author: FABE, Justice.

text:
    ALASKA NATIVE TRIBAL HEALTH CONSORTIUM, d/b/a Alaska Native Medical Center, Appellant, v. SETTLEMENT FUNDS HELD FOR OR TO BE PAID ON BEHALF OF E.R., a minor, by and through his legal guardian, Martha RIDLEY, Appellee. Alaska Native Tribal Health Consortium, d/b/a Alaska Native Medical Center, Appellant/ Cross-Appellee, v. Settlement Funds Held for or to be Paid on Behalf of David W. Warden, Appellee/Cross-Appellant.
    Nos. S-10662, S-10696, S-10785.
    Supreme Court of Alaska.
    Jan. 30, 2004.
    Rehearing Denied April 2, 2004.

      Peter J. Aschenbrenner, Aschenbrenner Law Offices, Inc., Fairbanks, for Appel-lanVCross-Appellee Alaska Native Tribal Health Consortium.
    J. Mitchell Joyner, Law Office of J. Mitchell Joyner, Anchorage, for Appellee E.R.
    Robert A. Rehbock, Rehbock & Rehbock, Anchorage, for Appellee/Cross-Appellant David W. Warden.
    Before: BRYNER, Chief Justice, MATTHEWS, FABE, and CARPENETI, Justices.
   OPINION

FABE, Justice.

I. INTRODUCTION

In this consolidated appeal we address whether the Alaska Native Tribal Health Consortium (the Consortium) can enforce a health care provider lien on settlement proceeds received by Alaska Native patients from third-party tortfeasors. If we determine that such a lien can be enforced, the principal question that follows is whether the lien must be reduced by a pro rata share of the patients’ attorney’s fees. These questions arise in two cases that share similar factual backgrounds. Each ease involves an Alaska Native who was treated as a patient at the Alaska Native Medical Center (ANMC) for injuries caused by third-party tortfeasors. ANMC, run by the Consortium, treats Alaska Natives for free. The Consortium recorded hospital liens on the settlements that two patients, Warden and E.R., obtained from their respective tortfeasors. Both patients’ attorneys disputed the validity of the liens. In both cases, the superior court concluded that the health care provider lien is valid and should be paid in full, less a pro rata share of the patient’s attorney’s fees and costs incurred in obtaining the recovery. Because the Consortium has a federal right to enforce a statutory health care provider lien, and because it would be unjustly enriched if it did not pay a pro rata share of attorney’s fees, we affirm the superior court’s determination in both eases. We hold that the Consortium’s statutory health care provider lien is enforceable and is subject to a pro rata reduction for attorney’s fees and costs.

II. FACTS AND PROCEEDINGS

A. The Consortium’s Claim to Settlement Funds Obtained on Behalf of David W. Warden

On February 15, 2000, David Warden, an Alaska Native, was injured in a motor vehicle accident with Mary Copley, who was insured by Allstate Insurance Company. Warden received medical treatment from ANMC for injuries to his back and neck between February 15, 2000 and March 8, 2001.

Shortly after the accident, Warden engaged counsel Robert Rehboek and entered into a contingency fee agreement entitling Rehboek to a percentage of any recovery. Allstate entered into negotiations with Warden, seeking to minimize its obligation by emphasizing Warden’s pre- and co-existing conditions. Allstate declined to enter any settlement agreement unless there was full and final release of all parts of the claim. The Consortium did not respond to Allstate’s efforts to obtain medical records and information concerning the care Warden received, only providing such documentation after further efforts by Warden and Rehboek.

On May 3, 2001, the Consortium recorded a health care provider’s lien pursuant to AS 34.35.450-.482 for $8,947.22, the alleged value of services provided to Warden. Copies of the recorded lien were forwarded by certified mail to Allstate and its insured, Mary Copley. The transmittal letter to Allstate included a request that ANMC be named as the payee on any check issued arising out of the accident. The Consortium provided a copy of the lien to Warden, who apprised Allstate of the lien claim and continued to seek recovery for all claims.

On August 3, 2001, Allstate settled with Warden for $24,947.22 to cover all losses and to release all claims against Copley and Allstate. Out of this amount, Allstate issued a separate settlement check on the same day for $8,947.22 made payable to “Rehboek Reh-bock & Wittenbrader In Trust for David Warden, and ALASKA Native Medical Center.” The same day, Rehboek informed the Consortium that he proposed to “turn over two-thirds of the total check for that lien and receive the remaining one-third” for his fees but that he would “not disburse any of the disputed lien to my client or for my fee pending our resolution of’ the dispute. The Consortium therefore declined to endorse the check, and the disputed funds were placed with the court and then, by stipulation, held in Rehboek’s trust account. Rehbock has at this point only taken for his fee one-third of the non-disputed funds.

The Consortium filed a complaint in superior court on September 9, 2001 against “Settlement Funds Held for or to be Paid on Behalf of David W. Warden” seeking to foreclose its lien under AS 34.35.480. Warden’s answer admitted that the Consortium rendered medical services to Warden and had recorded a lien for $8,947.22, but challenged the validity of the lien. The parties filed cross-motions for summary judgment, with the Consortium moving to foreclose its lien and with Warden arguing that the Consortium could not assert a lien because Warden was entitled to free treatment at ANMC, or in the alternative, that the Consortium’s lien recovery should be reduced by the percentage in the contingency fee agreement between Warden and Rehbock. Without elaborating on its reasoning, the superior" court held that the Consortium was entitled to foreclose its lien and was entitled to the full amount less its pro rata share of the attorney’s fees and costs Warden incurred to obtain the settlement proceeds from Allstate.

The Consortium appeals the pro rata reduction of its lien recovery. Warden cross-appeals the superior court’s ruling that the Consortium was entitled to foreclose on its lien.

B. The Consortium’s Claims to Settlement Funds Obtained on Behalf of E.R.

In December 1999 E.R., a minor, suffered second- and third-degree burns on his feet and legs when he was placed in a bathtub of scalding water. As an Alaska Native, E.R. was entitled to free medical services at the Alaska Native Medical Center, a facility operated by the Consortium. E.R. was treated on first an inpatient and then an outpatient basis, with his last treatment occurring on August 11, 2000. On October 25, 2000, the Consortium filed a health care provider’s lien pursuant to AS 34.35.450-.482 for $30,081.65 for the services provided to E.R.

J. Mitchell Joyner represented E.R., through his parent Martha Ridley, in a suit against Richard Knowles, who owned the property on which E.R. was injured. On March 26 and 27, 2001, Joyner apparently called and then wrote to the Consortium offering to settle the lien claim for $5,000 in light of Joyner’s assertion that the lien was “deficient on its face.” On March 30, 2001, E.R. moved under Alaska Civil Rule 90.2 for approval of a settlement agreement to resolve its claim against Knowles for $95,000. That motion specifically addressed the Consortium lien, declaring that the lien was unenforceable. The superior court approved the settlement on April 2, 2001. Notice of the approval was sent to counsel for Knowles, who was insured by State Farm.

Following the superior court’s approval, Joyner drew from the $95,000 settlement his attorney’s fees of $31,666 (the one-third contingency fee agreed upon with Ridley) and roughly $9,260 in costs. On April 3, 2001, Joyner advised the Consortium of the settlement and explained that, given E.R.’s challenge of the lien’s validity, Joyner would hold the $30,081.65 in his trust account until the disputed matter was resolved.

In August 2001 the Consortium filed a complaint in superior court against “Settlement Funds Held for or to be Paid on Behalf of E.R.” seeking to foreclose on its lien. E.R.’s answer denied the lien’s validity, and in a motion for summary judgment, argued that the lien was invalid because it was filed in an untimely manner, more than the ninety days after the last service provided by a physician, required by AS 34.35.460. In the alternative, E.R. asserted that if the lien was valid, then the amount owed to the Consortium should be subject to a pro rata reduction for the cost incurred in obtaining the recovery from Knowles. The Consortium also moved for summary judgment.

In May 2002 the superior court rendered its decision and entered judgment. The court ruled that “[fjederal law and decisions” indicate that the Consortium’s lien was valid, declared that any attack by Joyner on the lien was denied because of his conflict of interest in advocating the lien while pursuing a settlement yet later challenging it, and held that the Consortium was “entitled to 100% of its liened amount, $30,081.65, less a proportionate share of the costs and attorney fees incurred.”

The Consortium did not seek a stay of the decision, and the trust funds were disbursed to E.R. and the Consortium in accordance with the court’s order. Joyner’s trust account thus currently contains no settlement funds.

The Consortium appeals the superior court’s ruling that its recovery should be reduced by a proportionate share of Joyner’s attorney’s fees and costs.

III. DISCUSSION

To resolve the questions appealed, we must first consider both the rights of the Alaska Native Tribal Health Consortium and the rights of Alaska Native patients who seek a judgment or settlement for injuries treated by ANMC without cost. We must decide whether federal and state law allow the Consortium to enforce a health care provider lien on settlement proceeds from third-party tort-feasors when the patient personally owed nothing to the Consortium. Warden argues that Alaska Native patients are federally entitled to free health care and should not have to satisfy the Consortium’s claim from the proceeds of their personal injury'recovery. The Consortium contends that because Warden negotiated a separate settlement on behalf of the Alaska Native Medical Center, the full amount of the proceeds did not belong to Warden. The Consortium further asserts that Congress federalized its state rights to insurance-funded recoveries from tort actions under 25 U.S.C. § 1621e(a), and that AS 34.35.450 is the state mechanism that actualizes this federal right. If the Consortium’s health care provider lien is-enforceable, we must then decide whether the lien should be reduced by a pro rata share of attorney’s fees expended to obtain the settlement proceeds. We will assess each of the parties’ arguments following the standard of review.

A. Standard of Review

We review grants of summary judgment de novo. “[We] may consider any argument ascertainable from the record, even if the superior court did not rule on it, when reviewing the summary judgment order.” We similarly apply our independent judgment when reviewing questions of statutory interpretation and “must ‘adopt the rule of law that is most persuasive in light of precedent, reason, and policy.’ ”

B. The Consortium Is Entitled To Enforce Its Health Care Provider Lien.

We must first consider whether federal law allows enforcement of the Consortium’s health care provider lien. Warden charges that enforcement of the Consortium’s lien would violate federal law. Warden argues that 25 U.S.C. § 1621u entitles him to free medical services and that “requir[ing] him to satisfy [the Consortium] claim from the proceeds of his personal injury recovery violates that statute.” That statute states, in relevant part, that “[a] patient who receives contract health care services that'are authorized by the [Indian Health] Service shall not be hable for the payment of any charges or costs associated with the provision of such services.”

