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Peninsula Marketing Assoc. et al v. Dept. of Fish and Game (9/20/91), 817 P 2d 917
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Notice: This is subject to formal correction
before publication in the Pacific Reporter.
Readers are requested to bring typographical
or other formal errors to the attention of
the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to
permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
PENINSULA MARKETING ASSOCIATION, CONCERNED )
AREA M. FISHERMEN, ALEUTIANS EAST BOROUGH, )
SHUMAGIN CORPORATION, PAUL GRONHOLDT, ) Supreme Court
STANLEY MACK and PETER SHURAVLOFF, ) No. S-3603
) Superior Court
Appellants, ) 3AN-88-12324 CI
)
v. ) O P I N I O N
)
STATE OF ALASKA, ALASKA BOARD OF FISHERIES, )
ALASKA DEPARTMENT OF FISH AND GAME and )
DON W. COLLINSWORTH, Commissioner of Fish )
and Game, )
)
Appellees, )
)
YUKON-KUSKOKWIM FISHERIES TASK FORCE, )
CURTIS AUGLINE, ANTONE K. ANVIL, JAMES )
LEOPOLD, JR., and ARTHUR T. NELSON, on )
behalf of themselves and other persons )
similarly situated, )
)
Intervenors-Appellees. )
)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Karen L. Hunt, Judge.
Appearances: Michael A. D. Stanley,
Juneau, and Alvin J. Ziontz and Marc D.
Slonim, Ziontz, Chestnut, Varnell, Berley &
Slonim, Seattle, for Appellants. Lance B.
Nelson, Assistant Attorney General,
Anchorage, and Douglas B. Baily, Attorney
General, Juneau, for Appellees. Donald Craig
Mitchell, Anchorage, for Intervenors-
Appellees.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
COMPTON, Justice.
This case involves a challenge to a cap on the number
of chum salmon (chum) to be taken in the June fishery.1
In March of 1988, the Alaska Board of Fisheries (board)
adopted a cap of 500,000 chum for the June fishery to
ensure that a reasonable number of chum would reach
terminal fisheries in western Alaska. The cap was
codified at 5 Alaska Administrative Code (AAC)
09.365(f) (1990) and took effect on June 2, 1988.
Peninsula Marketing Association (PMA)2 filed suit in
superior court seeking an order declaring 5 AAC
09.365(f) invalid and an injunction against its
enforcement. The superior court upheld the regulation,
and this appeal followed.3
I. FACTUAL AND PROCEDURAL BACKGROUND
Commercial fishing in the False Pass area dates back to
the early 1900's. The fishery targets sockeye salmon,
but also harvests chum. Because the fishery harvests
various stocks in coastal waters before they have
segregated by river-of-origin, it is labelled a "mixed-
stock" or "interception"fishery. Based on tagging
studies, most of the chum have been identified as being
of western Alaska origin and most of the sockeye as
from Bristol Bay. The number of fish harvested
in the June fishery in the first half of the century
was generally larger than today. From approximately
1920 to 1950, annual harvests were between 1 and 3
million sockeye and between 1/2 and 1 million chum.
The annual harvests dropped to about 1 million sockeye
and under 1/2 million chum from the mid-50's to the mid-
70's. Catch rates from 1975 through 1987 increased to
an average of 1,220,000 sockeye and 418,000 chum. The
peak sockeye catch was 3.3 million in 1980; the peak
chum catch was 1.1 million in 1982.
For the past twenty years, controversy has raged
between Peninsula fishers and Bristol Bay fishers.
Those in Bristol Bay allege that large sockeye harvests
in the False Pass area have threatened the Bristol Bay
fishery. Beginning in 1975, the board adopted a quota
for the sockeye harvest in the June fishery based on
the projected harvest in Bristol Bay. Annual sockeye
fishing was limited to 6.8 percent of the projected
Bristol Bay catch in South Unimak and to 1.5 percent in
the Shumagin Islands.
