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Alaska Fish Spotters Assoc. v. Dept of Fish and Game (9/11/92), 838 P 2d 798
Notice: This is subject to formal correction
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THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA FISH SPOTTERS )
ASSOCIATION, RON GRIBBLE, ) Supreme Court File No. S-4540
DENNIS THACKER, JERRY ) Superior Court File No.
MAHONY, LEE WILLIAM BUDDE ) 1JU-90-821 Civil
and RICHARD SORENSON, )
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF FISH AND GAME, and BOARD )
OF FISHERIES, )
Appellees. ) [No. 3884 - September 11, 1992]
Appeal from the Superior Court of the
State of Alaska, First Judicial District,
Larry R. Weeks, Judge.
Appearances: William F. Brattain, II and
Anthony M. Sholty, Faulkner, Banfield, Doogan
& Holmes, Juneau, for Appellants. Stephen M.
White and Larri Irene Spengler, Assistant
Attorneys General and Charles E. Cole,
Attorney General, Juneau, for Appellees.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
The Alaska Fish Spotters Association and several
individual fish spotters operating in Bristol Bay (Fish
Spotters) challenged 5 Alaska Administrative Code (AAC)
06.378 (1991), which prohibits the use of aircraft to
locate salmon during open commercial salmon fishing
periods. The superior court upheld the regulation. We
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1988 the Alaska Board of Fisheries (Board) adopted a
statewide ban on the use of aircraft for the purposes
of locating salmon for commercial taking or directing
commercial salmon fishing operations. 5 AAC 39.292
(rep. 7/30/89). In July 1989 the Board repealed the
statewide ban and decided to consider the matter on an
area by area basis.
In March 1990 the Board adopted a proposed regulation
to ban fish spotting in Bristol Bay on a five to two
vote. The promulgated regulation provided as follows:
"During open commercial salmon fishing periods no
person may use an aircraft to locate salmon for the
commercial taking of those fish or to direct commercial
salmon fishing operations." 5 AAC 06.378.
Fish Spotters filed a complaint alleging that the
regulation was unconstitutional and beyond the Board's
regulatory authority. Specifically, Fish Spotters
contended that the Board acted outside the scope of its
authority when it promulgated the regulation. Fish
Spotters also contended that the regulation violated
several provisions of the Alaska Constitution: the
common use clause, article VIII, section 3; the no
exclusive right of fishery clause, article VIII,
section 15; the uniform application clause, article
VIII, section 17; and the equal rights clause, article
I, section 1. On cross-motions for summary judgment,
Superior Court Judge Larry R. Weeks entered a judgment
upholding the regulation. Fish Spotters appeal.1
II. STANDARD OF REVIEW
Whether a regulation promulgated by an administrative
agency was consistent with the Alaska Constitution is a
question of law which requires de novo review. See
McDowell v. State, Dep't of Fish & Game, 785 P.2d 1
"[S]ummary judgment may be granted only when there is
no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. Thus, we
review de novo an order granting summary judgment."
Gilbert v. State, Dep't of Fish & Game, 803 P.2d 391,
394 (Alaska 1990) (citations omitted).
A. The Board Has Authority to Ban Fish Spotting.
According to Fish Spotters, 5 AAC 06.378 was "outside
the Board of Fishery's authority and [was] not the
product of reasoned decision making." Because this
appeal is technically moot, we refrain from a
discussion of whether 5 AAC 06.378 was the product of
reasoned decision making. Rather, we consider only
whether the Board has the authority to ban fish
spotting in Bristol Bay. We conclude that the Board
has such authority.
In conformity with article VIII, section 2 of the
Alaska Constitution, the legislature created the Board
of Fisheries "[f]or purposes of the conservation and
development of the fishery resources of the state." AS
16.05.221(a). "We have previously defined `conserving'
as `impl[ying]' controlled utilization of a resource to
prevent its exploitation, destruction or neglect.
`Developing' connotes management of a resource to make
it available for use.'" Gilbert, 803 P.2d at 393 n.1
(alteration in original) (quoting Kenai Peninsula
Fisherman's Coop., 628 P.2d at 903).
