Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

KENNETH H. MANNING, 

Appellant, 

v. 

STATE OF ALASKA, DEPARTMENT 

OF FISH & GAME, KEVIN M. SAXBY

and AHTNA TENE NENÉ, INC., 

Appellees. 

,

) 

) Supreme Court No. S-15121 

Superior Court No. 3KN-11-00367 CI 

O P I N I O N 

No. 7008 – May 15, 2015
 

) 

) 

) 

) 

)
 

 ) 

)
 

) 

) 

) 

Appeal from the Superior Court of the State of Alaska, Third 

Judicial District, Kenai, Anna Moran and Charles T. 

Huguelet, Judges. 

Appearances: Kenneth H. Manning, pro se, Kasilof, 

Appellant. Michael G. Mitchell, Assistant Attorney General, 

Anchorage, and Michael C. Geraghty, Attorney General, 

Juneau, for Appellee State of Alaska. Brenda B. Page, Senior 

Assistant Attorney General, Anchorage, and Michael C. 

Geraghty, Attorney General, Juneau, for Appellee Saxby. 

John M. Starkey, Law Office of John Sky Starkey, LLC, 

Anchorage, for Appellee Ahtna Tene Nené, Inc. 

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and 

Bolger, Justices. 

WINFREE, Justice. 
 

 

 

 

 

 

 

 

 

 

 

 

I. INTRODUCTION 

The Alaska Board of Game promulgated regulations managing caribou 

hunting in Game Management Unit 13. The regulations allow hunting under three types 

of permits: a community harvest subsistence permit, an individual subsistence permit, 

or a non-subsistence drawing permit. A hunter challenged the regulations on 

constitutional and statutory grounds, arguing that they wrongfully interfered with his 

subsistence hunting rights, and also sought a judicially imposed public reprimand of an 

assistant attorney general representing the Board. The superior court dismissed the claim 

against the attorney, granted summary judgment upholding the regulations, and awarded 

partial attorney’s fees to the State and an intervenor defendant. The hunter appeals. We 

affirm the dismissal and summary judgment orders, but vacate the attorney’s fees awards 

and remand for further proceedings. 

II. FACTS AND PROCEEDINGS 

This case involves a challenge to the Board of Game’s 2010 amendments 

to regulations for subsistence caribou hunting in Game Management Unit 13, known as 

the Nelchina basin.1 Under the governing statute, if a game population can be harvested 

consistent with sustained yield principles, the Board must “determine the amount of the 

harvestable portion that is reasonably necessary for subsistence uses.”2 (This is 

1 We recently discussed the history of caribou hunting regulation in the 

Nelchina basin in Alaska Fish & Wildlife Conservation Fund v. State (AFWCF II), ___ 

P.3d ____, Op. No. 6992 at 2-5, 2015 WL 1393374, at *1-2 (Alaska Mar. 27, 2015) 

(concerning subsistence moose and caribou hunting in Game Management Units 11, 12, 

and 13, collectively referred to therein as the “Copper Basin”) and Ahtna Tene Nené v. 

State, Department of Fish & Game, 288 P.3d 452, 455-57 (Alaska 2012) (concerning 

subsistence moose and caribou hunting in Game Management Unit 13 only, referred to 

therein as the “Nelchina basin”). 

2 AS 16.05.258(b). 

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3 commonly called the “amount reasonably necessary for subsistence,” or “ANS.” )

Subsistence uses are managed at either the Tier I or Tier II level.4 Tier I management is 

appropriate when the Board concludes that the allowable harvest is sufficient to provide 

a reasonable opportunity for all subsistence uses; otherwise Tier II management is 

appropriate.5 Subsistence hunting under Tier II is more limited, with permits allocated 

based on specific eligibility criteria.6 

In 1993 the Board determined that the ANS for Nelchina caribou was 

“100% of the allowable harvest” because the demand for subsistence hunting 

“exceed[ed] supply.” The Board therefore managed the Nelchina caribou hunt under 

Tier II. Following a stream of complaints that the Tier II system did not provide 

sufficient subsistence opportunity for Nelchina caribou, the Board began developing new 

regulations in 2006. The Board made new findings about the customary and traditional 

uses of Nelchina caribou and adopted regulations requiring that hunters conform to 

identified practices. In March 2009 the Board determined the ANS to be 600-1,000 

animals, accounting for the demand of only those hunters following the customary and 

traditional use practices identified in its findings. Based on the revised ANS and that 

year’s estimated allowable harvest of 1,000 animals, the Board transitioned management 

of the Nelchina caribou hunt from a Tier II to a Tier I system. The regulations created 

two types of subsistence hunting permits: a community harvest permit and an individual 

3 See 5 Alaska Administrative Code (AAC) 99.025(c)(1) (2014). 

4 AS 16.05.258(b); State, Dep’t of Fish & Game v. Manning, 161 P.3d 1215, 

1216-17 (Alaska 2007). 

