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Alaska v. United Cook Inlet Drift Ass'n. (5/12/95), 895 P 2d 947
NOTICE: This opinion is subject to formal 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; (907) 264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court Nos. S-4966/4967
Cross-Appellee, ) Superior Court No.
) 3KN-91-596 CI
) OPINION ON REHEARING
UNITED COOK INLET DRIFT )
ASSOCIATION, KENAI PENINSULA ) [No. 4195 - May 12, 1995]
SPORTSMAN'S ASSOCIATION, )
RONALD COX, TIMOTHY MOORE, )
and HENRY WOJTUSIK, )
NINILCHIK TRADITIONAL )
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Charles K. Cranston, Judge.
Appearances: Lauri J. Adams, Sarah E.
Gay and Jenifer A. Kohout, Assistant
Attorneys General, Anchorage, Charles E.
Cole, Attorney General, Juneau, for
Appellant/Cross-Appellee. Eric Smith,
Anchorage, for Appellee/Cross-Appellant.
Michael A. D. Stanley, Juneau, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
[Burke, Justice, not participating.*]
In McDowell v. State, 785 P.2d 1 (Alaska 1989), this
court determined that the preference given to rural residents
under Alaska's subsistence laws to harvest Alaska's fish and game
resources violated sections 3, 5, and 17 of article VIII of the
Alaska Constitution. Id. at 9. On remand the superior court
held that the rural preference provisions were severable from the
remaining subsistence provisions. The Attorney General's office
subsequently advised the Alaska Department of Fish and Game and
the Joint Boards of Fisheries and Game that where harvestable
surpluses of a stock were sufficient to satisfy all subsistence
uses of that stock, any Alaskan who desired to participate in the
subsistence use of that fish or game stock was eligible to do so.
On October 28, 1990 the Joint Boards of Fisheries and
Game adopted Policy Statement No. 90-18-JB, on the premise that
they had "no other option than to apply the standard that all
Alaskans are now eligible subsistence users under Tier I during
the upcoming regulatory cycle." Pursuant to this "all-Alaskan"
policy, the Board of Fisheries adopted regulations that codified
subsistence salmon fishery management plans for coho salmon in
Cook Inlet's Southern District and for all salmon species in the
Northern and Central Districts. See 5 Alaska Administrative Code
(AAC) 01.596 (repealed 1993); 5 AAC 01.598 (repealed 1993).
Prior to the scheduled effective date of these
regulations, United Cook Inlet Drift Association (UCIDA) filed
suit seeking declaratory and injunctive relief regarding 5 AAC
01.596 and 5 AAC 01.598. UCIDA sought a declaration that the
regulations were invalid and unenforceable "because they are
based on a policy statement of the Board of Fisheries that in
another action has been held invalid and of no force and effect."1
The prior action to which UCIDA refers is Morry v.
State, No. 2BA-83-87 Civ. (Alaska Super., May 23, 1991), in which
Judge Michael I. Jeffery issued a partial final judgment pursuant
to Alaska Civil Rule 54(b). This partial final judgment provided
in relevant part:
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that any policy statement by the
Joint Boards of Fisheries and Game, or the
Board of Game individually, declaring that
"all Alaskans are now eligible subsistence
users" is invalid and of no force and effect
unless interpreted to mean that "all Alaskans
are eligible to be considered subsistence
users" if, prior to the subsistence hunting,
their individual use of the fish or game
meets criteria for "noncommercial, customary
and traditional" subsistence uses of the
particular fish and game population being
harvested, under criteria established by
regulation such as 5 AAC 99.010(b). McDowell
v. State, 785 P.2d 1, 11 (Alaska 1989).
The Ninilchik Traditional Council (Ninilchik) moved to
intervene in the present action, contending that the challenged
regulations adversely affected the subsistence lifestyle and
culture of its members. Ninilchik's motion was subsequently
In its decision, the superior court concluded that the
same all-Alaskan policy statement being challenged in this case
had been previously considered and held invalid in Morry. The
superior court observed that Judge Jeffery's invalidation of the
all-Alaskan policy was not confined to the facts of Morry. The
superior court further held that it was bound by application of
the doctrine of collateral estoppel to follow Judge Jeffery's
ruling invalidating the all-Alaskan policy.3 Based on Judge
Jeffery's ruling, the superior court granted final judgment to
UCIDA on Count I of its complaint:
5 AAC 01.596 and .598 are declared
invalid for the reason that the state is
collaterally estopped from asserting their
validity because of the decision of [Judge
Jeffery] in Morry v. State, 2BA-83-87 Civ.,
in which that court invalidated the Alaska
Board of Fisheries and Game's policy that
"all-Alaskans [sic] are eligible to
participate in subsistence uses."
