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Rutter v. Alaska Board of Fisheries (8/7/98), 963 P 2d 1007


     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) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA


SIGURD RUTTER,                )
                              )    Supreme Court No. S-7729
             Appellant,       )
                              )    Superior Court No.
     v.                       )    1S1-94-169 CI
                              )
STATE OF ALASKA, ALASKA BOARD )    O P I N I O N
OF FISHERIES, ALASKA DEPART-  )
MENT OF FISH AND GAME, and    )
FRANK RUE, COMMISSIONER,      )
DEPARTMENT OF FISH AND GAME,  )
                              )
             Appellees.       )    [No. 5017 - August 7, 1998]
______________________________)


          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Sitka,
                     Larry C. Zervos, Judge.


          Appearances:  Sheila Bacchus, Sitka, for
Appellant.  Stephen A. Daugherty, Assistant Attorney General, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.


          Before:  Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.  


          PER CURIAM.
          


          In 1992 the Alaska Board of Fisheries (Board) allocated
to the sports fishery 17% of the treaty chinook (king) salmon
harvestable in southeast Alaska; the Board allocated 83% to the
commercial troll fishery. [Fn. 1]  See 5 Alaska Administrative Code
(AAC) 46.055(a) (repealed 1994).  This court subsequently upheld
the allocation, finding it neither unreasonable nor arbitrary.  See
Tongass Sport Fishing Ass'n v. State, 866 P.2d 1314, 1319 (Alaska
1994).  In January 1994, after three days of public testimony and
a full day of deliberations, the Board adopted a new regulation, 5
AAC 47.055(a) (am. 5/2/97).  That regulation reallocated from the
commercial troll fishery to the sport fishery -- over a three-year
period -- 3% of the harvestable treaty salmon, thereby giving the
sport fishery 20% and the commercial fishery 80%.  The sport
fishery category includes guided and unguided sport fishing.  See
AS 16.05.940(5), (29).
          Sigurd Rutter, a commercial troll fisherman in Sitka, 
filed suit in June 1994, challenging the newly adopted regulation.
[Fn. 2]  The State filed a motion for summary judgment; Rutter
filed a cross-motion.  On March 21, 1996, Superior Court Judge
Larry C. Zervos issued a decision addressing the opposing motions,
concluding that the reallocation regulation was reasonable and
valid, and granting summary judgment in favor of the State. 
          Rutter appeals.  Although the particulars of Rutter's
arguments differ somewhat from the arguments he raised below, the
core of his complaint remains the same: "This is a little case with
a big issue: . . . how can the State redistribute scarce chinook
resources between commercial and non-commercial groups when the
non-commercial group includes resource users with commercial
interests?" 
          For the reasons stated in Judge Zervos's thorough and
thoughtful summary judgment decision, relevant portions of which we
set out in Appendix A, we affirm the superior court's order
upholding the validity of 5 AAC 47.055(a).  We add the following
with respect to points specifically raised on appeal: 
          1.   We reject Rutter's contention that the superior
court erred in granting summary judgment because genuine issues of
material fact had been raised concerning the Board's failure to
determine "the extent of the commercial interest"of the guided
sport fishery.  Below, Rutter repeatedly acknowledged that there
were no disputed facts for trial and that the case could be
disposed of on summary judgment.  He pointed to no information that
the Board had refused to consider.  Although Rutter mentioned
certain 1994-95 registration statistics that he thought relevant,
there is no indication that these statistics, standing alone, would
have raised genuine issues of material fact.  Rutter made no
specific offer of additional admissible evidence concerning the
extent of the commercial interest of the guided sport fishery.  Our
review of the record discloses no genuine issue of material fact
for trial.  Summary judgment was appropriate under these circum-

