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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Native Village of Elim v. State of Alaska (10/15/99) sp-5192

Native Village of Elim v. State of Alaska (10/15/99) sp-5192

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


	NATIVE VILLAGE OF ELIM, NOME	)
	ESKIMO COMMUNITY, and 		)	Supreme Court No. S-8135
KAWERAK, INC.,				)
						)	Superior Court No.	
				Appellants,	)	2NO-92-80 CI
						)	
		v.				)	
						)
	STATE OF ALASKA and FRANK	)	O P I N I O N
	RUE, in his official capacity	)	
	as Commissioner of Fish		)	[No. 5192 - October 15, 1999]
and Game,	and PENINSULA		)	
	MARKETING ASSOCIATION,		)		
						)
				Appellees.	)
                                    )


Appeal from the Superior Court of the State of 
Alaska, Second Judicial District, Nome,
	Richard H. Erlich, Judge.


Appearances:  Heather R. Kendall-Miller, 
Native American Rights Fund, Anchorage, 
William E. Caldwell, Alaska Legal Services 
Corporation, Fairbanks, and John Sky Starkey, 
Bethel, for Appellants.  Lance B. Nelson, 
Assistant Attorney General, Anchorage, and 
Bruce M. Botelho, Attorney General, Juneau, 
for Appellees State of Alaska and Frank Rue. 
Michael A.D. Stanley, Juneau, and Marc D. 
Slonim, Ziontz, Chestnut, Varnell, Berley & 
Slonim, Seattle, Washington, for Appellee 
Peninsula Marketing Association.


Before:  Matthews, Chief Justice, Eastaugh, 
Fabe, and Bryner, Justices. [Carpeneti, 
Justice, not participating.]


BRYNER, Justice.



The Native Village of Elim appeals a grant of summary 
judgment in favor of the Alaska Board of Fisheries and Peninsula 
Marketing Association.  Elim argues that the Board violated its 
duties under the sustained yield clause of the Alaska constitution 
by failing to identify a specific yield of salmon to be sustained. 
 Elim also argues that the Board has violated its duty under the 
state subsistence law to identify chum salmon in individual 
communities of Norton Sound as separate subsistence stocks and to 
apply the subsistence preference throughout the stocks' migratory 
range.  Finally, Elim argues that the Board's mixed stock policy is 
invalid.  These arguments implicate the scope of the Board's 
discretion in its role as manager of Alaska's fisheries.  We 
conclude that the Board acted within the considerable discretion 
afforded it by the sustained yield clause and the subsistence law, 
and that the mixed stock policy is valid.  Consequently, we affirm 
the superior court's order.
I.	FACTS AND PROCEEDINGS

The False Pass fishery commercially harvests salmon that 
pass through the False Pass area of the South Alaska Peninsula and 
the Aleutian Islands in June.  Because the False Pass fishery 
harvests various stocks in coastal waters before they have 
segregated by river of origin, it is classified as a "mixed stock,"
or "interception"fishery.1   Although the False Pass fishery 
primarily targets sockeye salmon, the harvest involves an 
incidental catch of chum salmon that are migrating through the same 
area.  Chum salmon is a subsistence resource for the Native Village 
of Elim and other communities in Norton Sound, an area several 
hundred miles north of the False Pass fishery.  The Native Village 
of Elim, the Nome Eskimo Community, and Kawerak, Inc. (collectively 
"Elim") contend that many of the chum intercepted in the False Pass 
fishery are bound for Norton Sound.  The Alaska Board of Fisheries 
and the Peninsula Marketing Association2  (PMA) dispute Elim's 
characterization of the effect of the incidental chum harvest in 
the False Pass fishery on the chum returns in Norton Sound.  This 
case represents the third time that this court has considered 
aspects of the decades-long conflict between these northern 
subsistence interests and southern commercial interests.3 

Since 1975 the Board of Fisheries has managed the False 
Pass fishery under a plan that allots a specific percentage of the 
projected northern catch of sockeye to the fishery.  Following 
large incidental harvests of chum salmon in 1982 and 1983, the 
Board imposed "chum caps"directing the Alaska Department of Fish 
and Game to close the False Pass fishery whenever the incidental 
take of chum salmon reached the level set by the Board, even if the 
fishery had not yet harvested its full sockeye allotment.4   In the 
decades before and after the Board adopted these caps, the number 
of chum salmon returning to northern Norton Sound dramatically 
decreased.  In response to this decline, the Board imposed various 
regulatory measures in Norton Sound, including closing local 
commercial and sport fisheries and severely restricting subsistence 
fisheries.
In 1992 Elim sued the Board, alleging that the False Pass 
fishery is the cause of the chum salmon decline.  Elim argued that 
Alaska's subsistence law requires the Board to restrict or 
eliminate the False Pass fishery in order to preserve subsistence 
use of chum in Norton Sound.  PMA intervened on the Board's behalf. 
The superior court denied Elim's request for a preliminary 
injunction.  In October 1992 the court remanded to the Board after 
the Alaska legislature amended the subsistence law and enacted a 
new law on mixed-stock fisheries. 