5 AS 16.05.258(b); Manning, 161 P.3d at 1216-17; 5 AAC 92.990(a)(47), 

(48). 

6 Manning, 161 P.3d at 1216-17; 5 AAC 92.062. 

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permit. 7 The regulations were challenged in superior court and invalidated on the 

grounds that (1) they were unconstitutional and (2) the Board’s decision to change the 

caribou hunt from Tier II to Tier I was arbitrary and unreasonable and violated the 

Alaska Administrative Procedure Act’s notice requirement.8 

The Board addressed the invalidated regulations at its October 2010 

meeting. After reviewing extensive evidence on population and hunting trends for 

Nelchina caribou, the Board again calculated the ANS at 600-1,000 animals. Because 

the estimated allowable harvest of 2,300 caribou was greater than the ANS, the Board 

concluded that the Nelchina caribou subsistence hunt must be managed under Tier I. 

The Board then reinstated the bifurcated community/individual subsistence hunt system, 

with revisions, and also allowed issuance of non-subsistence hunt drawing permits.9 

The regulations establish that any group of 25 or more persons may apply 

for a community harvest subsistence permit entitling each group member to harvest one 

caribou during the regulatory year.10 The group must follow the customary and 

traditional use pattern identified by the Board for community subsistence hunts.11 

Individual subsistence permit holders also are entitled to harvest one caribou per 

household during the regulatory year, but are not subject to the community harvest 

7 See Ahtna Tene Nené v. State, Dep’t of Fish & Game, 288 P.3d 452, 455-56 

(Alaska 2012). 

8 Id. at 456. The ruling was appealed, but we dismissed the appeal as moot 

after the Board again amended its regulations. Id. at 458, 463. 

9 5 AAC 85.025(a)(8). See generally AFWCF II, ___ P.3d ___, Op. No. 

6992 at 2-5, 2015 WL 1393374, at *1-2 (Alaska Mar. 27, 2015) (describing amended 

permitting scheme and restrictions); Ahtna Tene Nené, 288 P.3d at 456-57. 

10 5 AAC 85.025(a)(8), 92.072(c)(1). 

11 5 AAC 92.072(c)(1)(D). 

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hunt’s customary and traditional use restrictions.12 Up to 300 caribou may be taken each 

year under community harvest permits, while no cap is placed on the total number of 

caribou that may be taken under individual permits.13 All subsistence permit holders are 

subject to the same hunting regulations and their hunting seasons and areas are the 

same.14 And all subsistence permits prohibit taking more than one caribou per household 

and hunting caribou in any other location during the permit year.15 

In April 2011 Kenneth Manning filed suit against the Alaska Department 

of Fish and Game (Department) and Assistant Attorney General Kevin Saxby. Manning 

sought an injunction preventing the Department from implementing the Nelchina caribou 

community subsistence hunt regulations on various constitutional and statutory grounds, 

and sought a judicially imposed reprimand of Saxby for alleged violations of law while 

he was representing the Board. Ahtna Tene Nené (Ahtna) was permitted to intervene as 

a defendant. Shortly thereafter the superior court dismissed the claim against Saxby, 

concluding that he was entitled to discretionary and qualified immunity and that the court 

could not grant the specific relief Manning sought. 

In late October 2011 the Department issued an emergency order closing the 

Nelchina caribou hunt to non-subsistence drawing permit holders. Manning, who held 

an individual subsistence hunt permit, moved for an “emergency expedited ex parte 

preliminary injunction” enjoining the closure, but the superior court denied the motion 

because Manning lacked standing. In early December 2011 the Department closed the 

12 5 AAC 85.025(a)(8), 92.071(a). 

13 5 AAC 85.025(a)(8). 

14 Id.; 5 AAC 92.072(d). 

15 5 AAC 92.050(a)(4)(I). 

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individual subsistence hunt, and three days later the Department closed the community 

harvest subsistence hunt. 

Manning filed a summary judgment motion in June 2012, and the 

Department and Ahtna filed cross-motions for summary judgment. In April 2013 the 

superior court denied Manning’s motion and granted the Department’s and Ahtna’s 

cross-motions, concluding that the Board’s decision to change the Nelchina caribou hunt 

from a Tier II hunt to a Tier I hunt was reasonable and consistent with statute16 and that 

the new regulations were constitutional and did not violate the public trust doctrine. The 

court also rejected Manning’s argument that the Department provided insufficient notice 

under the Administrative Procedure Act before it closed the individual and community 

harvest subsistence hunts by emergency order. 

