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Totemoff v. Alaska (10/20/95), 905 P 2d 954
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
MICHAEL TOTEMOFF, )
) Supreme Court No. S-6151
Petitioner, ) Court of Appeals
) No. A-4276
v. ) Trial Court No.
) 3WH-91-25 Cr.
STATE OF ALASKA, )
) O P I N I O N
Respondent. ) [No. 4276 - October 20, 1995]
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the District Court of the State of
Alaska, Third Judicial District, Whittier,
John D. Mason, District Court Judge.
Appearances: Paul E. Malin, Assistant Public
Defender, John B. Salemi, Public Defender,
Anchorage, for Petitioner. Joanne Grace,
Assistant Attorney General, Anchorage, Bruce
M. Botelho, Attorney General, Juneau, for
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
Subsistence hunter Mike Totemoff shot a deer with the
aid of a spotlight in December 1990. The deer was killed on
federal land, Naked Island in Prince William Sound. However,
Totemoff was in a skiff in navigable waters surrounding Naked
Island when he shined his spotlight at the deer and fired the
Totemoff was charged with violating 5 Alaska
Administrative Code (AAC) 92.080(7), which prohibits hunting with
the aid of an artificial light. Totemoff moved to have the
indictment dismissed, arguing that the State did not have
jurisdiction to prosecute him and that the regulation prohibiting
spotlighting was invalid. To support some of his arguments,
Totemoff presented evidence that spotlighting is a customary and
traditional means of hunting deer for subsistence in his native
community of Tatitlek. The district court ruled that the State
did have jurisdiction to prosecute Totemoff. The district court
held that Alaska law prohibits subsistence hunters from
challenging, in a criminal proceeding, the regulations under
which they are prosecuted.
The case proceeded to trial, and Totemoff was
convicted. The court of appeals affirmed. Totemoff v. State,
866 P.2d 125 (Alaska App. 1993). We granted Totemoff's petition
We must first decide whether the State has criminal
jurisdiction over Totemoff, as jurisdiction is a threshold issue
which must be decided before this court can address other issues
presented in an appeal. See Nattrass v. State, 554 P.2d 399, 401
(Alaska 1976). Jurisdiction can be established either by finding
that the State has the power to apply the spotlighting ban to
subsistence hunters on federal land, or by determining that the
State has exclusive jurisdiction over the navigable waters from
which Totemoff fired his rifle. If we find that the State does
have jurisdiction, we will then consider Totemoff's state law
challenge to the anti-spotlighting regulation.
I. JURISDICTION OVER FEDERAL LAND
A state is free to enforce its civil or criminal laws
on federal land within its boundaries unless the state consents
to the exercise of exclusive federal jurisdiction, the state
voluntarily cedes exclusive jurisdiction to the federal
government, or the state's laws are preempted by federal law.
California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 580-
81 (1987); Kleppe v. New Mexico, 426 U.S. 529, 542-43 (1976); see
also Arizona v. Manypenny, 445 F. Supp. 1123, 1125-26 (D. Ariz.
1977), rev'd on other grounds, 451 U.S. 232 (1981). Alaska has
not voluntarily ceded exclusive jurisdiction over hunting on
federal land to the federal government or consented to exclusive
federal control. Therefore, the State lacks jurisdiction to
enforce its spotlighting ban against subsistence hunters on
federal land only if enforcement is preempted by federal law.
Federal law can preempt state law in three ways.
First, Congress may expressly declare that state law is
preempted. Second, state law is preempted if Congress intends
the federal government to occupy a field exclusively. Third,
federal law preempts state law if the two actually conflict.
See, e.g., Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597,
604-05 (1991); English v. General Elec. Co., 496 U.S. 72, 78-79
(1990). Totemoff argues that application of the spotlighting ban
to him is preempted by the Alaska National Interest Lands
Conservation Act (ANILCA), 16 U.S.C. '' 3101-3233 (1988).
No provision in ANILCA expressly preempts state
enforcement of state hunting laws against subsistence hunters on
federal land. Thus, we must determine whether Congress intended
for the federal government to exclusively occupy the field of
regulation of subsistence activities when it enacted ANILCA, or
whether state law actually conflicts with ANILCA.
A. Intent to Occupy Field
Congressional intent to occupy a field can be inferred
from a "scheme of federal regulation . . . so pervasive as to
make reasonable the inference that Congress left no room for the
State to supplement it," or if a federal law "touch[es] a field
in which the federal interest is so dominant that the federal
system will be assumed to preclude enforcement of state laws on
the same subject." English, 496 U.S. at 79 (alteration in
original) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218,
However, "'[w]here . . . the field which Congress is
said to have pre-empted' includes areas that have 'been
traditionally occupied by the States,' congressional intent to
supersede state laws must be 'clear and manifest.'" Id.
(alteration in original) (quoting Jones v. Rath Packing Co., 430
U.S. 519, 525 (1977)). "When considering pre-emption, '[courts]
start with the assumption that the historic police powers of the
States were not to be superseded by the Federal Act unless that
was the clear and manifest purpose of Congress.'" Mortier, 501
U.S. at 605 (quoting Rice, 331 U.S. at 230).
Regulation of hunting is an area that has been
traditionally occupied by the states. It is part of the historic
police power of states. See State v. Coffee, 556 P.2d 1185, 1194
(Idaho 1976); State ex rel. Nepstad v. Danielson, 427 P.2d 689,
691 (Mont. 1967); see also Montana v. United States, 450 U.S.
544, 564 n.13 (1981). Therefore, we may find that Congress
intended to occupy the field of regulation of subsistence hunting
on federal land only if Congress' purpose was clear and manifest.
ANILCA does not disclose such a clear and manifest
purpose. Title VIII of ANILCA governs subsistence hunting and
fishing. 16 U.S.C. '' 3111-26. Section 804 of Title VIII
requires the taking of fish and wildlife on public lands for
subsistence purposes to be accorded priority over the taking of
fish and wildlife for other purposes. 16 U.S.C. ' 3114. Section
802 states that it is the purpose of Congress "to provide the
opportunity for rural residents engaged in a subsistence way of
life to do so." 16 U.S.C. ' 3112(1). Section 814 requires the
Secretaries of Interior and Agriculture to promulgate regulations
necessary to carry out their responsibilities under Title VIII.
16 U.S.C. ' 3124. Sections 805(a)-(c) of Title VIII provide for
the establishment of a network of regional advisory councils and
local advisory committees to advise the Secretaries in the
exercise of their authority under ANILCA. 16 U.S.C. '' 3115(a)-
Under ' 805(d), the federal government was not to
implement '' 805(a)-(c) if Alaska enacted laws of general
applicability providing "for the definition, preference, and
participation specified" in Title VIII. 16 U.S.C. ' 3115(d).
Alaska did enact such laws,1 but we struck down the rural
preference provision of those laws as contrary to the Alaska
Constitution in McDowell v. State, 785 P.2d 1 (Alaska 1989). As
a result, the State fell out of compliance with ANILCA. The
federal government subsequently promulgated temporary and then
permanent regulations governing subsistence hunting on public
land and implementing '' 805(a)-(c) of Title VIII. 55 Fed. Reg.
27,114 (1990); 57 Fed. Reg. 22,940 (1992).
Even though Title VIII has been fully implemented, it
does not create a scheme of federal regulation so pervasive that
there is no room for state regulation to supplement it. Under
Title VIII, the Secretaries of Interior and Agriculture implement
ANILCA's subsistence priority and opportunity provisions with the
participation and assistance of local and regional advisory
councils. This does not foreclose the State from promulgating
hunting and fishing regulations which may affect subsistence
hunters on federal land, so long as those regulations do not
conflict with federal laws or regulations. Nothing in Title VIII
discloses a clear and manifest purpose to prohibit all state
regulation of subsistence hunting. Nothing affirmatively
prohibits the State from engaging in such regulation.