In support of these goals, the legislature has
authorized the Board to adopt regulations it considers
advisable for "establishing the means and methods
employed in the pursuit, capture and transport of fish"
and for "regulating commercial, sport, subsistence, and
personal use fishing as needed for the conservation,
development, and utilization of fisheries." AS
16.05.251(a)(4), (12). The legislature also directed
the Board to "establish criteria for the allocation of
fishery resources among personal use, sport and
commercial fishing." AS 16.05.251(e).
Based on the Alaska Constitution, these statutes and
our past decisions, we conclude that the Board has the
authority to ban fish spotting if such a ban is
properly based on conservation, development or
allocation goals. The Board's power to regulate
fishing means and methods for conservation purposes
originates from the Alaska Constitution and is
undisputed. Alaska Const. art. VIII, 2. In prior
cases we have recognized the Board's power to allocate
between users as it controls utilization of fisheries
resources. We have held that the Board's "duty to
conserve and develop fishery resources implies a
concomitant power to allocate fishery resources among
competing users." Meier v. State, Bd. of Fisheries,
739 P.2d 172, 174 (Alaska 1987) (citing Kenai Peninsula
Fisherman's Coop., 628 P.2d at 903) (approving
allocation between commercial and recreational users).
We have also held that the Board's authority
encompasses the power to allocate a fishery resource
between two competing subgroups of commercial users.2
Meier, 739 P.2d at 174 (approving allocation between
setnet and driftnet fishers).
Because this case is moot we need not determine
specifically whether 4 AAC 06.378 was properly adopted.
However, we again stress the importance of an adequate
decisional document to facilitate judicial review. For
a court to determine that an agency acted within its
authority in adopting a regulation, it is vital that
the agency clearly voice the grounds upon which the
regulation was based in its discussions of the
regulation or in a document articulating its decision.
Peninsula Mktg. Ass'n v. State Bd. of Fisheries, 817
P.2d 917, 922-23 (Alaska 1991); Messerli v. State Dep't
of Natural Resources, 768 P.2d 1112, 1118 (Alaska 1989)
overruled on other grounds, Olson v. State, 799 P.2d
289, 292-93 (Alaska 1990).
B. The Regulation Did Not Violate the Alaska Constitution.
Fish Spotters contend that the common use clause3
obligates the state to guarantee public access to
natural resources and that "a minimum requirement of
this duty is a prohibition against any monopolistic
grants or special privileges." Owsichek v. State Guide
Licensing and Control Bd., 763 P.2d 488, 496 (Alaska
1988) (Fish Spotters' emphasis). Fish Spotters argue
that irrespective of whether the regulation created a
monopoly, it unconstitutionally eliminated their
"historical"and "long enjoyed"access to the fishery
resource. In the context of their common use clause
argument, Fish Spotters do not dispute the state's
power to regulate the means and methods which may be
used in taking fish. Rather, they appear to argue that
they have acquired a unique "user group"status defined
by their preferred means of accessing the resource.
We believe that Fish Spotters' concession regarding the
power of the state to regulate fishing means and
methods is fatal to their claim. Further, we do not
agree with Fish Spotters' fundamental premise that the
common use clause obligates the state to guarantee
access to a natural resource by a person's preferred
means or method. We conclude that the regulation
banning fish spotting in Bristol Bay was not
constitutionally infirm. Rather, it constituted a
permissible limitation of the type traditionally
imposed by the state on the means and methods which
citizens may employ as they utilize fishery resources.
As we noted above, the Alaska legislature has
authorized the Board to adopt regulations it considers
advisable for "establishing the means and methods
employed in the pursuit, capture and transport of
fish." AS 16.05.251(a)(4). Through this authority,
the Board has prohibited many means and methods of
pursuing and capturing fish in Alaska. In Bristol Bay
for example, the Board regulates gill net mesh size and
prohibits the use of boats more than 32 feet in length
for salmon net fishing. 5 AAC 06.331, .341.
Statewide, the Board has banned the use of explosives
and poisons in the taking of fish. 5 AAC 39.150. No
person may mount a seine drum or reel aboard a seine
vessel. 5 AAC 39.155. In several locations, no person
may commercial fish with any type of trawl gear. 5 AAC
39.165. No one may commercial fish with nets made of
monofilament purse seine web. 5 AAC 39.170.