During and following the summary judgment proceedings Manning filed 

several motions to disqualify the presiding judge and a motion for new proceedings, 

alleging the judge was biased and incompetent. Each motion was denied. 

The Department and Ahtna moved for attorney’s fees, and the superior 

court awarded them partial fees as prevailing parties under Alaska Civil Rule 82. The 

court concluded that 15 of the 30 counts in Manning’s complaint requested constitutional 

relief and were not frivolous, so Manning could not be liable for attorney’s fees incurred 

in connection with those claims under AS 09.60.010.17 The court awarded attorney’s 

16 Specifically the superior court concluded: (1) the decision to change the 

ANS for Nelchina caribou was reasonable and supported by sufficient evidence; (2) the 

ANS range calculated by the Board in October 2010 was reasonable and supported by 

sufficient evidence; and (3) the Board’s decision to transition from a Tier II to a Tier I 

hunt was supported by sufficient evidence. 

17 AS 09.60.010(c)(2) provides that a court: 

[M]ay not order a claimant to pay the attorney fees of the 

(continued...) 

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fees for all time spent on “non-constitutional, procedural issues,” and for 50% of the time 

spent on work in which the type of claim could not be identified. The court also reduced 

the hourly rates the Department and Ahtna claimed by half because Manning was 

indigent, resulting in final awards of $4,573 to the Department and $1,080 to Ahtna. 

Manning appeals. 

III.	 STANDARD OF REVIEW 

“We review grants of motions to dismiss and grants of summary judgment 

de novo . . . .”18 

“We presume that regulations are valid and we place the burden of proving 

otherwise on the challenging party”:19 

We review an agency’s regulation for whether it is 

“consistent with and reasonably necessary to implement the 

statutes authorizing [its] adoption.” Toward this end we 

consider: (1) whether [the agency] exceeded its statutory 

authority in promulgating the regulation; (2) whether the 

regulation is reasonable and not arbitrary; and (3) whether the 

17	 (...continued) 

opposing party devoted to claims concerning constitutional 

rights if the claimant . . . did not prevail in asserting the right, 

the action or appeal asserting the right was not frivolous, and 

the claimant did not have sufficient economic incentive to 

bring the action or appeal regardless of the constitutional 

claims involved. 

18 Smith v. State, 282 P.3d 300, 303 (Alaska 2012) (citing Interior Cabaret, 

Hotel, Rest. & Retailers Ass’n v. Fairbanks N. Star Borough, 135 P.3d 1000, 1002 

(Alaska 2006)). 

19 West v. State, Bd. of Game, 248 P.3d 689, 694 (Alaska 2010) (citing Lakosh 

v. Alaska Dep’t of Envtl. Conservation, 49 P.3d 1111, 1114 (Alaska 2002)). 

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regulation conflicts with other statutes or constitutional 

provisions.[20] 

Reviewing whether a regulation is reasonable and not arbitrary “consists primarily of 

ensuring that the agency has taken a hard look at the salient problems and has genuinely 

engaged in reasoned decision making.”21 

“We apply the reasonable basis standard to questions of law involving 

‘agency expertise or the determination of fundamental policies within the scope of the 

agency’s statutory functions.’ ”22 We also review an agency’s application of law to facts 

under the reasonable basis standard.23 But we exercise our independent judgment in 

reviewing whether an agency action is consistent with the Alaska Constitution.24 

“We review de novo whether the trial court applied the law correctly in 

awarding attorney’s fees.”25 

20 Wilber v. State, Commercial Fisheries Entry Comm’n, 187 P.3d 460, 464­

65 (Alaska 2008) (first alteration in original) (quoting Grunert v. State, 109 P.3d 924, 

929 (Alaska 2005)). 

21 Interior Alaska Airboat Ass’n v. State, Bd. of Game, 18 P.3d 686, 690 

(Alaska 2001) (citing Tongass Sport Fishing Ass’n v. State, 866 P.2d 1314, 1319 (Alaska 

1994); Gilbert v. State, Dep’t of Fish & Game, 803 P.2d 391, 398 (Alaska 1990)). 

22 Davis Wright Tremaine LLP v. State, Dep’t of Admin., 324 P.3d 293, 299 

(Alaska 2014) (quoting Marathon Oil Co. v. State, Dep’t of Natural Res., 254 P.3d 1078, 

1082 (Alaska 2011)). 

23 Alaska Fish & Wildlife Conservation Fund v. State, Dep’t of Fish & Game, 

Bd. of Fisheries (AFWCF I), 289 P.3d 903, 907 (Alaska 2012) (citing Koyukuk River 

Basin Moose Co-Mgmt. Team v. Bd. of Game, 76 P.3d 383, 386 (Alaska 2003)). 

