IT IS ORDERED:
1. Opinion No. 4054, issued on February 18, 1994, is WITHDRAWN.
2. The opinion on rehearing, Opinion No. 4195, is issued today in its place.
Entered by direction of the court at Anchorage, Alaska on May 12, 1995.
Before: MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.
OPINION ON REHEARING
In McDowell v. State, 785 P.2d 1 (Alaska 1989), this court determined that the preference given to rural residents under Alaska's subsistence laws to harvest Alaska's fish and game resources violated sections 3, 5, and 17 of article VIII of the Alaska Constitution. Id. at 9. On remand the superior court held that the rural preference provisions were severable from the remaining subsistence provisions. The Attorney General's office subsequently advised the Alaska Department of Fish and Game and the Joint Boards of Fisheries and Game that where harvestable surpluses of a stock were sufficient to satisfy all subsistence uses of that stock, any Alaskan who desired to participate in the subsistence use of that fish or game stock was eligible to do so.
On October 28, 1990 the Joint Boards of Fisheries and Game adopted Policy Statement No. 90-18-JB, on the premise that they had "no other option than to apply the standard that all Alaskans are now eligible subsistence users under Tier I during the upcoming regulatory cycle." Pursuant to this "all-Alaskan" policy, the Board of Fisheries adopted regulations that codified subsistence
Prior to the scheduled effective date of these regulations, United Cook Inlet Drift Association (UCIDA) filed suit seeking declaratory and injunctive relief regarding 5 AAC 01.596 and 5 AAC 01.598. UCIDA sought a declaration that the regulations were invalid and unenforceable "because they are based on a policy statement of the Board of Fisheries that in another action has been held invalid and of no force and effect."
The prior action to which UCIDA refers is Morry v. State, No. 2BA-83-87 Civ. (Alaska Super., May 23, 1991), in which Judge Michael I. Jeffery issued a partial final judgment pursuant to Alaska Civil Rule 54(b). This partial final judgment provided in relevant part:
The Ninilchik Traditional Council (Ninilchik) moved to intervene in the present action, contending that the challenged regulations adversely affected the subsistence life-style and culture of its members. Ninilchik's motion was subsequently granted.
In its decision, the superior court concluded that the same all-Alaskan policy statement being challenged in this case had been previously considered and held invalid in Morry. The superior court observed that Judge Jeffery's invalidation of the all-Alaskan policy was not confined to the facts of Morry. The superior court further held that it was bound by application of the doctrine of collateral estoppel to follow Judge Jeffery's ruling invalidating the all-Alaskan policy.
Following the entry of final judgment, both UCIDA and Ninilchik moved for awards of full attorney's fees on the ground that they were public interest litigants. The superior court denied the motions for full fees, but awarded partial fees of $4,237.50 to UCIDA and $3,206.25 to Ninilchik.
II. NON-MUTUAL COLLATERAL ESTOPPEL
A. Standard of Review
This court is not bound by the superior court's resolution of questions of law. Rather we will adopt the rule of law that is most persuasive in light of precedent, reason, and policy. Ford v. Municipality of Anchorage, 813 P.2d 654, 655 (Alaska 1991). The applicability of collateral estoppel to a particular set of facts is a question of law subject to independent review. Rapoport v. Tesoro Alaska Petroleum Co., 794 P.2d 949, 951 (Alaska 1990).
The parties disagree on whether the disputed legal issue underlying the State's appeal is moot. Judge Jeffery's ruling in Morry invalidating the "all-Alaskan" policy was later overruled in State v. Morry, 836 P.2d 358 (Alaska 1992). Therefore, UCIDA and Ninilchik contend that the superior court's judgment in this case is now moot.
This case is not moot. The underlying judgment of the superior court exists until it is vacated by the superior court or vacated or reversed by this court. We do so in this case based on our decision in Morry.
The question that may be moot is the propriety of using non-mutual collateral estoppel against the State. As to this question, we think the State's arguments are persuasive. Assuming this aspect of the case has been mooted by subsequent developments, we conclude that the question of the application of non-mutual collateral estoppel against the State should be addressed under the public interest exception to the doctrine of mootness.
C. Application of Non-Mutual Offensive Collateral Estoppel Against the State
There are three requirements for application of collateral estoppel:
Murray v. Feight, 741 P.2d 1148, 1153 (Alaska 1987). Although we have abandoned the requirement of mutuality of parties, we have stated that "[i]f the particular circumstances of the prior adjudication would make it unfair to allow a person who was not a party to the first judgment to invoke ... collateral estoppel then the requirement of mutuality must still be applied." Pennington v. Snow, 471 P.2d 370, 377 (Alaska 1970), limited on other grounds by Kott v. State, 678 P.2d 386, 391-93 (Alaska 1984) (declining to abandon mutuality requirement in criminal cases); see also Pruitt v. State, Dep't of Pub. Safety, 825 P.2d 887, 890 (Alaska 1992).
