COOK INLET FISHERMAN‘S FUND, Appellant, v. STATE of Alaska, DEPARTMENT OF FISH & GAME, Appellee.
No. S-15595.
Supreme Court of Alaska.
Sept. 25, 2015.
357 P.3d 789
court‘s rulings resulted in summary judgment being entered against Erica on her negligence claim, she has not carried her burden19 of demonstrating that here “the failure to provide relief would result in an injustice.”20 Indeed, she has never attempted to address the substantive legal grounds on which Taylor Taxi sought summary judgment in the first place. On the facts of this case we cannot conclude that the superior court abused its discretion.
V. CONCLUSION
The superior court‘s judgment is AFFIRMED.
Michael G. Mitchell, Assistant Attorney General, Anchorage, and Craig W. Richards, Attorney General, Juneau, for Appellee.
Before: FABE, Chief Justice; WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.
OPINION
WINFREE, Justice.
I. INTRODUCTION
Alaska‘s Upper Cook Inlet fishery accommodates many resource users. Relevant to this appeal, set net and drift net commercial fishers both target sockeye salmon returning to the Kasilof and Kenai Rivers. The 2013 commercial fishing season in the Upper Cook Inlet saw strong sockeye salmon runs, but the Kenai River king salmon run was the weakest on record. The Alaska Department of Fish and Game (Department) regulates commercial and sport fishing. Attempting to achieve the minimum escapement goal for Kenai River kings while also keeping the strong sockeye run in check, and recognizing that set netters’ incidental harvest of those kings posed a greater risk to the king run than did drift netters’ substantially smaller incidental harvest, the Department‘s Commissioner (Commissioner) used her emergency order authority to limit time for and then
The set netters filed suit and sought an emergency preliminary injunction to re-open their fishery. The superior court declined to issue an injunction. The set netters amended their complaint to request a declaratory judgment recognizing the validity of the Board of Fisheries’ (Board) management plans and a permanent injunction directing the Department to follow those plans. They also sought damages, asserting constitutional claims and a claim for negligent or willful fisheries mismanagement. The superior court granted summary judgment in full to the Department and assessed an attorney‘s fees award against the set netters, who now appeal both orders. Because there are no genuine issues of material fact and the Department is entitled to judgment as a matter of law, we affirm the grant of summary judgment. Because we see no abuse of discretion in the superior court‘s attorney‘s fees award, we affirm that award as well.
II. FACTS AND PROCEEDINGS
A. Facts
Cook Inlet Fisherman‘s Fund (CIFF) represents commercial fishers in the Cook Inlet fishery, including both set net and drift net fishers. The Cook Inlet fishery accommodates commercial, sport, personal, and subsistence users, and is a complex and crowded fishery. All five Pacific salmon species make their way through Cook Inlet and into its numerous river systems, including the Kasilof and Kenai Rivers.
1. Overview of the 2013 sockeye and king salmon commercial fishery in Upper Cook Inlet
The Department manages salmon stocks to achieve certain escapement ranges.1 According to a Department scientist the upper and lower limits of a range represent numbers of spawning salmon which should produce the same sustained yield.2
In 2013 the Kasilof River sockeye run was particularly robust—by June 29 the run was at record strength and on July 23 the run had exceeded the Department‘s upper escapement goal of 390,000 fish by more than 40,000. By August 7 nearly 490,000 sockeye had escaped into the Kasilof River. Although the Kenai River sockeye run began at an average level, it increased throughout the season and eventually exceeded the upper escapement goal of 1,200,000 fish by nearly 160,000.
By contrast the 2013 Kenai River king run was weak. Kenai River kings return during an early run in May and June and a late run in July and early August. Since 1986 the Kenai River king run never has failed to exceed the Department‘s minimum escapement goal, but according to the Department the “Kenai River [kings] are experiencing a period of lower abundance, with the 2013 run being one of the lowest on record.” The 2013 Kenai River king early run was “possibly the lowest run on record,” and the late run “was the lowest on record.”
The Department‘s historical data for late-run Kenai River king commercial harvest rates shows that although both set and drift netters primarily target sockeye, between 1986 and 2012 set netters incidentally harvested almost 14 times more late-run Kenai River kings than did drift netters. Another report shows that from 1966 to 2012 drift netters on average harvested only 6.4% of Upper Cook Inlet commercial kings, while set netters harvested the remaining 93.6%.
