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Eyak Traditional Elders Council v. Sherstone, Inc., Eyak Corporation & Sound Development, Inc. (10/20/95), 904 P 2d 420
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 99501-2084 or call (907) 264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
EYAK TRADITIONAL ELDERS )
COUNCIL, MARIE SMITH JONES, )
GLEN E. LANKARD, JR., PAMELA ) Supreme Court No.
JEAN SMITH, FAYE PAHL and ) S-5844
ROSIE SOPHIE STAREK, )
) Superior Court No.
Appellants, ) 3AN-92-8564 Civil
v. ) O P I N I O N
SHERSTONE, INC., EYAK ) [No. 4273 - October 20, 1995]
CORPORATION and SOUND )
DEVELOPMENT, INC., )
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Mark C. Rowland, Judge.
Appearances: Peter Van Tuyn, Trustees for
Alaska, Anchorage, for Appellants. James D.
Linxwiler and Gregory G. Silvey, Guess &
Rudd, Anchorage, for Appellees.
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
MOORE, Chief Justice, with whom EASTAUGH,
Justice, joins, dissenting.
The Eyak Traditional Elders Council and five individual
Eyak Natives (collectively the "Council") sought unsuccessfully
to prevent Sherstone, Inc. from clearcut harvesting a 50-acre
tract of timber believed to be the location of an historic Eyak
village and burial ground. Following the Council's motion to
voluntarily dismiss pursuant to Civil Rule 41(a)(2), the superior
court dismissed the case with prejudice and awarded partial
attorney's fees and costs to appellees Sherstone, Inc., the Eyak
Corporation, and Sound Development, Inc. (collectively
"Sherstone"). The Council appeals this award of attorney's fees
arguing that, as a public interest litigant, it is immune from
such an award. We agree and therefore reverse.
I. FACTS AND PROCEEDINGS
The Eyak Traditional Elders Council formed in 1991 to
preserve the ancestral lands of the Eyaks.1 Because of the Eyak
population's recent decline,2 the Council has sought to take
active steps to protect the tribe's remaining heritage, including
the preservation of land upon which traditional Eyak cultural
activities took place.
In August 1992, a timber subsidiary of the Eyak
Corporation,3 Sherstone, Inc., submitted notification to the
Alaska Department of Natural Resources (DNR) detailing its plans
to clearcut land at "Eyak River East" near Cordova. The 50-acre
site is situated on property privately held by the Eyak
Many Eyak Natives, including members of the Council,
firmly believe that their ancestral village sites and burial
grounds are located along the east bank of the Eyak River.
Additionally, the theory that the logging zone is culturally rich
continues to receive support from at least one academic source.
However, the Eyak Corporation and others had previously surveyed
the property to be clearcut and found no evidence of significant
cultural artifacts or grave sites in the area.
In September 1992, the Council and five individual Eyak
Natives filed suit against DNR, the Eyak Corporation, and certain
subsidiaries of Eyak, seeking to halt all logging operations at
Eyak River East pending a thorough survey to assess its value as
an archeological site. The proposed logging was sought to be
enjoined on the following grounds: (1) Sherstone's clearcut
logging of the 50-acre site would violate the Alaska Historic
Preservation Act (AHPA), AS 41.35.010-.240, if it was carried out
without a permit under that statute; (2) DNR's authorization of
the clearcut without a permit or survey also violated the AHPA,
since the State has a nondiscretionary duty to enforce the
statute; and (3) by authorizing the decimation of their sacred
ancestral lands, the State infringed on the Eyaks' freedom of
religion as guaranteed under article I, section 4 of the Alaska
Constitution. In addition to injunctive relief, the Council
later amended its complaint adding requests for a $100,000 civil
penalty against Sherstone per violation of the AHPA and separate
claims for $100,000 in damages against both Sherstone and the
The superior court initially ruled favorably for the
Council, issuing a temporary restraining order suspending the
logging at Eyak River East. After a full hearing, however, the
court denied the Council's motion for a preliminary injunction.
The superior court noted that although "it is possible that there
may be culturally important sites, artifacts or grave sites" at
the logging site, the Council failed to "establish a
probability that such sites or artifacts exist." Following this
ruling, Sherstone filed its answer to the complaint and moved for
Despite the Council's efforts to settle the case,
Sherstone completed its logging operations on the Eyak River East
site. The Council explains that because this clearcut mooted the
focus of its suit, it chose to move for voluntary dismissal
pursuant to Civil Rule 41(a)(2).4 Sherstone opposed, seeking a
disposition on the merits.