Following the entry of final judgment, both UCIDA and
Ninilchik moved for awards of full attorney's fees on the ground
that they were public interest litigants. The superior court
denied the motions for full fees, but awarded partial fees of
$4,237.50 to UCIDA and $3,206.25 to Ninilchik.
The State has appealed from the superior court's
invalidation of the "all-Alaskan" policy. Ninilchik has
cross-appealed from the superior court's refusal to award it full
reasonable attorney's fees on the basis of its status as a public
II. NON-MUTUAL COLLATERAL ESTOPPEL
A. Standard of Review
This court is not bound by the superior court's
resolution of questions of law. Rather we will adopt the rule of
law that is most persuasive in light of precedent, reason, and
policy. Ford v. Municipality of Anchorage, 813 P.2d 654, 655
(Alaska 1991). The applicability of collateral estoppel to a
particular set of facts is a question of law subject to
independent review. Rapoport v. Tesoro Alaska Petroleum Co., 794
P.2d 949, 951 (Alaska 1990).
The parties disagree on whether the disputed legal
issue underlying the State's appeal is moot. Judge Jeffery's
ruling in Morry invalidating the "all-Alaskan"policy was later
overruled in State v. Morry, 836 P.2d 358 (Alaska 1992).
Therefore, UCIDA and Ninilchik contend that the superior court's
judgment in this case is now moot.5 The State argues that even
if we conclude that the non-mutual offensive collateral estoppel
issue is technically moot, we still should consider it under our
discretionary review authority.
This case is not moot. The underlying judgment of the
superior court exists until it is vacated by the superior court
or vacated or reversed by this court. We do so in this case
based on our decision in Morry.
The question that may be moot is the propriety of using
non-mutual collateral estoppel against the State. As to this
question, we think the State's arguments are persuasive.
Assuming this aspect of the case has been mooted by subsequent
developments, we conclude that the question of the application of
non-mutual collateral estoppel against the State should be
addressed under the public interest exception to the doctrine of
C. Application of Non-Mutual Offensive Collateral
Estoppel Against the State7
There are three requirements for application of
(1) The plea of collateral estoppel must
be asserted against a party or one in privity
with a party to the first action;
(2) The issue to be precluded from
relitigation by operation of the doctrine
must be identical to that decided in the
(3) The issue in the first action must
have been resolved by a final judgment on the
Murray v. Feight, 741 P.2d 1148, 1153 (Alaska 1987). Although we
have abandoned the requirement of mutuality of parties, we have
stated that "[i]f the particular circumstances of the prior
adjudication would make it unfair to allow a person who was not a
party to the first judgment to invoke . . . collateral estoppel
then the requirement of mutuality must still be applied."
Pennington v. Snow, 471 P.2d 370, 377 (Alaska 1970), limited on
other grounds by Kott v. State, 678 P.2d 386, 391-93 (Alaska
1984) (declining to abandon mutuality requirement in criminal
cases); see also Pruitt v. State, Dep't of Pub. Safety, 825 P.2d
887, 890 (Alaska 1992).
1. The Mendoza Exception
The State concedes that the three requirements for the
application of collateral estoppel identified in Murray are
present in the instant case.8 The State initially argued,9
however, that considerations of basic fairness and the policy
reasons endorsed by the U.S. Supreme Court in United States v.
Mendoza, 464 U.S. 154 (1984), support a reversal of the superior
court's application of non-mutual offensive collateral estoppel
against the State.
We decline to adopt the Mendoza exception which would
preclude in all cases, the offensive use of collateral estoppel
against the State. The exception to this doctrine which the
Mendoza court created was one especially fashioned for the
federal government as a litigant.10 In Mendoza the U.S. Supreme
Court identified the following factors that militated against
application of non-mutual offensive collateral estoppel against
the United States government:
(1) the desirability of "permitting
several courts of appeals to explore a
difficult question before this Court grants
(2) the government's need for
flexibility in determining when to appeal;
(3) the importance of preserving policy
choices for successive administrations.
