Governor submits bill stop full attorney’s fees to public interest litigants

Kristen Nelson, PNA editor-in-chief

Gov. Frank Murkowski has sent bills to the Legislature which would change the way attorney’s fees are awarded to, or against, public interest litigants in cases contesting decisions by the departments of Environmental Conservation, Fish and Game and Natural Resources. The bills apply to cases involving coastal consistency determinations, adoption of regulations, or decisions in which the public has had an opportunity to comment to the agency and seek administrative review before the agency.

At present, the governor said in a Feb. 28 transmittal letter, “Alaska case law creates an exception to Rule 82 by which, in most circumstances, public interest litigants who prevail receive full attorney’s fees, with no apportionment by issue, but are not liable for an opposing party’s fees if the public interest litigant loses the case.”

In other cases, under Alaska Rule of Civil Procedure 82, attorney’s fees are awarded to the prevailing party and are limited to a specified percentage of the actual fees.

House Bill 145 and its counterpart, Senate Bill 97, provide “for specific rules that govern the award of attorney’s fees to or against certain public interest litigants.” The bills also amends Rule 82 “to require that attorney’s fees be awarded to or against a public interest litigant” in the resource development situations described “in the same manner as attorney’s fees are awarded to or against non-public interest litigants” under Rule 82.

The governor told the Legislature that the attorney’s fee exception for public interest litigants “creates several undesirable incentives when decisions of the state are called into question.

“First, those seeking to preserve an action of the state have an incentive to avoid litigation because of the possibility of full attorney’s fees being awarded against them. This is compounded by the fact that those seeking to overturn actions of the state have an affirmative incentive to take a chance on doubtful claims because they may win and earn large rewards in the form of full fees, without the counterbalancing risk of even partial fees being awarded against them.

“This is of particular concern,” the governor said, “in the area of resource development where well-financed groups have sought to use litigation to impede the state’s efforts to proceed with the orderly development of its resources.”

No hearings were scheduled as of March 6.

Other bills moving

The original act had a deadline of June 30, 2001, for applications and applied only to liquefied natural gas projects. The amendments as passed out of House Resources have a deadline of March 31, 2005, for applications under the act. As introduced by Rep. Hugh Fate, R-Fairbanks, there was no deadline, but during discussions in the House Special Committee on Oil and Gas, Fate said the administration believed it was important to have a date to spur activity.

A definition of a qualified sponsor was changed from an entity having a net worth equal to at least 33 percent of the estimated cost of the project to at least 15 percent. Fate said this was to allow other people into the project and also as an encouragement to other people to do exploration.

Senate Bill 74, the governor’s bill extending the renewal period from three to five years for oil discharge prevention and contingency plans, moved out of Senate Resources March 5. The bill has been amended since originally introduced to provide for a transition period. Plans approved by the Department of Environmental Conservation before the effective date of this bill shall be extended for two years or for a shorter period if requested by the holder of the approved plan.