The Consortium maintains that § 1621u concerns payment arrangements for fee-for-serviee health care providers, such as Providence or Alaska Regional Hospitals, but does not address tribal health contractors like the Consortium who are under contract with the Secretary of Health and Human Services. The Consortium’s interpretation is bolstered by 25 U.S.C. § 1621r, which also uses the term “contract health services” to mean “private contract health services providers.”

We note at numerous points below that Warden as an Alaska Native does have a federal right to free care. This federal right, however, is not violated by enforcement of the Consortium’s lien. All of Warden’s federal claims, as well as Warden’s claim that the Alaska Legislature “did not intend (even assuming it could constitutionally do so) to disenfranchise Native Beneficiaries of the advantage to them of obtaining free care and pocketing the money they save,” fail because they rest on the same core fallacy, namely that all of the settlement funds are Warden’s and that satisfying the lien from the recovery essentially reduces his damages and makes him pay for his medical care.

As the Consortium argued below, however, the settlement fund does not “belong” to Warden because the settlement is not composed entirely of his funds; he negotiated for a separate settlement with Allstate and a separate check for ANMC, so only the funds not subject to the Consortium’s lien are Warden’s, and thus the Consortium’s lien takes nothing from Warden to which he is entitled.

Warden also contends that the Consortium’s lien diminishes Warden’s cause of action and his damages, in violation of 25 U.S.C. § 1621e(d), which states that “[n]o action taken by ... a tribal organization to enforce the right of recovery ... shall affect the right of any person to any damages.” We agree with the Consortium’s argument that § 1621e(d) merely protects a patient’s right to sue and prevents a tribal health contractor from giving to the tortfeasor a complete release of all claims. Enforcement of the Consortium’s lien does not affect Warden’s right to damages, but rather just the amount of damages.

We determine that federal law does not prohibit and in fact specifically provides for enforcement of the Consortium’s health care provider lien to the same extent a nongovernmental provider is entitled to enforce such a lien under state law. The Consortium correctly argues that in 25 U.S.C. § 1621e(a), Congress federalized the Consortium’s state rights to insurance-funded recoveries from tort actions. Under this federal statute, a tribal organization providing health services has the right to recover reimbursement from third parties for reasonable expenses. This right is enforceable to the same extent that the law entitles a nongovernmental provider or an individual to recover from third parties if the individual had been required to pay and did pay for services. Section 1621e(a) provides that

a tribal organization shall have the right to recover the reasonable expenses incurred by ... a tribal organization in providing health services ... to any individual to the same extent that such individual, or any nongovernmental provider of such services, would be eligible to receive reimbursement or indemnification for such expenses if— (1) such services had been provided by a nongovernmental provider, and
(2) such individual had been required to pay such expenses and did pay such expenses.

The Consortium correctly contends that § 1621e(a) “strips [Warden] of a federal defense to [the Consortium’s] state lien foreclosure action.” The Consortium’s rights to lien foreclosure under federal law should equal the rights that a nongovernmental provider of health services could exercise under state law. We conclude that under 25 U.S.C. § 1621e(a), the Consortium has a federal right to enforce a statutory health care provider lien to the same extent that state law allows a nongovernmental provider to enforce such a lien.

The state statute creating the hospital lien here is AS 34.35.450(a). The Consortium asserts that AS 34.35.450 is the state statutory mechanism by which the Consortium’s federal rights are actualized in terms of rights in recoveries funded by third-party liability insurance carriers, and indemnity, or health insurance contracts. Alaska Statute 34.35.450(a) provides as follows:

An operator of a hospital in the state ... who furnishes service to a person who has a traumatic injury has a lien Upon any sum awarded to the injured person or the personal representative of the injured person by judgment or obtained by a settlement or compromise to the extent of the amount due the hospital ... for the reasonable value of the service furnished before the date of judgment, settlement, or compromise, together with costs and reasonable attorney fees that the court allows, incurred in the enforcement of the lien. AS 34.35.450 — 34.35.480 do not apply to a claim, right of action, or money accruing under AS 23.30 (Workers’ Compensation Act).

Warden argues that state law does not create an enforceable lien where another paid for the medical services and the Native American beneficiary owed the hospital nothing. Warden asserts that a hospital lien cannot exist without an underlying debt, pointing to the language in AS 34.35.450(a) providing for a lien “to the extent of the amount due the hospital ... for the reasonable value of the service furnished.” (Emphasis added.) This language is in contrast to AS 34.35.450(b), which allows the hospital a lien on the amount that an insurer has contracted to pay for “the sum incurred for hospitalization” of its insured. Because Warden, as an Alaska Native, owed the Consortium nothing for his medical services, Warden thus claims that the Consortium could not assert a lien under state law.

The flaw in Warden’s reasoning is that AS 34.35.450(a) does not specify that “the amount due the hospital” has to be due from the patient personally. The language can also be read as allowing “the amount due the hospital ... for the reasonable value of the service furnished” to mean that the hospital can recover the amount of expense it incurred from “any sum ... obtained by a settlement” with a tortfeasor or insurer.

The Consortium persuasively argues that federal law makes clear that Warden does not personally have to owe it anything for a debt to arise from his receipt of free medical services, citing the Alaska federal district court opinion in Yukon-Kuskokwim Health Corp. v. Trust Insurance Plan of Southwest Alaska. The Yukon-Kuskokwim Health Corporation (YKHC), like the Consortium, administered health care services to Alaska Natives through operation of a hospital under a contract with the Department of Health and Human Services. YKHC provided health care to Alaska Natives insured by the Trust Insurance Plan of Southwest Alaska (TIPSA), a trust composed of several southwestern Alaska employers with high numbers of Native employees that provides group insurance to those employees. For reasons similar to Warden’s arguments here, TIPSA routinely denied claims submitted by YKHC for services provided to those Alaska Natives. That is, TIPSA based these denials on the fact that the Alaska Natives had no legal obligation to pay for health services received from government contractors like YKHC. Yet, when Congress passed the Indian Health Amendments of 1992, it “amended the Indian Health Care Improvement Act, 25 U.S.C. § 1621e(a), to expressly provide tribal organizations with a right of recovery to collect the reasonable costs of health care provided to Native Americans and Alaska Natives from third-party insurers.” Following passage of the amendments, YKHC filed suit against TIPSA under 25 U.S.C. § 1621e “to recover the reasonable cost of health care provided to Alaska Native TIPSA beneficiaries.” In upholding the retroac-tivity of the amendments, the district court noted that the amendments to § 1621e(a) effectively amended TIPSA’s insurance policy, which had excluded coverage for medical services where Alaska Natives were not legally required to pay for the services, “by requiring assumptions that the health care recipient received care at a nongovernmental hospital, that he was required to pay, and that he had paid for the medical services.” The discussion of federal law in Yukoiu-Kus-kokwim thus provides strong support for the Consortium’s assertion that Warden did not need to have an actual “amount due.”

Furthermore, the language of 25 U.S.C. § 1621e(a) quoted earlier supports the Consortium’s position. Unlike AS 34.35.450(a), but very much like .450(b), that federal statute states that the Consortium, as a tribal organization, has “the right to recover the reasonable expenses incurred ... in providing health services ... to any individual” to the same extent as that individual or a nongovernmental health provider could receive reimbursement if “such individual had been required to pay such expenses and did pay such expenses.” (Emphasis added.) Again, this language seems to clearly indicate that Warden did not have to personally owe the Consortium anything for it to have a right of recovery of the expenses it incurred in treating him. We conclude that, given the federal law and decision discussed above, AS 34.35.450(a) does not require Warden to personally owe anything to the Consortium in order for the hospital to assert a lien.

Raising another federal argument, Warden attacks the validity of the lien on the ground that the Consortium seeks to be paid twice. Warden charges that the Consortium seeks to be paid once from Warden’s recovery and a second time from the Indian Health Funds that paid for Warden’s medical services in the first place. Warden points to 25 U.S.C. § 1621f, which provides that any reimbursements that a tribal organization recovers are retained by the organization and do not affect the amount of funding it receives from the Indian Health Service.

The Consortium counters that it is not seeking to be paid twice, since it uses the funds it recovers to replace federal grant funds that have diminished in importance as a source of financial support for the institution. The Consortium further notes that this description of its funding and its use of recovered funds, supported by affidavit, was uncontested below and relied on by the superior court in approving the Consortium’s lien. We agree with the Consortium’s position.

We conclude that the Consortium is not seeking to be paid twice; rather it is seeking to recover its costs in caring for Warden. As the Consortium convincingly argued below, the Consortium incurred expenses in treating Warden, in that portions of its federal funding were used to pay the providers who treated Warden’s injuries. Furthermore, the Consortium correctly points out that 25 U.S.C. § 1621f supports its argument, as it indicates that the Consortium may seek recoveries via state tort and insurance systems and use these funds to carry out its programs.

We will next consider Warden’s charge that the Consortium’s lien notice was deficient and failed to conform to state law. The Consortium’s lien notice contains one clause that is not in the statute, extending.its lien to “any money or reimbursement due or owing or to be paid or payable under any contract providing for indemnity or compensation for sum(s) incurred for hospitalization ... from any entity or organization including Allstate Insurance Company.” While this clause essentially covers circumstances in which AS 34.35.450(b) might apply, Warden alleges that the Consortium’s notice erroneously extends the lien not just to a company with a contract to pay for its insured’s hospitalization, as envisioned by .450(b), but also to the tortfeasor’s insurer.

We determine that Warden’s claim of deficient notice fails for two reasons. First, this clause is not relevant to the current case because the lien in this ease is authorized under AS 34.35.450(a) and the corresponding section in the Consortium’s lien notice involving recovery from settlement funds, not under AS 34.35.450(b). Second, as the Consortium argued below, its lien form is “substantially” similar to the statutory form in AS 34.35.465, which is all that is required by AS 34.35.460.

