	                                                        7056
  


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

on record."  The 2013 Kenai River                    king early run was "possibly the lowest run on  



record," and the late run "was the lowest on record."  



                   The Department's historical data for late-run Kenai River king commercial  



harvest rates shows that although both set and drift netters primarily target sockeye,  



                                                                                                        

between 1986 and 2012 set netters incidentally harvested almost 14 times more late-run  



                                                           

Kenai River kings than did drift netters.  Another report shows that from 1966 to 2012  



                                                                                

drift netters on average harvested only 6.4% of Upper Cook Inlet commercial kings,  



while set netters harvested the remaining 93.6%.  



                   2.	      Salmon management regulations and the Commissioner's 2013  

                            emergency orders  



                                                                                                        

                   By regulation both set and drift netters in the Cook Inlet area may fish from  



                                                                                                   3  

seven in the morning until seven at night on Mondays and Thursdays.   But as an area  



management biologist for the Department's commercial fisheries division testified at the  

                                                                                            



preliminary  injunction  hearing:    "In  the  various  management  plans  the  Board  has  



                                                                                                        

provided the Department with the option of fishing more time to increase the harvest or  



to slow down the rate of escapement that is . . . going into the various rivers."  



                   For example when the Kenai River sockeye late-run strength is between  



2,300,000 and 4,600,000 fish, "the commissioner may, by emergency order, allow extra  



                                                                                       

[set net] fishing periods of no more than 51 hours per week" in the commercial fishing  



                               4  

                                    The  late-run  strength  was  at  such  a  level  in  2013.                      The  

waters  at  issue  here.                                                                 



Commissioner also may open supplemental set net fishing periods of up to 48 hours per  

                                                               



         3         5 AAC 21.320(a), (b).  



         4         5 AAC 21.360(c)(2)(B).  These waters include commercial fishing areas  



near the mouths of the Kasilof and Kenai Rivers.  



                                                           -4-	                                                    7056
  


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

                                                                  5  

                                                                                                       

                                                                                                           

week  in  the  Kasilof  River  sockeye  fishery,   but  on  and  after  July  8  this  fishery  is  



                                                                  6  

                                                                                                                     

governed by the 51-hour discretionary rule.   On the other hand drift netters may be  

allowed an extra 12 discretionary fishing hours only between July 9 and July 15.7                                        The  



Upper Cook Inlet management plan governing both drift and set net fishing provides:  



                                                                                                  

                    Notwithstanding any other provision of this chapter, it is the  

                    intent  of  the  board  that,  while  in  most  circumstances  the  

                    department  will  adhere  to  the  management  plans  in  this  

                                                                  

                    chapter, no provision within a specific management plan is  

                    intended to limit the commissioner's use of emergency order  

                    authority . . . to achieve established escapement goals for the  

                                                                                                   

                                                                                                        [8] 

                    management plans as the primary management objective.  



                    According to the December 2013 Upper Cook Inlet Commercial Fisheries  



                                                          

Annual Management Report, 2013 was a unique year:  "The continued poor performance  



                                            

of  the  Kenai  River  late-run  [king]  salmon  return  combined  with  an  above  average  



                                                                                   

sockeye salmon return led to an atypical management strategy during late July."  To  



                                         

account for these disparate run strengths, the Commissioner took the following actions  



during the 2013 commercial fishing season.  



                    For the week of June 23, although 48 discretionary fishing hours were  



                                                                                                                      

potentially available to some set netters, the Commissioner added only 2 hours.  For the  



          5         5 AAC 21.365(c)(2)(A).  



          6         5 AAC 21.365(c)(2)(A), (3).  



          7         See 5 AAC 21.353(c)(2).  



          8         5  AAC  21.363(e)  (Upper Cook Inlet Salmon Management Plan), cited by  



5 AAC 21.353(c) (am. 6/12/2011) (Central District Drift Gillnet Fishery Management  

Plan),   5   AAC   21.359(h)   (am.   6/1/2013)   (Kenai   River   Late-Run   King   Salmon  

Management Plan), 5 AAC 21.360(j) (am. 5/21/2011) (Kenai River Late-Run Sockeye  

                                                                

Salmon  Management  Plan),  and  5  AAC  21.365(g)  (am.  5/21/2011)  (Kasilof  River  

Salmon Management Plan).  



                                                             -5-                                                        7056
  


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

next week, although 48 discretionary fishing hours were potentially available to some  



set netters, the Commissioner added only 16 hours.  For the week of July 7, although 51  



discretionary   fishing   hours   were   potentially   available   to   some   set   netters,   the  



Commissioner added only 8 hours. That same week, drift netters fished an additional 12  

                                                                                          



hours.  



                                                                                                           

                   During the week of July 14 the Commissioner opened some set net fishing  



for 18 additional hours, but drift netters were allowed an additional 42 hours.  For the  



                                                                                                   

week of July 21 one regular 12-hour set net fishing day was closed, but drift netters  



fished their two regular 12-hour periods.  The emergency order stated:  



                  As  of  July  22,  indices  used  to  assess  inriver  abundance  

                   indicate a king salmon run that is below average. . . . At the  

                              

                   current rate of harvest, the projected [Kenai River late-run  

                  king  salmon]  escapement  will  be  below  the  [sustainable  

                   escapement goal]. . . .  



                   Therefore, limiting the harvest of king salmon in the . . . set  

                                                                       

                   gillnet  fishery  is  warranted  in  an  effort  to  achieve  the  

                   [sustainable escapement goal].  No more than one 12-hour  

                   [set net] fishing period per management week (Sun-Sat) will  

                                          

                  be allowed.  



                   On July 28 the Commissioner closed the set net fishery " 'until further  

                                                               



notice' in response to projections that the Kenai River late-run of [king] salmon may not  



achieve the minimum [sustainable escapement goal]."  Because the late-run Kenai River  



kings appeared unlikely to exceed the minimum escapement goal, the set net fishery  



remained closed through the end of the season.  While the set net fishery remained  



closed,  drift  netters  fished  multiple  regular  12-hour  periods  between  July  28  and  



August 15, the end of the major commercial fishing season.  



                                              

                   The Department's 2013 post-season preliminary data indicated the Kenai  



                                                                        

River late-run kings minimum escapement goal of 15,000 was exceeded by only about  



                                                          -6-                                                    7056
  


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

400 salmon.  As the Department noted in its December 2013 post-season management  



report:  



                   As in 2012, poor performance of the early- and late-runs of  

                                                                        

                    [king] salmon into the Kenai  River led to very conservative  

                                                                                        

                   management  of  the  set  gillnet  fishery,  and  ultimately  a  

                   closure  .  .  .  .  [T]he  management  approach  .  .  .  created  a  

                   disparity in the harvest and opportunity between the two gear  

                                                      

                   groups [set and drift netters] that normally does not exist.  



Drift netters caught about 62% of the 2013 commercial sockeye harvest, while set netters  

                                                                                                        



caught about 38%.  



          B.       Proceedings  



                   1.        CIFF's suit and preliminary injunction motion  



                   On July 17 CIFF sued the Department and sought a preliminary injunction  

                                                                                            



compelling the Commissioner to "open the required 51 hours of extra fishing periods for  

                                                               



the Upper Cook Inlet set gillnet fishery."  It based its request on the Kenai River Late- 

                                 



Run      Sockeye        Salmon        Management            Plan,     which      provides        in   part     that    "the  



                                                                                                           

[C]ommissioner may, by emergency order, allow extra fishing periods of no more than  



                                                                                                9  

                                                                                                    

51 hours per week" when the Kenai River sockeye run is strong.                                      CIFF argued that  



given the abundance of Kasilof River sockeye, set netters "should [have been] fishing  



                                                                                                 10  

                                                                                                     It contended that  

up to 51 extra hours each week according to the management plan." 



