KENNETH H. MANNING, Appellant and Cross-Appellee,
v.
STATE OF ALASKA, DEPARTMENT OF FISH AND GAME, Appellee and Cross-Appellant, and AHTNA TENE NENÉ, Appellee.
Appeal
from the Superior Court No. 3KN-13-00708 CI of the State of
Alaska, Third Judicial District, Kenai, Charles T. Huguelet,
Judge.
Kenneth H. Manning, pro se, Kasilof, Appellant and
Cross-Appellee.
Cheryl
R. Brooking, Assistant Attorney General, Anchorage, and Jahna
Lindemuth, Attorney General, Juneau, for Appellee and
Cross-Appellant State of Alaska, Department of Fish and Game.
John
M. Starkey, Anna C. Crary, and Andrew Erickson, Landye
Bennett Blumstein LLP, Anchorage, for Appellee Ahtna Tene
Nene.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
BOLGER, JUSTICE.
I.
INTRODUCTION
This
appeal is the latest in a series of successive appeals
brought by Kenneth Manning challenging the moose and caribou
subsistence hunt regulations that govern a portion of
southcentral Alaska. Manning filed this lawsuit in 2013
challenging the eligibility criteria for subsistence hunt
permits, the point system for allocating Tier II subsistence
permits, and the criteria for establishing nonsubsistence
hunting areas. While these claims were pending in the
superior court, we issued a 2015 decision resolving similar
claims brought by Manning in an earlier suit. Manning then
moved to amend his complaint in this case and to add an
individual official as a defendant. The superior court denied
both motions, concluding that amendment would be futile
because all of Manning's claims would fail under our
precedent. The superior court also denied the State's
motion for attorney's fees, concluding that Manning was
exempt from an adverse attorney's fees award under the
constitutional litigant exception.
Manning
appeals the denial of his motion to amend; he also raises
various allegations of deprivation of due process. The State
cross-appeals the denial of its motion for attorney's
fees. We affirm the denial of the motion to amend because
Manning failed to adequately brief- and thus forfeited-his
arguments on some of the counts, and the remaining counts
would have been futile. And we affirm the denial of
attorney's fees to the State because none of
Manning's claims are frivolous.[1]
II.
FACTS AND PROCEEDINGS
A.
Regulatory Background
Manning
challenges several aspects of the regulations governing the
moose and caribou community subsistence hunt in Game
Management Unit 13 (GMU 13), an area that encompasses 23, 000
square miles known as the Nelchina basin.[2] Our prior
opinions have discussed at length the subsistence hunt
permitting system for this area; we provide a synopsis
here.[3]
Alaska's
subsistence statute governs the allocation of game in
subsistence areas.[4] It requires the Board of Game to determine
the amount of the harvestable game population in a
subsistence area "that is reasonably necessary for
subsistence uses" and to adopt regulations providing
"a reasonable opportunity" for such subsistence
uses.[5]The Board recognizes two separate patterns
of subsistence use of moose and caribou within GMU
13.[6]
The first pattern is a community-based pattern of subsistence
hunting that originated within Ahtna Athabascan communities
and was later adopted by other Alaskans.[7] The
community-based pattern is characterized by use of the entire
caribou or moose (except the antlers), cooperation amongst
community members, and widespread sharing after the
harvest.[8] The second pattern is an individual-use
pattern, which is similarly widespread but, unlike the
community-based pattern, does not necessarily involve
cooperation and sharing.[9] Those who engage in the individual-use
pattern tend to hunt primarily in the fall season, travel
farther to hunt, and hunt in areas accessible from the road
system.[10] And these individual hunters generally
do not use the entire moose or caribou.[11]
The
Board manages subsistence hunting permits at either a Tier I
or Tier II level.[12] It manages the hunt using Tier I permits
when the game population is sufficient to satisfy all
subsistence uses.[13] Generally, under Tier I, all applicants
who are Alaska residents and meet the criteria of one of the
two patterns of subsistence use of moose and caribou within
GMU 13 will be able to obtain a permit.[14]
If the
harvestable portion is insufficient to satisfy all
subsistence uses, the Board manages the subsistence hunt
using Tier II permits.[15] Tier II permits are more limited and
thus have stricter eligibility criteria.[16] The Board
determines a subsistence hunter's eligibility for a Tier
