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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Manning v. State, Dept. of Fish & Game (6/22/2018) sp-7252

Manning v. State, Dept. of Fish & Game (6/22/2018) sp-7252

          Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  


                     THE SUPREME COURT OF THE STATE OF ALASKA                                 

KENNETH  H.  MANNING,                                       )  

                                                            )    Supreme  Court  Nos.  S-16511/16531  

                              Appellant  and                )  


                                                            )    Superior Court No. 3KN-13-00708 CI  



                                                            )    O P I N I O N  


STATE  OF  ALASKA,                                          )                                    

                                                                 No. 7252 - June 22, 2018  

DEPARTMENT  OF  FISH  AND                                   )  

GAME,                                                       )  


                              Appellee  and                 )  

                              Cross-Appellant,              )  


          and                                               )  


AHTNA  TENE  NENÉ,                                          )  


                              Appellee.                     )  



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


                    Judicial District, Kenai, Charles T. Huguelet, Judge.  


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


                    Appellant   and   Cross-Appellee.                      Cheryl   R.   Brooking,  


                    Assistant        Attorney         General,        Anchorage,           and      Jahna  


                    Lindemuth,  Attorney  General,  Juneau,  for  Appellee  and  


                    Cross-Appellant  State  of  Alaska,  Department  of  Fish  and  


                    Game.        John  M.  Starkey,  Anna  C.  Crary,  and  Andrew  


                    Erickson, Landye Bennett Blumstein LLP, Anchorage,  for  


                    Appellee Ahtna Tene Nené.  

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

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

                            and Carney, Justices.       

                            BOLGER, Justice.   

I.            INTRODUCTION  

                            This  appeal  is  the  latest  in  a  series  of  successive  appeals  brought  by  


Kenneth Manning challenging the moose and caribou subsistence hunt regulations that  


govern a portion of southcentral Alaska. Manning filed this lawsuit in 2013 challenging  


the eligibility criteria for subsistence hunt permits, the point system for allocating Tier II  


subsistencepermits, and thecriteriafor establishing nonsubsistencehuntingareas. While  


these claims were pending in the superior court, we issued a 2015 decision resolving  


similar claims brought by Manning in an earlier suit. Manning then moved to amend his  


complaint in this case and to add an individual official as a defendant. The superior court  


denied  both  motions,  concluding  that  amendment  would  be  futile  because  all  of  


Manning's claims would fail under our precedent.  The superior court also denied the  


State's motion for attorney's fees, concluding that Manning was exempt froman adverse  


attorney's fees award under the constitutional litigant exception.  


                            Manning appeals the denial of his motion to amend; he also raises various  


allegations of deprivation of due process.   The State cross-appeals the denial of its  


motion  for  attorney's fees.                                  We affirm the denial of the motion  to  amend  because  


Manning failed to adequately brief - and thus forfeited - his arguments on some of the  


counts, and the remaining counts would have been futile.  And we affirm the denial of  


attorney's fees to the State because none of Manning's claims are frivolous.1  


              1             In addition to Manning's appeal and the State's cross-appeal, Ahtna Tene                                                                         

Nené, the other defendant in the superior court proceeding, asks us to vacate a 2010                                                                                        

superior court order entered in a prior suit brought by Manning to which Ahtna was also                                                                                        


                                                                                         -2-                                                                                 7252

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

 II.           FACTS AND PROCEEDINGS             

               A.             Regulatory Background   

                              Manningchallenges severalaspects oftheregulations                                                                   governing themoose   

 and caribou community subsistence hunt in Game Management Unit 13 (GMU 13), an                                                                                                           

                                                                                                                                                                     2    Our prior  

 area that encompasses 23,000 square miles known as the Nelchina basin.                                                                                                             

 opinions have discussed at length the subsistence hunt permitting system for this area;  


we provide a synopsis here.3  


                              Alaska's subsistence statute governs the allocation of game in subsistence  


 areas.4         It requires the Board of Game to determine the amount of the harvestable game  


population in a subsistence area "that is reasonably necessary for subsistence uses" and  


to adopt regulations providing "a reasonable opportunity" for such subsistence uses.5  


 The Board recognizes two separate patterns of subsistence use of moose and caribou  


               1              (...continued)  

 a party.           But Ahtna does not explain how the instant appeal provides jurisdiction to                                                                                             

vacate an order issued in an entirely separate case.                                                                See  AS 22.05.010 (outlining our                                   

jurisdiction). We therefore do not address this claim.                                                                 

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


 (Alaska 2012).  


               3              We describe the regulations governing the moose and caribou subsistence  


hunt in  GMU 13 as they existed  at the time Manning  filed  his proposed  amended  


 complaint.                 To  the extent these regulations have subsequently changed,  we do  not  


 address those changes.  


               4              See AS 16.05.258.  


               5              AS16.05.258(b). Subsistenceusesarethe"noncommercial, customary and  


traditional  uses  of  wild,  renewable  resources  .  .  .  for  direct  personal  or  family  


 consumption."  AS 16.05.940(34).  


                                                                                             -3-                                                                                    7252

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


within GMU 13.                       The first pattern is a community-based pattern of subsistence hunting                                                     

that originated within Ahtna Athabascan communities and was later adopted by other                                                                                  



Alaskans.   The community-based pattern is characterized by use of the entire caribou  


or  moose  (except  the  antlers),  cooperation  amongst  community  members,  and  



widespread sharing after the harvest.   The second pattern is an individual-use pattern,  


which  is  similarly  widespread  but,  unlike  the  community-based  pattern,  does  not  



necessarily involve cooperation and sharing.                                                  Those who engage in the individual-use  


pattern tend to hunt primarily in the fall season, travel farther to hunt, and hunt in areas  



accessible from the road system.                                     And these individual hunters generally do not use the  



entire moose or caribou. 


                           The Board manages subsistence hunting permits at either a Tier I or Tier II  



level.          It manages the hunt using Tier I permits when the game population is sufficient  



to satisfy all subsistence uses.                                 Generally, under Tier I, all applicants who are Alaska  

              6            These two patterns were identified in 2006 and 2011 after the Board held                                                                   

public   hearings   and   made   extensive   factual   findings.     Alaska   Fish   &   Wildlife  

Conservation Fund v. State                              (AFWCF), 347 P.3d 97, 100-01 (Alaska 2015).                                        

              7            Id. at 100.  


              8            Id.  

             9             Id. at 101.  


              10           Id.  

              11           Id.  

              12           Manning v. State, Dep't of Fish & Game (Manning II), 355 P.3d 530, 532  


(Alaska 2015).  