The board has adopted other measures over the years to
regulate the June fishery sockeye harvest, including
guideline harvest levels and windows. Guideline
harvest levels are designed to spread the sockeye
harvest throughout the month and prevent overharvesting
of any one segment of the salmon runs. The month is
divided into four periods (June 1-11, June 12-18, June
19-25 and June 26-30), and a limit is set for each
period. Windows are times during those periods in
which fishing is prohibited to allow escapement and
prevent overharvesting of any particular run. Under
limits imposed in 1984, but repealed in 1990, no more
than 96 fishing hours per week were allowed with not
more than 72 consecutive hours.
While initial regulatory efforts were directed
primarily at the sockeye harvest, they affected the
chum harvest as well; the area was closed to fishing
when the sockeye limits were met. The board first
imposed a direct cap on the chum harvest in 1986.
Because of concern that the 1986 Yukon River fall chum
run would not be sufficient to meet escapement goals
and subsistence needs, the board required that the June
fishery close upon obtaining 400,000 chums. No chum
cap was imposed in 1987. In 1988 the board adopted the
500,000 chum cap at issue in this appeal.
On December 22, 1988, PMA filed suit in superior court
challenging the validity of the cap. Among PMA's
allegations were the following: that the chum cap is
inconsistent with AS 16.05.251(d) & (e);4 that the cap
is unreasonable and arbitrary; and that the cap
violates sections 1 and 2, article VIII of the Alaska
Constitution.5 PMA requested that the superior court
declare the cap void and enjoin its enforcement.
The Yukon-Kuskokim Fisheries Task Force (YKFTF),6 et
al., intervened. In addition to answering PMA's
complaint, YKFTF filed a cross-claim against the state
requesting the court to order the Alaska Department of
Fish & Game to close the South Unimak and Shumagin
Islands June commercial fishery.
The court granted the state's motion for summary
judgment, declaring the cap valid and denying PMA's
request for an injunction. The court further found
that AS 16.05.251(e) did not apply to this case,
reasoning that the statute was not meant to cover
allocations between two commercial fisheries. The
court severed PMA's claims from YKFTF's cross-claim and
entered a final judgment dismissing PMA's claims.7 PMA
appeals.
II. DISCUSSION
A. Mootness
This appeal is technically moot. In the spring of 1990
the board raised the June fishery chum cap to 600,000
fish. In addition, the board made several other
changes in the regulatory scheme imposed on the June
fishery, including the elimination of windows, the
amendment of guideline harvest levels, and the adoption
of gear limitations. See 5 AAC 09.365(a),(c),(f)
(Supp. 1991). Since the regulation about which PMA has
complained is no longer in effect, there is no live
controversy for this court to decide.
Nevertheless, there are technically moot questions
which merit review under the public interest exception
to the mootness doctrine.8 The state urges that this
case does not fit into that exception because the
challenged regulation has been amended. However, the
state mischaracterizes our clearly established test for
application of the public interest exception:
The public interest exception
involves the consideration of three main
factors: 1) whether the disputed issues are
capable of repetition, 2) whether the
mootness doctrine, if applied, may repeatedly
circumvent review of the issues and, 3)
whether the issues presented are so important
to the public interest as to justify
overriding the mootness doctrine.
Hayes v. Charney, 693 P.2d 831, 834 (Alaska 1985). In addition,
the determination of whether to address an issue which
is technically moot ultimately rests in the discretion
of this court. Taylor v. Gill Street Investments, 743
P.2d 345, 347 (Alaska 1987).
We decline to address PMA's complaints about the
particular regulation in this case. This was a case
for injunctive and declaratory relief against a chum
cap which is no longer in effect. The reasonableness
and constitutionality of that cap are moot. There was
no claim for damages incurred as a result of the cap,
nor any other reason this court finds to evaluate the
merits of the board's allocative decision when it is no
longer in force. Thus, we decline to speculate as to
whether injunctive relief would be proper in a similar
situation in the future.9
However, need for judicial construction of
AS 16.05.251(e) excepts this case from the mootness
doctrine. Whether section 251(e) applies to intra-
commercial fishery resource allocation regulations is
an issue which satisfies each of the three requirements
set out in Hayes. The authority of the board to make
allocative regulations is continually at issue.
Furthermore, application of the mootness doctrine could
allow this issue to repeatedly circumvent review.