II permit based on (1) the user's "customary and
direct dependence on the game population ... for human
consumption as a mainstay of livelihood" and (2) the
user's "ability ... to obtain food if subsistence
use is restricted or eliminated."[17]
The
Board uses a multi-factor point system to assess how each
applicant satisfies these criteria and to allocate Tier II
permits among applicants.[18] It assesses the first
criterion, the user's customary and direct dependence,
based in part on "the amount of time during the year the
applicant spends in the noncommercial harvesting of wild fish
and game within the hunt area boundary" (the
"annual hunting factor").[19] And the Board assesses
the second criterion, the user's ability to obtain food
through nonsubsistence means, based on the cost of gasoline
and food "in the community where most of the
applicant's household's store-bought food [and
gasoline were] purchased during the past
year."[20]
The
moose and caribou subsistence hunt in GMU 13 is currently
managed under a Tier I permitting system.[21] In accordance
with the two recognized subsistence use patterns, the Board
issues two different types of Tier I subsistence hunt permits
for GMU 13: a community harvest permit and an individual hunt
permit.[22] The community harvest permit is
available to an applicant who is a member of a group or
community of at least 25 individuals, provided that the
applicant "make efforts to ensure that the . . .
customary and traditional use pattern ... is observed"
(e.g., meat sharing and organ salvage).[23] The community
harvest permit application contains a certification statement
that requires a certification that an applicant will
"observe the customary and traditional use
patterns" of the community subsistence
hunt.[24] The individual subsistence hunt permit
for caribou is available annually to each eligible Alaska
resident who applies.[25]No permit is required for the
individual subsistence moose hunt in GMU13, [26] Individual
subsistence hunters are not subject to the customary and
traditional use requirement applicable to community harvest
permit holders.[27] All subsistence permit holders for
caribou in GMU 13 are subject to the same regulations and
enjoy the same hunting season and hunting area.[28] For moose,
community harvest permit holders enjoy a longer hunting
season and a larger hunting area than individual users - and
unlike individual users, they are not limited to taking moose
with certain antler sizes and configurations - distinctions
we have previously upheld as neither arbitrary nor
unreasonable.[29]
In
addition to regulating subsistence areas, the subsistence
statute also requires the Board to identify nonsubsistence
areas, that is, "area[s] or communit[ies] where
dependence upon subsistence is not a principal characteristic
of the economy, culture, and way of life."[30] In
determining whether an area fits this description, the Board
must consider various socioeconomic factors.[31] In
nonsubsistence areas, no subsistence permits are issued and
the usual priority for subsistence uses over sport and
commercial uses does not apply.[32] The Board has established
five nonsubsistence areas in the state, including the
Anchorage-Matsu-Kenai Nonsubsistence Area.[33] This area
encompasses most of the Kenai Peninsula, all of the
Municipality of Anchorage, and a large portion of the
Matanuska-Susitna Borough.[34]
B.
Proceedings
In
August 2013 Manning filed suit against the Department of Fish
and Game challenging the constitutionality of the statutes
and regulations governing: (1) the subsistence hunt for moose
and caribou in GMU 13; (2) the Tier II permit scoring system;
and (3) the designation of a nonsubsistence area. In January
2014 the superior court granted the motion of the local
tribe, Ahtna Tene Nene, to intervene as a
defendant.[35] That month, the superior court also
issued a routine pretrial scheduling order.
In
August 2014 Manning moved to stay the pretrial scheduling
order until we decided an appeal in an earlier case he had
brought, which was pending at the time (Manning
II[36]). Manning's motion asserted
that a stay was required because "[t]he pending Alaska
Supreme Court case is controlling for many of the issues in
this matter." The State and Ahtna agreed that the suit
should be put on hold but argued that a stay of the pretrial
scheduling order was inappropriate and that the order should
instead be vacated. The next month the superior court granted
the State's and Ahtna's motions and vacated the
pretrial scheduling order pending the outcome of Manning
II.
