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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sitka Tribe of Alaska v. State of Alaska, Alaska Department of Fish & Game, and Southeast Herring Conservation Alliance (12/29/2023) sp-7679
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
SITKA TRIBE OF ALASKA, )
) Supreme Court No. S-18114
Appellant, )
) Superior Court No. 1SI- 18-00212 CI
v. )
) O P I N I O N
STATE OF ALASKA, ALASKA )
DEPARTMENT OF FISH & GAME, ) No. 7679 - December 29, 2023
and SOUTHEAST HERRING )
CONSERVATION ALLIANCE, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Sitka, Daniel Schally, Judge.
Appearances: John M. Sky Starkey, Jennifer Coughlin and
Andrew Erickson, Landye Bennett Blumstein LLP,
Anchorage, for Appellant. Kimberly D. Rodgers, Assistant
Attorney General, Anchorage, and Treg R. Taylor, Attorney
General, Juneau, for Appellee State of Alaska. Michael A.
D. Stanley, Juneau, for Appellee Southeast Herring
Conservation Alliance. Jon K. Tillinghast, Simpson
Tillinghast Sheehan, P.C., Juneau, for Amicus Curiae
Sealaska Corporation.
Before: Winfree, Chief Justice, Carney and Henderson,
Justices, Fabe and Bolger, Senior Justices.*
* Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
----------------------- Page 2-----------------------
[Maassen and Borghesan, Justices, not participating.]
CARNEY, Justice.
WINFREE, Chief Justice, concurring in part.
INTRODUCTION
A tribe claimed that the State's management of a commercial fishery
harmed a subsistence fishery. The tribe alleged that the State violated the subsistence
priority statute and the common use and sustained yield clauses in article VIII, sections
3 and 4 of the Alaska Constitution. It also alleged that the State was misinterpreting
the regulation that controlled the fishery and sought a preliminary injunction to prevent
the State from managing the fishery according to that interpretation during the
upcoming season. The superior court denied the preliminary injunction.
The tribe ultimately prevailed on its statutory and regulatory claim, but
the superior court denied its constitutional claim and its request for attorney's fees. The
tribe appeals, arguing that article VIII, section 4 of the Alaska Constitution requires the
Alaska Department of Fish and Game (the Department) to provide all relevant
information to the Board of Fisheries (the Board); that the tribe did face irreparable
harm warranting a preliminary injunction; and that the tribe was the prevailing party for
purposes of awarding attorney's fees. We affirm the superior court's decisions.
FACTS AND PROCEEDINGS
A. Facts
The Sitka Tribe of Alaska (the Tribe) is a federally recognized Alaska
1
Native tribe located in southeast Alaska. Alaska Natives throughout southeast Alaska
have traditionally relied on harvesting herring eggs for subsistence and cultural
1 Indian Entities Recognized and Eligible to Receive Services from the
United States Bureau of Indian Affairs, 79 Fed. Reg. 4748-4753, 4752 (Jan. 29, 2014);
About Us, SITKA TRIBE ALASKA, https://www.sitkatribe.org/pages/about-us-about-us.
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2 3
purposes. Herring in Sitka Sound is harvested for both subsistence and commercial
4
uses. The different harvesting methods for commercial and subsistence uses pose a
fundamental regulatory challenge. The commercial sac roe herring fishery uses purse
5
seine gear to capture pre-spawn herring. The subsistence fishery collects herring eggs
6
later deposited on hemlock branches and other plants.
Alaska 's Constitution grants extensive powers to the legislature to manage
7
natural resources. The legislature established the Department and granted its
commissioner the authority to "manage, protect, maintain, improve, and extend the fish,
game and aquatic plant resources of the state in the interest of the economy and general
2 THOMAS F. THORNTON ET AL., HERRING SYNTHESIS 17, 49 (2010)
(synthesizing historical and cultural ecological knowledge of southeast Alaska herring).
3 "Subsistence uses" are "noncommercial, customary and traditional uses
of wild, renewable resources by a resident domiciled in a rural area of the state for direct
personal or family consumption as food, shelter, fuel, clothing, tools, or tran sportation,
for the making and selling of handicraft articles out of nonedible by-products of fish
and wildlife resources . . . and for the customary trade, barter, or sharing for personal
or family consumption." AS 16.05.940(34).
4 5 Alaska Administrative Code (AAC) 27.110(b) (2023); 5 AAC 27.195.
5 See 5 AAC 27.195; see also 5 AAC 27.110; 5 AAC 27.160(g); AARON
DUPUIS ET AL., 2022 SOUTHEAST ALASKA HERRING SAC ROE FISHERY MANAGEMENT
PLAN 1-3 (2022), https://www.adfg.alaska.gov/FedAidPDFs/RIR.1J.2022.05.pdf.
