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 

ALASKA ASSOCIATION OF 

NATUROPATHIC PHYSICIANS, 

Appellant, 

v. 

STATE OF ALASKA, 

DEPARTMENT OF COMMERCE, 

COMMUNITY & ECONOMIC 

DEVELOPMENT, DIVISION OF 

CORPORATIONS, BUSINESS & 

PROFESSIONAL LICENSING, 

Appellee. 

) 

) Supreme Court No. S-16530 

Superior Court No. 3AN-14-07022 CI 

O P I N I O N 

No. 7229 – March 16, 2018 

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

Judicial District, Anchorage, Catherine M. Easter, Judge. 

Appearances: Joe P. Josephson, Josephson Law Offices, 

LLC, Anchorage, for Appellant. Robert C. Auth, Assistant 

Attorney General, Anchorage, and Jahna Lindemuth, 

Attorney General, Juneau, for Appellee. 

Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, 

and Carney, Justices. 

BOLGER, Justice. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I. INTRODUCTION 

An association representing naturopathic physicians challenges a new 

regulation that effectively forbids naturopaths from using and prescribing injectable 

vitamins and minerals. The association argues that the statutory definition of 

naturopathy includes the use of dietetics, that dietetics include injectable vitamins and 

minerals obtained by pharmaceutical prescription, and that the statutory restrictions on 

the practice of naturopathy prohibit the use of only prescription drugs, not all 

prescription medicines. But we conclude that the statutory text, the larger statutory 

context, and the legislative history together suggest that the legislature did not intend to 

grant prescriptive authority to naturopaths. We therefore affirm the superior court’s 

decision to grant summary judgment against the association on this issue. 

II. FACTS AND PROCEEDINGS 

A. Regulatory Backdrop 

Naturopathy is a method of treating disease “that avoids drugs and surgery 

and emphasizes the use of natural agents (such as air, water, and herbs) and physical 

means (such as tissue manipulation and electrotherapy).”1 Alaska first established a 

licensing structure for naturopaths in 1986, codified at AS 08.45.2 This statute defines 

the practice of naturopathy, provides requirements for obtaining and maintaining a 

naturopathy license, and establishes restrictions on the practice of naturopathy.3 It 

defines naturopathy to include a range of practices: “hydrotherapy, dietetics, 

1 N a t u r o p a t h y , M E R R I A M - W E B S T E R , 

https://www.merriam-webster.com/dictionary/naturopathy (last visited Feb. 28, 2018). 

2 Ch. 56, SLA 1986. 

3 See generally AS 08.45.010-.200. 

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electrotherapy, sanitation, suggestion, [and]mechanical and manual manipulationforthe 

stimulation of physiological and psychological action to establish a normal condition of 

mind and body.”4 And it defines dietetics to “include[] herbal and homeopathic 

remedies.”5 The statute forbids naturopaths from engaging in three types of conduct: 

“A person who practices naturopathy may not (1) give, prescribe, or recommend in the 

practice (A) a prescription drug; (B) a controlled substance; (C) a poison; (2) engage in 

surgery; (3) use the word ‘physician’ in the person’s title.”6 

In 1992 the State conferred authority to promulgate regulations 

implementing AS 08.45 on the Department of Commerce, Community, and Economic 

Development.7 The Department adopted regulations implementing the naturopathy 

statute in 1994. Among those regulations were definitions of some of the key statutory 

terms: 

(1) “dietetics” includes the use of nutritional therapies, 

nutritional counseling, nutritional substances, vitamins, 

minerals, and supplements to promotehealth andto diagnose, 

treat, and prevent disease, illness, and conditions; 

. . . . 

(3) “herbal remedy” includes medicines derived from or a 

concentrate or extract of a plant, tree, root, moss, fungus, or 

other natural substance; “herbal remedy” does not include a 

controlled substance; 

. . . . 