The superior court granted the motion to dismiss.
Because the State had not yet filed an answer, dismissal as to
DNR was automatic under Civil Rule 41(a)(1).5 As to the
remaining defendants, the superior court granted the Council's
motion for dismissal "with prejudice subject to the award of such
costs and attorney's fees . . . as may be appropriate under Rule
41(a)(2) as a condition of such dismissal."
In a subsequent motion, Sherstone requested an award of
80% of its actual attorney's fees and full costs. The Council
opposed, arguing that because it had litigated genuine issues of
public interest, it was immune from attorney's fees or cost
awards as a public interest litigant under Alaska law. Though it
made no explicit finding with regard to the Council's status as a
public interest litigant,6 the superior court entered an order
awarding Sherstone attorney's fees in the amount of $10,000 (21%
of the actual fees).
The Council now appeals this fee award.
A. The Trial Court Must Consider the Public Interest
Status of a Party when Conditioning a Rule 41(a)(2)
Voluntary Dismissal on Payment of Partial Attorney's
Fees and Costs
It is a well-established principle that when
considering an award of attorney's fees pursuant to Alaska Civil
Rule 82, "it is an abuse of discretion to award attorneys' fees
against a losing party who has in good faith raised a question of
genuine public interest before the courts." Gilbert v. State,
526 P.2d 1131, 1136 (Alaska 1974); see also Oceanview Homeowners
Ass'n, Inc. v. Quadrant Constr. & Eng'g, 680 P.2d 793, 799
(Alaska 1984); Southeast Alaska Conservation Council, Inc. v.
State, 665 P.2d 544, 552-54 (Alaska 1983). Exempting public
interest litigants from the burden of fee shifting awards
represents a basic policy decision to "encourage plaintiffs to
bring issues of public interest to the courts." Anchorage v.
McCabe, 568 P.2d 986, 990 (Alaska 1977). If public interest
litigants risked responsibility for their opponents' fees,
potential "private attorneys general" could be seriously deterred
from bringing beneficial litigation. Id. (citing Gilbert, 526
P.2d at 1136).
Here attorney's fees and costs were awarded following
the Council's voluntary dismissal of its claims against Sherstone
and the other defendants. Alaska Civil Rule 41(a)(2) provides
that "an action shall not be dismissed at the plaintiff's
instance save upon order of the court and upon such terms and
conditions as the court deems proper."7 In Dome Laboratories v.
Farrell, 599 P.2d 152, 160 (Alaska 1979), we determined that this
rule provides an independent basis for an award of attorney's
fees. Relying on Dome Laboratories and other cases construing
this rule, Sherstone argues that the superior court's decision to
condition voluntary dismissal on the payment of costs and
attorney's fees was within the superior court's broad discretion.
Id. at 159-60.
We conclude, however, that the policies underlying the
public interest exception to Civil Rule 82 attorney's fees are no
less compelling when the plaintiff agrees to voluntarily dismiss
its action. Thus, if the Council qualifies as a public interest
litigant, the superior court's decision to condition voluntary
dismissal on the payment of partial attorney's fees and costs
constitutes an abuse of discretion.
B. The Council Qualifies as a Public Interest
In determining whether a party has litigated genuine
issues of public interest, a court must evaluate the facts on a
case-by-case basis. Anchorage Daily News v. Anchorage Sch.
Dist., 803 P.2d 402, 404 (Alaska 1990). This court has
identified four factors that bear on this inquiry:
(1)Is the case designed to effectuate
strong public policies?
(2)If the plaintiff succeeds will
numerous people receive benefits from
(3)Can only a private party have been
expected to bring the suit?
(4)Would the purported public interest
litigant have sufficient economic
incentive to file suit even if the
action involved only narrow issues
lacking general importance?
Id. at 404.
