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Krohn v. Dep't. of Fish and Game (5/30/97), 938 P 2d 1019
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, telephone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
EDWARD N. KROHN, )
) Supreme Court No. S-7343
) Superior Court No.
v. ) 3KN-94-730 CI
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF FISH AND GAME, COMMISSIONER)
CARL ROSIER, ) [No. 4825 - May 30, 1997]
Appeal from the Superior Court of the State of Alaska, Third Judicial
M. Francis Neville, Judge.
Appearances: Arthur S. Robinson, Robinson, Beiswenger & Ehrhardt,
Soldotna, for Appellant. Bonnie M. Harris, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellees.
Before: Compton, Chief Justice, Rabinowitz, Matthews, and Eastaugh,
Justices. [Fabe, Justice, not participating.]
Edward Krohn challenges the validity of emergency and permanent
subsistence regulations adopted in 1994 by the Board of Fisheries, the Board of
Game, and the Commissioner of the Department of Fish and Game. The superior
court dismissed his claims on summary judgment. Because the issues Krohn would
raise are moot, we affirm.
2. FACTS AND PROCEEDINGS
In 1992 the Alaska legislature enacted a new subsistence law, AS
16.05.258, directing the Boards of Fisheries and Game (Boards) to designate
nonsubsistence areas, i.e., areas in which subsistence hunting and fishing would
not be given any priority over other uses. The Boards designated five such
areas. The constitutionality of AS 16.05.258 was challenged in Kenaitze Indian
Tribe v. State of Alaska, No. 3AN-91-4569 CI. The superior court held the
"nonsubsistence areas"aspect of AS 16.05.258 to be unconstitutional, granted
summary judgment to the Kenaitze plaintiffs in that action, and on November 26,
1993, remanded to the Boards to adopt subsistence regulations. The State
appealed to this court, and unsuccessfully moved the superior court for a stay
of judgment pending appeal. On February 11, 1994, the State moved this court
for a stay of judgment pending appeal. A single justice granted the stay on
March 8. The full court vacated that stay on April 11.
On April 14 the Joint Board of Fisheries and Game (Joint Board) issued a
notice that special public meetings would be held on April 28 to consider action
on the nonsubsistence regulations in response to this court's vacation of the
stay of the superior court's judgment. At the April 28 meeting, the Joint Board
made a written finding of emergency and adopted an emergency regulation amending
5 Alaska Administrative Code (AAC) 99.015,1 the regulation establishing
nonsubsistence areas. The amendment of 5 AAC 99.015 temporarily repealed the
creation of the nonsubsistence areas and permitted the Fisheries Board and the
Game Board to comply with the November 26, 1993, superior court remand order,
which required the Boards to adopt appropriate subsistence regulations in the
nonsubsistence areas. The Joint Board also published notice of the adoption of
the emergency regulation pursuant to AS 44.62.250. Because the emergency
amendment could remain effective for only 120 days absent Joint Board action to
make it permanent, the published notice stated the Joint Board's intention to
make the amendment permanent and provided for a required public comment period.2
Immediately following the meeting of the Joint Board, the Board of
Fisheries met to discuss the need for regulations to govern subsistence fishing
in the invalidated nonsubsistence areas. It decided that both emergency and
permanent regulations were needed to facilitate subsistence uses in these areas.
Because it would not hold its next regular meeting until the fall of 1994, the
Board voted to use AS 16.05.270 to delegate to the Commissioner of the
Department of Fish and Game the authority to adopt the necessary regulations.
The proposed regulations were those in effect prior to the 1992 enactment of AS
16.05.258, revised as necessary to make the regulations comply with the valid
portions of AS 16.05.258. On May 6 the Commissioner adopted emergency fishing
regulations. On May 9 the Commissioner issued notice of this adoption and his
intention to make the emergency regulations permanent. The notice also stated
that written comments on the proposed action could be submitted to the
Department of Fish and Game up to June 15. On July 13 the Commissioner issued a
certificate of compliance with AS 44.62.260, certifying that the requirements
had been met to adopt the emergency regulations as permanent regulations. On
July 14 after review by the Department of Law, the Lieutenant Governor filed
these regulations in compliance with AS 44.62.080.