"[t]he Commissioner continues to limit the set gillnet permit holders['] fishing periods  



                                                     

citing concerns for the Kenai River kings[, a]ll the while, allowing other user groups to  



                                             

catch  kings."    It  argued  that  the  emergency  orders  were  an  illegal  reallocation  of  



resources - "a complete bypass of the Board's lawfully adopted management plan."  



          9        5 AAC 21.360(c)(2)(B) (emphasis added).  



          10       See 5 AAC 21.365(c)(3) (providing that on July 8 fishing near the Kasilof  



River is subject to the 51-hour discretionary rule as outlined in 5AAC 21.360(c)).  



                                                             -7-                                                      7056
  


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

                     In response the Department contended that "CIFF's legal arguments boil  

                                                                                                          



down to an insistence that the word 'may' in the . . . Management Plan . . . be interpreted  

                                           



as  'must.'  "    The  Department  also  argued  that  CIFF  had  not  met  the  high  standard  

                                                           

required for mandatory preliminary injunctions.11  The Commissioner had done nothing  

                     



wrong, the Department argued, because AS 16.05.020(2) requires the Commissioner to  

                   



"manage, protect, maintain, improve, and extend the fish . . . resources of the state in the  

                                                                                                                                  



interest  of  the  economy  and  general  well-being  of  the  state"  and  because  under  



AS 16.05.060 the Commissioner may "summarily open or close seasons or areas or . . .  

                                                                                                                                      



change weekly closed periods on fish or game by means of emergency orders" that have  

                                                 



"the force and effect of law."  Because set netters incidentally harvest ten times more  



                                                                                                                          

king salmon than drift netters, the Department contended that limiting the set net fishery  



                                                                       

in times of weak Kenai River king runs was logical.  The Department requested that the  



court not second-guess the Department's careful in-season management decisions.  



                                                                                                                                

                     CIFF replied:  "The Department has recharacterized [our] request as one  



                                                                                                  

for a mandated opening of a maximum number of allotted  additional hours.  This is  



                                                                                                                

inaccurate.  [We] request[] the Court require the Commissioner [to] comply with the  



                                                                                                           

management plans."  It argued the Commissioner was overstepping her emergency order  



                                          

authority by allowing an over-escapement of sockeye into the Kasilof River because  



"[o]verescapement is at least as detrimental to the salmon stock as under-escapement"  



           11        See  State v. Kluti Kaah Native Vill. of Copper Ctr., 831 P.2d 1270, 1274  



n.9 (Alaska 1992) ("[A] mandatory injunction . . . should be granted only in extreme or     

exceptional cases [and] . . . with great caution." (last two alterations in original) (quoting       

42  AM .   JUR .   2D . Injunctions    21  (1969))).    Unlike  a  prohibitory  injunction,  which  

"forbids  or  restrains  an  act,"  a  mandatory  injunction  "orders  an  affirmative  act  or  

mandates a specified course of conduct."  B 

                                                                     LACK 'S LAW DICTIONARY 904-05 (10th ed.  

2014).  



                                                                   -8-                                                            7056
  


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

and  because  the  Commissioner  should  not  "favor[]  one  escapement  goal  over  the  



sustainability of another species."  



                    2.       The preliminary injunction hearing and ruling  



                    The superior court held a preliminary injunction hearing on July 30.  CIFF  



                       

clarified that it was seeking an injunction in part to require the Commissioner to exercise  



                                                               

her "discretion and expand the number of hours available to [the set net] fishery," and  



in part to "compel[] the Department to adhere to its own regulations."  



                                                                  

                    An area management biologist for the Department's commercial fisheries  



                                                                      

division testified. When asked why the drift net fishery remained open if the Department  



was attempting to protect the late-run Kenai River kings, the biologist responded that the  



                                                                                                  

Department made the "discretionary management" decision not to close that fishery  



                                                                                                     

because "the drifters harvest far fewer, about one[-]tenth of the king salmon that the . . .  



                                                                                                     

setnet fishery harvests, [and] we're using [the drift netters] as a tool to control sockeye  



escapements while minimizing the harvest of king salmon."  



                    Recalling a Board meeting after the challenging 2012 fishing year, the  



biologist testified that although the Board considered many proposed changes to its  



                                                                                                

management plans, it decided not to change the plans and instead "told the Department:  



                                     

Go out and do your job. Take the management plans that we have crafted and we'll trust  



your discretionary use of . . . emergency order authority and following the plans as  



they're  written  .  .  .  ."    When  asked  whether  the  Department  prioritized  exceeding  



                                                                      

minimum escapement goals over not exceeding maximum ones, the biologist replied that  



                                                                                   

the Department placed a "higher priority" on exceeding a minimum escapement goal, but  



that it also tried not to exceed maximum escapement goals by too much.  



                    CIFF  presented  the  telephonic  testimony  of  a  retired  area  management  



                                                                                       

biologist.  The retired biologist expressed his opinion that in 2012 the Department had  



                                                                                                              

"basically put the priority on king salmon management and . . . let the dice  roll  or  



                                                             -9-                                                        7056
  


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

                                                            

whatever on sockeye management."  He believed that in 2013 the Department also "put  



the  priority  on  king  salmon  conservation"  while  risking  over-escaping  sockeye  



populations.    According  to  the  retired  biologist,  both  over-escapement  and  under- 



escapement are detrimental to the sustained yield of a stock, but over-escapement could  



            

reduce future yield anywhere from 10% to 20%.  On cross-examination, however, the  



                                                                                                   

retired biologist admitted that he had "over-escaped" the Kasilof River sockeye run  



"numerous times" when it was under his management.  



                                                                                  

                    The Department's director of commercial fisheries also testified; like the  



                                                                                              

Department's  current  biologist,  he  stated  that  he  came  away  from  the  2012  Board  



                                                      

meeting with a sense that the Board made no changes to its management plans because  



               

it trusted the Department to use its discretionary authority appropriately.  The director  



also explained that the Department's discretionary authority existed to deal with the fact  



                                                                                           

that "Mother Nature throws curves at us every year, . . . be it run timing, run strength,  



size of fish, [or] vulnerability to gear."  He testified that the Department prioritized  



meeting the lower range of an escapement goal over exceeding the upper range because  



                                                                                                          

not meeting an escapement goal was riskier than exceeding one.  "[Y]ou have to be real  



                                                                             

cautious about counting on something happening at the end of the season," the director  



                          

said, "because if you're wrong, there is no room to catch back up.  There's no . . . fish  



run left.  And so that's why you see us being conservative at this point."  



                   A Department scientist also testified.  Like the Department's other two  



witnesses he explained that it was riskier to fall short of an escapement range than to  



exceed one because the projected sustained yield declines more drastically when the  



                                                                         

lower goal is not met.  He testified that the upper escapement goal could better tolerate  



                                                                                            

an excess of salmon "before the effects of too many spawners on the spawning ground  



becomes an issue with reducing yield."  



