Gwitchyaa Zhee Corp. v. Alexander

• Decision Date: 18 March 2021
• Docket Number: No. 4:18-cv-0016-HRH,4:18-cv-0016-HRH
• Parties: GWITCHYAA ZHEE CORPORATION and GWICHYAA ZHEE GWICH'IN TRIBAL GOVERNMENT, Plaintiffs, v. CLARENCE ALEXANDER and DEMETRIE (DACHO) ALEXANDER, Defendants and Third-.Party Plaintiffs, v. DAVID BERNHARDT, in his official capacity as Secretary of the United States Department of the Interior, Third-Party Defendant.
• Court: U.S. District Court — District of Alaska

GWITCHYAA ZHEE CORPORATION andGWICHYAA ZHEE GWICH'IN TRIBAL GOVERNMENT, Plaintiffs, v. CLARENCE ALEXANDER andDEMETRIE (DACHO) ALEXANDER, Defendants and Third-.Party Plaintiffs, v. DAVID BERNHARDT, in his official capacity

as Secretary of the United States Department

of the Interior, Third-Party Defendant.

No. 4:18-cv-0016-HRH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

March 18, 2021

ORDER

Motion for Costs and Attorneys' Fees

Plaintiffs Gwitchyaa Zhee Corporation and Gwichyaa Zhee Gwich'in Tribal Government move for an award of taxable costs¹ and attorneys' fees.² This motion isopposed by defendants Clarence and Demetrie ("Dacho") Alexander.³ Oral argument was not requested and is not deemed necessary.

Background

This case began when plaintiffs filed a complaint in state court on February 26, 2018. In their complaint, plaintiffs asserted a single ejectment claim. Plaintiffs sought to eject defendants from land that defendants contended was part of Clarence's ANCSA § 14(c) claim. On April 17, 2018, defendants removed this case to federal court and on July 3, 2018, the court denied plaintiffs' motion to remand.⁴ The court held that removal had been proper "because plaintiffs' well-pleaded complaint establishes that plaintiffs' right to relief on their state-law ejectment claim depends on the resolution of substantial questions of federal law."⁵ On July 13, 2018, defendants filed their answer, counterclaims, and third-party complaint.⁶ In their first counterclaim, defendants sought a declaration that GZ Corporation's § 14(c) processes and procedures were, among other things, unconstitutional because they violated defendants' due process rights.⁷ In their other counterclaims, defendants challenged plaintiffs' reliance on the statute of limitations in 43 U.S.C. § 1632, sought a de novo hearing on Clarence's § 14(c) claim, and moved to quiet title in the land at issue.⁸

Over the remainder of 2018 and 2019, the parties engaged in motion practice; discovery was conducted; and defendants pursued their third party complaint against the Secretary of Interior, a complaint that was eventually dismissed.⁹ On December 19, 2019, the court granted plaintiffs' motion for summary judgment and denied defendants' cross-motion for summary judgment, holding that defendants were "time-barred from seeking judicial review of Clarence's § 14(c) claim."¹⁰ On January 9, 2020, plaintiffs filed a motion for summary judgment on their ejectment claim.¹¹ The parties spent most of the remainder of 2020 litigating the merits of plaintiffs' ejectment claim, and on December 22, 2020, the court entered judgment in plaintiffs' favor.¹² The instant motion for costs and attorneys' fees followed.

Attorneys' Fees

Plaintiffs move for an award of attorneys' fees pursuant to Rule 82, Alaska Rules of Civil Procedure. "'Alaska is the only state that does not follow the American rule [pertaining to attorney's fees].'" Monzingo v. Alaska Air Group, Inc., 112 P.3d 655, 665 (Alaska 2005) (quoting Edwards v. Alaska Pulp Corp., 920 P.2d 751, 755 (Alaska 1996)). "'Under the American rule, each party pays its attorney's fees, regardless of who prevails.'" Id. (quoting Edwards, 920 P.2d at 755). "'The purpose of Rule 82 is to partially compensate a prevailing party for the expenses incurred in winning his case. It is not intended as a vehicle foraccomplishing anything other than providing compensation where it is justified.'" Id. (quoting Tobeluk v. Lind, 589 P.2d 873, 876 (Alaska 1979)).

Rule 82 can "provide grounds for a fee award in the District of Alaska; specifically, in diversity cases and in federal question cases with supplemental jurisdiction over state-law claims[.]" Disability Law Center of Alaska, Inc. v. Anchorage School Dist., 581 F.3d 936, 941 (9th Cir. 2009) (internal citations omitted). But, defendants argue that AS 09.60.010(c) limits the application of Rule 82 in this case.