              13           Id. ; see AS 16.05.258(b).  


                                                                                    -4-                                                                             7252

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

residents and meet the criteria of one of the two patterns of subsistence use of moose and                                                                                    

caribou within GMU 13 will be able to obtain a permit.                                                              14  

                            If the harvestable portion is insufficient to satisfy all subsistence uses, the  


                                                                                                                            15    Tier II permits are more  

Board manages the subsistence hunt using Tier II permits.                                                                                                                  


limited and thus have stricter eligibility criteria.16                                                    The Board determines a subsistence  


hunter's eligibility for a Tier II permit based on (1) the user's "customary and direct  


dependence on  the game population  .  .  .  for human consumption  as a mainstay of  


livelihood" and (2) the user's "ability . . . to obtain food if subsistence use is restricted  


or eliminated."17  


                            The Board uses a multi-factor point system to assess how each applicant  


satisfies these criteria and to allocate Tier II permits among applicants.18   It assesses the  


first criterion, the user's customary and direct dependence, based in part on "the amount  


of time during the year the applicant spends in the noncommercial harvesting of wild fish  


              14            5 Alaska Administrative Code (AAC) 85.025(a)(8), 85.045(a)(11) (2016   

& Supp. 2018).      

              15            State, Dep't of Fish & Game v. Manning  (Manning I), 161 P.3d 1215,  


 1216-17 (Alaska 2007).  


              16            Id.  

              17            Id.  at 1217 (quoting 5 AAC 92.062(a)).   The statute identifies a third  


consideration for Tier II permits:  "the proximity of the domicile of the subsistence user  


to the stock or  population."   AS 16.05.258(b)(4)(B)(ii).   But in 1995 we held this  


consideration unconstitutional because it was a residency-based eligibility restriction on  


subsistence use.  State v. Kenaitze Indian Tribe, 894 P.2d 632, 638-39 (Alaska 1995).  


              18            Manning I, 161 P.3d at 1217; see 5 AAC 92.070.  


                                                                                        -5-                                                                                7252

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


and game within the hunt area boundary" (the "annual hunting factor").                                                                               And the Board     

assesses the second criterion, the user's ability to obtain food through nonsubsistence                                                             

means, based on the cost of gasoline and food "in the community where most of the                                                                                            

applicant'shousehold's                            store-bought food [and gasolinewere]purchased during thepast                                                              



                            The moose and caribou subsistence hunt in GMU 13 is currently managed  


under a Tier I permitting system.21                                       In accordance with the two recognized subsistence  


use patterns, the Board issues two different types of Tier I subsistence hunt permits for  


GMU 13: a community harvest permit and an individual hunt permit.22   The community  


harvest permit is available to an applicant who is a member of a group or community of  


at least 25 individuals, provided that the applicant "make efforts to ensure that the . . .  


customary and traditional use pattern . . . is observed" (e.g., meat sharing and organ  


salvage).23   The community harvest permit application contains a certification statement  


that requires a certification that an applicant will "observe the customary and traditional  


              19            5 AAC 92.070(a)(3).                            The user can receive a maximum of 25 points by                                                     

spending 70 or more days hunting or fishing in the area.                                                              5 AAC 92.070(a)(3)(F).     

              20            5 AAC 92.070(b)(2)-(3). The number of points the applicant receives for  


the cost of food and gas "may not exceed the points calculated . . . using the cost . . . for  


the community nearest the applicant's residence."  Id.  


              21            2018-2019 Alaska SubsistencePermit Hunt Supplement, ALASKA DEP 'TOF   


FISH            AND            GAME                4,  




CD34A620FB0FD26E1D1DAA715A24/2018-2019_subsistence_supplement.pdf; see  


Manning II, 355 P.3d 530, 533 (Alaska 2015) (describing transition to Tier I system in  


GMU 13).  

              22           AFWCF, 347 P.3d 97, 101 (Alaska 2015).  


              23            5 AAC 92.072(c)(1)(D); AFWCF, 347 P.3d at 101.  


                                                                                       -6-                                                                               7252

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


use patterns" of the community subsistence hunt.                                          The individual subsistence hunt                 


permit for caribou is available annually to each eligible Alaska resident who applies.                                                             

                                                                                                                            26  Individual  

No permit is required for the individual subsistence moose hunt in GMU13.                                                        


subsistence hunters are not subject to the customary and traditional use requirement  


applicable to community harvest permit holders.27                                      All subsistence permit holders for  


caribou in GMU 13 are subject to the same regulations and enjoy the same hunting  


season and hunting area.28  For moose, community harvest permit holders enjoy a longer  


hunting season and a larger hunting area than individual users - and unlike individual  


users, they are not limited to taking moose with certain antler sizes and configurations  


- distinctions we have previously upheld as neither arbitrary nor unreasonable.29  


           24         The certification statement further states that providing false information  


in the permit application "is subject to a maximum penalty of either a $10,000 fine or  


 1 year imprisonment, or both."  

           25          5 AAC 92.071; see  5 AAC 92.050.   Each household is limited to one  


individual use permit in GMU 13.   5 AAC 92.050(a)(4)(I). But this limit does not  


disadvantage individual use permit holders because, although a similar limit does not  


apply to community harvest permit holders, all households are limited to one caribou per  


household regardless of the type of subsistence use permit its members hold.  AFWCF,  


347 P.3d at 101 & n.8; see 5 AAC 92.071(a); 5 AAC 92.072(c)(2)(A).  


           26          5 AAC 85.045(a)(11).  


           27         Manning II, 355 P.3d 530, 533 (Alaska 2015); see  5 AAC 92.071(a).  


Individual use permit holders for the caribou hunt in GMU 13 are, however, prohibited  


from hunting moose or caribou elsewhere in the state for the regulatory year during  


which they hold the permit.  5 AAC 92.050(a)(4)(I).  