4 AS 08.45.200(3). 

5 Id. 

6 AS 08.45.050. 

7 Ch. 87, § 3, SLA 1992; see AS 08.45.100. 

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(8) “prescription drug” includes a controlled substance or 

other medicine commonly requiring a written prescription 

from a physician licensed under AS 08.64; “prescription 

drug” does not include a device or herbal or homeopathic 

remedy or dietetic substance in a form that is not a controlled 

substance[8] 

In theensuing years, naturopathsandtheDepartmentdeveloped conflicting 

interpretations of these regulatory definitions. Naturopaths distinguished prescription 

drugs, which they acknowledged they were not permitted to prescribe or administer, 

from non-drug prescription medicines, which they interpreted the statute as permitting 

themto prescribeor administer. Accordingly, Alaskanaturopathsroutinelyadministered 

or prescribed dietetics requiring a prescription, such as injectable vitamins and minerals 

(e.g., a Vitamin B-12 shot or a magnesiumshot).9 In contrast, the Department interpreted 

the regulation to prohibit naturopaths from administering and prescribing all medicines 

requiring a prescription, even if the prescription medicine was also a dietetic. These 

clashing interpretations resulted in some pharmacists refusing to fill prescriptions for 

naturopaths and the State launching investigations of naturopaths who used prescription 

medicines and the pharmacists who filled the prescriptions. 

In 2012 the Department issued a notice of proposed changes to the 

regulatory definitions that would clarify naturopaths’ prescriptive authority. After the 

public comment period closed, the Department amended the definitions in two ways to 

effectively bar naturopaths from using or prescribing any medicine that requires a 

8 Former 12 Alaska Administrative Code (AAC) 42.990 (eff. 7/28/94). 

9 Apparently injectable vitamins and minerals require a prescription. In 

contrast, orally administered vitamins and minerals do not require a prescription. 

Injectable vitamins and minerals are used for patients who have difficulty absorbing 

orallyadministered vitamins and minerals, e.g., patients with an impaired stomach lining. 

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prescription, including dietetics (injectable vitamins and minerals), herbal, and 

homeopathic remedies.10 First, the new regulation broadened the definition of 

prescription drug so that it encompassed any medicine requiring a prescription and no 

longer excluded dietetics, herbal, and homeopathic remedies: “ ‘[P]rescription drug’ 

means a controlled substance or other medicine requiring a prescription froma physician 

licensed under AS 08.64 or from another health care professional authorized to issue 

prescriptions by the law of this state.”11 Second, the new regulation explicitly excluded 

prescription drugs from the definitions of dietetics, herbal remedy, and homeopathic 

remedy: 

(1) “dietetics” 

(A) includes the use of nutritional therapies, 

nutritional counseling, nutritional substances, 

vitamins, minerals, and supplementsto promotehealth 

and to diagnose, treat, and prevent disease, illness, and 

conditions; 

(B) does not include the use of a prescription 

drug, poison, or controlled substance; 

. . . . 

(3) “herbal remedy” 

(A) includes medicines derived from or a 

concentrate or extract of a plant, tree, root, moss, 

fungus, or other natural substance; 

(B) does not includeaprescriptiondrug,poison, 

or controlled substance; 

(4) “homeopathic remedy” means a remedy defined in 

the Homeopathic Pharmacopoeia of the United States 

10 12 AAC 42.990 (2014). 

11 12 AAC 42.990(8). 

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Abstracts 1993, revised as of December 1992 and adopted by 

reference except for prescription drug, poison, or controlled 

substance[.][12] 

These new definitions went into effect in January 2014. 

B. Proceedings 

In May 2014 the Alaska Association of Naturopathic Physicians13 filed a 

declaratory judgment action, seeking a declaration that the new regulation was invalid 

to the extent it was inconsistent with AS 08.45. Specifically, the Association alleged that 

the new regulation unduly expanded the statutory prohibition on prescription drugs to 

include all prescription medicines. It also claimed that the new regulation, which 

effectively prohibited the use of prescription dietetics, was contrary to the statutory 

definition of naturopathy, which conferred on naturopaths the unqualified right to use 

dietetics. Moreover, it urged that the new regulation contravened the longstanding 

practice and training of naturopaths in Alaska and prevented them from practicing in a 

manner consistent with their training, experience, and expertise. 