By regulation both set and drift netters in the Cook Inlet area may fish from seven in the morning until seven at night on Mondays and Thursdays.3 But as an area management biologist for the Department‘s commercial fisheries division testified at the preliminary injunction hearing: “In the various management plans the Board has provided the Department with the option of fishing more time to increase the harvest or to slow down the rate of escapement that is going into the various rivers.”
For example when the Kenai River sockeye late-run strength is between 2,300,000 and 4,600,000 fish, “the commissioner may, by emergency order, allow extra [set net] fishing periods of no more than 51 hours per week” in the commercial fishing waters at issue here.4 The late-run strength was at such a level in 2013. The Commissioner also may open supplemental set net fishing periods of up to 48 hours per week in the Kasilof River sockeye fishery,5 but on and after July 8 this fishery is governed by the 51-hour discretionary rule.6 On the other hand drift netters may be allowed an extra 12 discretionary fishing hours only between July 9 and July 15.7 The Upper Cook Inlet management plan governing both drift and set net fishing provides:
Notwithstanding any other provision of this chapter, it is the intent of the board that, while in most circumstances the department will adhere to the management plans in this chapter, no provision within a specific management plan is intended to limit the commissioner‘s use of emergency order authority . . . to achieve established escapement goals for the management plans as the primary management objective.8
According to the December 2013 Upper Cook Inlet Commercial Fisheries Annual Management Report, 2013 was a unique year: “The continued poor performance of the Kenai River late-run [king] salmon return combined with an above average sockeye salmon return led to an atypical management strategy during late July.” To account for these disparate run strengths, the Commissioner took the following actions during the 2013 commercial fishing season.
For the week of June 23, although 48 discretionary fishing hours were potentially available to some set netters, the Commissioner added only 2 hours. For the next week, although 48 discretionary fishing hours were potentially available to some set netters, the Commissioner added only 16 hours. For the week of July 7, although 51 discretionary fishing hours were potentially available to some set netters, the Commissioner added only 8 hours... That same week, drift netters fished an additional 12 hours.
During the week of July 14 the Commissioner opened some set net fishing for 18 additional hours, but drift netters were allowed an additional 42 hours. For the week of July 21 one regular 12-hour set net fishing day was closed, but drift netters fished their two regular 12-hour periods. The emergency order stated:
As of July 22, indices used to assess inriver abundance indicate a king salmon run that is below average. . . . At the current rate of harvest, the projected [Kenai River late-run king salmon] escapement will be below the [sustainable escapement goal]. . . . Therefore, limiting the harvest of king salmon in the . . . set gillnet fishery is warranted in an effort to achieve the [sustainable
escapement goal]. No more than one 12-hour [set net] fishing period per management week (Sun–Sat) will be allowed.
On July 28 the Commissioner closed the set net fishery “‘until further notice’ in response to projections that the Kenai River late-run of [king] salmon may not achieve the minimum [sustainable escapement goal].” Because the late-run Kenai River kings appeared unlikely to exceed the minimum escapement goal, the set net fishery remained closed through the end of the season. While the set net fishery remained closed, drift netters fished multiple regular 12-hour periods between July 28 and August 15, the end of the major commercial fishing season.
The Department‘s 2013 post-season preliminary data indicated the Kenai River late-run kings minimum escapement goal of 15,000 was exceeded by only about 400 salmon. As the Department noted in its December 2013 post-season management report:
As in 2012, poor performance of the early- and late-runs of [king] salmon into the Kenai River led to very conservative management of the set gillnet fishery, and ultimately a closure. . . . [T]he management approach . . . created a disparity in the harvest and opportunity between the two gear groups [set and drift netters] that normally does not exist.
Drift netters caught about 62% of the 2013 commercial sockeye harvest, while set netters caught about 38%.
B. Proceedings
1. CIFF‘s suit and preliminary injunction motion
On July 17 CIFF sued the Department and sought a preliminary injunction compelling the Commissioner to “open the required 51 hours of extra fishing periods for the Upper Cook Inlet set gillnet fishery.” It based its request on the Kenai River Late-Run Sockeye Salmon Management Plan, which provides in part that “the [C]ommissioner may, by emergency order, allow extra fishing periods of no more than 51 hours per week” when the Kenai River sockeye run is strong.9 CIFF argued that given the abundance of Kasilof River sockeye, set netters “should [have been] fishing up to 51 extra hours each week according to the management plan.”10 It contended that “[t]he Commissioner continues to limit the set gillnet permit holders[‘] fishing periods citing concerns for the Kenai River kings[, a]ll the while, allowing other user groups to catch kings.” It argued that the emergency orders were an illegal reallocation of resources—“a complete bypass of the Board‘s lawfully adopted management plan.”