6 See LAUREN A. SILL AND MARGARET CUNNINGHAM, THE SUBSISTENCE
HARVEST OF PACIFIC HERRING SPAWN IN SITKA SOUND, ALASKA, 202 1 23 (2021),
https://www.arlis.org/docs/vol1/ADFG/TP/4/TP486.pdf.
7 Alaska Const. art. VIII § 2.
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8
well-being of the state." And the legislature created the Board of Fisheries "for
9
purposes of the conservation and development of the fishery resources of the state."
In fisheries matters the Board acts as "a policy-making agency" and the
Department acts as "a policy-implementing agency."10 The Department relies on the
Board's policy decisions to make in-season decisions about when and where to open
the commercial fishery consistent with the regulations.11 One regulation, 5 AAC
27.195, requires the Department to "distribute the commercial harvest by fishing time
and area if the department determines that it is necessary to ensure that subsistence users
have a reasonable opportunity to harvest the amount of herring spawn necessary for
subsistence uses."12 The Department has never interpreted 5 AAC 27.195 to require an
assessment of the quality and quantity of herring spawn on branches in-season.
Although the Board has "regulatory-making powers," it does not have independent
authority to commission studies or collect scientific information.13 The subsistence
fishery is largely unregulated; except for herring spawn on kelp, no permit is required
or limits imposed on taking herring eggs for subsistence uses in southeast Alaska.14
8 AS 16.05.020(1)-(2); see also 5 AAC 27.059 ("[T]he department may
manage commercial herring sac roe fisheries.").
9 AS 16.05.221(a); see also Grunert v. State, 109 P.3d 924, 937 (Alaska
2005).
10 Johnson v. Alaska State Dep't of Fish & Game , 836 P.2d 896, 901 (Alaska
1991) (discussing management of salmon fisheries).
11 See, e.g., 5 AAC 27.059; 5 AAC 27.190; 5 AAC 27.195. Cf. 5 AAC
27.463.
12 5 AAC 27.195(a)(2).
13 See AS 16.05.241 (granting the Board "regulation-making powers" but
excluding "administrative, budgeting, or fiscal powers"); see also AS 16.05.050
(granting Department commissioner authority "to collect, classify, and disseminate
statistics, data and information").
14 5 AAC 01.710(c); 5 AAC 01.730(a); 5 AAC 01.745.
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Commercial fisheries in southeast Alaska are managed under a
"threshold" management approach.15 The commercial fishing season opens if the
annual expected herring biomass (total weight of herring) exceeds the "threshold,"
which is "the herring biomass needed to meet [the] minimum spawning and/or
allocation requirements."16 The current threshold is 25,000 tons.17 If this threshold is
met, the commercial fishery may open subject to the guideline harvest level.18 The
guideline harvest level is a percentage of the spawning biomass, ranging from 12% to
20% and increasing with the size of the biomass.19
In 2001 the Tribe raised concerns that subsistence harvesters' needs were
being subordinated to commercial demands for marketable roe. Between 2001 and
2009 the Department and the Tribe attempted to collaborate to address this concern.
Finally, in 2012 the Board closed a portion of Sitka Sound to commercial fishing; the
Board expanded the closed area in 2018.20 Despite the expanded commercial closure,
herring spawn in the traditional area was lower than expected and the subsistence
harvest was a record low in 2018. The Department 's scientists attributed the changed
spawning pattern to a number of potential factors, including natural variability,
15 DUPUIS ET AL., supra note 5, at 3.
16 Id.
17 5 AAC 27.160(g) ("The fishery will not be conducted if the spawning
biomass is less than 25,000 tons.").
18 Id. " '[G]uideline harvest level' means the preseason estimated level of
allowable fish harvest which will not jeopardize the sustained yield of the fish stocks."
5 AAC 39.975(a)(27).
19 5 AAC 27.160(g). The Department forecasts the mature biomass, and
calculates and sets the guideline harvest level each year. DUPUIS ET AL., supra note 5,
at 3, 8.
20 Compare 5 AAC 27.150(7) (2012) with 5 AAC 27.150(7) (2018).
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predators, water temperature, and plankton distribution , but they did not identify the
commercial fishery as a primary cause.
After the poor harvest the Tribe and other subsistence users requested an
agenda change for the upcoming Board meeting in October 2018.21 The agenda change
proposed closing the commercial fishery until (1) herring stocks showed "signs of
rebound,"22 (2) there was a better understanding of "herring genetic structure, seasonal
movements, and [the] potential impacts of disturbing herring spawning areas," and
(3) "the amount necessary for subsistence [was] achieved for three consecutive years."
The Department responded that the herring biomass did not appear to have changed
appreciably since the Board last considered the fisheries and the subsistence fishery
likely did not harvest the "amount necessary for subsistence" in 2018 because "the
location of spawning shifted away from typical areas near the city of Sitka to across
Sitka Sound on shores of Kruzof and Krestof islands." The Department advised the
Board that the Tribe had not met the criteria for considering an agenda change: a
conservation concern or compelling new information about the allocation of the
resource among users.23 The Board, with one member dissenting, voted to not consider
the request.