In January 2016 the Department filed a motion to dismiss, which the 

superior court later converted to a motion for summary judgment. After hearing oral 

argument and receiving supplemental briefing from the Association, the superior court 

granted the Department’s motion. The Department then moved for 20% of its actual 

attorney’s fees under Alaska Civil Rule 82.14 The Association opposed the motion on 

12 12 AAC 42.990. 

13 The Association “is an incorporated, non-profit, professional association 

or organization representing licensed naturopathic doctors who practice their profession 

in Alaska.” According to the Association, its membership is composed of naturopaths 

practicing in Alaska, totaling approximately 25 individuals. 

14 See Alaska R. Civ. P. 82(b)(2) (“In cases [resolved without trial] in which 

(continued...) 

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the basis that it was a public interest litigant exempt from an adverse attorney’s fees 

award. The superior court rejected this contention, concluding that the Association did 

not qualify as a public interest litigant because it had sufficient economic incentive to 

bring the suit. After concluding that the Department’s fee request was reasonable, the 

superior court awarded it $16,844 in fees, 20% of its total fees incurred. 

The Association appeals both the grant of summary judgment in favor of 

the Department and the attorney’s fees award.15 

III. STANDARDS OF REVIEW 

A regulation’s consistency with its enabling statute “is a question of law to 

which we apply the appropriate standard of review based on the level of agency expertise 

involved.”16 Here, the parties agree that the new regulatory definitions do not implicate 

the Department’s expertise, so we review them using the substitution of judgment 

standard.17 Under this standard we exercise our independent judgment, substituting our 

“own judgment for that of the agency even if the agency’s [interpretation] ha[s] a 

reasonable basis in law.”18 We will “adopt the rule of law that is most persuasive in light 

14 (...continued) 

the prevailing party recovers no money judgment, the court shall award the prevailing 

party . . . 20 percent of its actual attorney’s fees which were necessarily incurred.”). 

15 The Association also appeals the denial of its own motion for summary 

judgment, which it had filed in June 2015. The Association does not present a separate 

argument concerning this denial, and our analysis below applies equally to it as to the 

superior court’s grant of summary judgment in favor of the Department. 

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

(Alaska 2014). 

17 Id. 

18 Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 

(continued...) 

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of precedent, reason, and policy, but in doing so we give due deliberative weight ‘to what 

the agency has done, especially where the agency interpretation is longstanding’ ”19 and 

continuous.20 

Wegenerallyreviewan attorney’sfeesawardfor abuseofdiscretion, which 

exists when an award is “arbitrary, capricious, manifestly unreasonable, or the result of 

an improper motive.”21 Interpretation of the scope of the exception to attorney’s fees 

awards for constitutional claimants is a question of law reviewed de novo.22 

IV. DISCUSSION 

A. The New Regulation, 12 AAC 42.990, Is Consistent With AS 08.45. 

The Association argues that the new regulatory definitions governing 

naturopaths, codified at 12 AAC 42.990, are inconsistent with the definition of 

18 (...continued) 

(Alaska 1987). 

19 Heller v. State, Dep’t of Revenue, 314 P.3d 69, 73 (Alaska 2013) (quoting 

Chugach Elec. Ass’n v. Regulatory Comm’n of Alaska, 49 P.3d 246, 250 (Alaska 2002)). 

20 Premera BlueCross v. State, Dep’t of Commerce, Cmty. &Econ. Dev., Div. 

of Ins., 171 P.3d 1110, 1119 (Alaska 2007). The parties disagree whether the 

Department’s interpretationisduetheadditional deferenceaccorded tolongstanding and 

continuous interpretations. The Association urges it is not, noting that the new 

regulation became effective in 2014 and that it altered regulatory language that had been 

in effect for 20 years. The Department urges that additional deference is nonetheless 

warranted becausetheDepartment’s interpretation hasremainedconsistent, even though 

the regulatory text has changed. However, we need not resolve this dispute because the 

level of deference would not affect our interpretation of the statute in this case. 

21 DeVilbissv.Matanuska-SusitnaBorough,356P.3d290,294(Alaska2015) 

(quoting Bachner Co. v. Weed, 315 P.3d 1184, 1189 (Alaska 2013)). 

22 Alaska Conservation Found. v. Pebble Ltd. P’ship, 350 P.3d 273, 279 

(Alaska 2015). 