In response the Department contended that “CIFF‘s legal arguments boil down to an insistence that the word ‘may’ in the Management Plan . . . be interpreted as ‘must.‘” The Department also argued that CIFF had not met the high standard required for mandatory preliminary injunctions.11 The Commissioner had done nothing wrong, the Department argued, because
CIFF replied: “The Department has recharacterized [our] request as one for a mandated opening of a maximum number of allotted additional hours. This is inaccurate. [We] request[] the Court require the Commissioner [to] comply with the management plans.” It argued the Commissioner was overstepping her emergency order authority by allowing an over-escapement of sockeye into the Kasilof River because “[o]verescapement is at least as detrimental to the salmon stock as under-escapement” and because the Commissioner should not “favor[] one escapement goal over the sustainability of another species.”
2. The preliminary injunction hearing and ruling
The superior court held a preliminary injunction hearing on July 30. CIFF clarified that it was seeking an injunction in part to require the Commissioner to exercise her “discretion and expand the number of hours available to [the set net] fishery,” and in part to “compel[] the Department to adhere to its own regulations.”
An area management biologist for the Department‘s commercial fisheries division testified. When asked why the drift net fishery remained open if the Department was attempting to protect the late-run Kenai River kings, the biologist responded that the Department made the “discretionary management” decision not to close that fishery because “the drifters harvest far fewer, about one[-]tenth of the king salmon that the setnet fishery harvests, [and] we‘re using [the drift netters] as a tool to control sockeye escapements while minimizing the harvest of king salmon.”
Recalling a Board meeting after the challenging 2012 fishing year, the biologist testified that although the Board considered many proposed changes to its management plans, it decided not to change the plans and instead “told the Department: Go out and do your job. Take the management plans that we have crafted and we‘ll trust your discretionary use of . . . emergency order authority and following the plans as they‘re written...” When asked whether the Department prioritized exceeding minimum escapement goals over not exceeding maximum ones, the biologist replied that the Department placed a “higher priority” on exceeding a minimum escapement goal, but that it also tried not to exceed maximum escapement goals by too much.
CIFF presented the telephonic testimony of a retired area management biologist. The retired biologist expressed his opinion that in 2012 the Department had “basically put the priority on king salmon management and . . . let the dice roll or whatever on sockeye management.” He believed that in 2013 the Department also “put the priority on king salmon conservation” while risking over-escaping sockeye populations. According to the retired biologist, both over-escapement and under-escapement are detrimental to the sustained yield of a stock, but over-escapement could reduce future yield anywhere from 10% to 20%. On cross-examination, however, the retired biologist admitted that he had “over-escaped” the Kasilof River sockeye run “numerous times” when it was under his management.
The Department‘s director of commercial fisheries also testified; like the Department‘s current biologist, he stated that he came away from the 2012 Board meeting with a sense that the Board made no changes to its management plans because it trusted the Department to use its discretionary authority appropriately. The director also explained that the Department‘s discretionary authority existed to deal with the fact that “Mother Nature throws curves at us every year, . . . be it run timing, run strength, size of fish, [or] vulnerability to gear.” He testified that the Department prioritized meeting the lower range of an escapement goal over exceeding the upper range because not meeting an escapement goal was riskier than exceeding one. “[Y]ou have to be real cautious about counting on something happening at the end of the season,” the director said, “because if you‘re wrong, there is no room to catch back up. There‘s no . . . fish run left. And so that‘s why you see us being conservative at this point.”
The day after the hearing the superior court issued an order denying CIFF‘s request for a preliminary injunction. The court found that because CIFF‘s claim involved only economic harm, the harm was not irreparable. The court then reasoned that the Department‘s interests would not be adequately protected if the set net fishery were reopened because “serious harm to the health” of the late-run Kenai River kings could result, and this harm would thwart the Department‘s “constitutional duty to manage” fish stocks consistent with sustained yield.