stances.  See Trigg v. City of Nome, 929 P.2d 1273, 1274 n.1
(Alaska 1996).
          2.   For similar reasons, we reject Rutter's claim that
the reasonableness of the Board's decision to classify guided sport
fishing as a form of sport fishing rather than as a form of
commercial fishing presented a question of disputed legislative
fact for trial.  No disputed facts bore on this determination. [Fn.
3]
          3.   We find no merit in Rutter's contention that the
Board was required to consider the criteria listed in AS
16.05.251(e) separately as they related to the guided and unguided
sport fisheries.  The Board must consider the criteria listed when
it decides to allocate fish among fisheries.  See Peninsula Mktg.
Ass'n v. State, 817 P.2d 917, 921 (Alaska 1991); 5 AAC 39.205,
75.017 (1996).  The Board "may"allocate the resources "among
personal use, sport, guided sport, and commercial"fisheries.  AS
16.05.251(e).  But it need not; the provision's use of the
permissive word "may,"indicates that the Board has discretion to
treat sport and guided sport fishing as separate categories for
allocation purposes.  Here, after taking a "hard look"at the
subject, the Board decided against separate allocations for sport
fishing, on the one hand, and guided sport fishing, on the other. 
Instead, it elected to treat guided and unguided sport fishing as
a single category and to make a separate allocation to the
commercial trolling fishery.  See 5 AAC 47.055(a), (n).  The Board
fully considered the statutory criteria in relation to the two
categories adopted in the allocation -- sport and commercial; in so
doing, it fully discharged its obligations under AS 16.05.251(e). 
          The judgment entered by the superior court is AFFIRMED.


                            FOOTNOTES


Footnote 1:

     Under the Pacific Salmon Treaty, the Pacific Salmon Commission
determines the maximum number of chinook salmon that may be
harvested in southeast Alaska.  See Tongass Sport Fishing Ass'n v.
State, 866 P.2d 1314, 1315 (Alaska 1994).  The Commission set the
harvest ceiling for all user groups in southeast at 273,000 in 1991
and at 263,000 in 1992.  Alaska currently uses the 1992 ceiling as
its harvest guideline.


Footnote 2:

     Rutter also challenged the validity of 5 AAC 39.270(h)(4)
(defining "downrigger").  On appeal, Rutter has abandoned his
challenge to that regulation. 


Footnote 3:

     To the extent that Rutter suggests that the reasonableness of
the Board's decisions always presents an issue of fact that is
immune from summary judgment, he is incorrect.  The role of the
court in deciding whether the Board's decision was reasonable is
limited to determining whether the Board "[took] a 'hard look' at
salient problems and . . . engage[d] in reasoned decisionmaking." 
Tongass, 866 P.2d at 1319 (citing Gilbert v. State, Dep't of Fish
& Game, 803 P.2d 391, 398 (Alaska 1990)).  "It is not our function
to examine the wisdom of the allocation regulation."  Id.  Under
this standard, when no facts material to the Board's decision are
disputed, the ultimate issue of reasonableness presents a question
of law capable of summary adjudication.  Cf. Holloway v. Pigman,
884 F.2d 365, 366 (8th Cir. 1989) ("The mere existence of a factual
dispute is insufficient alone to bar summary judgment; rather, the
dispute must be outcome determinative under prevailing law.");
Center for Auto Safety v. Bowers, 466 F. Supp. 829, 835 (D.D.C.
1979) (holding that, where sufficient evidence is before an agency,
a court may find a regulation reasonable as a matter of law on
summary judgment).  We decline Rutter's invitation to adopt a more
stringent standard of review in cases involving the allocation of
scarce environmental resources, since Rutter raises this issue for
the first time in his reply brief. 


APPENDIX A [Fn.*]

                 ORDER GRANTING SUMMARY JUDGMENT
          The State of Alaska, Department of Fish and Game ("the
State") moves for summary judgment on all issues raised in Mr.
Rutter's complaint.  Mr. Rutter opposes and cross-moves for
summary judgment.
          . . . .
             III. VALIDITY OF THE REGULATIONS [Fn. 1]
          In deciding the validity of the regulations, this court
must give substantial deference to the actions of the Board.  See
Stepovak-Shumagin Set Net Ass'n v. State, Bd. of Fisheries, 886
P.2d 632, 636 (Alaska 1994); see also State v. Kenaitze Indian
Tribe, 894 P.2d 632, 641 (Alaska 1995).
          [W]here an administrative regulation has been
adopted in accordance with the procedures set forth in the
Administrative Procedure Act, and it appears that the legislature
has intended to commit to the agency discretion as to the
particular matter that forms the subject of the regulation, we will
review the regulation in the following manner: First, we
will ascertain whether the regulation is consistent with and
reasonably necessary to carry out the purposes of the statutory
provisions conferring rule-making authority on the agency.  This
aspect of review insures that the agency has not exceeded the power
delegated by the legislature.  Second, we will determine whether
the regulation is reasonable and not arbitrary.