AS 09.60.010(c)(2) provides that

[i]n a civil action or appeal concerning the establishment, protection, or enforcement of a right under the United States Constitution or the Constitution of the State of Alaska, the court . . . may not order a claimant to pay the attorney fees of the opposing party devoted to claims concerning constitutional rights if the claimant as plaintiff, counterclaimant, cross claimant, or third-party plaintiff in the action or appeal 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.

This statute

was enacted to abrogate [Alaska's] previous common law public interest litigation attorney's fees framework and replace it with a narrower constitutional litigation framework. The statute both encourages and protects those challenging governmental action as a violation of federal or state constitutional rights. First, the statute provides that a successful claimant generally is entitled to an award of full reasonable attorney's fees and costs incurred in connection with a constitutional claim, unless the claimant had "sufficient economic incentive" to bring the claim regardless of its constitutional nature. Second, the statute protects an unsuccessful claimant from an adverse attorney's fees award if the constitutional claim was not frivolous and the claimant did not have "sufficient economic incentive" to bring the claim regardless of its constitutional nature.

Alaska Conservation Foundation v. Pebble Ltd. Partnership, 350 P.3d 273, 274 (Alaska 2015) (quoting AS 09.06.010(c)). In other words, "Alaska Statute 09.60.010(c) . . . prohibits a court from ordering a losing [party] to pay the attorney fees of an opponent devoted to claims concerning constitutional rights." Lake & Peninsula Borough Assembly v. Oberlatz, 329 P.3d 214, 226 (Alaska 2014). This means that in cases involving both constitutional and non-constitutional claims, "Rule 82 attorney 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." Id. at 228.

Defendants argue that AS 09.60.010(c) applies here because this case involved constitutional claims in the form of their counterclaims. Plaintiffs, on the other hand, argue that AS 09.60.010(c) has no application here because it only applies to an assertion of constitutional claims against the government or government actors. Plaintiffs argue that AS 09.60.010(c) does not apply in cases such as this in which constitutional claims were asserted against private parties.

The Alaska Supreme Court has never considered the issue of whether AS 09.60.010(c) can apply in cases in which constitutional claims are asserted against private parties. But assuming without deciding that if faced with this issue, the Alaska Supreme Court would hold that AS 09.60.010(c) could apply to constitutional claims asserted against private litigants, defendants would still not be entitled to the protection of the statute.

In order for defendants to be entitled to the protection offered by AS.09.60.010(c), defendants must first show that their constitutional counterclaims were "not frivolous[.]" Alaska Conservation Foundation, 350 P.3d at 274. The Alaska Supreme Court has held that "[i]n most cases, . . . a claim should not be considered frivolous unless the litigant has abused the judicial process or exhibited an improper or abusive purpose." Manning v. State Dep'tof Fish and Game, 420 P.3d 1270, 1283-84 (Alaska 2018) (citation omitted). Under such a definition, defendants' constitutional counterclaims could not be considered frivolous.

Second, in order to fall under the protection of AS 09.60.010(c), defendants must show that they "did not have 'sufficient economic incentive' to bring" their counterclaims "regardless of [their] constitutional nature." Alaska Conservation Foundation, 350 P.3d at 274. "A litigant has sufficient economic incentive to bring a claim when it is brought primarily to advance the litigant's direct economic interest, regardless of the nature of the claim." Id. at 281-82.

Defendants argue that they did not have sufficient economic interest to bring their counterclaims because the land from which plaintiffs sought to eject them was of "insignificant market value."¹³ Defendants contend that by late 2011, they had "accepted the status quo" that "the Joe Ward barge area was not part of Clarence's § 14(c)(1) reconveyance" and that they had no incentive to pursue a legal remedy given the area's insignificant market value.¹⁴

Defendants' argument ignores the fact that Dacho has been using a portion of the land at issue for his "log milling and storage business[.]"¹⁵ Plainly, some of the land at issue had value to one of the Alexanders. In addition, two of the parcels at issue are unique pieces of property because of their access to the Yukon River, and these two parcels have road access as well as river access. The road and river access give this land economic value and furtherillustrates that defendants had private, economic incentives to pursue the right to retain all three parcels. Defendants were not acting as a "stalking horse" pursuing this litigation for some broader public interest matter. Alaska Conservation Foundation, 350 P.3d at 276 (quotation marks omitted). Rather, they were pursuing their own economic interests. Thus, even assuming that AS 09.60.010(c) applied here, defendants would not be entitled to its protection.¹⁶

Because AS 09.60.010(c) does not apply in this case, the issue of attorneys' fees is governed by Rule 82. Under Rule 82, "[i]n cases[,]" such as this, "in which the prevailing party recovers no money judgment, the court . . . shall award the prevailing party in a case resolved without trial 20 percent of its actual attorney's fees which were necessarily incurred." Alaska R. Civ. P. 82(b)(2). Prevailing...