420 P.3d 1270
Alaska2018Background
- Kenneth H. Manning (pro se) sued the Alaska Dept. of Fish & Game in 2013 challenging GMU 13 moose/caribou subsistence rules: community-harvest permit conditions, the Tier II point/allocations (including annual hunting and local grocery/gas cost factors), and criteria for designating nonsubsistence areas.
- Ahtna Tene Nené (tribe) intervened as a defendant; the case was stayed pending related Supreme Court appeals (Manning I/II, AFWCF). Manning later moved to amend his complaint (adding claims and a damages request) and to add Board Chair Ted Spraker as a defendant.
- The superior court denied Manning’s motions as futile (relying on Alaska Supreme Court precedent) and later entered final judgment dismissing the 2013 complaint with prejudice; the State sought 20% of its fees ($3,479).
- The superior court denied the State’s fee request under AS 09.60.010(c) (constitutional litigant exception), finding Manning’s claims were not frivolous; both Manning and the State appealed (Manning appeals denial of amendment; State cross-appeals fees denial).
- The Alaska Supreme Court affirmed: Manning forfeited some arguments by inadequate briefing; remaining claims were futile under existing precedent; and Manning was protected from fee award because his claims were not frivolous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether superior court abused discretion in denying leave to amend (futility/forfeiture) | Manning asserted proposed claims challenging community-permit conditions, Tier II scoring factors, and nonsubsistence area criteria; sought to add Spraker | State/Ahtna: amendment would be futile because claims are foreclosed by precedent; adding Spraker unnecessary | Affirmed: Manning forfeited some claims by poor briefing; the rest would be futile under controlling precedent, so denial was not an abuse of discretion |
| Whether community-harvest permit customary/traditional-use requirement violates equal protection / Alaska equal access clauses | Manning: requirement discriminates (racially), privileging Ahtna customs and disadvantaging others | State/Ahtna: rule applies equally to all Alaskans; AFWCF and Manning II uphold constitutionality | Denied: Court followed AFWCF and Manning II — requirement applies equally and does not implicate constitutional equal protection/equal access rights |
| Whether Tier II point system (grocery/gas costs; annual hunting factor) is unconstitutional | Manning: factors create an impermissible rural preference violating equal protection/equal access | State/Ahtna: challenges foreclosed or unripe; factors are lawful under precedent | Mixed disposition: Manning forfeited the Tier II challenge by failing to brief it on appeal; court noted the annual hunting factor was new and not frivolous but did not sustain the challenge |
| Whether AS 16.05.258(c) nonsubsistence-area criteria violate equal protection/equal access | Manning: statutory factors (economic measures) effectively discriminate and improperly exclude areas (e.g., Kenai Peninsula) | State/Ahtna: statute upheld as constitutional; prior precedent rejected this challenge | Denied: Claim futile — Kenaitze Indian Tribe upheld statute; amendment would be futile |
| Whether Manning was subject to attorney’s fees under AS 09.60.010(c) (constitutional litigant exception) | Manning: his suit concerned constitutional rights and was not frivolous; thus exempt from fee award | State: claims were frivolous or foreclosed by precedent, so exception shouldn’t apply; seek partial fees | Held: Affirmed denial of fees — court adopts claim-by-claim frivolousness test and concludes none of Manning’s claims were frivolous (filed in good faith), so exception applies; no fee award |
Key Cases Cited
- Alaska Fish & Wildlife Conservation Fund v. State, 347 P.3d 97 (Alaska 2015) (upheld bifurcated community/individual subsistence permits and held community permit criteria apply equally)
- Manning v. State, Dep’t of Fish & Game, 355 P.3d 530 (Alaska 2015) (reaffirmed AFWCF holdings regarding community-harvest permit constitutionality)
- State v. Kenaitze Indian Tribe, 894 P.2d 632 (Alaska 1995) (upheld statutory authority to designate nonsubsistence areas)
- State v. Manning, 161 P.3d 1215 (Alaska 2007) (Manning I) (addressed Tier II criteria and residency-based restrictions)
- Lake & Peninsula Borough v. Oberlatz, 329 P.3d 214 (Alaska 2014) (discussed constitutional-rights pleading standards)
- Alaska Bldg., Inc. v. Legislative Affairs Agency, 403 P.3d 1132 (Alaska 2017) (explained standards for labeling claims frivolous under Rule 11 and related analysis)