You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Dep't. of Natural Resources v. Tongass Conservation Society (1/17/97), 931 P 2d 1016
<![CDATA[
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) 264-0607, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, DEPARTMENT )
OF NATURAL RESOURCES, ) Supreme Court No. S-5562
)
Appellant, )
) Superior Court No.
v. ) 1JU-92-847 CI
)
TONGASS CONSERVATION SOCIETY, ) O P I N I O N
)
Appellee. ) [No. 4462 - January 17, 1997]
______________________________)
Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
Walter L. Carpeneti, Judge.
Appearances: John P. Griffin, Assistant
Attorney General, Charles E. Cole, Attorney
General, Juneau, for Appellant. Thomas S.
Waldo, Sierra Club Legal Defense Fund, Inc.,
Juneau, for Appellee.
Before: Rabinowitz, Matthews, Compton,
Justices, and Bryner, Justice pro tem.
[Moore, Chief Justice, and Eastaugh, Justice,
not participating.]
MATTHEWS, Justice.
COMPTON, Justice, dissenting.
In 1992 the Cape Fox Corporation and the Department of
Natural Resources (DNR) agreed to a land exchange. Because the
state land to be exchanged had an estimated value greater than
$5,000,000, legislative approval was required. See AS
38.50.020(a); AS 38.50.140. DNR prepared a report on the proposed
exchange as required by AS 38.50.130. The report, which found that
the exchange was in the state's interest, and the execution of the
"Final Exchange Agreement"concluded administrative proceedings
concerning the exchange.
The Tongass Conservation Society (Tongass) filed a timely
administrative appeal challenging the exchange as a trade of state
"trees for stumps." Tongass alleged that the exchange was made in
violation of a number of requirements imposed by state statutes and
regulations.
Meanwhile Senate Bill 465, to approve the proposed
exchange, was introduced in the legislature at the request of the
governor. The parties stipulated that action on the appeal would
be stayed until the legislature acted or failed to act on the bill.
SB 465 passed the Senate and was transmitted to the House. It was
not brought up for a vote of the House and died when the
legislature adjourned.
After the legislature failed to pass SB 465 the parties
to the exchange agreement rescinded it. The rescission agreement
provided in relevant part:
The [Exchange] Agreement dealt with the
exchange of certain lands between the State
and [Cape Fox] located within the boundaries
of the Ketchikan Gateway Borough, and was
subject to legislative approval. The 1992
Alaska State Legislature, however, adjourned
without approving it. . . . In light of the
legislature's failure to act, and for other
reasons, the parties agree to rescind their
[Exchange] Agreement . . . .
Tongass then simultaneously moved to dismiss its appeal
and for attorney's fees and costs, seeking attorney's fees of
$7,707.50 and costs of $215.35. Tongass's theory underlying the
motion for attorney's fees and costs was that it was the prevailing
party because the relief it sought had occurred, the appeal was a
catalyst in bringing about that relief, and the appeal was not
frivolous. DNR opposed Tongass's motion on a number of grounds
which were summarized in the introduction to the State's opposition
to the motion:
Tongass is not the prevailing party in
this appeal. It did no more than file a
notice of appeal, a statement of points, and a
stipulation to delay the deadline for
preparing the record, before the State forced
it to dismiss its appeal as moot. Moreover,
the points Tongass raised were meritless and
nonjusticiable, although its appeal admittedly
proved to be an effective lobbying tool.
The superior court ruled in favor of Tongass, awarding it
attorney's fees of $5,900 and costs of $136.29.
On appeal the State raises the same points that it
asserted in opposing Tongass's motion in the superior court. We
agree with the State's contention that the motion presented a
nonjusticiable question and thus reverse.
Attorney's fees and costs in a civil case may be awarded
to a prevailing party as a matter of course under Civil Rule 82.