Id. at 160-61.
We think UCIDA's and Ninilchik's arguments
distinguishing state litigation from federal litigation in the
context of these three factors are persuasive. As to the first
factor, they note that in contrast to a federal district court,
the superior court's jurisdiction is statewide,11 and that since a
litigant in Alaska can appeal as a matter of right, there is no
need to let an issue percolate prior to authorizing an appeal.12
Concerning the second factor, the State's attempt to
equate the functions of Alaska's Attorney General with those of
the United States Solicitor General does not withstand scrutiny.
Unlike the Solicitor General, Alaska's Attorney General
essentially litigates in a single jurisdiction and is faced with
a much smaller volume of litigation. Consequently, the need to
authorize appeals of only the strongest cases is not as
compelling as it is in the diverse federal judicial system.
As to the third Mendoza factor, preserving policy
choices for successive administrations, we agree with UCIDA and
Ninilchik that this factor does not carry significant weight.
Given the wide variety of options a new state administration has
in regard to pursuing its own policy initiatives, we are not
persuaded that this factor compels adoption of the Mendoza
exception.13 We conclude that the State's argument for adoption
of the Mendoza exception for the state government to the
application of nonmutual collateral estoppel should be rejected.
2. The Exception for Unmixed Questions of Law
Alternatively, the State contends on rehearing that the
weight of authority as well as sound policy justifications
support the adoption by this court of a limited exception to the
application of collateral estoppel against the State on "unmixed
questions of law."14 We agree.
The Restatement (Second) of Judgements 29(7) (1982)
states that even when all the prerequisites for non-mutual
collateral estoppel are present, a party should be permitted to
relitigate an issue if it "is one of law and treating it as
conclusively determined would inappropriately foreclose
opportunity for obtaining reconsideration of the legal rule upon
which it was based."15 Such reconsideration would be appropriate,
for example, where independent developments in the area of law at
issue call into question the legal underpinning of the earlier
rule.16 Alternatively, application of a prior rule to an
unanticipated factual circumstance may illuminate an area of law
and suggest an alternative formulation of the rule as the wiser
course.17 The exception is also appropriate where strict
application of the bar of collateral estoppel might foreclose the
highest court of the state from performing its function of
developing the law. This consideration is especially applicable
as to questions of general interest such as that presented in
this case, eligibility to participate in subsistence hunting and
The official commentary to this section of the
Restatement notes that "it is also pertinent that the party
against whom the rule of preclusion is to be applied is a
government agency responsible for continuing administration of a
body of law applicable to many similarly situated persons."
Restatement (Second) of Judgements 29 cmt. i (1982). Thus the
Restatement recognizes the unique position of the states amongst
litigants in their respective court systems. First, the State is
the most frequent litigator and it is therefore most likely to be
bound by collateral estoppel if the rule were strictly enforced.19
Second, in pursuing litigation the State has a duty to consider
not only its own best interests but also obtaining an outcome
which is both in the public's interest and equitable to the
parties involved.20 Because the State is often required to
litigate the same legal issue against numerous parties in
different factual contexts, achieving these ends of substantial
justice may require the State to argue that different legal rules
ought to be applied in different cases.21
The adoption of this exception to collateral estoppel
does not result in the absence of any restraints on the State's
ability to advance inconsistent legal arguments in different
cases. As noted by both the State and the authors of the
Restatement, the judicial doctrine of stare decisis accords the
prior holdings of the highest courts of this State precedential
value while still permitting the reconsideration of legal issues
when conditions warrant.22 Thus, the State will generally be
bound by the prior resolution of a particular legal issue if it
attempts to raise the issue again against a different party.
Additionally, as is made clear in Montana v. United States, 440
U.S. 147, 162 (1979), this exception only applies where the two
cases involve "unrelated subject matter."23 This limitation
assures both that individuals who have litigated an issue against
the State will obtain a degree of repose, and that finality is
achieved with respect to a law's application to a particular set
Although one of the preeminent values which the legal
system seeks to obtain -- and one of the primary justifications
for the application of collateral estoppel24 -- is consistency, it
should not come at the cost of obtaining substantial justice in
individual cases or stunting the evolution of legal doctrine. We
believe the more flexible approach we adopt today strikes the
proper balance between these conflicting ends. We therefore hold
that the parties may not bar the State from relitigating "unmixed
questions of law"through the use of collateral estoppel.