1. Public Policies Effectuated
First, Alaska courts apply the public interest
exception only in cases where the plaintiff seeks to "effectuate
strong public policies." Id. The Council argues that each of
its three causes of action were designed to protect important
statutory and constitutional interests.8
Two of the Council's claims were based on the Alaska
Historic Preservation Act (AHPA). AS 41.35.010-.240. The Act is
designed to preserve Alaska's cultural legacy by protecting
historical sites and artifacts:
It is the policy of the state to preserve and
protect the historic, prehistoric, and
archeological resources of Alaska from loss,
desecration, and destruction so that the
scientific, historic, and cultural heritage
embodied in these resources may pass
undiminished to future generations. To this
end, the legislature finds and declares that
the historic, prehistoric, and archeological
resources of the state are properly the
subject of concerted and coordinated efforts
exercised on behalf of the general welfare of
the public in order that these resources may
be located, preserved, studied, exhibited,
AS 41.35.010 (emphasis added). The Act furthers this policy by
granting the governor broad powers to designate state monuments
or historic sites on public lands, AS 41.35.030, and permitting
DNR to place restrictions on private property in danger of
destruction or to acquire it by eminent domain. AS 41.35.060(b).
The Act also makes it unlawful to destroy an historic resource of
the state without a permit or to destroy a gravesite even if it
appears abandoned or lost. AS 41.35.200(a), (c). The Council
contended that because Sherstone was proceeding to clearcut Eyak
River East without a permit under the AHPA, both Sherstone and
DNR were in violation of the requirements of the statute.
The Council's third claim was based on the Eyak
Natives' freedom of religion as guaranteed by article I, section
4 of the Alaska Constitution. In the Council's view, DNR's
condonation of the clearcut on lands the Eyak Natives consider
sacred seriously impeded their ability to practice their
religion. In arguing that this claim effectuates a strong public
policy, the Council relies on Frank v. State, 604 P.2d 1068, 1070
(Alaska 1979), for its holding that "[n]o value has a higher
place in our constitutional system of government than that of
We have accorded public interest status to a variety of
claims that sought to advance strong statutory and constitutional
interests. In Alaska Survival v. State, Department of Natural
Resources, 723 P.2d 1281, 1283 (Alaska 1986), this court approved
public interest status for a group of local residents seeking to
halt DNR's disposal of thirty-two agricultural homesteads via a
lottery. Plaintiffs claimed that DNR's actions would threaten
their subsistence lifestyle, that the agency did not follow
mandated procedures, and that the decision was not in the best
interests of the state (a statutory requirement). Id. at 1284-
85. There we acknowledged that ensuring that the agency follows
statutes and proper procedure in homestead disposals represents
an important effectuation of public policy. See id. at 1292.
Similarly, in this case, the Council sought to compel DNR to
abide by statutory mandates pertaining to the use of land.
In Southeast Alaska Conservation Council, we reversed a
$25,000 attorney's fee award that the trial court had entered
against a conservation group. 665 P.2d at 552-53. The group
mounted a challenge against the Commissioner of Natural Resources
and a lumber company, seeking declaratory and injunctive relief
with regards to a timber sale contract. The group unsuccessfully
contended that the timber sale violated state constitutional and
statutory requirements that timber be harvested on a sustained
yield basis. Id. at 548. Nevertheless, we held it was an abuse
of discretion to award attorney's fees against the plaintiff.
Id. at 554.10
Thus, we are of the view that the policies the Council
sought to advance in this case are analogous to the type of
concerns that we have considered sufficient in the past. In
seeking to halt the destruction of land they believed was the
site of their sacred ancestral villages and burial sites, the
Council members chose to litigate issues of deep personal
concern. However, in electing to pursue their claims under the
auspices of the AHPA and free exercise clause, the Council framed
its entire case in furtherance of statutory and constitutional
policies that concern the public as a whole. Based upon the
clear language of the AHPA, and our recognition of the
fundamental importance of the right to free exercise of religion,
we conclude that the Council's claims were designed to effectuate
"strong public policies."