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naturopathy and the restrictions on naturopaths outlined in the naturopathy statute, 

AS 08.45. We have not previously interpreted the scope of naturopaths’ prescribing 

authority under AS 08.45. When determining a statute’s meaning, we consider three 

factors: “the language of the statute, the legislative history, and the legislative purpose 

behind the statute.”23 “We decide questions of statutory interpretation on a sliding 

scale”24: “[T]he plainer the language of the statute, the more convincing any contrary 

legislative history must be . . . to overcome the statute’s plain meaning.”25 Moreover, 

“[a] party challenging a regulation bears the burden of showing that adoption of the 

regulation is inconsistent with the . . . statute.”26 

The Association argues that the new regulation is inconsistent with the 

statute’s ban on naturopaths using and prescribingprescription drugs because it prohibits 

naturopaths fromusing and prescribing all prescription “medicine,” not just prescription 

drugs. The statute, in a section entitled “Restrictions on practice of naturopathy,” states 

that naturopaths may not “give, prescribe, or recommend . . . a prescription drug.”27 The 

new regulation defines “prescription drug” as “a controlled substance or other medicine 

requiring a prescription froma physician licensed under AS 08.64 or fromanother health 

23 Oels v. Anchorage Police Dep’t Emps. Ass’n, 279 P.3d 589, 595 (Alaska 

2012) (quoting Shehata v. Salvation Army, 225 P.3d 1106, 1114 (Alaska 2010)). 

24 Marathon Oil Co. v. State, Dep’t of Nat. Res., 254 P.3d 1078, 1082 (Alaska 

2011). 

25 Peninsula Mktg. Ass’n v. State, 817 P.2d 917, 922 (Alaska 1991). 

26 Grunert v. State, 109 P.3d 924, 937 (Alaska 2005). 

27 AS 08.45.050(1)(A). 

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care professional authorized to issue prescriptions by the law of this state.”28 Unlike the 

old regulation, it does not exclude “herbal or homeopathic remed[ies]” and “dietetic 

substance[s]” from the definition.29 In other words, the new regulation categorically 

defines prescription drug to include any medicine requiring a prescription. But 

according totheAssociation,thereis areal distinctionbetween aprescription “medicine” 

and a prescription “drug,” with natural substances and their derivatives (such as 

injectable vitamins and minerals) falling in the former category but not the latter. 

1. Statutory text and structure 

The text of the naturopathy statute does not provide, and the Association 

does not cite, any support for distinguishing between a prescription drug (which the 

Association concedes a naturopath is forbidden from prescribing) and prescription 

medicines composed of natural substances or their derivatives. As an initial matter, the 

statute does not define the term “prescription drug” or its constituent words. In the 

absence of a definition, we construe statutory terms according to their common 

meaning.30 Dictionaries “provide a useful starting point for [determining]” a phrase’s 

common meaning.31 Black’s Law Dictionary’s definition of “drug” does not exclude 

natural substances or their derivatives. It defines “drug” as (1) “[a] substance intended 

for use in the diagnosis, cure, treatment, or prevention of disease” and (2) “[a] natural or 

28 12 AAC 42.990(8). 

29 Former 12 AAC 42.990(8) (eff. 7/28/94). 

30 Adamson v. Municipality of Anchorage, 333 P.3d 5, 16 (Alaska 2014). 

31 Alaskans for Efficient Gov’t, Inc. v. Knowles, 91 P.3d 273, 276 n.4 (Alaska 

2004). 

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synthetic substance that alters one’s perception or consciousness.”32 This definition 

suggests that the common meaning of “prescription drug” does not exclude natural 

substances. 

The overall structure and substance of AS 08.45 also provide insight into 

the meaning of “prescription drug,” and they too provide no basis for distinguishing 

between prescription drugs and other prescription medicines composed of natural 

substances. The only mention of prescriptions or prescribing authority in AS 08.45 is 

to ban naturopaths from prescribing drugs; nowhere else does the naturopathy statute 

refer to prescribing authority or prescription substances. If the legislature’s intention 

were to convey to naturopaths broad prescribing authority for non-drug prescription 

medicines, it would be odd for the statute to mention this authority only in the context 

of constraining it. Given that the only mention of naturopath prescribing authority is in 

the context of circumscribing it, the naturopath statute as a whole does not evince an 

intent to allow naturopath use of other prescription substances. 

