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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Riddle v. Lanser (4/6/2018) sp-7235

Riddle v. Lanser (4/6/2018) sp-7235

           Notice:   This opinion is subject to correction before publication in the P                        ACIFIC  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                                         



ROBERT  RIDDLE,  d/b/a                                             )  

FAIRBANKS  PUMPING  AND                                            )          Supreme  Court  No.  S-15780  

THAWING,                                                           )  

                                                                                                                                                

                                                                   )          Superior Court No. 4FA-11-03117 CI  

                      Appellant,                                   )  

                                                                                                    

                                                                   )          O P I N I O N  

           v.                                                      )  

                                                                                                                 

                                                                   )          No. 7235 - April 6, 2018  

            

ERIC LANSER,                                                       )  

                                                                   )  

                      Appellee.                                    )  

                                                                    

_______________________________ )  



                                                                                                              

                                      rom  the  Superior  Court  of  the  State  of  Alaska,  

                      Appeal  f 

                                                                                                                            

                      Fourth Judicial District, Fairbanks, Bethany Harbison, Judge.  



                                                                                                                      

                      Appearances:               William  R.  Satterberg,  Jr.,  Fairbanks,  for  

                                                                                                                

                      Appellant.               Susan         Orlansky,           Reeves         Amodio            LLC,  

                                                                    

                      Anchorage, for Appellee.  



                                                                                                               

                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                             

                      and Carney, Justices.  



                                                       

                       STOWERS, Chief Justice.  



I.         INTRODUCTION  



                                                                                                                                              

                      A nuisance is "a substantial and unreasonable interference with the use or  



                                               1  

                                                  The  Right  to  Farm Act  provides  that  an  agricultural  facility  

enjoyment of real property." 



or   an   agricultural   operation   at   an   agricultural   facility   used   for   commercial   purposes  



           1          AS 09.45.255.   


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

cannot become a nuisance based on changes in surroundings if it was not a nuisance                                                 



                           2  

when it started.                                                                                                                                

                               This appeal presents the question whether odors emanating from a  

                                              3  on his farmland created a nuisance to adjacent landowners  

                                                                                                                               

                                  

farmer's storage of septage 



when  the  trial  court  found  the  farmer  was  not  engaged  in  commercial  agricultural  

                                                                                                        



operations but was actually using the farm's septage lagoons to store septage from his  

                                                                 



separate septic pumping and storing business. Weaffirmthe superior court's finding that  

                                                                                                                                            



the storage of septage created a nuisance and its conclusion that the storage of septage  

                                                                                                                    



was not protected by the Right to Farm Act.  

                                                                    



II.        FACTS AND PROCEEDINGS  

                                     



           A.         Riddle's Farming And Septage Storing Activities  

                                                                                               



                      Robert Riddle began acquiring land on Eielson Farm Road near Fairbanks  

                                                                                                                                  

in 2005.  The land Riddle purchased was covered by a Farm Conservation Plan4  issued  

                                                                                                                                        



to a previous owner of the land.  In 2005 Riddle began putting in a road and fencing and  

                                                                                                                                            



clearing land.  He also acquired farming equipment and maintained both livestock and  

                                                                                                                                            



a pasture that produced sod, potatoes, hay, wheat, and oats.  

                                                                                             



           2          See  AS 09.45.235.   



           3           Septage is "[t]he waste content found in a septic tank."                                           Septage, T         HE  



AMERICAN  HERITAGE  DICTIONARY OF THE  ENGLISH  LANGUAGE  (5th ed. 2017).                                                  



           4          A  State  Farm  Conservation  Plan  is  required  pursuant  to  regulation  

                                                                                                                                

11 Alaska Administrative Code (AAC) 67.177(a) (2018) whenever the State of Alaska  

                                                                                                                                       

sells land classified for agricultural purposes. As the superior court explained, "[a] Farm  

                                                                                                                                          

Plan   sets   out   agricultural   covenants   and   summarizes   the   purchaser's/owner's  

                                                                                                              

commitment  to  proper  agricultural  land  use  and  conservation  practices,  which  are  

                                                                                                                                            

represented graphically on a parcel map and with a supplementary written narrative."  

                                                                                                                                                    

Farm conservation plans run with the land.  See  11 AAC 67.177(b) (providing that a  

                                                                                                                                                

farm conservation  plan  is  "incorporated  into  the  sale  contract  and  the  conveyance  

                                                                                                                              

document as a covenant and a condition subsequent, and will be recorded in that form").  

                                                                                                                                      



                                                                       -2-                                                               7235
  


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

                                                Riddlealso                              owned FairbanksPumping                                                                         andThawing,abusinessthat pumps                                                                        



privately owned septic tanks in the Fairbanks area.                                                                                                                                     Prior to 2005 Riddle paid Golden                                                                



Heart Utilities approximately 11 cents per gallon to dump the septage he collected.  In                                                                                                                                                                   



2005, the same year he purchased his farmland and began developing his farm, Riddle                                                                                                                                                                                                        



constructed five septage lagoons on his farm property and began dumping collected                                                                                                                                                                                                 



septage into the lagoons.                                                                  The septage lagoons occupied approximately 2 acres of his                                                                                                                                                     



500-plus-acre farmland.  Riddle did not spread any septage during the winter of 2009.                                                                                                                                                                                                                                  



In 2010 Riddle began accepting septage from Bigfoot Pumping and Thawing in addition                                                                                                                                                                                                    



to the septage from his own company, charging Bigfoot 5 cents per gallon, which was                                                                                                                      



less than half of Golden Heart Utilities' price.                                                                                                                             Bigfoot dumped at least 2.5 million                                                                         



gallons of septage into the lagoons in 2010 and more than 3.6 million gallons in each of                                                                                                                                                                                                                    



                                                                                                                                                                                                                                                                                                                 5  

the next two years. Riddle began spreading some septage on his farmland in June 2010.                                                                                                                                                                                                                                  



                                               At  trial  witnesses  confirmed  that  applying  human  waste  to  soil  is  an  

                                                                                                                                                                                                                                                                                                         



accepted  farming  practice  and  has  long-term  beneficial  impacts  on  soil.                                                                                                                                                                                                                      The  

                                                                                                                                                                                                                                                                                               



Environmental Protection Agency (EPA) specifically encourages the use of domestic  

                                                                                                                                                                                                                                                                                   

septage for fertilizer.6                                                              Witnesses testified to the importance of spreading fertilizer,  

                                                                                                                                                                                                                                                                                 



including septage, on fields in order to increase the soil's fertility.   Witnesses also  

                                                                                                                                                                                                                                                                                                    



testified that Riddle's lagoons likely did not contain enough septage to develop the full  

                                                                                                                                                                                                                                                                                                       



potential from the land even if all of the stored septage was spread on his fields.  

                                                                                                                                                                                                                                                                      



                        5                      At apreliminary                                           injunction hearingRiddletestifiedthathebegan spreading                                                                                                                   



septage   on   his   fields   in   2009.     But   Riddle   later   testified   at   trial   that   he   could   not  

remember whether he began spreading septage on his fields in 2009 or 2010 but that the                                                                                                                                                                                                                   

date would be in his logs.                                                                   The date from his logs was June 9, 2010.                                                                                        



                        6                      See EPA, D                                OMESTIC  SEPTAGE  REGULATORY  GUIDANCE : A G                                                                                                                                   UIDE TO THE                   

                                                              

E           P           A                           5          0          3                         R   U                   L          E          ,                       a          t                       1          0                         (         1          9          9          3          )         ,  

https://nepis.epa.gov/Exe/ZyPDF.cgi/200041HP.PDF?Dockey=200041HP.PDF.   



                                                                                                                                                     -3-                                                                                                                                          7235
  


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

                                                   

          B.        Initial Permitting Process  



                                                                                                                           

                    In order to legally apply septage to his fields, Riddle was required to secure  



                                                                                                               

permits  from  the  EPA,  the  Alaska  Department  of  Environmental  Conservation  



                                                                                                             

(Department), and the Fairbanks North Star Borough (Borough).   In April 2007 the  



                                                                                                                             

Department authorized Riddle to apply domestic septage to his farm through a Solid  



                                                                                                                             

Waste Disposal Permit.  The permit authorized Riddle to apply domestic septage from  



                                                                                           

private septic tanks and sewage sludge from Golden Heart Utilities Sewage Treatment  



                                                                                                                            

Plant.  The permit also allowed Riddle to compost sludge acquired from Golden Heart  



                                                                                                                          

Utilities,  but  it  did  not  allow  him  to  apply  septage  from  other  sources.                                     Riddle  



                                                                                                                         

acknowledged in his permit application thepossibility that offensiveodors could become  



                                                                                                     

a nuisance, but he committed to covering his septage stockpiles with non-breathable  



                                                                                                                               

covers  and  to  using  odor  inhibitors  if  necessary.                            The  permit  indicated  that  the  



                                                                                                                               

Department  could  revoke  the  permit  if  Riddle  did  not  control  the  smell,  but  the  



                                                                                                                              

Department eventually adopted the position that the Right to Farm Act prevented it from  



                                                                                                                                      

enforcing the odor control provisions of the permit pending theoutcomeofthislitigation.  



                                                                                                                                  

                    In  September  2007,  after  a  public  hearing,  the  Borough  approved  a  



                                                                                                                         

conditional use permit that allowed Riddle to apply septage to his fields. Riddle testified  



                                                                                                                         

before the Borough Planning Commission that he dumped all of his septage at Golden  



                                                                                                                                      

Heart Utilities but did not disclose that he was already storing septage on his property.  



                                                                                                                        

Riddle also testified that he would store septage in a holding cell the size of an Olympic  



                                                                                                                            

swimming pool, and -contrary to his representation to the Department -that he would  



                                                                                                                            

not haul septage to the facility or store it there during the winter months; he also stated  



                                                                                                                             

that  he  would  store  septage  in  the  lagoon  only  during  the  summer  "as  [he  was]  



                                                                                                                       

transitioning stuffaround." Theconditional usepermit allowedRiddleto applybiosolids  



                                                                                                                                  

to the property but required that "the principal use of the property . . . be agricultural in  



                                                                -4-                                                         7235
  


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

nature" and that the biosolids be used to "support . . . the agricultural use."  The permit  

                                                                                                                          



prohibited him from using the property principally to dispose of biosolids.  

                                                                                                   



                    In March 2011 Riddle filed a proposed Revised Farm Plan allowing him  

                                                                                                                              



to construct septage lagoons, and the Division of Agriculture approved the revised plan  

                                                                                                                             



in April.  Under the Farm Plan agriculture must be the primary use of the property and  

                                                                                                                                     



the septage lagoons must be used only to support farming. Riddle did not disclose to the  

                                                                                                                               



Division that he had already constructed his septage lagoons and had been using them  

                                                               



to store septage his septic pumping company had collected from his customers.  