24 Id. 

25 Lake & Peninsula Borough Assembly v. Oberlatz, 329 P.3d 214, 221 

(Alaska 2014) (alteration omitted) (quoting Marron v. Stromstad, 123 P.3d 992, 998 

(continued...) 

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IV.	 DISCUSSION 

A.	 The Regulation Managing The Nelchina Caribou Hunt Under Tier I 

Is Consistent With The Statute And Is Reasonable And Not Arbitrary. 

Manning argues that the Board’s decision to manage the Nelchina caribou 

hunt under Tier I — executed through 5 AAC 85.025(a)(8)26 — is unlawful, and that the 

hunt must be managed under Tier II. But the Board’s decision is lawful so long as 

5 AAC 85.025(a)(8) is consistent with the statute and is reasonable and not arbitrary.27 

Alaska Statute 16.05.258(b) requires the Board to adopt regulations managing a game 

population under Tier II only “if the harvestable portion of the . . . population is not 

sufficient to provide a reasonable opportunity for subsistence uses.”28 We construe 

Manning’s argument to be that 5 AAC 85.025(a)(8) is inconsistent with its authorizing 

statute — AS 16.05.258(b) — because it impermissibly allows the Board to manage the 

subsistence hunt under Tier I when the allowable harvest of Nelchina caribou is 

insufficient to provide a reasonable opportunity for subsistence uses. Manning’s 

argument thus turns on whether the Board lawfully could conclude that a reasonable 

25 (...continued) 

(Alaska 2005)) (internal quotation marks omitted). 

26 5 AAC 85.025(a)(8) establishes bag limits and hunting seasons for 

Nelchina caribou under a Tier I management scheme. 

27 See Wilber v. State, Commercial Fisheries Entry Comm’n, 187 P.3d 460, 

464-65 (Alaska 2008) (citing Grunert v. State, 109 P.3d 924, 929 (Alaska 2005)). It is 

undisputed that the Board has statutory authority to promulgate regulations managing 

subsistence game hunts. See AS 16.05.258. The fact that the Board previously 

determined the Nelchina caribou hunt had to be managed under Tier II does not affect 

the standard of review or analysis. See AFWCF I, 289 P.3d at 912 (noting Board of 

Fisheries “is not required to strictly adhere to its early determinations, especially when 

provided new contradictory data”). 

28 AS 16.05.258(b)(4). 

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opportunity for subsistence uses exists. The meaning of “reasonable opportunity for 

subsistence uses” involves the Board’s expertise and is committed to the Board’s 

discretion by statute,29 so the Board’s determination that a reasonable opportunity exists 

is consistent with statute if the determination has a reasonable basis.30 

Manning argues the Board cannot conclude that a reasonable opportunity 

for subsistence uses exists because the Board relied on an ANS value it had “unlawfully 

reduce[d].” And because the Board must manage a hunt at the Tier II level if the 

harvestable surplus is below the ANS,31 the Board could not reasonably conclude that 

a reasonable opportunity for subsistence uses existed if it relied on an improper ANS 

value. 

Manning argues the ANS determination is unlawful in two ways: (1) the 

Board violated the Alaska Constitution by relying on impermissible user characteristics 

in its ANS calculation; and (2) the ANS determination is unreasonable. Although the 

ANS determination was published as a regulation — 5 AAC 99.025(a)(4) — the 

29 See AS 16.05.258(f) (“For purposes of this section, ‘reasonable 

opportunity’ means an opportunity, as determined by the appropriate board, that allows 

a subsistence user to participate in a subsistence hunt or fishery that provides a normally 

diligent participant with a reasonable expectation of success of taking of fish or game.” 

(emphasis added)). 

30 See Davis Wright Tremaine LLP v. State, Dep’t of Admin., 324 P.3d 293, 

299 (Alaska 2014) (citing Marathon Oil Co. v. State, Dep’t of Natural Res., 254 P.3d 

1078, 1082 (Alaska 2011)). 

31 ALASKA DEP’T OF FISH & GAME, DIV. OF SUBSISTENCE, GUIDELINES FOR 

PREPARING OPTIONS FOR THE ALASKA BD. OF FISHERIES & ALASKA BD. OF GAME FOR 

AMOUNT REASONABLY NECESSARY FOR SUBSISTENCE (ANS) FINDINGS 1 (vers. 1.0, 

2009); see also 5 AAC 99.025(c)(1) (defining ANS as “the total amount of animals from 

a population that must be available for subsistence hunting in order to provide a 

reasonable opportunity for subsistence uses”). 

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determination is an application of law to facts which is reviewed for a reasonable basis.32 

The Board’s discretion under this standard is limited, however: “The Board’s ultimate 

decisions must be reasonably related to the purposes of the subsistence law; in other 

words, the Board may not manipulate [an underlying determination] simply to achieve 

a predetermined outcome.”33 

1.	 The Board’s ANS calculation was not based on unconstitutional 

factors. 