           28         Manning            II,     355        P.3d       at     533;       see      5     AAC          85.025(a)(8)(A);  


5 AAC 92.072(d).  


           29         AFWCF, 347 P.3d at 101, 106; see 5 AAC 85.045(a)(11).  


                                                                      -7-                                                               7252

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

                                   In addition to regulating subsistence areas, the subsistence statute also                                                                                                           

requires the Board to identify nonsubsistence areas, that is, "area[s] or communit[ies]                                                                                                     

where dependence upon subsistence is not a principal characteristic of the economy,                                                                                                                     

                                                                    30      In determining whether an area fits this description, the  

culture, and way of life."                                                                                                                                                              

Board  must consider  various socioeconomic factors.31                                                                                                 In nonsubsistence areas,  no  


subsistence permits are issued and the usual priority for subsistence uses over sport and  


commercial uses does not apply.32   The Board has established five nonsubsistence areas  


in the state, including the Anchorage-Matsu-Kenai Nonsubsistence Area.33                                                                                                                                  This area  


encompasses most of the Kenai Peninsula, all of the Municipality of Anchorage, and a  


large portion of the Matanuska-Susitna Borough.34  


                  B.               Proceedings  

                                   In August 2013 Manning filed suit against the Department of Fish and  


Game challenging the constitutionality of the statutes and regulations governing: (1) the  


subsistence hunt for moose and caribou in GMU 13; (2) the Tier II permit scoring  


system; and (3) the designation of a nonsubsistence area.  In January 2014 the superior  


                 30                AS 16.05.258(c).

                 31                Id.

               State v. Kenaitze Indian Tribe                                                 , 894 P.2d 632, 633, 639 (Alaska 1995).                                                                   

                 33                5 AAC 99.015.                             



                                   State v. Kenaitze Indian Tribe, 83 P.3d 1060, 1063 (Alaska 2004).  

                                                                                                              -8-                                                                                                    7252

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

court   granted   the   motion   of   the   local   tribe,   Ahtna   Tene   Nené,   to   intervene   as   a  



                       That month, the superior court also issued a routine pretrial scheduling  




                       In August 2014 Manning moved to stay the pretrial scheduling order until  


we decided an appeal in an earlier case he had brought, which was pending at the time  

                      36).   Manning's motion asserted that a stay was required because "[t]he  


(Manning II 

pending Alaska Supreme Court case is controlling for many of the issues in this matter."  


The State and Ahtna agreed that the suit should be put on hold but argued that a stay of  


the pretrial scheduling order was inappropriate and that the order should instead be  


vacated. The next month the superior court granted the State's and Ahtna's motions and  


vacated the pretrial scheduling order pending the outcome of Manning II .  


                                                                                                         37  The superior court held  

                       We issued a decision in Manning II in May 2015.                                                                        


a status conference in July, at which it agreed to extend the stay to allow Manning time  


to  seek  rehearing  in  Manning  II .                         We  subsequently  denied  Manning's  petition  for  


rehearing, after which Manning filed a petition for certiorari with the U.S. Supreme  


Court.  At another status hearing in January 2016, the superior court again extended the  


stay pending resolution of the petition for certiorari. The superior court stated that if the  


           35          Ahtna "is          an   organization  composed   of representatives from the eight                                   

federally   recognized   Native   Villages   in   the   Ahtna   region[:]   Gulkana,   Cantwell,  

Chistochina, Gakona, Mentasta, Tazlina, Chitina, and Kluti Kaah."                                                   "The Ahtna people     

have   hunted   caribou   and   moose   for  centuries   in   Alaska,   primarily   in   [the]   region  

[encompassed by GMU 13]."                            Ahtna Tene Nené v. State, Dep't of Fish & Game                                         , 288   

P.3d 452, 455 (Alaska 2012).                         

           36          355 P.3d 530 (Alaska 2015).  


           37          We later granted the State's petition for rehearing and issued a superseding  



opinion in August 2015.  See id.  


                                                                        -9-                                                                 7252

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

 Supreme Court rejected Manning's petition, he would have 30 days to file a motion to                                                                                                                                                                                 

amend his complaint.                                                 The Supreme Court denied certiorari the next month.                                                                                                                     

                                          In March 2016 Manning timely moved to amend his complaint.                                                                                                                                            His two-  

sentence motion did not offer any justification for amendment.                                                                                                                                           Manning's proposed   

amended complaint asserted three claims:                                                                                            (1) the requirement that community harvest                                                                        

permit holders observe the customs and traditions of the community-based pattern of                                                                                                                                                                                  

subsistence hunting identified by the Board violates thefederaland                                                                                                                                         state equal protection            

                        38  the equal access clauses of the Alaska Constitution,39  the public trust doctrine,  


the Extinguishment Clause of the Alaska Native Claims Settlement Act (ANCSA),40 the  


Alaska Statehood Act,41  and certain other statutes;42  (2) some of the criteria considered  


in allocating Tier II subsistence permits (the cost of groceries and gasoline and the  


                     38                  U.S. Const. amend. XIV, § 1; Alaska Const. art. I, § 1.                                                                                                          

                     39         VIII, § 3 ("Wherever occurring in their natural                                                                                                                                    state, fish,  

wildlife,  and  waters  are  reserved  to  the  people  for  common  use.");  Alaska  Const.  


art. VIII, § 15 ("No exclusive right or special privilege of fishery shall be created or                                                                                                                                                                             

authorized in the natural waters of the State."); Alaska Const. art. VIII, § 17 ("Laws and                                                                                                                                                                       

regulations governing the use or disposal of natural resources shall apply equally to all  


persons similarly situated with reference to the subject matter and purpose to be served                                                                                                                                                                

by the law or regulation.");                                                         see AFWCF                              , 347 P.3d 97, 102 (Alaska 2015) ("Sections 3,                                                                                             

 15, and 17 of article VIII are the equal access clauses of the Alaska Constitution . . . .").                                                                                                                                                                

                     40                  Manning's proposed amended complaint cites to a section of ANCSA that  


does not exist.   We follow the presumption set forth in Ahtna's brief that Manning  


intended to cite to the Extinguishment Clause. The Extinguishment Clause provides that  


"[a]ll aboriginal titles . . . and claims of aboriginal title in Alaska based on use and  


occupancy, . . . including any aboriginal hunting or fishing rights that may exist, are . .  


 . extinguished."  43 U.S.C. § 1603(b) (2012).  


                     41                  Pub. L. No. 85-508, 72 Stat. 339 (1958).  


                     42                  AS 16.05.255; AS 16.05.258.  


                                                                                                                                -10-                                                                                                                         7252

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


annual hunting factor) violate the federal and state equal protection clauses and the equal  


access  clauses  of  the  Alaska  Constitution;  and  (3)  the  criteria  used  to  establish  


nonsubsistence hunt areas violate the federal and state equal protection clauses.  The  


proposed amended complaint requested relief in the form of monetary damages totaling  


$2.64  million,  a  portion  of  which  Manning  asserted  he  would  "distribute[]"  at  his  


"discretion" to other communities whose rights had been similarly violated. In addition,  


the next month, Manning moved to add Ted Spraker, Board chair, as a defendant in both  


"his official and personal capacity."   The motion stated simply that the addition of  


Spraker was necessary to protect Manning's rights and to secure "an appropriate award  


of damages."  Both the State and Ahtna opposed Manning's motions on the basis that  


each of the claims in his proposed amended complaint was futile, as was the addition of  


Spraker as a defendant.  