Artificial lights may not be used to attract salmon out
of closed waters. 5 AAC 39.175. Like these
regulations, the regulation at issue in this case
prohibited any person from using a certain means -- an
aircraft -- to assist in the pursuit and capture of
salmon. We simply believe that Fish Spotters's
constitutional arguments carry little weight where, as
in this case, the Board has exercised its authority by
restricting means and methods of access in a manner
which applies equally to all citizens.
We observe initially that, in
guaranteeing people "common use" of fish,
wildlife and water resources, the framers of
the constitution clearly did not intend to
prohibit all regulation of the use of these
resources. Licensing requirements, bag
limits, and seasonal restrictions, for
example, are time-honored methods of
conserving the resources that were respected
by delegates to the constitutional
Owsichek, 763 P.2d at 492.
Significantly, when the framers of the Alaska
Constitution submitted their proposal to the voters of
Alaska for ratification, they also submitted for
approval an ordinance which prohibited the use of fish
traps for commercial salmon fishing in all of Alaska's
coastal waters.4 These framers, who crafted the common
use clause and the other provisions raised by Fish
Spotters, apparently found no inconsistency between a
complete ban on fish traps, a "traditional"tool used
for many years, and a reservation of the state's fish,
wildlife and waters to the people for their common use.
We see no distinction between the ban of fish traps in
coastal waters proposed by the framers of the Alaska
Constitution and the ban of fish spotting in Bristol
Bay adopted by the Board. Each ban prevented any
person from using a certain means of taking fish.
Although applying equally to all persons in the state,
each ban directly affected only a small number of
people who had previously used the banned tool. Each
ban precluded a preferred use of the fisheries
resource. However, neither precluded all uses of the
Fish Spotters may access the resource in the same
manner open to any other commercial fishers. They may
participate in industries which support the fishery
harvest. They may continue to use their planes to spot
fish before an open commercial fishing period and to
transport supplies and personnel for commercial fishing
clients. In light of these alternative ways Fish
Spotters may use the fisheries resource, we cannot
conclude that the regulation banning fish spotting
violates the common use clause of the Alaska
Constitution. Rather, it constitutes a permissible
limitation on the means and methods which any person
may use to take salmon in Bristol Bay. Fish Spotters
contend that they are "users"of the resource and ought
not be treated differently from fishers. Fish Spotters
argue that in Owsichek we made no distinction between
hunters and hunting guides as "users"of the resource.
In Owsichek we said:
Admittedly, there is a difference
between commercial fishermen and professional
guides: a commercial fisherman takes his
catch himself before selling it to others for
consumption, while a hunting guide does not
actually take the game, a privilege reserved
for the client. We view this as an
insignificant distinction that does not
remove professional hunting guides from
protection under the common use clause. The
work of a guide is so closely tied to hunting
and taking wildlife that there is no
meaningful basis for distinguishing between
the rights of a guide and the rights of a
hunter under the common use clause.
763 P.2d at 497 n.15.
In Owsichek we recognized hunting guides as
professional or commercial users of Alaska's wildlife
resources, based on the nature of their use of the
resource. We did not recognize their status as users
based on a preferred means or method they used to gain
access to the resource. Id. at 497.
We explicitly reject Fish Spotters' argument that they
are a distinct "user group"defined by the means and
methods they use to gain access to the resource. In
the context of "common use"clause analysis, we have
consistently defined "user groups" in terms of the
nature of the resource (i.e., fish or wildlife) and the
nature of the use (i.e., commercial, sport or
subsistence). See, e.g., McDowell, 785 P.2d at 8;
Owsichek, 763 P.2d at 497. Recognition of user groups
defined by use of a particular means or method of
access would not be in accordance with the views of the
framers of Alaska's constitution and would needlessly
impair the Board's power and duty to control
utilization, development and conservation of fisheries
resources for maximum public benefit. See Alaska
Const. art. VIII, 2.