Manning asserts that the Board improperly used “rail belt and urban 

residency, ‘community,’ and/or Ahtna racial customs and traditions to pre-determine 

who is or is not a subsistence user” in calculating the ANS, and asserts that consideration 

of these factors violates the Alaska Constitution. (Emphasis in original.) But 

AS 16.05.258(b) refers to ANS in terms of subsistence uses, not users. 

34 The record 

reveals that the Board included a broad variety of subsistence uses in its ANS 

calculation. And even if the Board had defined subsistence uses of Nelchina caribou to 

include only local community hunting practices, it would not necessarily have violated 

the Alaska Constitution — considering certain users’ patterns to define the subsistence 

uses placing demand on a game population affects only that game population’s 

classification; it “does not affect any individual’s ability to obtain a subsistence permit 

32 See AFWCF I, 289 P.3d at 907 (citing Koyukuk River Basin Moose CoMgmt. Team v. Bd. of Game, 76 P.3d 383, 386 (Alaska 2003)) (application of law to 

facts is reviewed for reasonable basis); see also State v. Kenaitze Indian Tribe, 894 P.2d 

632, 641 (Alaska 1995) (stating fish and game allocation decisions generally are 

reviewed for reasonable basis). 

33 Native Vill. of Elim v. State, 990 P.2d 1, 11 (Alaska 1999). 

34 AS 16.05.258(b) states, “[T]he board shall determine the amount of the 

harvestable portion that is reasonably necessary for subsistence uses.” 

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or to utilize that permit in a subsistence area.” 35 The Board’s subsistence definition 

applies equally to all of Alaska’s citizens. Accordingly, the Board’s ANS calculation 

does not implicate, nor violate, the equal access, uniform application, or equal protection 

clauses of the Alaska Constitution.36 

2. The Board’s ANS calculation is reasonable. 

Manning also asserts that the ANS calculation was improperly reduced for 

the purpose of converting the hunt to Tier I and implementing a community subsistence 

hunt. But Manning points to nothing in the record indicating the Board “manipulate[d]” 

the ANS “simply to achieve a predetermined outcome.”37 On the contrary, considerable 

evidence in the record justifies the Board’s ANS calculation and demonstrates that the 

Board took “a hard look at the salient problems and . . . genuinely engaged in reasoned 

decision making.”38 

The Board reviewed extensive evidence on long-term harvest, customary 

and traditional use patterns, and caribou population trends, and it considered a number 

of proposals for defining subsistence uses of Nelchina caribou in making its ANS 

determination. It concluded the 600-1,000 ANS best fit the available data after 

considering at least eight possible ANS options. The Board identified substantial 

evidentiary support justifying the customary and traditional use definition applied in its 

ANS determination. And the Board continued to consider a number of proposed 

35 AFWCF I, 289 P.3d at 910. 

36 See id. 

37 Native Vill. of Elim, 990 P.2d at 11. 

38 Interior Alaska Airboat Ass’n v. State, Bd. of Game, 18 P.3d 686, 690 

(Alaska 2001) (citing Tongass Sport Fishing Ass’n v. State, 866 P.2d 1314, 1319 (Alaska 

1994); Gilbert v. State, Dep’t of Fish & Game, 803 P.2d 391, 398 (Alaska 1990)). 

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management regimes — including a Tier II hunt — after calculating the ANS, suggesting 

the ANS calculation was not merely a pretext for switching to a Tier I hunt. The Board 

concluded that “Tier II is off [the] table” only after comparing the adopted ANS to the 

harvestable surplus. 

Although there is some evidence that the Board preferred that the ANS 

determination ultimately allow for a Tier I hunt, it does not appear that the ANS was 

improperly manipulated to achieve a predetermined outcome. The record provides 

sufficient evidentiary support demonstrating that the Board’s ANS calculation is both 

procedurally and substantively reasonable. Accordingly the Board reasonably concluded 

that there is a reasonable opportunity for subsistence uses. Managing the Nelchina 

caribou hunt under Tier I through 5 AAC 85.025(a)(8) is consistent with the statute and 

is reasonable and not arbitrary. 

B.	 The 2011 Closures By Emergency Order Did Not Violate The 

Administrative Procedure Act’s Notice Requirements. 