Moreover, ' 1314 of ANILCA states, "Nothing in this Act
is intended to enlarge or diminish the responsibility and
authority of the State of Alaska for management of fish and
wildlife on the public lands except as may be provided in [Title
VIII] of this chapter." 16 U.S.C. ' 3202. Again, no provision
in Title VIII clearly and manifestly prevents the State from
enforcing its general hunting laws against subsistence hunters on
In addition, ' 802(3) of Title VIII provides that the
policy of Congress is that "[f]ederal land managing agencies, in
managing subsistence activities on the public lands . . . shall
cooperate with . . . appropriate State and Federal agencies." 16
U.S.C. ' 3112(3). This section suggests that Congress did not
intend a federal regulatory scheme so pervasive that there would
be no room for state regulation to supplement it.
Finally, when the federal regulations promulgated
pursuant to ANILCA were passed, the federal agencies
administering ANILCA explained that the regulations would permit
the State to continue to participate in the management of
subsistence hunting on public land:
[T]hese regulations anticipate an
interactive process between the State fish
and game regulatory procedure. The State,
because of its constitution, cannot provide a
preference for rural residents with customary
and traditional use of fish and wildlife as
required by ANILCA. The State can facilitate
harvest by rural residents through various
regulations dealing with means and methods of
take and perhaps other mechanisms.
If State regulations allow rural
residents the opportunity to obtain their
customary and traditional take and uses of
fish and wildlife resources, the Federal
regulations may closely parallel State
regulations. The Federal program anticipates
a highly cooperative, interactive
relationship with the State system. To the
extent that cooperation exists, the Federal
program will be able to minimize change to
traditional State regulation and management
of fish and wildlife.
55 Fed. Reg. 27,114, 27,119 (1990) (emphasis added). Thus, the
federal government clearly contemplated that Alaska means and
methods regulations, the kinds of regulations at issue in this
case, would be effective on federal land.
Since the language of ANILCA does not demonstrate a
clear and manifest Congressional intent to preempt all state
regulation affecting subsistence hunting and fishing on federal
land, and since the federal agencies administering ANILCA have
interpreted ANILCA as allowing such state regulation, we hold
that Congress did not intend for the federal government to
exclusively occupy the field of subsistence hunting and fishing
B. Actual Conflict
We must next decide whether federal law actually
conflicts with the enforcement of the state spotlighting ban
against Totemoff on federal land. There is no direct conflict
between Alaska's anti-spotlighting regulation, 5 AAC 92.080(7),
and any federal statute or regulation. At the time of Totemoff's
arrest, a federal subsistence hunting regulation virtually
identical to the state regulation prohibited taking game with the
aid of a spotlight. Compare 36 C.F.R. ' 242.23(b)(1)(vii) (1990)
with 5 AAC 92.080(7) (1990).
Totemoff's principal federal claim, however, is that
federal law preempts application of the state spotlighting ban to
him because federal law allows him to defend against prosecution
on the grounds that spotlighting is a customary and traditional
method of taking deer, while state law does not permit such a
defense.2 Totemoff relies on United States v. Alexander, 938
F.2d 942 (9th Cir. 1991).
In Alexander, the defendants sold herring roe in
violation of an Alaska regulation prohibiting sale of herring
roe. Id. at 944-45. The court held that the defendants were
permitted to defend against criminal prosecution on the basis
that they were engaged in customary trade for subsistence
purposes, a subsistence use protected by ANILCA. Id. at 948. In
deciding that customary trade was protected by ANILCA, the court
cited ANILCA's definition of "subsistence uses" -- "the customary
and traditional uses by rural Alaska residents of wild renewable
resources . . . for barter, or sharing for personal or family
consumption; and for customary trade." Id. at 946 (alteration in
The full text of ANILCA's definition of "subsistence
[T]he customary and traditional uses by rural
Alaska residents of wild, renewable resources
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
byproducts of fish and wildlife resources
taken for personal or family consumption; for
barter, or sharing for personal or family
consumption; and for customary trade.
ANILCA ' 803, 16 U.S.C. ' 3113 (emphasis added). This definition
only covers various uses of subsistence resources. It does not
cover traditional means and methods of hunting. And no other
provision in ANILCA creates a general right to use traditional
means and methods of taking game.
Title VIII of ANILCA does specifically protect the use
of traditional means of surface transportation for subsistence
hunting. Section 811(b) of Title VIII states, "Notwithstanding
any other provision of this Act or other law, the Secretary shall
permit on the public lands appropriate use for subsistence
purposes of snowmobiles, motorboats, and other means of surface
transportation traditionally employed for such purposes by local
residents, subject to reasonable regulation." 16 U.S.C. '
3121(b). The protection of traditionally employed surface
transportation methods implies that other traditional components
of subsistence hunting or fishing, such as the use of certain
guns, nets, or other equipment, are not exempt from state
Furthermore, numerous provisions in ANILCA require
regulation of subsistence taking in accordance with sound
wildlife management principles and the preservation of wildlife
resources. See 16 U.S.C. '' 3101(b), 3101(c), 3111(3), 3112(1),
3125(1). Restriction of traditional means and methods may be
necessary to accomplish this goal. See ANILCA ' 801(3), 16
U.S.C. ' 3111(3) ("continuation of the opportunity for
subsistence uses of resources on public and other lands in Alaska
is threatened . . . by taking of fish and wildlife in a manner
inconsistent with recognized principles of fish and wildlife
In addition, no case law directly holds that ANILCA
protects customary and traditional methods of hunting. There is
a case, however, which could provide support for such a holding,
Native Village of Quinhagak v. United States, 35 F.3d 388 (9th
Cir. 1994). In Quinhagak, the court ruled that several native
villages were entitled to a preliminary injunction against the
enforcement of an Alaska regulation barring the taking of rainbow
trout for subsistence purposes. Id. at 395. The court held that
the villages presented a showing of hardship sufficient to
justify the preliminary injunction, since they demonstrated that
rainbow trout was an important food source for them. Id. at 393.
The court then added:
The Villages also presented evidence
that the federal and state regulations
interfere with their way of life and cultural
identity. . . . They needed to prove nothing
more in light of the clear congressional
directive to protect the cultural aspects of
subsistence living. 16 U.S.C. ' 3111(1)
[ANILCA ' 801(1)] ("[T]he continuation of the
opportunity for subsistence uses by rural
residents of Alaska . . . is essential to
Native physical, economic, traditional, and
cultural existence. . . .").
Id. at 394 (alteration in original).
It might be inferred from this language that ANILCA
protects traditional subsistence taking means and methods which
are part of the cultural identity and way of life of Natives.
However, Quinhagak only held that the villages were entitled to a
preliminary injunction and did not resolve the merits of any
controversy concerning the interpretation of ANILCA. Though an
argument can be made based on Quinhagak that ANILCA does protect
customary and traditional means and methods, we conclude that
more weight should be accorded to Congress' failure to mention
means and methods in ANILCA's definition of "subsistence uses"
and to Congress' specific grant of protection to traditional
means of surface transportation.
We hold that ANILCA does not protect the use of a
spotlight as a customary and traditional method of subsistence
hunting, and thus there is no actual conflict between ANILCA and
Alaska law. Therefore, federal law does not preempt enforcement
of Alaska's spotlighting ban against subsistence hunters on
federal land, and the State does have jurisdiction over Totemoff.