Stepovak-Shumagin, 886 P.2d at 636-37 (quoting Kelly v. Zamarello,
486 P.2d 906, 911 (Alaska 1971)).  The court must not
substitute its judgment for the Board's determination because
"'highly specialized agency expertise is involved.'"Id. at 637
(quoting Meier v. State, Bd. of Fisheries, 739 P.2d 172, 174
(Alaska 1987)).  The court should not question the wisdom of the
regulations, but rather must "ensure only that the agency has
taken a 'hard look' at the salient problems and has 'genuinely
engaged in reasoned decision making.'"  Id. (quoting Gilbert v.
State Dep't of Fish & Game, 803 P.2d 391, 398 (Alaska 1990)).
          The legislature created the Board "[f]or the purposes of
the conservation and development of the fishery resources of
the state."  AS 16.05.221(a).  The Supreme Court has held that the
Board, in serving the purposes of conservation and
development, is necessarily going to have to make decisions
regarding the utilization of the fishery resources.  See Kenai
Peninsula Fisherman's Coop. Ass'n. v. State, 628 P.2d 897, 903
(Alaska 1981). 
          Thus, in determining the validity of a regulation
adopted by the Board, the court must first determine whether the
regulation is reasonably necessary to conserve and develop the
fisheries resource.  If the regulation is reasonably necessary
for these purposes, then the court must determine whether the
regulation, as adopted, is reasonable and not arbitrary.
                A. The 3% Reallocation Regulation
          The legislature has granted the Board the power to
adopt regulations that it deems advisable for "'regulating
commercial, sport, guided sport, subsistence, and personal use
fishing as needed for the conservation, development, and
utilization of fisheries.'"  Tongass Sport Fishing Ass'n v. State,
866 P.2d 1314, 1318 (Alaska 1994) (quoting AS
16.05.251(a)(12)).  This rule-making power includes the authority
to allocate fishery resources between sport, subsistence, and
commercial users.  See Peninsula Mkg. Ass'n v. State, 817 P.2d
917, 921 (Alaska 1991).  It also includes the power to allocate
resources between users in the same group.  See id. at 920-21.
          In this case, the 3% allocation regulation is an
allocative decision between the sport fishery and the commercial
troll fishery.  Allocative decisions are reasonably necessary to
conserve and develop the resource.  See Meier v. State, Bd. of
Fisheries, 739 P.2d 172, 174-75 (Alaska 1987).  Therefore, the
question presented is whether the 3% reallocation regulation was
reasonable and not arbitrary.
          As already noted, the court's role is not to question
the wisdom of a particular regulation, but rather to ensure that
the Board has taken a "hard look"at the relevant problems and
has actually engaged in reasoned decision making.  Stepovak-
Shumagin, 886 P.2d at 637.  In making allocative decisions,
however, the Board must consider criteria such as the following:
          (1) the history of each personal use, sport,
guided sport, and commercial fishery;
          (2) the number of residents and nonresidents
who have participated in each fishery in the past and the number of
residents and nonresidents who can reasonably be expected to
participate in the future;
          (3) the importance of each fishery for provid-
          
          ing residents the opportunity to obtain
fish for personal and family consumption;
          (4) the availability of alternative fisheries
resources;
          (5) the importance of each fishery to the
economy of the state;
          (6) the importance of each fishery to the
economy of the region and local area in which the fishery is
located;
          (7) the importance of each fishery in
providing recreational opportunities for residents and
nonresidents.