The last challenge by Warden we consider on the issue of the lien’s validity is his claim that the Consortium cannot foreclose upon a lien against an unnegotiated settlement cheek. Warden argues that AS 34.35.450 provides for a lien only against settlement proceeds, whereas Allstate merely tendered a negotiable instrument promising to pay the parties. Warden maintains that Allstate offered to discharge the Consortium’s and Warden’s demands in exchange for their acceptance of the cheek’. But the Consortium refused to endorse the check, and Warden contends that the Alaska statutes do not provide for a lien against a promise for payment in a conditional negotiable instrument. In other words, Warden argues that “[ujntil the check was paid there can be no lien foreclosure because there has been no payment or release to or from Warden and tortfeasor.”

The Consortium counters that at the moment of settlement, Allstate was contractually obligated to fund the settlement, so no reason exists why AS 34.35.450 would not operate to attach the Consortium’s lien to that obligation. The Consortium argues that it has rights to the liened funds under AS 34.35.450 whether the funds were in Allstate’s account after the release was delivered but prior to the check being written, whether the settlement check was drawn but unendorsed, or whether the funds were in Rehbock’s trust account.

We agree with the Consortium. Warden’s argument is overly technical and unpersuasive. The settlement funds exist; they were first placed with the court and then, by stipulation, endorsed and held in Rehbock’s trust account pending resolution of the-dispute. Allstate and Warden agreed on a settlement and release of all claims, contractually obligating Allstate to pay $24,947.22 and obliging Warden to indemnify Allstate and Copley from any suits or claims brought by holders of liens or subrogated interests to recoup medical expenses. Alaska Statute 34.35.450(a) applies to “any sum ... obtained by a settlement”; this language would cover the sum that Allstate was contractually obligated to provide in the settlement. Accordingly, we conclude that the Consortium could foreclose on its lien against the settlement.

C. The Consortium’s Suit Is Not Moot.

Although E.R. did not cross-appeal the issue of the lien’s enforceability, an additional issue that arises in E.R. is the claim that the Consortium’s health care provider lien is now moot. E.R. contends that the Consortium’s appeal is against a' party that no longer exists, since the “settlement funds held for or to be paid on behalf of E.R.” have been disbursed in accordance with the superior court’s order and are in the possession of E.R. and his custodian, who are not parties to this action. E.R. therefore argues that the Consortium can gain nothing in pursuing this appeal, since even if the Consortium prevails, there are no settlement funds in the trust account to disburse to the Consortium. And E.-R. and his mother, who have the funds but are not parties, would not be bound -by a decision in this appeal and would be under no obligation to turn- over any portion of the personal injury proceeds to the Consortium. As such, E.R. maintains that this appeal is moot.

The Consortium makes several counter arguments, the most compelling of which is that it has a right to restitution under the Restatement of Restitution § 74, which provides that

a person who has conferred a benefit upon another in compliance with a judgment, or whose property-has been taken thereunder, is entitled to restitution if the judgment is reversed or-set aside, unless restitution would be inequitable or the parties contract that payment is to be final; if the judgment is modified, there is a right to restitution of the excess.[]

We have, concluded above that the Consortium'is entitled to enforce its statutory health care provider lien under federal and state law. We- further determine that Restatement § 74 enables the Consortium’s right to restitution to be given effect under a trust theory. Joyner, as trustee of the former settlement fund, must disburse to the Consortium any recovery stemming from this opinion.

D. The Consortium’s Lien Is Subject to a Pro Rata Reduction for Attorney’s Fees and Costs.

1. Federal and state statutes are ambiguous on the issue of a pro rata reduction of the Consortium’s lien, therefore, relevant policy considerations should be applied.

-We turn now to the question of whether the Consortium’s health care provider lien must be reduced by a pro rata share of the patient’s attorney’s fees. The Consortium makes a variety of statutory arguments in attempting to establish that its lien is not subject to a pro rata reduction for attorney’s fees and costs, but none of the statutes clearly prohibits such á reduction. As the New Mexico Supreme Court reasoned, the ambiguity of statutory provisions requires the court to defer' to equitable considerations to determine whether to reduce the lien by a pro rata share. And in Cooper v. Argonaut Insurance, we took equitable considerations into account in our analysis of ambiguous statutory language, looking to the probable legislative intent to conclude that the statute should be read to require proration of attorney’s fees to avoid unjust enrichment.

The most significant statutory argument raised by the Consortium involves AS 34.35.475. The Consortium maintains that AS 34.35.475(a)(3) directs the attorney to be paid from the gross settlement, with the remaining funds first going to satisfy liens in full and then going to the patient. Alaska Statute 34.35.475 provides:

(a) A person or insurer is hable to a hospital, physician, or nurse, in the amount that the hospital, physician, or nurse is entitled to receive, for 180 days after the date of a payment to the injured person, the heirs of the injured person, personal representatives, or the attorney of them, when the person or insurer
(1) receives a copy of notice of lien, or the lien is recorded as provided in AS 34.35.460 and 34.35.465;
(2) makes the payment after receipt of notice or the recording of the lien as compensation for the injury suffered; and
(3) does not pay the hospital, physician, or the licensed special nurse for the reasonable value of the services rendered to the injured person and claimed in the notice of lien, or so much of the value of the services as can be satisfied out of a judgment, settlement, or compromise, after paying the attorney fees, costs, and expenses incurred in connection with it.
(b) The hospital, physician, or nurse has a cause of action, during the 180 days, against the person or insurer.

(Emphasis added.) The purpose of this statute, as the Consortium admits, is to provide for continuing liability against persons or insurers if, after receiving notice of a hospital lien, they have paid the injured person for that person’s injuries but the hospital lien goes unsatisfied.

The Consortium interprets the emphasized language in AS 34.35.475 above as implying that the attorney will pay himself off the top of the gross settlement, therefore preventing a claim by the client against a nonclient for a pro rata reduction. In E.R., the Consortium notes that the gross settlement was $95,000, which is enough for attorney’s fees ($31,666), costs ($9,261.16), the Consortium’s lien ($30,-081.65), and $23,991.19 remaining for E.R.

However, in Cooper, we determined that similar language in AS 23.30.015(g)' — dictating that an employee shall pay to its employer out of any third-party recovery all amounts paid by the employer or the workers’ compensation carrier “insofar as the recovery is sufficient after deducting all litigation costs and expenses” — could be construed in two divergent ways: (1) requiring a deduction from the amount reimbursed to the employer for litigation expenses attributable to its share of the recovery, a pro rata reduction, or (2) requiring a deduction of all litigation expenses from the total recovery with the remainder going to reimburse the employer. We acknowledged that “grammatically the disputed phrase lends itself more to the second construction,” but held that “the first alternative more accurately conforms to the legislative intent.” Therefore, we conclude that, given our previous decision in Cooper, the language of AS 34.35.475 is ambiguous.

Upon finding the law ambiguous, we concluded in Cooper that the statute should be read to require proration of attorney’s fees to ensure there is not unjust enrichment. In a case quite similar to this one, the New Mexico Supreme Court interpreted a statute entitling a hospital that provided services to an accident victim “to assert a lien upon that part of the judgment, settlement or compromise going, or belonging to such patient, less the amount paid for attorneys’ fees, court costs and other expenses necessary thereto in obtaining the judgment, settlement or compromise.” New Mexico’s statute thus contains language similar to that of AS 34.35.475. Because the court determined that the statute, was “silent on the issue of apportionment of expenses to the lienholder,” the court looked to the relevant policy considerations to determine the most equitable result. We agree with the approach followed by the New Mexico Supreme Court: Absent other evidence of legislative intent, the silence or ambiguity of statutory provisions on the issue of apportioning attorney’s fees requires us to refer to equitable considerations.

The Consortium’s second statutory argument involves AS 34.35.455, which also lacks clarity on the issue of apportioning attorney’s fees. That statute, entitled “Limitation on extent of lien,” states:

Except as otherwise provided, a lien under AS 34.35.450 — 34.35.480 may not be allowed for hospitalization or the services of a physician or licensed special nurse furnished after a settlement is made by or on behalf of the person causing the injury unless the settlement is made within 20 days from the date of the injury. A lien is not allowed for necessary attorney fees, costs, and expenses incurred by the injured person in securing 'a settlement, compromise, or judgment.

(Emphasis added.) The Consortium contends that this statutory language is clear in forbidding an injured person, or that person’s attorney, from making a claim on a hospital’s liened funds to pay for a portion of attorney’s fees and costs. The Consortium asserts that the first sentence of the statute limits the hospital’s rights, while the second speaks to the injured person. The Consortium contends that the Legislature was protecting the health care provider’s rights by limiting the rights of an injured party to reduce the lien.

But the meaning of AS 34.35.455 is far from clear, as E.R. correctly notes. First, section .455 is included in article 12 of AS 34.35, which addresses liens for hospitals, physicians, and nurses; this leads one.to the conclusion that whatever language- is contained in that statute applies to limitations on hospital liens, not liens by injured parties. Second, the initial language of the enactment, prior to the 1963 amendment, provided that “[n]o lien shall be allowed against any sum for necessary attorney fees, costs and expenses incurred by the injured party in securing a settlement, compromise or judgment.”

E.R. argues that these facts allow for two different interpretations of AS 34.35.455, requiring us to look at the statutory language, history, and purpose. The language of the previous enactment could mean what the Consortium says it does, or it is possible that the purpose of the statutory language is to limit the extension of hospital liens to the attorney’s fees and costs incurred by the injured party; in other words, the statute could merely be prioritizing an attorney lien over a hospital lien. Given the language of the previous enactment, and the context, location, and title of the statute, the latter interpretation is more plausible. We determine that the statute is at best unclear, and most likely limits the Consortium’s rights, not the rights of the injured parties or their attorneys.

In its third statutory challenge to a pro rata reduction of its lien, the Consortium contends that under AS 34.35.450(a) the reduction would leave its lien unsatisfied. In Warden, the Consortium essentially contends that a reduction in its lien, for the purpose of allowing Rehbock to pay more settlement funds to Warden, would leave the lien unfulfilled. The Consortium looks to the language of AS 34.35.450(a), which grants the hospital a lien “upon any sum ... obtained by a settlenient,” and argues that any settlement funds transferred from Rehbock to Warden would still be “settlement funds” subject to the lien.