II. JURISDICTION OVER NAVIGABLE WATERS
Even if ANILCA does protect customary and traditional
means and methods, thereby preempting state enforcement of the
anti-spotlighting regulation against Totemoff on federal land,
the State still has criminal jurisdiction if ANILCA does not
apply to the navigable waters from which Totemoff shined his
spotlight at the deer. Totemoff's conduct of taking a deer with
the aid of an artificial light was committed partly in navigable
waters and partly on federal land. If the elements of a crime
are committed in different jurisdictions, "any state in which an
essential part of the crime is committed" may assert
jurisdiction. State v. Scofield, 438 P.2d 776, 784 (Ariz. App.
1968). "If an offense is committed partly on federal and partly
on non-federal property, both sovereigns have jurisdiction."
State v. Kirksey, 647 S.W.2d 799, 804 (Mo. 1983) (en banc).
See also Lane v. State, 388 So. 2d 1022, 1028 (Fla.
1980) (though fatal blow struck in Alabama, Florida has
jurisdiction over murder if either premeditation to murder or
felony underlying murder occurred in Florida); Commonwealth v.
Lanoue, 95 N.E.2d 925, 926 (Mass. 1950) (if a criminal act is
committed in two jurisdictions, a state has jurisdiction over the
act if the part of the act committed within that state has been
declared to be punishable by its laws); State v. Kills on Top,
793 P.2d 1273, 1285-86 (Mont. 1990) (Montana has jurisdiction
over felony-murder even though victim killed in Wyoming because
underlying felony, kidnapping, occurred in Montana), cert.
denied, 501 U.S. 1259 (1991); People v. Fuller, 586 N.Y.S.2d 366,
367-68 (N.Y. App.) (New York has jurisdiction over rape
defendant, even though actual sexual assault may have taken place
in Pennsylvania, because element of forcible compulsion occurred
in New York), appeal denied, 591 N.Y.S.2d 144 (N.Y. 1992); Brown
v. Market Dev., Inc., 322 N.E.2d 367, 372 (Ohio C.P. 1974) (Ohio
would have jurisdiction over a person who stood in Ohio and fired
a shot across the state border, killing someone in Indiana). But
see State v. Hall, 19 S.E. 602, 604-05 (N.C. 1894) (North
Carolina did not have jurisdiction over defendant who while
standing in North Carolina shot victim in Tennessee, since no
North Carolina statute criminalized the conduct which occurred in
North Carolina or otherwise conferred jurisdiction upon the
In this case, Totemoff's act of shining a spotlight and
firing the fatal shot, an essential part of the crime with which
he was charged, unlawful taking of game, occurred on navigable
waters. Moreover, Alaska law specifically criminalizes conduct
which Totemoff committed solely on navigable waters. Alaska
Statute 16.05.940(33) defines "take" as "taking, pursuing,
hunting, fishing, trapping, or in any manner disturbing,
capturing, or killing or attempting to take, pursue, hunt, fish,
trap, or in any manner capture or kill fish or game." Totemoff
took actions in navigable waters which constitute "pursuing,"
"hunting," "disturbing," and "attempting to take, pursue, hunt .
. . or in any manner capture or kill" deer. Therefore, the State
has jurisdiction over Totemoff, even if ANILCA preempts the
application of the spotlighting ban on federal land, so long as
ANILCA does not give the federal government the power to regulate
hunting and fishing in navigable waters.
ANILCA's subsistence priority applies only to "public
lands." ANILCA ' 804, 16 U.S.C. ' 3114. Section 102 of ANILCA
defines the term "public lands":
(1) The term "land" means lands, waters,
and interests therein.
(2) The term "Federal land" means lands
the title to which is in the United States
after December 2, 1980.
(3) The term "public lands" means land
situated in Alaska which, after December 2,
1980, are Federal lands, except--
(A) land selections of the State of
Alaska which have been tentatively
approved or validly selected under the
Alaska Statehood Act and lands which
have been confirmed to, validly selected
by, or granted to the Territory of
Alaska or the State under any other
provision of Federal law.
16 U.S.C. ' 3102. Thus, "public lands" means lands, waters, and
interests therein, the title to which is in the United States.
But "public lands" does not include lands, waters, and interests
therein which were transferred to Alaska under other federal
Whether "public lands" includes navigable waters was
the subject of a recent Ninth Circuit decision, Alaska v. Babbitt
(Katie John), 54 F.3d 549 (9th Cir. 1995), petitions for cert.
filed, 63 U.S.L.W. 3819 (U.S. May 5, 1995) (No. 94-1829), 63
U.S.L.W. 3874 (U.S. June 2, 1995) (No. 94-1976). The Katie John
court considered whether ANILCA applies to navigable waters
because of the federal government's navigational servitude or
federal reserved water rights.
The navigational servitude is a dominant servitude,
sometimes described as a "superior navigation easement," which
allows the federal government to exercise its regulatory power
over navigable waters in the interests of commerce without
compensation for interference with private water rights. United
States v. Virginia Elec. & Power Co., 365 U.S. 624, 627-28
(1961); Boone v. United States, 944 F.2d 1489, 1493-94 (9th Cir.
1991). The servitude "is a concept of power, not of property."
United States v. Certain Parcels of Land Situated in Valdez, 666
F.2d 1236, 1238 (9th Cir. 1982). It is a "dominant right over
navigable waters for purposes of improving and regulating
navigation." United States v. 119.67 Acres of Land, More or
Less, Situated in Plaquemines Parish, La., 663 F.2d 1328, 1330
n.5 (5th Cir. 1981). The navigational servitude is derived from
the Commerce Clause. See United States v. Cherokee Nation of
Oklahoma, 480 U.S. 700, 704 (1987); Boone, 944 F.2d at 1494 n.9.
Under the reserved water rights doctrine, when Congress
withdraws land from the public domain for a federal purpose, it
implicitly reserves water necessary to accomplish the purposes of
the reservation. Cappaert v. United States, 426 U.S. 128, 138
(1976); Colville Confederated Tribes v. Walton, 647 F.2d 42, 46
(9th Cir.), cert. denied, 454 U.S. 1092 (1981). "The United
States acquires a water right vesting on the date the reservation
was created, and superior to the rights of subsequent
appropriators." Colville, 647 F.2d at 46. The amount of water
reserved under the doctrine is limited to what is necessary to
fulfill the purpose of the land reservation. Cappaert, 426 U.S.
at 141; United States v. Adair, 723 F.2d 1394, 1409 (9th Cir.
1983), cert. denied, 467 U.S. 1252 (1984).
A reservation of water may be implied only where the
water is necessary for the primary purpose of the federal
reservation, not where the water merely serves secondary purposes
of the reservation. United States v. New Mexico, 438 U.S. 696,
702 (1978); Adair, 723 F.2d at 1408-09. In determining the scope
of implied reserved water rights, a court may look only to the
primary purpose of a reservation at the time the land was first
reserved by the federal government, and may not consider other
purposes later given to the reservation. See New Mexico, 438
U.S. at 713-15. The reserved water rights doctrine has at times
been treated as giving the government only a non-consumptive
right to prevent others from using a supply of water in a manner
that would deprive the federal reservation of the water necessary
for its primary purpose; at other times, the doctrine has been
interpreted as giving the United States the right to a specific
amount of water. Compare Cappaert, 426 U.S. at 135, 143 and
Adair, 723 F.2d at 1411 with Arizona v. California, 373 U.S. 546,
600-01 (1963) and Colville, 647 F.2d at 47.
The Ninth Circuit in Katie John decided that the
navigational servitude is not an interest to which the United
States holds title and ruled that the navigational servitude does
not convert all Alaska navigable waters to "public lands" as
defined in ANILCA. 54 F.3d at 553. In doing so, the court
reversed a federal district court decision which held that the
navigational servitude is an interest to which the United States
holds title for the purposes of ANILCA. John v. United States,
Nos. A90-0484-CV, A92-0264-CV, 1994 WL 487830, at *17 (D. Alaska
March 30, 1994). The Ninth Circuit also held in Katie John that
reserved water rights are interests in land to which the federal
government has title under ANILCA's definition of "public lands."