AS 16.05.251(e); see 5 AAC 75.017 (1996) ("Before adopting
regulations that allocate fish among personal use, sport, and
commercial fisheries, the board will, as appropriate to
particular allocation decisions, consider factors such as those
set out in AS 16.05.251(e).").
          In order to evaluate whether the Board's actions in
adopting the 3% reallocation regulation were reasonable and not
arbitrary, the court must briefly discuss the Pacific Salmon Treaty
and the Board's initial decision to allocate king salmon
between the commercial troll and sport fisheries.  The Pacific
Salmon Treaty between the United States and Canada, which took
effect in 1985, limited the number of king salmon that may be
taken by all users in Southeast Alaska.  See Tongass Sport
Fishing Ass'n, 866 P.2d at 1315.  The treaty set the harvest
ceiling of king salmon in Southeast in 1991 at 273,000 and in
1992 at 263,000.  Treaty Between the Government of Canada and the
Government of the United States of America Concerning Pacific
Salmon, Jan. 25, 1985, U.S.-Can., annex 4, ch.3, sec. 1(e),
T.I.A.S.
No. 11091 [hereinafter Pacific Salmon Treaty]; Tongass Sport
Fishing Ass'n, 866 P.2d at 1315.  Subsequent harvest ceilings are
to be set based on the recommendations of the Pacific Salmon
Commission, the implementing body for the Pacific Salmon Treaty. 
Alaska has been using the 1992 ceiling of 263,000 king salmon as
its harvest guideline. [Fn. 2]
          Prior to 1992, the Board did not allocate the treaty
salmon between the commercial troll fishery and the sport fishery
on a percentage basis.  See Tongass Sport Fishing Ass'n, 866 P.2d
at 1316.  Instead, sport fishers were able to harvest treaty
salmon subject only to bag limits and size restrictions.  See id. 
Commercial troll fishers were able to harvest the number of fish
left each year after subtracting from the annual harvest ceiling
the following: (1) 20,000 fish for the commercial net fishermen;
(2) the pre-season projection of the number of fish the sport
fishers would take that year; and (3) the number of fish, if any,
by which the previous year's king harvest by all user groups
exceeded that year's harvest ceiling.  See id. at 1316 n.3.  In
1992, the Board changed this procedure by allocating 17% of the
treaty salmon to the sport fishery and 83% to the commercial
troll fishery, after first subtracting 20,000 fish for the
commercial net fishers.  See id. at 1316.
          In making the 1992 allocation, the Board hoped to
stabilize the commercial troll and sport fisheries.  Some Board
members, however, stressed that they did not want or intend to
prohibit the majority of the public -- those categorized as sport
fishers as opposed to commercial troll fishers -- to be denied
access to the resource, particularly personal use sport fishers.
Additionally, several members of the Board indicated their belief
that the 17% allocation for sport fishing would likely have to be
adjusted in the future because it may not be the right percentage
needed to accommodate both the expectations of commercial troll
fishers and the increasing demand in the sport fishery.
          Various sport fishing associations, charter-boat organi-

zations, and associations of lodge owners brought suit
challenging the 1992 allocation regulation.  See id.  In addition
to ruling that the regulation did not violate the "common use"
[Fn. 3] and "no exclusive right of fishery"[Fn. 4] clauses of
the Alaska Constitution, the Supreme Court ruled that
          the Board did take a hard look at the salient
problems affecting the southeast Treaty [king] harvests and engaged
in reasoned decision- making in reaching its allocation
decision.  There is no evidence that the Board's allocation was
unreasonable or arbitrary.

Id. at 1318-19.

