355 P.3d 530
Alaska2015Background
- In 2010 the Alaska Board of Game revised Nelchina (GMU 13) caribou regulations, creating community and individual subsistence permits and allowing non‑subsistence drawing permits; Board calculated ANS at 600–1,000 caribou and managed the hunt under Tier I.
- Kenneth Manning (pro se) sued the Department of Fish & Game and an AAG (Kevin Saxby), challenging the regulations as violating constitutional and statutory subsistence rights and seeking a judicial reprimand of the AAG.
- The superior court dismissed the claim against Saxby (immunity / lack of remedial authority), denied Manning summary relief, granted summary judgment to the Department and intervenor Ahtna Tene Nené, and awarded Rule 82 attorney’s fees to the Department and Ahtna in reduced amounts.
- Issues included whether the Board lawfully converted the hunt from Tier II to Tier I (ANS, reasonableness, and use of user characteristics), whether emergency closures violated APA notice rules, and whether the court could order discipline of the AAG.
- The Alaska Supreme Court affirmed dismissal of the claim against Saxby and the grant of summary judgment upholding the Tier I regulations, but vacated the attorney’s fees awards and remanded for recalculation consistent with AS 09.60.010(c)(2) and Rule 82.
Issues
| Issue | Plaintiff's Argument (Manning) | Defendant's Argument (State / Ahtna) | Held |
|---|---|---|---|
| Legality of managing Nelchina caribou under Tier I | Board unlawfully reduced ANS and thus must manage under Tier II | Board reasonably calculated ANS (600–1,000) and comparing ANS to harvestable surplus supports Tier I | Upheld: Tier I management and 5 AAC 85.025(a)(8) are consistent with statute and reasonable |
| ANS calculation — use of user/community characteristics | Board unconstitutionally relied on residency/community/usage to define ANS (discriminatory) | ANS addresses subsistence uses (not individual status); defining uses by customary patterns is permissible | Upheld: ANS calculation not unconstitutional and was reasonable |
| Emergency closures and APA notice | Emergency closures deprived permit holders of required notice / equal treatment | Emergency orders under AS 16.05.060 have force of law and are not subject to APA notice; permits warned of possible EO closures | Upheld: no APA notice violation; standing to challenge some closures was moot or lacking |
| Claim and requested reprimand against AAG Saxby | Court can discipline or publicly reprimand AAG for alleged extrinsic misconduct | AAG entitled to immunity; superior court lacks authority to impose public reprimand for extrajudicial conduct; bar is proper forum | Upheld dismissal: discretionary/qualified immunity and no justiciable remedy in superior court |
| Attorney’s fees under Rule 82 and AS 09.60.010(c)(2) | All counts were constitutional; plaintiff immune from paying fees | Defendants sought partial fees for non‑constitutional claims and procedural work | Vacated fees: remand required. Court must segregate work on non‑constitutional claims and not use improper pro rata allocation; defendants bear burden to document fees unrelated to constitutional claims |
Key Cases Cited
- Ahtna Tene Nené v. State, Dep’t of Fish & Game, 288 P.3d 452 (Alaska 2012) (prior challenge to Nelchina regulations and review of Board action)
- State, Dep’t of Fish & Game v. Manning, 161 P.3d 1215 (Alaska 2007) (discussion of Tier I/Tier II subsistence framework)
- Native Vill. of Elim v. State, 990 P.2d 1 (Alaska 1999) (agency may not manipulate underlying determinations to achieve predetermined outcomes)
- Interior Alaska Airboat Ass’n v. State, Bd. of Game, 18 P.3d 686 (Alaska 2001) (review requires agency took a hard look and engaged in reasoned decision making)
- Lake & Peninsula Borough Assembly v. Oberlatz, 329 P.3d 214 (Alaska 2014) (analysis of allocation of attorney’s fees when constitutional claims implicated)
- Davis Wright Tremaine LLP v. State, Dep’t of Admin., 324 P.3d 293 (Alaska 2014) (reasonable basis standard for agency expertise questions)
- Fox v. Vice, 131 S. Ct. 2205 (U.S. 2011) (principles on awarding fees when claims mix constitutional and non‑constitutional issues)