54 F.3d at 554.
We are not obliged to follow Katie John, since this
court is not bound by decisions of federal courts other than the
United States Supreme Court on questions of federal law. In re
F.P., 843 P.2d 1214, 1215 n.1 (Alaska 1992), cert. denied, 113 S.
Ct. 2441 (1993). Though the State was a party to Katie John, it
is not collaterally estopped here as to the issues decided in
that case because the applicability of ANILCA to navigable waters
is a pure question of law which does not involve factual issues.
See State v. United Cook Inlet Drift Ass'n, 895 P.2d 947, 954
(Alaska 1995) ("the State is permitted to relitigate unmixed
questions of law so long as the subject matter of the second case
is 'substantially unrelated' to that of the first"). We will
follow Katie John only to the extent that its reasoning is
For a number of reasons, we find that neither the
navigational servitude nor reserved water rights bring navigable
waters within ANILCA's definition of "public lands," and that the
federal government has no authority based on the navigational
servitude or the reserved water rights doctrine to regulate
hunting and fishing in Alaska's navigable waters.
First, even if the navigational servitude or reserved
water rights can be considered interests to which the United
States holds title, the State has an interest in fish and
wildlife located in navigable waters which precludes federal
regulation of such fish and wildlife, under ' 102(3)(A) of ANILCA
and the Submerged Lands Act of 1953, 43 U.S.C. '' 1301-56 (1988).
Section 102(3)(A) of ANILCA exempts from the definition of
"public lands" "lands which have been . . . granted to the
Territory of Alaska or the State under any other provision of
Federal law." 16 U.S.C. ' 3102(3)(A). As ANILCA ' 102(1)
defines "land" as "lands, waters, and interests therein," 16
U.S.C. ' 3102(1), "public lands" does not include lands, waters,
and interests therein granted to Alaska under another federal
A relevant interest in lands or waters is granted to
Alaska by the Submerged Lands Act of 1953. Section 3(a) of the
It is hereby determined and declared to
be in the public interest that (1) title to
and ownership of the lands beneath navigable
waters within the boundaries of the
respective States, and the natural resources
within such lands and waters, and (2) the
right and power to manage, administer, lease,
develop, and use the said lands and natural
resources all in accordance with applicable
State law be, and they are, subject to the
provisions hereof, recognized, confirmed,
established and vested in and assigned to the
respective States or the persons who were on
June 5, 1950, entitled thereto under the
law of the respective States in which the
land is located, and the respective grantees,
lessees, or successors in interest thereof.
43 U.S.C. ' 1311(a) (emphasis added). Section 2(e) of the Act
states, "[t]he term 'natural resources' includes . . . fish,
shrimp, oysters, clams, crabs, lobsters, sponges, kelp, and other
marine animal and plant life." 43 U.S.C. ' 1301(e).
The Submerged Lands Act thus gives Alaska ownership of,
title to, and management power over the following: lands beneath
the navigable waters of Alaska,4 the navigable waters themselves,5
and fish and other marine life located in Alaska's navigable
waters. Under ' 102(3)(A) of ANILCA, the definition of "public
lands" in ANILCA therefore excludes navigable waters.
Furthermore, ' 6(a) of the Submerged Lands Act
specifically precludes the navigational servitude from being used
to give the federal government power over fish or animals in
state navigable waters. The section states:
The United States retains all its
navigational servitude and rights in and
powers of regulation and control of said
lands and navigable waters for the
constitutional purposes of commerce,
navigation, national defense, and
international affairs, all of which shall be
paramount to, but shall not be deemed to
include, proprietary rights of ownership, or
the rights of management, administration,
leasing, use, and development of the lands
and natural resources which are specifically
recognized, confirmed, established, and
vested in and assigned to the respective
States and others by section  of this
43 U.S.C. ' 1314(a) (emphasis added). Under this statute, the
navigational servitude and other federal rights in navigable
waters cannot give the federal government ownership of navigable
waters or management rights over fish and animals in navigable
waters, as those rights are reserved to the states by ' 3 of the
Submerged Lands Act.
The second reason supporting our decision that ANILCA
does not give the federal government power to regulate hunting
and fishing in navigable waters is that the navigational
servitude and reserved water rights are not the type of property
interests to which title can be held. Authorities disagree on
whether the term "title" applies only to fee ownership of
property or also covers lesser possessory interests such as lease
interests. Dover Veterans Council, Inc. v. City of Dover, 407
A.2d 1195, 1196 (N.H. 1979); see also United States v. Hunter, 21
F. 615, 617 (C.C.E.D. Mo. 1884); compare United States v. City of
New Brunswick, 11 F.2d 476, 477 (3d Cir. 1926) ("the ownership of
title means ownership of property"), rev'd on other grounds, 276
U.S. 547 (1928) and Schaible v. Fairbanks Medical & Surgical
Clinic, Inc., 531 P.2d 1252, 1260 (Alaska 1975) (conventional
definition of "title" is ownership of the premises) with
Shingleton v. State, 133 S.E.2d 183, 189 (N.C. 1963) ("title"
signifies actual or constructive possession of property or the
right to possession) and East Norriton Medical Assocs., Ltd. v.
Commonwealth, 650 A.2d 1169, 1171 (Pa. Commw. Ct. 1994) (cites
statute which defines "title" as a possessory or leasehold
interest). However, it is generally accepted that "title"
signifies at least some sort of possessory interest in property
and does not include lesser interests such as easements. See
Kohl Indus. Park Co. v. County of Rockland, 710 F.2d 895, 903 (2d
Neither the navigational servitude nor reserved water
rights are possessory interests in a body of water. The
navigational servitude has been described as a "dominant
servitude" and as a "superior navigation easement." Virginia
Elec. & Power, 365 U.S. at 627. Reserved water rights give the
federal government the right to prevent others from appropriating
water or to use a certain volume of water, not to possess a body
of water. See Cappaert, 426 U.S. at 135, 143; Arizona, 373 U.S.
at 600-01. Therefore, the United States cannot hold title to the
navigational servitude or reserved water rights.
A similar conclusion was reached by a New York court
when New York State claimed that it had title to submerged lands
by virtue of state interests analogous to the federal
navigational servitude and federal reserved water rights. In
Niagara Falls Power Co. v. Water Power & Control Commission, 262
N.Y.S. 217, 219-221 (N.Y. App. 1932), rev'd on other grounds, 196
N.E. 51 (N.Y.), cert. denied, 296 U.S. 609 (1935), an issue
relevant to determining the amount of rent the state could charge
for a water power site located on submerged lands which had been
previously granted to a private company was whether "title" to
the "water power sites or lands" was "vested in the state." The
state argued that it had "title" through "[i]ts sovereignty and
incidental control over navigable waters," a power similar to the
federal navigational servitude, or through interference the power
site could cause with state riparian rights appurtenant to a
state park, an interest similar to federal reserved water rights.
Id. at 221. The court rejected these arguments, explaining that
these "inchoate and incorporeal" rights did not constitute
"title." Id. at 224-25.
Our conclusion that the navigational servitude and
reserved water rights are not interests to which the United
States holds title may raise the question of what Congress
intended when it included "interests" in "lands" or "waters,"
"the title to which is in the United States," within ANILCA's
definition of "public lands." See ANILCA '' 102(1)-(3), 16
U.S.C. '' 3102(1)-(3). A logical answer is that the word
"interests" was intended to cover possessory interests lesser
than fee interests such as leases, as there is considerable
authority that title can be held to such interests. See, e.g.,
Shingleton, 133 S.E.2d at 189; East Norriton, 650 A.2d at 1171.