                                                            -10-                                                       7056
  


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

                   The day after the hearing the superior court issued an order denying CIFF's  



                                                                                                         

request  for  a  preliminary  injunction.    The  court  found  that  because  CIFF's  claim  



                                                                        

involved only economic harm, the harm was not irreparable.  The court then reasoned  



                                                              

that the Department's interests would not be adequately protected if the set net fishery  



                        

were reopened because "serious harm to the health" of the late-run Kenai River kings  



could  result,  and  this  harm  would  thwart  the  Department's  "constitutional  duty  to  



manage" fish stocks consistent with sustained yield.  



                   The superior court therefore declined to apply the balance-of-hardships test  



                                                                                               

and instead analyzed whether CIFF had demonstrated "a clear  showing of probable  



                                                   

success on the merits."  The court concluded that CIFF had not, because the additional  



                                                                                                                

51 discretionary fishing hours per week that CIFF wanted the Commissioner to provide  



                          

were just that - discretionary.  The court also concluded that the Commissioner's in- 



season management decisions did not reallocate salmon stocks in contravention of the  



various  management  plans,  all  of  which  granted  the  Commissioner  considerable  



discretion.  Crediting the Department employees' testimony, the court found that "the  



risk of an underescapement is much more likely to have a detrimental long-term impact  



                             

on the Kenai River king salmon than the negative impact caused by an overescapement  



of   Kasilof   River   sockeye   salmon."                     The   court   refused   to   second-guess   the  



Commissioner's  discretionary  use  of  her  emergency  authority,  concluding  that  an  



                                                                      

injunction requiring the Department to comply with the applicable regulations "would  



                                                      

serve no effective purpose" and that an injunction mandating additional set net fishing  



times "would be unworkable and unreasonable in the present circumstances."  



                   3.        CIFF's other causes of action  



                   The day before the preliminary injunction hearing CIFF had amended its  



                                                  

complaint to include:  (1) a claim for declaratory relief requesting that the court uphold  



the  validity  of  the  Board's  salmon  management  plans  and  direct  the  Department  to  



                                                            -11-                                                      7056
  


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

follow  them;  (2)  a  claim  under  the  Alaska  Constitution's  various  natural  resources  



                                                                                                                   

clauses  alleging  that  the  Department  "violated  [CIFF's]  constitutional  rights  by  



                                                                          

improperly excluding its members from fishing regularly scheduled periods and extra  



                                                                                                        

periods,  while  at  the  same  time  allowing  all  other  user  groups  to  fish  their  regular  



                                                                                        

period[s]  and  additional  extra  periods";  and  (3)  a  claim  for  "negligent  management  



and/or willful mismanagement of fisheries."  CIFF sought damages for its set netter  



members in connection with its constitutional and tort claims.  



                                                                                                

                    The Department moved for summary judgment on all of CIFF's claims.  In  



                                                                                                                   

opposing summary judgment CIFF argued that "summary judgment cannot be granted  



to the [D]epartment because CIFF has moved for discovery under [Alaska Civil Rule]  



          12  

                                                                                                                           

56(f)."       In a four-paragraph order the superior court granted summary judgment to the  



                                                  

Department.  It reasoned that no material facts were in dispute and that CIFF "failed to  



                                                             

articulate  any  concrete  way  in  which  the  Department  overstepped  its  management  



authority other than the claim - already rejected [in connection with the] preliminary  



                                                                               

injunction [motion] - that [CIFF's set netters] were entitled to 51 hours of extra fishing- 



                               

time by law."  The superior court awarded the Department 30% of its attorney's fees,  



          12        Rule 56(f) provides:  



                    Should  it  appear  from  the  affidavits  of  a  party  opposing  

                    [summary judgment] that the party cannot for reasons stated  

                                                                                     

                    present  by  affidavit  facts  essential  to  justify  the  party's  

                    opposition, the court may refuse the application for judgment  

                                                     

                    or may order a continuance to permit affidavits to be obtained  

                    or  depositions  to  be  taken  or  discovery  to  be  had  or  may  

                    make such other order as is just.  



                                                              -12-                                                         7056
  


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

about  $19,400,  justifying  the  award  on  the  grounds  that  the  preliminary  injunction  

hearing was essentially a trial and that the issues presented were "fairly complex."13  



                                                                      

                      CIFF  appeals,  arguing  that  the  superior  court  abused  its  discretion  by  



                                               

denying CIFF's Rule 56(f) motion, and that whether the Department strayed from its  



                                                                             

management plans presented genuine issues of material fact, making summary judgment  



                                                                

improper  as  to:    (1)  its  negligent  or  willful  fisheries  mismanagement  claim;  (2)  its  



constitutional  claims;  and  (3)  its  claim  for  injunctive  relief.    CIFF  also  appeals  the  



attorney's fees award.  



III.       STANDARD OF REVIEW  



                                                                                                                                           14  

                                                                                                            

                      "An Alaska Civil Rule 56(f) decision is reviewed for abuse of discretion." 



                                                                                          15  

                                                           

Grants  of  summary  judgment  are  reviewed  de  novo.                                          Attorney's  fees  awards  are  



           13         See Alaska R. Civ. P. 82(b)(2) (establishing 30% attorney's fees award for       



cases without a money judgment that go to trial and 20% attorney's fees award for cases      

without  a  money  judgment  "resolved  without  trial");  Alaska  R.  Civ.  P.  82(b)(3)(A)  

(permitting superior court to vary attorney's fees award due to "the complexity of the  

litigation").  



           14         RBG Bush Planes, LLC v. Kirk , 340 P.3d 1056, 1060 (Alaska 2015).  



           15  

                                                                    

                      Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 516 (Alaska 2014).  

                                                                            

"[A]  party  seeking  summary  judgment  has  the  initial  burden  of  proving,  through  

                                                                                                                           

admissible evidence, that there are no [genuine] disputed issues of material fact and that  

                                                                                           

the moving party is entitled to judgment as a matter of law."   Id. at 517 (alterations in  

                                                                                                                    

original) (quoting Mitchell v. Teck Cominco Alaska Inc. , 193 P.3d 751, 760 n.25 (Alaska  

2008)); see also Alaska R. Civ. P. 56(c).  After the moving party satisfies that burden,  

"the burden shifts to the non-moving party 'to set forth specific facts showing that he  

could  produce  evidence  reasonably  tending  to  dispute  or  contradict  the  movant's  

                                                                             

evidence and thus demonstrate that a material issue of fact exists.' "  Christensen, 335  

                                                                                                                   

P.3d at 517 (quoting State, Dep't of Highways v. Green, 586 P.2d 595, 606 n.32 (Alaska  

                                                                                                                   

1978)).  "[A] non-moving party cannot create a genuine issue of material fact merely by  

                                                                                                     

offering admissible evidence - the offered evidence must not be too conclusory, too  

                                                                                                               

                                                                                                                        (continued...)  



                                                                    -13-                                                              7056
  


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

reviewed for abuse of discretion, and we "will not find an abuse of discretion absent a  



                                          

showing that the award was arbitrary, capricious, manifestly unreasonable, or stemmed  

from an improper motive."16  



IV.	      DISCUSSION  



          A.	      The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Implicitly  

                   Denying CIFF's Civil Rule 56(f) Request.  