1. The Mendoza Exception
The State concedes that the three requirements for the application of collateral estoppel identified in Murray are present in the instant case.
We decline to adopt the Mendoza exception which would preclude in all cases, the offensive use of collateral estoppel against the State. The exception to this doctrine which the Mendoza court created was one especially fashioned for the federal government as a litigant.
Id. at 160-61.
We think UCIDA's and Ninilchik's arguments distinguishing state litigation from federal litigation in the context of these three factors are persuasive. As to the first factor, they note that in contrast to a federal district court, the superior court's jurisdiction is statewide,
Concerning the second factor, the State's attempt to equate the functions of Alaska's Attorney General with those of the United States Solicitor General does not withstand scrutiny. Unlike the Solicitor General, Alaska's Attorney General essentially litigates in a single jurisdiction and is faced with a much smaller volume of litigation. Consequently, the need to authorize appeals of only the strongest cases is not as compelling as it is in the diverse federal judicial system.
As to the third Mendoza factor, preserving policy choices for successive administrations, we agree with UCIDA and Ninilchik that this factor does not carry significant weight. Given the wide variety of options a new state administration has in regard to pursuing its own policy initiatives, we are not persuaded that this factor compels adoption of the Mendoza exception.
2. The Exception for Unmixed Questions of Law
Alternatively, the State contends on rehearing that the weight of authority as well as sound policy justifications support the adoption by this court of a limited exception to the application of collateral estoppel against the State on "unmixed questions of law."
The Restatement (Second) of Judgements § 29(7) (1982) states that even when all the prerequisites for non-mutual collateral estoppel are present, a party should be permitted to relitigate an issue if it "is one of law and treating it as conclusively determined would inappropriately foreclose opportunity for obtaining reconsideration of the legal rule upon which it was based."
The official commentary to this section of the Restatement notes that "it is also pertinent that the party against whom the rule of preclusion is to be applied is a government agency responsible for continuing administration of a body of law applicable to many similarly situated persons." Restatement (Second) of Judgements § 29 cmt. i (1982). Thus the Restatement recognizes the unique position of the states amongst litigants in their respective court systems. First, the State is the most frequent litigator and it is therefore most likely to be bound by collateral estoppel if the rule were strictly enforced.
The adoption of this exception to collateral estoppel does not result in the absence of any restraints on the State's ability to advance inconsistent legal arguments in different cases. As noted by both the State and the authors of the Restatement, the judicial doctrine of stare decisis accords the prior holdings of the highest courts of this State precedential value while still permitting the reconsideration of legal issues when conditions warrant.
Although one of the preeminent values which the legal system seeks to obtain — and one of the primary justifications for the application of collateral estoppel
The superior court's entry of final judgment on Count I of UCIDA's complaint is reversed based on State v. Morry, 836 P.2d 358 (Alaska 1992). We have considered and rejected the State's contention that it should be exempted from application of the doctrine of non-mutual offensive collateral estoppel. However, we hold that the State is permitted to relitigate unmixed questions of law so long as the subject matter of the second case is "substantially unrelated" to that of the first. Whether Ninilchik is a public interest litigant entitled to recover full reasonable attorney's fees against the State is a moot question, since, in view of our disposition herein, the State was the prevailing party and public interest litigants who are not prevailing parties are not entitled to an award of attorney's fees.
After the complaint was filed the superior court issued a temporary restraining order prohibiting the State from implementing the Upper Cook Inlet Subsistence Management Plan, 5 AAC 01.598. The State then petitioned for review. We granted the petition and reversed because the superior court had failed to consider the potential injury to subsistence users that would result from issuance of a T.R.O., and on the further ground that AS 16.05.258(c) granted a preference to subsistence users over commercial users. State v. United Cook Inlet Drift Ass'n, 815 P.2d 378, 379 (Alaska 1991).
464 U.S. at 159-60, 104 S.Ct. at 572 (citation omitted).
We have previously rejected arguments that subsistence use constitutes a private interest sufficient to deny public interest status. Alaska Survival v. State, Dep't of Natural Resources, 723 P.2d 1281, 1292 (Alaska 1986). If a litigant relies on hunting, fishing, and gathering resources "for personal rather than commercial purposes," then the party's economic interests are not so "substantial" that he or she would not qualify as a public interest litigant. Id. Under Alaska Survival, Ninilchik satisfies our test for determination of public interest status.