2. Widespread Benefits
The second factor we must consider in assessing whether
a party qualifies as a public interest litigant is whether
"numerous people" would have received "benefits from the
lawsuit." Anchorage Daily News, 803 P.2d at 404. Sherstone
argues that the plaintiffs here do not speak for the public;
rather, the Council is "an extremely small group of political
dissidents . . . seeking to have its philosophical opposition to
logging satisfied at the expense of everyone else." Sherstone
points out that the logging operation employed many people in the
Cordova area who would have directly suffered had the Council
In any case purported to effectuate public policy, some
people will have contrary interests. This fact has not been held
to disqualify a litigant from public interest status. See, e.g.,
Thomas, 611 P.2d at 538-40 (group attacking the constitutionality
of an initiative enacted by Alaska voters was a public interest
litigant); McCabe, 568 P.2d at 988 (suit seeking to halt
construction of two eleven-story highrises concerned public
Alaska's rich cultural diversity is one of its greatest
resources. As evidenced by the enactment of the AHPA, the
legislature has determined that all Alaskans are harmed when the
historical and cultural traditions of one of Alaska's native
peoples are relegated to a museum wall. Conversely, we all
benefit when "the scientific, historic, and cultural heritage
embodied in these resources may pass undiminished to future
generations." AS 41.35.010. Because the Council sought to
effectuate public policies that are intended to benefit all
Alaskans, we conclude that had the Council been successful on the
merits, "numerous people" would have received benefits.
3. Enforcement by Private Party
The third factor bearing on the public interest status
of a party requires the court to ask whether "only a private
party [could] have been expected to bring the suit." Anchorage
Daily News, 803 P.2d at 404. Although DNR had the statutory
authority pursuant to the AHPA to either condemn the disputed
property or otherwise limit Sherstone's logging operation on the
disputed property, it is evident that in light of the facts
presented, no such action would have been taken.
In Southeast Alaska Conservation Council we held that
the existence of governmental authority to act was not
determinative of this prong of the public interest litigant test.
665 P.2d at 554. We reasoned that although it is possible for a
public entity to challenge the legality of a timber operation,
"[s]ince the [timber] contract was between the Commissioner of
the Department of Natural Resources, a state entity, and a
private lumber company, no public entity could have been expected
to bring this suit. The responsibility of necessity fell upon a
private entity . . . ." Id.
Similarly, in this case the Council recognized that by
condoning Sherstone's plans to clearcut Eyak River East, DNR, the
agency responsible for enforcing the AHPA, would not act to
enforce its provisions. The Council chose to file suit against
Sherstone itself for AHPA violations, and against the State to
compel DNR to enforce the AHPA against Sherstone.11 In short,
because DNR was an active participant in the alleged statutory
violation, the burden of enforcement fell upon a private party.
4.Insufficient Economic Incentive
The final factor bearing on a plaintiff's status as a
public interest litigant concerns whether the party would have
had "sufficient economic motive to file suit even if the action
involved only narrow issues lacking general importance."
Anchorage Daily News, 803 P.2d at 404. If a party possesses a
sufficient economic incentive to sue, there is less need to fear
that the potential burden of an attorney's fee award would deter
the plaintiff from pursuing beneficial litigation. See, e.g.,
Gold Bondholders Protective Council v. Atchison, T. & S.F. Ry.,
658 P.2d 776, 778 (Alaska 1983); Kenai Lumber Co. v. LeResche,
646 P.2d 215, 223 (Alaska 1982). In making this assessment, the
court must review "specific facts about the character of the
professed public interest litigant and the nature of that
litigant's real financial stake in the lawsuit." Citizens
Coalition for Tort Reform, Inc. v. McAlpine, 810 P.2d 162, 171
With regard to the subject matter of the Council's
action, there is no evidence in the record indicating that the
individual Eyak Natives or the Council derived economic benefits
from the land in question. Although the Eyaks did engage in
fishing and berry-picking at Eyak River East, in Alaska Survival,
we held that a group partially motivated by a threat to its
subsistence lifestyle did not have sufficient economic incentive
to sue. "[A] more substantial financial interest is required
. . . ." 723 P.2d at 1292.
Sherstone argues, however, that the Council sought not
only injunctive relief, but also compensatory damages -- $100,000
for each cause of action from both the State and Sherstone.
Sherstone contends that this claim for damages gave the Council
incentive to sue and therefore bars its classification as a
public interest litigant. Although we cannot say that the amount
of damages sought by the Council was insubstantial, we have
previously held that the fact that a litigant seeks monetary
relief is not conclusive. See Girves v. Kenai Peninsula Borough,
536 P.2d 1221, 1227 (Alaska 1975). Instead, the court should
also look to the facts of the case to determine the litigant's
primary motivation for filing the suit. See Abbott v. Kodiak
Island Borough Assembly, 899 P.2d 922, 924-25 (Alaska 1995).
Having done so, we conclude that economic incentives
were simply not at the heart of the Council's motive to litigate.
