Supreme Court asked to quench the fire

On the theory that making the loser pay for at least a portion of the fees and costs associated with litigation lacks merit, the Alaska Rules of Civil Procedure recite that on application and subject to judicial oversight, the prevailing party may secure an award of the costs and a portion of the attorney's fees incurred by the prevailing party at the conclusion of a lawsuit brought in the courts of this state.

At first blush this might seem like a sound rule; however, it has always been subject to debate, primarily because other rules applicable to civil litigation require the parties or at least their attorneys to be operating in good faith. Although "good faith" might not be universally co-terminal with "meritorious," because litigation is so very expensive, it is hardly ever the case that truly frivolous litigation is brought into our courts. Whether Rule 82 actually reduces the incidence of frivolous litigation will probably be indeterminable for a long time.

There is one major exception to this analysis; however, and that is in the case of so-called public interest litigation. There is a court-created exception (now statutory) to Rule 82, which, at least for the time being, enables certain non-governmental organizations to run into court with a lengthy laundry list of frivolous claims, litigate them at great length and then, upon losing the bulk, if not the totality, of their assertions, walk away scot-free.

As this column has suggested in the past, every nonprofit entity is not necessarily operating in the public interest; however, generally nonprofit litigation is clothed in the aphorism of raising important issues of public policy. Since there are few cases which establish the bar, generally, being a nonprofit ends the inquiry.

In the case of the litigation against the state brought by the Trustees for Alaska, in the name of Nunamta Aulukesti, among others, the State of Alaska, as well as intervenor The Pebble Limited Project, prevailed on every point. The decision by the trial court, which went to great lengths to afford Trustees every opportunity to make its point, was comprehensive. While it is disappointing for the Pebble Project to have wasted untold funds defending its legitimate interests, it is a travesty for taxpayer funds to be wasted in this fashion.

The central issue in the Nunamta case rotated around the question of whether miscellaneous and temporary water use permits constituted a violation of the Alaska Constitution. Trustees unloaded theory after theory in its effort to make its point. The judge was as tolerant as he was knowledgeable and extended every courtesy to the environmental law firm. At the end of the day, however, Trustees did not win any points.

In the normal (non-public interest) civil case, the award of costs and attorneys fees is pretty formulaic and the dollar amount is not astronomical; however, in the Nunamta case, Trustees, backed by substantial grants from foundations based outside of Alaska, ran up the tab excessively, demanding all kinds of records and data which were frequently not probative of their endlessly shifting theories of the case. When asked to respond to a portion of the attorney's fees prescribed by the rules, they demurred. When asked to disclose the source of their funds, they balked.

In brief, Alaska taxpayers are at risk of being obliged to pay for the full costs of defending themselves against meretricious allegations of misconduct. The Supreme Court heard arguments on this case Dec. 17, and will disgorge an analysis and conclusion in due course. In the past, challenges to Rule 82 have resulted in close scrutiny but never a significant circumscription to the public interest exception. We can only wait to see if that will change in this instance.

At some point, whether now or later, the Court will be forced to recognize that there are plaintiffs flying under the banner of the public interest that are so far estranged from that basic concept as to justify its vitiation. Certainly the litigation brought by the environmental "conflicts" industry frequently falls into that category.

As a state, as a nation, as a people, we must recognize that the development of our natural resources in an environmentally sensitive way under the watchful eye of well-trained and committed representatives of the government is not a license for ill-motivated luddites to virtually defraud the commonweal of funds far better dedicated to other objectives and obligations.

Although this byline is no fan of judicial legislation, the public interest exception to Rule 82 is within the unique province of the judiciary, because that is where the exception was engendered.

One other concept is worth noting in this context as well - typically, the environmental conflicts industry enlists private citizens to become nominal parties to their adventures. In this case, two esteemed and legendary Alaska icons were lured into that role.

Whether it occurred at their own behest or otherwise, the very concept that they might be called upon to answer for their decision obviously sits poorly with many observers.

This should not be a deterrent, however, to a remedial resolution of this worsening public interest ruse. Others who may in the future be unwittingly drafted into lending their name to questionable litigation should be put on fair notice now that their treasure may be at risk, and that they may be called upon to put their money where their mouth is.

For most people, words have consequences. Neither free speech nor access to the courthouse can be nor should be a justification for gross and reckless misconduct. Just as one cannot be allowed to yell "fire" in a crowded theater when there is no fire, no one should be allowed to yell "unconstitutional" in a courthouse when there is no smattering of support for such defamation. Like all other authors of frivolous litigation, environmental conflicts litigants should be made to pay when the circumstances warrant.