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Manning v. State

Supreme Court of Alaska

May 15, 2015


Appeal from the Superior Court No. 3KN-11-00367 CI of the State of Alaska, Third Judicial District, Kenai, Anna Moran and Charles T. Huguelet, Judges.

Kenneth H. Manning, pro se, Kasilof, Appellant.

Michael G. Mitchell, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee State of Alaska. Brenda B. Page, Senior Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee Saxby. John M. Starkey, Law Office of John Sky Starkey, LLC, Anchorage, for Appellee Ahtna Tene Nené, Inc.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.


WINFREE, Justice.


The Alaska Board of Game promulgated regulations managing caribou hunting in Game Management Unit 13. The regulations allow hunting under three types of permits: a community harvest subsistence permit, an individual subsistence permit, or a non-subsistence drawing permit. A hunter challenged the regulations on constitutional and statutory grounds, arguing that they wrongfully interfered with his subsistence hunting rights, and also sought a judicially imposed public reprimand of an assistant attorney general representing the Board. The superior court dismissed the claim against the attorney, granted summary judgment upholding the regulations, and awarded partial attorney's fees to the State and an intervenor defendant. The hunter appeals. We affirm the dismissal and summary judgment orders, but vacate the attorney's fees awards and remand for further proceedings.


This case involves a challenge to the Board of Game's 2010 amendments to regulations for subsistence caribou hunting in Game Management Unit 13, known as the Nelchina basin.[1] Under the governing statute, if a game population can be harvested consistent with sustained yield principles, the Board must "determine the amount of the harvestable portion that is reasonably necessary for subsistence uses."[2] (This is commonly called the "amount reasonably necessary for subsistence, " or "ANS."[3]) Subsistence uses are managed at either the Tier I or Tier II level.[4] Tier I management is appropriate when the Board concludes that the allowable harvest is sufficient to provide a reasonable opportunity for all subsistence uses; otherwise Tier II management is appropriate.[5] Subsistence hunting under Tier II is more limited, with permits allocated based on specific eligibility criteria.[6]

In 1993 the Board determined that the ANS for Nelchina caribou was "100% of the allowable harvest" because the demand for subsistence hunting "exceed[ed] supply." The Board therefore managed the Nelchina caribou hunt under Tier II. Following a stream of complaints that the Tier II system did not provide sufficient subsistence opportunity for Nelchina caribou, the Board began developing new regulations in 2006. The Board made new findings about the customary and traditional uses of Nelchina caribou and adopted regulations requiring that hunters conform to identified practices. In March 2009 the Board determined the ANS to be 600-1, 000 animals, accounting for the demand of only those hunters following the customary and traditional use practices identified in its findings. Based on the revised ANS and that year's estimated allowable harvest of 1, 000 animals, the Board transitioned management of the Nelchina caribou hunt from a Tier II to a Tier I system. The regulations created two types of subsistence hunting permits: a community harvest permit and an individual permit.[7] The regulations were challenged in superior court and invalidated on the grounds that (1) they were unconstitutional and (2) the Board's decision to change the caribou hunt from Tier II to Tier I was arbitrary and unreasonable and violated the Alaska Administrative Procedure Act's notice requirement.[8]

The Board addressed the invalidated regulations at its October 2010 meeting. After reviewing extensive evidence on population and hunting trends for Nelchina caribou, the Board again calculated the ANS at 600-1, 000 animals. Because the estimated allowable harvest of 2, 300 caribou was greater than the ANS, the Board concluded that the Nelchina caribou subsistence hunt must be managed under Tier I. The Board then reinstated the bifurcated community/individual subsistence hunt system, with revisions, and also allowed issuance of non-subsistence hunt drawing permits.[9]

