Native Village of Quinhagak v. U.S.

Decision Date08 October 2002
Docket NumberNo. 01-35430.,No. 01-35466.,01-35430.,01-35466.
PartiesNATIVE VILLAGE OF QUINHAGAK; Native Village of Goodnews Bay; Association of Village Council Presidents; Louie Smith; Annie Cleveland, Plaintiffs-Appellees-Cross-Appellants, v. UNITED STATES of America; Gale Norton, in her official capacity as Secretary of the Interior, Defendants, and State of Alaska; Frank Rue, in his official capacity as Commissioner of the Alaska Department of Fish and Game, Defendants-Appellants-Cross-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Sky Starkey, Homer, AK, for plaintiffs-appellees-cross-appellants Native Village of Quinhagak, Native Village of Goodnews Bay, Association of Village Council Presidents, Louie Smith, and Annie Cleveland.

William E. Caldwell, Alaska Legal Services Corp., Fairbanks, AK, for plaintiff-appellee-cross-appellant Native Village of Goodnews Bay.

Dean K. Dunsmore, Department of Justice, Environment & Natural Resources Div., Anchorage, AK, for defendant United States of America.

Joanne Grace, Anchorage, AK, for defendants-appellants-cross-appellees State of Alaska and Frank Rue.

Appeal from the United States District Court for the District of Alaska; H. Russel Holland, District Judge, Presiding. D.C. No. CV-93-00023-HRH.

Before: B. FLETCHER, ALARCÓN, and GRABER, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge:

These appeals involve an award of attorneys' fees resulting from more than a decade of litigation over subsistence fishing rights in Alaskan waters. Defendant-Appellant/Cross-Appellee State of Alaska argues that the plaintiff villages were not entitled to recover fees on the issue of which government — federal or state — could assert jurisdiction to manage subsistence fishing. Plaintiffs-Appellees cross-appeal, arguing that they were entitled not only to the fees awarded, but also to fees incurred during required administrative proceedings.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court's determination that the villages were prevailing parties entitled to attorneys' fees. We reverse its determination that it did not have discretion to award attorneys' fees for pre-litigation administrative activities.

I Factual Background & Procedural History

Over the past twelve years, the district court has been jointly managing several cases pertaining to subsistence fishing priorities. In 1980, Congress enacted the Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. §§ 3101-3233. Title VIII of ANILCA requires that rural Alaskans enjoy a priority for subsistence hunting and fishing on public lands. 16 U.S.C. §§ 3113, 3114. Although ANILCA preempts inconsistent state management, § 805(d) of the Act, 16 U.S.C. § 3115(d), provides in part:

The [Interior] Secretary shall not implement[provisions establishing a federal administrative structure] if the State enacts and implements laws of general applicability which are consistent with, and which provide for the definition, preference, and participation specified in [the Act].

Pursuant to this provision, in 1982, the Interior Secretary certified the State of Alaska to manage subsistence hunting and fishing on public lands. Alaska v. Babbitt, 72 F.3d 698, 700-01 (9th Cir.1995). Consequently, Alaska passed and implemented state laws granting preference to rural Alaska residents — such as the plaintiffs in this case — to hunt and fish for subsistence purposes. Native Village of Quinhagak v. United States (Quinhagak I), 35 F.3d 388, 390 (9th Cir.1994).

In 1989, however, the Alaska Supreme Court invalidated the state subsistence law and rendered the state noncompliant with ANILCA's rural preference requirement. McDowell v. State, 785 P.2d 1, 6 (Alaska 1989); see Quinhagak I, 35 F.3d at 390. Pursuant to 16 U.S.C. § 3115(d), the federal government therefore became responsible for implementing ANILCA on "public lands." Id. The Secretaries of Agriculture and the Interior created the Federal Subsistence Board (FSB) to oversee day-to-day management of subsistence hunting and fishing on "public lands." 50 C.F.R. § 100.3(b). Initially, the Interior Secretary determined that navigable waters were not public lands for ANILCA purposes, and that the FSB therefore lacked jurisdiction to manage subsistence fishing in such waters. Quinhagak I, 35 F.3d at 390.

A group of native Alaskan villagers who had engaged in subsistence fishing "since time immemorial" in navigable waters sought reconsideration of the Secretary's exclusion of such waters from the definition of "public lands." The group's request was denied. The group then joined other plaintiffs in a lawsuit asserting two primary claims: (1) that the Secretary improperly excluded navigable and federally reserved waters from management under ANILCA (the "where" issue) and (2) that Alaska had no jurisdiction to regulate the waters in question (the "who" issue). See Katie John v. United States, 247 F.3d 1032 (9th Cir.2001) (en banc) (per curiam).