The superior court therefore declined to apply the balance-of-hardships test and instead analyzed whether CIFF had demonstrated “a clear showing of probable success on the merits.” The court concluded that CIFF had not, because the additional 51 discretionary fishing hours per week that CIFF wanted the Commissioner to provide were just that—discretionary. The court also concluded that the Commissioner‘s in-season management decisions did not reallocate salmon stocks in contravention of the various management plans, all of which granted the Commissioner considerable discretion. Crediting the Department employees’ testimony, the court found that “the risk of an underescapement is much more likely to have a detrimental long-term impact on the Kenai River king salmon than the negative impact caused by an overescapement of Kasilof River sockeye salmon.” The court refused to second-guess the Commissioner‘s discretionary use of her emergency authority, concluding that an injunction requiring the Department to comply with the applicable regulations “would serve no effective purpose” and that an injunction mandating additional set net fishing times “would be unworkable and unreasonable in the present circumstances.”
3. CIFF‘s other causes of action
The day before the preliminary injunction hearing CIFF had amended its complaint to include: (1) a claim for declaratory relief requesting that the court uphold the validity of the Board‘s salmon management plans and direct the Department to follow them; (2) a claim under the Alaska Constitution‘s various natural resources clauses alleging that the Department “violated [CIFF‘s] constitutional rights by improperly excluding its members from fishing regularly scheduled periods and extra periods, while at the same time allowing all other user groups to fish their regular period[s] and additional extra periods“; and (3) a claim for “negligent management and/or willful mismanagement of fisheries.” CIFF sought damages for its set netter members in connection with its constitutional and tort claims.
The Department moved for summary judgment on all of CIFF‘s claims. In opposing summary judgment CIFF argued that “summary judgment cannot be granted to the [D]epartment because CIFF has moved for discovery under [Alaska Civil Rule] 56(f).”12 In a four-paragraph order the superior court granted summary judgment to the Department. It reasoned that no material facts were in dispute and that CIFF “failed to articulate any concrete way in which the Department overstepped its management authority other than the claim—already rejected [in connection with the] preliminary injunction [motion]—that [CIFF‘s set netters] were entitled to 51 hours of extra fishing-time by law.” The superior court awarded the Department 30% of its attorney‘s fees, about $19,400, justifying the award on the
CIFF appeals, arguing that the superior court abused its discretion by denying CIFF‘s
III. STANDARD OF REVIEW
“An
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion By Implicitly Denying CIFF‘s Civil Rule 56(f) Request.
In opposing summary judgment CIFF requested a
The management decisions themselves—the emergency orders, which included the reasons for them—were compiled and pre- sented
We note that CIFF did not sue the Commissioner in her personal capacity. Had CIFF sued the Commissioner for damages in her personal capacity and shown under our three-factor test that the Commissioner‘s official immunity was qualified as opposed to absolute,19 then whether the Commissioner had exercised her allowable discretion in bad faith, with malice, or with corrupt motives might be relevant to her qualified official immunity.20 But CIFF sued only the Department, asserting only that the Commis- sioner‘s discretionary actions had violated the Board‘s fisheries management plans—we emphasize that each and every claim and request for relief set forth in CIFF‘s amended complaint was predicated on the allegation the Commissioner‘s actions violated the Board‘s management plans.
B. The Superior Court Did Not Err By Granting Summary Judgment On CIFF‘s Claim Of Fishery Mismanagement In Violation Of Board Management Plans.
CIFF argues that the retired biologist‘s testimony during the preliminary hearing created genuine issues of material fact as to the Department‘s mismanagement of the Upper Cook Inlet fishery in violation of the Board‘s management plans. CIFF emphasizes the retired biologist‘s testimony that the Department “basically put the priority on king salmon management, and . . . let the dice roll or whatever on sockeye management.” CIFF also highlights the retired biologist‘s testimony that the Department should have followed “a cookbook plan” for late-run Kenai River king management and that the Kasilof River sockeye fishery should have been opened earlier because the relevant management plan21 gives the Department, in the retired biologist‘s words, “the instruction [that] if you get 50,000 fish in here between . . . June 20th and June 25th, trigger an early opening if you think it‘s