Fish Spotters contend that 5 AAC 06.378 violated the
"no exclusive rights"clause5 because it excluded fish
spotters from the Bristol Bay fishery and because it
sheltered [fishers who do not use aerial spotters]
against competition from spotter-aided fishermen.
Invoking the "no exclusive rights"clause, this court
has struck down schemes which granted a special
monopolistic privilege to a limited number of
individuals. Owsichek, 763 P.2d at 498; see McDowell,
785 P.2d at 9. However, the challenged regulation was
not flawed in this manner because it did not grant a
privilege to anyone. A ban on the use of a means of
fishing does not equal a creation of an exclusive right
or a special privilege. It is true that only those who
previously used aircraft to spot fish were directly
affected by the disputed regulation. However, this
will be the case whenever a regulation is adopted which
bans the use of a certain tool for taking fish. When
the ban on fish traps was implemented, only people who
previously used the traps were directly affected.
Although Fish Spotters were clearly affected by the
disputed regulation, the regulation did not exclude
them from many uses of the resource.
Fish Spotters' argument that the regulation sheltered
some fishers against competition from others is wholly
Finally, Fish Spotters argue that they were denied
equal protection of law6 because the regulation
prohibited their access to the fishery which others use
and because they were treated differently from spotters
in other areas.
Fish Spotters argue that the regulation was void for
the same reasons under the more stringent review
appropriate under "uniform application" clause7
For the reasons articulated above we are not persuaded
by these arguments. The regulation applied equally to
all citizens. It did not implicate Alaska's "equal
protection"or "uniform application"clauses.
The superior court's summary judgment in favor of the
state is AFFIRMED.
1. This appeal is technically moot. On January 11, 1992,
after the parties submitted their briefs to this court,
the Board changed its position and voted to allow
aerial fish spotting in Bristol Bay. However, both
parties believe that we should address the dispute
because the issues are capable of repetition, because
the mootness doctrine, if applied, may repeatedly
circumvent review of the issues and because the issues
are so important to the public interest that overriding
the mootness doctrine is justified. We agree and
therefore consider the issues through application of
the public interest exception to the mootness doctrine.
See Peninsula Mktg. Ass'n v. State Bd. of Fisheries,
817 P.2d 917, 920 (Alaska 1991).
2. If the Board bans fish spotting for the purpose of
allocating the resource between competing subgroups of
commercial uses, it must comply with AS 16.05.251(e).
Peninsula Mktg. Ass'n, 817 P.2d at 922. Alaska Statute
16.05.251(e) requires the Board to establish criteria
for allocation of the fisheries resource among
3. Article VIII, section 3 of the Alaska Constitution
provides: "Wherever occurring in their natural state,
fish, wildlife, and waters are reserved to the people
for common use."
4. The full text of the proposed ordinance is as follows:
As a matter of immediate public
necessity, to relieve economic distress among
individual fishermen and those dependent upon
them for a livelihood, to conserve the
rapidly dwindling supply of salmon in Alaska,
to insure fair competition among those
engaged in commercial fishing, and to make
manifest the will of the people of Alaska,
the use of fish traps for the taking of
salmon for commercial purposes is hereby
prohibited in all the coastal waters of the
Alaska Const. Ord. 3, 2.
In 1957, the legislature enacted a statutory
prohibition of fish traps, noting that the people of
Alaska had "repeatedly and overwhelmingly" voted in
favor of such a ban. Ch. 44, SLA 1957.
5. Article VIII, section 15 of the Alaska Constitution
provides in part: "No exclusive right or special
privilege of fishery shall be created or authorized in
the natural waters of the State."
6. Article I, section 1 of the Alaska Constitution
This constitution is dedicated to the
principles that all persons have a natural
right to life, liberty, the pursuit of
happiness, and the enjoyment of the rewards
of their own industry; that all persons are
equal and entitled to equal rights,
opportunities, and protection under the law;
and that all persons have corresponding
obligations to the people and to the State.
7. Article VIII, section 17 of the Alaska Constitution
provides: "Laws and regulations governing the use or
disposal of natural resources shall apply equally to
all persons similarly situated with reference to the
subject matter and purpose to be served by the law or