While Katie John was pending in federal district court, the State of Alaska sued the federal government. See Babbitt, 72 F.3d 698, 700-01. Babbitt focused on the "who" issue, but characterized it more broadly than did the Katie John plaintiffs. Because of the substantial overlap between the two cases the district court consolidated Katie John and Babbitt. Although several other cases were filed that turned on the resolution of the "where" and "who" issues in Katie John/Babbitt, the district court declined to consolidate these additional dependent cases and chose, instead, to manage them together and stayed proceedings pending resolution of the core Katie John/Babbitt issues.

Meanwhile, as Katie John/Babbitt took shape in federal court, the plaintiffs in the case at hand ("Quinhagak plaintiffs") sought regulatory relief from the FSB and the Alaska Board of Fisheries. After being denied relief by both agencies, they filed suit against the United States and the State of Alaska in federal district court claiming that (1) the federal defendants violated ANILCA by refusing to include navigable waters in the definition of "public lands" and, as a result, failing to extend federal subsistence management to those waters, and that (2) the state defendants violated ANILCA by managing fisheries beyond their jurisdiction. The Quinhagak plaintiffs sought a declaratory judgment that the waters they fished were "public lands" and that the State of Alaska — because of its noncompliance with ANILCA in the aftermath of McDowell — was without jurisdiction to manage subsistence fishing in the contested river systems.

The district court added the instant case to the list of cases to be managed jointly in connection with Katie John/Babbitt and, as part of an order explaining how the joint management would proceed, the district court invited the plaintiffs in the jointly managed cases, including the case at hand, to submit amicus briefing on the "who" and "where" issues in the consolidated cases.

Consistent with the district court's joint management order, the Quinhagak plaintiffs joined with the Katie John plaintiffs and other parties to file an amicus brief in opposition to Alaska's motion for summary judgment on the "who" issue in the consolidated cases. The Quinhagak, Katie John, and other plaintiffs later submitted supplemental briefing at the court's request.

With respect to the "where" issue, the district court determined that the ANILCA subsistence priority applies to all navigable waters in Alaska. Katie John v. United States, No. A90-0484-CV (HRH) Consolidated with No. A92-0264-CV (HRH), 1994 WL 487830, 1994 U.S. Dist. LEXIS 12785 (D.Alaska Mar. 30, 1994). With respect to the "who" issue, the court dismissed Alaska's claim and upheld the federal government's authority to manage subsistence fishing on public lands. Id. Recognizing that the "who" and "where" issues were controlling questions of law, the district court certified both for interlocutory appeal.

Several months later, this court reversed the district court's denial of a preliminary injunction in the case at hand, citing the then-pending interlocutory Katie John appeals as evidence that the Quinhagak plaintiffs had presented serious questions on the merits. Quinhagak I, 35 F.3d at 393. We also ruled that the Quinhagak plaintiffs were entitled to recover attorneys' fees under ANILCA, including fees related to their preliminary injunction request. Subsequently, we decided the interlocutory appeals in Babbitt, 72 F.3d at 701, and determined that the subsistence priority extended to the navigable waters at issue in this case, though on different grounds than those upon which the district court relied.1

Shortly after we issued our Babbitt opinion, the Secretary of the Interior announced his intent to extend the subsistence priority to navigable waters, including those upon which the Quinhagak plaintiffs engage in subsistence fishing. 61 Fed.Reg. 15014 (Apr. 4, 1996). And, in February 2000, the district court entered a final judgment on the merits in favor of the Quinhagak plaintiffs in this case.

Pursuant to § 807(a) of ANILCA, 16 U.S.C. § 3117(a), the Quinhagak plaintiffs filed a motion requesting $222,861.52 in costs and attorneys' fees as prevailing parties. On October 24, 2000, the district court granted the request in part. The district court reiterated that, although the current case was not formally consolidated with Katie John/Babbitt, it had been jointly managed along with all other subsistence fishing cases. The court noted that:

At all relevant times and with the court's knowledge and encouragement, counsel were coordinating their work, keeping each other notified of what was going on in the litigation, and, for its part, the court served all counsel in all of the cases with all orders which were issued in any of the cases.

The district court concluded that, "[b]eyond any question, the plaintiffs have...

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