The regulations establish that any group of 25 or more persons may apply for a community harvest subsistence permit entitling each group member to harvest one caribou during the regulatory year.[10] The group must follow the customary and traditional use pattern identified by the Board for community subsistence hunts.[11]Individual subsistence permit holders also are entitled to harvest one caribou per household during the regulatory year, but are not subject to the community harvest hunt's customary and traditional use restrictions.[12] Up to 300 caribou may be taken each year under community harvest permits, while no cap is placed on the total number of caribou that may be taken under individual permits.[13] All subsistence permit holders are subject to the same hunting regulations and their hunting seasons and areas are the same.[14] And all subsistence permits prohibit taking more than one caribou per household and hunting caribou in any other location during the permit year.[15]

In April 2011 Kenneth Manning filed suit against the Alaska Department of Fish and Game (Department) and Assistant Attorney General Kevin Saxby. Manning sought an injunction preventing the Department from implementing the Nelchina caribou community subsistence hunt regulations on various constitutional and statutory grounds, and sought a judicially imposed reprimand of Saxby for alleged violations of law while he was representing the Board. Ahtna Tene Nené (Ahtna) was permitted to intervene as a defendant. Shortly thereafter the superior court dismissed the claim against Saxby, concluding that he was entitled to discretionary and qualified immunity and that the court could not grant the specific relief Manning sought.

In late October 2011 the Department issued an emergency order closing the Nelchina caribou hunt to non-subsistence drawing permit holders. Manning, who held an individual subsistence hunt permit, moved for an "emergency expedited ex parte preliminary injunction" enjoining the closure, but the superior court denied the motion because Manning lacked standing. In early December 2011 the Department closed the individual subsistence hunt, and three days later the Department closed the community harvest subsistence hunt.

Manning filed a summary judgment motion in June 2012, and the Department and Ahtna filed cross-motions for summary judgment. In April 2013 the superior court denied Manning's motion and granted the Department's and Ahtna's cross-motions, concluding that the Board's decision to change the Nelchina caribou hunt from a Tier II hunt to a Tier I hunt was reasonable and consistent with statute[16] and that the new regulations were constitutional and did not violate the public trust doctrine. The court also rejected Manning's argument that the Department provided insufficient notice under the Administrative Procedure Act before it closed the individual and community harvest subsistence hunts by emergency order.

During and following the summary judgment proceedings Manning filed several motions to disqualify the presiding judge and a motion for new proceedings, alleging the judge was biased and incompetent. Each motion was denied.

The Department and Ahtna moved for attorney's fees, and the superior court awarded them partial fees as prevailing parties under Alaska Civil Rule 82. The court concluded that 15 of the 30 counts in Manning's complaint requested constitutional relief and were not frivolous, so Manning could not be liable for attorney's fees incurred in connection with those claims under AS 09.60.010.[17] The court awarded attorney's fees for all time spent on "non-constitutional, procedural issues, " and for 50% of the time spent on work in which the type of claim could not be identified. The court also reduced the hourly rates the Department and Ahtna claimed by half because Manning was indigent, resulting in final awards of $4, 573 to the Department and $1, 080 to Ahtna. Manning appeals.


"We review grants of motions to dismiss and grants of summary judgment de novo . . . ."[18]
"We presume that regulations are valid and we place the burden of proving otherwise on the challenging party":[19]
We review an agency's regulation for whether it is "consistent with and reasonably necessary to implement the statutes authorizing [its] adoption." Toward this end we consider: (1) whether [the agency] exceeded its statutory authority in promulgating the regulation; (2) whether the regulation is reasonable and not arbitrary; and (3) whether the regulation conflicts with other statutes or constitutional provisions.[20]

Reviewing whether a regulation is reasonable and not arbitrary "consists primarily of ensuring that the agency has taken a hard look at the salient problems and has genuinely engaged in reasoned decision making."[21]

"We apply the reasonable basis standard to questions of law involving 'agency expertise or the determination of fundamental policies within the scope of the agency's statutory functions.' "[22] We also review an agency's application of law to facts under the reasonable basis standard.[23] But we exercise our independent judgment in reviewing whether an agency action is consistent with the Alaska Constitution.[24] "We review de novo whether the trial court applied the law correctly in awarding attorney's fees."[25]


A. The Regulation Managing The Nelchina Caribou Hunt Under Tier I Is Consistent With The Statute And Is Reasonable And Not Arbitrary.