Given the fact that it generally takes more than a year
to fully litigate a case, the board could easily evade
review of one of its regulations by amending it
annually. Finally, the question presented is of
considerable public importance to the extent that it
impacts upon the allocation of Alaska's fishery
resources.
B. Does AS 16.05.251(e) apply to the
allocation of fish between two commercial
fisheries?
Alaska Statute 16.05.251(e) requires that the board
"establish criteria for the allocation of fishery
resources among personal use, sport, and commercial
fishing." The superior court concluded that this meant
that criteria must be established for inter-group
allocation (i.e. personal-sport, sport-commercial,
commercial-personal), but not for intra-group
allocation, such as between two or more commercial
fisheries. We disagree.
Statutory interpretation begins with an examination of
the language of the statute construed in light of its
purpose. J & L Diversified Enter. v. Municipality of
Anchorage, 736 P.2d 349, 351 (Alaska 1987). The state
argues that the language of the statute supports the
superior court's conclusion that section 251(e) does
not apply to the allocation of fish between two
commercial fisheries. According to the state, there
would have been no need to include the words "among
personal use, sport, and commercial fishing" if the
legislature intended the criteria to apply to every
allocation decision.
We are not persuaded by this reading. The phrase
"among personal use, sport, and commercial fishing"
does not on its face indicate any intent to exclude any
subsets of the phrase, such as intra-commercial
allocations. Nor are those words superfluous. The
legislature specifically omitted subsistence use from
the list because of the statutory priority given that
use; the allocation criteria of section 251(e) would
not apply to decisions involving subsistence uses.10
A reading of the statute in light of its purpose
confirms its plain meaning. The statute was designed
in part to re-affirm the regulatory authority of the
board, including its authority to allocate resources
among all fisheries, and to provide criteria by which
those allocative decisions were to be made. The
criteria listed in section 251(e) are equally
applicable to intra-group resource allocation as they
are to inter-group allocation. There is no basis for
distinguishing allocations among commercial fisheries
from allocations between different types of fisheries.
Commercial fishers in Fishery A would suffer the same
loss if the board reallocated certain fish resources to
commercial Fishery B that they would suffer if the
board reallocated the fish to sport fishers in Fishery
A. Indeed, this court has specifically rejected a
distinction between commercial-sport and commercial-
commercial allocations. Meier v. State, Board of
Fisheries, 739 P.2d 172, 174 (Alaska 1987).
In addition, the trial court's interpretation is
internally inconsistent. Although AS 16.05.151(d) and
(e) contain the same reference to allocations between
uses, the court held that section 251(d) was applicable
to intra-commercial allocations, following Meier, but
that section 251(e) was not. Such a reading does not
follow accepted practices of statutory construction.
Each section of a statute should be read together with
every other section so as to produce a harmonious
whole. City of Anchorage v. Scavenius, 539 P.2d 1169,
1174 (Alaska 1975).
The state contends that the statute's legislative
history reveals the intent to limit its application to
inter-group allocation decisions. The state cites
comments of Senator Victor Fischer during debate in the
Senate Resources Committee as support for its
interpretation:
SENATOR FISCHER went through the individual subsections
of the amendment. . . . [S]ubsection (e)
recognizes the three categories of personal use,
sport, and commercial fishing with the board
establishing criteria. The criteria in (e) don't
necessarily apply to all decisions in any species
of fish or fish stock in all places of Alaska but
to particular kinds of allocation decisions.
SENATOR FISCHER said the point in listing those
criteria is that where there are allocation
decisions to be made, such criteria will be taken
into account. For example, the Copper River area
has been heavily used for personal use as well as
commercial purposes. These are objective criteria
established before the use decisions are made.
Minutes of Senate Resources Committee Meeting, February 26, 1986,
at 23-24. It is the state's position that since no
example of intra-group allocation was given in this
excerpt from the discussion, the statute was not meant
to cover such decisions.
We have rejected a mechanical application of the plain
meaning rule in favor of a sliding scale approach
toward statutory interpretation. Alaska Pub. Employees
Ass'n v. City of Fairbanks, 753 P.2d 725, 727 (Alaska
1988). Thus the plainer the language of the statute,
the more convincing any contrary legislative history
must be. State v. Alex, 646 P.2d 203, 208-09 n.4
(Alaska 1982). Here the state's proffered legislative
history is not sufficiently convincing to overcome the
statute's plain meaning. Senator Fischer's limited
comments lend support to the state's argument only to
the extent that they themselves are ambiguous. They do
not resolve any ambiguity in favor of the state.