A broader reading would conflict with the clear
statement doctrine, which is the third ground underlying our
ruling on the navigable waters issue. The clear statement
doctrine "counsels that a . . . court should not apply a federal
statute to an area of traditional state concern unless Congress
has articulated its desire in clear and definite language to
alter the delicate balance between state and federal power by
application of the statute to that area." H.J. Inc. v.
Northwestern Bell Tel. Co., 954 F.2d 485, 495 n.6 (8th Cir.)
(quoting Taffet v. Southern Co., 930 F.2d 847, 851 (11th Cir.
1991), vacated on other grounds and reh'g granted, 958 F.2d 1514
(11th Cir.), on reh'g en banc, 967 F.2d 1483 (11th Cir.), cert.
denied, 113 S. Ct. 657 (1992)), cert. denied, 504 U.S. 957
(1992). The doctrine means that "[i]f Congress intends to alter
the 'usual constitutional balance between the States and the
Federal Government,' it must make its intention to do so
'unmistakably clear in the language of the statute.'" California
State Bd. of Optometry v. Federal Trade Comm'n, 910 F.2d 976, 981
(D.C. Cir. 1990) (quoting Will v. Michigan Dep't of State Police,
491 U.S. 58, 65 (1989)); see also BFP v. Resolution Trust Corp.,
114 S. Ct. 1757, 1764-66 (1994). The doctrine applies "in
circumstances in which the language of a statute or its
legislative history provide some indication of ambiguity."
County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295,
1306 (2d Cir. 1990).
In this case, ANILCA's definition of "public lands"
would have to be viewed as ambiguous before it could be
interpreted as covering the navigational servitude or reserved
water rights. Defining "public lands" as waters subject to the
navigational servitude or reserved water rights would allow the
federal government to regulate hunting and fishing in navigable
waters. States have traditionally had the power to govern
hunting and fishing in their navigable waters. Regulation of
hunting and fishing is a traditional concern of the states. See
Coffee, 556 P.2d at 1194; Danielson, 427 P.2d at 691. Congress
has not expressed in unmistakably clear language a desire to
alter this traditional allocation of state and federal power.
The fourth basis for our decision on this matter is
that, even assuming the navigational servitude or reserved water
rights are interests to which the United States holds title, the
land management authority which the federal government obtains
through these interests is limited by the purposes of the
interests. The power any easement, servitude, or similar
property interest gives to its holder is limited by the
interest's purpose. See, e.g., Southern Pac. Co. v. City of San
Francisco, 396 P.2d 383, 386 (Cal. 1964); Benno v. Central Lake
County Joint Action Water Agency, 609 N.E.2d 1056, 1060 (Ill.
App.), appeal denied, 616 N.E.2d 331 (Ill. 1993). For example,
an easement giving a person the right to cross over another's
property for access to his own land does not create a right to
use the property subject to the easement for any other purpose.
Likewise, the navigational servitude only gives the
United States the power to regulate navigable waters for
navigation purposes without owing compensation, Boone, 944 F.2d
at 1493-94; it does not permit federal regulation of hunting and
fishing in navigable waters. Similarly, the reserved water
rights doctrine only grants to the government the right to either
exclude others from appropriating water which feeds a government
reservation or to use a limited volume of water in order to serve
the federal land reserved. See Cappaert, 426 U.S. at 135, 143;
Arizona, 373 U.S. at 600-01. The doctrine does not provide the
federal government with plenary power over a body of water.
Fifth, neither the navigational servitude power to
regulate for navigation purposes nor the power to reserve water
rights can grant the federal government jurisdiction to manage
hunting and fishing in navigable waters. The two powers are over
navigation and water, not fish and game.
The final reason for our ruling on the navigable waters
issue concerns reserved water rights only. Employing the
reserved water rights doctrine to define the geographic scope of
navigable waters covered by ANILCA would be highly impractical,
perhaps even impossible. It would first require the federal
agencies administering ANILCA to determine the primary purpose of
each federal land reservation in Alaska at the time the
reservation was created. See New Mexico, 438 U.S. at 702, 713-
15. Then, the federal agencies would have to ascertain the
amount of water necessary to fulfill the primary purpose of the
reservation. See Cappaert, 426 U.S. at 141. Afterwards, the
agencies would have to somehow convert that amount of water into
a surface area of water constituting "public lands" under ANILCA.
This last step could be especially difficult, because reserved
water rights represent the right to use a set volume of water or
to prevent others from appropriating water, and not specific
geographic areas around which property lines may be drawn.
Congress could not have intended to create such a complicated and
uncertain regulatory scheme.
Despite acknowledging that it was "impos[ing] an
extraordinary administrative burden on federal agencies," the
Ninth Circuit held in Katie John that reserved water rights are
interests in land to which the federal government has title for
ANILCA purposes. 54 F.3d at 554. The court's holding was based
on two grounds. First, the court believed that the position
taken by the federal agencies that reserved water rights do
define the scope of ANILCA was a reasonable agency interpretation
owed deference. See id. at 552-54. Second, the court feared
undermining Congress' intent to protect subsistence fishing. See
id. at 552, 554. In our view, neither of these considerations
justifies the court's holding.
We apply federal law on deference in determining
whether deference is owed to a federal agency's legal position.
Under federal deference law, the Katie John court should not have
deferred to the federal agencies' position on the meaning of
ANILCA's definition of "public lands." See id. at 554. This
position was first adopted by the federal government at oral
argument before the district court. Id. at 552. Prior to that,
the federal regulations promulgated pursuant to ANILCA and the
explanations of those regulations had repeatedly generally
excluded navigable waters from the definition of "public lands."
See 36 C.F.R. ' 242.3(b) (1994); 57 Fed. Reg. 22,940, 22,941
(1992); 56 Fed. Reg. 29,310, 29,311 (1991); 55 Fed. Reg. 27,114,
The federal government's new position that ANILCA
covers navigable waters in which the United States has reserved
water rights is a position taken during litigation, not a
regulation or agency interpretation that is owed deference. The
federal government's new position has not been formalized in any
regulation. See 60 Fed. Reg. 31,542, 31,542-43 (1995).
Positions on interpretations of statutes adopted by agencies
during litigation which contradict earlier regulations are not
owed deference by courts. See Wolpaw v. Commissioner, 47 F.3d
787, 790 (6th Cir. 1995) (position announced by federal agency in
the course of litigation owed no deference). If any
interpretation is owed deference, it is the interpretation in the
federal regulations that ANILCA generally does not apply to
navigable waters, not the position adopted in a litigation
context. See id. (while litigation position not owed deference,
agency's earlier regulations may be entitled to some deference);
see also General Elec. Co. v. Gilbert, 429 U.S. 125, 142-46
(1976) (Court refuses to defer to agency interpretation
contradicting previous, long-standing interpretation and follows
earlier interpretation). Deference is not due to the
new federal position for several other reasons. The definition
of "public lands" under ANILCA is a pure question of statutory
construction. See Immigration & Naturalization Serv. v. Cardoza-
Fonseca, 480 U.S. 421, 445-46 (1987) (suggesting that no
deference or lesser degree of deference is due to agency
interpretation if issue before court is pure question of
statutory construction). The issue involves no technical agency
expertise. See Thomas Jefferson Univ. v. Shalala, 114 S. Ct.
2381, 2387 (1994) (deference more warranted when interpretation
involves technical agency expertise). The federal agencies'
position is not a long-standing one. See Bowen v. American Hosp.