In November representatives of the Tribe and the Department discussed
how to improve herring management. The Tribe submitted a proposed subsistence
management plan to provide guidance to the Department 's in-season manager to delay
the start of the commercial fishery. The Department responded by indicating that
21 The Board "will, in its discretion, change its schedule for consideration of
a proposed regulatory change in response to an agenda change request." 5 AAC
39.999(a).
22 The Tribe cited traditional knowledge "that older, larger herring lead the
younger fish to productive spawning locations, and thus, older herring are vital to
successful spawns and the continued health and sustainability of the herring stock."
23 See 5 AAC 39.999 (providing criteria for granting agenda change request).
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although it was "committed to engagement in collaboration," it could not "commit to
delaying [the] start of the commercial fishery until after spawning has begun."
B. Proceedings
In December 2018 the Tribe filed a complaint for declaratory and
injunctive relief against the State, the Board, and the Department. Relevant to this
appeal the complaint alleged violations of the subsistence priority statute24 and the
common use and sustained yield clauses in the Alaska Constitution.25 The Southeast
Herring Conservation Alliance sought to intervene to "defend the interests of fishermen,
processors and others who participate in and depend on the commercial herring sac roe
fishery in Sitka Sound."
In January 2019 the Tribe moved for a preliminary injunction to prevent
the Department from managing the Sitka Sound herring fishery under its allegedly
flawed interpretation of 5 AAC 27.195 during the coming season. The Tribe claimed
that 5 AAC 27.195 requires the Department to determine "whether it is necessary to
manage the commercial fishery through distribution of commercial harvest by time and
area in order to ensure that subsistence users have a reasonable opportunity to harvest
the amount of herring spawn necessary for subsistence uses," and that this
determination must be based on the Department 's assessment of the quality and quantity
of spawn on branches that is available for subsistence harvest. The Department and the
Alliance argued that the Tribe failed to satisfy either of the standards that authorize a
preliminary injunction because it neither faced irreparable harm or was likely to succeed
24 See AS 16.05.258. The Tribe alleged that the Department "failed to
manage the Sitka Sound commercial and subsistence herring fisheries consistent with
mandatory obligations under 5 [AAC] 27.195." Count I was pled in the alternative: if
the court concluded that the Department was not violating its duties under 5 AAC
27.195, then the Tribe claimed that the Department and the Board violated their
statutory duties to provide a priority for subsistence uses as required by AS 16.05.258.
25 Alaska Const. art. VIII, §§ 3-4.
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on the merits. The Alliance also argued that its members would be harmed if an
injunction were granted.
The superior court denied the Tribe's motion in February, finding that the
Tribe had not demonstrated that it faced irreparable harm and that "[n]either test for
entry of a preliminary injunction" had been satisfied.26
In November the parties filed cross-motions for summary judgment on the
Tribe's claim that the Department did not lawfully interpret and implement 5 AAC
27.195. On March 31, 2020, the superior court granted the Tribe's motion for partial
summary judgment with respect to 5 AAC 27.195(a) and denied the Department's and
the Alliance's cross-motions. The court concluded that "[t]o the extent that ADFG
interprets subsection (a) as requiring the subordination of its duty to distribute the
commercial harvest by time and area to opening the commercial harvest in any way, the
interpretation is unreasonable and inconsistent with the plain language and context of
the regulation." The Tribe subsequently dismissed its claims against the Board.
In November 2020 the superior court granted the Tribe 's renewed motion
for partial summary judgment on its 5 AAC 27.195(b) claim. The court found there
was "no genuine dispute of material fact as to whether" the Department was "unlawfully
implementing 5 AAC 27.195(b) by failing to consider quality of herring spawn 'on
branches, kelp, and seaweed, and herring sac roe' before making required management
decisions under 5 AAC 27.195(a)(2)."
In March 202 1 the superior court issued a third summary judgment order,
denying the Tribe's claim that the Department has a constitutional duty to provide the
26 We denied the Tribe's interlocutory petition for review. Sitka Tribe of
Alaska v. State, Dep't of Fish & Game , No. S-17384 (Alaska Supreme Court Order,
Mar. 27, 2019).
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Board with the best available information.27 The court first found that the Tribe's
argument with respect to the 2019 herring season was moot. It applied the public
interest exception to the mootness doctrine and concluded that there is no best available
information requirement in the Alaska Constitution, and if there were, such a standard
would be non-justiciable. 28
The court issued a final judgment in May 2021, noting that the Tribe
prevailed on its statutory and regulatory claim and the State prevailed on the
constitutional claim and that attorney's fees would be discussed at a later date. The
parties filed cross-motions for Rule 82 attorney's fees, each claiming prevailing party
status. The court "decline[d] to designate any party as the prevailing party" and ordered
that "[a]ll parties shall bear their own attorney's fees and costs."