The Consortium similarly argues in E.R. that the superior court erred in allowing a lien reduction to increase E.R.’s recovery and that Joyner cannot pay more settlement funds to his client by transferring his.claim to attorney’s fees and costs. The Consortium notes that AS 34.35.450(a) gives it “a hen upon any sum ... obtained by a settlement,” and that any settlement funds transferred by Joyner to E.R. would therefore still be subject to the Consortium’s lien. The Consortium thus essentially argues that a lien reduction would leave its lien unfulfilled and would subject Knowles, the owner of the property on which E.R. was .injured, and his insurer to double liability under AS 34.35.475.

But in Martinez, the New Mexico Supreme Court has addressed and rejected a similar assertion that pro rata reduction for attorney’s fees would leave the lien unsatisfied and still in effect as to the balance due:

The Hospital’s argument, however, is based on the false premise that the hen is not paid in full. The hen is satisfied from the net proceeds of the settlement or judgment pursuant to the Act. Under our holding today, the Hospital then has a responsibility to pay its proportionate amount of attorney’s fees incurred in obtaining the net proceeds, either out of the net proceeds or from some collateral source. In essence, it is as if the Hospital employed an attorney to secure payment from the patient; the Hospital might recover the full amount of the payment but its- net benefit would be reduced by legal fees that would not be reimbursed absent a statutory or contractual right to those fees. Thus, there is no deficiency and the hen would not remain in effeet.[]

The New Mexico court’s reasoning is persuasive and applicable to both Warden and E.R. We determine that the Consortium’s hen is satisfied from the net proceeds of the judgment or settlement, and the Consortium has a responsibility to pay its proportionate share of attorney’s fees incurred in obtaining the net proceeds.

The last statutory challenge we review on the issue of a reduction of the hen by a pro rata share of attorney’s fees involves a federal statute. The Consortium claims that 25 U.S.C. § 1621e(c) prohibits state law from “preventing] or hindering] the right of recovery of ... a tribal organization under [25 U.S.C. § 1621e(a)],” and that reducing the Consortium’s hen would violate this statute.

We disagree with the Consortium. Reducing the hen would not violate the right of recovery, it would merely influence the amount that can be recovered; more accurately, it would simply require the Consortium to pay the lawyers who implemented its right of recovery. As with AS 34.35.450(a), the situation is analogous to the Consortium filing suit itself, making a full recovery, and then paying its attorneys their fees — the right of recovery would not be hindered, but the attorneys must be paid for their work.

2. Equitable considerations allow for a pro rata reduction.

Federal and state statutes do not provide a clear answer as to whether the Consortium’s statutory health care provider lien can be reduced by a pro rata share of the attorney’s fees expended to acquire settlement proceeds; therefore, we follow the approach of Cooper and the New Mexico Supreme Court and apply equitable considerations. Rehbock and Joyner each argue that the Consortium would obtain a windfall if it recovered on its hen but received its legal services at the expense of Warden and E.R. They are thus each making what amounts to an unjust enrichment argument. Under Alaska law, to establish that pro rata reduction of the Consortium’s lien is necessary to avoid unjust enrichment, Warden and E.R. must each show that (1) either they or their attorneys conferred a benefit upon the Consortium; (2) the Consortium appreciated the benefit; and (3) it would be inequitable for the Consortium to accept and retain the benefit without paying Rehbock or Warden the value thereof.

At times, the Consortium implies that Reh-boek and Joyner conferred no benefit upon it — “all that Rehbock offered the Consortium was the opportunity to litigate the Consortium’s lien with him at the same time that Rehbock was defending his claim to have rendered legal services to the Consortium.” “[The Consortium] only got any money from Joyner by litigating against him.” The Consortium points our attention to the fact that “after eight months of disputing [the Consortium’s] lien, Joyner then claimed to have benefited [the Consortium].”

We conclude that the Consortium’s argument is misplaced. If the Consortium felt burdened by the litigation dispute over the validity of the lien, it could have moved for Civil Rule 82 attorney’s fees once it prevailed on that issue. But the litigation expenses that the Consortium incurred while defending the lien do not negate the labor and funding that Rehbock and Joyner contributed in asserting a cause of action against the third-party tortfeasors. The benefit conferred was that the Consortium did not pay anything for the legal services Rehbock and Joyner rendered in securing the funds that would be used to satisfy the Consortium’s lien. Rehbock and Joyner thus each benefited the Consortium, and the Consortium appreciated those benefits. We must next consider whether it would be unjust to allow the Consortium to benefit without paying for its share of the legal fees and costs.

As noted above, in Cooper v. Argonaut Insurance Cos., we interpreted a workers’ compensation statute with language similar to AS 34.35.475 to allow for a pro rata reduction for attorney’s fees and costs. Part of our reasoning was that the Legislature did not intend “the employer’s compensation carrier to secure a windfall profit at the employee’s expense,” noting that “when the carrier recovers from a third-party tort-feasor as a result of the employee’s suit, the recovery is an unexpected return because the premium paid by the employer is normally based on a projected injury loss without regard to possible third-party claims.” We declared that requiring an employer or compensation carrier to pay its pro rata share for the recovery of the unexpected funds prevents “the entire burden of the litigation [from being] borne by the employee. The carrier would take the benefit of both the employer’s premium and the employee’s litigation effort. This would result in the carrier’s unjust enrichment.” We also cited with approval a California Supreme Court decision “requiring] the passive beneficiaries to bear a fair share of the costs.”

Rehbock and Joyner each argue that the Consortium should bear its share of the costs to prevent Warden and E.R. from incurring the full cost of recovery and letting the Consortium receive a windfall. The Consortium argues^ that Cooper is not applicable here. The Consortium maintains that Cooper does not support an attorney’s right to claim attorney’s fees and costs from a nonparty that is claiming a hospital lien. The Consortium further notes that hospital liens have a different legislative history, purpose, and set of circumstances than workers’ compensation.

The Consortium’s distinctions do not undermine the applicability of the reasoning of Cooper to this case. The issues of preventing a carrier from seeming a windfall at the employee’s expense, preventing the entire burden of the litigation from being borne by the injured plaintiff, preventing unjust enrichment, and requiring passive beneficiaries to share in the costs of recovery are all equitable considerations that translate well to this case. The fact that the Consortium, unlike the compensation carrier, expects to recover from third parties does not alter the equitable considerations involved in determining whether the Consortium should have to pay its share of the costs of obtaining that recovery.

Again, we conclude that the New Mexico Supreme Court decision in Martinez v. St. Joseph Healthcare System is instructive here. As noted above, that court interpreted a statute similar to AS 34.35.475, determined it to be ambiguous, and thus looked to the relevant policy considerations to determine the most equitable result. Instead of following other jurisdictions’ decisions, the New Mexico court chose to follow its own analogous rulings and so looked to a workers’ compensation decision in which the New Mexico Court of Appeals “held that an employer and a worker were to apportion the legal expenses necessary to obtaining a judgment against a third-party tortfeasor,” on the grounds of “fundamental fairness.” The court, therefore, looked to its own version of Cooper.

The New Mexico court concluded that “in hospital lien cases the ‘common-fund’ doctrine most appropriately defines the duties and liabilities of the parties and provides the most fundamental fairness.” The court explained:

In hospital lien cases, the hospital’s right to assert a lien, and its right to recovery based on that lien, depend by statute on the obtaining of a judgment or settlement. The proceeds of that judgment or settlement operate as a fund, and, without the fund, the hospital has nothing upon which to assert a lien under the Act. By seeking payment from the fund in reliance on the lien, the hospital directly receives the benefits of the work done by the patient’s attorney. Further, as in [the Court of Appeals case], the estate bore the initial expenses and risks of litigation. Because of this, it would be fundamentally unfair to allow the Hospital to collect on its lien without paying its prorated share of the legal expenses.[]

The New Mexico court’s reasoning is again persuasive and applicable to this case.

In the past, we have examined the common fund doctrine and its purpose of preventing unjust enrichment. The doctrine “holds that ‘a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole.’ ” The doctrine “is implicated any time one litigant’s success releases well-defined benefits for a limited and identifiable group of others.” An underlying rationale of the doctrine is to prevent unjust enrichment: “As explained by the United States Supreme Court, ‘persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant’s expense.’ ”

We determine that application of the common fund doctrine here is appropriate for the same reasons we described in Edwards v. Alaska Pulp Corporation:

The primary reasons for applying the common fund doctrine to this case are to prevent unjust enrichment and provide reasonable compensation to class counsel. In this case, the plaintiffs’ lawyers created a fund that would not otherwise exist. The fund contains a specified amount, and it benefits a limited community.... Thus the doctrine allows fees to be spread among those benefited by the suit in proportion to the benefits they received. Without application of the doctrine in this case, the fund’s beneficiaries would receive a clear benefit from the efforts of the plaintiffs’ attorneys whose work created the fund, while those attorneys would not be sufficiently compensated. We conclude that the facts in this case give rise to the unjust enrichment or free rider concerns that the common fund doctrine is intended to address, and that application of the doctrine to this case is appropriate.[]

Other jurisdictions have established notice and intent prerequisites for the application of the common fund doctrine as it relates to pro rata reduction of attorney’s fees. We decline to apply these prerequisites to the cases at hand, and instead follow the reasoning adopted by the New Mexico Supreme Court and our previous decision in Edwards. We conclude that it would be unfair to allow the Consortium to collect on its health care provider lien without paying a pro rata share of attorney’s fees when, without the common fund created by the plaintiffs’ lawyers, the Consortium would have nothing upon which to enforce its lien. The Consortium is ready and willing to take the benefits of the common fund; therefore, it must also pay a fair share of the expenses used to obtain the fund.

The Consortium disputes the relevance of the benefit it receives, claiming that both Rehbock and Joyner were “officious in-termeddler[s]” who conferred “incidental benefits” on the Consortium and thus cannot appeal to claims of unjust enrichment. The Consortium also contends that because no contract existed between it and Rehbock, any benefits he conferred upon the Consortium were gratuitous and do not require restitution. The Consortium maintains that Reh-boek did not engage in active representation on the Consortium’s behalf, but rather was working for his own client in conducting the settlement as he did, making the Consortium merely an incidental beneficiary. In support of this assertion, the Consortium cites to the Washington Supreme Court decision in Lynch v. Deaconess Medical Center, which held, in part, that “the fact that Deaconess eventually recovered this amount [that it was owed] is only an incidental benefit derived from Mr. Lynch’s services to his client.”