Indeed, arguably Senator Fischer was making the point
that each of the specific criteria listed in section
251(e) need not be used in every allocation decision, a
point that was being debated at the time. We can find
no support for interpreting his comments as meaning
that no criteria need be established by the board for
decisions allocating resources between two commercial
fisheries.
A quote from the committee's section by section
analysis of the bill is equally unhelpful to the state.
Subsection (e) requires the board to
establish criteria for the allocation of
fishery resources among the various
fisheries. The criteria shall be appropriate
to the particular allocation decision, which
might pertain to a particular geographic area
(such as a stream or watershed) or to a
particular stock.
Senate Committee on Resources, Section by Section Analysis of
Senate Committee Substitute for Committee Substitute
for House Bill 288, March 12, 1986, at 2. We think the
language "among the various fisheries"plainly includes
allocation between two commercial fisheries.
The plain language and legislative history of the
statute are enough to support our conclusion, but it is
also instructive that the board itself believed that
the statute applied to the chum cap decision, as is
evidenced by its discussion of some of the section
251(e) criteria during its debate on the cap. While
this court exercises independent judgment on issues of
statutory construction, the board's interpretation is
entitled to "some weight." State, Dep't of Revenue v.
Alaska Pulp America, Inc., 674 P.2d 268, 274 (Alaska
1983). Here, the board's belief that it was supposed
to apply the section 251(e) criteria supports the
conclusion that section 251(e) was meant to apply to
intra-group allocations.
C. Did the board properly apply AS 16.05.251(e)
in deciding to establish a chum cap on the
June Fishery?
The state contends that even if AS 16.05.251(e) applies
to intra-commercial allocations, the board's action in
this case did in fact comply with that statute. The
state implies that the board's adoption of 5 AAC 39.205
(1990) satisfies the requirements of the statute. That
regulation provides:
Before adopting regulations that
allocate fish among personal use, sport, and
commercial fisheries, the board will, as
appropriate to particular allocation
decisions, consider factors such as those set
out in AS 16.05.251(e).
We have remarked that,
[t]his court has repeatedly
required "that agency decisions, in exercise
of their adjudicative powers, must be
accompanied by written findings and a
decisional document." Johns v. Commercial
Fisheries Entry Comm'n, 758 P.2d 1256, 1260
(Alaska 1988) (and cases cited therein).
This court has strongly suggested that non-
adjudicative decisions of an agency must also
be supported by an adequate decisional
document. Southeast Alaska Conservation
Council v. State, 665 P.2d 544, 549 (Alaska
1983). . . . In order to ensure careful and
reasoned administrative deliberation and to
facilitate judicial review, the decisions of
[the board] must be adequately documented.
Messerli v. Dep't of Natural Resources, 768 P.2d 1112, 1118
(Alaska 1989). No decisional document was prepared by
the board when it established the chum cap. The record
before us does include a transcript of extensive board
hearings on the cap issue that indicates what was
considered by the board in making its decision.
However, because the validity of the cap is moot, we
need not address whether this record would have been
sufficient to sustain the cap regulation.
III. CONCLUSION
The validity of the 500,000 chum cap is moot because it
is no longer in effect. Therefore, we do not address
the superior court's judgment regarding the validity of
the cap. Under the public interest exception to the
mootness doctrine, we REVERSE the superior court's
conclusion that AS 16.05.251(e) did not apply to this
case, and hold that AS 16.05.251(e) does apply to
allocation of fish resources between two commercial
fisheries.
_______________________________
1. The June fishery refers to the False Pass or Peninsula
fishery, a commercial salmon fishery located in the
vicinity of South Unimak and the Shumagin Islands in
the Aleutian chain.