Ass'n, 476 U.S. 610, 646 n.34 (1986) (if agency interpretation is
neither consistent nor longstanding, the degree of deference it
deserves is substantially diminished). Most importantly, the
recent federal interpretation is not a reasonable, permissible
construction of ANILCA, for the numerous reasons given earlier.
See National R.R. Passenger Corp. v. Boston & Me. Corp., 503 U.S.
407, 418 (1992) ("a reviewing court need not accept an
interpretation which is unreasonable"); Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)
(deference may be given to agency interpretation only if it is
based on permissible construction of statute).
We also respectfully disagree with the conclusion of
the court in Katie John that utilizing reserved water rights to
define the scope of ANILCA is necessary to fulfill Congress'
intent to protect subsistence fishing. The court noted that
Congress intended ANILCA to protect subsistence uses, that
subsistence uses include subsistence fishing, and that
subsistence fishing has traditionally taken place in navigable
waters. 54 F.3d at 552. The court then stated, "Thus, we have
no doubt that Congress intended that public lands include at
least some navigable waters." Id. The court later stated that
ruling that neither the navigational servitude nor reserved water
rights constitute interests to which the United States holds
title for ANILCA purposes "would undermine congressional intent
to protect and provide the opportunity for subsistence fishing."
Id. at 554.
However, the definition of "public lands" in the
federal regulations issued pursuant to ANILCA does include
navigable waters over submerged lands owned by the United States.
See 36 C.F.R. ' 242.3(b); 57 Fed. Reg. 22,940, 22,941 (1992).7
Moreover, some subsistence fishing takes place in non-navigable
waters which are "public lands." See, e.g., Quinhagak, 35 F.3d
at 391. Therefore, fulfilling Congress' intent to provide an
opportunity for subsistence fishing does not require ruling that
reserved water rights define "public lands" under ANILCA.
Because the Submerged Lands Act of 1953 specifically
gives states authority over fish and animals in navigable waters
and precludes the navigational servitude or reserved water rights
from being used to erode that authority, because the navigational
servitude and reserved water rights are not interests to which
title can be held, because of the clear statement doctrine,
because the navigational servitude and reserved water rights are
limited interests which do not give the federal government power
over navigable or reserved waters unrelated to those interests,
and for the other reasons discussed above, we hold that navigable
waters are generally not "public lands" under ANILCA. Therefore,
ANILCA does not curtail the State's authority to regulate hunting
and fishing in navigable waters, and the State has criminal
jurisdiction over Totemoff.
III. VALIDITY OF REGULATION
As the State has the right to prosecute Totemoff, we
proceed to consider his state law defense. Totemoff argues that
the regulation prohibiting spotlighting is invalid because the
Board of Game failed to consider the impact of the regulation on
subsistence hunting at its adoption. Both the district court and
the court of appeals held that State v. Eluska, 724 P.2d 514
(Alaska 1986), prohibited Totemoff from challenging the
regulation in a criminal proceeding. See Totemoff, 866 P.2d at
129. In addition, the State argues that AS 16.05.259, a statute
entitled "No Subsistence Defense," prevents Totemoff from
challenging the regulation.
Both lower courts misinterpreted Eluska. In that case,
Eluska, the defendant, killed a deer out of season. There were
no subsistence regulations separate from the general hunting
regulations. Eluska defended against prosecution on the grounds
that he was hunting for subsistence purposes, that the Board had
violated its statutory duty to adopt subsistence regulations, and
that therefore his actions were lawful. 724 P.2d at 514. The
court of appeals accepted his defense. The court held that
Alaska law gave subsistence users a right to hunt for subsistence
purposes. The court ruled that in areas where the Board of Game
failed to adopt regulations permitting subsistence hunting, a
person charged with violating hunting laws could defend on the
basis that he was hunting for subsistence. Id. at 515.
We reversed, citing AS 16.05.920(a), which prohibits
taking any game unless permitted by statute or regulation. We
observed that no Alaska statute or constitutional provision gave
persons the right to hunt for subsistence in the absence of
regulations authorizing such hunting, and noted that the decision
of the court of appeals would have permitted unregulated hunting
in areas where the Board failed to adopt regulations authorizing
subsistence hunting. Id. We cited one of our earlier decisions,
United States Smelting, Refining & Mining Co. v. Local Boundary
Commission, 489 P.2d 140 (Alaska 1971), explaining that the case
held that "agency action taken without first complying with a
statutory requirement may be invalid," not that "an agency's
failure to act in accordance with a statutory requirement means
that those who are regulated by the agency may act as though they
were not regulated." Eluska, 724 P.2d at 516.
Eluska only held that a person may not hunt for
subsistence purposes without regulations authorizing the person
to do so. It did not rule that a subsistence hunter may not
defend against criminal prosecution on the grounds that the
regulation the hunter is charged with violating is procedurally
invalid. Unlike the defendant in Eluska, Totemoff disputes the
validity of a specific regulation. Therefore, we hold that
Eluska does not bar Totemoff's defense.
B. Alaska Statute 16.05.259
After the court of appeals' decision in Eluska was
announced, but before we published our decision in the case, the
legislature adopted AS 16.05.259. See Bobby v. Alaska, 718 F.
Supp. 764, 785 (D. Alaska 1989). Alaska Statute 16.05.259
states, "In a prosecution for the taking of fish or game in
violation of a statute or regulation, it is not a defense that
the taking was done for subsistence uses."
Arguing that AS 16.05.259 prohibits Totemoff from
challenging the spotlighting ban, the State relies on a passage
from a Senate Committee on Resources report on the legislation
which contained AS 16.05.259. In its entirety, that passage
[Alaska Statute 16.05.259] states that
in a prosecution for the taking of fish or
game in violation of a statute or regulation,
it is not a defense to the charge that the
taking was done for subsistence use. This
section requires a person who disagrees with
a board action or statute to seek to correct
that action or statute through appeal,
petitions for reconsideration, court action,
etc. rather than permitting the person to
violate the statute or regulation and claim
subsistence as a defense. This eliminates
the "subsistence defense" as arose in the
Eluska and Skuse cases.
This section does not effect [sic] AS
16.05.930 (b) which allows people to take
fish and game in case of emergency. This
section is also not intended to limit a
persons [sic] ability to challenge a
regulation that is unreasonable in its terms
or fails to provide a reasonable opportunity
to satisfy subsistence uses as required in
proposed AS 16.05.258(c). An example might
be a hunting season on caribou that was open
in a particular area before or after the
caribou migrated through the area, but was
closed while the caribou were in the area.
Such a regulation would be unreasonable on
its face and would fail to provide a
reasonable opportunity for subsistence uses
as required by AS 16.05.258(c).
Senate Committee on Resources, RE: SCS for CS for HB 288
(Resources) "An Act relating to the taking of fish and game for
subsistence and personal use; and providing for an effective
date" 8-9 (March 12, 1986) (emphasis added). The report shows
that AS 16.05.259 was designed to undo the court of appeals'
decision in Eluska.
However, the report is also somewhat contradictory. It
first states that the law requires a person who disagrees with a
Board action to seek to correct that action through
administrative means, not a challenge in a criminal prosecution.
It then states that it does not prohibit a person from contesting
a regulation in a criminal proceeding on the basis that the
regulation is unreasonable or fails to provide a reasonable
opportunity to satisfy subsistence uses.
These contradictory passages suggest that under AS
16.05.259 a subsistence hunter may challenge a regulation in a
criminal case only on the grounds that the regulation is
unreasonable or fails to provide an opportunity to satisfy
subsistence needs, but not on other grounds. But such a reading
cannot be justified by the plain language of the statute.
Legislative history may not be used to legislate detailed rules
that cannot be supported by a statute's explicit language. Cf.