The Tribe appeals the superior court's denial of its constitutional claim,
its finding that the Tribe would not suffer irreparable harm in the absence of a
preliminary injunction, and its denial of attorney's fees.
STANDARD OF REVIEW
We review questions of constitutional interpretation and summary
judgment rulings de novo.29 We interpret the Alaska Constitution "according to reason,
practicality, and common sense," considering the plain meaning, purpose, and framers'
intent.30
27 In its appeal to us, the Tribe discusses its constitutional argument with
reference to apparently different standards: "best available information," "best
available scientific information," or "all the relevant information." For clarity we use
"all relevant information" in this opinion.
28 Courts use the public interest exception to the mootness doctrine when the
matter is recurrent and important to the public interest but capable of evading review.
Young v. State, 502 P.3d 964, 970 (Alaska 2022).
29 Kohlhaas v. State , 518 P.3d 1095, 1103 (Alaska 2022).
30 Native Vill. of Elim v. State , 990 P.2d 1, 5 (Alaska 1999).
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Decisions to grant or deny a preliminary injunction are generally reviewed
for abuse of discretion, but a decision based on issues of law is reviewed de novo.31 We
will reverse a decision based on a legal conclusion if the court "misinterpreted,
misapplied, or otherwise acted contrary to the law."32 Factual findings are reviewed for
clear error and reversed only "if, after reviewing the entire record, we are left with a
firm and definite conviction that a mistake was made."33 "A court's legal conclusions
about irreparable harm, adequate protection, and the probability of success on the merits
of a claim may represent pure questions of law based on undisputed facts or may involve
mixed questions of fact and law."34 The Tribe's claim that the superior court erred by
concluding it would not face irreparable harm presents a mixed question of fact and
law.35 If the facts underlying a legal conclusion are in dispute, "the court must first
make factual findings to establish the nature and extent of the harm."36
"A superior court's prevailing party determination for purposes of
attorney's fees is . . . reviewed for abuse of discretion."37
DISCUSSION
A. The "Hard Look" Doctrine Already Requires Agencies To Consider
All Relevant Information.
The Tribe argues that the sustained yield clause in article VIII, section 4
of the Alaska Constitution requires the Department to provide all relevant information
31 Alsworth v. Seybert , 323 P.3d 47, 54 (Alaska 2014).
32 State v. Galvin, 491 P.3d 325, 332 (Alaska 2021).
33 Id.
34 Id.
35 See id.
36 Id.
37 Alaska Fur Gallery, Inc. v. First Nat'l Bank Alaska , 345 P.3d 76, 84
(Alaska 2015).
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to the Board. It claims that the sustained yield principle requires the "conscious
application" of "principles of management," which require that "all the relevant
information" be used in the decision-making process.
The Department and the Alliance argue that there is no constitutional duty
to provide all relevant information to the Board and that this is a non-justiciable political
question.
The sustained yield clause in article VIII, section 4 provides that "[f]ish,
forests, wildlife, grasslands, and all other replenishable resources belonging to the State
shall be utilized, developed, and maintained on the sustained yield principle, subject to
preferences among beneficial uses."38 At the constitutional convention, "sustained
yield principle" was used to "denote[] conscious application insofar as practicable of
principles of management intended to sustain the yield of the resource being
managed."39 We have previously acknowledged that "the framers of Alaska's
constitution intended the sustained yield clause to play a meaningful role in resource
management. But at the same time, they believed that calculating a specific numerical
yield for fisheries would be impossible."40 We have concluded that "the sustained yield
clause does not require . . . a specific level of yield for each fish stock" and "does not
mandate the use of a predetermined formula, quantitative or qualitative."41
In Sagoonick v. State we considered whether the State had violated
constitutional natural resource provisions and residents' individual constitutional
38 Alaska Const. art. VIII, § 4.
39 Papers of the Alaska Constitution Convention, 1955-1956, Folder 210,
Terms.
40 Native Vill. of Elim, 990 P.2d 1, 7 (Alaska 1999) (internal citation
omitted).
41 Id. at 7-8 (acknowledging that "much scientific uncertainty exists in
fisheries management").
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rights.42 We affirmed the superior court's denial of injunctive relief, reasoning that
granting an injunction would "infring[e] on an area constitutionally committed to the
legislature, abandoning our 'hard look' standard of review for natural resource
decisions, and disrespecting our coordinate branches of government by supplanting
their policy judgments with our own normative musings about the proper balance of
development, management, conservation, and environmental protection."43 We
reiterated that the "hard look" doctrine applies "[w]hen an executive agency decision
about natural resources is challenged under article VIII."44 In such cases we review the
decision to "ensur[e] that the agency has 'taken a "hard look" at all factors material and
relevant to the public interest. ' "45
The Tribe argues that requiring the Department to provide the Board with
all relevant information is similar, if not identical, to the "hard look" doctrine. The
Alliance responds that "[i]f the question of whether [the Department] has failed to
provide [the best available information] or relevant information to the Board can be
reviewed under an existing cause of action, within an established analytical
framework," then "there is no reason for this court to embrace the Tribe's request to
declare a separate, stand-alone constitutional duty."