Manning argues that the Board's decision to manage the Nelchina caribou hunt under Tier I - executed through 5 AAC 85.025(a)(8)[26] - is unlawful, and that the hunt must be managed under Tier II. But the Board's decision is lawful so long as 5 AAC 85.025(a)(8) is consistent with the statute and is reasonable and not arbitrary.[27] Alaska Statute 16.05.258(b) requires the Board to adopt regulations managing a game population under Tier II only "if the harvestable portion of the . . . population is not sufficient to provide a reasonable opportunity for subsistence uses."[28] We construe Manning's argument to be that 5 AAC 85.025(a)(8) is inconsistent with its authorizing statute - AS 16.05.258(b) - because it impermissibly allows the Board to manage the subsistence hunt under Tier I when the allowable harvest of Nelchina caribou is insufficient to provide a reasonable opportunity for subsistence uses. Manning's argument thus turns on whether the Board lawfully could conclude that a reasonable opportunity for subsistence uses exists. The meaning of "reasonable opportunity for subsistence uses" involves the Board's expertise and is committed to the Board's discretion by statute, [29] so the Board's determination that a reasonable opportunity exists is consistent with statute if the determination has a reasonable basis.[30]

Manning argues the Board cannot conclude that a reasonable opportunity for subsistence uses exists because the Board relied on an ANS value it had "unlawfully reduce[d]." And because the Board must manage a hunt at the Tier II level if the harvestable surplus is below the ANS, [31] the Board could not reasonably conclude that a reasonable opportunity for subsistence uses existed if it relied on an improper ANS value.

Manning argues the ANS determination is unlawful in two ways: (1) the Board violated the Alaska Constitution by relying on impermissible user characteristics in its ANS calculation; and (2) the ANS determination is unreasonable. Although the ANS determination was published as a regulation - 5 AAC 99.025(a)(4) - the determination is an application of law to facts which is reviewed for a reasonable basis.[32] The Board's discretion under this standard is limited, however: "The Board's ultimate decisions must be reasonably related to the purposes of the subsistence law; in other words, the Board may not manipulate [an underlying determination] simply to achieve a predetermined outcome."[33]

1. The Board's ANS calculation was not based on unconstitutional factors.

Manning asserts that the Board improperly used "rail belt and urban residency, 'community, ' and/or Ahtna racial customs and traditions to pre-determine who is or is not a subsistence user" in calculating the ANS, and asserts that consideration of these factors violates the Alaska Constitution. (Emphasis in original.) But AS 16.05.258(b) refers to ANS in terms of subsistence uses, not users.[34] The record reveals that the Board included a broad variety of subsistence uses in its ANS calculation. And even if the Board had defined subsistence uses of Nelchina caribou to include only local community hunting practices, it would not necessarily have violated the Alaska Constitution - considering certain users' patterns to define the subsistence uses placing demand on a game population affects only that game population's classification; it "does not affect any individual's ability to obtain a subsistence permit or to utilize that permit in a subsistence area." [35] The Board's subsistence definition applies equally to all of Alaska's citizens. Accordingly, the Board's ANS calculation does not implicate, nor violate, the equal access, uniform application, or equal protection clauses of the Alaska Constitution.[36]

2. The Board's ANS calculation is reasonable.

Manning also asserts that the ANS calculation was improperly reduced for the purpose of converting the hunt to Tier I and implementing a community subsistence hunt. But Manning points to nothing in the record indicating the Board "manipulate[d]" the ANS "simply to achieve a predetermined outcome."[37] On the contrary, considerable evidence in the record justifies the Board's ANS calculation and demonstrates that the Board took "a hard look at the salient problems and . . . genuinely engaged in reasoned decision making."[38]

The Board reviewed extensive evidence on long-term harvest, customary and traditional use patterns, and caribou population trends, and it considered a number of proposals for defining subsistence uses of Nelchina caribou in making its ANS determination. It concluded the 600-1, 000 ANS best fit the available data after considering at least eight possible ANS options. The Board identified substantial evidentiary support justifying the customary and traditional use definition applied in its ANS determination. And the Board continued to consider a number of proposed management regimes - including a Tier II hunt - after calculating the ANS, suggesting the ANS calculation was not merely a pretext for switching to a Tier I hunt. The Board concluded that "Tier II is off [the] table" only after comparing the adopted ANS to the harvestable surplus.