The superior court's entry of final judgment on Count I
of UCIDA's complaint is reversed based on State v. Morry, 836
P.2d 358 (Alaska 1992). We have considered and rejected the
State's contention that it should be exempted from application of
the doctrine of non-mutual offensive collateral estoppel.
However, we hold that the State is permitted to relitigate
unmixed questions of law so long as the subject matter of the
second case is "substantially unrelated"to that of the first.
Whether Ninilchik is a public interest litigant entitled to
recover full reasonable attorney's fees against the State is a
moot question, since, in view of our disposition herein, the
State was the prevailing party and public interest litigants who
are not prevailing parties are not entitled to an award of
* Justice Burke participated in the original oral
argument and decision of this case, but has since resigned from
the court and did not participate in the rehearing of this
1 In its superior court complaint UCIDA also asserted
that the regulations were invalid because they were inconsistent
with existing subsistence statutes and were not adopted in
conformity with the Administrative Procedure Act, AS 44.62.
After the complaint was filed the superior court issued
a temporary restraining order prohibiting the State from
implementing the Upper Cook Inlet Subsistence Management Plan, 5
AAC 01.598. The State then petitioned for review. We granted
the petition and reversed because the superior court had failed
to consider the potential injury to subsistence users that would
result from issuance of a T.R.O., and on the further ground that
AS 16.05.258(c) granted a preference to subsistence users over
commercial users. State v. United Cook Inlet Drift Ass'n, 815
P.2d 378, 379 (Alaska 1991).
2 The superior court concluded that Ninilchik met
requirements for intervention set out in Civil Rule 24(a) and
State v. Weidner, 684 P.2d 103, 113-14 (Alaska 1984).
3 In so holding the superior court determined that UCIDA
met requirements for application of the doctrine of collateral
estoppel identified in Murray v. Feight, 741 P.2d 1148, 1153
(Alaska 1987). The superior court further concluded that the
State was afforded a full and fair opportunity to litigate the
validity of the all-Alaskan policy in the Morry case.
4 Ninilchik raised several other issues on cross-appeal,
but has chosen not to pursue them. UCIDA does not appeal from
the denial of full attorney's fees.
5 UCIDA and Ninilchik also note that the legislature
subsequently amended the subsistence laws, Ch. 1, 2d Special
Sess., SLA 1992. "The Cook Inlet subsistence salmon regulations
at issue in this case have been reinstated, and there is now no
case or controversy concerning the all Alaskans policy underlying
6 The test for application of the public interest
exception to the mootness doctrine involves three main factors:
"(1) whether the disputed issues are capable of repetition, (2)
whether the mootness doctrine, if applied, may repeatedly
circumvent review of the issues and, (3) whether the issues
presented are so important to the public interest as to justify
overriding the mootness doctrine." Hayes v. Charney, 693 P.2d
831, 834 (Alaska 1985); see also Peninsula Mktg. Ass'n v. State,
817 P.2d 917, 920 (Alaska 1991). In our view, the State
persuasively demonstrates that the issue here meets all three
requirements for invocation of the public interest exception to
the mootness doctrine.
7 Relitigation of issues that have been litigated and
determined in an earlier action by a final judgment are precluded
by application of collateral estoppel. DeNardo v. Municipality
of Anchorage, 775 P.2d 515, 517 (Alaska), cert. denied, 493 U.S.
922 (1989). Offensive use of collateral estoppel occurs where a
plaintiff seeks to preclude a defendant from relitigating an
issue that the defendant previously litigated unsuccessfully
against the same or a different party. United States v. Mendoza,
464 U.S. 154, 159 n.4 (1984). Defensive use of collateral
estoppel occurs where a defendant seeks to prevent a plaintiff
from relitigating an issue the plaintiff has previously litigated
unsuccessfully in another action against the same or different
8 The State's concession reads in part: "[T]he state was
a party to the prior Morry litigation, the issue of the 'all-
Alaskan' interpretation of the subsistence statute was identical,
and there was a final judgment on the merits in the superior
9 The State argued that we should adopt the Mendoza
exception when we initially heard this case. Pursuant to this
court's order dated March 3, 1994, the State limited its argument
on rehearing to the question of whether we should adopt the
narrower exception to collateral estoppel for unmixed questions
of law. We address this argument infra Part II.C.2.