                   In opposing summary judgment CIFF requested a Rule 56(f) continuance  

                                                                           



"to depose critical department employees responsible for making decisions related to  



                                                   

Cook Inlet fisheries."  During an earlier hearing CIFF had elaborated on its request:  



                                                                                   

"This is a major part of our position, that CIFF must be able to conduct discovery to  



                                                                                          

determine the basis for the Department's gross deviation from [the] requirements of . . .  



management  plans  and  to  determine  how  those  deviations  were  arrived  at  and  who  



                                                                                                      

influenced the Department to deviate from them."  Notwithstanding  that (1) CIFF's  



                                                                      

members  included  both  set  net  and  drift  net  commercial  fishers,  as  well  as  non- 



commercial fishers, and (2) CIFF provided no evidence suggesting the Commissioner  



                            

was motivated by anything other than managing the strong sockeye run and the weak  



                                                                               

king run, CIFF stated that its set net fishers lacked the "political pull or the inside wink  



                                                                                            

and a nod to managers" of other interest groups and argued for more time to determine  



          15       (...continued)  



speculative, or too incredible to be believed, and it must directly contradict the moving  

                                                                                  

party's evidence."  Id. at 516.  "After the court makes reasonable inferences from the  

evidence in favor of the non-moving party, summary judgment is appropriate only when  

                                                              

no reasonable person could discern a genuine factual dispute on a material issue."  Id.  

at 520 (footnote omitted).  Whether a genuine factual dispute exists is a question of law  

                                                                              

reviewed de novo.  Id. at 519 & n. 40.  



          16       Bush      v.    Elkins ,     342     P.3d     1245,      1251      (Alaska        2015)      (quoting  



ConocoPhillips  Alaska,  Inc.  v.  Williams  Alaska  Petroleum,  Inc.,  322  P.3d  114,  137  

(Alaska 2014)).  



                                                           -14-	                                                     7056
  


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

                                                                      

who had been pressuring the Department to ignore the management plans.  The superior  



                                                             

court granted summary judgment to the Department without ruling on CIFF's Rule 56(f)  



request.  CIFF now repeats its arguments to us, but these arguments are unavailing.  



                       The management decisions themselves - the emergency orders, which  



                                                                 

included the reasons for them - were compiled and presented to the superior court and  



                                                                                                   

are the undisputed material facts key to resolving whether, in light of the 2013 king and  



                         

sockeye runs, the Commissioner's discretionary actions were authorized by the Board's  



                                   

management plans.  Accordingly whatever CIFF would have discovered from deposing  



                                

"past and current . . . department employees" would not have been "essential to justify"  



                                                                    17  

CIFF's  summary  judgment  opposition.                                    The  superior  court's  failure  to  expressly  



                                                                                                              

address CIFF's Rule 56(f) request, and its implicit denial of that request, had no effect  



                                                                                                                

on  the  ultimate  grant  of  summary  judgment  based  on  the  legal  conclusion  that  the  



Commissioner's  discretionary  actions  were  authorized  by  the  various  management  



          18  

                                                                                

plans.         In short, because the Commissioner's discretionary actions were lawful, there  



was no need for discovery about who allegedly pressured her to undertake allegedly  



unlawful actions.  



           17         Alaska R. Civ. P. 56(f).  



           18         See  Sengupta   v.  Univ.  of  Alaska,  21  P.3d  1240,  1260  (Alaska  2001)  



(affirming denial of a second Rule 56(f) request in part because this court's examination        

of an affidavit filed after the expiration of the first Rule 56(f) continuance revealed that         

the affidavit did "not raise a genuine issue of fact with respect to" the nonmovant's            

claim);  Coulson v. Marsh & McLennan, Inc.                                  , 973 P.2d 1142, 1146-47 (Alaska 1999)  

(holding superior court did not err when it granted movant summary judgment without   

granting  nonmovant  a  Rule  56(f)  continuance  because  this  court's  examination  of  

document sought to be discovered revealed that it was "immaterial" and "irrelevant");  

Mount Juneau Enters. v. City & Borough of Juneau , 923 P.2d 768, 777 (Alaska 1996)  

                                                                                          

(affirming denial of Rule 56(f) continuance in part because "the superior court did not  

                                            

believe that a genuine issue of material fact would emerge from further discovery").  



                                                                     -15-                                                               7056
  


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

                                                                                         

                   We note that CIFF did not sue the Commissioner in her personal capacity.  



                                                                                        

Had CIFF sued the Commissioner for damages in her personal capacity and shown under  



                             

our three-factor test that the Commissioner's official immunity was qualified as opposed  

                 19 then whether the Commissioner had exercised her allowable discretion in  

to absolute,         



bad faith, with malice, or with corrupt motives might be relevant to her qualified official  

                                                                                           

immunity.20  But CIFF sued only the Department, asserting only that the Commissioner's  



discretionary  actions  had  violated  the  Board's  fisheries  management  plans  -  we  



emphasize that each and every claim and request for relief set forth in CIFF's amended  

                       



complaint was predicated on the allegation the Commissioner's actions violated the  



Board's management plans.  



          B.	      The Superior Court Did Not Err By Granting Summary Judgment On  

                                                  

                   CIFF's  Claim  Of  Fishery  Mismanagement  In  Violation  Of  Board  

                   Management Plans.  



                   CIFF argues that the retired biologist's testimony during the preliminary  

                                                                            



hearing created genuine issues of material fact as to the Department's mismanagement  

                                                                       



of the Upper Cook Inlet fishery in violation of the Board's management plans.  CIFF  

                             



emphasizes  the  retired  biologist's  testimony  that  the  Department  "basically  put  the  



priority on king salmon management, and . . . let the dice roll or whatever on sockeye  



          19	      See Weed v. Bachner Co., 230 P.3d 697, 699-700 (Alaska 2010).  



          20       See Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 158 (Alaska 1987);  



see also Weed , 230 P.3d at 703 (stating that qualified official immunity is overcome  

when the official's conduct is "outrageous or evidence[s] reckless indifference");  cf.  

Bachner  Co.  v.  Weed ,  315  P.3d  1184,  1190-94  (Alaska  2013)  (affirming  summary  

judgment ruling that state bid procurement evaluation committee members did not act  

                                                                                              

with bad faith sufficient to defeat qualified immunity when they followed published bid  

                                                                                                        

guidelines, used "a fair process" in evaluating the bids, and there was no "objective  

evidence . . . support[ing] an inference of malice" or one committee member's "attempt  

                    

to pursue his personal interests" in bad faith).  



                                                          -16-	                                                    7056
  


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

management."  CIFF also highlights the retired biologist's testimony that the Department  



should have followed "a cookbook plan" for late-run Kenai River king management and  



that the Kasilof River sockeye fishery should have been opened earlier  because the  



                                        21  

                                                                                                                  

relevant management plan                   gives the Department, in the retired biologist's words, "the  



                                                                                                                   

instruction [that] if you get 50,000 fish in here between . . . June 20th and June 25th,  



                                                                             22  

                                                                                                                

trigger an early opening if you think it's necessary."                           (Emphasis added.)  According to  



CIFF  the  retired  biologist's  testimony  that  over-escapement  poses  "a  significant  



                                                                                        23 

                                                                                                    

biological issue" also raised a genuine issue of material fact.                             The Department responds  



                                                                              

that CIFF's retired biologist's testimony is "no more than a policy disagreement with [the  



Department] that is unfounded in the management plans."  

                    1.	       CIFF's  reliance  on  Peninsula  Marketing  Ass'n  v.  Rosier24   is  



                              misplaced.  



                    The gist of CIFF's argument is that the Commissioner's discretionary in- 



            

season management decisions resulted in a "massive reallocation" of salmon resources  



          21	       See 5 AAC 21.365(c)(1) (citing 5 AAC 21.310(b)).  



          22        See 5 AAC 21.310(b)(2)(C)(i) ("[I]f the department estimates that 50,000     



sockeye salmon are in the Kasilof River before June 25, but on or after June 20, the                

commissioner  may immediately, by emergency order, open the fishery . . . ." (emphasis                     

added)).  



