State, Department of Natural Resources v. Tongass Conservation Society , 1997 Alas. LEXIS 6 ( 1997 )

COMPTON, Justice,

dissenting.

I agree with the court that an inquiry into why the legislature enacts or fails to enact legislation involves a political question which is inappropriate for judicial resolution. Op. at 1020. I disagree, however, with the court’s assertion that this is the issue in the present case. Op. at 1017-18. In fact, the legislature’s motives do not need to be considered in any degree to resolve the issue of whether Tongass was the prevailing party and therefore entitled to attorney’s fees.¹

The court correctly states that “Tongass’s goal in filing the appeal was to prevent the land exchange from occurring.” Id. The court then erroneously concludes that “[t]his goal was accomplished because the legislature did not approve the exchange.” Id. Tongass’s goal of preventing the land exchange was not accomplished until the State formally rescinded the Agreement. Thus, the question presented is not, as the court states, “whether the appeal was a catalyst in producing the legislature’s inaction,” id., but whether the appeal was a catalyst in producing the State’s decision to rescind the Agreement.²

Section (4)(B) of the superior court’s Order Granting Partial Attorney’s Fees is entitled “Whether TCS has proven a causal connection between its lawsuit and DNR’s rescission of the exchange agreement.” The superior court noted Senate Bill 465’s passage by the Senate, having been aired before three Senate committees during which “potential problems with the bill received considerable attention,” its passage by one House committee, and its death in the House when it was never brought to a vote before the committee of second referral. The superior court then noted that a Division of Natural Resources (DNR) manager reported to the DNR Commissioner that the exchange proposal would require enough modification to necessitate further hearings, but that

[n]o reasons are stated why the proposal required modification. However, the State of Alaska specifically requested [ ] that the Ketchikan [Gateway] Borough and the Cape Fox Corporation rescind the land exchange proposal in part because “[t]he State is obligated to defend the lawsuit by the Tongass Conservation Society unless the agreement is terminated.”

The superior court noted the agreement’s language referring to the legislature’s failure to act “and for other reasons ” as justification for the agreement. The “other reasons ” were not specified. The superior court framed the crucial question as why DNR decided not to present the proposal during the next legislative session. Again noting the exchange’s passage by three Senate Committees and one House Committee, the court observed that “[t]he only other evidence of potential problems with the proposal was the threatened lawsuit. DNR in fact concedes that the ‘appeal ... proved to be an effective lobbying tool.’ ” The superior court concluded that “[bjecause TCS has a legal basis for its claims, because its appeal acted as an impetus to the rescission, and because it substantially obtained the relief it sought, TCS is the prevailing party to the action.” The record supports the superior court’s conclusion that the “appeal acted as impetus to the rescission.”

It is often difficult to determine a defendant’s motive for settling a case because “defendants, on the whole, are usually rather reluctant to concede that the litigation prompted them to mend their ways.” Posada v. Lamb County, Texas, 716 F.2d 1066, 1072 (5th Cir.1983). Because of this difficulty, federal courts have developed an objective test which emphasizes the “chronology of events” as an important element in determining causation. See id. (“Clues to the provocative effects of the plaintiffs legal efforts are often best gleaned from the chronology of events....”) The chronology of events in the present case supports the superior court’s conclusion that there was a causal connection between Tongass’s suit and the State’s decision to rescind the Agreement.

After the State, Cape Fox, and the Borough arrived at an agreement, the State sought the required legislative approval. In the interim, Tongass filed an administrative appeal, challenging numerous procedures followed, or not followed, by the State. When the State was unable to obtain legislative approval, it informed Tongass it would not seek that approval again. Tongass did not deem that advisement sufficient to protect its interests, and demanded rescission of the Agreement before it would dismiss its appeal. The State specifically requested that the Borough and Cape Fox rescind the land exchange proposal in part because “[t]he State is obligated to defend the lawsuit by the Tongass Conservation Society unless the agreement is terminated.” In the words of a Department of Law attorney, the State had an interest in rendering Tongass’s appeal “unequivocally moot.” It was only following rescission, the ultimate resolution of the problem from Tongass’s standpoint, that Tongass dismissed the appeal. This chronology supports the superior court’s conclusion that the suit filed by Tongass was an impetus for the rescission of the Agreement.

The superior court awarded Tongass attorney’s fees after concluding that Tongass “substantially obtained the relief it sought.” I would hold that the court did not abuse its discretion in awarding Tongass attorney’s fees. I would therefore affirm its award.

1 . The court quotes the State's opposition to Ton-gass’s motion for attorney's fees, Op. at 1017, but fails to note that the State's assertion that "the majority of the fees Tongass requests are not related to its efforts before this court, but were incurred lobbying the legislature” is a misstatement. Tongass requested 39.7 hours in fees for the appeal and 15 hours in fees for lobbying efforts. The superior court awarded full fees for the appeal, but reduced the award of fees for lobbying to 7.5 hours.

2 . The court's discussion concerning Tongass’s actions as a catalyst, and the ensuing discussion regarding the justiciability of political questions, is not consistent with the view it expresses in footnote 2, which is keyed to those discussions.

The court frames the question as whether, "using Tongass’s method of analysis, [] the appeal was a catalyst in producing the legislature’s inaction.” It concludes by holding "that an inquiry into why the legislature failed to approve SB 465 involves a political question which is inappropriate for judicial resolution.” (Footnote omitted.) Since the superior court predicated its decision on the legislature’s failure to act, which was the result of Tongass's lobbying efforts, the decision was based on an impermissible inquiry into legislative motivation, a political question.

Notwithstanding the above analysis, it is clear from footnote 2 that the court itself has concluded that the State decided to abandon the land exchange contract for its own political reasons, an inquiry into the political motivations of a coordinate branch of government. While the court declares that the superior court impermis-sibly inquired into political motivation with respect to the legislative branch, it feels free to do so with respect to the executive branch:

The suggestion of political motivation inherent in the timing of DNR’s decision to rescind finds confirmation in statements in two affidavits filed by the State in opposition to Ton-gass’s request for attorney’s fees.

Op. at 1018, n. 2.

The court next quotes the superior court’s reference to Tongass's lobbying efforts, stating that ”[t]his passage seems to explicitly declare Ton-gass a prevailing party based on the theory that the appeal enabled Tongass to win a political victory, which influenced DNR's decision to rescind.” Op. at 1018, n. 2. Its own uncertainty is embodied in the word "seems." Arguably the passage is not free from ambiguity, and if it is ambiguous, the result should be a remand for clarification. However, it must be remembered that of the hours sought to be recompensed, 39.7 were for the appeal and 15 for lobbying efforts, the latter reduced to 7.5 by the superior court. Further, the rescission agreement itself declared that it was "the legislature’s failure to act, and [] other reasons,” which resulted in the formal termination of the exchange agreement. Until then the State could not unilaterally dismiss the administrative appeal. Tongass was free to argue that the public interest exception to the mootness doctrine justified maintaining the appeal. That position would not have been frivolous.