Throughout the present proceedings, the Council has consistently
emphasized its over-arching mission of historical and cultural
protection of its ancestral lands. For example, during her
testimony, the chief of the Council discussed the high inherent
value the Eyaks placed on the land: "All the money . . . that is
being made in Cordova will never mean as much as our historical
sites. Our burial sites. Money means nothing compared to that."
Additionally, we note that once the Council's efforts to secure
injunctive relief became impossible, it abandoned all other
peripheral considerations, including its claims for damages and
its efforts to have civil penalties entered against Sherstone.
This strongly indicates that the Council's true intentions were
to protect its cultural heritage rather than seek any financial
We therefore hold that the superior court abused its
discretion in failing to rule that the Council was a public
C. The Council Litigated its Claim in Good Faith
When this court first held that a court must not award
attorney's fees against a public interest litigant, we stated:
"[I]t is an abuse of discretion to award attorneys' fees against
a losing party who has in good faith raised a question of genuine
public interest before the courts." Gilbert, 526 P.2d at 1136
(emphasis added). Sherstone contends that even if the Council
qualifies as a public interest litigant, the Council lacked good
faith factual and legal bases upon which to sue, and therefore
may be assessed attorney's fees as the losing party.
Sherstone first points out that the Council failed to
provide any reliable evidence that the Eyaks' ancestral village
and burial sites were actually located at the clearcut site.
This argument is unpersuasive. Contrary to Sherstone's
assertions, the plaintiffs did not need to show that there were
actual artifacts or gravesites present at Eyak River East in
order to have a good faith basis to believe it was so. The
Council relied on information passed down through oral history
and on the opinions of an academic who had studied the tribe.
Additionally, we note that the superior court made no finding
that the Council had proceeded with an improper purpose or that
its allegations did not have a reasonable grounding in fact.
Rather, the superior court remarked that the Council succeeded in
showing that it is "possible that there may be culturally
important sites, artifacts, or grave sites in the area which has
largely now been logged."
Sherstone also argues that the Council raised frivolous
legal claims. Sherstone explains that the AHPA does not contain
an express private right of action, and no court has ever ruled
that it contains an implied right of action allowing a private
person to enjoin a private landowner's use of its own lands.
Although we do not hold here that the AHPA gives rise to a
private right of action, we do think that a good faith argument
can be made that such a private right of action can be implied.
The Council advances a variety of arguments here supporting its
view that the Alaska Legislature did not intend public agents to
be the exclusive enforcement authority under the statute.
Moreover, in the federal context, courts have found an implied
private right of action under the National Historic Preservation
Act (NHPA), 16 U.S.C. ' 470 (1988), a statute with a similar
purpose to the AHPA. See, e.g., Aluli v. Brown, 437 F. Supp.
602, 609 (D. Haw. 1977) (although the NHPA does not "expressly
grant a private right of action, such action can be said to be
clearly implied since it is necessary to effectuate the purpose
of . . . the act"), rev'd on other grounds, 602 F.2d 876 (9th
We therefore conclude that neither the Council's
factual assertions nor its legal arguments were so devoid of
merit as to warrant a conclusion that it litigated its claims in
The superior court's ruling that the Council was not a
public interest litigant is REVERSED. The Council qualified as a
public interest litigant and its suit against Sherstone was
brought in good faith. We further hold that it was an abuse of
the superior court's discretion to condition voluntary dismissal
on the payment of attorney's fees by a public interest litigant.
Therefore, we VACATE the superior court's order awarding
attorney's fees against the Council.
Moore, Chief Justice, with whom, Eastaugh, Justice,
In reversing the award of attorney's fees to Sherstone,
the majority treads upon a function that we have traditionally
reserved for the discretion of the superior court. After review
of the record, I am convinced that this case presents at least a
"close call." As such, I would affirm the fee award as a proper
exercise of the trial court's discretion.
The majority correctly observes that determining
whether a party qualifies as a public interest litigant is always
a fact-specific endeavor. See, e.g., Anchorage Daily News v.
Anchorage Sch. Dist., 803 P.2d 402, 403-04 (Alaska 1990).
Although we have identified four factors to assist the trial
court in evaluating whether a party has litigated a matter of
genuine public interest, id. at 404, we have held on numerous
occasions that a trial court's application of these factors, and
thus its ultimate decision on the public interest status of a
party, is entitled to abuse of discretion review. Stein v.
