AKIAK NATIVE COMMUNITY v. U.S. E.P.A

the party's right to recover attorney's fees. A motion for attorney's fees in a default case must specify actual fees.

(d) Determination of Award. Attorney's fees upon entry of judgment by default may be determined by the clerk. In all other matters the court shall determine attorney's fees.

(e) Equitable Apportionment Under AS 09.17.080. In a case in which damages are apportioned among the parties under AS 09.17.080, the fees awarded to the plaintiff under (b)(1) of this rule must also be apportioned among the parties according to their respective percentages of fault. If the plaintiff did not assert a direct claim against a third-party defendant brought into the action under Civil Rule 14(c), then

(1) the plaintiff is not entitled to recover the portion of the fee award apportioned to that party; and

(2) the court shall award attorney's fees between the third-party plaintiff and the third-party defendant as follows:

(A) if no fault was apportioned to the third-party defendant, the third-party defendant is entitled to recover attorney's fees calculated under (b)(2) of this rule;

(B) if fault was apportioned to the third-party defendant, the third-party plaintiff is entitled to recover under (b)(2) of this rule 30 or 20 percent of that party's actual attorney's fees incurred in asserting the claim against the third-party defendant.

(f) Effect of Rule. The allowance of attorney's fees by the court in conformance with this rule shall not be construed as fixing the fees between attorney and client.

For many years Alaska courts recognized a limited public interest exception to Rule 82 which applied in cases where: "(1) the case was designed to effectuate strong public policies; (2) numerous people would benefit if the litigant succeeded; (3) only a private party could be expected to bring the suit; and (4) the litigant lacked sufficient economic incentive to bring suit." Matanuska Elec. Ass'n, Inc. v. Rewire the Bd., 36 P.3d 685, 696 (Alaska 2001). This exception allowed an award of full attorney's fees for a prevailing public interest plaintiff and denied an award of attorney's fees to a prevailing defendant if the public interest plaintiff litigated in good faith. See Anchorage v. McCabe, 568 P.2d 986, 990 (Alaska 1977); Gilbert v. State, 526 P.2d 1131, 1136 (Alaska 1974).

In 2003, the Alaska Legislature enacted House Bill 145, which barred courts from relying on the public interest litigant exception and the four factors identified by the Alaska Supreme Court and quoted above. See Alaska Stat. § 09.60.010(b); ch. 86, § 2, SLA 2003. The Alaska Supreme Court upheld the validity of HB 145, concluding that it was "valid insofar as it abrogates the public interest exception developed by the decisions of this court." State v. Native Vill. of Nunapitchuk, 156 P.3d 389, 404 (Alaska 2007). The court also acknowledged that "a limiting interpretation should be given [to] Rule 82(b)(3)(E) relating to the use of `other equitable factors' to vary a fee award . . . [such] that courts must take care to avoid using this equitable power as an indirect means of accomplishing what HB 145 has now disallowed." Id. at 405.

However, the court also noted that HB 145 did not modify the text of Rule 82. Id. It stated that HB 145 "ma[de] no change to subsection (b)(3)(I) [and] [t]his subsection continues to apply to all cases, without discriminating between those brought for self-interested reasons and those intended to effectuate public policies." Id. at 406. The court concluded:

[A]lthough HB 145 abrogates, in part, the public interest litigant exception, litigants advancing public interest claims may still, on a case-by-case basis, be shielded from awards of attorney's fees under Rule 82(b)(3)(I) for much the same reason that we accepted when we first adopted the exception in its original protective form: awarding fees in public interest cases may deter citizens from litigating questions of general public concern.

Id. (internal quotation marks and footnote omitted).

At this time, there is scant evidence of how, in practice, attorney's fees have been assessed in public interest cases following the passage of HB 145 and the Alaska Supreme Court's interpretation of the act in Nunapitchuk.