In an administrative appeal, attorney's fees and costs may be
awarded to a prevailing party in the discretion of the court under
Appellate Rule 508. (EN1) Tongass argues that an appellant may be
regarded as a prevailing party in a case where the appellee, after
an administrative appeal is filed, acts unilaterally to effect the
relief requested by the appellant. According to Tongass, the
appellant must show that the appeal was a "catalyst"in bringing
about the appellee's unilateral action and that the appellant's
claims were not frivolous. Tongass acknowledges that no Alaska
cases have adopted this approach as a matter of state law, but
contends that this is the approach taken by federal authorities
where federal fee-shifting statutes such as 42 U.S.C. sec. 1988 are
involved. E.g., Hennigan v. Ouachita Parish Sch. Bd., 749 F.2d
1148, 1151-53 (5th Cir. 1985); see also Idaho Conservation League,
Inc. v. Russell, 946 F.2d 717, 719 (9th Cir. 1991); Associated
Builders & Contractors, Inc. v. Orleans Parish Sch. Bd., 919 F.2d
374, 378 (5th Cir. 1990). For purposes of this case we assume that
this method is appropriate.
It is apparent that utilization of this method in the
present case requires an inquiry as to why the legislature failed
to pass SB 465. Tongass's goal in filing the appeal was to prevent
the land exchange from occurring. This goal was accomplished
because the legislature did not approve the exchange. The question
is, using Tongass's method of analysis, whether the appeal was a
catalyst in producing the legislature's inaction. (EN2) This is,
in our view, a political question which is nonjusticiable.
We have long recognized that courts should not attempt to
adjudicate political questions. Abood v. League of Women Voters,
743 P.2d 333, 336 (Alaska 1987); Malone v. Meekins, 650 P.2d 351,
356 (Alaska 1982). This principle stems primarily from the
separation of powers doctrine. "'[I]t is the relationship between
the judiciary and the coordinate branches of the . . . Government
. . . which gives rise to the "political question."'" Malone, 650
P.2d at 356 (quoting Baker v. Carr, 369 U.S. 186, 210 (1962)). See
also Abood v. Gorsuch, 703 P.2d 1158, 1160 (Alaska 1985) ("There
are certain questions involving coordinate branches of the
government, sometimes unhelpfully called political questions, that
the judiciary will decline to adjudicate.").
As our statement in Abood v. Gorsuch suggests, it is
sometimes difficult to define what is, and what is not,
justiciable.
It is not possible to draw the exact boundary
separating justiciable and nonjusticiable
questions.
Justiciability is of course not a
legal concept with a fixed content
or susceptible of scientific
verification. Its utilization is
the resultant of many subtle
pressures, including the
appropriateness of the issues for
decision . . . and the actual
hardship to the litigants of denying
them the relief sought.
League of Women Voters, 743 P.2d at 336 (quoting Poe v. Ullman, 367
U.S. 497, 508-09 (1961) (Frankfurter, J., plurality opinion)).
To aid in the identification of nonjusticiable political
questions we have employed the approach adopted by the United
States Supreme Court in Baker v. Carr. See League of Women Voters,
743 P.2d at 336; Malone, 650 P.2d at 357. We explained in Malone
that the Supreme Court in Baker had identified
various elements, one or more of which is
"[p]rominent on the surface of any case held
to involve a political question . . . ."
These elements included: (1) a textually
demonstrable commitment of the issue to a
coordinate political department; [and] (2) the
impossibility of a court's undertaking an
independent resolution of the case without
expressing lack of respect due coordinate
branches of government . . . .
650 P.2d at 357 (citing Baker, 369 U.S. at 217). Another element
identified in Baker as one which may characterize a political
question is "a lack of judicially discoverable and manageable
standards for resolving"the issue in question. 369 U.S. at 217.
Germane to this, one commentator has observed "the [political
question] doctrine is justified when the Court cannot be assured of
full clarification of the relevant questions because of
difficulties of access to information." Ronald D. Rotunda & John
E. Nowak, Treatise on Constitutional Law sec. 2.16, at 296 (2d ed.
1992) (citing Fritz W. Sharpf, Judicial Review and the Political
Question: A Functional Analysis, 75 Yale L.J. 517 (1966)).
Each of these elements exists in the present case. Our
constitution commits to the legislature the duty to enact laws.
Likewise, the legislature must approve land exchanges involving
state land having a value of more than $5,000,000. AS
38.50.020(a); AS 38.50.140. Imputing a motive to the legislature
for failing to act risks expressing a lack of respect for that
branch of government. Further, there are no "judicially
discoverable and manageable standards"which might be used to
resolve the question as to why the legislature failed to take a
particular action.