As an example of the Department 's alleged failure to provide all relevant
information to the Board, the Tribe asserts that the Department never gave the Board a
report that analyzed the Department's current method of forecasting the abundance of
spawning herring stock, called an age-structured analysis.46 The Department counters
42 503 P.3d 777, 782 (Alaska 2022).
43 Id. at 796.
44 Id. at 788.
45 Id. (quoting Sullivan v. Resisting Env't Destruction on Indigenous Lands
(REDOIL), 311 P.3d 625, 635 (Alaska 2013)).
46 DUPUIS ET AL., supra note 5, at 3-4.
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that "the highly technical . . . report was not particularly relevant and helpful"
information for "the Board's consideration [] of changes to 5 AAC 27.160(g)."
The Department is required to analyze complex information.47 It must
rely on the professional judgment of its staff to determine what information to provide
to the Board.48 At the same time the Department incorporates feedback from the Board,
based on the Board's experience and expertise, to guide the decisions the Department
is required to make. Alaska Statute 16.05.050 grants the Commissioner the
responsibility and discretion "to collect, classify, and disseminate statistics, data and
information."49 Deciding what information is relevant and how it is shared is within
the Department 's discretion.50 As we have previously explained, our role is to :
ensure that the agency "has given reasoned discretion to all
the material facts and issues." The court exercises this
aspect of its supervisory role with particular vigilance if it
"becomes aware, especially from a combination of danger
signals, that the agency has not really taken a 'hard look' at
the salient problems and has not genuinely engaged in
reasoned decision making."[51]
47 See Cook Inlet Fisherman's Fund v. State, Dep't of Fish & Game, 357
P.3d 789, 801 (Alaska 2015) (discussing complexity of Alaska's fisheries).
48 See West v. State, 248 P.3d 689, 701 n.66 (Alaska 2010) (quoting Trustees
for Alaska v. State, Dep't of Nat . Res., 795 P.2d 805, 809 (Alaska 1990) (stating that
"determinations involv[ing] complex subject matter or fundamental policy
formulations" are reviewed "only to the extent necessary to ascertain whether the
decision has a reasonable basis, . . . was not arbitrary, capricious, or prompted by
corruption," and did not "fail[] to consider an important factor in making its decision.")
(internal quotations omitted)).
49 AS 16.05.050(a)(4).
50 See id. (granting Department commissioner discretionary authority "to
collect, classify, and disseminate statistics, data and information").
51 Sagoonick v. State, 503 P.3d 777, 788 (Alaska 2022) (quoting Sullivan v.
REDOIL, 311 P.3d 625, 635 n.46 (Alaska 2013)).
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"When an agency decision . . . involves 'administrative expertise as to
either complex subject matter or fundamental policy formulations,' the reviewing court
need only determine whether the decision had a 'reasonable basis ' " and was not
"arbitrary, capricious, or unreasonable."52 An agency decision is arbitrary if the agency
"fail[ed] to consider an important factor in making its decision ."53
The report the Tribe mentions is an independent scientific analysis of the
Department's current age-structured analysis model by a professor at the University of
British Columbia. The highly technical report primarily consists of equations, charts,
and graphs. It is the type of report that the Department scientists distill into summaries
and other more easily digested formats for the Board and the Department staff. The
report was not directly relevant to the Board's considerations of changes to 5 AAC
27.160(g). It urged changes to the age-structured analysis model to more accurately
forecast biomass and better inform the Department's implementation of 5 AAC
27.160(g), which defines the formula for calculating the guideline harvest level; it did
not suggest changes to the formula itself.
We review agency decisions such as which scientific reports to provide to
the Board "with particular vigilance" to ensure that the agency has taken a "hard look"
at the relevant information.54 "[W]e have often recognized that appeals should
ordinarily not be decided on constitutional grounds when narrower grounds are
52 Denali Citizens Council v. State, Dep't of Nat. Res. , 318 P.3d 380, 385
(Alaska 2014) (first quoting Hammond v. N. Slope Borough , 645 P.2d 750, 758 (Alaska
1982); and then quoting Ninilchik Traditional Council v. Noah , 928 P.2d 1206, 1213
(Alaska 1996)).
53 Sagoonick, 503 P.3d at 803 (quoting Alaska Ctr. for the Env't v. State, 80
P.3d 231, 241 (Alaska 2003)).