Comparing the language of the naturopath statute to that of the licensing 

statutes governing healthcare professionals who unequivocally have prescribing 

authority also provides insight into the scope of the term “prescription drug.” In marked 

contrast to the naturopath statute, the statutes governing the licensing of doctors and 

osteopaths,33 dentists,34 veterinarians,35 registered nurses,36 and advanced nurse 

32 Drug, BLACK’S LAW DICTIONARY (10th ed. 2014). 

33 AS 08.64.380(6)(A) (defining the “practice of medicine” and the “practice 

of osteopathy” to include “prescrib[ing] for . . . any human ailment, blemish, deformity, 

disease, disfigurement, disorder, injury, or other mental or physical condition”). 

34 AS 08.36.360(2) (defining the “practice of dentistry” to include 

“prescrib[ing] for a disease, lesion, pain, injury, deficiency, deformity, or physical 

(continued...) 

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practitioners37 all explicitly define their respective practices to include some degree of 

prescribing authority. These statutes suggest that where the legislature intends to convey 

prescribing authority, it does so explicitly. The statutory definition of the practice of 

naturopathy conveys no such explicit prescribing authority, indicating that no such 

authority was intended to be conveyed. 

This conclusion is underscored by a 1985 attorney general opinion 

“concerning persons who may initiate prescriptions.”38 Although they are not 

controlling, we generally afford opinions of the Attorney General “some deference.”39 

The opinion responds to a question from the Department querying whether healthcare 

boards had the authority to grant prescriptive authority to healthcare professionals via 

regulations. The opinion first notes that “[t]he [statutory] definitions of what activities 

constitute a particular profession appear to be the best reference for determining who is 

34 (...continued) 

condition, malocclusion or malposition of the human teeth”). 

35 AS 08.98.250(5)(A)(i) (defining the “practice of veterinary medicine” to 

include “prescription . . . of a drug, biologic apparatus, anesthetic, or other therapeutic 

or diagnostic substance”). 

36 AS 08.68.850(11)(F) (defining the “practice of registered nursing” to 

include“theprescription ofmedical therapeuticorcorrectivemeasures under regulations 

adopted by the [Board of Nursing]”). 

37 AS 08.68.850(9) (defining the “practice of advanced practice registered 

nursing” to include “the prescription and dispensing of medical, therapeutic, or 

corrective measures under regulations adopted by the [Board of Nursing]”). 

38 [1985] 1 INFORMAL OP. ATT’Y GEN. 197. 

39 State v. Dupier, 118 P.3d 1039, 1050 n.62 (Alaska 2005). 

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authorized to issue a prescription.”40 It concludes that for a healthcare board to grant 

prescriptive authority by regulation, the board “must have a statutory basis for the 

action.”41 Therefore, according to this Attorney General opinion, prescriptive authority 

must have a statutory basis in the definition of the practice. As discussed above, 

however, the definition of the practice of naturopathy provides no such statutory basis. 

The Association nonetheless contends that the legislature intended to 

convey to naturopaths prescribing authority for some non-drug substances by including 

“dietetics” in the statutory definition of “naturopathy.” It argues that because some 

dietetics, such as injectable vitamins and minerals, require a prescription, the inclusion 

of dietetics in the statutory definition of naturopathy evinces legislative intent to convey 

prescribing authority. However, we conclude that the inclusion of this term does not 

provide a statutory basis for prescriptive authority, especially when it is read in light of 

the more specific statutory prohibition on naturopath use of prescription drugs. First, as 

discussed above, in other statutes governing medical professions, the legislature 

conveyed prescriptive authority explicitly through the use of words such as 

“prescription” and “prescribe.” Therefore, when the legislature wishes to convey 

prescribing authority, it does so clearly and explicitly rather than opaquely. In addition, 

only a subset of dietetics require a prescription, meaning it is possible to use some 

dietetics without any prescriptive authority. It is thus possible to interpret the statute as 

not conveying prescriptive authority to naturopaths without rendering the inclusion of 

“dietetics” in the statutory definition a nullity. 