                    In August2016,after holdingoralargument on bothofManning's motions,  


the superior court denied them on the basis that each claim in the proposed amended  


complaint, as well as the addition of Spraker as a defendant, was futile. Specifically, the  


superior court reasoned that we had either already directly resolved Manning's claims  


(in a manner adverse to Manning) or the claims would be defeated by the reasoning of  


our prior opinions.  


                    Manning did not request reconsideration of either motion.   Instead, he  


moved to voluntarily dismiss his 2013 complaint.  The motion noted that dismissal was  


appropriate because our decisions had "resolved numerous claims in this case" and  


because the superior court had denied his motion to amend. The State and Ahtna jointly  


submitted  a  proposed  final  judgment  dismissing  Manning's  claims  with  prejudice.  


Manning opposed the joint motion, urging that no court had yet addressed his claims on  


the merits and that final judgment was "premature."  He asserted that final judgment  

                                                              -11-                                                         7252

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

would deny him "substantive and procedural due process."                                                                                                                                              He advocated instead for                          

voluntary dismissal, which would be without prejudice.                                                                                                                                   

                                            The superior court granted the State and Ahtna's joint motion and entered                                                                                                                                               

final judgment in their favor, dismissing all of Manning's claims with prejudice.                                                                                                                                                                                            The  

court denied Manning's motion to reconsider its entry of final judgment and his motion                                                                                                                                                                               

for a new trial.                                  The State then moved for attorney's fees in the amount of $3,479 (20%                                                                                                                                                   

of its reasonable fees). The State also urged that an enhanced attorney's fees award was                                                                                                                                                                                        

warranted based on the frivolous nature of Manning's claims, or, that at the very least,                                                                                                                                                                                   

the unreasonableness of his claims should be used to offset any reduction in fees the                                                                                                                                                                                             

                                                                                                                                                                                                            43   Manning opposed this  

court might be inclined to grant due to Manning's pro se status.                                                                                                                                                                                                                 

motion on the basis that the constitutional litigant exception exempted him from an  


                                                                                                        44          The  superior  court  denied  the  State's  motion  for  

adverse  attorney's  fees  award.                                                                                                                                                                                                                                                


attorney's fees. The superior court concluded that Manning's claims were not frivolous  


for the purpose of the constitutional litigant exception and that the State was therefore  


not entitled to any attorney's fees.  


                                            Manning appeals the superior court's denial of his motion to amend his  


complaint and his motion to add a defendant.   The State cross-appeals the superior  


court's order denying its attorney's fees motion.  


                      43                    Ahtna also moved for attorney's fees, but unlike the State, it does not                                                                                                                                                             

appeal the denial of this motion. Accordingly, we do not address Ahtna's attorney's fees                                                                                                                                                                                       


                      44                    See AS 09.60.010(c)(2) (prohibiting courts from awarding attorney's fees  


against a nonprevailing litigant if the litigant's claims "concern[] the establishment,  


protection, or enforcement of a right under the [federal or state constitutions]," provided  


that the litigant "did not have sufficient economic incentive to bring the action" and that  


the claims were "not frivolous").  


                                                                                                                                        -12-                                                                                                                                7252

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

III.	      STANDARD OF REVIEW              

                      We review the denial of a motion to amend a complaint                                               for  abuse of   



                      It is within a trial court's discretion to deny a motion to amend a complaint  


"where amendment would be futile because it advances a claim . . . that is legally  



insufficient on itsface."                 We review the superior court'sfutility determination using our  



independent judgment. 


                      In addition, we generally review an attorney's fees award for abuse of  


discretion,  which  we  find  when  an  award  is  "arbitrary,  capricious,  manifestly  



unreasonable, or the result of an improper motive."                                     Interpretation of the constitutional  


litigant exception to attorney's fees is a question of law, which we review using our  




independent judgment. 



           A.	        Each Claim In Manning's Proposed Amended Complaint Is Either  


                      Futile Or Forfeited.  


                      Manning appeals the superior court's denial of his motions to amend his  


complaint and to add Spraker as a defendant.  The superior court denied these motions  


after concluding that all of the claims in the proposed amended complaint, along with the  

           45	        Patterson v. GEICO Gen. Ins. Co.                         , 347 P.3d 562, 568 (Alaska 2015).               

           46         Id.  (quoting Krause v. Matanuska-Susitna Borough, 229 P.3d 168, 174  


(Alaska 2010)).  


           47	        Id.  


           48         DeVilbissv.Matanuska-SusitnaBorough, 356P.3d290,294(Alaska2015)  


(quoting Bachner Co. v. Weed, 315 P.3d 1184, 1189 (Alaska 2013)).  


           49         Alaska Conservation Found. v. Pebble Ltd. P'ship , 350 P.3d 273, 279  


(Alaska 2015).  


                                                                     -13-	                                                             7252

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

addition of Spraker, would be futile because the claims had been previously resolved                                                                    

(directly and indirectly) by our precedent.  We consider each of the three claims in the                                                                           

                                                                                                                                                            50   We  

proposed amended complaint, as well as the proposed additional party, in turn.                                                                                    

then address the additional due process arguments that Manning raises on appeal.  


                          1.           First count in the proposed amended complaint  


                          The first count in Manning's proposed amended complaint alleges that the  


conditions required to receive a community harvest permit violate the federal and state  


equal protection clauses and the equal access clauses of the Alaska Constitution.51  



crux of this argument is that the requirement that community harvest permit holders  



observe the customary and traditional pattern of use identified in the Board's findings 


constitutes racial discrimination because that pattern is derived from the practices of the  

             50           We do not examine the validity of any of the claims raised in Manning's                                                   

original complaint because his arguments on appeal relate only to the claims in his                                                                                

proposed amended complaint.                                  

             51           Manning's  proposed  amended  complaint  also  challenged  the  permit  


requirement on the basis that the requirement violated the Extinguishment Clause of  


ANCSA, the public trust doctrine, and the Alaska Statehood Act.  However, Manning  


failed to assert these arguments in his initial brief on appeal, and his discussion of these  


issues in his reply brief is too cursory to comprehend.  Therefore, we conclude that he  


has forfeited these arguments, and we decline to consider them.  See Barnett v. Barnett,  


238 P.3d 594, 602-03 (Alaska 2010) ("[W]e deem waived any arguments raised for the  


first time in a reply brief . . . .").  We further note that Manning appears to argue in his  


initial brief that the permit requirement is unauthorized by AS 16.05.258 and other  


statutes, a claim he made in his proposed amended complaint. But this argument appears  


to depend on his contention that the permit requirement is unconstitutional, and to the  


extent it does not, it is too cursory to comprehend and thus is forfeited.  See Hagen v.  