54 Id. at 788.
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available."55 The hard look standard already requires the Department to consider
relevant information and "engage [] in reasoned decision making."56 The Department's
decision to not provide the report to the Board was not arbitrary because it was a highly
technical report mostly concerned with computer coding fixes to the biomass
forecasting program. We therefore decline to create a constitutional requirement that
is not in the plain language of article VIII, section 4 of the Alaska Constitution and that
would "infring[e] on an area constitutionally committed to the legislature," which the
legislature has delegated to the Department and the Board.57
B. We Decline To Review The Tribe's Motion For A Preliminary
Injunction Under The Public Interest Exception.
The superior court denied the Tribe's motion for a preliminary injunction
to prevent the Department from using its allegedly flawed interpretation of 5 AAC
27.195 during the 2019 season. On appeal the Tribe argues that the superior court erred
when it found that the Tribe had not demonstrated that it would face irreparable harm
absent a preliminary injunction. Four years have passed since the 2019 season. This
claim is undoubtedly moot. The Tribe concedes that it is moot but urges us to consider
it under the public interest exception.
"Even when a case is moot, we may address certain issues if they fall
within the public interest exception to the mootness doctrine."58 Under the public
interest exception, we consider "(1) whether the disputed issues are capable of
repetition, (2) whether the mootness doctrine, if applied, may cause review of the issues
to be repeatedly circumvented, and (3) whether the issues presented are so important to
55 Alaska Trademark Shellfish, LLC v. State , 91 P.3d 953, 957 (Alaska
2004).
56 Sagoonick, 503 P.3d at 803.
57 See id. at 796; AS 16.05.258; AS 16.05.020.
58 Akpik v. State , 115 P.3d 532, 535 (Alaska 2005).
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the public interest as to justify overriding the mootness doctrine."59 The weight given
to each of these factors is discretionary, and no single factor is dispositive.60 We
exercise our discretion whether to review a moot question.61
The superior court recognized that "[n]o party disputes the importance" of
the subsistence fishery to the Tribe and others but found that "neither test for entry of a
preliminary injunction," the balance of hardships test or the probable success on the
merits test, had been satisfied.62 The Tribe sought a preliminary injunction to prevent
the Department from relying on an interpretation of 5 AAC 27.195 that the court later
agreed was flawed. That issue is not capable of repetition. The now-moot denial of the
Tribe's request for a preliminary injunction does not justify application of the public
interest exception.
C. The Superior Court Did Not Abuse Its Discretion By Declining To
Award Attorney's Fees.
The Tribe argues that the trial court erred by not finding it was the
prevailing party and awarding it attorney's fees. Because it prevailed on its statutory
and regulatory claims, the Tribe claims that "[t]he court erred when it assumed that the
59 Young v. State, 502 P.3d 964, 970 (Alaska 2022) (quoting Fairbanks Fire
Fighters Ass'n, Local 1324 v. City of Fairbanks , 48 P.3d 1165, 1168 (Alaska 2002)).
60 See Ulmer v. Alaska Rest. & Beverage Ass'n, 33 P.3d 773, 778 (Alaska
2001).
61 Fairbanks Fire Fighters Ass'n , 48 P.3d at 1168.
62 "If the plaintiff faces the danger of irreparable harm and if the opposing
party is adequately protected, then we apply a balance of hardships approach in which
the plaintiff must raise serious and substantial questions going to the merits of the case,"
but if the "threatened harm is less than irreparable or if the opposing party cannot be
adequately protected, then we demand of the plaintiff the heightened standard of a clear
showing of probable success on the merits." See Misyura v. Misyura , 244 P.3d 519,
522 (Alaska 2010) (quoting State, Div. of Elections v. Metcalfe, 110 P.3d 976, 978
(Alaska 2005)).
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Tribe's constitutional claim was also a main issue."63 The Department and the Alliance
assert that the constitutional claim was a main issue and the superior court's decision
was not manifestly unreasonable or an abuse of discretion.
Civil Rule 82 provides that "the prevailing party in a civil case shall be
awarded attorney's fees."64 Determining the prevailing party "is committed to the broad
discretion of the trial court,"65 and we review it only for abuse of that discretion.66 "[A]
trial court does not abuse its discretion in refusing to award fees where neither party can
be characterized as the prevailing party."67 The party seeking to overturn a trial court's
decision "has a heavy burden of persuasion."68 "We will not interfere with the trial
court's determination unless it is shown that the court abused its discretion by issuing a
decision which is arbitrary, capricious, manifestly unreasonable, or which stems from
an improper motive."69
The Tribe alleged that the Department violated Alaska's subsistence
statutes and regulations as well as the common use and sustained yield clauses in article
VIII, sections 3 and 4 of the Alaska Constitution. The superior court granted the Tribe
63 The Tribe did not assert that it was a constitutional claimant below. See
AS 09.60.010(c).