Manning contends that the Department violated the Administrative 

Procedure Act by failing to give permit applicants sufficient notice that the individual 

subsistence and the non-subsistence drawing hunts “may be closed by Emergency Order 

prior to achieving the annual harvest quota, while allowing or granting a priority 

preference for ‘community’ permit hunters (CHP) to continue to hunt the same resource 

prior to the annual harvest quota.” (Emphasis in original.) Manning appears to be 

referring to the emergency closures of the Nelchina caribou hunt in 2011.39 

39 Although Manning refers to the individual subsistence and non-subsistence 

drawing hunt closures in his brief, Manning’s Administrative Procedure Act challenge 

in the superior court involved only the individual and community harvest subsistence 

hunt closures; the court previously had denied Manning standing to challenge the 

drawing hunt closure. Accordingly we consider Manning’s Administrative Procedure 

(continued...) 

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Alaska Statute 16.05.060 authorizes closures by emergency orders, which have the force 

of law.40 Emergency orders are not subject to the Administrative Procedure Act, so no 

notice is required prior to their issuance.41 Manning’s concern about the three-day 

difference in the emergency closures of the individual subsistence hunt and the 

community subsistence hunt has little to do with notice; to the extent his concern is about 

equal protection, his argument is undeveloped and we do not consider it. 

C. The Claim Against Saxby Was Properly Dismissed. 

The superior court dismissed Manning’s claim against Saxby on the 

alternative grounds of discretionary function immunity, official immunity, and the 

court’s lack of authority to grant the relief requested. Manning provides no authority 

establishing that the superior court has general jurisdiction to issue a public reprimand 

for attorney misconduct extrinsic to court proceedings. 42 Nor does Manning cite any 

authority that the superior court has general jurisdiction to issue a reprimand against a 

public official for conduct extrinsic to court proceedings. Insofar as Manning may have 

been requesting declaratory relief against Saxby, such relief is not available in this case: 

39 (...continued) 

Act challenge on appeal to relate only to the individual and community harvest 

subsistence hunt emergency closures. 

40 We note that Manning’s 2011 individual subsistence hunt permit expressly 

states: “This caribou hunt may be closed by Emergency Order (EO). It is your 

responsibility to be aware of hunt closures.” 

41 AS 16.05.060(c), 44.62.190. 

42 The proper forum for seeking attorney discipline for such misconduct is the 

Alaska Bar Association. See Alaska Bar R. 10(c). A superior court may, of course, 

sanction an attorney for misconduct occurring in the course of court proceedings. See, 

e.g., Alaska R. Civ. P. 16(f), 77(j); see also Alaska Bar R. 9(c). 

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simply asking that a public official be reprimanded does not present a justiciable 

controversy.43 

D. Manning’s Other Issues Lack Merit. 

Manning argues that conditioning Tier I eligibility on “community criteria” 

violates article I, section 1 and article VIII, sections 3, 15, and 17 of the Alaska 

Constitution, and that these arguments must be reviewed under strict scrutiny.44 We 

construe these arguments to allege that the community harvest permit eligibility criteria 

are unconstitutional. But we upheld the constitutionality of these criteria in AFWCF II. 

45 

Manning also argues that the superior court erred by denying him standing 

to challenge the 2011 drawing hunt emergency closure order. The issue is now moot, 

43 See State v. Am. Civil Liberties Union of Alaska, 204 P.3d 364, 368 (Alaska 

2009) (noting that under Alaska’s declaratory judgment statute, AS 22.10.020(g), 

declaratory relief is appropriate only when an “actual controversy” exists); see also 

Thuma v. Kroschel, 506 N.W.2d 14, 21 (Minn. App. 1993) (holding allegation that city 

mayor acted “ultra vires,” without more, could not support an action for declaratory 

judgment because there was no genuine, adversarial conflict); Port Isabel/S. Padre 

Island Taxpayers Ass’n v. S. Padre Island, 721 S.W.2d 405, 406-07 (Tex. App. 1986) 

(refusing to grant declaratory relief for town’s alleged failure to put a tax rollback 

provision on the ballot when a later tax rollback provision made it onto the ballot but was 

defeated because declaratory relief would be “nothing more than a reprimand to the 

[town] for its rejection of [the]first petition”). 

44 Manning also argues the criteria violate the public trust doctrine, but the 

public trust doctrine was “constitutionalize[d]” in the common use clause of article VIII, 

section 3; so Manning’s public trust argument is simply another way of arguing a section 

3 violation. Owsichek v. State, Guide Licensing & Control Bd., 763 P.2d 488, 493 

(Alaska 1988). 

45 ___ P.3d ___, Op. No. 6992 at 6-10, 2015 WL 1393374 at *2-4 (Alaska 

Mar. 27, 2015). 