Strobel, 353 P.3d 799, 805 (Alaska 2015) ("[W]here a point is given only a cursory  


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


(alteration in original) (quoting Glover v. Ranney, 314 P.3d 535, 545 (Alaska 2013))).  


             52           See 5 AAC 92.072(c)(1)(D).  


                                                                                -14-                                                                           7252

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

Ahtna community.                                    According to Manning, this permit condition requires that he either                                                                                                   

"convert   to   Ahtna   local   racial   customs   and   traditions"   or   be   disadvantaged   in   the  

subsistence hunt permitting process.                                                                (Emphasis omitted.)                                       

                                    We rejected in two prior cases the contention that the community harvest                                                                                                          

permit conditions implicate the equal protection and equal access clauses. In                                                                                                                            Alaska Fish   

&    Wildlife    Conservation    Fund    v.    State    (AFWCF),    we    considered    a    nonprofit  

organization's argument that the Board's system of bifurcating the individual hunt and                                                                                                                                         

the community hunt in GMU 13 violated the equal protection and equal access clauses                                                                                                                                   

                                                                                                                                                                                                    53     We upheld  

of the Alaska Constitution by establishing a preference for rural hunters.                                                                                                                                             

the bifurcated hunt systemon the basis that the community harvest permit systemapplied  


equally to all Alaska citizens and thus did not implicate equal protection or the equal  


                                        54      We reasoned that "[a]ll Alaskans are eligible to receive a community  

access clauses.                                                                                                                                                                                          


harvest  permit;  the  only  requirement  for  obtaining  one  is  collaboration  with  other  


                                           55   Although we recognized that this collaboration requirement might be  

resource users."                                                                                                                                                                                                                   


"inconvenient  for  those  who  lack  a  ready  community,"  inconvenience  was  not  a  


sufficient bar toaccess to implicateconstitutionalrights.56  Furthermore, thosewho chose  


not to collaborate could simply apply for an individual hunt permit.57                                                                                                                        We additionally  


explained that only a regulation that differentiated between resource user groups would  


                  53                347 P.3d 97, 100 (Alaska 2015).



                                    Id. at 100, 102-03.

               Id.  at 103.   

                  56                Id.   




                                                                                                               -15-                                                                                                         7252

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

implicate constitutional rights and that user groups are defined based on the nature of the                                                                  

resource or use rather than the means of accessing the resource.                                                       58  

                         We reiterated this holding a few months later in Manning II .  In that case,  


weexpresslyrejected Manning'sargument "that thecommunity harvestpermiteligibility  


criteria are unconstitutional" under the equal protection and equal access clauses, noting  


that "we [had] upheld the constitutionality of these criteria in AFWCF ."59                                                                      We also  


addressed Manning'srelatedargument that theBoard's method ofcalculatingtheamount  


of  caribou  that  was  reasonably  necessary  for  subsistence  in  GMU  13  relied  on  


unconstitutional racial factors - namely, Ahtna customs and traditions.60                                                                  We rejected  


this argument because "[t]he Board's subsistence definition applies equally to all of  


Alaska's citizens."61   Therefore, we concluded, the Board's method of relying on Ahtna  


customs and traditions in calculating the harvestable amount "does not implicate, nor  


violate, the equal access, uniform application, or equal protection clauses of the Alaska  




                         Similarly,   the   community   hunt   permit   condition   that   Manning   is  


challenging in this appeal also does not implicate either equal protection or the equal  


access  clauses.                  The  permit  condition  applies  equally  to  all  Alaskans,  does  not  


meaningfully limit admission to the user group, and does not discriminate between user  


groups. All Alaskans are eligible for a community harvest permit; the only requirements  


            58           Id.  at 102-03.



                         Manning II, 355 P.3d 530, 538 (Alaska 2015).

          Id.  at 532, 536.     

            61           Id.  at 536.   

            62           Id.  

                                                                             -16-                                                                       7252

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

are finding a group of other hunters with whom to collaborate and complying with the                                                             


"applicable   customary   and   traditional   use   pattern."                                                                               

                                                                                                       Any  inconvenience  these  




requirements may pose does not implicate constitutional rights. 


                       Manning attempts to distinguish his argument from our prior holdings by  


emphasizing the racial discrimination aspect of his argument.  He claims that our prior  


cases did not involve allegations of racial discrimination and thus do not address or  


resolve his claim in this appeal.  Manning's argument is inapposite; as discussed above,  


we have already held that the community subsistence hunt regulations apply equally to  


all Alaska residents and do not implicate the equal protection or equal access clauses.  


At least implicit in this holding is a conclusion that the regulations are not racially  


discriminatory, as such discrimination would certainly implicate these clauses. Manning  


therefore cannot avoid our precedent by relying on semantics. Furthermore, in his 2015  


appeal Manning did allege that the community harvest permits racially discriminated in  

                                                                                                     65   Accordingly, Manning's  



violation of the equal protection and equal access clauses. 

challenge to the community harvest permit condition on the basis of the equal protection  


and  equal  access  clauses  is  futile  because  we  have  previously  rejected  identical  


challenges in AFWCF and Manning II .  


            63         5  AAC  92.072(c)(1)(D).  

            64         AFWCF,  347  P.3d  97,   103  (Alaska  2015).   

            65         See   Brief   of   Appellant   at   26,   Manning   II,   355   P.3d   530   (arguing   that  

"requirements   for   eligibility   that   are  based   on   adhering  to Ahtna   racial   customs   and  

traditions   .   .   .  unlawfully  grant  and  provide  a  special p                          reference  priority  granting  new  

aboriginal  rights  in  violation"  of  the  equal  protection  and  equal  access  clauses  (footnote  



                                                                       -17-                                                                  7252

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

                                    2.                Second count in the proposed amended complaint                                                                     

                                    The second count in Manning's proposed amended complaint challenged                                                                                                      

the   constitutionality   of   the   point   system   for   allocating   Tier   II   subsistence   permits.   