A number of authorities support these conclusions. In
general, judicial inquiries into the motives of those enacting or
rejecting proposed legislation are to be avoided. South Carolina
Educ. Ass'n v. Campbell, 883 F.2d 1251, 1257 (4th Cir. 1989), cert.
denied, 493 U.S. 1077 (1990). "Such inquiries endanger the
separation of powers doctrine, representing a substantial judicial
'intrusion into the workings of other branches of government.'"
Id. (quoting Village of Arlington Heights v. Metropolitan Hous.
Dev. Corp., 429 U.S. 252, 268 n.18 (1977)); see also Wallace v.
Jaffree, 472 U.S. 38, 74 (1985) (O'Connor, J., concurring) ("[A]
court has no license to psychoanalyze the legislators."); United
States v. O'Brien, 391 U.S. 367, 383 (1968) ("Inquiries into
congressional motives or purposes are a hazardous matter."); Frank
H. Easterbrook, Statutes' Domains, 50 U. Chi. L. Rev. 533, 547
(1983) ("Because legislatures comprise many members, they do not
have 'intents' or 'designs,' hidden yet discoverable. Each member
may or may not have a design. The body as a whole, however, has
only outcomes.").
The following statement by Justice Scalia suggests some
of the many reasons that could lead a legislator to vote for a
particular piece of legislation:
[D]iscerning the subjective motivation of
those enacting the statute is, to be honest,
almost always an impossible task. The number
of possible motivations, to begin with, is not
binary, or indeed even finite. . . . [The
legislator] may have thought the bill would
provide jobs for his district, or may have
wanted to make amends with a faction of his
party he had alienated on another vote, or he
may have been a close friend of the bill's
sponsor, or he may have been repaying a favor
he owed the majority leader, or he may have
hoped the Governor would appreciate his vote
and make a fundraising appearance for him, or
he may have been pressured to vote for a bill
he disliked by a wealthy contributor or by a
flood of constituent mail, or he may have been
seeking favorable publicity, . . . or, of
course, he may have had (and very likely did
have) a combination of some of the above and
many other motivations.
Edwards v. Aguillard, 482 U.S. 578, 636-37 (1987) (Scalia, J.,
dissenting). We have recognized that ascertaining the
legislature's true motive is "a task which more often than not
would be impossible." Gulf Oil Corp. v. State, Dep't of Revenue,
755 P.2d 372, 386 n.39 (Alaska 1988). These considerations apply
with even greater force when the court is asked to evaluate why the
legislature failed to take action. Such a question is fundamen-
tally unanswerable.
We conclude, therefore, that an inquiry into why the
legislature failed to approve SB 465 involves a political question
which is inappropriate for judicial resolution. (EN3) Asking
whether the appeal, rather than, for example, vigorous lobbying, or
a collective perception of good public policy, prompted the legis-
lature not to act amounts to "an unwarranted intrusion into the
business of the [legislature],"on a subject on which there is a
"textually demonstrable commitment"by our constitution to the
legislature, on which the court cannot opine without the risk of
"expressing lack of respect"for the legislative branch, and
involves an issue on which there is "a lack of judicially
discoverable and manageable standards for resolving." See Malone,
650 P.2d at 356-57; Baker, 369 U.S. at 217. Since the award of
attorney's fees and costs to Tongass was dependent on the
resolution of a nonjusticiable question, the award must be
REVERSED.COMPTON, Justice, dissenting.
I agree with the court that an inquiry into why the
legislature enacts or fails to enact legislation involves a
political question which is inappropriate for judicial resolution.
Slip Op. at 10. I disagree, however, with the court's assertion
that this is the issue in the present case. Slip Op. at 4-5. In
fact, the legislature's motives do not need to be considered in any
degree to resolve the issue of whether Tongass was the prevailing
party and therefore entitled to attorney's fees. (EN1)
The court correctly states that "Tongass's goal in filing
the appeal was to prevent the land exchange from occurring." Id.