We decline to follow the reasoning of the Washington Supreme Court, instead we adopt the approach of the New Mexico Supreme Court in Martinez which also explicitly rejected the hospital’s claim that it was merely an incidental beneficiary of the lawyer’s services for his client:

We do not agree that the benefit the hospital receives from the judgment or settlement is merely incidental. If the attorney for the patient does not secure a judgment or settlement, the hospital has nothing to which it may attach its lien. At that point, the hospital/patient relationship truly is nothing more than a creditor/debtor relationship, and the hospital must use its own legal resources to recover its funds. In contrast, if the patient’s attorney secures a judgment or settlement (as the attorney did in this case), the hospital recovers money due without expending its legal resources. If we did not allow division of the legal costs, hospitals would be encouraged to sit back and reap the rewards of another’s labor at that party’s expense. We do not believe that is consistent with public policy in New Mexieo.[]

Distinguishing indirect beneficiaries such as mortgage holders or utility companies that are paid by customers who have secured recoveries, the court observed that “providers that have contract assignment, subrogation, or statutory lien rights ... have a recognized interest in the accumulation of a fund from a specific source and receive a direct benefit from the attorney’s labor.” Again, we conclude that the New Mexico Supreme Court’s reasoning is persuasive: The Consortium benefited directly, not incidentally.

The final policy argument we consider is the Consortium’s allegation that Rehbock and Joyner committed ¾ variety of ethical violations that should prevent them from obtaining a pro rata fee from the Consortium. We conclude that these ethical allegations lack a sound basis in both cases.

First, in Warden, the Consortium charges that Ethics Opinion 92-3 requires an attorney in charge of settlement funds containing a specific allocation for a third-party lien to use the amount designated to satisfy the lien. Allstate’s check was “in payment of medical lien regarding David Warden for treatment provided as a result of accident on 2/15/2000,” was in the exact amount of the Consortium’s lien, and was made payable to the order of “Rehbock Rehbock & Wittenbrader in trust for David Warden, and ALASKA Native Medical Center.” The Consortium alleges that Allstate intended the lien to be paid in full.

The Consortium further accuses Rehbock of “now claiming to be attorney for” the Consortium, of being an “unethical attorney” in “segregat[ing] the funds in the settlement to make his own claim to the funds without the nonclient’s consent,” and of “switching sides mid-settlement [to] structure a forced exchange.” The Consortium also alleges that there is no evidence that Rehbock’s fee agreement with Warden was a fee-sharing arrangement that would allow Rehbock to claim attorney’s fees from the Consortium, and thus that Rehbock’s attempt to do so “crosses the line marked by Rule of Professional Conduct 1.8(f); he is now demanding ‘compensation for representing [another] client ... other than [the first] client.’ ” The Consortium cites to our previous decisions that once a conflict of interest or ethical violation is established, the attorney is prohibited from collecting fees

The Consortium’s claims of ethical violations are without merit. Ethics Opinion 92-3 speaks of a “valid assignment or perfected lien” and indicates that “the attorney is obligated to withhold and segregate those funds in question” when disputes arise. Rehbock thus correctly declares that.Ethics Opinion 92-3 does not suggest that an attorney must pay the full amount of a lien where there is a dispute regarding the lien’s validity, amount, and susceptibility to pro rata reduction for fees, but rather simply directs the attorney to allow the court to decide the dispute. And the superior court did not err in “invading” the settlement for a reduction for fees as the Consortium alleges.

Rehbock recognizes that Rule of Professional Conduct 1.15 clearly calls for him to keep separate the disputed joint check, since the rule directs that if a dispute arises concerning the interests of an attorney and a third-party property that is in the attorney’s possession, the attorney should keep the property separate. Rehbock notes that the Allstate check was payable to Warden and ANMC and thus required them to resolve their dispute as to who was entitled to how much of it. We agree with Rehbock that he handled the disputed check in accordance with the Rules of Professional Conduct. None of the Consortium’s ethical allegations bear up under scrutiny.

Second, in E.R., the Consortium alleges that Joyner had a conflict of interest because he was attempting to claim his own fees from the settlement funds and because an attorney acts unethically in asserting a claim to trust funds for which he or she is trustee after his or her firm has been paid in full. The Consortium also alleges that Joyner’s attempt to secure additional fees for himself from the liened funds undercuts the statutory lien and goes against Rule of Professional Conduct 1.8(f), as he is now demanding “compensation for representing [another] client ... other than [the first] client.” The Consortium asserts that Joyner could have refused to advocate the lien in the settlement or could have negotiated with the Consortium (with E.R.’s consent) for the price of his advocacy, but that “[w]aiting until after settlement to claim more money is unethical.” The Consortium further maintains that Joyner violated Rule of Professional Conduct 1.15(b) which requires an attorney, upon receiving funds in which a third person has an interest, to “promptly notify” that person and “to promptly deliver to the ... third person any funds or other property that the ... third person is entitled to receive.” The Consortium advances an argument similar to the one asserted in Warden, citing to Alaska’s general rule that once a conflict of interest or ethical violation is established, the attorney is prohibited from collecting fees.

We determine that the Consortium’s claims are inaccurate for several reasons. First, Joyner was not attempting to secure more fees for himself, as his fees had already been paid; rather, he was seeking on behalf of his client to require the Consortium to reimburse E.R. for a portion of E.R.’s expenses. Second, the only basis on which the superior court appears to have found a conflict of interest was the fact that Joyner advocated the lien in the settlement and then advocated against its validity afterwards. But Joyner’s position on the lien’s behalf does not amount to an unethical breach. Third, Joyner properly disclosed the receipt of the funds into his trust account, gave notice that there was a dispute over the amount that the Consortium was “entitled to receive,” and informed the Consortium that the funds would be held in trust until the dispute was resolved. We conclude, therefore, that the Consortium’s ethical allegations against Joyner are unfounded.

IV. CONCLUSION

Because the Consortium has a federal right to enforce a statutory health care provider lien to the same extent that a nongovernmental medical provider has such a right under state law and because the Consortium would be unjustly enriched if it benefited from settlement proceeds without paying a share of the attorney’s fees that created the settlement, we AFFIRM the superior court’s determinations in both cases. We hold that the Consortium can foreclose on its statutory health care provider lien and that its recovery should be subject to a pro rata reduction for its share of attorney’s fees and costs.

EASTAUGH, Justice, not participating.

      . These cases were not consolidated for briefing or argument. We have consolidated them for purposes of the opinion because they share similar factual backgrounds and raise similar legal issues.

      . The Consortium appeals the reduction in both cases. Only in Warden, however, did the patient file a cross-appeal of the superior court's determination that the Consortium could foreclose on its lien.

      . Bennett v. Weimar, 975 P.2d 691, 694 (Alaska 1999).

      . Jackinsky v. Jackinsky, 894 P.2d 650, 654 (Alaska 1995).

      . Jerue v. Millett, 66 P.3d 736, 740 (Alaska 2003) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)).

      . 25 U.S.C. § 1621u(a) (2001).

      . " 'Whenever possible, we construe each part or section of' a statute with every other part or section, to produce a harmonious whole.' ” Romann v. State, Dep’t of Transp. & Pub. Facilities, 991 P.2d 186, 190 (Alaska 1999) (quoting Benner v. Wichman, 874 P.2d 949, 957 (Alaska 1994)); see also Nystrom v. Buckhorn Homes, Inc., 778 P.2d 1115, 1122 (Alaska 1989) (“We are supported in our conclusion concerning the meaning of the term 'individual' by reference to the usage of that term in other sections of the lien law.”).

      . See generally Yukon-Kuskokwim Health Corp. v. Trust Ins. Plan of Southwest Alaska, 884 F.Supp. 1360 (D.Alaska 1994).

      . Warden also points to 25 U.S.C. § 1681, which prohibits the Indian Health Service from charging Indians with the economic means to pay until Congress selects a policy for doing so, which it has not yet done. Apart from sharing the same faulty root, the Consortium correctly points out that § 1681 is now "omitted” from the United-States Code, as it was an appropriations rider in 1996 that was never subsequently reenacted. See 25 U.S.C.A. § 1681 (West 2003).

      .This reasoning also defeats another claim of Warden’s, namely that AS 34.35.450 (discussed below) does not create a new right or cause of action against Warden or Warden's funds. Again, enforcement of the Consortium's lien was not a new cause of action against Warden or his funds since Warden negotiated for a separate check for ANMC; thus, those funds are not Warden’s.

      . Alaska Statute 34.35.450(b) provides:
      When the person receiving hospitalization has a contract providing for indemnity or compensation for the sum incurred for hospitalization, the hospital has a lien upon the amount payable under the contract. The party obligated to make reimbursement under the contract may pay the sum due under it directly to the hospital, and this payment is a full release of the party making the payment under the contract in the amount of the payment.

      . 884 F.Supp. 1360 (D.Alaska 1994).

      . Id. at 1362. ■

      . Id.

      . Id.

      . Id. at 1363.

      . Id.

      . Id. at 1368.

      . The Consortium also makes a less convincing state law argument to support its position, pointing to AS 34.35.025, which applies to several other types of liens and which authorizes foreclosure actions against “all parties personally liable ... and all other persons interested in the matter in controversy or the property sought to be charged with the lien.” The Consortium argues that this statute shows that the legislature understood the difference between defendants who are "personally liable” and those with an interest in the property and yet included both as possible parties, and that given AS 34.35.930’s call for liberal construction of the lien chapter, this means at least that the acknowledgment of different types of defendants for one group of lienhold-ers provides an analogy for others. This other statute only shows, however, that the Legislature recognized that not all parties to lien foreclosure actions have to be "persons personally liable”; it does not establish that someone who is personally liable for the debt need not exist.

      . 25 U.S.C. § 162 If (2001) provides;
      (a) ... all reimbursements received or recovered, under authority of this chapter, ... or any other provision of law, by reason of the provision of health services by ... a tribe or tribal organization under a contract pursuant to the Indian Self-Determination Act ... shall be retained by ... that tribe or tribal organization and shall be available for the facilities, and to cariy out the programs, of ... that tribe or tribal organization to provide health care services to Indians.
      (b) The [Indian Health] Service may not offset or limit the amount of funds obligated to any service unit or any entity under contract with the Service because of the receipt of reimbursements under subsection (a) of this section.

      . See AS 45.03.104(a).