Madison Galleries, Ltd. v. United States, 870 F.2d 627, 629-30
(Fed. Cir. 1989).
As the committee's report is not particularly helpful,
we look to AS 16.05.259's language and to the fact that it was
passed to undo the court of appeals' decision in Eluska in order
to divine the statute's meaning. The plain language of AS
16.05.259 does not bar challenges to the validity of a regulation
such as 5 AAC 92.080(7), which governs means or methods of
subsistence hunting. The law simply states, "In a prosecution
for the taking of fish or game in violation of a statute or
regulation, it is not a defense that the taking was done for
subsistence uses." This only means, as we held in Eluska, that
unauthorized hunting does not become lawful because it is
subsistence hunting. The statute does not state that a
subsistence hunter may not challenge the validity of a means or
methods regulation under which the hunter is prosecuted.
Furthermore, deciding that a subsistence hunter may
contest the validity of a regulation under which the hunter is
prosecuted is consistent with a recent decision of ours, State v.
Palmer, 882 P.2d 386 (Alaska 1994). The defendant in Palmer was
charged with violating the bag limit in a regulation governing
subsistence hunting of caribou. Id. at 386. We held that while
part of the regulation may have been invalid, the defendant could
be prosecuted because the potentially invalid portion of the
regulation was severable from the portion of the regulation
containing the bag limit. Id. at 389. No suggestion was made in
Palmer that Eluska or AS 16.05.259 prohibited the defendant, a
subsistence hunter, from challenging the regulation under which
he was charged.
Since Eluska and AS 16.05.259 were intended only to
prevent hunters who took game in the absence of any regulation
authorizing them to do so from claiming a subsistence defense, we
hold that neither Eluska nor AS 16.05.259 prohibit Totemoff from
contesting the validity of the spotlighting ban.
C. Board's Failure to Consider Impact on Subsistence
We now reach the merits of Totemoff's challenge to the
regulation. Totemoff argues that the regulation banning taking
of game with the aid of an artificial light is not valid because
the Board did not consider whether the regulation was appropriate
for subsistence hunting when it was adopted. Totemoff's argument
is based on former AS 16.05.258(c), which stated in relevant
part: "The boards shall adopt . . . subsistence hunting
regulations for each . . . population for which a harvestable
portion is determined to exist [consistent with sustained
yield]." Under former AS 16.05.258(f), subsistence takings were
"subject to reasonable regulation of seasons, catch or bag
limits, and methods and means." In addition, AS 16.05.255
provides in relevant part:
(a) The Board of Game may adopt
regulations it considers advisable in
accordance with AS 44.62 (Administrative
Procedure Act) for
. . . .
(3) establishing the means and methods
employed in the pursuit, capture, and
transport of game . . . ;
. . . .
10) regulating sport hunting and
subsistence hunting as needed for the
conservation, development, and utilization of
As noted, the challenged regulation, 5 AAC 92.080(7),
prohibits the taking of game with the use of an artificial light.9
This prohibition applies statewide to both subsistence and
general hunting. 5 AAC 92.001 states: "Except as specifically
provided otherwise, the regulations in this chapter apply
statewide to subsistence hunting, general hunting, and trapping,
Totemoff argues that the artificial light regulation is
invalid because the Board of Game did not hold a hearing to
determine whether the regulation was suitable for application to
subsistence hunting. He argues that our decision in State v.
Morry, 836 P.2d 358 (Alaska 1992), holds that the Board of Game
must conduct "consistency hearings" to determine the suitability
of means and methods prohibitions to subsistence hunting. The
State, by contrast, argues that the regulation is presumed to
have been validly enacted and nothing in the record rebuts this
presumption. For the reasons that follow, we accept the State's
argument and reject Totemoff's.
The procedures for adopting regulations are set forth
in the Administrative Procedure Act (APA) at AS 44.62.180-.290.
The APA requires that notice of the proposed adoption of a
regulation be published and disseminated thirty days before
adoption. AS 44.62.190. The notice must contain an informative
summary. AS 44.62.200(3). On the date designated in the notice
the agency must give each interested person "the opportunity to
present statements, arguments, or contentions in writing, with or
without opportunity to present them orally." AS 44.62.210(a).
Alaska Statute 44.62.100 provides that upon the filing
of a certified copy of a regulation, rebuttable presumptions are
created that "(1) it was duly adopted; (2) it was duly filed and
made available for public inspection at the day and hour endorsed
on it; [and] (3) all requirements of this chapter and the
regulations relative to the regulation have been complied with."
Totemoff implies that our decision in Morry requires a
hearing in addition to that called for in AS 44.62.210(a). We do
not read that case so broadly. At issue in Morry were
regulations applicable to brown bear hunting which required
hunters, among other things, to purchase a numbered,
nontransferable tag before hunting and to affix and keep the tag
on the animal after it was killed, and sealing requirements
mandating that the successful hunter keep the skin and skull of a
bear and have a state official seal these parts. 836 P.2d at
360. By contrast, the regulations did not prohibit letting the
bear meat rot in the field. See id. at 363.
The superior court in Morry invalidated these
regulations. Id. at 361. On appeal we affirmed on two grounds.
First, we accepted the appellees' argument that the regulations
in question were trophy-hunting regulations not appropriate as
subsistence hunting regulations and that the regulations thus
violated former AS 16.05.258(c), which required the Board to
adopt subsistence hunting regulations. Id. at 363-64. We stated
concerning this point:
In particular, we find compelling the
following arguments which were advanced by
Morry and Kwethluk:
[w]hatever the 'noncommercial,
customary and traditional uses'
standard of the definition of
'subsistence uses' in AS
16.05.940(30) may mean, it is
plainly related to non-trophy uses
that are 'for direct personal or
family consumption as food,
shelter, fuel, clothing, tools or
transportation,' for the 'making
and selling' of handicrafts, and
for 'customary trade, barter or
sharing.' There is no hint that
hunting for trophies is a
subsistence use. . . .
Many people, both residents of
the state and non-residents, hunt
grizzly bears for trophies and
leave the meat at the kill site
. . . But it is not a subsistence
use, and plaintiffs have contended
throughout that it is manifestly
unreasonable to apply the
regulatory regime designed to
govern such trophy-hunting
practices to the uses in those
places, such as Kwethluk and
Anaktuvuk Pass, where brown bears
are hunted for the meat and raw
Id. (alteration in original).
As an alternative reason for affirmance, we held that
the regulations were adopted by the Board in violation of the
Administrative Procedure Act. Id. at 364. The appellees had
argued that there never was an "APA rulemaking hearing, which
would have provided a record demonstrating careful consideration
of the applicable subsistence laws." Id. at 363. The State did
not directly address this contention and thus made no effort to
refute it. Id. We accepted it as a fact that "no hearing was
ever held." Id. at 364.
Our conclusion in Morry that the regulations were
invalid "on the ground that [they] were adopted by the board in
violation of the [APA]," id. at 364, contradicts Totemoff's
implied assertion that Morry imposes special hearing requirements
beyond those called for by the APA. We do not so read Morry.
"[O]ne challenging an administrative regulation 'must
show . . . a substantial failure [to comply with the APA] in
order to rebut the presumption of procedural validity.'" Gilbert
v. State, Dep't of Fish & Game, Bd. of Fisheries, 803 P.2d 391,
394 (Alaska 1990) (alteration in original) (citing Chevron U.S.A.
Inc. v. LeResche, 663 P.2d 923, 929 (Alaska 1983)). Totemoff has
not offered any evidence that 5 AAC 92.080(7), the anti-
spotlighting regulation, or 5 AAC 92.001, which applied the anti-
spotlighting regulation to subsistence hunting, were invalidly
However, because the district court ruled that
Totemoff's challenge was barred by Eluska, the district court was
unable to inform Totemoff that he had not presented the kind of
evidence necessary for an informed ruling on the validity of the
regulation, and to give Totemoff an opportunity to remedy the
deficiency in his pre-trial motion challenging the regulation.