Kelso, 846 P.2d 123, 127 (Alaska 1993); Anchorage Daily News, 803
P.2d at 404 n.2; Citizens for the Preservation of Kenai River,
Inc. v. Sheffield, 758 P.2d 624, 626 (Alaska 1988).
Significantly, we have never applied a more stringent standard of
review in public interest fee cases than we have when reviewing
challenges to traditional Alaska Civil Rule 82 attorney's fee
awards. See, e.g., Adoption of V.M.C., 528 P.2d 788, 795 (Alaska
1974) (court will not disturb Rule 82 fee award unless there has
been a "clear abuse of discretion . . . being established only
where it appears that the court's determination is manifestly
I am not convinced that the superior court abused its
discretion by denying the Council's request for public interest
litigant status. The majority painstakingly explains how the
Council's claims satisfy each of the four factors which we have
deemed relevant in the past. However, with the possible
exception of the first factor -- that the Council's claims
themselves were designed to advance strong public policies --
there exists more than ample evidence in the record to support
the superior court's implied ruling that the Council's claims are
not the sort that merit immunity from an attorney fee award. I
address the remaining factors in turn.
This is not necessarily a case in which, had the
Council been successful, numerous people would have benefitted.
Rather, the Council's dispute with the Eyak Corporation and
Sherstone can easily be viewed as a commonplace, private suit
initiated by a small group of dissident shareholders, based upon
their opposition to the board of directors' use of corporate
assets. The business asset was timber held on the native
corporation's private land; the proposed use was liquidation by
clearcut. And although the Council would probably prefer to have
the Eyak Corporation move in the direction of preservation rather
than economic development, this type of private, philosophical
conflict between intra-corporate factions does not offer the type
of far-reaching benefits that the public interest exception has
facilitated in the past. See, e.g., Thomas v. Bailey, 611 P.2d
536, 538-39 (Alaska 1980) (Trustees for Alaska challenging
constitutionality of voter initiative qualifies as public
interest litigant); Gilbert v. State, 526 P.2d 1131, 1136 (Alaska
1974) (potential candidate for state senate attacking
constitutionality of election residency requirements litigated
issues in genuine public interest). Questions which primarily
affect the private rights of the parties before the court lack
the requisite public character to prohibit a fee award, even if
some statutory or constitutional issues are involved. Thomas,
611 P.2d at 539.
Additionally, under the circumstances presented here,
even if there were sound factual and legal support for the
Council's claim against Sherstone under the Alaska Historic
Preservation Act (AHPA), AS 41.35.010 et seq., it cannot be said
that only a private party could have been expected to bring suit.
Under the express provisions of the AHPA, it is the State that is
charged with the duty to enforce the Act. AS 41.35.220.
Presumably, if it had detected any empirical data indicating that
artifacts or gravesites were actually located at Eyak River East,
the State would have taken appropriate measures, including
refusing to authorize the cut and, if necessary, initiating an
enforcement action under the AHPA. The fact that the State chose
not to pursue enforcement in this case does not, by itself,
demonstrate that the State was legally or even practically
prevented from doing so. The Council should not be permitted to
technically circumvent this requirement by simply naming the DNR
as a defendant.
Finally, the record contains substantial evidence
indicating that in filing this action, the Council was motivated
by sizeable economic incentives. When the Council amended its
complaint, it added claims for $200,000 in compensatory damages
against Sherstone and the State. At stake was clearly a
substantial sum of money. Alaska courts have disallowed public
interest status for claims which sought far less. See Murphy v.
City of Wrangell, 763 P.2d 229, 233 (Alaska 1988) (prisoner
challenging city's failure to credit his sentence for good time
served and seeking at least $25,000 in damages clearly possessed
adequate economic incentive to bring suit). While it is true
that when assessing a litigant's motivations for filing suit the
court must consider all of the facts, I cannot subscribe to the
majority's decision to essentially disregard the fact that the
Council sought $200,000 in damages -- perhaps the only objective
factor available for our review.
Thus, I conclude that in reversing the fee award, the
majority substitutes its own judgment for that of the superior
court. Because I am persuaded that there is sufficient evidence
in the record indicating that the Council does not qualify as a
public interest litigant, and because the trial court may
condition Alaska Rule 41(a)(2) voluntary dismissal on partial
payment of attorney fees, I would affirm the attorney fee award.