                                                                                                         



          C.        Lanser's Development Activities  

                                                           



                    In 2007 Eric Lanser, a real estate developer, purchased land on Eielson  

                                                                                                                        



Farm  Road  adjacent  to  Riddle's  property.                            Lanser  subdivided  the  property  and  

                                                                                                                             



refurbished a pre-existing house.  Although Lanser did not report any smells when he  

                                                                                                                                



first purchased the land, he attended the 2007 Borough hearing on Riddle's application  

                                                                                                                   



for a conditional use permit to express his concerns about possible smells emanating  

                                                                                                                    



from Riddle's farm.  Lanser began building and selling new residences soon after his  

                                                                                                                               



acquisition of the Eielson Farm Road land.  

                                                          



                    Lanser testified that he first smelled odors fromRiddle's farmin May 2010,  

                                                                                                                            



after Riddle had begun accepting septage from Bigfoot Pumping and Thawing.  Lanser  

                                                                                                                          



first contacted Riddle to  request that Riddle "fix" the odors; he then contacted the  

                                                                                                                               



Borough, which told Lanser that the Department would handle complaints.  

                                                                                                 



                    In  2010  and  2011  other  residents  near  Riddle's  farm  also  began  

                                                                                                                         



complaining about the odor. Department representatives went to Eielson Farm Road 10  

                                                                                                                                



or  11  times  to  verify  the  existence  of  odors  but  smelled  odors  only  once.                                       The  

                                                                                                                             



Department determined that Riddle's farmdid not present a public health danger. Lanser  

                                                                                                                          



continued to develop lots and build and sell residences.  

                                                                    



                                                               -5-                                                         7235
  


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

                                     

          D.        Pre-Trial Proceedings  



                                                                                                                          

                    Lanser sued Riddle and the Department in December 2011. Lanser alleged  



                                                                                                                                      

public and private nuisance and negligence and sought injunctive and declaratory relief.  



                                                                                                                             

Upon  the  Department's  motion,  the  superior  court  dismissed  the  Department  from  



               

Lanser's suit.  



                                                                                                                       

                    In  April 2012 Superior  Court  Judge Randy  M.  Olsen  held  a four-day  



                                                                                                                            

hearing on Lanser's motion for apreliminary injunction. Riddlecontendedthat the Right  



                                                                                                                             

to Farm Act shielded him from liability for private nuisance.  The court noted the wide  



                                                                                                                               

disparity in testimony regarding the strength and frequency of the odor, and it found that  



                                                                                                                               

"Lanser ha[d] offered no convincing evidence that [Riddle's] farm [was] a sham."  The  



                                                                                                                          

court denied Lanser'srequest for a preliminary injunction; it also denied Riddle's motion  



                                                                      

to dismiss the complaint for failure to state a claim.  



                                                                                                                          

                    In  August  2012  Lanser  served  discovery  requests  on  Riddle.                                   Lanser  



                                                                                                                        

requested information regarding the acreage Riddle cultivated, the amount of crops he  



                                                                                                                         

produced, the amount of crops sold, the volume of septage on the property, the revenue  



                                                                                                                                 

he  earned  from  storing  septage,  and  other  information  regarding  the  operation  of  



                                                                                                                        

Riddle's businesses on the property.  Riddle objected to Lanser's discovery requests  



                                                                                                                      

regarding his farming operations; he contended that Lanser's requests were irrelevant  



                                                                                                                          

given the superior court's finding from the preliminary injunction hearing that Riddle  



                                                                                                                     

was operating a legitimate farm.   Riddle also filed a motion for summary judgment.  



                                                                                                                                 

                    Lanser moved to compel responses to his discovery requests, and based on  



                                                                                                                                      

Riddle's summary judgment motion Lanser moved to expedite his motion to compel.  



                                                                                                                              

Lanser also filed a motion for an Alaska Civil Rule 56(f) continuance to give him time  



                                                                                                                        

to respond to Riddle's summary judgment motion.  The superior court granted Lanser's  



                                                                                             

motion for continuance but denied his motion for expedited consideration.  



                                                                -6-                                                         7235
  


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

                                   Riddle opposed Lanser's motion to compel and reiterated his view that the                                                                                                             



superior court's preliminary injunction findings disposed of all issues related to whether                                                                                                                                         



Riddle was operating a legitimate farm.                                                                 In November 2012 the court granted Lanser's                                                       



motion   to   compel;   it   concluded   that   Riddle's   "refusal   to   respond   to   the   discovery  



                                                                                                                                                                [  ]  

                                                                                                                                                                 7   and may form the basis  

requests [was] unreasonable under [Alaska] Civil Rule 37(g)[]                                                                                                                                                       



for an award to [Lanser] of reasonable expenses, including attorney's fees, caused by the  

                                                                                                                                                                                                                         



conduct."  



                                   Following  the  retirement  of  Judge  Olsen  the  case  was  reassigned  to  

                                                                                                                                                                                           



Superior Court Judge Bethany Harbison.  Riddle asked Judge Harbison to reconsider  

                                                                                                                                                                                                     



Judge Olsen's November 2012 order.  Judge Harbison denied that request, explaining  

                                                                                                                                                                                                     



that "[d]iscovery is not limited by the findings made by the court denying the request for  

                                                                                                                                                                                                                         



a preliminary injunction or by testimony at the preliminary injunction hearing."  Judge  

                                                                                                                                                                                                                 



Harbison also noted that although a trial on the merits may be merged with the hearing  

                                                                                                                                                                                                             



on the preliminary injunction, when this occurs the parties will typically "receive clear  

                                                                                                                                                                                                                    



and unambiguous notice of the court's intent" to combine those proceedings, which did  

                                                                                                                                                                                                                        



                 7                 Alaska Civil Rule 37(g) provides:                               



                                   If   a   party   or   a   party's   attorney   engages   in   unreasonable,  

                                   groundless,   abusive,   or   obstructionist   conduct   during   the  

                                   course of discovery or fails to participate in good faith in the                                                                                   

                                   development    and    submission    of    a    proposed    discovery  

                                  plan . . . , the court may, after opportunity for hearing, require                                                                        

                                   such    party    or    attorney    to    pay    to    any    other    party    the  

                                   reasonable expenses, including attorney's fees, caused by the                                                                                       

                                   conduct.  



                                                                                                             -7-                                                                                                   7235
  


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

                                                                                        8  

not occur here.                                                                               Judge Harbison concluded that Judge Olsen had made only preliminary                                                                                                                                                                                                                                                                                               



 findings that did not limit the scope of discovery.                                                                                                                                                                                    



                                                                                Pursuant to the superior court's November 2012 order, Lanser moved for                                                                                                                                                                                                                                                                                                                                                              



 attorney's fees and costs under Civil Rule 37(g), requesting about $15,000.                                                                                                                                                                                                                                                                                                                                                                                                           Riddle  



 opposed Lanser's motion.  The court deferred ruling on the motion until any post-trial                                                                                                                                                                                                                                                                                                                               



 application for fees.                                                                    



                                                                                In   ruling   on   Riddle's   summary   judgment   motion,   the   superior   court  



 determined that Riddle began a farming enterprise in 2005, that he was engaged in                                                                                                                                                                                                                                                                                                                                                                                                                                     



 farming, and that he used septage from Fairbanks Pumping and Thawing to fertilize his                                                                                                                                                                                                                                                                                                                                                                                                                              



 farm. Because the court concluded that there was a question of material fact whether the                                                                                                                                                                                                                                                                                                                                                                                                                           



purpose of Riddle's farm was commercial agriculture, it denied Riddle's motion for                                                                                                                                                                                                                                                                                                                                                                                                                                



 summary judgment on the private nuisance claim.                                                                                                                                                                                                                                                              But it did grant summary judgment                                                                                                                             



 against Lanser with respect to his public nuisance and negligence claims.                                                                                                                                                                                                                                                                                                                                                                               Lanser does   



not appeal these rulings.                                                                          



                                                                                E.                                      Trial And The Superior Court's Decision                                                                                                                                                                         



                                                                                The   superior   court   presided   over   an   11-day   bench   trial   in   July   and  



 September 2013.                                                                                          The parties re-presented testimony from the preliminary injunction                                                                                                                                                                                                                                                                                           



hearing rather than incorporating or referencing previous testimony. In November 2013                                                                                                                                                                                                                                                                                                                                                                                                                   



the court issued its decision.                                                                                    



                                                                                In its findings of fact, the court found by clear and convincing evidence that                                                                                                                                                                                                                                                                                                                                                  



Fairbanks Pumping and Thawing - Riddle's company - had been dumping septage                                                                                                                                                                                                                                                                                                                                                                                                             



                                        8                                       See Haggblom v. City of Dillingham                                                                                                                                                                                               , 191 P.3d 991, 999 (Alaska 2008)                                                                                                                                               



 ("[T]he parties should normally receive clear and unambiguous notice [of the court's                                                                                                                                                                                                                                                                                                                                                                                                      

intent to consolidate the trial and the hearing] either before the hearing commences or                                                                                                                                                                                                                                                                                                                                                                                                                                 

 at a time which will still afford the parties a full opportunity to present their respective                                                                                                                                                                                                                                                                                                                                                                           

 cases." (second alteration in original) (quoting                                                                                                                                                                                                                                 Univ. of Tex. v. Camenisch                                                                                                                                     , 451 U.S. 390,                                            

 395 (1981))).   



                                                                                                                                                                                                                                                            -8-                                                                                                                                                                                                                                           7235
  


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

                                                                                                                           

into Riddle's lagoons since 2005 but that there was no way to determine how much  



                                                                                                                            

septage Fairbanks Pumping and Thawing had dumped because Riddle did not keep  



                                                                                                                        

records.   It found that the volume of septage dumped into Riddle's septage lagoons  



                                                                                                                      

dramatically increased in the winter of 2009-2010 when Bigfoot Pumping and Thawing  



                                                                                                                               

began dumping septage into the lagoons. The court found that Bigfoot dumped over 2.5  



                                                                                                                               

million gallons of septage onto the lagoons in 2010, over 3.7 million gallons in 2011, and  



                                                                                                                     

over  3.6  million  gallons  in  2012.                    Comparatively,  Riddle  applied  only  174,000;  



                                                                                                          

1,084,000; and 377,000 gallons of septage to his fields in those three years.  



                                                                                                                                 

                    The court noted Riddle's explanation that he "did not actually apply any of  



                                                                                                              

the septage to the land until 2010 because it took from 2005 to 2010 to accumulate  



                                                                                                                             

enough septage to use on the fields," but it did not find that explanation credible.  And  



                                                                                                                            

the court noted Riddle's testimony that weather conditions often prevented him from  



                                                                                                                      

applying septage to the fields, but it concluded that if that testimony were true, "weather  



                                                                                                                             

and field conditions prevent himfrommaking use of more than three-quarters of the total  



                                                                 

amount of septage that is dumped into his lagoons."  