The court then erroneously concludes that "[t]his goal was
accomplished because the legislature did not approve the exchange."
Id. Tongass's goal of preventing the land exchange was not
accomplished until the State formally rescinded the Agreement.
Thus, the question presented is not, as the court states, "whether
the appeal was a catalyst in producing the legislature's inaction,"
id., but whether the appeal was a catalyst in producing the State's
decision to rescind the Agreement. (EN2)
Section (4)(B) of the superior court's Order Granting
Partial Attorney's Fees is entitled "Whether TCS has proven a
causal connection between its lawsuit and DNR's rescission of the
exchange agreement." The superior court noted Senate Bill 465's
passage by the Senate, having been aired before three Senate
committees during which "potential problems with the bill received
considerable attention,"its passage by one House committee, and
its death in the House when it was never brought to a vote before
the committee of second referral. The superior court then noted
that a Division of Natural Resources (DNR) manager reported to the
DNR Commissioner that the exchange proposal would require enough
modification to necessitate further hearings, but that
[n]o reasons are stated why the proposal
required modification. However, the State of
Alaska specifically requested [] that the
Ketchikan [Gateway] Borough and the Cape Fox
Corporation rescind the land exchange proposal
in part because "[t]he State is obligated to
defend the lawsuit by the Tongass Conservation
Society unless the agreement is terminated."
The superior court noted the agreement's language referring to the
legislature's failure to act "and for other reasons"as
justification for the agreement. The "other reasons"were not
specified. The superior court framed the crucial question as why
DNR decided not to present the proposal during the next legislative
session. Again noting the exchange's passage by three Senate
Committees and one House Committee, the court observed that "[t]he
only other evidence of potential problems with the proposal was the
threatened lawsuit. DNR in fact concedes that the 'appeal . . .
proved to be an effective lobbying tool.'" The superior court
concluded that "[b]ecause TCS has a legal basis for its claims,
because its appeal acted as an impetus to the rescission, and
because it substantially obtained the relief it sought, TCS is the
prevailing party to the action." The record supports the superior
court's conclusion that the "appeal acted as impetus to the
rescission."
It is often difficult to determine a defendant's motive
for settling a case because "defendants, on the whole, are usually
rather reluctant to concede that the litigation prompted them to
mend their ways." Posada v. Lamb County, Texas, 716 F.2d 1066,
1072 (5th Cir. 1983). Because of this difficulty, federal courts
have developed an objective test which emphasizes the "chronology
of events"as an important element in determining causation. See
id. ("Clues to the provocative effects of the plaintiff's legal
efforts are often best gleaned from the chronology of
events . . . .") The chronology of events in the present case
supports the superior court's conclusion that there was a causal
connection between Tongass's suit and the State's decision to
rescind the Agreement.
After the State, Cape Fox, and the Borough arrived at an
agreement, the State sought the required legislative approval. In
the interim, Tongass filed an administrative appeal, challenging
numerous procedures followed, or not followed, by the State. When
the State was unable to obtain legislative approval, it informed
Tongass it would not seek that approval again. Tongass did not
deem that advisement sufficient to protect its interests, and
demanded rescission of the Agreement before it would dismiss its
appeal. The State specifically requested that the Borough and Cape
Fox rescind the land exchange proposal in part because "[t]he State
is obligated to defend the lawsuit by the Tongass Conservation
Society unless the agreement is terminated." In the words of a
Department of Law attorney, the State had an interest in rendering
Tongass's appeal "unequivocally moot." It was only following
rescission, the ultimate resolution of the problem from Tongass's
standpoint, that Tongass dismissed the appeal. This chronology
supports the superior court's conclusion that the suit filed by
Tongass was an impetus for the rescission of the Agreement.
The superior court awarded Tongass attorney's fees after
concluding that Tongass "substantially obtained the relief it
sought." I would hold that the court did not abuse its discretion
in awarding Tongass attorney's fees. I would therefore affirm its
award.
ENDNOTES:
1. Kodiak Western Alaska Airlines, Inc. v. Bob Harris Flying
Serv. Inc., 592 P.2d 1200, 1204-05 (Alaska 1979).