Specifically, Manning claimed that the system's consideration of (1) the costs of gas and                                                                                                                                        

groceries in the applicant's community and (2) the annual hunting factor results in a rural                                                                                                                                 

priority, in violation of this court's precedent, equal protection, and the equal access                                                                                                                                

clauses.   However, Manning's opening brief does not assert this argument on appeal.                                                                                                                                                         

Although he does mention this claim superficially in his reply brief, this is not sufficient                                                                                                                     


to correct his failure to initially brief it.                                                                                                                                                                      

                                                                                                              Therefore, we consider this argument forfeited  



and decline to consider it on appeal. 


                                    3.                Third count in the proposed amended complaint  


                                    The third count in Manning's proposed amended complaint challenges the  


constitutionalityofAS16.05.258(c), theprovision ofthesubsistencestatutedirecting the  


Board to identify nonsubsistence areas. Alaska Statute 16.05.258(c) provides a number  


of factors that the Board should consider in making the nonsubsistence determination,  


including the community's economic stability and income sources and levels. Manning  


alleges that this provision violates his equal protection and equal access rights.  He also  


claims that the "exclusion of native villages from the non-subsistence use area criteria[]  


is  unconstitutional  racial  [discrimination]."                                                                                    Manning  appears  to  be  concerned  

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

("[W]here a point is given only a cursory statement in the argument portion of a brief,                                                                                                                         

the point will not be considered on appeal.");                                                                          see also Hymes v. DeRamus                                                  , 222 P.3d 874,             

887-88 (Alaska 2010) (applying waiver rule to pro se litigants).                                                                                                              

                  67                Given our conclusion that Manning has forfeited all arguments related to  


the second count in his proposed amended complaint, we need not consider Ahtna's  


alternative argument that the claims in the second count are not ripe.  


                                                                                                                -18-                                                                                                         7252

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

specifically   with   his   claim   that   "[t]he   entire   Kenai   Peninsula"   is   designated   as   a  

nonsubsistence area.   

                            The superior court correctly determined that addition of this claim would                                                                   

be futile because we rejected this argument over 20 years ago.                                                                            In  State v. Kenaitze     

Indian Tribe               we considered whether AS 16.05.258(c) was constitutional and answered                                                                  

                                         68       In  Kenaitze  Indian  Tribe  the  plaintiff  similarly  challenged  

in   the   affirmative.                                                                                                                                      

AS 16.05.258(c) on the basis of equal protection and equal access.69                                                                                In rejecting this  


challenge,  we  acknowledged  that  residents  of  nonsubsistence  areas  who  wished  to  


subsistence hunt or fish may be inconvenienced by having to travel to a subsistence area  


but concluded that this inconvenience was not sufficient to exclude them from the  


subsistence user group.70   Accordingly, we held that AS 16.05.258(c) did not implicate  


the equal access clauses because it did not bar any Alaskan from participating in any fish  


or game user class.71                          Under this precedent, the addition of count three of Manning's  


proposed amended complaint would be futile.  


                            4.            Motion to add defendant  


                            Givenour conclusion that all ofthecounts in Manning's proposedamended  


              68            894 P.2d 632, 639-42 (Alaska 1995).                              

              69            Id.  at 634.   

              70            Id.  at 640-41.   

              71            Id. at 642.  Although we did not explicitly discuss the challenger's equal  


protection argument, we implicitly rejected this argument by upholding the statute's  


constitutionality in the face of the challenger's equal protection argument and finding  


that the statute did not bar participating in the user class.  Id. at 634, 642; cf. Alaska Fish  


Spotters  Ass'n  v.  State,  Dep't  of  Fish  & Game,  838  P.2d  798,  804  (Alaska  1992)  


(rejecting equal protection challenge to regulation because it "applied equally to all  




                                                                                      -19-                                                                                 7252

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

complaint are futile or forfeited on appeal, his arguments on appeal relating to his motion                                                                                    

to add Ted Spraker as a defendant are moot. And to the extent that Manning's argument                                                                                     

that Spraker was "indispensable" was intended to invoke Alaska Civil Rule 19, that rule                                                                                               

does not apply to a plaintiff's attempt to add a party.                                                            Rather, this rule "prescribes when                              

other   parties,   absentees,  and   the   courts   themselves   may   override   the   autonomy   of  

plaintiffs to structure the litigation."                                       72  

                             5.             Due process arguments  


                             Manning also claims that the superior court violated his substantive and  


procedural due process rights by denying his motions to amend and to add a party and  


dismissing the suit with prejudice.  He points to three alleged deficiencies.  First, he  


alleges that by denying the motion to amend the superior court violated the tenet that  


leave to amend should be freely given.  Second, he attacks the court's failure to reissue  


a pretrial scheduling order after we issued our decision in Manning II, which was the  


basis for vacating the prior scheduling order.  Finally, he complains that the superior  


court "sua sponte abruptly" dismissed his suit without waiting for the State or Ahtna to  


file a dispositive motion. He claims that this allegedly premature dismissal deprived him  


of the opportunity to conduct discovery and "present additional . . . material factual  


evidence" and that it "denied [him] witness subpoena review."  


                             These arguments lack merit.  First, the denial of the motion to amend did  


not deprive Manning of due process.  It is true that even if the motion to amend is filed  


after responsive pleadings have been served, leave to amend "shall be freely given when  




                              Clemensen v. Providence Alaska Med. Ctr., 203 P.3d 1148, 1154 n.32  


(Alaska 2009).  

                                                                                           -20-                                                                                            7252  

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


justice so requires."                        However, the superior court does not abuse its discretion in                                                         

nevertheless denying the motion "if an amendment would be futile because it 'advances                                                             

                                                                                               74   Here, the superior court denied the  

 a claim . . . that is legally insufficient on its face.' "                                                                                                     

motion on precisely this basis after it concluded that each of the counts in the proposed  


 amended complaint would be futile. For the reasons discussed above, this denial was not  


 an abuse of discretion and therefore did not violate Manning's due process rights.  


                          Next, with regard to the scheduling order, Alaska Civil Rule 16(b) requires  


 a court to issue a pretrial scheduling order "as soon as practicable but in any event within  


 90 days after the appearance of the defendants or pursuant to a local uniform pretrial  


 order."          Here,  the superior  court complied with  this directive and  issued  a pretrial  


 scheduling order in January 2014, less than 90 days after Ahtna's appearance in the case.  