                                                                                                                               

                    The court also noted Riddle's testimony that he was using some of the  



                                                                                                                               

septage for compost, which required him to let the septage sit in the lagoons while the  



                                                                                                                               

water evaporated and then add wood chips to the dewatered and degraded septage.  But  



                                                                                                                               

the court observed that Riddle's Solid Waste Disposal Permit from the Department did  



                                                                                                                             

not permit him to treat or dewater the septage before applying it to his property.  And  



                                                                                                                               

although Riddle asserted that he intended to request a modification of his permit, the  



                                                                                                                     

court stated that he likely would not be able to do so given his previous "material  



                                                                                                                        

misrepresentations" to the various permitting bodies.  The court found that the septage  



                                                                                                                  

being composted in the lagoons could not be intended for farming because composting  



                                                                                                                            

was beyond the scope of Riddle's permit and that the remaining septage had not been  



                                                                                                                           

applied to the land and therefore also was not used for farming purposes.  The court  



                                                               -9-                                                         7235
  


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

credited testimony that Riddle could have applied all of the septage he had to the land                                                                                                                                                                                                                



and still not have met the nutrient needs of the soil.                                                                                                                                                    



                                                          The court found that odors from Riddle's lagoons intensified in early 2010                                                                                                                                                                                                                            



because of the dramatic increase of septage dumped during the preceding winter.  The                                                                      



court found that the odors fromthe septage lagoons made "engaging in outdoor activities                                                                                                                                                                                                                                                       



 . . . extremely unpleasant, and the odors interfere[d] with ordinary activities such as                                                                                                                                                                                                                                                                                   



barbequing, gardening, and sitting outdoors. Theodors                                                                                                                                                                                     clearly interfere[d]withLanser's                                                                      



outdoor activities on the land, which include[d] building houses and preparing the land                                                                                                                                                                                                                                                                           



for development."   



                                                          The   court   then   engaged   in   a   two-step   analysis   to   determine   whether  



Riddle's septage lagoons constituted a private nuisance:  (1) whether Riddle's septage   



lagoons would be a private nuisance in the absence of the Right to Farm Act, and (2)                                                                                                                                                                                                                                                                                    



whether the lagoons, if a private                                                                                                      nuisance, were "an agricultural facility or an agricultural                                                                                                                                  

operation at an agricultural facility" protected by the Right to Farm Act.                                                                                                                                                                                                                                              9  



                                                          The  superior  court  concluded  that  "Lanser  .  .  .  proved  by  clear  and  

                                                                                                                                                                                                                                                                                                                                                                   



convincing evidence that Riddle's septage lagoons would be a private nuisance if . . . not  

                                                                                                                                                                                                                                                                                                                                                                



for the [Right to Farm] Act."  The court acknowledged that applying human septage to  

                                                                                                                                                                                                                                                                                                                                                                             



enrich soil is an accepted agricultural practice, but it concluded that "[t]he septage  

                                                                                                                                                                                                                                                                                                                                                   



lagoons unreasonably interfere with Lanser's use and enjoyment of his property."  The  

                                                                                                                                                                                                                                                                                                                                                                   



court also found that Riddle was aware that his "lagoons would unreasonably interfere  

                                                                                                                                                                                                                                                                                                                                                



with  Lanser's  use  and  enjoyment  of  his  property";  the  court  pointed  to  Riddle's  

                                                                                                                                                                                                                                                                                                                                              



                             9                            See  AS 09.45.235(a) ("An agricultural facility or an agricultural operation                                                                                                                                                                                                      



at an agricultural facility is not and does not become a private nuisance as a result of a                                                                                                                                                                                                                                                                                      

changed condition that exists in the area of the agricultural facility if the agricultural                                                                                                                                                                                                                                        

facility   was   not   a   nuisance   at   the   time   the   agricultural   facility   began   agricultural  

operations.").   



                                                                                                                                                                                  -10-                                                                                                                                                                          7235
  


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

numerous misrepresentations during the permitting process as evidence that Riddle was                                                                                                                                                                                                                                         



aware of the risk and "acted recklessly and/or intentionally."                                                                                                                    



                                                    The court next concluded that Riddle was not shielded from liability as a                                                                                          



private nuisance by the Right to Farm Act.                                                                                                                                     It characterized the evidence at trial as                                                                                                            



 suggesting that Riddle's property was not an "agricultural facility" that was "used or                                                                                                                                                                                                                                             



 [was] intended for use in the commercial production or processing of crops, livestock,                                                                                                                                                                                       



or livestock products."                                                                  The court found that Riddle "ha[d] not sold any crops at all, nor                                                                                                                                                                      



ha[d] he sold any farm products, nor ha[d] he received any income from farming."                                                                                                                                                                                                                                            The  



court acknowledged that Riddle had allowed a neighbor to sharecrop a portion of his                                                                                                                                                                                                                                              



land.   And it found that Riddle "seem[ed] to be growing sod for sale" and that "[i]t may                                                                                                                                                                                                                                   



be that at some point in the future, his farm will be used in the commercial production                                                                                                                                                            

                                                                                        10         But although the court conceded that "Riddle may be in the  

of crops or livestock."                                                                                                                                                                                                                                                                                                          



process of developing a nascent commercial farming enterprise," it found that Riddle  

                                                                                                                                                                                                                                                                                                                   



would have already started selling his products if that were his actual intent.  

                                                                                                                                                                                                                                                                             



                                                    The court observed that the Right to Farm Act does not provide a definition  

                                                                                                                                                                                                                                                                                                    



for "commercial" and recognized that farmers often work their farms for several years  

                                                                                                                                                                                                                                                                                                                        



before earning any income from farming. Thus the court explained that Riddle's lack of  

                                                                                                                                                                                                                                                                                                                                     



profits from his farming activities and the fact that he earned significantly more income  

                                                                                                                                                                                                                                                                                                                 



from his septage storage business were not dispositive of the question whether Riddle  

                                                                                                                                                                                                                                                                                                                   



operated a commercial agricultural facility.  But it found that "Riddle's farm appear[ed]  

                                                                                                                                                                                                                                                                                                    



to be a 'hobby farm' rather than a commercial farm" and that if this was the case, "his  

                                                                                                                                                                                                                                                                                                       



land [was] not an 'agricultural facility' . . . protected by the Act."  

                                                                                                                                                                                                                                       



                          10                        The record also shows sales receipts for $1,190 in January 2007 and $425                                                                                                                                                                                              



in August 2008.                                                  The January 2007 receipt says "Hay Sales" under "Description" but                                                                                                                                                                                              

"Gravel Sales" under "Item"; the August 2008 receipt says only "re:  Hay sale - sold                                                                                                                                                                     

by Robert."                                    The court did not address these receipts in its decision.                                                                                                                          



                                                                                                                                                               -11-                                                                                                                                                       7235
  


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

                                                We do not rely on the court's findings that Riddle's farm appeared to be a                                                                                                                                                                                           



hobby farm and that Riddle sold no crops and therefore do not decide whether they were                                                                                                                                                                                                                 



clearly erroneous.                                                 It is evident, however, that the court found that Riddle's agricultural                                                                                                                                     



operations did not produce any significant income, and that the vast majority, if not all,                                                                                                                                                                                                                   



of Riddle's income was derived from his septic pumping and storing businesses.                                                                                                                                                                                                                          The  



court explained that over the last four years Riddle earned more than $600,000 from                                                                                                                                                                                                                   



septage pumping and storage.                                                   



                                                Despite the court's findings, the court determined that it did not need to                                                                                                                                                                                       



decide whether Riddle's farm was an agricultural facility because it found that Riddle's                                                                                                                                                                                                  

                                                                                                                                                                                                      11         It found that Riddle was not  

septage lagoons were not an "agricultural operation."                                                                                                                                                                                                                                                       



operating the lagoons "as an incident to or in conjunction with agricultural activities"  

                                                                                                                                                                                                                                                                                    



because the lagoons were being used to store and treat septage rather than to fertilize the  

                                                                                                                                                                                                                                                                                                             



soil. And although the court noted that "Riddle intends that the septage disposal business  

                                                                                                                                                                                                                                                                                          



he is operating on his farm will also, at some point in the future, support commercial  

                                                                                                                                                                                                                                                                             



farming activities," it concluded that "the [Right to Farm] Act does not offer protection  

                                                                                                                                                                                                                                                                                    



from a nuisance that may later support a farming activity[;] [r]ather, the [Right to Farm]  

                                                                                                                                                                                                                                                                                                  



Act protects a farming activity that later becomes a nuisance because of subsequent  

                                                                                                                                                                                                                                                                               



expansion or adoption of new technology."  According to the court, "[i]n order to be  

                                                                                                                                                                                                                                                                               



protected, the septage must be intended for use in farming from the onset."  The court  

                                                                                                                                                               



therefore found that the Right to Farm Act did not shield Riddle from private nuisance  

                                                                                                                                                                                                                                                                                        



liability.  



                        11                      An"agricultural operation"includes"anyagriculturalfarmingactivitysuch                                                                                                                                                                                    



as . . . the application and storage of pesticides, herbicides, animal manure, treated                                                                                                                                                                                                         

sewage sludge or chemicals, compounds, or substances to crops, or in connection with                                                                                                                                                                                                                    

the   production   of   crops   or   livestock   .   .   .   and   .   .   .   any   practice   conducted   on   the  

agricultural facility as an incident to or in conjunction with [these] activities."                                                                                                                                                                                                                      AS  

09.45.235(d)(2).  



                                                                                                                                                     -12-                                                                                                                                              7235
  


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

                               The superior court ordered Riddle to abate the nuisance and provided                                                                              



specific   steps   for   Riddle   to  take,   including   implementing   a   deodorizer   system,  



"monitor[ing]andkeep[ing]recordsoftheamounts ofseptagedumped                                                                                                  into thelagoons,"   



and "keep[ing] and maintain[ing] records of his abatement efforts and of any odor                                                                                                          



complaints he receive[d]."                                    The court awarded Lanser his full costs pursuant to Alaska                                                              

                                   12   and 79,13   and 40% of his attorney's fees under  Alaska Civil Rule  

Civil Rules 54                                                                                                                                                                             



82(b)(3) based on "vexatious or bad faith conduct" and "reasonableness of the claims  

                                                                                                                                                                                       

and defenses pursued by each side."14                                                       The court also awarded Lanser fees and costs  

                                                                                                                                                                                          



under Civil Rule 37(g) as discovery sanctions.  

                                                                                    



                               Riddle appeals.  

                                                



III.            STANDARD OF REVIEW  

                                                           



                               "We review questions of law and the trial court's application of the law to  

                                                                                                                                                                                                  

facts de novo."15  

                                                                                                                                                                                              

                                       "In exercising our independent judgment, we will adopt the rule of law  

that is most persuasive in light of precedent, reason, and policy."16  "We review a trial  



               12             Alaska Civil Rule 54(d) provides that "costs shall be allowed as of course                                                                               



to the prevailing party unless the court otherwise directs."                                                      



               13             AlaskaCivil Rule79 governs theprocess for determiningthecostsawarded  

                                                                                                                                                                                   

to the prevailing party.  