          Neither the sport fishers, nor all commercial troll
fishers, were satisfied with the 1992 allocation.  Eight
different proposals to amend or repeal the 1992 allocation were
submitted to the Board for the 1993/1994 session.  The proposals
submitted by the sport fishery interests ranged from repealing
the 17% allocation so that sport fishers were again able to take
treaty salmon subject only to bag and size limits, to allocating
50% of the treaty salmon to the sport fishery.  Mr. Rutter, as a
commercial troll fisher, submitted a proposal to reduce the sport
fishery allocation to a level consistent with the ten year
average during the years 1980 to 1990.  
          A review of the partial transcript of the Board's
discussion that led to the adoption of the 3% reallocation
regulation [Fn. 5] indicates that many of the Board members
believed that the 17% allocation to the sport fishery needed to
be adjusted, as they had predicted, because it had proven to be
too restrictive on the public's access to the resource. [Fn. 6] 
For example, Board member Edfelt noted that some of the goals of
the 1992 regulation were to allow uninterrupted sport fishing, to
minimize regulatory restrictions on sport fishers not fishing
from charter vessels, and to impose the fewest restrictions on
residents harvesting for personal use.  He concluded that these
goals had not been achieved by the 17% allocation because
immediately after the regulation went into effect in 1992, the
opportunity for residents to harvest king salmon was restricted,
and was more severely restricted in 1993 when, in addition to bag
limitations, the use of downriggers was temporarily prohibited.
[Fn. 7]  He also noted that although the commercial troll
fishers had stability in that they knew what quantity of fish
they could harvest, the sport fishers -- the largest group of
users -- did not have stability because of the impossibility of
forecasting when the in-season restrictions would be put into
place. [Fn. 8] 
          Ultimately, the Board decided that to allow
uninterrupted sport fishing with limited restrictions, at least
until the next Board cycle, a 3% increase in the sport fishery
allocation was needed.  As required by AS 16.05.251(e) and 5 AAC
75.017, the Board considered the statutory allocation criteria in
deciding to reallocate the 3%. [Fn. 9]  Board member Carlisle
specifically listed each criteria, discussed how he applied the
information presented to the Board to those criteria, and
concluded that the criteria favored an increased sport fishing
allocation because, under his analysis, four of the factors
favored the sport fishery, two were neutral, and one favored the
commercial fishery.  Board member Jacobson stated that he had
gone through the allocation criteria along with Mr. Carlisle, but
noted that he did not agree with all of Mr. Carlisle's
conclusions.  In contrast to Mr. Carlisle, he believed that
commercial fishers do not always have other fishery resources
available because of the restrictions placed on a person's ability
to participate in the various commercial fisheries.  The
Chairperson agreed with most of Mr. Carlisle's conclusions, but
noted that his two main concerns were the importance of each
fishery to the economy of the state and the importance of each
fishery to the economy of the region.  He believed that both the
commercial troll fishery and the sport fishery are of equal
economic importance in different ways and in different areas.
          Board member Edfelt adopted Mr. Carlisle's analysis of
the allocation criteria.  He also stated that his view of the
criteria was the same as it was for the Board's deliberations for
the 1992 decision to allocate 83% of the king treaty salmon to
the commercial troll fishery and 17% to the sport fishery. [Fn.
10]
          Because the Supreme Court has already held that the
initial 1992 allocative decision by the Board was valid, there is
firm legal standing for this second decision to adjust the
percentages between the fisheries.  This fact and the fact that
the Board's deliberations on the reallocation issue included
analysis of the statutory factors, provides ample support for the
conclusion that the 3% reallocation regulation is reasonable and
not arbitrary.  The regulation is valid.
          . . . .
           IV. EQUAL PROTECTION UNDER THE UNITED STATES
                     AND ALASKA CONSTITUTIONS

          Amendment XIV, section 1 of the United States
Constitution [Fn. 11] and Article I, section 1 of the Alaska
Constitution [Fn. 12] guarantee people equal protection under
the law.  These clauses, however, require "equal treatment only
for those who are similarly situated."  Shepherd v. State, Dep't of
Fish & Game, 897 P.2d 33, 43, 44 (Alaska 1995); see also City
of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)
("The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall 'deny to any person within its
jurisdiction the equal protection of the laws,' which is
essentially a direction that all persons similarly situated
should be treated alike.").  Commercial fishers and sport fishers
are not similarly situated.  See Tongass Sport Fishing Ass'n, 866
P.2d at 1318.
          Thus, treating Mr. Rutter, as a commercial fisherman,
differently than sport fishers does not implicate equal
protection concerns.  The regulations impose the same gear
limitations and allocation percentages on all commercial troll
fishers.  Further, there is nothing in either the 3% reallocation
regulation or in the downrigger regulation, nor in any other
statute or regulation, that prohibits Mr. Rutter from engaging in
the sport fisheries.  If Mr. Rutter chose to engage in the sport
fisheries, the regulations would apply equally to him.
           V. THE LIMITED ENTRY ACT (AS 16.43.140) and
       ARTICLE VIII, SECTION 16 OF THE ALASKA CONSTITUTION

             A. The Limited Entry Act (AS 16.43.140)

          Mr. Rutter's argument with regard to the Limited Entry
Act is not clear.  He demands the equal protection of AS
16.43.140, but does not indicate how this statute provides him with
equal protection guarantees.  It appears that Mr. Rutter's
argument is that he is denied equal protection of the laws
because charter vessel operators are not required to obtain an
entry permit under AS 16.43.140 while he is required to have a
permit to participate in the commercial troll fishery.
          Alaska Statute 16.43.140 provides, in relevant part:
          [A] person may not operate gear in the
          commercial taking of fishery resources
without a valid entry permit or a valid interim-use permit . . . .