To further complicate the question before us, Rule 82 only applies to trial courts in Alaska. Appeals from administrative agencies — the form which challenges to permits issued by the state would presumably take — are governed by Alaska Rule of Appellate Procedure 508(e), which provides that "[a]ttorney's fees may be allowed in an amount to be determined by the court." See Stalnaker v. Williams, 960 P.2d 590, 597 (Alaska 1998) ("A superior court hearing an appeal from an administrative agency awards attorney's fees under Appellate Rule 508, not Civil Rule 82."). Rule 508 allows courts "broad discretion in awarding fees." Miller v. Matanuska-Susitna Borough, 54 P.3d 285, 293 (Alaska 2002). The Alaska Supreme Court previously held that Rule 82 provided a guideline for appellate courts to determine a "reasonable" award in cases where there has been no money judgment, Carr-Gottstein Prop. v. State, 899 P.2d 136, 148 (Alaska 1995), but that was before the enactment of HB 145 and the Alaska Supreme Court's interpretation of the act in Nunapitchuk. We do not know what Alaska courts will do about awarding fees for administrative appeals brought by public interest groups in the future or, more specifically, whether and to what extent HB 145 will have a deterrent effect on public participation in the APDES permitting process.

Rule 508(e) of the Alaska Rules of Appellate Procedure provides, in full: (e) Attorney's Fees. Attorney's fees may be allowed in an amount to be determined by the court. If such an allowance is made, the clerk shall issue an appropriate order awarding fees at the same time that an opinion or an order under Rule 214 is filed. If the court determines that an appeal or cross-appeal is frivolous or that it has been brought simply for purposes of delay, actual attorney's fees may be awarded to the appellee or cross-appellee.

The State of Alaska did provide, as part of its application to assume control over the NPDES program, a program description in which it declared that it will not seek attorney's fees from permit challengers who pursue unsuccessful appeals "unless the appeal was frivolous or brought simply for purposes of delay." The State can be held to that pledge.

The State's pledge does not rule out the possibility of a fee application by an intervener in litigation. Say, for example, that a permit issued by the State under the APDES program was challenged in Alaska courts by some public interest group, that the private party who obtained the permit intervened in the action, and the court affirmed the issuance of the permit without holding the challenge to be frivolous or interposed solely for delay. The State has pledged not to seek fees in such a circumstance, but that promise does not prevent the intervening private party from doing so. If the court were to award substantial fees to that party from the public interest group, future public interest challenges could be deterred. We have not, however, been presented with evidence that Alaska courts have in the past awarded substantial sums in attorney's fees to prevailing third-party intervenors.

The State also declared in its program description that "Rule 82(b)(3)(I) has particular relevance to consideration of any potential attorneys' fees award against litigants whose good faith appeal of an APDES permit proves unsuccessful." In effect, the State sought to reassure the EPA that the threat of fee awards against public interest permit challengers is not substantial enough to conclude that the opportunity for judicial review in Alaska courts would be effectively diminished.

The EPA approved the APDES program as described in the State's application. Under the circumstances, although there is some uncertainty about the possibility of future attorney's fee awards, we cannot conclude that the EPA's decision was arbitrary or capricious. It was not unreasonable to conclude, based on what was known to EPA when it approved the application — or based on what we know now — that Alaska provides "an opportunity for judicial review in State Court of the final approval or denial of permits by the State that is sufficient to provide for, encourage, and assist public participation in the permitting process." 40 C.F.R. § 123.30.

We note, in particular, that in giving its approval, the EPA did not sign a blank check. The APDES program is subject to "continuing EPA oversight," and the EPA may withdraw its approval of the program should the EPA determine at any point that the APDES program does not meet the standards mandated in the CWA. See Home Builders, 551 U.S. at 650, 127 S.Ct. 2518. Indeed, the statute expressly directs that should the EPA determine that "a State is not administering a program approved under [the CWA], [the EPA] shall so notify the State and, if appropriate corrective action is not taken within a reasonable time, not to exceed ninety days, [the EPA] shall withdraw approval of such program." 33 U.S.C. § 1342(c)(3). We assume that EPA will take this responsibility seriously.

B. Administrative Penalty Authority

As noted above, section 402(b) of the CWA requires, as one of the nine criteria specified for the evaluation of a state's proposed program, that the EPA determine whether such submitted program has adequate authority "to abate violations of the permit or the permit program, including civil and criminal penalties and other ways and means of enforcement." 33 U.S.C. § 1342(b)(7); see also 40 C.F.R. § 123.27.