                                                      



               14             Alaska Civil Rule 82(b)(3) authorizes the court to vary an attorney's fees  

                                                                                                                                                                                             

award from the presumptive 30% award in Alaska Civil Rule 82(b)(2) based on a  

                                                                                                                                                                                                   

number of factors, including "vexatious or bad faith conduct" and "the reasonableness  

                                                                                                                                                                    

of the claims and defenses pursued by each side."  

                                                                                                     



               15             Maddox v. Hardy, 187 P.3d 486, 491 (Alaska 2008) (citing Petrolane, Inc.  

                                                                                                                                                                                              

v. Robles, 154 P.3d 1014, 1018 (Alaska 2007)).  

                                                                                             



               16             Douglas Indian Ass'n v. Cent. Council of Tlingit and Haida Indian Tribes  

                                                                                                                                                                                        

of Alaska, 403 P.3d 1172, 1175 (Alaska 2017) (quoting Healy Lake Vill. v. Mt. McKinley  

                                                                                                                                                                                

                                                                                                                                                                       (continued...)  



                                                                                              -13-                                                                                        7235
  


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

court's factual findings under a clearly erroneous standard.                                                     A factual finding is clearly          



erroneous when we are 'left with a definite and firm conviction on the entire record that                                                                    



                                                     17  

a mistake has been made.' "                                



                                                                                                                                                

                         "We review awards of costs and attorney's fees for abuse of discretion,  



                                                                                                                                               

which exists if an award is arbitrary, capricious, manifestly unreasonable, or improperly  

                      18  And "[w]ereviewatrialcourt'sdecision toimposesanctions for discovery  

motivated."                                                                                                                                       

violations for abuse of discretion."19  But whether the trial court correctly applied the law  

                                                                                                                                                             

in awarding attorney's fees or sanctions is a question of law that we review de novo.20  

                                                                                                                                                                     



And while we review for abuse of discretion the decision whether to enhance attorney's  

                                                                                                                                                 



fees or  to  sanction a party  because of an  unreasonable legal position, the question  

                                                                                                                                                   



whether that position was unreasonable will usually be a legal question subject to de  

                                                                                                                                                               

novo review.21  

            



             16(...continued)  



                                                                 

Bank, 322 P.3d 866, 871 (Alaska 2014)).  



             17          Fernandes v. Portwine                       , 56 P.3d 1, 4 (Alaska 2002) (quoting                                      Jenkins v.   



Handel, 10 P.3d 586, 589 (Alaska 2000)).  

                                                                                   



             18          Id. at 4-5 (quoting Kellis v. Crites, 20 P.3d 1112, 1113 (Alaska 2001)).  

                                                                                                                                                  



             19           Whittle v. Weber, 243 P.3d 208, 211 (Alaska 2010) (citing Underwriters at  

                                                                                                                                                                 

Lloyd's London v. The Narrows, 846 P.2d 118, 119 (Alaska 1993)).  

                                                                                                                                  



             20          See Okagawa v. Yaple, 234 P.3d 1278, 1280 (Alaska 2010) (quoting Krone  

                                                                                                                                                         

v. State, Dep't of Health & Soc. Servs., 222 P.3d 250, 252 (Alaska 2009)); Prentzel v.  

                                                                                                                                                                 

State, Dep't of Pub. Safety, 169 P.3d 573, 594 (Alaska 2007) (citing Peter v. Progressive  

                                                                                                                                              

Corp., 986 P.2d 865, 867 (Alaska 1999)).  

                                                                  



             21          See Alaska Building, Inc. v. Legislative Affairs Agency, 403 P.3d 1132,  

                                                                                                                                                         

 1134 (Alaska 2017).  

                            



                                                                              -14-                                                                        7235
  


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

IV.       DISCUSSION  



                     Riddle argues that the septage lagoons on his property were not a nuisance.  

                                                                                                                                        



And he argues that even if the septage lagoons would normally constitute a nuisance, he  

                                                                                                                                   



is shielded from private nuisance liability by the Right to Farm Act. Finally, he contests  

                                                                                                                          



the superior court's decision to grant attorney's fees above the presumptive 30% amount  

                                                                                                                           



under Civil Rule 82(b) and discovery sanctions under Civil Rule 37(g).  

                                                                                                      



                     A.        Private Nuisance Liability  

                                                             



                     A nuisance is "a substantial and unreasonable interference with the use or  

                                                                                                                                   

enjoyment of real property."22  

                                                                                                                                 

                                               "Private nuisance liability results from an intentional and  



                                                                                                                        

unreasonable interference with another's use and enjoyment of his or her own property"  



                                                                                                                                   

or from "[u]nintentional conduct . . . if negligent, reckless, or abnormally dangerous. To  



                                                                                                                                   23  

                                                                                                                    

incur liability, an actor's conduct must be a substantial factor in causing the nuisance." 



                                                                                                                             

                     In this case the superior court found that "Riddle's septage lagoons would  



                                                                                                                           

be a private nuisance if not for the [Right to Farm] Act" because "[t]he septage lagoons  



                                                                                                                             

unreasonably interfere[d] with Lanser's use and enjoyment of his property."  On appeal  



                                                                                                                                 

Riddle argues that trial testimony did not support the court's nuisance finding and that  



                                                                                                                                        

the court should have balanced the harm to Lancer against the social utility of farming.  



                                                                                                                                 

We conclude that the superior court did not clearly err in its factual findings and that  



                                                                                                                     

these findings made any balancing of societal interests unnecessary in this case.  



                                                                                                                       

                     The superior court found by clear and convincing evidence that beginning  



                                                                                                                              

in the early spring of 2010, "Lanser and other neighborhood residents began to smell  



          22         AS 09.45.255.   



          23  

                                                                                                                           

                     Parks HiwayEnters., LLCv.CEMLeasing,Inc., 995P.2d 657, 666 (Alaska  

                        ESTATEMENT   (SECOND)   OF   TORTS    822(a)-(b), 834 (A                              M. L   AW   INST .  

2000) (citing R 

1965)).  



                                                                -15-                                                          7235
  


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

                                                                                                                                      

strong, pervasive, and persistent foul odors originating with Riddle's septage lagoons."  



                                                                                                                                      

These odors were "so strong and so foul that engaging in outdoor activities [was] often  



                                                                                                                        

extremely  unpleasant,"  and  "[t]he  odors  clearly  interfere[d]  with  Lanser's  outdoor  



                                                                                                                        

activities on the land, which include[d] building the houses and preparing land  for  



                                                                                                                    

development."             "The  odors  beg[a]n  at  breakup  and  endure[d]  through  freezeup."  



                                                                                                                             

                    Lanser's testimony supported thesefindings: Lanser testifiedthatthesmell  



                                                                                                                                      

was "very overwhelming" and that it was like "sticking your head in [a] nasty outhouse."  



                                                                                                                

He asserted that it was "just always around [him]" and that he smelled the "remarkable"  



                                                  

odors "two times a week . . . on average."  



                                                                                                                      

                    The court found that it was the lagoons themselves and not the spreading  



                                                                                                                       

of septage on Riddle's fields that caused the odors; Riddle had not yet started applying  



                                                                                                                              

septage to his fields when the odors first arose.  The court found that the odors first  



                                                                                                                               

appeared in the early spring of 2010 because "[d]uring that winter, Bigfoot Pumping and  



                                                                                              

Thawing . . . stopped dumping its septage at the wastewater treatment plant owned by  



                                                                                                                       

[Golden Heart Utilities] and began dumping its septage into the lagoons on Riddle's  



                                                                                                                         

property.  In calendar year 2010, Bigfoot dumped at least 2,520,857 gallons of septage  



                                  

into Riddle's septage lagoons."  



                                                                                                                                

                    The facts found by the superior court are supported by the record and are  



                                                                                                                      

sufficient  to  establish  that  Riddle's  septage  lagoons  constitute  a  private  nuisance  



                                                                                                                             

affecting Lanser's property, absent a successful Right to FarmAct defense. Riddle made  



                                                                                                                         

an intentional business decision to create septage lagoons on his property, dump septage  



                                                                                                                                  

from his own septic pumping business into the lagoons, and contract with Bigfoot to  



                                                                                                                              

dispose of millions of gallons of Bigfoot's septage in the lagoons.  These lagoons then  



                                                                                                                                 

produced a foul odor that substantially interfered with Lanser's use and enjoyment of his  



                                                                                               

property.  As the House of Lords explained nearly 150 years ago:  



                                                               -16-                                                         7235
  


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

                          The person . . . whose habitation is made unhealthy by the                                                    

                          fumes and noisome vapours of his neighbour's . . . works[] is                                                    

                          damnified without any fault of his own; and it seems but                                   

                          reasonable   and   just   that   the   neighbour  who   has   brought  

                          something  on  his own                         property   (which   was not naturally              

                          there) . . . should be obliged to make good the damage which                                             

                          ensues   if   he   does  not  succeed   in   confining   it   to   his   own  

                          property.[24]  



                          As for Riddle's argument that the superior court should have balanced the  

                                                                                                                                                                  



harm to Lanser with the societal good of farming activities, we have never recognized  

                                



a balancing test in our nuisance cases, and we do not have to consider whether we should  

                                                                                                                                                           



adopt one today. The superior court found that the offending odors began before Riddle  

                                                                                                                                                           



used the septage in any farming capacity and that Riddle did not intend to use the septage  

                                                                                                                                                          



in the lagoons for farming.  The societal value of farming is therefore irrelevant.  

                                                                                                                                        



                          The superior court did not clearly err in its findings, and we agree with the  

                                                                                                                                                                  



court's determination that Riddle's septage lagoons were a private nuisance unless the  

                                                                                                                                                                  



Right to Farm Act shielded Riddle from nuisance liability.  

                                                                                                 



             B.           The Right To Farm Act  

                                                                    



                          Right to Farm Acts address the problem caused by the urbanization of  

                                                                                                                                                                   

farming areas.25   "The Acts are primarily intended to protect agricultural producers from  

                                                                                                                                                               



nuisance actions that result from the encroachment of residential development onto  

                                                                                                                                                               



             24           Rylands v. Fletcher  [1868] 3 LRE & I. App. 330 (HL) 340 (appeal taken                                                             



from Eng.).   



             25           See ch. 34,  1, SLA 1986 ("The legislature . . . finds that conflict between  

                                                                                                                                                        

agricultural operations and urban and suburban land uses threatens the permanent loss  

                                                                                                                                          

of agricultural land."); Minutes, Sen. Judiciary Comm. Hearing on S.B. 60, 22d Leg., 1st  

                                                                                                                                                                  

Sess. (Mar. 30, 2001) (statement of Hans Neidig, Legislative Aide to Senator Lyda  

                                                                                                                                                             

Green, Bill Sponsor) ("As urbanization swallows up farming areas, many farmers have  

                                                                                                                                                               

experienced encroachment on their rights to farm.").  