Although there is some evidence that the Board preferred that the ANS determination ultimately allow for a Tier I hunt, it does not appear that the ANS was improperly manipulated to achieve a predetermined outcome. The record provides sufficient evidentiary support demonstrating that the Board's ANS calculation is both procedurally and substantively reasonable. Accordingly the Boardreasonably concluded that there is a reasonable opportunity for subsistence uses. Managing the Nelchina caribou hunt under Tier I through 5 AAC 85.025(a)(8) is consistent with the statute and is reasonable and not arbitrary.

B. The 2011 Closures By Emergency Order Did Not Violate The Administrative Procedure Act's Notice Requirements.

Manning contends that the Department violated the Administrative Procedure Act by failing to give permit applicants sufficient notice that the individual subsistence and the non-subsistence drawing hunts "may be closed by Emergency Order prior to achieving the annual harvest quota, while allowing or granting a priority preference for 'community' permit hunters (CHP) to continue to hunt the same resource prior to the annual harvest quota." (Emphasis in original.) Manning appears to be referring to the emergency closures of the Nelchina caribou hunt in 2011.[39] Alaska Statute 16.05.060 authorizes closures by emergency orders, which have the force of law.[40] Emergency orders are not subject to the Administrative Procedure Act, so no notice is required prior to their issuance.[41] Manning's concern about the three-day difference in the emergency closures of the individual subsistence hunt and the community subsistence hunt has little to do with notice; to the extent his concern is about equal protection, his argument is undeveloped and we do not consider it.

C. The Claim Against Saxby Was Properly Dismissed.

The superior court dismissed Manning's claim against Saxby on the alternative grounds of discretionary function immunity, official immunity, and the court's lack of authority to grant the relief requested. Manning provides no authority establishing that the superior court has general jurisdiction to issue a public reprimand for attorney misconduct extrinsic to court proceedings.[42] Nor does Manning cite any authority that the superior court has general jurisdiction to issue a reprimand against a public official for conduct extrinsic to court proceedings. Insofar as Manning may have been requesting declaratory relief against Saxby, such relief is not available in this case: simply asking that a public official be reprimanded does not present a justiciable controversy.[43]

D. Manning's Other Issues Lack Merit.

Manning argues that conditioning Tier I eligibility on "community criteria" violates article I, section 1 and article VIII, sections 3, 15, and 17 of the Alaska Constitution, and that these arguments must be reviewed under strict scrutiny.[44] We construe these arguments to allege that the community harvest permit eligibility criteria are unconstitutional. But we upheld the constitutionality of these criteria in AFWCF II.[45]

Manning also argues that the superior court erred by denying him standing to challenge the 2011 drawing hunt emergency closure order. The issue is now moot, as the order applied only to the 2011-2012 Nelchina caribou hunt, and we decline to address it.[46]

Manning briefly raises several other points on appeal. Specifically he contends that: the regulations violate the sustainable yield requirement of article VIII, section 4 of the Alaska Constitution; the prohibition on Unit 13 permit holders hunting caribou or moose elsewhere in the state is unconstitutional; the restrictions on a killed caribou's use are unlawful; the regulations "unlawfully grant and provide a special preference priority granting new aboriginal rights in violation [of the] Alaska Native Claims Settlement Act"; and the denials of his motions regarding the presiding judge's alleged bias were erroneous. But because his arguments on these points are conclusory and inadequately developed, we consider them waived.[47]

E. The Attorney's Fees Awards Were Calculated Improperly And Must Be Vacated.

The superior court awarded the Department and Ahtna attorney's fees under Alaska Civil Rule 82 for defending 15 of the 30 counts in the complaint, reasoning that Manning was immune under AS 09.60.010(c)(2) from paying fees related to the 15 counts the court believed concerned constitutional claims. Manning argues that the court erred because each of the 30 counts concerns a constitutional right.