1. CIFF‘s reliance on Peninsula Marketing Ass‘n v. Rosier is misplaced.
The gist of CIFF‘s argument is that the Commissioner‘s discretionary in-season management decisions resulted in a “massive reallocation” of salmon resources contrary to the Board‘s intent, and CIFF cites Peninsula Marketing Ass‘n v. Rosier for the proposition that “an emergency order may not be used by the [D]epartment to ‘override’ decisions by the [B]oard.”25 In Rosier the Commissioner had recommended that the Board reduce the number of subsistence chum salmon that a sockeye fishery could incidentally harvest before closing to preserve subsistence chum uses, and although the Board extensively considered the proposal and heard public testimony during its regular meeting, it chose not to adopt the Commissioner‘s proposal.26 The Governor later “directed the Commissioner to use his emergency powers to increase the chum escapement into various river systems, notwithstanding the Board‘s failure to adopt the Commissioner‘s proposal,” the Commissioner did so, and commercial sockeye fishers sought to enjoin the Commissioner‘s action in superior court.27 The superior court issued an injunction.28 On appeal we affirmed, holding “that the Commissioner may not use his emergency powers to implement a fisheries management program already considered and rejected by the Board, in the absence of newly developed information or events occurring after the Board‘s decision.”29
Unlike in Rosier, where the Commissioner clearly contravened the Board‘s decision, nothing in this case indicates that the Commissioner‘s discretionary in-season management decisions conflicted with the Board‘s management plans. CIFF‘s statement to the contrary—that “this is a situation where the [B]oard had already decided to leave the framework plans in place, such that the [D]epartment‘s 2013 in-season actions did indeed override a specific [B]oard decision“—has no factual foundation because CIFF fails to cite any specific management plan provision the Commissioner allegedly violated. CIFF‘s reliance on Rosier is thus misplaced.
2. The Commissioner‘s discretionary in-season management decisions were authorized by the Board‘s management plans.
The Commissioner‘s discretionary in-season management decisions—curbing and then closing the set net but not the drift net fishery when faced with a strong sockeye run, a weak king run, and data indicating set netters incidentally harvest more kings—all were within the range of discretion permitted by the Board.
The Kasilof River Salmon Management Plan states that in harvesting “salmon excess to spawning escapement needs,” the fishery must be opened “consistent with escapement objectives for upper Cook Inlet salmon,” which logically includes the escapement objectives for late-run Kenai River kings.33 The broader Upper Cook Inlet Salmon Management Plan states that “the burden of conservation shall, to the extent practicable, be shared among all user groups in close proportion to their respective harvest on the stock of concern.”34 Although Department employees testified the late-run Kenai River kings were not yet an official “stock of concern,”35 data indicated that the Kenai River king stock had begun to severely weaken in recent years. Because the set net fishery incidentally harvests roughly 14 times more kings than the drift net fishery, it was logical and permissible under the Upper Cook Inlet Salmon Management Plan for the Commissioner to restrict set net fishing while using the drift net fishery to control the upper escapement limits for sockeye populations returning to the Kasilof and Kenai Rivers.
CIFF argues, without any specificity, that the Commissioner violated management plans. But every relevant management plan contains a provision recognizing that the Commissioner‘s emergency authority is instrumental to effective fisheries management:
Notwithstanding any other provision of this chapter, it is the intent of the board that, while in most circumstances the [D]epartment will adhere to the management plans in this chapter, no provision within a specific management plan is intended to limit the commissioner‘s use of emergency order authority under
AS 16.05.060 to achieve established escapement goals for the management plans as the primary management objective.36
The statewide salmon management plan counsels that “in the face of uncertainty, salmon stocks . . . shall be managed conservatively” using a “precautionary approach” to avoid “potentially irreversible changes,”37 and it explicitly states “that where the impact of resource use is uncertain, but likely presents a measurable risk to sustained yield, priority should be given to conserving the productive capacity of the resource.”38 The Commissioner‘s actions were undisputedly directed toward preserving the late-run Kenai king stock, which through her efforts
Recognizing the complexity of Alaska‘s fisheries, we repeatedly have refrained from substituting our judgment for that of the trained biologists and other scientists hired to manage Alaska‘s fisheries.40 We similarly have refrained from second-guessing the Commissioner‘s use of her statutory discretionary authority: “The Commissioner may . . . use the emergency order process to close down one type of fishery and not another in order to implement a policy establishing priorities of use.”41 And we previously held that a fishery management policy was not arbitrary and unreasonable, but rather was “consistent with and reasonably necessary to the conservation and development of Alaska fishery resources,” when it limits harvest quotas and fishing times in two fisheries to protect escapement levels in an adjoining fishery.42
Based on the parties’ evidence and arguments, no one disputes the state of Upper Cook Inlet‘s 2013 king and sockeye runs or the discretionary actions the Commissioner took during the commercial fishing season. During the preliminary injunction litigation CIFF compiled and presented a lengthy exhibit including all of the Commissioner‘s emergency orders forming the basis of CIFF‘s fisheries mismanagement claim. The testimony of a retired biologist that the Commissioner prioritized king management while letting “the dice roll or whatever on sockeye management” does not create a genuine issue of material fact whether the Commissioner‘s emergency orders were outside her authority and violated the Board‘s management plans. The superior court properly granted summary judgment to the Department on CIFF‘s fishery mismanagement claim.43
CIFF accuses the Department of violating article VIII‘s uniform application clause, which provides: “Laws and regulations governing the use or disposal of natural resources shall apply equally to all persons similarly situated with reference to the subject matter and purpose to be served by the law or regulation.”45 Classifications made under this clause must have a “legitimate purpose” important enough to justify “infringement on article VIII‘s open access values.”46 The Commissioner‘s emergency order restricting the set net fishery stated as its purpose achieving the sustainable escapement goal for the late-run Kenai River kings.