10 In Mendoza the U.S. Supreme Court stated:
We have long recognized that "the
Government is not in a position identical to
that of a private litigant,"both because of
the geographic breadth of Government
litigation and also, most importantly,
because of the nature of the issues the
Government litigates. It is not open to
serious dispute that the government is a
party to a far greater number of cases on a
nationwide basis than even the most litigious
private entity . . . . Government litigation
frequently involves legal questions of
substantial public importance; indeed,
because the proscriptions of the United
States Constitution are so generally directed
at governmental action, many constitutional
questions can arise only in the context of
litigation to which the Government is a
party. . . .
A rule allowing nonmutual
collateral estoppel against the Government in
such cases would substantially thwart the
development of important questions of law by
freezing the first final decision rendered on
a particular legal issue. Allowing only one
final adjudication would deprive this Court
of the benefit it receives from permitting
several courts of appeals to explore a
difficult question before this Court grants
464 U.S. at 159-60 (citation omitted).
11 AS 22.10.020(b).
12 UCIDA also notes that any potential benefit that Alaska
courts might derive from relitigating legal issues would be
minimal, since superior court opinions are generally unpublished
and therefore not readily available throughout the Alaska
13 Federal courts in New York also have declined to extend
the Mendoza exception to state government, on the ground that the
factors warranting the federal exception did not apply to the
state. See Benjamin v. Coughlin, 708 F. Supp. 570, 573 (S.D.N.Y.
1989), aff'd, 905 F.2d 571, 576 (2d Cir.), cert. denied, 498 U.S.
14 The State limits its argument, and we limit our holding
to "unmixed questions of law." This should be distinguished from
mixed questions of law and fact, which the State concedes it may
be collaterally estopped from relitigating. We decline today to
decide whether this exception ought to apply to private litigants
other than the government.
15 Adopting the Restatement view, the United States
Supreme Court has noted that "when issues of law arise in
successive actions involving unrelated subject matter, preclusion
may be inappropriate." Montana v. United States, 440 U.S. 147,
162 (1979). The weight of authority amongst state courts which
have considered the issue also favors our adoption of an
exception for unmixed questions of law. See City of Sacramento
v. State, 785 P.2d 522, 528-29 (Cal. 1990); Revenue Cabinet v.
Samani, 757 S.W.2d 199, 202 (Ky. App. 1988); Torres v. Village of
Capitan, 582 P.2d 1277, 1281 (N.M. 1978); McGrath v. Gold, 330
N.E.2d 35, 38 (N.Y. 1975); Southcenter v. National Democratic
Policy Comm., 780 P.2d 1282, 1285 (Wash. 1989) ("relitigation of
an important issue of law should not be foreclosed by collateral
estoppel"). But see In re Trusts Created by Hormel, 504 N.W.2d
505, 510 (Minn. App. 1993).
16 This might result from a statutory change, the adoption
of new administrative regulations, or as the result of an
appellate decision. See, e.g., Commissioner of Internal Revenue
v. Sunnen, 333 U.S. 591, 599-600 (1948) (preclusion should be
limited to such situations "where the controlling facts and
applicable legal rules remain unchanged. . . . [A] judicial
declaration intervening between the two proceedings may so change
the legal atmosphere as to render the rule of collateral estoppel
inapplicable."); Del Rio Distrib., Inc. v. Adolph Coors Co., 589
F.2d 176, 179 (5th Cir.) (held that an antitrust defendant was
not precluded from relitigating an issue that had been resolved
according to precedent that had subsequently been overruled by
the Supreme Court), cert. denied, 444 U.S. 840 (1979).
17 Like the Restatement, we choose not to create an
exhaustive list of circumstances in which collateral estoppel
would not apply, but rather leave it to the trial court's
discretion to determine when such an opportunity would be
appropriate. Restatement (Second) of Judgements 29 cmt. b
(1982) ("What combination of circumstances justifies withholding
preclusion is a matter of sound discretion, . . . ."); see also,
Consumers Lobby Against Monopolies v. Public Utilities Comm'n,
603 P.2d 41, 47 (Cal. 1979) ("when the issue is a question of law
rather than of fact, the prior determination is not conclusive
either if injustice would result or if the public interest
requires that relitigation not be foreclosed").