2. Our review of the record convinces us that the appeal's
possible effect on the legislature is the only catalytic relation-
ship that finds support in the evidence. Further, it appears that
the superior court's order declaring Tongass the prevailing party
expressly relied on this link.
The State's decision to abandon its efforts to pursue the land
trade was a direct response to the legislature's inaction, not a
response to the pendency of the appeal. It is true that formal
rescission of the trade agreement was prompted by Tongass's threat
to pursue the appeal. But DNR's decision to declare formally dead
an agreement that was already politically dead cannot be viewed as
a victory on the merits of the lawsuit for Tongass.
Timing is a key indicator of catalytic effect. Here, the
State abandoned its efforts to pursue the land trade shortly after
the legislature adjourned without taking action on the proposed
trade. This suggests that DNR complied with Tongass's demand to
rescind the trade agreement, not to render moot a lawsuit that
would have otherwise raised live issues, but rather to avoid
litigation over an agreement that was already moot as a matter of
political reality -- an agreement the State had no interest in
pursuing for reasons wholly independent of the lawsuit.
The suggestion of political motivation inherent in the timing
of DNR's decision to rescind finds confirmation in statements in
two affidavits filed by the State in opposition to Tongass's
request for attorney's fees. These statements indicate that the
Department of Law and DNR were prepared to defend Tongass's lawsuit
if the disputed land trade agreement stood any chance of future
legislative approval, and decided to rescind only when DNR
concluded that the agreement was a lost cause politically.
The superior court found the timing of the State's rescission
of the land trade agreement to be inconclusive; the court also
found no other evidence establishing the precise reasons underlying
the State's decision to rescind. What the court found clear,
however, was that the lobbying efforts pursued by Tongass based on
the appeal had influenced the legislature's decision not to act on
the proposed land trade and that, in turn, the legislature's
failure to act had ultimately influenced the State's decision to
rescind:
The reasons why DNR ultimately chose not
to reintroduce the bill are not clear. What
is clear is that [Tongass] and the Sierra Club
exerted considerable efforts to protest the
land sale exchange. These lobbying efforts
prompted a few Senators to state their
concerns on the record. In fact, the court
record today indicates no reason why DNR chose
not to reintroduce the same bill except for
pressure exerted by [Tongass] and the Sierra
Club. Therefore, this court holds that
[Tongass's] actions were an "impetus"to the
rescission agreement.
(Emphasis in original.) This passage seems to explicitly declare
Tongass a prevailing party based on the theory that the appeal
enabled Tongass to win a political victory, which influenced DNR's
decision to rescind. It shows further that the superior court
declared the evidence insufficient to prove any other catalytic
effect, or "impetus."
Under the federal "catalyst"approach Tongass bore the burden
of proof on the catalyst issue. Tongass has not proved that the
appeal acted as a catalyst in some sense other than the appeal's
influence on the legislature's failure to approve the proposed
trade.
3. We are aware of one case in which a court reviewed the motives
of a co-equal legislative body in order to determine whether
litigation served as a catalyst to passage of legislation which
mooted a claim. In Paris v. U.S. Dep't of Housing and Urban Dev.,
988 F.2d 236 (1st Cir. 1993), plaintiffs challenged a tenant
selection scheme under which public housing managers skipped over
low income families on the waiting list for public housing. Id. at
237. While the lawsuit was pending, Congress passed a curative
amendment prohibiting housing agencies from by-passing low income
families on waiting lists. Id. The conference report accompanying
this bill specifically stated that it was necessary in light of the
Paris case. Id. at 238. Subsequent to the curative amendment,
plaintiffs voluntarily dismissed their claim and moved for
attorney's fees under 42 U.S.C. sec. 1988 and a similar fee-
shifting provision of the Fair Housing Act, 42 U.S.C. sec.
3613(c)(2). Id. at 239. The Court of Appeals concluded that
attorney's fees under the federal fee-shifting statutes should be
awarded (assuming another test which is not here relevant was met)
since, given the conference report, the suit could fairly be
characterized as a catalyst of the amendment. Id. at 241-42. The
Court of Appeals observed that the litigation "affected a 'material
alteration of the legal relationship of the parties in a manner
which Congress sought to promote' in the fee-shifting provisions of
the Fair Housing Act with respect to the government, and in sec.