          23        CIFF  also  argues  that  "[i]f  the  king  salmon  [escapement]  goal  was  so  



                                          

important," then "the sport fishery should have been limited or closed" before the set net  

fishery was closed.  But the Kenai River Late-Run King Salmon Management Plan  

plainly states that "[t]he department shall manage the late-run Kenai River king salmon  

                                                                                                                 

stocks primarily for sport and guided sport uses" and not for commercial uses.  5 AAC  

                                                                                 

21.359(a).  And the argument is factually incorrect because beginning in June 2013 the  

                   

Department continually limited Kenai River king sport fishing by emergency order.  By  

                                                                                   

contrast set netters were permitted to harvest kings until July 28.  



          24        890 P.2d 567 (Alaska 1995).  



                                                              -17-	                                                        7056
  


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

                                                     

contrary to the Board's intent, and CIFF cites Peninsula Marketing Ass'n v. Rosier for  



the  proposition  that  "an  emergency  order  may  not  be  used  by  the  [D]epartment  to  



                                                      25  

'override' decisions by the [B]oard."                     In Rosier the Commissioner had recommended  



                                  

that the Board reduce the number of subsistence chum salmon that a sockeye fishery  



                                          

could  incidentally  harvest  before  closing  to  preserve  subsistence  chum  uses,  and  



                                                                   

although the Board extensively considered  the proposal and heard public testimony  

                                                                                                                     26  The  

during its regular meeting, it chose not to adopt the Commissioner's proposal. 



Governor later "directed the Commissioner to use his emergency powers to increase the  



                                                        

chum escapement into various river  systems, notwithstanding the Board's failure to  



          

adopt the Commissioner's proposal," the Commissioner did so, and commercial sockeye  

                                                                                                       27   The superior  

fishers sought to enjoin the Commissioner's action in superior court.     



                                       28  

court issued an injunction.                On appeal we affirmed, holding "that the Commissioner  

                                                                                             



may  not  use  his  emergency  powers  to  implement  a  fisheries  management  program  



already  considered  and  rejected  by  the  Board,  in  the  absence  of  newly  developed  

information or events occurring after the Board's decision."29  



                    Unlike in Rosier , where the Commissioner clearly contravened the Board's  

                                                                                   



decision, nothing in this case indicates that the Commissioner's discretionary in-season  

                                                                     



management decisions conflicted with the Board's management plans.  CIFF's statement  



to the contrary - that "this is a situation where the [B]oard had already decided to leave  

                                            



          25       Id. at  573.  



          26       Id. at 568-69.  



          27       Id. at 569.  



          28       Id.  



          29       Id. at 574.  



                                                             -18-                                                       7056
  


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

the framework plans in place, such that the [D]epartment's 2013 in-season actions did  



                                                                                      

indeed override a specific [B]oard decision" - has no factual foundation because CIFF  



fails  to  cite  any  specific  management  plan  provision  the  Commissioner  allegedly  



violated.  CIFF's reliance on Rosier is thus misplaced.  



                  2.	       The   Commissioner's   discretionary   in-season   management  

                            decisions were authorized by the Board's management plans.  



                  The  Commissioner's  discretionary  in-season  management  decisions  -  



                                                                            

curbing and then closing the set net but not the drift net fishery when faced with a strong  



                                                                           

sockeye run, a weak king run, and data indicating set netters incidentally harvest more  



kings - all were within the range of discretion permitted by the Board.  



                                                                       

                  Although the Kenai River Late-Run Sockeye Salmon Management Plan  



requires  the  Commissioner  to  manage  "primarily  for  commercial  uses  based  on  



                                                                                     

abundance," she must also "manage the commercial fisheries to minimize the harvest of  



.  .  .  late-run  Kenai  River  king  .  .  .  to  provide  personal  use,  sport,  and  guided  sport  



                                                                                                    30  

                                                                                                        The Kenai  

fishermen with a reasonable opportunity to harvest salmon resources." 



River Late-Run King Salmon Management Plan requires the Commissioner to manage  



                                                                                               31 

                                                                                                   and  when  "the  

the  late-run  Kenai  River  kings  "for  sport  and  guided  sport  uses," 



projected      late-run      king     salmon      escapement"         drops      below      15,000      kings,     the  



                                                                                                                     32  

                                                                                            

Commissioner must "close the commercial set gillnet fishery in the Upper Subdistrict," 



exactly what was done in 2013.  



                  The  Kasilof  River  Salmon  Management  Plan  states  that  in  harvesting  



                                                                                           

"salmon excess to spawning escapement needs," the fishery must be opened "consistent  



         30       5 AAC 21.360(a).  



         31       5 AAC 21.359(d)(3).  



         32       5 AAC 21.359(b)(3)(C).  



                                                         -19-	                                                  7056
  


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

with escapement objectives for upper Cook Inlet salmon," which logically includes the         

                                                                              33  The broader Upper Cook Inlet  

escapement objectives for late-run Kenai River kings.     



Salmon Management Plan states that "the burden of conservation shall, to the extent  

                                                                               



practicable,  be  shared  among  all  user  groups  in  close  proportion  to  their  respective  

                                                                                                   

harvest on the stock of concern."34  Although Department employees testified the late-run  



Kenai River kings were not yet an official "stock of concern,"35 data indicated that the  

                                               



Kenai River king stock had begun to severely weaken in recent years.  Because the set  

                                                                                                        



net fishery incidentally harvests roughly 14 times more kings than the drift net fishery,  

                                                                                                       



it was logical and permissible under the Upper Cook Inlet Salmon Management Plan for  

                                                     



the Commissioner to restrict set net fishing while using the drift net fishery to control the  

                                                                                                 



upper escapement limits for sockeye populations returning to the Kasilof and Kenai  



Rivers.  



                   CIFF  argues,  without  any  specificity,  that  the  Commissioner  violated  



management  plans.               But  every  relevant  management  plan  contains  a  provision  



                                                                                                              

recognizing that the Commissioner's emergency authority is instrumental to effective  



fisheries management:  



                                                                                                 

                   Notwithstanding any other provision of this chapter, it is the  

                   intent  of  the  board  that,  while  in  most  circumstances  the  

                    [D]epartment will adhere to the management plans in this  

                   chapter, no provision within a specific management plan is  

                   intended to limit the commissioner's use of emergency order  

                   authority       under      AS     16.05.060         to   achieve       established  



          33       5 AAC 21.365(a).  



          34       5 AAC 21.363(a)(6).  



          35       See  5  AAC  39.222(f)(35)  (defining  "stock  of  concern"  as  "a  stock  of  



salmon for which there is a yield, management, or conservation concern").  



                                                            -20-                                                      7056
  


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

                    escapement goals for the management plans  as the primary  

                                                     [36] 

                   management objective.                   