We
issued a decision in Manning II in May
2015.[37] The superior court held a status
conference in July, at which it agreed to extend the stay to
allow Manning time to seek rehearing in Manning II
We subsequently denied Manning's petition for rehearing,
after which Manning filed a petition for certiorari with the
U.S. Supreme Court. At another status hearing in January
2016, the superior court again extended the stay pending
resolution of the petition for certiorari. The superior court
stated that if the Supreme Court rejected Manning's
petition, he would have 30 days to file a motion to amend his
complaint. The Supreme Court denied certiorari the next
month.
In
March 2016 Manning timely moved to amend his complaint. His
two-sentence motion did not offer any justification for
amendment. Manning's proposed amended complaint asserted
three claims: (1) the requirement that community harvest
permit holders observe the customs and traditions of the
community-based pattern of subsistence hunting identified by
the Board violates the federal and state equal protection
clauses, [38] the equal access clauses of the Alaska
Constitution, [39] the public trust doctrine, the
Extinguishment Clause of the Alaska Native Claims Settlement
Act (ANCSA), [40] the Alaska Statehood Act, [41] and certain
other statutes;[42] (2) some of the criteria considered in
allocating Tier II subsistence permits (the cost of groceries
and gasoline and the annual hunting factor) violate the
federal and state equal protection clauses and the equal
access clauses of the Alaska Constitution; and (3) the
criteria used to establish nonsubsistence hunt areas violate
the federal and state equal protection clauses. The proposed
amended complaint requested relief in the form of monetary
damages totaling $2.64 million, a portion of which Manning
asserted he would "distribute[]" at his
"discretion" to other communities whose rights had
been similarly violated. In addition, the next month, Manning
moved to add Ted Spraker, Board chair, as a defendant in both
"his official and personal capacity." The motion
stated simply that the addition of Spraker was necessary to
protect Manning's rights and to secure "an
appropriate award of damages." Both the State and Ahtna
opposed Manning's motions on the basis that each of the
claims in his proposed amended complaint was futile, as was
the addition of Spraker as a defendant.
In
August 2016, after holding oral argument on both of
Manning's motions, the superior court denied them on the
basis that each claim in the proposed amended complaint, as
well as the addition of Spraker as a defendant, was futile.
Specifically, the superior court reasoned that we had either
already directly resolved Manning's claims (in a manner
adverse to Manning) or the claims would be defeated by the
reasoning of our prior opinions.
Manning
did not request reconsideration of either motion. Instead, he
moved to voluntarily dismiss his 2013 complaint. The motion
noted that dismissal was appropriate because our decisions
had "resolved numerous claims in this case" and
because the superior court had denied his motion to amend.
The State and Ahtna jointly submitted a proposed final
judgment dismissing Manning's claims with prejudice.
Manning opposed the joint motion, urging that no court had
yet addressed his claims on the merits and that final
judgment was "premature." He asserted that final
judgment would deny him "substantive and procedural due
process." He advocated instead for voluntary dismissal,
which would be without prejudice.
The
superior court granted the State and Ahtna's joint motion
and entered final judgment in their favor, dismissing all of
Manning's claims with prejudice. The court denied
Manning's motion to reconsider its entry of final
judgment and his motion for a new trial. The State then moved
for attorney's fees in the amount of $3, 479 (20% of its
reasonable fees). The State also urged that an enhanced
attorney's fees award was warranted based on the
frivolous nature of Manning's claims, or, that at the
very least, the unreasonableness of his claims should be used
to offset any reduction in fees the court might be inclined
to grant due to Manning's pro se status.[43] Manning
opposed this motion on the basis that the constitutional
litigant exception exempted him from an adverse
attorney's fees award.[44] The superior court denied the
State's motion for attorney's fees. The superior
court concluded that Manning's claims were not frivolous
for the purpose of the constitutional litigant exception and
that the State was therefore not entitled to any
attorney's fees.