But  the  court  later  vacated  this  order  and  stayed  the  case  pending  our  decision  in  


Manning II ; it also repeatedly extended the stay to allow Manning additional appeal  


 opportunities in the pending case.  Manning generally supported this course of action,  


though he advocated staying the pretrial order rather than vacating it. The day before the  


 stay  expired,  Manning  filed  a  motion  to  amend  his  complaint.                                                           After  hearing  oral  


 argument, the superior court denied the motion to amend.  Days later, Manning moved  


to voluntarily dismiss his complaint.  Given this series of events, the superior court had  


no opportunity or need to issue a new pretrial scheduling order. Its failure to issue a new  


 scheduling order did not deprive Manning of due process.  


                          Finally, we reject Manning's argument regarding the lack of a dispositive  


motion prior to dismissal.   Manning himself moved to voluntarily dismiss his 2013  


             73           Alaska R. Civ. P. 15(a).                       

             74           Krause v. Matanuska-Susitna Borough                                          , 229 P.3d 168, 176-77 (Alaska                  


2010) (quoting Hallam v. Alaska Airlines, Inc., 91 P.3d 279, 287 (Alaska 2004)).  

                                                                               -21-                                                                         7252

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

 complaint because he conceded that our opinions had "resolved numerous claims in this                                                                                                                                                                                                                                                                                                                                                                                                      

 case" and because the superior court had denied his motion to amend.                                                                                                                                                                                                                                                                                                                                                                  The court's   

 dismissal order therefore simply acknowledged what all the parties appeared to agree to                                                                                                                                                                                                                                                                                                                                                                                                             

-  that the claims in Manning's original complaint were futile under our precedents.                                                                                                                                                                                                                                                                                                                                                                                                                               

Moreover,  Manning   had   an   opportunity   to   argue   that   the   complaint   should   not   be  

 dismissed on the grounds asserted by the State and Ahtna.                                                                                                                                                                                                                                                                                            Accordingly, the superior                                                                                 


 court's dismissal with prejudice did not violate Manning's right to due process.                                                                                                                                                                                                                                                                                                                                                                                                        

                                       B.	                                   The Superior Court Did Not Err In Denying The State's Motion For                                                                                                                                                                                                                                              

                                                                             Attorney's Fees Because Manning's Claims Were Not Frivolous.                                                                                                                                                                                                                                                                               

                                                                             The State cross-appeals the superior court's denial of its motion for 20%  

 of its attorney's fees, totaling $3,479.                                                                                                                                                                                       The superior court denied this motion after it                                                                                                                                                                                                                         

 concluded that the constitutional litigant exception exempted Manning from an adverse                                                                                                                                                                                                                                                                                                                                                                              

 fee award.                                                   On appeal, the State counters that this exception does not apply to Manning                                                                                                                                                                                                                                                                                                                   

because his claims were frivolous.                                                                                                                                                                      

                                       75                                    Wehavemade an effort to identify and discuss each of the arguments                                                                                                                                                                                                                                                                                                                               raised  

by Manning on appeal.                                                                                                                 However, much of Manning's briefing is difficult to follow, so                                                                                                                                                                                                                                                                                               

 some arguments may have been overlooked.                                                                                                                                                                                                                         To the extent that Manning is attempting                                                                                                                                        

to challenge the process by which the regulations he is challenging were enacted, we                                                                                                                                                                                                                                                                                                                                                                                                          

 decline to consider this argument because it was not argued in the superior court or                                                                                                                                                                                                                                                                                                                                                                                                             

 included in the statement of points on appeal, and it was argued on appeal for the first   

time in a reply brief.                                                                                                  Manning also appears to challenge the superior court's failure to                                                                                                                                              

 consider certain allegedly relevant evidence.                                                                                                                                                                                                                    However consideration of such evidence                                                                                                                                                    

 is not necessary if the claims in the proposed amended complaint are facially futile.                                                                                                                                                                                                                                                                                                                                                                                                                             

Finally, Manning's reply brief cites some allegedly inappropriate comments that the                                                                                                                                                                                                                                                                                                                                                                               

 superior court made at various points during the case and argues that, collectively, they                                                                                                                                                                                                                                                                                                                                                                                              

 deprived him of a "fair, neutral, unbiased, and impartial tribunal."                                                                                                                                                                                                                                                                                                                      We similarly do not                                                                                

 consider this argument because it is raised for the first time in a reply brief and is                                                                                                                                                                                                                                                                                                                                                                                                             

 inadequately briefed.   

                                                                                                                                                                                                                                             -22-	                                                                                                                                                                                                                                   7252

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

                        Generally, in a case (such as this) that is resolved without trial and without                                         

the prevailing party recovering a money judgment, the court is permitted to award the                                                                  

prevailing   party   "20   percent   of   its   actual   attorney's   fees   which   were   necessarily  

                  76       However,   AS  09.60.010  provides  an  exception  shielding  certain  


constitutional litigants from an adverse attorney's fees award.  It requires that a non- 


prevailing litigant satisfy three conditions to qualify for the exception:  (1) the litigant  


must have brought "a civil action or appeal concerning the establishment, protection, or  


enforcement of a right under the United States Constitution or the Constitution of the  


State of Alaska"; (2) "the action or appeal asserting the right was not frivolous"; and  


(3) the litigant "did not have sufficient economic incentive to bring the action or appeal  


regardless of the constitutional claims involved."77  Here, the State offers no argument  


that Manning had an economic incentive to sue, and we accordingly assume that the  


State concedes this requirement is satisfied.  


                        The State's primary argument on appeal is that, even provided that all of  


Manning's claims implicated a constitutional right, he is nonetheless ineligible for the  


exception because all of his claims were frivolous.  The State urges that, at least at the  


time that Manning filed his proposed amended complaint, he knew that all of his claims  


were  either  foreclosed  by  existing  precedent  or  were  identical  to  claims  currently  


pending in his own appeal.  


                        At the outset, we note that we have never conclusively addressed how the  


frivolousness analysis should be conducted - that is, whether it should be conducted on  


a claim-by-claim basis or on a more holistic level.  Similar to our analysis for whether  


            76          Alaska  R.  Civ.  P.  82(b)(2).   

            77          AS  09.60.010(c).  

                                                                          -23-                                                                          7252  

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


a claim implicates a constitutional right,                                   we conclude that frivolousness should be                               


evaluated   on   a   claim-by-claim   basis.                                                                                             

                                                                           As  applied  here,  this  framework  requires  


individually  determining  whether  each  claim  in  Manning's  initial  complaint  and  


proposed amended complaint was frivolous and awarding fees only for the work that was  


attributable to any frivolous claim(s).  