The Board of Game also met after the Joint Board's April 28 meeting and
decided to delegate to the Commissioner authority to adopt subsistence hunting
regulations for the invalidated nonsubsistence areas. Unlike the Board of
Fisheries, the Board of Game determined that it was unnecessary to resort to its
emergency regulatory powers. The Board of Game issued a notice of the proposal
to make a delegation to the Commissioner. The notice permitted written public
comments until June 1. On July 22 the Commissioner adopted subsistence hunting
regulations. On July 26 the Lieutenant Governor filed these regulations in
accordance with AS 44.62.080.
In the meantime, Krohn commenced the present litigation by filing suit in
early July 1994 challenging the validity of the regulations adopted in response
to the superior court remand order in Kenaitze v. State. Krohn sought
declaratory and injunctive relief. The superior court denied Krohn's motion for
declaratory judgment and concluded that the findings of emergency satisfied AS
44.62.250. In February 1995 the superior court granted the State's cross-motion
for summary judgment.
In May 1995 we reversed the November 26, 1993, judgment entered by the
superior court in Kenaitze v. State and held that the creation of nonsubsistence
areas pursuant to AS 16.05.258(c) did not violate the constitution. State v.
Kenaitze Indian Tribe, 894 P.2d 632, 642 (Alaska 1995).3 After we issued this
decision, the permanent subsistence hunting and fishing regulations adopted by
the Commissioner were repealed.
On October 2, 1995, the superior court entered judgment for the State.
1. Mootness of Issues Concerning Validity of Regulations
As Krohn candidly concedes, the issues he asks us to consider are
technically moot because the challenged regulations have been repealed. "Since
the regulations under challenge are no longer in effect in the non-subsistence
areas there is no live controversy for this court to decide." Krohn nonetheless
argues that the issues he raises come within the public interest exception to
the mootness doctrine. He asserts that "[t]he need for judicial construction of
AS 16.05.270, AS 16.05.258 and the public notice and comment provisions of the
[Administrative Procedures Act] excepts this case from the mootness doctrine."
He argues that the issues of the scope of the delegation power, identification
of the circumstances necessary to justify the implementation of emergency
regulatory powers, and the public notice and comment requirements of the
Administrative Procedures Act (APA) are capable of repetition and, due to the
short life span of emergency regulations, would repeatedly circumvent review
under the mootness doctrine. He also argues that these issues are matters of
important public interest.
We recently summarized the public interest exception to the mootness
The public interest exception requires the consideration of three main
factors: (1) whether the disputed issues are capable of repetition, (2) whether
the mootness doctrine, if applied, may cause review of the issues to be
repeatedly circumvented, and (3) whether the issues presented are so important
to the public interest as to justify overriding the mootness doctrine. None of
these factors is dispositive; each is an aspect of the question of whether the
public interest dictates that a court review a moot issue. Ultimately the
determination of whether to review a moot question is left to the discretion of
Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191, 1196 (Alaska
1995) (citations omitted); see also O'Callaghan v. State, 920 P.2d 1387, 1389
(Alaska 1996) (declining to decide moot issues).
The State argues that the public interest exception should not be applied
because the factual and legal issues are inextricably dependent upon the
particular factual and procedural circumstances that existed at the time of the
adoption of the subsistence regulations and therefore are not capable of
repetition. We agree. We also agree that the issues will not evade review,
given that existing regulations adopted through delegations to the Commissioner
are "[a]live for review of the delegation and procedural adoption questions
under the APA." Further, although emergency regulations necessarily have a
limited life span, their validity can be reviewed in a live controversy when
someone is charged with violating them.
The State also argues that no important public interests are served by the
review of the repealed 1994 regulations. The issues Krohn asks us to consider
raise potentially important questions. Nonetheless, we conclude that the
questions he poses are best decided in a live controversy, given the fact-
specific context underlying these particular delegations and this exercise of
emergency regulatory powers.
2. Mootness of Open Meetings Act Issues
Krohn asserts that the permanent regulations are invalid because the
Commissioner failed to comply with the Open Meetings Act (OMA), codified at AS
44.62.310-.312. Krohn argues that it is the intent of the OMA that the Boards'
"actions . . . be taken openly and that their deliberations be conducted
openly." Krohn concludes that the Commissioner, authorized to act on behalf of
the Boards, "must transact the Boards' public business in an open public meeting
where every step of the deliberative and decision making process is open to
public observation and scrutiny."