AS 16.43.140(a) (emphasis added).  Thus, the plain language of AS
16.43.140 requires a person to obtain a limited entry permit only
if that person is involved in the "commercial taking"of fishery
resources.  Mr. Rutter argues that the fact that sport fishers on
charter vessels are allowed to use downriggers, the same type of
gear used by commercial fishers, means the charter industry is
engaged in the commercial use of the king salmon resource and
therefore should be subject to the entry restrictions of AS
16.43.140. 
          The legislature has drawn a distinction between
commercial users, sport users, and guided sport users of the
fishery resources.  See AS 16.05.241(a)(6) (granting the Board
the authority to adopt regulations "classifying as commercial
fish, sport fish, guided sport fish, personal use fish,
subsistence fish, or predators or other categories essential for
regulatory purposes"); AS 16.05.251(a)(12) (granting the Board
the authority to adopt regulations "regulating commercial, sport,
guided sport, subsistence, and personal use fishing as needed for
the conservation, development, and utilization of fisheries").  The
legislature has also drawn a clear distinction between the
commercial taking of fish and the sport taking of fish.  Alaska
Statute 16.05.940(5) defines commercial fishing as "the taking .
. . of fish . . . with the intent of disposing of them for profit,
or by sale, barter, trade, or in commercial channels." 
Alaska Statute 16.05.940(29) defines sport fishing as the "taking
of or attempting to take for personal use, and not for sale or
barter, any . . . fish by hook and line held in the hand, or by
hook and line with the line attached to a pole or rod which is
held in the hand or closely attended, or by other means defined
by the Board of Fisheries."[Fn. 13]
          While charter vessel operators may be engaged in a
commercial activity -- that of guiding sport fishers -- they are
not involved in the "commercial taking"of fishery resources
because they are not taking fish with the intent of disposing of
them for profit.  Instead, it is the customers of the charter
vessel operators who are taking the fish and are doing so as
sport fishers -- taking fish for personal use, and not for sale
or barter.  As the law now stands, charter vessel operators
acting as guides for sport fishers are involved in the sport
taking of fish, not in the commercial taking of fish.  Therefore,
the provisions of AS 16.43.140 in specific, and the Limited Entry
Act in general, are not implicated. [Fn. 14]
      B. Article VIII, Section 16 of the Alaska Constitution
          Mr. Rutter argues that the 3% reallocation regulation
violates Article VIII, section 16 of the Alaska Constitution, which
provides:
          No person shall be involuntarily divested of
his right to the use of waters, his interests in lands, or
improvements affecting either, except for a superior beneficial use
or public purpose and then only with just compensation and by
operation of law.

Mr. Rutter argues that by taking away 3% of the commercial troll
fishery harvest of king salmon, he and other commercial troll
fishers are being divested of their right to use the waters
without compensation.
          The Supreme Court has clarified that the phrase "use of
water"in Article VIII, section 16 is coterminous with riparian
rights.  Classen v. State, Dep't of Highways, 621 P.2d 15, 17 n.4
(Alaska 1980).  "Riparian rights"are defined as
          [t]he rights of the owners of land on the
banks of watercourses, relating to the water, its use, ownership of
soil under the stream, accretions, etc.

Black's Law Dictionary 1327 (6th ed. 1990).  Mr. Rutter's claim
here is not based on his ownership of land adjacent to a
watercourse.  That is, Mr. Rutter's claim is not for divestment
of his riparian rights.  Therefore, the 3% reallocation
regulation simply does not implicate Article VIII, section 16.
[Fn. 15]
                    VI. PACIFIC SALMON TREATY
          Mr. Rutter argues that the 3% reallocation regulation
violates Annex IV, chapter 7 of the Pacific Salmon Treaty.  This
section of the treaty provides:
          [w]ith respect to intercepting fisheries not
dealt with elsewhere in this Annex, unless otherwise agreed,
neither Party shall initiate new intercepting fisheries, nor
conduct or redirect fisheries in a manner that intentionally
increases interceptions.