As a result, it would be unfair to rule on Totemoff's attack on
the regulation without giving Totemoff an opportunity to
introduce evidence that the procedures mandated by AS 44.62.180-
.290 were not followed when 5 AAC 92.001 or 5 AAC 92.080(7) were
adopted. See Union Oil Co. of California v. State, Dep't of
Natural Resources, 574 P.2d 1266, 1272 (Alaska 1978) (challenger
to regulations given opportunity to present additional evidence
on remand, where challenger had not had sufficient reason to
introduce evidence relevant to attack on regulations in original
proceedings below because of procedural history of case).
The appropriate remedy is thus a remand to the district
court. If Totemoff demonstrates on remand that 5 AAC 92.001 or 5
AAC 92.080(7) were adopted without Board compliance with AS
44.62.180-.290, the district court should vacate Totemoff's
conviction and dismiss the charges against him. If Totemoff
fails to make the requisite showing, the district court should
allow his conviction to stand.
We hold that the State has jurisdiction over Totemoff
because it has the power to enforce its hunting and fishing laws
against subsistence users on federal land, so long as those laws
do not conflict with federal laws or regulations. There is no
such conflict in this case, since there is no federal right to
employ customary means and methods of taking. We further hold
that the State has jurisdiction over Totemoff because he violated
Alaska law in navigable waters above state lands and ANILCA does
not give the federal government the power to regulate subsistence
hunting and fishing in such navigable waters.
We REVERSE the decision of the court of appeals that
Eluska bars Totemoff from challenging the spotlighting
regulation. Alaska Statute 16.05.259 also does not stop Totemoff
from contesting the regulation. We hold that the regulation is
invalid under Morry only if the Board failed to comply with the
requirements of AS 44.62.180-.290. Morry does not impose a
substantive hearing requirement on the Board not contained in the
We REMAND this case to the district court for
development of the record relevant to Totemoff's procedural
challenge to the spotlighting ban. If Totemoff demonstrates that
the Board did not comply with the requirements of AS 44.62.180-
.290 when it passed 5 AAC 92.001 or 5 AAC 92.080(7), the district
court should vacate Totemoff's conviction and dismiss the charges
against him. Otherwise, the conviction is to stand.
IN THE SUPREME COURT OF THE STATE OF ALASKA
MICHAEL TOTEMOFF, )
) Supreme Court No. S-6151
) O R D E R
STATE OF ALASKA, )
Superior Court No. 3WH-91-25CR
Court of Appeals No. A-4276
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Moore, and Eastaugh, Justices.
IT IS ORDERED, SUA SPONTE:
1. Opinion No. 4236 issued in this case on August 7,
1995, is WITHDRAWN.
2. Corrected Opinion No. 4276 is issued today in its
place. The corrections are found in the last full paragraph on
page 18 and in the first full paragraph on page 26.
Entered by direction of the court at Anchorage, Alaska
on October 20, 1995.
CLERK OF THE SUPREME COURT
1 See ch. 151, SLA 1978; ch. 52, SLA 1986.
2 In State v. Morry, 836 P.2d 358, 370 (Alaska 1992), we
held that the Boards of Fish and Game "have the discretion, but
are not mandated, to take into consideration the traditional and
customary methods of subsistence takings in their formulation of
subsistence regulations." (Emphasis added.)
3 Under the Alaska Statehood Act, "[t]he Submerged Lands
Act of 1953 [is] applicable to the State of Alaska and the said
State [has] the same rights as do [other] States thereunder."
Pub. L. No. 85-508, ' 6(m) (1958), reprinted in 48 U.S.C.
following ' 5 (1988).
4 The term "lands beneath navigable waters" covers
all lands permanently or periodically covered
by tidal waters up to but not above the line
of mean high tide and seaward to a line three
geographical miles distant from the coast
line of each such State and to the boundary
line of each such State where in any case
such boundary as it existed at the time such
State became a member of the Union, or as
heretofore approved by Congress, extends
seaward (or into the Gulf of Mexico) beyond
three geographical miles.
43 U.S.C. ' 1301(a)(2).
5 The U.S. Supreme Court has referred to the Submerged
Lands Act as a grant of "submerged lands and waters." United
States v. California, 436 U.S. 32, 37 (1978).
6 Certain navigable waters over submerged lands to which
the United States holds title were included in the definition of
"public lands." See 36 C.F.R. 242.3(b); 57 Fed. Reg. 22,940,
7 The area encompassed in the regulation defining
ANILCA's scope is substantial. It includes, to name only the
largest areas, the Arctic Ocean watershed from the Canadian
border to Cape Lisbourne on the Chukchi Sea, and virtually all of
the Aleutian Islands. See 36 C.F.R. ' 242.3(b)(1), (4).
8 State v. Skuse, No. 3KNS-85-1111 Cr. (Alaska Dist. Ct.,
January 17, 1986), was a district court decision similar to the
court of appeals' decision in Eluska. In Skuse, the defendant
was fishing for subsistence in an area where no regulation
permitted subsistence fishing. Slip op. at 6. The court
accepted the defendant's subsistence defense and granted his
motion for prejudgment acquittal. Id. at 7.
9 5 AAC 92.080 provides:
The following methods of taking game are
(1) by shooting from, on, or across a
(2) with the use of any poison, except
with the written consent of the board;
(3) knowingly, or with reason to know,
with the use of a helicopter in any manner,
including transportation to, or from, the
field of any unprocessed game or parts of
game, any hunter or hunting gear, or any
equipment used in the pursuit or retrieval of
game; this paragraph does not apply to
transportation of a hunter, hunting gear, or
game during an emergency rescue operation in
a life-threatening situation;
(4) unless otherwise provided in this
chapter, from a mechanical vehicle, or from a
motor-driven boat or snowmachine unless the
motor has been completely shut off and the
progress from the motor's power has ceased,
except that a motor-driven boat may be used
to take caribou in Units 23 and 26, a
snowmachine may be used to take caribou in
Unit 23, and a motorized vehicle may be used
to take game as described in (10) of this
(5) with the use of an aircraft,
snowmachine, motor-driven boat, or other
motorized vehicle for the purpose of driving,
herding, or molesting game;
(6) with the use or aid of a machine
gun, set gun, or a shotgun larger than 10
(7) with the aid of a pit, fire,
artificial light, radio communication,
artificial salt lick, explosive, barbed
arrow, bomb, smoke, chemical, or a
conventional steel trap with a jaw spread
over nine inches; however, the "conibear"
style trap with a jaw spread of less than 11
inches may be used;
(8) with a snare, except for taking an
unclassified game animal, a furbearer,
grouse, hare, or ptarmigan;
(10) from a motorized land vehicle;
except that in those portions of Units 7 and
15 within the Kenai National Wildlife Refuge,
a motorized land vehicle may be used to take
game by a person with physical disabilities,
as defined in AS 16.05.940, who requires a
wheelchair for mobility, under authority of a
permit issued by the department and in
compliance with Kenai National Wildlife
10 As noted, the regulations challenged in Morry dealt not
with the means of pursuit or capture of game, but with the
handling of animal parts considered trophies. The artificial
light regulation does not suffer from the substantive defect of
the Morry regulations in that it is not a trophy-hunting
regulation which is "manifestly unreasonable" in its application
to subsistence hunting. See id. at 363. Reasonable grounds for
applying the spotlighting ban to subsistence hunting include
safety concerns associated with shots fired at night, preventing
the wrong species from being taken, and making enforcement of bag