                                                                                       



                                                                                -17-                                                                          7235
  


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

traditionally agricultural lands. . . .                                                                 All 50 states have enacted some type of [Right to                                                                                                           

Farm] Act."                          26  



                                         Alaska's Right to Farm Act provides that  

                                                                                                                                                             



                                          [a]n agricultural facility or an agricultural operation at an  

                                                                                                                                                                                                                         

                                         agricultural facility  is not  and does not become a private  

                                                                                                                                                                                                           

                                         nuisance as a result of a changed condition that exists in the  

                                                                                                                                                                                                                        

                                         area of the agricultural facility if the agricultural facility was  

                                                                                                                                                                                                                      

                                         not  a  nuisance  at  the  time  the  agricultural  facility  began  

                                                                                                                                                                                                             

                                         agricultural operations.[27]  

                                                                               



The  Act  defines  "agricultural  facility"  as  "any  land,  building,  structure,  pond,  

                                                                                                                                                                                                                                                      



impoundment, appurtenance, machinery, or equipment that is used or is intended for use  

                                                                                                                                                                                                                                                                 



in the commercial production or processing of crops, livestock, or livestock products, or  

                                                                                                                                                                                                                                                                    

that is used in aquatic farming."28                                                                        An "agricultural operation" includes  

                                                                                                                                                                                                                             



                                         any  agricultural  and  farming  activity  such  as  .  .  .  the  

                                                                                                                                                                                                                      

                                         application  and  storage  of  pesticides,  herbicides,  animal  

                                                                                                                                                                                                           



                     26                  Harrison M. Pittman,                                               Validity, Construction, and Application of Right-to-                                                                               



Farm Acts                        , 8 A.L.R.6th 465 (2005);                                                        see also Shatto v. McNulty                                                          , 509 N.E.2d 897, 900                                    

 (Ind. App. 1987) ("The policy of the legislature is clear.                                                                                                                       People may not move to an                                                        

established agricultural area and then maintain an action for nuisance against farmers                                                                                                                                    

because their senses are offended by the ordinary smells and activities which accompany                                                                                                                                                 

agricultural pursuits.");                                                Charter Twp. of Shelby v. Papesh                                                                           , 704 N.W.2d 92, 99 (Mich.                                       

App. 2005) ("The Legislature undoubtedly realized that, as residential and commercial                                                                                                                                                 

development expands outward from our state's urban centers and into our agricultural                                                                                                                        

communities, farming operations are often threatened by local zoning ordinances and                                                                                                                                                                            

irate neighbors.                                  It, therefore, enacted the Right to Farm Act to protect farmers from the                                                                                                                                       

threat of extinction caused by nuisance suits arising out of alleged violations of local                                                                                                                                                                   

zoning ordinances and other local land use regulations as well as from the threat of                                                                                                                                                                               

private nuisance suits." (quoting                                                                  Northville Twp. v. Coyne                                                     , 429 N.W.2d 185, 187 (Mich.                                          

App. 1988))).   



                     27                  AS 09.45.235(a).  

                                                     



                     28                  AS 09.45.235(d)(1).  

                                                     



                                                                                                                               -18-                                                                                                                        7235
  


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

                     manure, treated sewage sludge or chemicals, compounds, or                                                                                                                                 

                      substances to crops, or in connection with the production of                                                                                                                             

                      crops or livestock . . . and . . . any practice conducted on the                                                                                                                      

                      agricultural facility as an incident to or in conjunction with                                                                                                                   

                      [these] activities.                                   [29]  



29                   AS 09.45.235(d)(2).                                                 The Act defines an "agricultural operation" in full as                                                                                                           



                      (A)  any agricultural and farming activity such as                                                                                                   



                                           (i)  the preparation, plowing, cultivation, conserving,
                                                                             

                      and tillage of the soil;
                               



                                           (ii)  dairying;  



                                           (iii)  the operation of greenhouses;                               



                                           (iv)  the production, cultivation, rotation, fertilization,
                                                                       

                      growing,   and   harvesting   of   an   agricultural,   floricultural,
  

                      apicultural, or horticultural crop or commodity;
                                                                



                                           (v)  thebreeding, hatching, raising,                                                                        producing,feeding,
   

                     keeping, slaughtering, or processing of livestock;
                                                                            



                                           (vi)   forestry or timber harvesting, manufacturing, or
                                                                                                           

                     processing operations;
   



                                           (vii)    the    application    and    storage    of    pesticides,
  

                     herbicides,   animal    manure,    treated    sewage    sludge    or
  

                      chemicals,    compounds,    or    substances    to    crops,    or    in
  

                      connection with the production of crops or livestock;
                                                                                     



                                           (viii)    the    manufacturing    of    feed    for    poultry    or
  

                      livestock;
  



                                                                                  

                                           (ix) aquatic farming;  



                                                                                                                                                                      

                                           (x) the operation of roadside markets; and  



                                                                                                                                                                                                              

                      (B) any practice conducted on the agricultural facility as an
  

                                                                                                                                                                                                          

                      incident to or in conjunction with activities described in (A)
  

                                                                                                                                                                                        

                      of  this  paragraph,  including  the  application  of  existing,
  

                                                                                                                                                                                                           

                      changed,   or   new   technology,   practices,   processes,   or
  

                                                                                                                                                                                                                      (continued...)  



                                                                                                               -19-                                                                                                                              7235
  


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

"[T]he time an agricultural facility began agricultural operations refers to the date on                                                                               



which any type of agricultural operation began on that site regardless of any subsequent                                                               

expansion of the agricultural facility or adoption of new technology."                                                                    30  



                                                                                                                                                                         

                           Riddle argues that his septage lagoons are part of an agricultural facility or  



                                                                                                                                                           

an agricultural operation at an agricultural facility and that he is shielded from nuisance  



                                                                                                                                                            

liability by the Act. We disagree: even assuming, as the superior court did, that Riddle's  



                                                                                                                                                                     

farming activities were enough to constitute a commercial agricultural facility, and  



                                                                                                                                                                       

assuming  that  his  septage  lagoons  eventually  became  an  agricultural  facility  or  an  



                                                                                                                                                                      

agricultural operation at an agricultural facility, Riddle still did not use or intend to use  



                                                                                                                                                              

the septage in the lagoons in any farming capacity until after the lagoons had already  



                    

become a nuisance.  



                                                                                                                                                               

                           As previously explained, the purpose of the Right to Farm Act is to protect  



                                                                                                                                                                     

commercial  agricultural  facilities  or  operations  from  nuisance  suits  based  on  the  



                                                                                                                                                                        

encroachment  of  housing  communities  onto  land  that  was  previously  farmland  or  



                                                                                                                                                                 

previously unused.   If an agricultural facility or operation was not a nuisance when  



                                                                                                                                                      

agricultural operations initially began - that is before houses began to be constructed  



                                                                                                                                                               

adjacent to the facility - changes in the facility's surroundings cannot turn the facility  



                                                                                                                                                                  

or operation into a nuisance.  But these are not the facts of this case.  The superior court  



                                                                                                                                                     

found that Riddle did not use or intend to use his septage lagoons in any commercial  



                                                                                                                                                                      

agricultural capacity until after they had already become a nuisance.  This is not the  



                                                                                                                                     

situation the Act was designed to address:  the Act was meant to protect commercial  



             29(...continued)  



                          procedures.  



                          Id.  



             30            AS 09.45.235(a).   



                                                                                  -20-                                                                            7235
  


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

agriculturalfacilities or                                operations that wouldotherwisebecomenuisances,notnuisances                                                                          



that may later become agricultural facilities or operations.                                                       



                                 As the superior court found, Riddle's septage lagoons were not part of an                                                                                                     



"agricultural facility" or "agricultural operation at an agricultural facility" at any point                                                                                                            



from their creation until they became a nuisance.                                                                         The Act only provides protection "                                                    if  



the agricultural facility was not a nuisance at the time the agricultural facility began                                                                                                             

                                                              31      Riddle did not begin spreading septage on his fields until  

agricultural operations                                   ."                                                                                                                                             



June 2010, "a few months after the odors from the septage lagoons began to bother his  

                                                                                                                                                                                                             



neighbors."  Thus, the lagoons were already a nuisance by the time they might have  

                                                                                                                                                                                                         



qualified as an agricultural facility or operation under the Act.  

                                                                                                                                               



                                 Riddle's earlier limited farming operations on the property do not shield  

                                                                                                                                                                                                      



him from nuisance liability.  Riddle states that his property contained farm equipment  

                                                                                                                                                                                           



and that he had used the property to grow crops and raise livestock and had allowed a  

                                                                                                                                                                                  



neighbor to sharecrop a portion; he argues that his farm was an agricultural facility that  

                                                                                                                                                                                                            



began agricultural operations before the septage lagoons located on the property became  

                                                                                                                                                                                                  

a  nuisance.                      Even  if  this  is  correct,32                                    the  septage  lagoons  were  not  a  part  of  his  

                                                                                                                                                                                                            



agricultural facility because they were not "used or . . . intended for use" in farming at  

                                                                                                                                                                                                                



                31               AS 09.45.235(a) (emphasis added).                                    



                32               One of the qualifying conditions for an agricultural facility to receive the  

                                                                                                                                                                                                             

protection of the Right to Farm Act is that the facility be used or intended to be used "in  

                                                                                                                                                                                                             

the commercial production or processing of crops, livestock, or livestock products." AS  

                                                                                                                                                                                                             

09.45.235(d)(1) (emphasis added).  The superior court characterized Riddle's farm as a  

                                                                                                                                                                                                                  

"hobby  farm"  that  was  not of  a  sufficiently  commercial  character  to  qualify  as  an  

                                                                                                                                                                                                              

agricultural  facility  under  the  Act,  but  it  determined  it  did  not  need  to  decide  this  

                                                                                                                                                                                                           

question  because  it  found  that  Riddle's  septage  lagoons  were  not  an  agricultural  

                                                                                                                                                                                       

operation.  Given our resolution of the appeal, we also do not decide whether Riddle's  

                                                                                                                                                                                                

farm was an agricultural facility.  

                                                              



                                                                                                     -21-                                                                                               7235
  


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

                       33  

the   time.                    Nor   does   Riddle's   eventual   use   of   the   lagoons   in  farming   constitute   a  



                                                                                                                                       34  

"subsequent   expansion   of   the   agricultural   facility."                                                                                                                              

                                                                                                                                                 The  Act  allows  agricultural  



                                                                                                                                                                                                                             

facilities toexpandtheirexistingagricultural operationswithout incurring newliabilities.  



                                                                                                                                                                                                      

It does not provide a means to immunize an existing, nonagricultural nuisance. Because  



                                                                                                                                                                                                       

Riddle began spreading septage from the lagoons on his fields only after the lagoons  



                                                                                                                                                                 35  

                                                                                                                                                      

became a nuisance, the Right to Farm Act does not protect him. 