      . See Ulmer v. Alaska Rest. & Beverage Ass'n, 33 P.3d 773, 776 (Alaska 2001) (“A claim will be deemed moot if it has lost its character as a present, live controversy. We have further held that a case is moot if the party bringing the action would not be entitled to any relief even if it prevails.") (internal quotations and alterations omitted).

      . Restatement of Restitution § 74(1937).

      . Martinez, v. St. Joseph Healthcare Sys., 117 N.M. 357, 871 P.2d 1363, 1365 (1994).

      . The Consortium maintains that the public policy in favor of settlements would be disrupted if the delegation of lien funds from an insurance carrier to the plaintiff's attorney became a source of contention. However, there will only be contention as long as there is uncertainty, which this opinion should resolve.

      . 556 P.2d 525, 526 (Alaska 1976).

      . Id.

      . The Consortium also cites to Rhoad v. McLean Trucking Co., 102 Wash.2d 422, 686 P.2d 483, 487 (1984), a Washington workers' compensation case. However, that case not only involved an unambiguous statute, id. at 485, it also explicitly noted that our decision in Cooper provided for apportionment of fees and thus was "contrary to the rule in [Washington] that a statutory right to reimbursement is not to be diminished absent an express statutory provision.” Id. at 487.

      . 556 P.2d at 527-28.

      . Martinez v. St. Joseph Healthcare Sys., 117 N.M. 357, 871 P.2d 1363, 1365 (1994) (quoting N.M. Stat. Ann § 48-8-1 (1978)).

      . Id.

      . Ch. 75, § 2, SLA 1959 (emphasis added).

      . Municipality of Anchorage v. Suzuki, 41 P.3d 147 (Alaska 2002).

      . 871 P.2d at 1368.

      . See State Farm Mut. Auto. Ins. Co. v. Geline, 48 Wis.2d 290, 179 N.W.2d 815, 820 n. 5-9 (1970) (citing to cases in other jurisdictions awarding proportionate fees because holder of subrogated interest did not participate in action but received benefit of it, including Vignali v. Farmers Equitable Ins. Co., 71 Ill.App.2d 114, 216 N.E.2d 827 (1966), which it described as holding that “since such expenses would have been paid by the insurer if it had.initiated the action the result should have been the same even if such recovery was secured by' the insured").

      . See Bennett v. Artus, 20 P.3d 560, 563 (Alaska 2001).

      . 556 P.2d 525, 526 (Alaska 1976).

      . Id. at 527.

      . Id.

      . Id. at 527 n. 11 (citing Quinn v. State, 15 Cal.3d 162, 124 Cal.Rptr. 1, 539 P.2d 761, 764-65 (1975)). Although not addressing any equitable underpinnings, we also addressed pro rata reductions in dicta in Ruggles ex. rel Estate of Mayer v. Grow 984 P.2d 509, 512 (Alaska 1999). The present case differs from Ruggles in that the Consortium is not an insurer and Warden was not its insured. But as argued by the attorney in the companion E.R. case, since Alaska Natives are entitled to free care at ANMC, the Consortium could be seen as being like an insurer in that it must bear the financial burden of providing health care notwithstanding any likelihood of recovering from third parties. Ruggles might thus provide additional jurisprudential support for requiring the Consortium to bear its pro rata share of fees.

      . The Consortium points out, for instance, that workers' compensation carriers do not compute their premiums with third-party recovery in mind, as opposed to the Consortium's funding mechanism, which does. The Consortium also argues in "Warden (without citing any support) that letting Rehbock govern the tortfeasor litigation and the settlement negotiation and management “is a Congressionally anticipated act of self-restraint on the part of its tribal health contractors. This is not conduct to be characterized disparagingly as free or easy riding.”

      . Martinez v. St Joseph Healthcare Sys., 117 N.M. 357, 871 P.2d 1363, 1365 (1994).

      . Id. at 1366.

      . Id.

      . Id. at 1366-67 (citations omitted).

      . The only real difference is that the patient's suit was against her own insurer and not a tortfeasor's, but as already noted, the Consortium has the same right of recovery as an individual does for reimbursement, so this distinction is not meaningful.

      . Edwards v. Alaska Pulp Corp., 920 P.2d 751, 754 (Alaska 1996) (quoting Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980)).

      . Id. at 755.

      . Id. at 754 (quoting Boeing, 444 U.S. at 478, 100 S.Ct. 745); see also Municipality of Anchorage v. Gentile, 922 P.2d 248, 267 (Alaska 1996).

      . 920 P.2d at 756 (footnote and citation omitted).

      . See Oakley v. Fireman's Fund of Wis., 162 Wis.2d 821, 470 N.W.2d 882, 887 (1991); State Farm Mut. Auto. Ins. Co. v. Geline, 48 Wis.2d 290, 179 N.W.2d 815, 822 (1970); In re Marriage of Meadows, 492 N.W.2d 656, 658 (Iowa 1992).

      . Restatement of Restitution § 2 (1937) (“A person who officiously confers a benefit upon another is not entitled to restitution therefor.”); id. § 112.

      . 113 Wash.2d 162, 776 P.2d 681, 683 (1989).

      . 871 P.2d at 1367.

      . Id. at 1367-68.

      . In re Estate of Brandon, 902 P.2d 1299, 1317 (Alaska 1995) ("In Alaska, the general rule has been that once a conflict of interest or other ethical violation has been established, the attorney is prohibited from collecting fees for his or her services.”).

      . Id.

      . Furthermore, even assuming that the superior court’s finding of a conflict of interest were correct, the finding would not necessarily have precluded the court from wielding its equitable powers to award fees to Joyner. See Bennett v. Artus, 20 P.3d 560, 563 (Alaska 2001) (holding that, even though trial court condemned conduct of attorney who had a conflict of interest, trial court could have permissibly concluded that greater inequity would result by allowing opposing party to retain benefit of attorney’s uncompensated contributions).


source: Caselaw Access Project

license: Public Domain

text:
    Tom RUNYON and Laura Runyon, as parents and next friend of B.R., a minor child, Appellants, v. ASSOCIATION OF VILLAGE COUNCIL PRESIDENTS and Mary Kilbuck, Appellees. Evan Nick and Stella Wassilie, as parents and next friend of J.N., a minor child, Appellants, v. Association of Village Council Presidents, Appellee.
    Nos. S-10772, S-10838.
    Supreme Court of Alaska.
    Jan. 30, 2004.

      David Henderson, Law Offices of David Henderson, Bethel, and Charles E. Cole, Law Offices of Charles E. Cole, Fairbanks, for Appellants.
    Patrick J. McKay, Law Offices of Patrick J. McKay, Anchorage, for Appellees.
    Robert K. Stewart, Jr., Davis Wright Tre-maine LLP, Anchorage, and Geoffrey D. Strommer, Hobbs, Straus, Dean & Walker, LLP, Portland, Oregon, for Amicus Curiae Bristol Bay Area Health Corporation.
    Heather Kendall Miller, Native American Rights Fund, Anchorage, and Lloyd Miller, Sonosky, Chambers, Sachse, Miller & Mun-son, Anchorage, for Amicus Curiae Alaska Inter-Tribal Council.
    William S. Cummings, Ashburn & Mason, Anchorage, for Amicus Curiae Alaska Academy of Trial Lawyers.
    Donald Craig Mitchell, Anchorage, for Amicus Curiae Legislative Council of the Alaska Legislature.
    Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.
   OPINION

FABE, Justice.

I. INTRODUCTION

The Association of Village Council Presidents (“AVCP” or “the Association”) is a nonprofit Alaska corporation consisting of fifty-six Alaska Native villages in the Bethel area, each a federally recognized tribe. It provides a variety of social services, including a Head Start program. The parents of two students in the program brought tort actions against AVCP after their children suffered injuries in separate incidents allegedly stemming from the inadequate training and supervision of Head Start teachers. The superior court dismissed the cases, concluding that AVCP is protected by its member tribes’ sovereign immunity. In this consolidated appeal, the parents argue that AVCP is not entitled to assert the sovereign rights of its member tribes. Because we conclude that the villages are not the real parties in interest in these actions and that AVCP is not protected by their sovereign immunity, we reverse the superior court.

II. FACTS AND PROCEEDINGS

A. Factual History

This case originated as a pair of suits alleging negligence in the management of the Head Start program run by AVCP. The Association is a nonprofit corporation serving the fifty-six Native villages of the Yukon-Kuskokwim Delta. It was incorporated in 1969 as a “closed Corporation representing the Eskimo, Indian, and Aleut people of the area.” Its board of directors is comprised of one representative from each member village. Each representative has a single, equal vote in the Association. According to an affidavit executed by AVCP associate counsel Scott Sidell:

AVCP operates a wide range of traditionally governmental programs designed to benefit the member tribes, almost exclusively with state and federal funding. These programs include a variety of governmental social service programs including General Assistance and Temporary Assistance for Needy Families (TANF), juvenile programs, vocational rehabilitation, elder programs, and tribal development and technical assistance. AVCP also coordinates regional village law enforcement through the Village Public Safety Officer Program. AVCP contracts many other programs and services with the United States Government under the Indian Self-Determination and Educational Assistance Act, 26 U.S.C. 450 et seq. All AVCP services are designed [to] promote the welfare of our member tribal governments and preserve and protect the Yup’ik culture of all tribal members.

Moreover, “AVCP contracts with the United States Department of Health and Human Services, under the American Indian Native Alaskan Program, for Head Start program funds.”

The facts of the tort suits are not at issue here, so there is no need to go into great detail. Minors B.R. and J.N. were Head Start students. B.R., the child of Tom and Laura Runyon, was allegedly molested at school by another student. J.N., the child of Evan Nick and Stella Wassilie, had her middle finger “cut off in [a] door” at the building used by Head Start. We refer to the parents collectively as “the Runyons.” In each case, the plaintiffs alleged that AVCP was negligent in failing to train Head Start teachers properly and in allowing the incidents to occur.

B. Procedural History

Both minors’ parents sued AVCP; B.R.’s parents also sued the teacher responsible for them child at the time of the incidents. Their complaints alleged that AVCP’s actions “amount[ed] to willful and wanton misconduct, intentional infliction of harm and emotional distress, gross negligence, and extreme carelessness evidencing a reckless indifference toward and disregard for the value of human life and the safety of the public,” and asked for punitive damages.