                    The  statewide  salmon  management  plan  counsels  that  "in  the  face  of  



uncertainty, salmon stocks . . . shall be managed conservatively" using a "precautionary  

approach"  to  avoid  "potentially  irreversible  changes,"37  and  it  explicitly  states  "that  



                                                                                                    

where the impact of resource use is uncertain, but likely presents a measurable risk to  



                                                

sustained yield, priority should be given to conserving the productive capacity of the  



               38  

                                                                     

resource."        The Commissioner's actions were undisputedly directed toward preserving  



                                                                         

the late-run Kenai king stock, which through her efforts barely achieved the minimum  



escapement          goal.        This     statewide        policy      supplies       further      authority       for    the  

Commissioner's actions.39  



          36        5   AAC  21.363(e)  (emphasis  added); see  also  5  AAC  21.353(h)  ("The  



commissioner  may  depart  from  the  provisions  of  the  [Central  District  Drift  Gillnet  

Fishery Management Plan] under this section as provided in 5 AAC 21.363(e)."); 5 AAC  

                                                                                          

21.359(j) (authorizing same departure from the Kenai River Late-Run King Salmon  

Management Plan); 5 AAC 21.360(j) (authorizing same departure from the Kenai River  

                                                                          

Late-Run Sockeye Salmon Management Plan); 5 AAC 21.365(g) (authorizing same  

                                                              

departure from Kasilof River Salmon Management Plan).  



          37       See 5 AAC 39.222(c)(5).  



          38        5 AAC 39.222(c)(5)(A)(iv); see also  5 AAC 39.222(b) (stating that one  



broad goal of the Board's statewide salmon management plan "is to ensure conservation  

                                                                                   

of salmon").  



          39       See     also     5    AAC        39.222(c)(2)(F)           (establishing        statewide        salmon  



                                                                                              

management policy and stating "salmon escapement and harvest management decisions  

                                                                                                     

should be made in a manner that protects nontarget salmon stocks or species"); 5 AAC  

39.222(c)(4)(D) ("[A]n understanding of the proportion of mortality inflicted on each  

salmon stock by each user group, should be promoted, and the burden of conservation  

                                                                                             

should be allocated across user groups . . . . [T]he burden of conservation shall be shared  

                                                                

among all fisheries in close proportion to each fisheries' respective use . . . ."); 5 AAC  

                                                                                                               

                                                                                                           (continued...)  



                                                            -21-                                                       7056
  


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

                   Recognizing  the  complexity  of  Alaska's  fisheries,  we  repeatedly  have  



refrained from substituting our judgment for that of the trained biologists and other  

scientists hired to manage Alaska's fisheries.40  We similarly have refrained from second- 



guessing  the  Commissioner's  use  of  her  statutory  discretionary  authority:    "The  



Commissioner may . . . use the emergency order process to close down one type of  



                                                                                                                       41  

                                               

fishery and not another in order to implement a policy establishing priorities of use." 



And  we  previously  held  that  a  fishery  management  policy  was  not  arbitrary  and  



unreasonable,  but  rather  was  "consistent  with  and  reasonably  necessary  to  the  



          39       (...continued)  



39.220(a)  ("In  applying  this  statewide  mixed  stock  salmon  policy  for  all  users,  

                

conservation of wild salmon stocks consistent with sustained yield shall be accorded the  

highest priority.").  



          40       See, e.g., Native Vill. of Elim v. State , 990 P.2d 1, 8 (Alaska 1999) ("The  



Board  must  balance  economic,  ecological,  cultural,  international,  and  other  policy  

           

concerns when it makes decisions about Alaska's fisheries.  It must accommodate all of  

                                                                                               

these legitimate interests in the face of substantial scientific uncertainty.  Moreover, it is  

                                                                                                      

the Board's role to reach this accommodation.  Courts are singularly ill-equipped to  

                                                                     

make natural resource management decisions.  Consequently, we do not substitute our  

                                                                   

judgment for that of the Board." (citing Stepovak-Shumagin Set Net Ass'n v. State, Bd.  

of Fisheries, 886 P.2d 632, 637 (Alaska 1994); Meier v. State, Bd. of Fisheries , 739 P.2d  

                                                                                            

 172, 174 (Alaska 1987))); see also Metlakatla Indian Cmty., Annette Island Reserve v.  

Egan , 362 P.2d 901, 915 (Alaska 1961), vacated on other grounds, 369 U.S. 45 (1962)  

("Control of fishing, by enforcement officers advised by biologists experienced in the  

escapement requirements of each spawning area, is an absolute necessity if preservation  

and re-building of the depleted runs is to be accomplished.").  



          41       Kenai Peninsula Fisherman's Coop. Ass'n v. State , 628 P.2d 897, 907  



(Alaska 1981).  



                                                          -22-                                                    7056
  


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

conservation and development of Alaska fishery resources," when it limits harvest quotas  



                                                                                                                          42  

                                                                                          

and fishing times in two fisheries to protect escapement levels in an adjoining fishery. 



                                                                                       

                   Based on the parties' evidence and arguments, no one disputes the state of  



Upper  Cook  Inlet's  2013  king  and  sockeye  runs  or  the  discretionary  actions  the  



Commissioner  took  during  the  commercial  fishing  season.    During  the  preliminary  



                                                                                                                     

injunction litigation CIFF compiled and presented a lengthy exhibit including all of the  



Commissioner's emergency orders forming the basis of CIFF's fisheries mismanagement  



claim.    The  testimony  of  a  retired  biologist  that  the  Commissioner  prioritized  king  



                                                                                             

management while letting "the dice roll or whatever on sockeye management" does not  



create a genuine issue of material fact whether the Commissioner's emergency orders  



                                                                                                

were outside her authority and violated the Board's management plans.  The superior  



court  properly  granted  summary  judgment  to  the  Department  on  CIFF's  fishery  

mismanagement claim.43  



          42       Gilbert v. State, Dep't of Fish & Game, Bd. of Fisheries                      , 803 P.2d 391, 399  



(Alaska 1990) (quoting Meier , 739 P.2d at 175); see also Interior Alaska Airboat Ass'n  

v. State, Bd. of Game, 18 P.3d 686, 693-94 (Alaska 2001) (stating that "[t]his court is not  

empowered  to  resolve"  policy  disputes  over  the  management  of  Alaska's  natural  

resources so long as the agency did not act unreasonably or arbitrarily).  



          43  

                                                                       

                   As noted earlier, at the preliminary injunction hearing CIFF stated that in  

                                                                                                       

part  it  was  seeking  to  have  the  court  direct  the  Commissioner  how  to  exercise  her  

discretion in managing the sockeye set net fishery.  We reiterate that each and every  

claim  in  CIFF's  amended  complaint  was  predicated  on  the  allegation  that  the  

Commissioner's actions were not authorized by the Board's management plans.  As a  

matter   of   law,   the   Commissioner's   decisions   were   authorized   by   the   Board's  

management plans.  



                   To the extent the fishery mismanagement claim alleged in CIFF's amended  

complaint is a putative tort claim directed to how the Commissioner exercised her lawful  

                                                                                                 

discretion, as opposed to the Commissioner's discretionary actions being lawful, we note  

                                                                 

two considerations.  First, CIFF's claim would be barred by sovereign immunity.  See  

                                                                                                       

                                                                                                         (continued...)  



                                                           -23-                                                      7056
  


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

                                                                                              

          C.	       The Superior Court Did Not Err By Granting Summary Judgment On  

                    CIFF's Article VIII Uniform Application Claim.44  



                    CIFF accuses the Department of violating article VIII's uniform application  



                                                                                         

clause, which provides:  "Laws and regulations governing the use or disposal of natural  



resources  shall  apply  equally  to  all  persons  similarly  situated  with  reference  to  the  



                                                                                                45 

                                                                                                     Classifications made  

subject matter and purpose to be served by the law or regulation." 