The Association’s argument regarding the statutory definition additionally 

falters when considered against the backdrop of the naturopath statute as a whole. 

40 [1985] 1 INFORMAL OP. ATT’Y GEN. 197. 

41 Id. at 199. 

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“When a statute . . . is part of a larger framework or regulatory scheme, [it] must be 

interpreted in light of the other portions of the regulatory whole.”42 Although various 

statutory sections should be harmonized when possible, more specific sections control 

over general sections.43 Here, the statutory definition of “naturopathy” appears in a 

general section: the definitions section that applies to the entirety of AS 08.45.44 In 

contrast, the statutory prohibition on prescription drugs appears in a specific, standalone 

section entitled “Restrictions on practice of naturopathy.”45 The inclusion of dietetics in 

the general statutory definition of naturopathy should be understood as being modified 

by the specific prohibition on naturopath use of prescription drugs. In other words, 

together, the two statutory sections provide that naturopaths can practice the methods 

listed in the definition of naturopathy to the extent those methods do not include 

prescription of drugs. This interpretation does not bring the two sections into conflict 

but merely recognizes that one specific section cabins a general term in the other. 

2. Legislative history 

The legislative history of AS 08.45 only confirms the indication of the 

statutory text that naturopaths lack any prescribing authority. When the bill that was 

ultimately enacted as AS 08.45, Senate Bill (S.B.) 297, was initially introduced in 1985, 

it explicitly included some prescriptive authority for naturopaths. In a section entitled 

“Scope of Naturopathic Practice,” the bill provided that naturopaths could, among other 

42 Alaska Airlines, Inc. v. Darrow, 403 P.3d 1116, 1127 (Alaska 2017) 

(quoting Millman v. State, 841 P.2d 190, 194 (Alaska App. 1992)). 

43 Nelson v. Municipality of Anchorage, 267 P.3d 636, 642 (Alaska 2011). 

44 AS 08.45.200. 

45 AS 08.45.050. 

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things, “write prescriptions for substances authorized by this chapter.”46 The initial bill 

also included a section restricting the practice of naturopathy, but with a narrower ban 

on prescriptive authority: “A naturopath may not . . . use drugs, except local anesthetics, 

minerals, and extracts, compounds or concentrates obtained from plants or animals.”47 

The initial bill thus provided a carve-out for drugs composed of natural substances and 

would have allowed naturopaths to use and prescribe injectable vitamins and minerals. 

Shortly after this initial bill was introduced, the Department of Health and 

Social Services submitted a position paper expressing reservations about certain aspects 

of the bill.48 The paper noted some “controversy over the scientific basis of naturopathic 

medicine” and expressed the agency’s concern over allowing naturopaths to treat certain 

types of illnesses given the limits of the naturopathic approach.49 Although the agency 

concluded it was “neutral on th[e] bill,” it noted that other states placed more restrictive 

conditions on naturopaths by, for example, forbidding naturopaths from using drugs and 

from performing surgery.50 

About a year later, a sponsor substitute to S.B. 297 was introduced that 

omitted the section entitled “Scope of Naturopathic Practice,” thereby eliminating the 

original bill’s affirmative grant of authority for naturopaths to write prescriptions.51 The 

sponsor substitute also amended the section restricting the practice of naturopathy to 

46 S.B. 297, 14th Leg., 1st Sess. § 2, at 4 (Apr. 23, 1985). 

47 Id. § 2, at 5. 

48 Dep’t of Health & Soc. Servs., Position Paper, S.B. 297 (Apr. 30, 1985). 

49 Id. 

50 Id. 

51 Sponsor Substitute for Senate Bill (S.S.S.B) 297, 14th Leg., 2d Sess. 

(Apr. 17, 1986). 