64 Alaska R. Civ. P. 82(a).
65 Progressive Corp. v. Peter ex rel. Peter , 195 P.3d 1083, 1092 (Alaska
2008).
66 Id.
67 Schultz v. Wells Fargo Bank, N.A., 301 P.3d 1237, 1242 (Alaska 2013)
(alteration in original) (quoting Chambers v. Scofield, 247 P.3d 982, 989 (Alaska
2011)).
68 Id. at 1241 (quoting W. Airlines, Inc. v. Lathrop Co., 535 P.2d 1209, 1217
(Alaska 1975)).
69 Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979).
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summary judgment on its statutory and regulatory claims and granted the Department
and the Alliance summary judgment on the constitutional claim.
The superior court found that the Tribe's success on its claim that the
Department violated applicable regulations was "an important decision insofar as it
holds the potential to directly alter the allocation of the resource in issue as between
subsistence and commercial users," but the court also found that the constitutional claim
was of substantial importance. The court concluded that because "[n]one of these
parties' victories was on peripheral or unimportant issues [,] [t]he court cannot fairly
conclude that any party, or that either side, bested the others to the degree that it can be
accurately designated as the prevailing party in the case as a whole."
The Tribe has not met its heavy burden of persuasion to show that the
superior court abused its discretion by denying attorney's fees to all parties.
CONCLUSION
We AFFIRM the superior court 's decision.
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WINFREE, Chief Justice, concurring in part.
I write separately to clarify that I agree to affirm the superior court's
attorney's fees decision based solely on the manner in which it was litigated in the
superior court and then presented on appeal. But in my view the Tribe's underlying
1
premise about how AS 09.60.010's "constitutional claimant" framework and Alaska
2
Civil Rule 82 interrelate was mistaken, at least with respect to the State.
Presumably recognizing that it was an unsuccessful constitutional
claimant and thus unable to obtain an AS 09.60.010(c)(1) attorney's fees award against
the State for its constitutional claim, the Tribe contended that Rule 82 applied to the
entire litigation, it had prevailed on what it argued was the main issue - the
statutory/regulatory claim - and it thus was entitled to an award of attorney's fees
based on 20% of its fees incurred in connection with both its statutory/regulatory claim
1 We discussed the history of AS 09.60.010 and then summarized its effect
in Alaska Conservation Found. v. Pebble Ltd. P'ship , 350 P.3d 273, 274 (Alaska 2015),
referring first to benefit under subsection .010(c)(1) and then to protection under
subsection .010(c)(2):
The statute both encourages and protects those
challenging governmental action as a violation of federal or
state constitutional rights. First, the statute provides that a
successful claimant generally is entitled to an award of full
reasonable attorney's fees and costs incurred in connection
with a constitutional claim, unless the claimant had
''sufficient economic incentive'' to bring the claim
regardless of its constitutional nature. Second, the statute
protects an unsuccessful claimant from an adverse attorney's
fees award if the constitutional claim was not frivolous and
the claimant did not have ''sufficient economic incentive''
to bring the claim regardless of its constitutional nature.
2 See Alaska R. Civ. P. 82(a) ("Except as otherwise provided by law or
agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's
fees calculated under this rule.").
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----------------------- Page 20-----------------------
3
and its constitutional claim. The State and the Alliance responded by asking for their
own Rule 82 awards of attorney's fees against the Tribe, claiming that they, and not the
Tribe, had prevailed on all claims. But, giving a nod to AS 09.60.010(c)(2), they
nonetheless agreed that they were required to segregate out their attorney's fees
incurred in defending against the Tribe's constitutional claim. And that is how the
attorney's fees dispute was litigated and presented to the superior court. The parties -
using a pure Rule 82 analysis - disputed (1) whether the statutory/regulatory claim
and the constitutional claim both were main issues, (2) who might be an overall
prevailing party entitled to a fee award, and (3) whether the results essentially were a
wash so that the court should exercise its discretion to simply deny an award. The
superior court ultimately determined that the statutory/regulatory claim and the
constitutional claim both were main issues and that the Tribe prevailed on the former
while the State and the Alliance prevailed on the latter. It then exercised its discretion
to conclude that neither side was the overall prevailing party and no attorney's fees
should be awarded. I cannot fault the superior court for this decision given the way the
issue was presented by the parties.
I nonetheless have two concerns about how the attorney's fees issues were
litigated. The first relates to the Tribe's constitutional claim against the State and the
4
application of AS 09.60.010(c)(1)-(2). The second relates to whether AS 09.60.010(c)
can have any application to the Tribe's constitutional claim to the extent it was opposed
3 See Alaska R. Civ. P. 82(b)(2) (setting schedule for awarding 20% of
actual reasonable attorney's fees in cases resolved without a money judgment and
without trial).