AVCP filed motions to dismiss in both actions, claiming that it was protected by the sovereign immunity of the fifty-six sovereign tribes that incorporated it. The superior court granted the motions to dismiss in both cases on the basis of sovereign immunity. Both sets of parents appealed to this court and the cases were consolidated on appeal.

III. STANDARD OF REVIEW

The only issue in this appeal, whether AVCP is protected by tribal sovereign immunity, is a question of law. We review questions of law de novo, adopting the rule that is most persuasive in light of precedent, reason, and policy.

IV. DISCUSSION

The essential legal question presented by this case is whether AVCP may be sued by private parties, or whether the sovereign immunity of its member tribes extends to bar such suits. Indian tribes are “distinct, independent political communities, retaining their original natural rights.” In other words,’ they are sovereigns. Although Alaska no longer contains Indian country, its Native villages “retain those fundamental attributes of sovereignty ... which have not been divested by Congress or by necessary implication of the tribe’s dependent status.” “[T]ribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.” Each of AVCP’s member tribes is therefore protected by tribal sovereign immunity.

A subdivision of tribal government or a corporation attached to a tribe may be “so closely allied with and dependent upon the tribe” that it is effectively an “arm of the tribe.” It is then “actually a part of the tribe per se, and, thus, clothed with tribal immunity.” Tribal status similarly may extend to an institution that is the arm of multiple tribes, such as a joint agency formed by several tribal governments. Whether the entity is formed by one tribe or several, it takes on tribal sovereign immunity only if the tribe or tribes, the sources of sovereign authority and privilege, are the real parties in interest.

A corporation, agency, or other organization is an arm of a tribe for sovereign immunity purposes if its connection to the tribe — or tribes — is so close that allowing suit against the entity will damage the tribal interests that immunity protects. “Indian tribes enjoy immunity because they are sovereigns predating the Constitution, and because immunity is thought necessary to promote the federal policies of tribal self determination, economic development, and cultural autonomy.” Protecting the tribal treasury is a crucial aspect of both of these grounds for immunity. “[Preventing judgments from depleting state treasuries” is a key reason for the states’ sovereign immunity under the Eleventh Amendment to the federal constitution. Tribal sovereign immunity, drawing on the same antecedents, is also motivated in significant part by the need to ensure that tribal assets are used as the tribe wishes, without threat from litigation. Furthermore, protecting tribal assets has long been held crucial to the advancement of the federal policies advanced by immunity.

The entity’s financial relationship with the tribe is therefore of paramount importance— if a judgment against it will not reach the tribe’s assets or if it lacks the “power to bind or obligate the funds of the [tribe],” it is unlikely that the tribe is the real party in interest. If, on the other hand, the tribe would be legally responsible for the' entity’s obligations, it-may be an arm of the tribe. In such a ease other factors, relating to how much control the tribe exerts or whether the entity’s work is commercial or governmental, may assist in the determination.

This case does not require us to refine these other factors because the most important factor, the financial relationship between AVCP and the villages, gives a clear answer. Under Alaska law, the fifty-six villages of AVCP, the members of a nonprofit corporation, “are not .. ^ liable ... on [the corporation’s] obligations.” Any judgment against AVCP will be paid out of the Association’s coffers alone. Even if they fall short, the villages’ assets will be safe from execution. This legal insulation makes clear that AVCP is not an arm of the villages. The villages therefore are not the real parties in interest to this lawsuit. And AVCP is not entitled to the protection of the villages’ tribal sovereign immunity.

We note that we foresaw this arrangement over twenty-five years ago in our decision in Atkinson v. Haldane. . There we suggested in dicta that a tribe might, for commercial purposes, wish to form a corporation exposed to suit in order to cultivate trust with business partners. Although that discussion considered tribal corporations formed under the Indian Reorganization Act, its insight is relevant here. The tribes’ use of the, corporate form protects their assets from being called upon to answer the corporation’s debt. But this protection means that they are not the real party in interest. Though this case does not call upon us to decide what financial structure would endow an association like AVCP with the tribes’ immunity, any arrangement forgoing a liability, shield and exposing the tribal treasury would go a long way toward making the tribes the real parties in interest. The villages of the Yukon-Kuskokwim Delta have chosen to protect themselves from liability. By severing their treasuries from the corporation, they have also cut off their sovereign immunity before it reaches AVCP.

V. CONCLUSION

Because the Association of Village Council Presidents is not protected by tribal sovereign immunity these .two lawsuits should have been allowed to continue. We therefore REVERSE the superior court’s dismissal of these two cases and REMAND them to that court for proceedings consistent with this opinion.

      . Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000).

      . Worcester v. Georgia, 31 U.S. 515, 559, 6 Pet. 515, 8 L.Ed. 483 (1832); see also United States v. Kagama, 118 U.S. 375, 381-82, 6 S.Ct. 1109, 30 L.Ed. 228 (1886).

      . John v. Baker, 982 P.2d 738, 751 (Alaska 1999) (citation omitted). We decline the invitations of the Runyons and amicus Legislative Council to revisit John v. Baker. "Stare decisis compels us to give precedential value to our prior holdings.” Joseph v. State, 26 P.3d 459, 468 (Alaska 2001).

      . Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); see also United States v. United States Fid. & Guar. Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940); Atkinson v. Haldane, 569 P.2d 151, 157-63 (Alaska 1977).

      . Ransom v. St. Regis Mohawk Educ. & Cmty. Fund, Inc., 86 N.Y.2d 553, 635 N.Y.S.2d 116, 658 N.E.2d 989, 993 (1995).

      . Id. at 992 (quotation marks omitted).

      . Dixon v. Picopa Contr. Co., 160 Ariz. 251, 772 P.2d 1104, 1108 (1989) (citing White Mountain Apache Indian Tribe v. Shelley, 107 Ariz. 4, 480 P.2d 654, 657 (1971)); see also Altheimer & Gray v. Sioux Mfg. Corp., 983 F.2d 803, 812 (7th Cir. 1993); Weeks Const., Inc. v. Oglala Sioux Housing Auth., 797 F.2d 668, 670-71 (8th Cir. 1986).

      . See Pink v. Modoc Indian Health Project, Inc., 157 F.3d 1185 (9th Cir.1998) (holding that multi-tribe agency is "Indian tribe” within meaning of 42 U.S.C. § 2000e(b)); Dille v. Council of Energy Res. Tribes, 801 F.2d 373 (10th Cir.1986) (same).

      . Ransom, 635 N.Y.S.2d 116, 658 N.E.2d at 993.

      . Am. Indian Agric. Credit Consortium, Inc. v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1378 (8th Cir.1985).

      . Harter v. Vernon, 101 F.3d 334, 337 (4th Cir. 1996) (citing Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994)).

      . Although the Eleventh Amendment immunity is based on the constitutional text while tribal sovereign immunity is a judicial doctrine, they share a background of traditional ideas about the power and privileges of the sovereign. "[Tribes] have been placed by the United States, substantially, on the plane occupied by the states under the eleventh amendment to the constitution.” Thebo v. Choctaw Tribe of Indians, 66 F. 372, 376 (8th Cir.1895). Tribal immunity is a form of "the common-law immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670. Similarly, cases interpreting the Eleventh Amendment to protect states from suit by private citizens are grounded in traditional understandings of sovereignty. See, e.g., In re State of New York, 256 U.S. 490, 497, 41 S.Ct. 588, 65 L.Ed. 1057 (1921) ("That a state may not be sued without its consent is a fundamental rule of jurisprudence. ..."); Hans v. Louisiana, 134 U.S. 1, 12-19, 10 S.Ct. 504, 33 L.Ed. 842 (1890) (basing state sovereign immunity in an interpretation of the Eleventh Amendment grounded on "the old law”); see also William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of An Affirmative Grant of Jurisdiction Rather Than A Prohibition Against Jurisdiction, 35 Star L.Rev. 1033, 1071 (1983) ("[The Eleventh Amendment] ... affirmed ... the traditional principle of sovereign immunity.... ”).

      . See Native Village of Stevens v. Alaska Mgmt. & Planning, 757 P.2d 32, 41 n. 24 (Alaska 1988); Atkinson, 569 P.2d at 160.

      . See Thebo, 66 F. at 376 (tribe "would soon be impoverished if it was subject to the jurisdiction of the courts”); Adams v. Murphy, 165 F. 304, 308 (8th Cir.1908) ("Upon considerations of public policy ... Indian tribes are exempt from civil suit.... If any other course were adopted, the tribes would soon be overwhelmed with civil litigation and judgments.").

      . See Ransom, 635 N.Y.S.2d 116, 658 N.E.2d at 992 (quoting Altheimer & Gray, 983 F.2d at 809); see also White Mountain Apache Tribe v. Smith Plumbing Co., Inc., 856 F.2d 1301, 1305 (9th Cir.1988) (holding that sovereign immunity does not bar action against tribe’s surety because judgment against surety will not run against tribe); Dixon, 772 P.2d at 1109-10 (holding that liability insurance “insulat[ing] the [tribe] from [the entity's] debts” is "relevant to the question of whether an Indian commercial entity” is an arm of a tribe).

        . See Gavle v. Little Six, Inc. 555 N.W.2d 284, 294 (Minn.1996); Ransom, 635 N.Y.S.2d 116, 658 N.E.2d at 992 (citing Vetter, Doing Business with Indians and the Three “S"es: Secretarial Approval, Sovereign Immunity and Subject Matter Jurisdiction, 36 Ariz. L.Rev 169, 176 (1994)); Dixon, 772 P.2d at 1110-11.

      . AS 10.20.051(b).

      . Because we hold that AVCP is not immune, we do not need to address the Runyons' arguments that the organization waived immunity either by purchasing liability insurance or through the wording of its corporate charter, or AVCP's arguments concerning whether its agents and employees may be sued.

      . 569 P.2d 151, 170-75 (Alaska 1977).

      . Id. at 174-75.

      . 25 U.S.C. § 477 (2003).


author: STEWART, Judge.

text:
    STATE of Alaska, Petitioner, v. Clinton T. ANDREWS, et al., Respondents.
    No. A-8020.
    Court of Appeals of Alaska.
    Jan. 30, 2004.