Pacific Salmon Treaty, annex IV, ch. 7 (emphasis added).  The
intercepting of king salmon in Southeast Alaska is dealt with
elsewhere in the Annex:
          [I]n 1991, the all-gear catch in Southeast
Alaska shall not exceed the base ceiling of
263,000 [king] salmon plus 10,000; in 1992, the all-gear catch in
Southeast Alaska shall not exceed 263,000 [king] salmon; these
catches exclude the Alaska hatchery add-on as described in the
letter of transmittal; in 1991 and 1992 Alaska shall open its
general summer troll fishery on July 1; the June fishery shall not
exceed 40,000 [king] salmon (excluding the Alaska hatchery add-on)
taken in a manner similar to 1989 and 1990; and areas of high
[king] abundance shall be closed during [king] non-retention
periods to reduce incidental mortalities. [Fn. 16]

Pacific Salmon Treaty, annex IV, ch. 3 (1)(e).
          Because the Southeast Alaska king intercepting fishery
is dealt with elsewhere in the treaty annex, the general
provisions of chapter 7 do not apply.  Therefore, Mr. Rutter's
argument that the 3% allocation regulation violates this chapter
must fail.
          Further, if properly enforced, the 3% reallocation
regulation would not violate the relevant provisions of chapter
3.  The regulation reallocates a fixed number of salmon between
the commercial troll fishery and the sport fishery of Southeast. 
While this regulation has increased the number of salmon the
sport fishery may take, it has decreased proportionately the
number of salmon the commercial troll fishery may take. 
Therefore, the total number of fish taken should not exceed the
treaty limits.
                         VII. CONCLUSION
          For all the above reasons, the court grants summary
judgment in favor of the State on all of Mr. Rutter's claims.


                      FOOTNOTES (Appendix A)


Footnote *:

     As reprinted in this Appendix, the superior court's summary judgment order has been
redacted to delete extraneous discussion.  The original labeling of the section
headings of the superior court order has been retained, but footnotes and pages have been
renumbered.  The order has also been technically edited in accordance with this court's
Manual of Technical Rules for publication.  


Footnote 1:

     Mr. Rutter does not argue that the regulations were adopted in violation of
the Administrative Procedure Act.  Therefore, this court presumes that, in adopting the
regulations, the Board followed the proper procedure.  See AS 44.62.100 ("The filing of a
certified copy of a regulation . . . raises the rebuttable presumption[] that . . . all
requirements of [the Administrative Procedure Act] and the regulations relative to the
regulation have been complied with."); Gilbert v. State, Dep't of Fish & Game, 803 P.2d
391, 394 (Alaska 1990) ("A regulation . . . is considered procedurally presumptively valid
once a certified copy has been filed.").


Footnote 2:

     The issue of whether Alaska has violated the Pacific Salmon Treaty by
failing to reduce its total king salmon harvest in Southeast below the 263,000 ceiling is
being litigated in the federal courts.  See Confederated Tribes & Bands of the Yakama
Nation v. Baldridge, No. C80-342 (W.D. Wash.).


Footnote 3:

     Wherever occurring in their natural state, fish, wildlife, and waters are
reserved to the people for common use.

Alaska Const. art. VIII, sec. 3.


Footnote 4:

     No exclusive right or special privilege of fishery shall be created or authorized in the
natural waters of the State.  This section does not restrict the power of the State to limit
entry into any fishery for purposes of resource conservation, to prevent economic distress
among fishermen and those dependent upon them for a livelihood and to promote the efficient
development of aquaculture in the State.

Alaska Const. art. VIII, sec. 15.