                 33               AS 09.45.235(d)(1).                                    To the extent that Riddle challenges the superior                                                           



court's finding that he did not intend to use the lagoons in his farming operations, we                                                                                                                            

review this finding for clear error and find none.                                                                             The superior court considered how                                               

long it took Riddle to start applying septage to his fields and how little he applied once                                                                                                                     

he started.  The court questioned his reasons for the minimal spreading and concluded                                                                                                            

that his intention in occasionally applying septage to his fields "was more to dispose of                                                                                                                            

the septage than to prepare the land for farming" and that he did not intend to use the                                                                                                                            

septage in the lagoons for farming.                                                       These findings are supported by the record and are                                                                       

not clearly erroneous.       



                 34               AS 09.45.235(a) ("For purposes of this subsection, the time an agricultural  

                                                                                                                                                                                              

facility began agricultural operations refers to the date on which any type of agricultural  

                                                                                                                                                                                              

operation began on that site regardless of any subsequent expansion of the agricultural  

                                                                                                                                                                                              

facility or adoption of new technology.").  

                                                                     



                 35               AS  09.45.235(a)  also  says,  "An  agricultural  facility  or  an  agricultural  

                                                                                                                                                                                            

operation at an agricultural facility is not a private nuisance if the governing body of the  

                                                                                                                                                                                                                   

local soil and water conservation district advises the commissioner in writing that the  

                                                                                                                                                                                                                   

facility  or  operation  is  consistent  with  a  soil  conservation  plan  developed  and  

                                                                                                                                                                                                                

implemented in cooperation with the district." Riddle argues that this clause protects his  

                                                                                                                                                                                                                    

septage lagoons "because, during all relevant times, [Riddle] operated the [farm] under  

                                                                                                                                                                                                            

Division of Agriculture, Alaska DNR, Farm Plans that were in place and which run with  

                                                                                                                                                                                                                

the land."  This is unpersuasive.  A farm plan is not a "writing" of "the governing body  

                                                                                                                                                                                                              

of the local soil and water conservation district . . . that the facility or operation is  

                                                                                                                                                                                                                      

consistent with a soil conservation plan."  Indeed the 1986 Farm Conservation Plan that  

                                                                                                                                                                                                                 

came with the property "require[s]" and the 2011 Farm Conservation Plan that Riddle  

                                                                                                                                                                                  

requested "strongly urges" Riddle to develop a separate local soil and water conservation  

                                                                                                                                                                                           

plan.               The  1986  Farm  Conservation  Plan  explains  that  "[t]he  Soil  and  Water  

                                                                                                                                                                              

                                                                                                                                                                                         (continued...)  



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

                  C.                Attorney's Fees And Costs                                   



                                    At theconclusion ofthetrial Lanser moved                                                                        forattorney's                        fees under Alaska   



Civil Rule 82(b), and he requested additional fees as sanctions relating to discovery                                                                                                                        



violations   under   Alaska   Civil   Rule   37(g).     The   superior   court   granted   enhanced  



attorney's fees under Civil Rule 82(b)(3) due in part to Riddle's unreasonable conduct                                                                                                                            



during discovery, and it also granted Lanser's requests for fees and costs as sanctions                                                                                                                       



under Civil Rule 37(g).                                             Riddle makes multiple claims of error with respect to both                                                                                             



rulings.   We affirm some aspects of these awards and reverse or vacate others.                                                                                                                                    



                                    1.                Civil Rule 82(b)(3) enhanced fees                                                   



                                    Under Civil Rule 82(b)(2) the presumptive award to a party not seeking a                                                                                                                        



monetary award who prevailed at trial is 30% of his reasonable and necessary attorney's                                                                                                                      



fees.   But "[t]he court may vary an attorney's fees award . . . if . . . the court determines                                                                                                            



                                                              36  

variation is warranted."                                                                                                                                                                                         

                                                                    In making that determination the court may consider a number  



                                                                                                                                                                                                                          

of  factors,  including  "the  complexity  of  litigation,"  "the  length  of  trial,"  "the  



                                                                                                                                                                                                                              

reasonableness of the claims and defenses pursued by each side," and "vexatious or bad  



                                                                                 37  

                                                          

faith conduct" by the litigants. 



                                                                                                                                                                                                                        

                                    Upon  consideration  of  the  Rule  82(b)(3)  factors,  the  superior  court  



                                                                                                                                                                                                                          

increased Lanser's attorney's fees from the presumptive 30% award to 40%.  The court  



                  35(...continued)  



                                                                                                                                                                                                                         

Conservation Plan is not a part of the State Farm Conservation Plan or the State Farm  

                                                                                                                                                                                                                              

Development  Plan."                                           Riddle  has  not  placed  into  the  record  a  document  from  the  

                                                                                                                                                                                                        

governing body of the local soil and water conservation district advising the Department  

                                                                                                                                                                                                                           

that he is in compliance with a local soil and water conservation plan. Thus the Act does  

                                                                                                                          

not shield him from nuisance liability on this basis.  



                  36                Alaska R. Civ. P. 82(b)(3).  

                                                                                    



                  37                Alaska R. Civ. P. 82(b)(3)(A), (B), (F), (G).  

                                                                                                                                                            



                                                                                                              -23-                                                                                                        7235
  


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focused primarily on two factors:                                                                                                                Riddle's bad faith conduct and the unreasonableness                                                                                                     



of Riddle's defense.                                                                    The court found that "Riddle 'made material misrepresentations to                                                                                                                                                                                                                    



both the Borough and to the [Department] when he applied for his original permits'                                                                                                                                                                                                                                                              



regarding   his   intended   use   of   the   land."     And   the   court   determined  that  Riddle's  



misrepresentations to the Borough and the Department demonstrated that, while Riddle                                                                                                                                                                                                                                                                    



might have intended at some later time to use his property for commercial agricultural                                                                                                                 



operations, he was not operating a commercial agricultural facility at the time, and that                                                                                                                                                                                                                                                                            



therefore his Right to Farm Act defense was unreasonable.                                                                                                                                        



                                                          Riddle   argues   that   it   was   error   (1)  to  consider   his   conduct   outside   of  



litigation, (2) to find that his Right to Farm Act defense was unreasonable, and (3) not                                                                                                                                                                              



to count against Lanser some of Lanser's litigation conduct. We agree that consideration                                                                                                                                                                                                                                   



of Riddle's conduct outside of litigation and the conclusion his Right to Farm Act                                                                                                                                                                                                                                                                                  



defense was unreasonable were erroneous; it was not an abuse of discretion not to                                                                                                                                                                                                                                                                                          



penalize Lanser for his litigation conduct.                                                                                                   



                                                          We have explained that "[t]he purpose of Civil Rule 82 is to compensate   

                                                                                                                                                                                                                                                                                                                                                 38   When  

a prevailing party partially, not fully, for attorney's fees                                                                                                                                                                                   incurred in litigation                                                                     ."              



an award of Rule 82 fees is enhanced for bad faith conduct, the conduct at issue must  

                                                                                                                                                                                                                                                                                                                                                               

have occurred during the litigation.39                                                                                                                                  The trial court may not consider "actions taken  

                                                                                                                                                                                                                                                                                                                                                             

during the underlying transaction or other litigation between the parties."40   The superior  

                                                                                                                                                                                                                                                                                                                                                  



court was apparently aware of this rule:  the court relied on it when denying Lanser's  

                                                                                                                                                                                                                                                                                                                                               



request for attorney's fees that Lanser incurred while trying to stop Riddle's conduct  

                                                                                                                                                                                                                                                                                                                                                  



                             38                          Demoski v. New                                                         , 737 P.2d 780, 788 (Alaska 1987) (emphasis added).                                                                                                                                                                                      



                             39                          Alderman v. Iditarod Props., Inc.                                                                                                                 , 104 P.3d 136, 145 (Alaska 2004).                                                                                                                       



                             40                          Id .  



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

                                                                                                                                        41  

through means outside the current litigation.                                                                                                 The court nevertheless increased its Rule                                                                       



 82(b)(3) attorney's fees award against Riddle "because Riddle did misrepresent his                                                                                                                                                                               



intentions and actions                                               both before and during                                                      litigation."   To the extent that the court                                                                



considered Riddle's conduct outside of litigation, this was error.                                                                                                                     



                                          The superior court also found that Riddle misrepresented the manner in                                                                                                                                                      



which he planned to store the septage, the size of the lagoons, the length of time he                                                                                                                                                                                



planned to store the septage, and the volume of the septage he planned to store.                                                                                                                                                                       And it   



found that Riddle intended only to store septage and not to actually use the septage in a                                                                                                                                                                                



farming capacity. This led the court to conclude that Riddle's Right to Farm Act defense                                                                                                                                                             



was   unreasonable.     We   disagree.     The   superior   court   may   take   into   account   any  



misrepresentations that Riddle made during litigation in considering an attorney's fees                                                                                                                                                                         

                     42 but we cannot conclude on the record before us that Riddle's Right to Farm Act  

award,                                                                                                                                                                                                                                                            



defense was unreasonable.  A party need not prevail on his claims or defenses for them  

                                                                                                                                                                                                                                                             

                                                    43   By way of analogy, Alaska Civil Rule 11(b)(2) requires lawyers not  

to be reasonable.                                                                                                                                                                                                                                                 

                 



to present "claims, defenses, [or] other legal contentions" unless they "are warranted by  

                                                                                                                                                                                                                                                                     



existing  law or by a nonfrivolous argument for extending, modifying, or reversing  

                                                                                                                                                                                                                                              



                     41                   Lanserrequestedattorney's                                                          fees for his extrajudicial                                                attemptsto stop                                  Riddle  



from storing septage on Riddle's farm, which included "contacting the EPA and the                                                                                                                                                                                 

Fairbanks   Soil   and   Water   Conservation   District   Board   and   petitioning   the   local  

municipality to change existing ordinances." The superior court denied Lanser's request                                                                                                                                                               

because these attorney's fees were not incurred in litigation.                                                                                               



                     42                   These misrepresentations also may be considered in support of the superior  

                                                                                                                                                                                                                                                    

court's factual finding that Riddle did not intend to use the septage in his lagoons for  

                                                                                                                                                                                                                                                                   

commercial agricultural operations but instead intended to use the lagoons to store the  

                                                                                                                                                                                                                                                                   

septage his business and Bigfoot pumped from septic tanks.  

                                                                                                                                                                        



                     43                  See Marathon Oil Co. v. ARCO Alaska, Inc., 972 P.2d 595, 604-05 (Alaska  

                                                                                                                                                                                                                                                     

 1999) (holding that party's position was not unreasonable because it "raised a legitimate  

                                                                                                                                                                                                                                           

issue").  

