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Manning v. State, Dep't of Fish & Game

Supreme Court of Alaska

August 28, 2015


Page 531

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

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.

Page 532


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]

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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

Page 534

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 ...

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