      Kenneth J. Diemer, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho and Gregg D. Renkes, Attorneys General, Juneau, for Petitioner.
    Louis James Menendez, Juneau, for Respondents.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

Based on Loran C readings, Clinton T. Andrews and nine other commercial fishers were charged with fishing in closed waters. The commercial fishers moved to suppress the Loran C evidence. The district court agreed with the defendants and excluded the Loran C evidence for two reasons. First, the district court excluded the evidence because the State had not created and preserved a printout of the Loran C readings. Second, the district court excluded the Loran C evidence on foundational grounds, finding that the State had not shown that there was a maintenance program for the Loran C receivers or that there was a training program for the Fish and Wildlife Protection troopers who used Loran C. We granted the State’s petition for review. For the reasons set out below, we reverse the decisions of the district court.

Facts and proceedings

In 1999, Andrews and nine others were charged with commercial fishing in closed waters. At the time the defendants were charged, the boundary lines that separated closed from open waters were defined by electronic signals received from Loran C transmitters. Consequently, state Fish and Wildlife Protection troopers and commercial fishers used Loran C receivers to determine their vessels’ positions in relation to the boundary lines. The troopers likewise used Loran C receivers to locate the fishing vessels. (Troopers and commercial fishers now use global positioning satellites. See 5 AAC 06.206 (2001).)

After the defendants were charged, they consolidated their cases and moved to exclude the location readings provided by the troopers’ Loran C receivers. The fishers argued that the readings should be excluded because Loran C technology was not scientifically reliable, and because the State had failed to preserve any record of the Loran C readings on the receivers used by the troopers.

An evidentiary hearing was held, but little of the testimony concerned the investigation of any particular defendant in this case. Rather, the hearing primarily addressed the science underlying Loran C, and how troopers were using Loran C in Bristol Bay to enforce fishing regulations.

After the hearing, Magistrate Deborah Burlinski granted the defendants’ motion; she excluded the Loran C evidence because the troopers had not created a printout of the Loran C readings at the time they determined the location of the defendants’ vessels. She also ruled that the State had not met the foundational requirements to admit Loran C evidence because the State had no program to ensure that the receivers were properly maintained, or that the troopers were properly trained on how to use the receivers. She found, however, that Loran C technology was scientifically reliable.

When the State prosecutes a commercial fishing violation based on a Loran C reading, is the State required to preserve a contemporaneous photograph or printout of the Loran C reading1

The defendants argue that due process requires the State to create a contemporaneous printout of Loran C readings. Although Magistrate Burlinski recognized that we had rejected this argument in Wamser v. State, she agreed with the defendants and suppressed the Loran C readings. She did so because she compared the Loran C receiver to a breath testing instrument, and applied the legal rationale in Lauderdale v. State. In Lauderdale, the supreme court excluded evidence of the defendant’s breath test result on due process grounds because the State had failed to preserve the breath sample, thus depriving the defendant of his right to test the reliability of that evidence.

But the Lauderdale decision was based on considerations not present in Wam-ser or in this ease. Lauderdale was arrested for driving while intoxicated and was required to provide the State with a breath sample, which was tested on the breathalyzer, an instrument that the State controlled. The result of this test was sufficient to support Lauderdale’s conviction for operating a motor vehicle with a blood alcohol content above the legal limit. The supreme court agreed with Lauderdale that a retest of his breath sample could provide “material evidence” on the issue of his guilt or innocence. Yet the breath sample and the only available testing instrument were in the sole possession of the State. By failing to preserve Lauderdale’s breath sample or offer Lauder-dale an equivalent method of checking the State’s reading, the State destroyed the only direct evidence of the ultimate question involved in Lauderdale — that is, “the alcoholic content of Lauderdale’s blood.” Destroying the only available evidence precluded Laud-erdale from challenging the reliability or credibility of the results of the breathalyzer test. Because the State had prevented Lauderdale from challenging the accuracy of this evidence, the supreme court ruled that due process required exclusion of the test results.

Loran C receivers differ significantly from state-controlled breath test instruments. In a case based on Loran C readings, the State does not prosecute a defendant with test results generated from evidence that only the State possesses. Instead, the case is supported by readings from the State’s Loran C receiver, which is receiving the identical electronic signals available to a commercial fisher’s Loran C receiver. Unlike a driver facing a prosecution based on the state’s breath test result, a commercial fisher can independently receive and obtain a reading from the same Loran C signals that the State uses. The commercial fisher can offer evidence of this independent reading, and can potentially store an electronic record or create a hard copy of the receiver’s Loran C output. In short, the commercial fisher has the independent ability to challenge the reading of the State’s receiver.

We again conclude, as we did in Wamser, that when the State enforces commercial fishing regulations using Loran C receivers, due process does not require the State to create a contemporaneous electronic or photographic printout of the Loran C readings.

The defendants next argue that under the best evidence rule, Loran C evidence is inadmissible unless the readings are recorded in a printout. But we rejected this argument in Wamser, , and the defendants have demonstrated no reason to overrule our prior decision.

Evidence Rule 1002 provides that “[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required[.]” Evidence Rule 1001 defines writings and recordings as “letters, words, or numbers ... set down ... by ... magnetic impulse, mechanical or electronic recording, or other form of data compilation.” A Loran C receiver provides a continuous readout of the electronic signals broadcast by Loran C transmitters. In this case, the Loran C readings were not “set down” or otherwise stored as a magnetic impulse, a mechanical or electronic recording, or in some other form of data compilation. Although this information apparently could have been stored as data, the defendants have not convinced us that the best evidence rule requires that it be so stored. Nor have the defendants otherwise convinced us that the lack of a printout should render the troopers’ observations of the Loran C continuous electronic readings inadmissible. We therefore conclude that the actual electronic readings displayed by the Loran C are not subject to the best evidence rule.

When the State prosecutes a commercial fishing violation based on a Loran C reading, must the State introduce foundational evidence concerning the maintenance of the Loran C unit and the training of the person who read the unit ? If so, what should the nature of this foundational evidence be?

Magistrate Burlinski excluded evidence of the Loran C readings because the State did not introduce foundational evidence showing that there were programs for regular maintenance of the Loran C receivers used in these cases, or for the training of the officers who used the receivers and read the readings. But despite the lack of these programs, the evidence at the hearing indicated that the troopers involved in these cases ensured that the Loran C units were properly functioning, that proper procedures were followed, and that the troopers were reasonably qualified to use Loran C technology. In our view, this evidence would have been sufficient to satisfy the foundational requirements for introduction of the Loran C evidence if the evidence had been tied to the specifics of the defendants’ cases.

Conclusion

The decisions of the district court are REVERSED.

      . 5 Alaska Administrative Code (AAC) 06.350(1) (except for circumstances not relevant to this case, "[sjalmon may not be taken in any locations that are not described in 5 AAC 06.200[.]”).

      . The other fishers and their trial court case numbers are Giuseppe F. Costa (3NA-99-146 CR), Russell Delgrosso (3NA-99-123 CR), Michael A. Green (3NA-99-103 CR), Scott A. Higgins (3NA-99-106 CR), Curt E. Marble (3NA-99-069 CR), Paul D. McGee (3NA-99-134 CR), Michael L. Sather (3NA-99-093 CR), Grant L. Thompson (3NA-99-129 CR), and Drew B. Wise (3DI-99-138 CR). All ten cases were apparently consolidated for the hearing.

      . See, e.g., former 5 AAC 06.200(c) (1988); former 5 AAC 06.205 (1988).

      . 672 P.2d 163, 166 (Alaska App.1983). Magistrate Burlinski found the Wamser case inapplicable because the Loran C instrument used in that case was not equipped with any mechanism capable of providing a printout.

      . 548 P.2d 376 (Alaska 1976).

      . Id. at 381.

      . Id. at 380 (citing former AS 28.35.033(3)).

      . Id. at 380.

      . Id.

      . Id. at 380-81.

      . See A.R.E. 1002.

      . 672 P.2d at 166.

      . See Erickson v. State, 950 P.2d 580, 587 (Alaska App.1997) (a litigant seeking to have an appellate court overrule a prior decision "must demonstrate convincing reasons why the existing rule was originally erroneous or is no longer sound because of changed conditions. The litigant must also demonstrate that more good than harm would result from a departure from precedent.”).

        .See A.R.E. 1001(1).

      . See generally Paul C. Giannelli & Edward J. Imwinkelried, 1 Scientific Evidence § 1-11, at 70-76 (3rded.l999 and 2003 supplement).


author: PER CURIAM.

text:
    Jon DeSTEFANO, in his official capacity as Chairman of the Board of Education of Jefferson County Public School District R-1; Debra Oberbeck, Vince Chowdhury, Karen Litz, and Tori Merritts, in their official capacities as Members of the Board of Education of Jefferson County Public School District R-1; and Jefferson County Public School District R-1, Petitioners/Cross-Respondents v. Ashley NICHOLS, a Minor, by and through her Next Friend and Mother, Kathy NICHOLS; and Kathy Nichols, Respondents/Cross-Petitioners.
    No. 02SC667.
    Supreme Court of Colorado, En Banc.
    Jan. 20, 2004.
    Rehearing Denied Feb. 9, 2004.

    Caplan and Earnest LLC, Thomas S. Crabb, W. Stuart Stuller, Derek H. Kiernan-Johnson, Boulder, Colorado, Attorneys for Petitioners/Cross-Respondents.
    Richard M. Borchers, P.C., Richard M. Borchers, Larry Dean Valente Westminster, Colorado, Attorneys for Respondents/Cross-Petitioners.
    Colorado Association of School Board, Lauren Kingsbery, Denver, Colorado, Ami-cus Curiae Colorado Association of School Boards.
    Martha R. Houser, Gregory J. Lawler, Cathy L. Cooper, Sharyn E. Dreyer, Charles F. Kaiser, Denver, Colorado, Amicus Curiae Colorado Education Association.

       Chief Justice MULLARKEY, Justice KOURLIS, and Justice COATS would grant the Petition.

   PER CURIAM.

Justice Hobbs, Justice Martinez and Justice Bender are of the opinion that the judgment of the Court of Appeals, Case No. 01CA0783, should be affirmed, whereas Chief Justice Mullarkey, Justice Kourlis and Justice Coats are of the opinion that it should be reversed. Justice Rice does not participate.

Since the court is equally divided, the decision of the Court of Appeals is affirmed by operation of law. C.A.R. 35(e).

Justice RICE does not participate.