                              

under  this  clause  must  have  a  "legitimate  purpose"  important  enough  to  justify  



          43        (...continued)  



AS 09.50.250(1) (barring tort actions "based upon the exercise or performance or the  

failure to exercise or perform a discretionary function or duty on the  part  of  a state  

                                                                                                                          

agency or an employee of the state, whether or not the discretion is abused").  Second,  

                                                       

in Mesiar v. Heckman we declined to recognize a cause of action for "negligent resource- 

                                                                                                 

management," holding that the Department does not owe a fisheries resource user an  

actionable duty of care because fisheries management decisions inevitably benefit some  

                                                                                                 

user  groups  while  harming  others,  and  if  subjected  to  these  types  of  lawsuits,  the  

Department  might  abandon  "sound  principles  of  resource  management"  in  favor  of  

placating competing user groups. 964 P.2d 445, 448-52 (Alaska 1998).  CIFF articulates  

                                                    

no sound basis why a claim for "willful fisheries mismanagement" would not be barred  

                                                                           

by Mesiar .  



          44  

                                                                                                        

                    "[W]e exercise our independent judgment in reviewing whether an agency  

                                                                                                                         

action is consistent with the Alaska Constitution."  Manning v. State, Dep't of Fish &  

                                                                       

Game, __ P.3d __, Op. No. 7036, at 8, 2015 WL 5061353, at *3 (Alaska August 28,  

                                                            

2015). Although CIFF's constitutional claim was predicated on the infirm allegation that  

                                

the Commissioner's actions were outside her authority under the Board's management  

                                                                                                                           

plans, we will address CIFF's article VIII uniform application claim as it relates to the  

Commissioner's  lawful  actions.    And  although  CIFF  also  cites  the  general  equal  

protection provision of article I,  1, it fails to provide any legal analysis under that  

                                                         

constitutional provision; the general equal protection argument is therefore waived for  

                                                                                                                

inadequate briefing.  Kingery v. Barrett , 249 P.3d 275, 285 (Alaska 2011) (stating party  

                                                                                                            

waives legal arguments by "inadequately briefing them"); Adamson v. Univ. of Alaska ,  

                                               

819 P.2d 886, 889 n.3 (Alaska 1991) ("[W]here a point is given only a cursory statement  

in the argument portion of a brief, the point will not be considered on appeal.").  



          45        Alaska Const. art. VIII,  17.  



                                                              -24-	                                                        7056
  


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

                                                                           46  

"infringement on article VIII's open access values."    The Commissioner's emergency  



order  restricting  the  set  net  fishery  stated  as  its  purpose  achieving  the  sustainable  



escapement goal for the late-run Kenai River kings.  



                                                                             

                   As a threshold matter CIFF argues that our previous cases on Article VIII  



                                   

natural resources rights are all distinguishable because each dealt with Board regulations  



and  not  "in-season  management  measures  taken  by  the  [D]epartment."    But  this  



                             

distinction matters little.  The Alaska Constitution empowers the legislature to utilize,  

develop, and conserve Alaska's fisheries;47 the legislature delegated this power to the  



Board of Fisheries;48 and the Board in turn chose to rely on the Commissioner's statutory  



emergency order authority to attain regulatory escapement goals for the various Upper  



                                49 

                                    Accordingly our precedents analyzing Article VIII claims apply  

Cook Inlet fish stocks. 



equally to both the Board's regulations and the Commissioner's in-season emergency  

orders implementing them, which have "the force and effect of law."50  



          46       Gilbert v. State, Dep't of Fish & Game, Bd. of Fisheries                       , 803 P.2d 391, 399  



(Alaska 1990) (quoting McDowell v. State , 785 P.2d 1, 10 (Alaska 1989)).  



          47       Alaska Const. art. VIII,  2.  



          48  

                                                            

                   See AS 16.05.221(a) ("For purposes of the conservation and development  

     

of the  fishery resources of the state, there is created the Board of Fisheries . . . .");  

AS  16.05.251(a)(12)  ("The  Board  of  Fisheries  may  adopt  regulations  it  considers  

advisable . . . for . . . regulating commercial . . . fishing as needed for the conservation,  

                                                                                     

development, and utilization of fisheries . . . .").  



          49       5 AAC 21.363(e) ("[N]o provision within a specific management plan is  



                                                                                                           

intended to limit the commissioner's use of emergency order authority . . . to achieve  

established escapement goals for the managements plans as the primary management  

objective.").  



          50       AS 16.05.060(c); see also Kenai Peninsula Fisherman's Coop. Ass'n v.
  



                                                                               

State, 628 P.2d 897, 907 (Alaska 1981) ("The extent of the Commissioner's power under
  

                                                                                                          (continued...)
  



                                                            -25-                                                      7056
  


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

                   CIFF argues that the Commissioner's management decisions threatened the  



sustained yield of the Upper Cook Inlet sockeye stocks and therefore violated the Alaska  



                                                    51  

Constitution's sustained yield clause.                  This argument is without merit.  As explained  



to the Alaskans who ratified it:  



                   The [natural resources] article's primary purpose is to balance  

                   maximum  use  of  natural  resources  with  their  continued  

                   availability  to  future  generations.    In  keeping  with  that  

                  purpose, all replenishable resources are to be administered,  

                                                                                               [52] 

                   insofar as practicable, on the sustained yield principle.  



                   Alaska's statewide salmon management policy lists as one of its goals the         

"conservation of salmon,"53 and under our Constitution, statutes, and regulations, salmon  



                                                                        54  

must be conserved for the benefit of all Alaskans.                          "Conserving implies controlled  



utilization of a resource to prevent its exploitation, destruction or neglect. . . . If the  



         50        (...continued)  



AS  16.05.060  should  .  .  .  be  interpreted  in  light  of  the  overall  purpose  of  the  

                                                                                 

constitutional and legislative scheme of management of state resources prescribed by  

                     

other  provisions  of  the  law.             Thus,  if  the  Board  properly  adopted  a  plan  for  the  

                                             

management  of  state  fishery  resources,  the  Commissioner  could  enforce  that  policy  

through the emergency order process.").  



         51        This clause provides:  "Fish, forests, wildlife, grasslands, and all other  



replenishable  resources  belonging  to  the  State  shall  be  utilized,  developed,  and  

                                                                           

maintained on the sustained yield principle, subject to preferences among beneficial  

uses."  Alaska Const. art. VIII,  4.  



         52        West v. State, Bd. of Game, 248 P.3d 689, 696 (Alaska 2010) (alteration in  



original)  (emphasis  added)  (quoting  THE  ALASKA    CONSTITUTIONAL  CONVENTION ,  

P 

                                                                                   

  ROPOSED  CONSTITUTION FOR THE  STATE OF  ALASKA :  A REPORT TO THE  PEOPLE OF  

ALASKA (1956)).  



         53        5 AAC 39.222(b).  



         54        See Alaska Const. art. VIII,  2; AS 16.05.251(a)(12); 5 AAC 39.222.  



                                                         -26-                                                    7056
  


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

Board [and the Commissioner are] to accomplish [their] designated purposes, [they are]   



necessarily going to make decisions concerning utilization of the resources [they are]   



                                     55  

charged with managing."                   



                    We have held that a regulation that opens two "mixed stock interceptor  

                                                 



fisheries" only after a third fishery has harvested enough of a certain salmon stock "to  



                                                                                                           

ensure  proper  escapement  levels  to  guarantee  sustained  yield,"  and  which  further  



                                                            

allocates the majority of the harvest to the third fishery, does not violate the uniform  

                           56   Although one's right to equally access Alaska's fish resources "is  

application clause.                                                                                    

a 'highly important interest running to each person within the state,' "57 we concluded  

                                                       



that the importance of the Board's interest in adopting the regulation - "ensur[ing]  

proper  escapement  levels"  -  justified  regulating  the  three  fisheries  differently.58  



Similarly the emergency orders limiting and then closing the set net fishery were justified  

                                                           



in light of the historically low Kenai River king run and the fact that the set netters  

                                                                                 



incidentally  harvest  substantially  more  kings  than  drift  netters.    Accordingly  the  

                                                                                



Department's management decisions did not deny CIFF equal protection under article  



VIII's uniform application clause.  