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narrow the drugs that naturopaths were permitted to use and prescribe, still permitting 

the prescription of natural substances: “[A] person who practices naturopathy may not 

. . . use in the practice or prescribe . . . a prescription drug other than a natural plant, 

animal, or mineral substance.”52 But then the committee substitute for the sponsor 

substitute made the ban on using and prescribing prescription drugs entirely 

unconditional: “A person who practices naturopathy may not . . . give, prescribe, or 

recommend in the practice . . . a prescription drug . . . .”53 It was this language that was 

enacted into law later that year, codified in AS 08.45.050.54 

The path of this legislative history suggests that the legislature did not 

intend for the statute to convey any prescribing authority to naturopaths. The bill 

drafting process shows the legislature gradually winnowed the substances for which 

naturopaths could write prescriptions from some natural substances, to fewer natural 

substances, to an unconditional ban on prescription drugs. If the legislature wished to 

draw a distinction in the statute between prescription natural substances and prescription 

drugs, it would have retained the language of the initial bill, which drew this precise 

distinction. Further, the drafting process shows that the legislature stripped language 

from the bill that explicitly defined the scope of naturopath practice to include writing 

prescriptions. Given the removal of this language, it is unlikely that the legislature 

intended to nonetheless convey some prescriptive authority to naturopaths by including 

“dietetics” in the definition of “naturopathy.” Moreover, these changes were made 

againstthebackdrop oftheDepartment ofHealthand SocialServicesexpressingconcern 

52 Id. § 1, at 2. 

53 Committee Substitute for Sponsor Substitute for Senate Bill (C.S.S.S.S.B.) 

297, 14th Leg., 2d Sess. § 8, at 3 (1986). 

54 Ch. 56, § 1, SLA 1986. 

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about the scope of naturopath prescribing authority. Thus the statute’s legislative history 

provides additionalevidencethat thelegislaturedidnotintend to convey any prescriptive 

authority to naturopaths. 

In sum, neither the text nor overall structure of AS 08.45 indicates that it 

conveysto naturopaths theauthority to prescribenaturalsubstances,including injectable 

vitamins and minerals. This conclusion is further bolstered by comparing the naturopath 

statute to those statutes governing other professionals and by reviewing the legislative 

history of AS 08.45, which excised language that would have conveyed some degree of 

prescribing authority to naturopaths. The new regulation, which effectively prohibits 

naturopaths fromusing all prescription medicines, is therefore consistent with AS 08.45. 

B.	 The Association Has Waived Its Challenge To The Attorney’s Fees 

Award. 

The Association also seeks to challenge the superior court’s attorney’s fees 

award. It argues that it is exempt from attorney’s fees under the public interest litigant 

exception.55 But this common law exception was abrogated by statute in 2003.56 The 

current version of the exception, as codified at AS 09.60.010(c), allows a constitutional 

55 See Miller v. Matanuska-Susitna Borough, 54 P.3d 285, 293 (Alaska 2002) 

(“ ‘It is an abuse of discretion to award attorney’s fees against an unsuccessful public 

interest plaintiff who raises a claim in good faith.’ A four-part test determines public 

interest litigant status: (1) Is the case designed to effectuate strong public policies? (2) If 

the plaintiff succeeds, will numerous people receive benefits from the lawsuit? (3) Can 

only a private party have been expected to bring this suit? (4) Would the purported 

public interest litigant have sufficient economic incentive to file suit even if the action 

involves only narrow issues lacking general importance?” (footnote omitted) (quoting 

Carr-Gottstein Props. v. State, 899 P.2d 136, 147 (Alaska 1995))), superseded by 

statute, ch. 86, SLA 2003, as recognized in Krone v. State, Dep’t of Health & Soc. 

Servs., 222 P.3d 250, 258 (Alaska 2009). 

56 Alaska Conservation Found. v. Pebble Ltd. P’ship, 350 P.3d 273, 280 

(Alaska 2015). 

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claimant to avoid an adverse attorney’s fees award under certain circumstances, but the 

Association did not rely on this statute in its response to the Department’s motion for 

attorney’s fees or in its original brief on appeal. And at oral argument, the Association 

conceded that its complaint did not raise any constitutional claims. We thus conclude 

that the Association has waived and abandoned any challenge to the attorney’s fees 

award. 

V. CONCLUSION 

We AFFIRM the superior court’s judgment. 

-18- 7229