Ronald T. WEST, Appellant,
STATE of Alaska, BOARD OF GAME, and McKie Campbell, Commissioner, Department of Fish and Game, Alaska Wildlife Alliance, Defenders of Wildlife, Sierra Club, Tom Classen, and Friends of Animals, Appellees. Alaska Wildlife Alliance, Defenders of Wildlife, Cross-Appellants,
Ronald T. West, State of Alaska Board of Game, and McKie Campbell, Commissioner, Department of Fish and Game, Sierra Club, Tom Classen, and Friends of Animals, Cross-Appellees.
Rehearing Denied April 5, 2011.
[Copyrighted Material Omitted]
Robert C. Erwin, Robert C. Erwin, LLC, Anchorage, and Ronald T. West, Anchorage, for Appellant and Cross-Appellee, Ronald T. West.
Michael J. Frank, Trustees for Alaska, Anchorage, and Valerie Brown, Law Office of Valerie Brown, LLC, Anchorage, for Appellees and Cross-Appellants, Defenders of Wildlife and Alaska Wildlife Alliance.
Kevin M. Saxby, Senior Assistant Attorney General, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for Appellee, and Cross-Appellee, State of Alaska.
Notice of non-participation filed by Michael A. Grisham, Dorsey & Whitney LLP, Anchorage, for Appellees and Cross-Appellees, Friends of Animals, Inc. and Tom Classen.
No appearance by Appellee and Cross-Appellee, Sierra Club.
Before: CARPENETI, Chief Justice, FABE, and CHRISTEN, Justices.
Two conservation advocacy groups and Ronald T. West appeal a superior court order granting summary judgment in favor of the Alaska Board of Game (" the Board" ). The court ruled that the Board's 2006 predator control plans do not violate article VIII, section 4 of the Alaska Constitution— Alaska's sustained yield clause— and the sustained yield mandate in AS 16.05.255— Alaska's intensive game management statute. Appellants contend the Board failed to consider and apply the principle of sustained yield to its management of wolves and bears affected by predator control plans the Board established in 2006. West also appeals the superior court's denial of his motion for attorney's fees. We conclude that the Board has both a constitutional and statutory duty to apply principles of sustained yield when it establishes predator control plans, but appellants did not meet their burden of demonstrating that the 2006 plans fail to comply with sustained yield principles. We also conclude that the superior court did not abuse its discretion in denying West attorney's fees because West was not a prevailing party.
II. FACTS AND PROCEEDINGS
Controlling predator populations to increase prey populations is a practice with a long and sometimes controversial history in Alaska. Following World War II, the federal government began a far-reaching predator control program that used poison baiting and aerial hunting to control wolf populations throughout Alaska. After statehood, the use of poison baiting was prohibited in Alaska but aerial wolf hunting was not. Concerns over aerial wolf hunting and the use of snares continued in the 1990s, as did the
controversy over predator control.
Alaska's constitution incorporates principles of natural resource management that serve as the foundation for the management of Alaska's wildlife. Alaska was the first state to have a constitutional article devoted to natural resources, and it is the only state to have a constitutional provision addressing the principle of sustained yield. Alaska's sustained yield clause— article VIII, section 4— provides that:
[f]ish, forests, wildlife, grasslands, and all other replenishable resources belonging to the State shall be utilized, developed, and maintained on the sustained yield principle, subject to preferences among beneficial uses.
Alaska Statute 16.05.255 is an implementing statute for Alaska's sustained yield clause. In 1994, the Alaska legislature amended AS 16.05.255 to incorporate new principles of intensive management aimed at increasing big game prey populations in areas where the Board determines human consumptive use is preferred. Alaska's intensive management statute requires that the Board adopt regulations " to provide for intensive management programs to restore the abundance or productivity of identified big game prey populations as necessary to achieve human consumptive use goals."  The changes to AS 16.05.255 set the stage for the current dispute because the amended statute provides for " control of predation" in areas where the Board determines intensive management is required.
When the legislature adopted the intensive management statute in 1994, it expressed a clear policy that " providing for high levels of harvest for human consumptive use in accordance with the sustained yield principle is the highest and best use of identified big game prey populations in most areas of the state."  In 1998 AS 16.05.255 was again amended, this time, to include an explicit requirement that intensive game management be " consistent with sustained yield," which the legislature defined as " the achievement and maintenance in perpetuity of the ability to support a high level of human harvest of game, subject to preferences among beneficial uses, on an annual or periodic basis." 
Until 2006, the Board's general regulatory framework for predator control of wolves and bears was found in 5 AAC 92.110 and .115;  specific wolf and bear control plans were set forth in 5 AAC 92.125. Prior to 2006, any regulation adopting a predator control plan, including section .125, was required to address a series of regulatory requirements set forth in sections .110 and .115. One of the regulatory requirements was that the Board consider " sound wildlife management principles based upon sustained yield " for all
predator control plans.
In a separate and earlier challenge to the Board's wolf control plans, Judge Sharon Gleason issued an order dated January 17, 2006 invalidating the then-existing predator control plans on the basis that the Board " failed to adequately address the regulatory requirements of 5 AAC 92.110."  The Board convened an emergency meeting in response to Judge Gleason's order and adopted interim regulations establishing temporary predator control plans to replace those that had been invalidated. At the next regularly scheduled meeting, held just a few days later, the Board eliminated the internal regulatory requirements in sections .110 and .115, including the express requirement that the Board consider sustained yield principles.
The Board again considered its predator control plans during meetings it held in March and May of 2006. During these meetings, the Board heard considerable testimony from biologists from the Alaska Department of Fish and Game (ADF & G) on the proposed permanent predator control plans. It also received extensive written comments from the public regarding the proposed plans. Ultimately, the Board adopted modified versions of the interim regulations as permanent regulations, although it expanded the coverage of the plans in some areas.
Defenders of Wildlife and The Alaska Wildlife Alliance (collectively " Defenders" ) challenged the validity of the Board's 2006 predator control plans in a complaint filed in August 2006. In the superior court, Defenders' case focused primarily on alleged violations of Alaska's Administrative Procedure Act and an array of other substantive challenges unrelated to sustained yield. Defenders also claimed that the Board's 2006 predator control plans were invalid because the Board failed to apply ...