                          



                                                                                                                                -25-                                                                                                                         7235
  


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

 existing law or for establishing new law."                                                                                                                                                                                                                                              The language of the Right to Farm Act is                                                                                                                                                                                                                                        



broad and, until this case, has not been interpreted by this court.                                                                                                                                                                                                                                                                                                                                                          Riddle's Right to Farm                                                                                                



Act defense was arguable, even though it was unsuccessful; it was not frivolous.                                                                                                                                                                                                                                                                                                                                                                                                                                                                         We  



 conclude that to the extent that the superior court relied on its determination that Riddle's                                                                                                                                                                                                                                                                                                                                                                                                                                



Right to Farm Act defense was unreasonable in making its attorney's fees award, this                                                                                                                                                                                                                                                                                                                                                                                                                                                                         



was error.                                                          



                                                                                        Riddle further argues that "[t]he superior court abused its discretion by                                                                                                                                                                                                                                                                                                                                                                                                  



 failing to consider Lanser's bad faith conduct." Riddle claims that "Lanser failed to fully                                                                                                                                                                                                                                                                                                                                                                                                                                                           



 supplement [his] Rule 26 disclosures and withheld information regarding his attempts                                                                                                                                                                                                                                                                                                                                                                                                                 



to shut down [Riddle's] farm." Riddle claims that Lanser "conducted a series of records                                                                                                                                                                                                                                                                                                                                                                                                                                              



 depositions without providing notice to [Riddle] while a motion to compel . . . was                                                                                                                                                                                                                                                                                                                                                                                                                                                      



pending." But the superior court at no time during the litigation found that Lanser acted                                                                                                                                                                                                                                                                                                                                                                                                                                                          



 in bad faith.                                                                   The superior court noted that "Lanser could have taken a different course                                                                                                                                                                                                                                                                                                                                                                                



 of action" with respect to the depositions but explained that "it was ultimately Riddle's                                                                                                                                                                                                                                                                                                                                                                                                                                   



noncooperation that led to Lanser incurring the additional fees." The court did not abuse                                                                                                                                                                                                                                                                                                                                                                                                                                                       



 its discretion in not holding Lanser's litigation conduct against him in its attorney's fees                                                                                                                                                                                                                                                                                                                                                                                                                                                               



 analysis.  



                                                                                        To   summarize,   the   superior   court   has   broad   discretion   in   awarding  



 attorney's fees under Civil Rule 82(b)(3), but the court may not hold actions before                                                                                                                                                                                                                                                                                                                                                                                                                                                     



 litigation started or arguably reasonable defenses against the losing party.                                                                                                                                                                                                                                                                                                                                                                                                                To the extent                                   



that the superior court based its award on these impermissible considerations, we reverse                                                                                                                                                                                                                                                                                                                                                                                                                                              

 and remand to the superior court for reconsideration of its order in light of our holding.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  44  



                                            44                                          In devising its new Civil Rule 82 attorney's fees award on remand, the                                                                                                                                                                                                                                                                                                                                                                                                 



 superior court also should be careful not to penalize Riddle twice for the same conduct.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                

 Conduct that is being sanctioned under Civil Rule 37(g) should not also be held against                                                                                                                                                                                                                                                                                                                                                                                                                                               

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                (continued...)  



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

                                                             2.                            Civil Rule 37(g) sanctions                                                    



                                                             Under Civil Rule 37(g) the trial court may require a party "to pay to any                                                                                                                                                                                                                                                



 other party thereasonableexpenses, including attorney's                                                                                                                                                                                                    fees,"whenthatparty "engages                                                                      



 in unreasonable, groundless, abusive, or obstructionist conduct during the course of                                                                                                                                                                                                                                                                                                       



 discovery."     And when the court grants a motion to                                                                                                                                                                                                      compel discovery under Civil                                                                                      



 Rule 37(a)(4)(A), the court "shall" require the party whose conduct necessitated the                                                                                                                                                                                                                                                                                                   



motion to pay the moving party's reasonable expenses, including attorney's fees, unless                                                                                                                                                                                                                                                                                    



the moving party failed to make a good faith effort to avoid court action, the non-moving                                                                                                                                                                                                                                                       



party's objections were "substantially justified," or "other circumstances [would] make                                                                                                                                                                                                                                                                                       



 an award of expenses unjust."                                                                                                            



                                                             The superior court granted Lanser's Rule 37(g) motion for fees and costs                                                                                                                                                                                                                                           



 in connection with the court's earlier order granting his motion to compel discovery                                                                                                                                                                                                                                                                    



responses under Rule 37(a).                                                                                                        The court found that Riddle's "refusal to respond to the                                                                                                                                                                                             



 discovery   requests   [was]   unreasonable"   and   that   Riddle's   conduct   "necessitated  



 [Lanser's] motion to compel" and "caused unnecessary delays and higher litigation                                                                                                                                                                                                                                                                          



 costs."  



                                                             Riddle   argues   that   the   court   "erred   when   it   found   that   [he]   was  



unreasonable during discovery," and he argues that "willfulness must be demonstrated                                                                                                                                                                                                                                                     



before sanctions may be imposed under Civil Rule 37."                                                                                                                                                                                                           Riddle claims that he did not                                                                                           



 engage   in   any   "willful   conduct   [that   would]   warrant[]   an   award   of   expenses   as  



 sanctions."   He asserts that his objection to Lanser's discovery requests were based on                                                                                                                                                                                                                                                                                                  



                               44(...continued)  



                                                                                                                                                                                                                                                                                                                                                                                               

 Riddle in the court's Civil Rule 82(b)(3) attorney's fees determination.  Cf. Heustess v.  

                                                                                                                                                                                                                                                                                                                                                                 

Kelley-Heustess, 259 P.3d 462, 477 (Alaska 2011) (remanding for additional findings  

                                                                                                                                                                                                                                                                                                                                                          

because "we [could not] tell whether the court double-counted [husband's] vexatious  

                                                                                                                                                                                                                                                                                                                                                                           

 litigation conduct by considering it in the overall property distribution and in its award  

                                                         

 of enhanced fees").  



                                                                                                                                                                                           -27-                                                                                                                                                                                  7235
  


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

his belief that Lanser's "requests were irrelevant to [the] private nuisance claim" in light                                                                                                                                                           



of Judge Olsen's preliminary finding that Riddle was operating a "legitimate farm." He                                                                                                                                                                      



claims   that   he   did   not   know   that   Judge   Olsen's   findings   did   not   have   binding   or  



precedential value.   



                                        Riddle is incorrect that Rule 37(g) requires a showing of willfulness before                                                                                                                              



the court may impose sanctions.                                                                   The cases Riddle relies on to support his argument all                                                                                                     



involve   the   trial  court's   authority   to   impose   litigation-ending   or   claim-dismissing  

                                                                                  45   Riddle points to no case or other authority suggesting that  

 sanctions under Rule 37(b).                                                                                                                                                                                                                              



the trial court must makean explicit finding ofwillfulness when ordering sanctions under  

                                                                                                                                                                                                                                                    



Rule 37(g). And nothing in the language of the rule indicates that willfulness is required;  

                                                                                                                                                                                                                                          



all that is required is that the party or the party's attorney engage in "unreasonable,  

                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                46       The  

groundless, abusive, or obstructionist conduct during the course of discovery."                                                                                                                                                                        

                                                                                                                                                                                                             



 superior court did not need to find that Riddle acted willfully for it to order Riddle to pay  

                                                                                                                                                                                                                                                          



Lanser's attorney's fees and costs as sanctions under Rule 37(g).  

                                                                                                                                                                                                      



                                        Riddle  argues  the  superior  court  erred  when  it  found  that  he  acted  

                                                                                                                                                                                                                                                   



unreasonably in objecting to Lanser's discovery requests. It did not. Riddle's opposition  

                                                                                                                                                                                                                                     



                    45                  See Strong Enters., Inc. v. Seaward                                                                        , 980 P.2d 456, 460-61 (Alaska 1999)                                                            



(noting that "the discovery master did not find that Strong had wilfully violated any                                                                                                                                                                    

outstanding   discovery  order   or   that   Strong's   conduct   in   discovery   so   thwarted   the  

discovery processthat therequirements                                                                                ofCivilRule37(g) werenecessarily                                                                          established"  

(emphasis   added));   Honda   Motor   Co.   v.   Salzman,   751   P.2d  489   (Alaska   1988)  

(reviewing establishment of liability as a sanction for violating discovery orders);                                                                                                                                                            Hawes  

Firearms Co. v. Edwards                                                      , 634 P.2d 377 (Alaska 1981) (same).                                                                              Rule 37(b)(3) requires                       

courts to considerthewillfulness                                                                 ofadiscovery-order violation                                                            when imposing                                  sanctions  

that affect the proceedings and provides in part, "The court shall not make an order that                                                                                                                                                                

has the effect of establishing or dismissing a claim or defense or determining a central  

                                                                                                                                                                                               

issue in the litigation unless the court finds that the party acted willfully."  



                    46                  Alaska R. Civ. P. 37(g).  

                                                                                               



                                                                                                                            -28-                                                                                                                      7235
  


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

was based entirely on his belief that Judge Olsen's preliminary findings were conclusive                                                                                                                                                                   



and precluded discovery on his farm's legitimacy.                                                                                                                           Findings made in the course of a                                                                              



preliminary   injunction   proceeding   are,   by   definition,   preliminary.     At   preliminary  



proceedings, a trial court may not be presented with all of the evidence that may be                                                                                                                                                                                                 



developed during subsequent discovery as the case proceeds, and when the court is                                                                                                                                                                                                       



presented with a more well-developed factual record at trial, the court may change its                                                                                                                                                                                                



view of the evidence. Normally, only when the court specifically notifies the parties that                                                                                                                                                                                        



it intends to combine the preliminary injunction hearing and trial could the court treat its                                                                                                                                                                                           

preliminary injunction findings as conclusive.                                                                                                          47  



                                            Riddle next argues that even if the superior court was entitled to award fees  

                                                                                                                                                                                                                                                                                 



and costs under Rule 37(g), it abused its discretion by awarding Lanser excessive and  

                                                                                                                                                                                                                                                                                  



unreasonable fees and costs as sanctions. He asserts that Lanser's attorneys overcharged  

                                                                                                                                                                                                                                                      

                                                                                                                                      48   But as Lanser points out, the proper amount  

like the attorneys did in Demoski v. New.  

                                                                                                                                                                                                                                                                     

                                                                                                                   49        And although Riddle contends that a fee award  

of attorney's fees is case-specific.                                                                                                                                                                                                                                     

                                                                     



                      47                    See Haggblom v. City of Dillingham                                                                                          , 191 P.3d 991, 999 (Alaska 2008)                                                                 



("[T]he parties should normally receive clear and unambiguous notice [of the court's                                                                                                                                                                                  

intent to consolidate the trial and the hearing] either before the hearing commences or                                                                                                                                                                                                

at a time which will still afford the parties a full opportunity to present their respective                                                                                                                                                                

cases." (second alteration in original) (quoting                                                                                                       Univ. of Tex. v. Camenisch                                                              , 451 U.S. 390,                  

395 (1981))).   



                      48                    737 P.2d 780, 787 (Alaska 1987) (concluding that superior court did not  

                                                                                                                                                                                                                                                                                   

err in reducing attorney's fees where attorneys had overcharged their clients, duplicated  

                                                                                                                                                                                                                                                            

work, and "generated . . . unnecessary work by making vituperative attacks on opposing  

                                                                                                                                                                                                                                                                

counsel").  