Petitioners argue that the EPA failed to ensure that the State of Alaska had adequate enforcement tools to abate violations, as required by the CWA. Petitioners point to the fact that state officials lack the ability to assess civil penalties administratively. See Alaska Stat. § 46.03.760(e). Indeed, the State must initiate a legal proceeding to impose a civil penalty against a permit violator. Id. In contrast, under the CWA the EPA may assess civil penalties administratively without a court proceeding. 33 U.S.C. § 1319(g).

There is no requirement in the CWA or its regulations that state officials have the authority to impose an administrative penalty, however. The language of the statute says nothing about administrative penalties, and the regulations provide that administrative assessment of penalties by a state are "not mandatory [but] highly recommended." 40 C.F.R. § 123.27(c) (Note). Given that the regulation explicitly says that administrative assessments are "not mandatory," the lack of authority to impose administrative penalties cannot by itself require the denial of the state's application. Moreover, the EPA has identified two other "highly recommended" means of enforcement: suing to recover costs related to remedial efforts and suing for compensation for environmental damage, 40 C.F.R. § 123.27.(c) (Note), both of which are expressly permitted by Alaska law. Alaska Stat. § 46.03.760. Since Alaska law enables the State to sue permit violators, there is no reason to conclude that Alaska lacks adequate enforcement remedies.

C. ANILCA

Petitioners also argue that the EPA failed to uphold the federal government's duty under ANILCA, to protect subsistence resources in Alaska's navigable waters. ANILCA was enacted in 1980 with the "primary purpose . . . to complete the allocation of federal lands in the State of Alaska." Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 549, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). By asserting control over federal public lands in Alaska, Congress aimed to "provide the opportunity for rural residents engaged in a subsistence way of life to continue to do so," among other purposes. 16 U.S.C. § 3101(c). The subsistence provisions of ANILCA, id. §§ 3111-3126, establish an administrative framework through which rural residents may be involved with the management of wildlife on public lands. See id. § 3111.

Section 810 of ANILCA establishes a procedure for federal agencies to evaluate the effects of federal land use on subsistence resources. Specifically, section 810 provides in relevant part:

In determining whether to withdraw, reserve, lease, or otherwise permit the use, occupancy, or disposition of public lands under any provision of law authorizing such actions, the head of the Federal agency having primary jurisdiction over such lands or his designee shall evaluate the effect of such use, occupancy, or disposition on subsistence uses and needs, the availability of other lands for the purposes sought to be achieved, and other alternatives which would reduce or eliminate the use, occupancy, or disposition of public lands needed for subsistence purposes.

16 U.S.C. § 3120(a). Before performing any activity covered by section 810(a), the federal agency must provide notice and a hearing and must determine that "(A) such a significant restriction of subsistence uses is necessary, consistent with sound management principles for the utilization of the public lands, (B) the proposed activity will involve the minimal amount of public lands necessary to accomplish the purposes of such use, occupancy, or other disposition, and (C) reasonable steps will be taken to minimize adverse impacts upon subsistence uses and resources resulting from such actions." Id. § 3120(a)(3).

The Supreme Court's recent decision in Home Builders provides guidance as to whether the EPA's transfer of the NPDES program to the State of Alaska triggers the requirement of a subsistence evaluation under ANILCA. In Home Builders, public interest groups challenged the EPA's transfer of the NPDES program to the State of Arizona, arguing that the EPA failed to consider the effects such transfer would have on endangered and threatened species under section 7(a) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(a). 551 U.S. at 649, 127 S.Ct. 2518. The Supreme Court held that requiring the EPA to comply with section 7(a) of the ESA would place the CWA and the ESA in conflict, for it would add a tenth criteria to the nine established criteria a state program must meet for transfer approval under section 402(b) of the CWA, 33 U.S.C. § 1342(b). Id. at 663-64, 127 S.Ct. 2518. The Court noted that "§ 402(b) does not just set forth minimum requirements for the transfer of permitting authority; it affirmatively mandates that the transfer `shall' be approved if the specified criteria are met." Id. at 663, 127 S.Ct. 2518. The Court concluded that requiring compliance with section 7(a) would "effectively repeal § 402(b)'s statutory mandate by engrafting a tenth criterion onto the CWA." Id.