1 According to appellees, the Council "is not an
officially recognized tribal entity."
2 By current estimates, there are approximately 100
members of the Eyak tribe, and there is only one full-blooded
Eyak Native alive today.
3 Although the five individual appellants own shares in
the Eyak Corporation, which is the Alaska Native Claims
Settlement Act village corporation for Cordova, Eyak Natives are
not in control. Eyak Natives own only 6% of the shares in the
Eyak Corporation, and Aleuts occupy all nine seats on the board
4 Civil Rule 41(a)(2) provides:
By Order of Court. Except as provided
in paragraph (1) of this subdivision of this
rule, an action shall not be dismissed at the
plaintiff's instance save upon order of the
court and upon such terms and conditions as
the court deems proper. If a counterclaim
has been pleaded by a defendant prior to the
service upon the defendant of the plaintiff's
motion to dismiss, the action shall not be
dismissed against the defendant's objection
unless the counterclaim can remain pending
for independent adjudication by the court.
Unless otherwise specified in the order, a
dismissal under this paragraph is without
5 Civil Rule 41(a)(1) provides:
By Plaintiff -- By Stipulation. Subject
to the provisions of Rule 23(c), of Rule 66
and of any statute of the state, an action
may be dismissed by the plaintiff without an
order of the court: [a] by filing a notice of
dismissal at any time before service by the
adverse party of an answer or of a motion for
summary judgment, whichever first occurs; or
[b] by filing a stipulation of dismissal
signed by all parties who have appeared in
the action. Unless otherwise stated in the
notice of dismissal or stipulation, the
dismissal is without prejudice, except that a
notice of dismissal operates as an
adjudication upon the merits when filed by a
plaintiff who has once dismissed in any court
of this state, or of any other state, or in
any court of the United States, an action
based on or including the same claim.
6 Although the superior court did not expressly address
the issue of the Council's public interest litigant status,
because this issue was raised by the Council before the superior
court, it is implicit that the superior court considered and
rejected the Council's argument that it should be accorded public
interest litigant status. Oceanview Homeowners Ass'n, Inc. v.
Quadrant Constr. & Eng'g, 680 P.2d 793, 799 (Alaska 1984). We
are therefore free to review this determination for an abuse of
discretion. Municipality of Anchorage v. Citizens for
Representative Governance, 880 P.2d 1058, 1061 (Alaska 1994).
7 See note 4 supra for the full text of Rule 41(a)(2).
8 Although only one cause of action was filed against
Sherstone directly, appellees contested all three. Because
Sherstone moved for attorney's fees based on time spent
responding to each claim, it is appropriate to consider the
public interest nature of all claims filed against Sherstone and
9 Sherstone does not deny that the preservation of
culture and the freedom to practice one's religion are two
significant policy concerns. Rather, Sherstone looks to what it
perceives as the Council's underlying motivation in bringing this
suit. According to Sherstone, rather than seeking to effectuate
strong public policies, the Council was desperately searching for
a way to halt the clearcut at Eyak River East because it is
"simply philosophically opposed to Eyak's logging operations
conducted on its own lands."
In addressing the first factor of our public interest
litigant test, so long as the claims themselves would further
strong public policies, we conclude that the plaintiff's
motivations are irrelevant. Further, within the context of the
test as a whole, the plaintiff's motivations are only relevant to
the extent that the plaintiff had sufficient economic motive to
bring suit. See Municipality of Anchorage, 880 P.2d at 1063.
This concern is addressed in the final prong of the public
interest litigant test.
10 See also Johnson v. Tait, 774 P.2d 185, 190 (Alaska
1989) (suit to enjoin the arguable infringement of free speech
effectuates strong public policies); Oceanview Homeowners Ass'n,
680 P.2d at 799 ("Oceanview's appeal was designed to vindicate a
strong public policy in effectuating zoning ordinances"); cf.
Loeb v. Rasmussen, 822 P.2d 914, 921 n.18 (Alaska 1991) ("[T]he
case was a simple negligence action against an alleged
tortfeasor. There is no indication that the estate filed suit
because they believed there was a constitutional or statutory
11 We additionally note that the Council's claim against
the State for violation of the Alaska Constitution could only
have been brought by a private entity.