Manning
appeals the superior court's denial of his motion to
amend his complaint and his motion to add a defendant. The
State cross-appeals the superior court's order denying
its attorney's fees motion.
III.
STANDARD OF REVIEW
We
review the denial of a motion to amend a complaint for abuse
of discretion.[45] It is within a trial court's
discretion to deny a motion to amend a complaint "where
amendment would be futile because it advances a claim . . .
that is legally insufficient on its face."[46] We review the
superior court's futility determination using our
independent judgment.[47]
In
addition, we generally review an attorney's fees award
for abuse of discretion, which we find when an award is
"arbitrary, capricious, manifestly unreasonable, or the
result of an improper motive."[48] Interpretation of the
constitutional litigant exception to attorney's fees is a
question of law, which we review using our independent
judgment.[49]
IV.
DISCUSSION
A.
Each Claim In Manning's Proposed Amended Complaint Is
Either Futile Or Forfeited.
Manning
appeals the superior court's denial of his motions to
amend his complaint and to add Spraker as a defendant. The
superior court denied these motions after concluding that all
of the claims in the proposed amended complaint, along with
the addition of Spraker, would be futile because the claims
had been previously resolved (directly and indirectly) by our
precedent. We consider each of the three claims in the
proposed amended complaint, as well as the proposed
additional party, in turn.[50] We then address the additional
due process arguments that Manning raises on appeal.
1.
First count in the proposed amended complaint
The
first count in Manning's proposed amended complaint
alleges that the conditions required to receive a community
harvest permit violate the federal and state equal protection
clauses and the equal access clauses of the Alaska
Constitution.[51] The crux of this argument is that the
requirement that community harvest permit holders observe the
customary and traditional pattern of use identified in the
Board's findings[52]constitutes racial discrimination because
that pattern is derived from the practices of the Ahtna
community. According to Manning, this permit condition
requires that he either "convert to Ahtna local racial
customs and traditions" or be disadvantaged in the
subsistence hunt permitting process. (Emphasis omitted.)
We
rejected in two prior cases the contention that the community
harvest permit conditions implicate the equal protection and
equal access clauses. In Alaska Fish & Wildlife
Conservation Fund v. State (AFWCF), we considered a
nonprofit organization's argument that the Board's
system of bifurcating the individual hunt and the community
hunt in GMU 13 violated the equal protection and equal access
clauses of the Alaska Constitution by establishing a
preference for rural hunters.[53] We upheld the bifurcated hunt
system on the basis that the community harvest permit system
applied equally to all Alaska citizens and thus did not
implicate equal protection or the equal access
clauses.[54] We reasoned that "[a]ll Alaskans
are eligible to receive a community harvest permit; the only
requirement for obtaining one is collaboration with other
resource users."[55] Although we recognized that this
collaboration requirement might be "inconvenient for
those who lack a ready community," inconvenience was not
a sufficient bar to access to implicate constitutional
rights.[56] Furthermore, those who chose not to
collaborate could simply apply for an individual hunt
permit.[57] We additionally explained that only a
regulation that differentiated between resource user groups
would implicate constitutional rights and that user groups
are defined based on the nature of the resource or use rather
than the means of accessing the resource.[58]
We
reiterated this holding a few months later in Manning
II. In that case, we expressly rejected Manning's
argument "that the community harvest permit eligibility
criteria are unconstitutional" under the equal
protection and equal access clauses, noting that "we
[had] upheld the constitutionality of these criteria in
AFWCF."[59] We also addressed Manning's
related argument that the Board's method of calculating
the amount of caribou that was reasonably necessary for
subsistence in GMU 13 relied on unconstitutional racial
factors - namely, Ahtna customs and traditions.[60] We rejected
this argument because "[t]he Board's subsistence
definition applies equally to all of Alaska's
citizens."[61] Therefore, we concluded, the Board's
method of relying on Ahtna customs and traditions in
calculating the harvestable amount "does not implicate,
nor violate, the equal access, uniform application, or equal
protection clauses of the Alaska
Constitution."[62]
Similarly,