Requiring the EPA to consider section 810 of ANILCA would also add a tenth criterion to the CWA's requirements and therefore alter section 402(b)'s statutory command. As the Court states in Home Builders, "[w]hile a later enacted statute . . . can sometimes operate to amend or even repeal an earlier statutory provision (such as the CWA), repeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal is clear and manifest." Id. at 662, 127 S.Ct. 2518 (internal quotation marks omitted). The EPA's transfer of the NPDES program to the State of Alaska therefore does not trigger a subsistence evaluation under ANILCA.

Akiak argues that the CWA should not be interpreted to repeal ANILCA's subsistence protection mandates because CWA is a statute of general application and ANILCA is a specific statute. See Morton v. Mancari, 417 U.S. 535, 550-51, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974) ("Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment."). The Supreme Court made the distinction between general and specific statutes in Morton, however, by noting that the Indian preference statute was specific because it "appl[ied] to a very specific situation," while the Indian Reorganization Act was of "general application." Id. at 550, 94 S.Ct. 2474. Here, the CWA is the more specific statute with regard to the transfer of the NPDES permitting program because it lists specific criteria for the EPA to consider when evaluating a state program application for transfer of authority, while ANILCA does not address either the transfer from the EPA to a state or the NPDES program as a whole.

Furthermore, there is no indication that the EPA was required to conduct subsistence evaluations under ANILCA when it previously retained authority over the NPDES program before transferring it to the State of Alaska. Indeed, the EPA does not have "primary jurisdiction" over "public lands" in Alaska, and that is what triggers the application of ANILCA under section 810(a). From a reading of the statute, it appears that ANILCA applies specifically to federal land management agencies. See 16 U.S.C. § 3102(12) ("The term `Secretary' means the Secretary of the Interior, except that when such term is used with respect to any unit of the National Forest System, such term means the Secretary of Agriculture."); Id. § 3112(3) (declaring as part of the "Congressional statement of policy" that "[f]ederal land managing agencies, in managing subsistence activities on the public lands . . . shall cooperate with adjacent landowners and land managers"); Id. § 3120(d) (noting that after performing the subsistence evaluation mandated by section 810, "the head of the appropriate Federal agency may manage or dispose of public lands under his primary jurisdiction"). The EPA does not directly manage public lands and is not a federal land management agency.

In City of Angoon v. Hodel, we explicitly rejected the notion that the CWA's issuance of a pollution permit triggers a subsistence evaluation under section 810(a) of ANILCA. 803 F.2d 1016, 1027-281 (9th Cir. 1986). We noted that the CWA did not require such evaluation because the federal government did not hold title to the navigational servitude and therefore the servitude was not "public land" within the meaning of ANILCA. Id. at 1027 n. 6. We further stated that even if we were to conduct a broad reading of the meaning of "public lands," neither the EPA nor the Army Corps of Engineers qualified as an agency having "primary jurisdiction" over the public lands at issue, which were privately-held lands within a National Monument managed by the U.S. Forest Service. Id. at 1028.
Petitioners argue that City of Angoon is not controlling here because this court in Alaska v. Babbitt expanded the definition of "public lands" to include certain federal navigable waters. In Babbitt, we held that "the definition of public lands includes those navigable waters in which the United States has an interest by virtue of the reserved water rights doctrine." 72 F.3d 698, 704 (9th Cir. 1995). Specifically, we held that ANILCA applies to federal navigable waters adjacent to, or within the exterior boundaries of, federal reservations in Alaska. See id.; 36 C.F.R. § 242.3(b). These federal reservations and enclaves are primarily controlled by federal land management agencies, however, and not the EPA. See 94 C.J.S. Waters § 347 ("The federal reserved water rights doctrine or implied reservation doctrine applies not only to Indian reservations, but to other federal enclaves, such as national parks, forests, monuments, military bases, and wildlife preserves."). The EPA therefore was not required to conduct subsistence evaluations under ANILCA.

III. Conclusion

The EPA's decision to approve the State of Alaska's proposed program to administer the NPDES permitting system was not arbitrary or capricious.

PETITION FOR REVIEW DENIED.