                      49                    See Nautilus Marine Enters., Inc. v. Exxon Mobil Corp., 332 P.3d 554, 561  

                                                                                                                                                                                                                                                                                  

(Alaska 2014) (noting that "the trial court is 'uniquely suited' to make" determinations  

                                                                                                                                                                                                                                             

about the reasonableness of attorney hours "because of its 'greater knowledge of the  

                                                                                                                                                                                                                                                                                   

case' " (quoting  Valdez Fisheries Dev. Ass'n v. Froines, 217 P.3d 830, 833 (Alaska  

                                                                                                                                                                                                                                                                    

                                                                                                                                                                                                                                                  (continued...)  



                                                                                                                                         -29-                                                                                                                                 7235
  


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

under $1,000 is appropriate for a motion to compel, the case he cites is a child support                                                                             



                                                                                                                                                                                 50  

case with different facts, different legal issues, and a different level of complexity.                                                                                               



There is nothing in Demoski to suggest that a motion to compel can never take more than  

                                                                                                                                                                            



$1,000 worth of attorney time.  

                                                      



                            We analyze the superior court's attorney's fees and costs award for an  

                                                                                                                                                                               

abuse of discretion based on the facts of this case.51   Riddle argues there are six instances  

                                                                                                                                                                  



where the court awarded excessive fees:  (1)  Lanser's motion to compel; (2) Lanser's  

                                                                                                                                         



work on his motion for expedited consideration of his motion to compel; (3) depositions  

                                                                                                                                                             



taken while the motion to compel was pending; (4) pleading practice over quashing  

                                                                                                                                                      



Bigfoot's subpoena; (5) Lanser's Civil Rule 56(f) motion; and (6) updates to Lanser's  

                                                                                              



expert report.  

               



                            Riddle first objects to the $3,612 awarded to Lanser for work related to the  

                                                                                                                                                                              



motion to compel. He contends that Lanser overbilled because one attorney drafted and  

                                                                                                                                                                             



then "[f]inish[ed]" the motion to compel, only to have another attorney conduct research,  

                                                                                                                                                                  



revise, and again finalize the motion.  Riddle asserts that the superior court abused its  

                                                                                                                                                                                



discretion in what he contends is a clear case of overbilling.  The first timekeeper spent  

                                                                                                                                                                          



4.3 hours researching Rule 37 case law, 1.3 hours drafting the motion, and 0.9 hours  

                                                                                                                                                                         



finishing the motion.  The second timekeeper spent 0.9 hours reviewing case law, 1.3  

                                                                                                                                                                    



hours revising the motion, and 3 hours finalizing the motion, preparing exhibits, drafting  

                                                                                                                                                                    



              49(...continued)  



2009))).  



              50            See   Kestner   v.   Clark,   182   P.3d   1117,   1125   &   n.32   (Alaska   2008)  



(concluding that superior court did not abuse its discretion by awarding moving party,                                      

who had requested $2,822 in fees, $782 "for work directly related to the motion to                                                                                              

compel").  



              51            See Fernandes v. Portwine, 56 P.3d 1, 4-5 (Alaska 2002).  

                                                                                                                                                       



                                                                                      -30-                                                                                7235
  


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

                                                                                                                  

an affidavit of counsel in support of the motion,  and  drafting an  order  compelling  



                                                                                                                            

discovery responses.  The superior court is in the best position to discern whether these  



                                                                                                                                 

amounts of time were necessary and reasonable, and we perceive nothing that causes us  



                                                                                

to conclude the court abused its discretion in its fee award.  



                                                                                                                         

                    Riddle next objects to the $607 awarded to Lanser for work on the motion  



                                                                                                                   

for expedited consideration.  He argues that "[t]he motion was clearly not necessary"  



                                                                                                                               

because Lanser had also brought a motion for continuance under Civil Rule 56(f).  But  



                                                                                                                    

Riddle had put Lanser in a precarious position:   he objected to Lanser's discovery  



                                                                                                                              

requests and then moved for summary judgment.   In response Lanser brought two  



                                                                                                                            

motions:   one for expedited consideration of his motion to compel and a Rule 56(f)  



                                                                                                                         

motion for a continuance in the alternative.  Because the court granted Lanser's motion  



                                                                                                                               

for continuance, the motion for expedited consideration was mooted.   Although the  



                                                                                                         

motion for expedited consideration was ultimately unnecessary, the superior court did  



                                                                                                                     

not abuse its discretion when it granted Lanser attorney's fees associated with preparing  



        

that motion.  



                                                                                                                                 

                    Riddle next claims that the superior court abused its discretion when it  



                                                                                                                  

awarded Lanser "$1,593 in attorney's fees and $411.23 for the records depositions  



                                                                                                                              

[Lanser] conducted while his [m]otion to [c]ompel was pending."  Riddle contends that  



                                                                                                                         

Lanser did not provide notice of the depositions.   And he states that Lanser sought  



                                                                                                                               

information in these depositions that was not part of his initial discovery request.  He  



                                                                                                                                     

argues that the fees therefore cannot be attributed to Riddle's conduct during discovery.  



                                                                                                                            

Lanser responds that Riddle's suggestion that Lanser could have waited until the court  



                                                                                                                          

ruled on his motion to compel presumes that he would win that motion. Although Riddle  



                                                                                                                             

argues  that  he  should  not  be  penalized  for  Lanser's  duplicative  work,  Lanser  was  



                                                                                                                              

employing alternative litigation strategies in the event that one or the other did not  



                                                                                        

succeed.  And the fact that Lanser did not seek to obtain exactly the same information  



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in the depositions as he did in his discovery requests does not mean that the depositions                                                                                                                                                                                        



 did not result from Riddle's objections to Lanser's discovery requests.                                                                                                                                                                                                 The superior   



 court did not abuse its discretion in awarding Lanser fees for these depositions.                                                                                                                                                                                                                 



                                                 Riddle next objects to $1,822.50 the court awarded Lanser for motion                                                                                                                                                                           



practice related to Riddle's effort to quash a subpoena Lanser served on Bigfoot.                                                                                                                                                                                                                            He  



 claims that these fees were only necessary as a result of Lanser's attempt to depose                                                                                                                                                                                                           



witnesses without notifying Riddle.                                                                                                     But as discussed above, the depositions were a                                                                                                                                



legitimate attempt by Lanser as an alternative litigation strategy to respond to Riddle's                                                                                                                                                                                                   



 opposition toproducingdiscovery                                                                                          toLanser and Riddle's                                                             motion for summary                                                        judgment.   



The superior court did not abuse its discretion in awarding Lanser these fees.                                                                                                                                                                                                             



                                                 Riddle next objects to $3,465 awarded to Lanser for his Rule 56(f) motion.                                                                                                                                                                                                   



Riddle claims that the Rule 56(f) motion was essentially copied from Lanser's motion                                                                                                                            



to compel.  The total attorney's fees awarded for the two motions were $7,077, which   



Riddle argues was an unreasonable award for "duplicated work."                                                                                                                                                                                            Lanser responds   



 correctly that Riddle did not raise this objection in the superior court; we therefore                                                                                                                                                                                                  

                                                                                                                                   52   While there is overlap between the two motions,  

review for plain error and find none.                                                                                                                                                                                                                                                      



the superior court is in the best position to determine whether the attorney's fees were  

                                                                                                                                                             



reasonable.  We see nothing in the record to suggest that the court plainly erred.  

                                                                                                                                                                                                                                                                              



                                                 Riddle finally objects to $2,953.53 in costs awarded to Lanser for time  

                                                                                                                                                                                                                                                                                                          



 spent updating an expert report.   Lanser's expert prepared his original report using  

                                                                                                                                                                                                                                                                                                     



 estimates of the volume of septage that was being stored on Riddle's property because  

                                                                                                                                                                                                                                                                                              



Riddle had not yet responded to discovery requests. Lanser argued that his expert would  

                                                                                                                                                                                                                                                                                                    



have  to  redo  his  report  when  Riddle  produced  the  records,  and  Lanser  therefore  

                                                                                                                                                                                                                                                                                        



                         52  

                                                                                                                                                                                                                                                                                                

                                                 See Ace Delivery &Moving, Inc. v. State, Alaska State Comm'n for Human  

                                                                                                                                                                                            

Rights, ex rel. Wass, 350 P.3d 776, 781-82 (Alaska 2015).  



                                                                                                                                                      -32-                                                                                                                                               7235  


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

                                                                                                                     

requested half of the cost of the original report as compensation for Riddle's discovery  



                                                                                                                                 

objections.   The superior court deferred ruling on the motion until post-trial when it  



                                                                                                                              

awarded half of the cost of the initial expert report as a sanction.  Riddle argues that  



                                                                                                                                     

Lanser failed to show what additional cost, if any, was incurred by updating the report.  



                                                                                                                               

Riddle is correct that Lanser did not indicate what fees were incurred by updating the  



                                                                         

report.  While Lanser did not know the cost of the updated expert report at the time of  



                                                                                                                             

his motion, he did know that cost at the time he requested fees after trial. We agree with  



                                                                                                                          

Riddle that it was an abuse of discretion to award the pre-trial estimated expert report  



                                                                                                                          

costs.  The superior court could have determined the actual cost of updating the expert  



                                                                                                                             

report when it awarded sanctions rather than relying on the estimate produced at the time  



                                                                                                                                

Rule  37(g)  sanctions  were  initially  requested.                         We  therefore  vacate  the  award  of  



                                                                                                                         

$2,953.53 in costs and remand for the superior court to award the actual cost to Lanser  



                                              

of the expert's updates to the report.  



V.        CONCLUSION  



                                                                                                                   

                    We agree with the superior court that Riddle's septage lagoons constituted  



                                                                                                                           

a private nuisance and that Riddle was not shielded from nuisance liability by the Right  



                                                                                                                         

to Farm Act. We therefore AFFIRM the private nuisance and Right to Farm Act rulings  



                                                                                                                                 

of the court.  The court considered factors outside the scope of the pending litigation in  



                                                                                                                               

awarding attorney's fees under Civil Rule 82(b)(3) and it appears to have based its fee  



                                                                                                                              

award, at least in part, on an erroneous conclusion that Riddle's Right to Farm Act  



                                                                                                                               

defense was unreasonable; we REVERSE the attorney's fees award and REMAND for  



                                                                                                                                

the court to reconsider this award.  It was an abuse of discretion for the court to rely on  



                                                                                                                           

a pre-trial estimate of the cost of updating Lanser's expert's report rather than the actual  



                                                                                                                                 

cost when the actual cost was readily available to the court; we VACATE the award of  



                                                                                                                              

$2,953.53 in costs under Civil Rule 37(g) and REMAND for the court to determine and  



                                                                                                                                

award the actual cost of updating the report.   The superior court did  not  abuse its  



                                                              -33-                                                         7235
  


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

discretion in awarding any other attorney's fees or costs under Civil Rule 37(g), and we                                                                                                                                                                                                                                            



AFFIRM these awards.                                                                         We do not retain jurisdiction.                                                                                          



                                                                                                                                                                            -34-                                                                                                                                           7235
  

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