the community hunt permit condition that Manning is
challenging in this appeal also does not implicate either
equal protection or the equal access clauses. The permit
condition applies equally to all Alaskans, does not
meaningfully limit admission to the user group, and does not
discriminate between user groups. All Alaskans are eligible
for a community harvest permit; the only requirements are
finding a group of other hunters with whom to collaborate and
complying with the "applicable customary and traditional
use pattern."[63] Any inconvenience these requirements may
pose does not implicate constitutional rights.[64]
Manning
attempts to distinguish his argument from our prior holdings
by emphasizing the racial discrimination aspect of
his argument. He claims that our prior cases did not involve
allegations of racial discrimination and thus do not address
or resolve his claim in this appeal. Manning's argument
is inapposite; as discussed above, we have already held that
the community subsistence hunt regulations apply equally to
all Alaska residents and do not implicate the equal
protection or equal access clauses. At least implicit in this
holding is a conclusion that the regulations are not racially
discriminatory, as such discrimination would certainly
implicate these clauses. Manning therefore cannot avoid our
precedent by relying on semantics. Furthermore, in his 2015
appeal Manning did allege that the community harvest
permits racially discriminated in violation of the equal
protection and equal access clauses.[65] Accordingly,
Manning's challenge to the community harvest permit
condition on the basis of the equal protection and equal
access clauses is futile because we have previously rejected
identical challenges in AFWCF and Manning
II.
2.
Second count in the proposed amended
complaint
The
second count in Manning's proposed amended complaint
challenged the constitutionality of the point system for
allocating Tier II subsistence permits. Specifically, Manning
claimed that the system's consideration of (1) the costs
of gas and groceries in the applicant's community and (2)
the annual hunting factor results in a rural priority, in
violation of this court's precedent, equal protection,
and the equal access clauses. However, Manning's opening
brief does not assert this argument on appeal. Although he
does mention this claim superficially in his reply brief,
this is not sufficient to correct his failure to initially
brief it.[66] Therefore, we consider this argument
forfeited and decline to consider it on appeal.[67]
3.
Third count in the proposed amended
complaint
The
third count in Manning's proposed amended complaint
challenges the constitutionality of AS 16.05.25 8(c), the
provision of the subsistence statute directing the Board to
identify nonsubsistence areas. Alaska Statute 16.05.258(c)
provides a number of factors that the Board should consider
in making the nonsubsistence determination, including the
community's economic stability and income sources and
levels. Manning alleges that this provision violates his
equal protection and equal access rights. He also claims that
the "exclusion of native villages from the
non-subsistence use area criteria[] is unconstitutional
racial [discrimination]." Manning appears to be
concerned specifically with his claim that "[t]he entire
Kenai Peninsula" is designated as a nonsubsistence area.
The
superior court correctly determined that addition of this
claim would be futile because we rejected this argument over
20 years ago. In State v. Kenaitze Indian Tribe we
considered whether AS 16.05.258(c) was constitutional and
answered in the affirmative.[68] In Kenaitze Indian
Tribe the plaintiff similarly challenged AS 16.05.258(c)
on the basis of equal protection and equal
access.[69] In rejecting this challenge, we
acknowledged that residents of nonsubsistence areas who
wished to subsistence hunt or fish may be inconvenienced by
having to travel to a subsistence area but concluded that
this inconvenience was not sufficient to exclude them from
the subsistence user group.[70] Accordingly, we held that AS
16.05.258(c) did not implicate the equal access clauses
because it did not bar any Alaskan from participating in any
fish or game user class.[71] Under this precedent, the addition of
count three of Manning's proposed amended complaint would
be futile.
4.
Motion to add defendant
Given
our conclusion that all of the counts in Manning's
proposed amended complaint are futile or forfeited on appeal,
his arguments on appeal relating to his motion to add Ted
Spraker as a defendant are moot. And to the extent that
Manning's argument that Spraker was
"indispensable" was intended to invoke Alaska Civil
Rule 19, that rule does not apply to a plaintiffs attempt to
add a party. Rather, this rule "prescribes when other
parties, ...