4 See supra note 1.
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----------------------- Page 21-----------------------
by the intervenor-defendant Alliance, perhaps leaving Rule 82 as the controlling
5
authority.
As to my first concern, I believe AS 09.60.010(c)(1)-(2) controls an award
of attorney's fees regarding the resolution of a constitutional claim brought against the
6
State, to the exclusion of Rule 82. As both the State and the Alliance appear to have
recognized in their motion papers - disclaiming the right to any attorney's fees awards
for defending against the Tribe's constitutional claim - the Tribe was a qualified non-
prevailing constitutional claimant entitled to protection against an attorney's fees award
7
in favor of the State with respect to its constitutional claim. That should have been the
end-all for any consideration of the Tribe's constitutional claim for purposes of an
attorney's fees award as between the Tribe and the State. Specifically, I believe it was
legally incorrect for the Tribe to seek Rule 82 attorney's fees against the State for its
unsuccessful constitutional claim and equally incorrect for the State to point to its
successful defense of the Tribe's constitutional claim to support its assertion of overall
prevailing party status.
The Tribe and the State presumably could have asked for a Rule 82 award
against the other for prevailing solely on the Tribe's statutory/regulatory claim. The
superior court ultimately determined that the Tribe's statutory/regulatory claim was a
5 See Vote Yes for Alaska's Fair Share v. Res. Dev. Council for Alaska, Inc.,
___ P.3d ___, Op. No. 7674 at 22-29, 2023 WL 8291474, at *10-13 (Alaska Dec. 1,
2023) (Winfree, C.J., concurring) (suggesting that an attorney's fees award in this
context may be controlled by Rule 82 and not AS 09.60.010).
6 See Krone v. State, Dep't of Health & Soc. Servs. , 222 P.3d 250, 257
(Alaska 2009) (stating that AS 09.60.010 controls attorney's fees award
notwithstanding Rule 82).
7 See AS 09.60.010(c)(2) (regarding protection against award under
subsection .010(c)(1)); Taylor v. Alaska Legis. Affs. Agency, 529 P.3d 1146, 1160
(Alaska 2023) ("A qualified constitutional claimant is entitled to protection under
AS 09.60.010(c)(2) against an attorney's fees award under Rule 82.").
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----------------------- Page 22-----------------------
main issue in the litigation and that the Tribe had prevailed on that issue, which alone
would have precluded a Rule 82 award for the State. But had the Tribe pursued this
tack, it would have been required to eliminate from the equation all of its attorney's
fees devoted solely to its constitutional claim, for which it could not obtain an award
8
against the State as a non-prevailing party under AS 09.60.010(c)(1). It did not do so.
It instead took a different tack in an effort to obtain a Rule 82 award against the State
based on all of its attorney's fees. The issue was presented to the superior court as a
typical Rule 82 discretionary decision made by comparing the relative significance of
the main issue upon which each party had prevailed. Acting on this presentation, the
superior court exercised its discretion to determine that both issues were significant and
the parties' relative successes were a wash. I agree that the superior court did not abuse
its discretion by making that ruling based on the arguments of the parties.
My concern about the application of this framework to the Alliance's
defense of the Tribe's claims is different. I question whether AS 09.60.010(c) can have
any application when two private parties litigate a claim involving constitutional
interpretation. It is beyond dispute that a private party generally has no claim against
9
another private party for an alleged constitutional violation. This suggests that, as to
8 See Manning v. State, Dep't of Fish & Game, 355 P.3d 530, 538-40
(Alaska 2015) (addressing allocation problems arising from litigation involving both
constitutional and non-constitutional claims and the relationship between AS 09.60.010
and Rule 82); see also Meyer v. Stand for Salmon, 450 P.3d 689, 690-91 (Alaska 2019)
(addressing allocation problems arising from litigation involving multiple constitutional
claims when claimant prevails on less than all the claims); id. at 692-93 (Winfree, J.,
concurring) (discussing allocation issues in Manning and Lake & Peninsula Borough
Assembly v. Oberlatz , 329 P.3d 214 (Alaska 2015)).
9 Vote Yes for Alaska's Fair Share, Op. No. 7674 at 22 n.2, 2023 WL
8291474, at *10 n.2 (Winfree, C.J., concurring) (noting long-standing legal principle
that constitutions protect individuals from state action, citing relevant Alaska caselaw,
and querying how private party could be an AS 09.60.010 "constitutional claimant"
against another private party).
-22- 7679
----------------------- Page 23-----------------------
the claims between the Tribe and the Alliance, the parties' Rule 82 analysis about
determining prevailing party status with multiple main issues was correct. But again,
as suggested to the superior court by the Alliance, the superior court determined that
because the Tribe prevailed on one main issue and the Alliance prevailed on the other,
no fee award was warranted. I agree that the superior court did not abuse its discretion
by making that ruling.
I therefore concur with today's decision.
-23- 7679
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