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as the order applied only to the 2011-2012 Nelchina caribou hunt, and we decline to 

address it.46 

Manning briefly raises several other points on appeal. Specifically he 

contends that: the regulations violate the sustainable yield requirement of article VIII, 

section 4 of the Alaska Constitution; the prohibition on Unit 13 permit holders hunting 

caribou or moose elsewhere in the state is unconstitutional; the restrictions on a killed 

caribou’s use are unlawful; the regulations “unlawfully grant and provide a special 

preference priority granting new aboriginal rights in violation [of the] Alaska Native 

Claims Settlement Act”; and the denials of his motions regarding the presiding judge’s 

alleged bias were erroneous. But because his arguments on these points are conclusory 

and inadequately developed, we consider them waived.47 

E.	 The Attorney’s Fees Awards Were Calculated Improperly And Must 

Be Vacated. 

The superior court awarded the Department and Ahtna attorney’s fees under 

Alaska Civil Rule 82 for defending 15 of the 30 counts in the complaint, reasoning that 

Manning was immune under AS 09.60.010(c)(2) from paying fees related to the 15 

counts the court believed concerned constitutional claims. Manning argues that the court 

erred because each of the 30 counts concerns a constitutional right. 

The superior court did not indicate which counts of Manning’s complaint 

concerned constitutional rights. But based on our de novo review, we conclude that 19 

46 See Ahtna Tene Nené v. State, Dep’t of Fish & Game, 288 P.3d 452, 457 

(Alaska 2012) (“A claim is moot if it ‘has lost its character as a present, live 

controversy.’ ” (quoting Kleven v. Yukon-Koyukuk Sch. Dist., 853 P.2d 518, 523 (Alaska 

1993))). 

47 See Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991). 

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of the 30 counts concerned protection of constitutional rights.48 Fifteen counts clearly 

concerned protection of constitutional rights to subsistence hunting access, sustainable 

yield management, and equal protection. 49 Other counts present closer questions. Three 

counts involved claims that the Board failed to consider relevant statutory factors and 

that its administrative process was flawed, leading to its promulgation of the allegedly 

unconstitutional community harvest system and the alleged “elimination” of individual 

subsistence rights. Although these claims can be construed to assert a statutory right to 

a lawful administrative process, they are more correctly viewed as seeking to protect the 

constitutional common use right from improper infringement by agency action. 

Likewise, Manning alleged in one count that under AS 16.05.258(b) — requiring that 

game management provide a reasonable opportunity for subsistence uses — the 

regulations exceeded the Board’s statutory authority. Although this facially is a statutory 

argument, AS 16.05.258(b) functions to protect Alaskans’ constitutional rights to 

subsistence hunting access — even absent this statute, Manning would have a 

constitutional basis for his claim against the Board for failing to protect subsistence 

hunting access.50 But it is not evident that the remaining 11 counts concerned 

constitutional rights, so Rule 82 attorney’s fees might be awarded for those claims. 

48 Specifically, counts 1, 2, 3, 4, 8, 9, 10, 11, 12, 14, 15, 16, 18, 21, 23, 26, 27, 

28, and 29 concerned constitutional rights. 

49 See Alaska Const. art. I, § 1; id. art. VIII, §§ 3, 4, 15, 17. 

50 Lake & Peninsula Borough v. Oberlatz, 329 P.3d 214, 227 (Alaska 2014) 

(“It does not matter that the deprivations [of the plaintiffs’ constitutional rights] also 

violated statutes designed to regulate the [constitutional] right . . . or that the statutes 

provide the rule of law for determining whether the constitutional right has been 

infringed. The ultimate question is whether the [claimants] sought to protect themselves 

from deprivation of their constitutional rights . . . .”). 

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As we recently explained in Lake & Peninsula Borough Assembly v. 

Oberlatz, “[d]etermining whether [claimants] are immune from paying attorney[’s] fees 

to . . . defendants requires consideration of the nature of each claim against those 

defendants.”51 And “Rule 82 attorney[’s] fees may be awarded only for work that would 

not have been necessary but for a non-constitutional claim; AS 09.60.010(c)(2) applies 

to work in which a constitutional claim is implicated in any way.”52 

The superior court awarded attorney’s fees for work done on “nonconstitutional, procedural issues.” It is unclear whether the court was referring to work 

defending solely against non-constitutional claims or work on procedural issues 

involving the merits of a constitutional claim. Rule 82 attorney’s fees are allowable only 

for the former. Work on general procedural issues, such as the motions to disqualify the 

presiding judge, cannot be disconnected from Manning’s constitutional claims. Unless 

the Department or Ahtna can provide sufficiently detailed documentation segregating the 

time spent on specific procedural work by claim type, the court must assume that the 

51 Id. (emphasis added). 

52 Id. at 228 (citing Fox v. Vice, 131 S. Ct. 2205, 2215 (2011)). Fox v. Vice 

involved the federal rule that a plaintiff cannot be liable for attorney’s fees under 

42 U.S.C. § 1988 unless the “ ‘action was frivolous, unreasonable, or without 

foundation.’ ” 131 S. Ct. at 2213 (quoting Christiansburg Garment Co. v. EEOC, 434 