The superior court did not indicate which counts of Manning's complaint concerned constitutional rights. But based on our de novo review, we conclude that 19 of the 30 counts concerned protection of constitutional rights.[48] Fifteen counts clearly concerned protection of constitutional rights to subsistence hunting access, sustainable yield management, and equal protection. [49] Other counts present closer questions. Three counts involved claims that the Board failed to consider relevant statutory factors and that its administrative process was flawed, leading to its promulgation of the allegedly unconstitutional community harvest system and the alleged "elimination" of individual subsistence rights. Although these claims can be construed to assert a statutory right to a lawful administrative process, they are more correctly viewed as seeking to protect the constitutional common use right from improper infringement by agency action. Likewise, Manning alleged in one count that under AS 16.05.258(b) - requiring that game management provide a reasonable opportunity for subsistence uses - the regulations exceeded the Board's statutory authority. Although this facially is a statutory argument, AS 16.05.258(b) functions to protect Alaskans' constitutional rights to subsistence hunting access - even absent this statute, Manning would have a constitutional basis for his claim against the Board for failing to protect subsistence hunting access.[50] But it is not evident that the remaining 11 counts concerned constitutional rights, so Rule 82 attorney's fees might be awarded for those claims.

As we recently explained in Lake & Peninsula Borough Assembly v. Oberlatz, "[d]etermining whether [claimants] are immune from paying attorney['s] fees to . . . defendants requires consideration of the nature of each claim against those defendants."[51] And "Rule 82 attorney['s] fees may be awarded only for work that would not have been necessary but for a non-constitutional claim; AS 09.60.010(c)(2) applies to work in which a constitutional claim is implicated in any way."[52]

The superior court awarded attorney's fees for work done on "non-constitutional, procedural issues." It is unclear whether the court was referring to work defending solely against non-constitutional claims or work on procedural issues involving the merits of a constitutional claim. Rule 82 attorney's fees are allowable only for the former. Work on general procedural issues, such as the motions to disqualify the presiding judge, cannot be disconnected from Manning's constitutional claims. Unless the Department or Ahtna can provide sufficiently detailed documentation segregating the time spent on specific procedural work by claim type, the court must assume that the billed time for procedural work was all connected to Manning's constitutional claims. This assumption protects against the possibility of improperly awarding fees for work responding to constitutional claims. On remand, the superior court should not award attorney's fees for work on a procedural issue unless the applicant provides the requisite documentation that the procedural issue is related solely to a non-constitutional claim.

Based on its conclusion that 15 of Manning's 30 counts involved constitutional claims, the superior court also awarded the Department and Ahtna attorney's fees for 50% of work for which the nature of the claim involved was not identified. Such a pro rata approach is improper. Although we do not hold that a superior court can never award partial fees for work when the type of claim cannot be clearly identified, the court must ensure that fees are not awarded for work involving constitutional claims.[53] Simply awarding a pro rata share of attorney's fees based on the ratio of non-constitutional to constitutional claims "would be to risk requiring a plaintiff to pay defendants' attorney[']s fees incurred in defeating his [constitutional] claims."[54]

Such an approach is impermissible under AS 09.60.010(c)(2) and may not be applied on remand. Defendants seeking attorney's fees for work on non-constitutional claims must "submit appropriate documentation to meet 'the burden of establishing entitlement to an award.' "[55] "If defendants do not demonstrate that the work would not have been performed in order to defend against the [constitutional claims], or to put it differently, but for the need to defend against the [non-constitutional] claims, fees associated with that work cannot be awarded, even in part."[56]


We AFFIRM the superior court's orders dismissing the claim against Saxby and granting summary judgment for the Department and Ahtna, VACATE the attorney's fees awards, and REMAND for further proceedings consistent with this opinion.

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