1988 with respect to [another defendant]." Id. at 241 (quoting
Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S.
782, 792-93 (1989)). Paris is distinguishable from the present
case in a number of important respects. First, it involved
legislative action, rather than inaction. Second, the action was
accompanied by a clear statement of legislative intent recognizing
the lawsuit and thus the lawsuit's role as a catalyst in bringing
about the statutory change. Third, federal fee-shifting statutes
such as 42 U.S.C. sec. 1988 are purposive in nature. They are
designed to achieve congressional goals by encouraging litigation,
whereas the objective of Appellate Rule 508 (and Civil Rule 82) is
neutral, awarding some measure of compensation for attorney's fees
to whichever party has prevailed. See Tobeluk v. Lind, 589 P.2d
873, 876, 879 (Alaska 1979). While these differences narrow in
state cases of a "public interest"nature, the analogy is still not
exact. See id. at 878 n.11, 879-80; Hickel v. Southeast
Conference, 868 P.2d 919, 923-26 (Alaska 1994) ("Unlike Alaska's
approach, the federal approach is extremely generous in granting
prevailing party status . . . ."). Public interest status is a
judge-made doctrine of general application, in contrast to fee-
shifting statutes which have specific legislatively targeted goals.
In view of these differences it is understandable that a greater
intrusion into the legislative domain may be justified under fee-
shifting statutes.
ENDNOTES (Dissent):
1. The court quotes the State's opposition to Tongass's motion
for attorney's fees, Slip Op. at 3, but fails to note that the
State's assertion that "the majority of the fees Tongass requests
are not related to its efforts before this court, but were incurred
lobbying the legislature"is a misstatement. Tongass requested
39.7 hours in fees for the appeal and 15 hours in fees for lobbying
efforts. The superior court awarded full fees for the appeal, but
reduced the award of fees for lobbying to 7.5 hours.
2. The court's discussion concerning Tongass's actions as a
catalyst, and the ensuing discussion regarding the justiciability
of political questions, is not consistent with the view it
expresses in footnote 2, which is keyed to those discussions.
The court frames the question as whether, "using Tongass's
method of analysis, [] the appeal was a catalyst in producing the
legislature's inaction." It concludes by holding "that an inquiry
into why the legislature failed to approve SB 465 involves a
political question which is inappropriate for judicial resolution."
(Footnote omitted.) Since the superior court predicated its
decision on the legislature's failure to act, which was the result
of Tongass's lobbying efforts, the decision was based on an
impermissible inquiry into legislative motivation, a political
question.
Notwithstanding the above analysis, it is clear from footnote
2 that the court itself has concluded that the State decided to
abandon the land exchange contract for its own political reasons,
an inquiry into the political motivations of a coordinate branch of
government. While the court declares that the superior court
impermissibly inquired into political motivation with respect to
the legislative branch, it feels free to do so with respect to the
executive branch:
The suggestion of political motivation
inherent in the timing of DNR's decision to
rescind finds confirmation in statements in
two affidavits filed by the State in
opposition to Tongass's request for attorney's
fees.
Slip Op. at 5, n.2.
The court next quotes the superior court's reference to
Tongass's lobbying efforts, stating that "[t]his passage seems to
explicitly declare Tongass a prevailing party based on the theory
that the appeal enabled Tongass to win a political victory, which
influenced DNR's decision to rescind." Slip Op. at 6, n.2. Its
own uncertainty is embodied in the word "seems." Arguably the
passage is not free from ambiguity, and if it is ambiguous, the
result should be a remand for clarification. However, it must be
remembered that of the hours sought to be recompensed, 39.7 were
for the appeal and 15 for lobbying efforts, the latter reduced to
7.5 by the superior court. Further, the rescission agreement
itself declared that it was "the legislature's failure to act, and
[] other reasons,"which resulted in the formal termination of the
exchange agreement. Until then the State could not unilaterally
dismiss the administrative appeal. Tongass was free to argue that
the public interest exception to the mootness doctrine justified
maintaining the appeal. That position would not have been
frivolous.
]]>