Footnote 5:

     The Supreme Court has stressed that it is important for the Board to make
an adequate record so that its regulations can be subject to judicial review.  See Alaska
Fish Spotters Ass'n v. State, Dep't of Fish & Game, 838 P.2d 798, 801 (Alaska 1992). 
While the Court has recommended that the Board prepare a decisional document, it has
not imposed such an obligation on the Board.   See Tongass Sport Fishing Ass'n, 866 P.2d
at 1319.  A transcript of the meeting at which a particular regulation is discussed and
adopted is sufficient.  See id.  Further, even in cases that involve a decisional document,
judicial review is not limited to that document; a court may consider other evidence of the
Board's decision making process, including a transcript of the Board's meeting.  See Stepovak-
Shumagin, 886 P.2d at 644-47.


Footnote 6:

     The vote to adopt the 3% reallocation regulation was four in favor, two against, and
one absent.  The two board members who voted against adopting the regulation did so
primarily because they believed reallocation thwarted the goal of stability of the fisheries,
which was the main reason for the Board adopting the 1992 allocation scheme. 


Footnote 7:

     In both 1992 and 1993, ADF&G imposed regulatory restrictions to limit sport harvests
as specified in the [king] management plan.  These restrictions included a one [king] salmon
bag limit, a ban on take by charter operators and crew, and, in 1993, a ban on the use of
downriggers.

Paul Suchanek, Alaska Dep't of Fish & Game, Overview of the Sport Fishery for Chinook
Salmon in Southeast Alaska, 1994 Report to the Alaska Bd. of Fisheries 1. 


Footnote 8:

     Board member Carlisle also noted that the goals of uninterrupted access and
limited restrictions for recreational fishers had not been achieved as evidenced by the fact
that restrictions had been imposed on sport fishers but not on commercial fishers.  He
indicated, however, that failure to satisfy these goals was not alone sufficient to indicate
that an adjustment to the allocation was necessary.  Instead, he analyzed the historical
catches of the fisheries, considered the improved efficiency and methodology of taking
fish, and noted that he believed the major problem was commercial prices which the Board
could not control, rather than the increased charter industry. Ultimately, he concluded that,
all things considered, reallocation was appropriate. 


Footnote 9:

     In his complaint, Mr. Rutter alleges that "[t]he Board failed to consider all
relevant criteria."  In making his argument in his cross motion for summary judgment,
however, Mr. Rutter does not argue that the Board failed to consider the statutory criteria. 
Rather, he argues that the Board failed to consider certain information relevant to those
criteria and that it failed to consider certain nonstatutory factors.  While this may be true,
the Board is not obligated to consider every possible factor.  See Gilbert v. State, Dep't of
Fish & Game, 803 P.2d 391, 398 (Alaska 1990) ("The fact that every possible factor may
not have been debated does not vitiate the reasonableness of the regulation as a whole.").


Footnote 10:

     This fact is particularly important because, as already noted, the Supreme
Court has ruled that "[t]here is no evidence that the Board's [1992] allocation was
unreasonable or arbitrary."  Tongass Sport Fishing Ass'n, 866 P.2d at 1319.


Footnote 11:

     "No state shall . . . deny to any person within its jurisdiction the equal protection of the
laws."  U.S. Const. amend XIV, sec. 1.


Footnote 12:

     "[A]ll persons are equal and entitled to equal rights, opportunities, and protection under
the law."  Alaska Const. art. I, sec. 1.


Footnote 13:

     The fact that the legislature specifically provided that the Board could define other
means of engaging in sport fishing refutes Mr. Rutter's argument that use of downriggers
somehow brings sport fishing under the auspices of the Limited Entry Act.  As noted above,
the key inquiry for the Limited Entry act is whether a person is involved in the
"commercial taking"of fish, not what gear is being used in the taking.


Footnote 14:

     To the extent that Mr. Rutter's argument deals with the differential
requirements for sport fishers and commercial fishers, it has already been addressed
above.  Differential treatment of sport fishers and commercial fishers does not raise equal
protection concerns because the groups are not similarly situated.


Footnote 15:

     Even assuming the court should consider Mr. Rutter's argument that the regulation is
a divestment of his water rights, his argument fails.  Mr. Rutter has not been divested of his
right to use the water; he may still use the water for the purpose of commercial fishing.  See
Classen v. State, Dep't of Highways, 621 P.2d 15, 17 (Alaska 1980) (holding that a person
has not been divested of his riparian rights if he is still able to use the water for the purpose
he intended).


Footnote 16:

     The treaty uses "chinook"instead of "king."