2. PMA is used to refer to all the appellants collectively.
The Peninsula Marketing Association is a non-profit
corporation whose purpose is to represent the interests
of commercial fishers of the Alaska Peninsula. Members
of the association include residents of Sand Point,
King Cove, Nelson Lagoon, False Pass, Homer, Kenai,
Anchorage, Port Moller and Seward. Other appellants
include individual commercial fishers who participate
in the June fishery and other private and political
organizations which represent their interests.
3. In 1990, following the superior court's decision, the
board increased the chum cap from 500,000 to 600,000.
5 AAC 09.365(f) (Supp. 1991).
4. AS 16.05.251(d) provides:
Regulations adopted [by the Board
of Fisheries] must, consistent with sustained
yield and the provisions of AS 16.05.258
[relating to subsistence uses], provide a
fair and reasonable opportunity for the
taking of fishery resources by personal use,
sport, and commercial fishermen.
AS 16.05.251(e) provides:
The Board of Fisheries shall
establish criteria for the allocation of
fishery resources among personal use, sport
and commercial fishing. The criteria may, as
appropriate to particular allocation
decisions, include facts such as
(1) the history of each personal
use, sport, and commercial fishery;
(2) the number of residents and
nonresidents who have participated in each
fishery in the past and the number of
residents and nonresidents who can reasonably
be expected to participate in the future;
(3) the importance of each fishery
for providing residents the opportunity to
obtain fish for personal and family
consumption;
(4) the availability of
alternative fisheries resources;
(5) the importance of each fishery
to the economy of the state;
(6) the importance of each fishery
to the economy of the region and local area
in which the fishery is located;
(7) the importance of each fishery
in providing recreational opportunities for
residents and nonresidents.
5. Article VIII of the Alaska Constitution provides:
Section 1. It is the policy of the
State to encourage the settlement of its land
and the development of its resources by
making them available for maximum use
consistent with the public interest.
Section 2. The legislature shall
provide for the utilization, development, and
conservation of all natural resources
belonging to the State, including land and
waters, for the maximum benefit of its
people.
6. The Yukon-Kuskokwim Fisheries Task Force is an
unincorporated association composed of representatives
of groups that represent subsistence and commercial
fishers from Yup'ik Eskimo and Athabascan Indian
villages along the Yukon and Kuskokwim Rivers and along
the coast of the Bering Sea between the mouths of the
two rivers.
7. Apparently, YKFTF's motion for summary judgment on its
cross-claim is still pending in the superior court.
8. See, e.g., Municipality of Anchorage v. Anchorage Daily
News, 794 P.2d 584, 588 (Alaska 1990); City of Cordova
v. Medicaid Rate Comm'n., 789 P.2d 346, 352 (Alaska
1990); Rutter v. State, 668 P.2d 1343, 1346 (Alaska
1983); Kentopp v. Anchorage, 652 P.2d 453, 457 n.3
(Alaska 1982) (collecting cases).
9. Since we do not reach the issue of whether the
regulation in question violated the "maximum use" and
"maximum benefit"standards established in article VIII
of the Alaska Constitution, we will not evaluate the
merits of the trial court's conclusion that those
standards are not justiciable.
10. Not all personal uses classify as subsistence uses, and
some subsistence uses are not personal. Personal use
requires that one use the fish oneself rather than for
sale or barter. AS 16.05.940(23). The statutes define
"subsistence uses"as follows:
The noncommercial, customary and
traditional uses of wild, renewable resources
by a resident domiciled in a rural area of
the state for direct personal or family
consumption as food, shelter, fuel, clothing,
tools, or transportation, for the making and
selling of handicraft articles out of
nonedible by-products of fish and wildlife
resources taken for personal or family
consumption, and for the customary trade,
barter, or sharing for personal or family
consumption; in this paragraph, "family"
means persons related by blood, marriage, or
adoption, and a person living in the
household on a permanent basis.
AS 16.05.940(31).
In ch. 52 SLA 1986, the legislature adopted (along with
the allocation criteria at issue here) a statutory
preference for subsistence use, as well as separate
criteria for making allocative decisions among
subsistence users. AS 16.05.258. This court recently
invalidated the rural component of the definition of
subsistence users; the legislature's authority to give
preference to subsistence uses over other uses was not
challenged. McDowell v. State, 785 P.2d 1, 7-9 (Alaska
1989).
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