          D.	       The Superior Court Did Not Err When It Denied CIFF's Injunctive  

                    Relief Claim.  



                    CIFF argues that the superior court abused its discretion by denying CIFF's  

                                                                                                          



request for injunctive relief directing the Department to follow the Board's management  

                                                                              



          55       Kenai Peninsula , 628 P.2d at 903 (footnote omitted) (internal quotation  



marks omitted).  



          56       Id. at 392-93, 398-400.  



          57       Id. at 399 (quoting McDowell v. State , 785 P.2d 1, 10 (Alaska 1989).  



          58       Id.  



                                                             -27-	                                                      7056
  


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

                                                                                         

plans.  Such an injunction, it argues, complies with Alaska Civil Rule 65(d)'s specificity  



                   59  

                                                              

requirement.            The Department argues that an injunction merely requiring it to follow  



                                                 

the law would be too vague to enforce effectively and would necessarily "embroil the  



                                                                                        

courts in day-to-day fishery management" decisions. The Department contends it "is not  



                                                                                      

the province of the courts" to assume management of the Upper Cook Inlet salmon  



fisheries.  



                    When it granted summary judgment to the Department, the superior court  



                                                    

did not expressly rule on CIFF's request for injunctive relief, but it did note that CIFF  



"failed  to  articulate  any  concrete  way  in  which  the  Department  overstepped  its  



management authority other than the claim - already rejected on motion for preliminary  



                                                                                                              

injunction - that [CIFF's] fishermen were entitled to 51 hours of extra fishing-time by  



                                                                                                         

law."  We reiterate that CIFF fails to cite any specific management plan provision the  



                                            

Department violated.               And  we agree with the Department that an injunction simply  



                                                            

requiring it "to obey the law" lacks the specificity required to convey what management  



                                                                         60  

actions it could take without risking contempt.                              Finally, issuing such an injunction  



would potentially put Alaska's court system in the untenable position of managing one  

                                   



          59        Alaska  R.  Civ.  P.  65(d)  provides  in  part:    "Every  order  granting  an  



injunction . . . shall set forth the reasons for its issuance; shall be specific in terms; shall  

                                                                        

describe in reasonable detail, and not by reference to the complaint or other document,  

the act or acts sought to be restrained . . . ."  



          60        See  Schmidt  v.  Lessard,  414  U.S.  473,  476  (1974)  ("[T]he  specificity  



provisions of [the analogous federal rule] are no mere technical requirements.  The Rule  

                                                                                  

was  designed  to  prevent  uncertainty  and  confusion  on  the  part  of  those  faced  with  

        

injunctive orders, and to avoid the possible founding of a contempt citation on a decree  

                             

too vague to be understood.").  



                                                               -28-                                                         7056
  


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

                                                                            61  

of Alaska's most crowded and contentious fisheries,                            despite our long-standing policy  



                                                             

of not second-guessing the Department's management decisions based on its specialized  



                                      62  

                                          For these reasons, the superior court did not err when it  

knowledge and expertise. 



                                                                                   

rejected CIFF's declaratory and injunctive relief claims in connection with the grant of  



summary judgment.  



          E.	       The Superior Court Did Not Abuse Its Discretion When It Awarded  

                    Enhanced Attorney's Fees.  



                                                                                    

                    The superior court awarded the Department 30% of its reasonably incurred  



attorney's fees, about $19,400, reasoning that through the preliminary injunction hearing  



                                                                  63 

                                                                      The court also justified its award on the  

"the case was, in essence, tried on the merits." 



ground  that  CIFF  "presented  fairly  complex  issues  requiring  expert  testimony  on  

statistical sampling and analysis of the impact of set-netting on fish populations."64  



          61        See Kenai Peninsula, 628 P.2d at 899 (noting "[a]ll five species of salmon   



enter Cook Inlet, with considerable overlap in timing and migration routes" and both   

commercial and recreational users harvest these salmon).  



          62  

                                                                                                       

                    See Interior Alaska Airboat Ass'n v. State, Bd. of Game, 18 P.3d 686, 691  

(Alaska  2001)  (stating  when  Board  of  Game  acts  consistently  with  its  overarching  

statutory purposes, we will not inquire "whether a regulation is necessary as a means to  

a legislative end" because such inquiry "would mire this court in questions of public  

    

policy and the advisability of possible alternatives" and is in any event "beyond our  

                                                                                     

authority  and  expertise"  (emphasis  in  original)  (quoting  State,  Dep't  of  Revenue,  

Permanent Fund Div. v. Cosio , 858 P.2d 621, 624 n.1 (Alaska 1993))); Gilbert v. State,  

                                                     

Dep't of Fish & Game, Bd. of Fisheries , 803 P.2d 391, 397 (Alaska 1990) ("We have no  

                                                                                                                    

authority to substitute our own judgment for the Board of Fisheries' particularly since  

highly  specialized  agency  expertise  is  involved."  (quoting  Meier  v.  State,  Bd.  of  

                                                             

Fisheries , 739 P.2d 172, 174 (Alaska 1987))).  



          63        See Alaska R. Civ. P. 82(b)(2) (setting base standard of 30% for matters  



that go to trial and 20% for matters resolved without trial).  



          64  

                                                                  

                    See Alaska R. Civ. P. 82(b)(3) (allowing variation from base standard for  

                                                                                                           (continued...)  



                                                            -29-	                                                      7056
  


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

                                                                                       

                   CIFF argues that the superior court abused its discretion by awarding the  



Department  30%  of  its  attorney's  fees,  rather  than  20%,  because  the  preliminary  



injunction hearing was not similar to a trial and because it "did not resolve or even  



                                     

address  all  (or  most)  of  the  issues  presented."    The  Department  defends  the  award,  



                                                                                         

arguing that it "was consistent with the civil rules, supported by the record, and within  



[the superior court's] discretion."  



                                                                                       

                   We affirm the enhanced fee award based on the complexity of the litigation  



        65 

                                 

alone      and express no opinion on whether preliminary injunction hearings can be treated  



                                                                                              

like trials for attorney's fees purposes.  Accordingly the superior court did not abuse its  



discretion when it awarded the Department 30% of its reasonably incurred attorney's  



fees.  



V.        CONCLUSION  



                   We AFFIRM the superior court's judgment.  



          64       (...continued)  



various reasons, including "complexity of the litigation").  



          65       See BP Pipelines (Alaska) Inc. v. State, Dep't of Revenue, 327 P.3d 185,  



197 (Alaska 2014) ("While we have occasionally expressed concern about the use of  

                                                                          

factor (A) - complexity of the litigation - to enhance fees . . . we have repeatedly  

                                                                                           

upheld its use." (alteration in original) (quoting  Ware v. Ware, 161 P.3d 1188, 1199  

                                         

(Alaska 2007))); Hiller v. Kawasaki Motors Corp., U.S.A., 671 P.2d 369, 375 (Alaska  

1983)  (affirming  award  of  about  23%  of  actual  fees  because  "[t]he  litigation  was  

complex and lengthy").  



                                                           -30-                                                      7056
  

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