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Manning v. State

Supreme Court of Alaska

June 22, 2018

KENNETH H. MANNING, Appellant and Cross-Appellee,
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.


          BOLGER, JUSTICE.


         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]


         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.


         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]


         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, ...

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