                        To assess whether each of Manning's claims is frivolous requires first  


defining the parameters of the term "frivolous."  The statute does not define this term,  


and  we  have  not  previously  defined  its  meaning  in  the  specific  context  of  the  


constitutional litigant exception.  But we find instructive our interpretation of this term  


in the context of Alaska Civil Rule 11 sanctions, which can be imposed on a party whose  

                                                                 80   We have explained that Rule 11 imposes an  


filings contain frivolous arguments. 

objective  standard  of  reasonableness  and  "should  not  be  used  to  'stifle  creative  


            78         See Manning II              , 355 P.3d 530, 539-40 (Alaska 2015);                                Lake & Peninsula     

Borough v. Oberlatz                 , 329 P.3d 214, 227-28 (Alaska 2014).                                 

            79          The federal courts, in interpreting the federal analogue to the constitutional  


litigant exception, have also assessed frivolousness on a claim-by-claim basis.  See Fox  


v.  Vice,  563 U.S. 826, 840-41 (2011) ("In a suit . . . involving both frivolous and  


non-frivolous  claims,  a  defendant  may  recover  the  reasonable  attorney's  fees  he  


expended  solely  because  of  the  frivolous  allegations.");  Harris  v.  Maricopa  Cty.  


Superior Court, 631 F.3d 963, 971-72 (9th Cir. 2011); Quintana v. Jenne, 414 F.3d  


 1306, 1311-12 (11th Cir. 2005).  


            80         Alaska R. Civ. P. 11(b)(2) (stating that by submitting a pleading, motion,  


or other paper to the court an attorney or unrepresented party certifies that it contains  


"claims  .  .  .  and  other  legal  contentions  .  .  .  warranted  by  existing  law  or  by  a  


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


establishing  new  law");  see,  e.g., Alaska  Bldg.,  Inc.  v.  Legislative  Affairs  Agency ,  


403 P.3d 1132, 1136-39 (Alaska 2017).  


                                                                        -24-                                                                   7252

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


advocacy' or 'chill [a litigant's] enthusiasm in pursuing factual or legal theories.' "                                                                 In  

most cases, then, a claim should not be considered frivolous unless the litigant has                                                                   

                                                     82                                                                                       83  

                                                         or "exhibited an improper or abusive purpose."                                             

"abused the judicial process"                                                                                                

                        Applying these principles, we conclude that none of the claims in either  


Manning's original complaint or the proposed amended complaint are frivolous.  The  


two  complaints  contain  the  same  three  primary  claims:                                                  (1)  the  requirement  that  


community harvest permit holders observe the customs and traditions of the community- 


based  pattern  of subsistence hunting  violates the federal and state equal protection  


clauses, the equal access clauses of the Alaska Constitution, the public trust doctrine, the  


Extinguishment Clause of ANCSA, and the Alaska Statehood Act; (2) some of the  


criteria considered in allocating Tier II subsistence permits - the cost of groceries and  


gasoline and the annual hunting factor - violate the federal and state equal protection  


clauses and the equal access clauses of the Alaska Constitution; and (3) the criteria used  


to establish nonsubsistence hunt areas violate the federal and state equal protection  




                        With  regard  to  the  first  count,  no  aspect  of  this  claim in  the  original  


complaint was frivolous  because the complaint was filed in  2013,  long  before our  


opinions rejecting similar claims were issued in 2015.84  And we interpret the same claim  


            81          Alaska  Bldg.,  403  P.3d  at  1136  (quoting  Enders  v.  Parker,  125  P.3d  1027,  

 1032  (Alaska  2005)).   

            82          Id.  at   1137  (quoting  Cooter  &  Gell  v.  Hartmarx  Corp.,  496  U.S.  384,  396  


            83          Id.  

            84          Manning II,  355 P.3d 530, 536, 538 (Alaska 2015); AFWCF, 347 P.3d 97,  


 102-03 (Alaska 2015).  


                                                                           -25-                                                                    7252

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

in Manning's proposed amended complaint as a good-faith argument for modification                                                                   


to existing law that does not evince an improper                                                                                purpose.                                                                      

                                                                                                                                                              Therefore, though we  


conclude that the claims are now futile, we decline to characterize them as frivolous.  


                                 As for the second count, the annual hunting factor for awarding Tier II  

                                                                                                                                                                    86  and we have never  


subsistence permits is a relatively recent addition to the regulations, 

previously considered the validity of this factor.   Accordingly, Manning's argument  


pertaining to the annual hunting factor is not frivolous. And though we have previously  


rejected a challenge to the consideration of the cost of groceries and gasoline,87 we again  


interpret Manning's argument on this factor as a good-faith argument for modification  


to our precedent.  Finally, we also interpret the third count, the challenge to the criteria  


for establishing nonsubsistence areas, as another good-faith argument for modification  


of existing law.88  


                 85              See Alaska Bldg.                           , 403 P.3d at 1135 (indicating that Rule 11 authorizes                                                          

sanctions if a party's pleading is frivolous, i.e., not " 'warranted by existing law or a                                                                                                                  

good faith argument' for changing the law" (quoting                                                                               Cooter & Gell                       , 496 U.S. at 399));             

see also id.                 at 1136 (declining to label a claim "frivolous" merely because it had little                                                                                                 

likelihood of success under existing law).                                                 

                 86              The annual hunting factor - subsection (a)(3) - was added to 5 AAC  



92.070 in 2007.  


                 87              Manning I  , 161 P.3d 1215, 1224-25 (Alaska 2007).                                                              

                 88              In addition to arguing that Manning's claims were frivolous, the State also  


argues that his claims did not implicate a constitutional right.                                                                                         However, this argument               

appears premised on the State's assertion that Manning's claims were frivolous.  The  


State urges that, though facially they appear constitutional, Manning's claims cannot                                                                                                                

qualify because, at the time they                                                     were raised,                      they were foreclosed                                   by   this court's   

precedent or completely lacking in legal support.  Because we conclude that none of  


Manning'sclaimsarefrivolous,theState's argumentregarding their constitutional nature  


also fails, and we conclude the constitutional right requirement is satisfied.  


                                                                                                      -26-                                                                                               7252

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

                                         In sum, because none of Manning's claims are frivolous, the constitutional                                                                                                               

litigant exception shields him from an adverse attorney's fees award. The superior court                                                                                                                                                                    

accordingly did not abuse its discretion in denying the State's motion for attorney's                                                                                                                                                      



V.                   CONCLUSION  

                                         We AFFIRM the judgment of the superior court.  


                     89                  Because we conclude that the constitutional litigant exception applies to  


Manning, we do not address the State's argument for an enhanced attorney's fees award.  


                                                                                                                                -27-                                                                                                                                     7252  

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