U.S. 412, 421 (1978)). That rule and AS 09.60.010(c)(2) are analogous in that both 

serve to protect plaintiffs seeking to protect important rights from paying attorney’s fees 

if they do not prevail, unless the defendant incurred the fees defending against a claim 

that did not concern protection of an important right — e.g., a frivolous or nonconstitutional claim. Compare id. (stating § 1988 intended to remove cost barrier of 

vindicating one’s civil rights), with Debate on C.S.H.B. 145 (FIN) Before the Senate, 

23d Leg., 1st Sess. (May 20, 2003) (statements of Sen. Seekins) (“What [AS 09.60.010] 

really does is it retains the essence of the public interest litigant doctrine for the cases that 

relate to our most important rights, the constitutional rights. And actually it enlarges 

those protections.”). 

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billed time for procedural work was all connected to Manning’s constitutional claims. 

This assumption protects against the possibility of improperly awarding fees for work 

responding to constitutional claims. On remand, the superior court should not award 

attorney’s fees for work on a procedural issue unless the applicant provides the requisite 

documentation that the procedural issue is related solely to a non-constitutional claim. 

Based on its conclusion that 15 of Manning’s 30 counts involved 

constitutional claims, the superior court also awarded the Department and Ahtna 

attorney’s fees for 50% of work for which the nature of the claim involved was not 

identified. Such a pro rata approach is improper. Although we do not hold that a 

superior court can never award partial fees for work when the type of claim cannot be 

clearly identified, the court must ensure that fees are not awarded for work involving 

constitutional claims.53 Simply awarding a pro rata share of attorney’s fees based on the 

ratio of non-constitutional to constitutional claims “would be to risk requiring a plaintiff 

to pay defendants’ attorney[’]s fees incurred in defeating his [constitutional] claims.”54 

53 As the United States Supreme Court explained in Fox: 

The essential goal in shifting fees [under 42 U.S.C. § 1988] 

is to do rough justice, not to achieve auditing perfection. So 

trial courts may take into account their overall sense of a suit, 

and may use estimates in calculating and allocating an 

attorney’s time. . . . 

But the trial court must apply the correct standard . . . . 

That means the trial court must determine whether the fees 

requested would not have accrued but for the frivolous claim. 

. . . A trial court has wide discretion when, but only when, it 

calls the game by the right rules. 

131 S. Ct. at 2216-17 (citations omitted). 

54 Harris v. Maricopa Cnty. Superior Court, 631 F.3d 963, 972 (9th Cir. 

(continued...) 

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Such an approach is impermissible under AS 09.60.010(c)(2) and may not be applied on 

remand. Defendants seeking attorney’s fees for work on non-constitutional claims must 

“submit appropriate documentation to meet ‘the burden of establishing entitlement to an 

award.’ ”55 “If defendants do not demonstrate that the work would not have been 

performed in order to defend against the [constitutional claims], or to put it differently, 

but for the need to defend against the [non-constitutional] claims, fees associated with 

that work cannot be awarded, even in part.”56 

V. CONCLUSION 

We AFFIRM the superior court’s orders dismissing the claim against Saxby 

and granting summary judgment for the Department and Ahtna, VACATE the attorney’s 

fees awards, and REMAND for further proceedings consistent with this opinion. 

54 (...continued) 

2011) (reversing pro rata award of 42 U.S.C. § 1988 attorney’s fees based on ratio of 

frivolous to non-frivolous claims); see also McKenna v. City of Phila., 582 F.3d 447, 458 

(3d Cir. 2009) (rejecting calculation of attorney’s fees award “ ‘using a simple 

mathematical approach based on the ratio between a plaintiff’s successful and 

unsuccessful claims’ ” (quoting McKenna v. City of Phila., Civ. Action No. 07-110, 2008 

WL 4435939, at *13 (E.D. Pa. Sept. 30, 2008))). 

55 Fox, 131 S. Ct. at 2216 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 

(1983)). 

56 Harris, 631 F.3d at 973. 

We do not suggest that a prevailing constitutional claimant seeking 

attorney’s fees under AS 09.60.010(c)(1) necessarily bears the same burden. Cf. Fox, 

131 S. Ct. at 2215 n.3 (noting test governing prevailing plaintiffs’ 42 U.S.C. § 1988 

attorney’s fees is m ore generous than that governing prevailing defendants’ fees). But 

see Oberlatz, 329 P.3d at 227 n.38 (“We note that the [plaintiffs] are not entitled to an 

attorney[’s] fees award for work done solely on claims against the [defendant] that did 

not concern the [plaintiffs’] constitutional rights . . . .” (citing AS 09.60.010(c)(1))). 

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