As a threshold matter CIFF argues that our previous cases on Article VIII natural resources rights are all distinguishable because each dealt with Board regulations and not “in-season management measures taken by the [D]epartment.” But this distinction matters little. The Alaska Constitution empowers the legislature to utilize, develop, and conserve Alaska‘s fisheries;47 the legislature delegated this power to the Board of Fisheries;48 and the Board in turn chose to rely on the Commissioner‘s statutory emergency order authority to attain regulatory escapement goals for the various Upper Cook Inlet fish stocks.49 Accordingly our precedents analyzing Article VIII claims apply equally to both the Board‘s regulations and the Commissioner‘s in-season emergency orders implementing them, which have “the force and effect of law.”50
The [natural resources] article‘s primary purpose is to balance maximum use of natural resources with their continued availability to future generations. In keeping with that purpose, all replenishable resources are to be administered, insofar as practicable, on the sustained yield principle.52
Alaska‘s statewide salmon management policy lists as one of its goals the “conservation of salmon,”53 and under our Constitution, statutes, and regulations, salmon must be conserved for the benefit of all Alaskans.54 “Conserving implies controlled utilization of a resource to prevent its exploitation, destruction or neglect.... If the Board [and the Commissioner are] to accomplish [their] designated purposes, [they are] necessarily going to make decisions concerning utilization of the resources [they are] charged with managing.”55
We have held that a regulation that opens two “mixed stock interceptor fisheries” only after a third fishery has harvested enough of a certain salmon stock “to ensure proper escapement levels to guarantee sustained yield,” and which further allocates the majority of the harvest to the third fishery, does not violate the uniform application clause.56 Although one‘s right to equally access Alaska‘s fish resources “is a ‘highly important interest running to each person within the state,‘” 57 we concluded that the importance of the Board‘s interest in adopting the regulation—“ensur[ing] proper escapement levels“—justified regulating the three fisheries differently.58 Similarly the emergency orders limiting and then closing the set net fishery were justified in light of the historically low Kenai River king run and the fact that the set netters incidentally harvest substantially more kings than drift netters. Accordingly the Department‘s management decisions did not deny CIFF equal protection under article VIII‘s uniform application clause.
D. The Superior Court Did Not Err When It Denied CIFF‘s Injunctive Relief Claim.
CIFF argues that the superior court abused its discretion by denying CIFF‘s request for injunctive relief directing the Department to follow the Board‘s management plans. Such an injunction, it argues, complies with
When it granted summary judgment to the Department, the superior court did not expressly rule on CIFF‘s request for injunctive relief, but it did note that CIFF “failed to
E. The Superior Court Did Not Abuse Its Discretion When It Awarded Enhanced Attorney‘s Fees.
The superior court awarded the Department 30% of its reasonably incurred attorney‘s fees, about $19,400, reasoning that through the preliminary injunction hearing “the case was, in essence, tried on the merits.”63 The court also justified its award on the ground that CIFF “presented fairly complex issues requiring expert testimony on statistical sampling and analysis of the impact of set-netting on fish populations.”64
CIFF argues that the superior court abused its discretion by awarding the Department 30% of its attorney‘s fees, rather than 20%, because the preliminary injunction hearing was not similar to a trial and because it “did not resolve or even address all (or most) of the issues presented.” The Department defends the award, arguing that it “was consistent with the civil rules, supported by the record, and within [the superior court‘s] discretion.”
We affirm the enhanced fee award based on the complexity of the litigation alone65 and express no opinion on whether preliminary injunction hearings can be treated like trials for attorney‘s fees purposes. Accordingly the superior court did not abuse its discretion when it awarded the Department 30% of its reasonably incurred attorney‘s fees.
We AFFIRM the superior court‘s judgment.