18 Concerning this rationale, Restatement (Second) of
Judgments 29 cmt. i (1982) states:
If the rule of issue preclusion is applied,
the party against whom it is applied is
foreclosed from advancing the contention that
stare decisis should not bind the court in
determining the issue. Correlatively, the
court is foreclosed from an opportunity to
reconsider the applicable rule, and thus to
perform its function of developing the law.
This consideration is especially pertinent
when there is a difference in the forums in
which the two actions are to be determined,
as when the issue was determined in the first
action by a trial court and in the second
action will probably be taken to an appellate
court; when the issue was determined in an
appellate court whose jurisdiction is
coordinate with or subordinate to that of an
appellate court to which the second action
can be taken; or when the issue is of general
interest and has not been resolved by the
highest appellate court that can resolve it.
19 The State also argues that strict application of
collateral estoppel would force it to appeal cases which it might
otherwise not appeal simply because there was an unfavorable
legal ruling which might bind it in future litigation. This
would occur, for example, where the State was the prevailing
party on the main issue but lost on a secondary issue, where the
parties would otherwise be able to reach a post-judgment
settlement in lieu of an appeal, or where the equities of the
individual case did not otherwise merit the pursuit of an appeal.
20 See Public Defender Agency v. Superior Court, 534 P.2d
947, 950 (Alaska 1975) ("Under the common law, an attorney
general is empowered to bring any action which he thinks
necessary to protect the public interest, and he possesses the
corollary power to make any disposition of the state's litigation
which he thinks best.") (citation omitted).
21 See Geoffrey C. Hazard, Jr., Preclusion as to Issues of
Law: The Legal System's Interest, 70 Iowa L. Rev. 81, 92 (1984).
22 Restatement (Second) of Judgements 29 cmt. i (1982)
("When the issue involved is one of law, stability of decision
can be regulated by the rule of issue preclusion or by the more
flexible rule of stare decisis."); see also Pratt & Whitney
Canada, Inc. v. Sheehan, 852 P.2d 1173, 1175 (Alaska 1993)
("stare decisis is a practical, flexible command that balances
our community's competing interests in the stability of legal
norms and the need to adapt those norms to society's changing
23 For example, in United States v. Stauffer Chem. Co.,
464 U.S. 165 (1984), the E.P.A. sought to enforce an
administrative warrant authorizing private contractors to enter a
Stauffer facility. At issue was the question of whether a
private contractor was an "authorized representative" under
114(a)(2) of the Clean Air Act. The E.P.A. had previously
litigated the same issue against Stauffer in a different federal
circuit. The U.S. Supreme Court held that the federal government
was collaterally estopped from bringing the second action against
the same party where the two actions involved essentially similar
facts. The court noted that whatever the policy arguments in
favor of allowing the government to relitigate the issue
"applying an exception to the doctrine of mutual defensive
estoppel in this case would substantially frustrate the
doctrine's purpose of protecting litigants from burdensome
relitigation and of promoting judicial economy." Id. at 172.
24 Professor Motomura cites three goals that are commonly
advanced in support of giving collateral estoppel effect to prior
judgments: (1) efficiency, (2) repose, and (3) consistency.
Hiroshi Motomura, Using Judgments as Evidence, 70 Minn. L. Rev.
979, 1003-04 (1986).
25 Though our holding makes the State the prevailing party
in this case, the State cannot recover attorney's fees from
Ninilchik. We have consistently denied awards of attorney's fees
against losing parties who have in good faith litigated issues of
genuine public interest. See Oceanview Homeowners Ass'n v.
Quadrant Constr. & Eng'g, 680 P.2d 793, 799 (Alaska 1984);
Anchorage v. McCabe, 568 P.2d 986, 989-90 (Alaska 1977); Gilbert
v. State, 526 P.2d 1131, 1136 (Alaska 1974).
We have previously rejected arguments that subsistence
use constitutes a private interest sufficient to deny public
interest status. Alaska Survival v. State, Dep't of Natural
Resources, 723 P.2d 1281, 1292 (Alaska 1986). If a litigant
relies on hunting, fishing, and gathering resources "for personal
rather than commercial purposes,"then the party's economic
interests are not so "substantial"that he or she would not
qualify as a public interest litigant. Id. Under Alaska
Survival, Ninilchik satisfies our test for determination of
public interest status.