The State argues that the issue has been mooted by amendments to the OMA,
and that under both the prior and current OMA, the Boards, or the Commissioner
acting on behalf of the Boards, are not required to convene a meeting before
adopting regulations. The State relies on OMA amendments making the Act
applicable to "all meetings of a government body"and omitting agencies from the
definition of "government body." Therefore, the State argues, "[t]here is no
valid purpose to be served by the Court now interpreting the terms of the former
provisions, when the current Act exempts the Commissioner's action." The State
asserts that under either version of the OMA, governmental bodies are not
required to hold meetings, but only required to hold open to the public any
meetings that are convened. Finally, the State argues the OMA "is clearly
directed at collective decision-making processes, rather than to the internal
decision-making process that occurs when the agency head, one person,
deliberates. A public official who has authority to deliberate alone does not
have to do so in public." In support, the State points to the current OMA's
general definition of "meeting"as a gathering of more than three members of a
governmental body for the purpose of considering a matter upon which the body is
empowered to act. AS 44.62.310(h)(2)(A).
The OMA is codified at AS 44.62.310-.312 and was amended effective June 3,
1994. Under both the prior and current versions of the OMA, all meetings of
specified governmental bodies must be open to the public except as otherwise
provided by the Act.4 The amendments included, inter alia, a definition of
"meeting." In relevant part, the current OMA defines meeting as
a gathering of members of a governmental body when more than three members
or a majority of the members, whichever is less, are present, a matter upon
which the governmental body is empowered to act is considered by the members
collectively, and the governmental body has the authority to establish policies
or make decisions for a public entity.
The individual actions of the Commissioner challenged by Krohn would not
come within the current OMA. Repeal of the regulations therefore moots the
issues Krohn raises. Whether the OMA before its amendment required the
Commissioner to hold meetings when adopting regulations on behalf of the Boards
is a question not capable of repetition. Because review of this moot issue
would serve no important public interest, we decline to consider it under the
public interest exception to the mootness doctrine.
1 AS 44.62.250 provides agencies with emergency regulatory
2 AS 44.62.260 limits the effective period of emergency
regulations to 120 days unless certain steps are taken. The notice published by
the Joint Board stated:
Notice is also given that the Joint Board of Fisheries and Game intends to
make this regulation permanent under AS 44.62.260, and any person interested may
present written statements or arguments relevant to that proposed action by
writing to Alaska Department of Fish and Game, Boards Support Section, Box
25526, Juneau, AK 99802, so they are received no later than June 1, 1994.
On June 10 the Deputy Commissioner issued a certification of compliance
with AS 44.62.260, certifying that the statutory requirements had been met to
make the emergency regulation a permanent regulation. After the Department of
Law reviewed the regulation, the Lieutenant Governor filed the regulation on
July 6 in accordance with AS 44.62.080.
3 The court held that the domicile proximity requirement of AS
16.05.258(b)(4)(B)(ii) was unconstitutional, but held that this subsection was
severable and that the creation of nonsubsistence areas was constitutional under
the statute as altered by the court's decision. State v. Kenaitze Indian Tribe,
894 P.2d 632, 642 (Alaska 1995).
4 In relevant part, the former version of the OMA stated:
All meetings of a legislative body, of a board of regents, or of an
administrative body, board, commission, committee, subcommittee, authority,
council, agency, or other organization, including subordinate units of the above
groups, of the state or any of its political subdivisions, including but not
limited to municipalities, boroughs, school boards, and all other boards,
agencies, assemblies, councils, departments, divisions, bureaus, commissions, or
organizations, advisory or otherwise, of the state or local government supported
in whole or in part by public money or authorized to spend public money, are
open to the public except as otherwise provided by this section.
Former AS 44.62.310(a).
The current version of the Act, in relevant part, states:
All meetings of a governmental body of a public entity of the state are
open to the public except as otherwise provided by this section or another
provision of law.
AS 44.62.310(a), as amended by ch. 69 ?? 2-8, SLA 1994. The current OMA
defines "governmental body"as
an assembly, council, board, commission, committee, or other similar body
of a public entity with the authority to establish policies or make decisions
for the public entity or with the authority to advise or make recommendations to
the public entity; "governmental body"includes the members of a subcommittee or
other subordinate unit of a governmental body if the subordinate unit consists
of two or more members.