Minimal northern chum returns in 1993 spawned a series of 
legal and political battles between Elim, the Board, and PMA.5   
Elim amended its 1992 complaint to include claims under the 
sustained yield clause of the Alaska constitution and the mixed 
stock policy law.6   Elim wanted the Board to adopt a lower chum cap 
but the Board declined to do so.7   Consequently, in January 1995 
Elim moved for partial summary judgment in the superior court on 
its claim that the Board had failed to meet its legal obligations 
under the 1992 remand order.  The Board and PMA filed cross-motions 
for summary judgment.  The superior court granted Elim's motion in 
part.  Retaining jurisdiction, the court remanded to the Board for 
further findings justifying its actions using either a 
scientific/rational approach or a historical analysis.  
After this second remand, the Board reviewed its 
management plan for the False Pass fishery.  The Board chose not to 
reduce the chum cap, but directed the Department of Fish and Game 
to manage the False Pass fishery under sustained yield principles. 
The Board also delayed the fishery's opening day, eliminated the 
chum "trigger"so that the chum protections would be implemented 
from the beginning of the season, and provided that the fishery 
would close during the last few days of June if the sockeye to chum 
ratio was less than 2:1 during a specified time period.  The Board 
continued to restrict commercial, sport, and subsistence fishing in 
Norton Sound.  In 1997, after reviewing these actions, the superior 
court granted summary judgment for the Board and PMA.  Elim 
appeals.  

II.	DISCUSSION

A.	The Sustained Yield Clause of the Alaska Constitution

1.	Standard of review    

We review a lower court's decision to grant summary 
judgment de novo.8   When we interpret the Alaska constitution and 
pure issues of law, we substitute our judgment for that of the 
Board.9   We interpret the constitution and Alaska law according to 
reason, practicality, and common sense, taking into account the 
plain meaning and purpose of the law as well as the intent of the 
drafters.10    
When we determine whether the Board properly applied the 
law to a particular set of facts, we review the Board's action for 
reasonableness.11   Under this standard, we "merely determine[] 
whether the agency's determination is supported by the facts and is 
reasonably based in law."12   This court will not substitute its 
judgment for the Board's or alter the Board's policy choice when 
the Board's decision is based on its expertise.13 

2.	The sustained yield clause is a broad principle of 
management that does not require the Board to 
determine a numerical yield for fisheries.

The sustained yield clause of the Alaska constitution 
provides:
Fish, forests, wildlife, grasslands, and all 
other replenishable resources belonging to the 
State shall be utilized, developed, and 
maintained on the sustained yield principle, 
subject to preferences among beneficial 
uses.[14]

Elim contends that the Board failed to properly apply the 
sustained yield clause in managing the False Pass fishery, arguing 
that the sustained yield clause requires the Board to take three 
distinct actions: first, identify the level of yield to be 
sustained for each fish stock or population; second, identify 
management principles necessary to sustain those levels of yield; 
and third, consciously apply those principles "insofar as 
practicable." The Board responds that the sustained yield clause 
does not require a mathematically precise determination of 
sustained yield.  In the Board's view, its management plan for the 
False Pass fishery, 5 Alaska Administrative Code (AAC) 09.365, 
properly incorporates sustained yield principles.15 









We agree with the Board that the sustained yield clause 
does not require it to determine a specific level of yield for each 
fish stock.  The plain language of the provision requires resource 
managers to apply sustained yield principles; it does not mandate 
the use of a predetermined formula, quantitative or qualitative. 
 As a practical matter, the record suggests that to require the 
Board to devise such a formula would consume an amount of time, 
money, and energy wholly disproportionate to potential benefits. 
 Moreover, the record supports the Board's contention that the 
exercise would be a counterproductive use of resources and would 
limit the in-season flexibility that fisheries management requires. 
We acknowledge that the framers of Alaska's constitution 
intended the sustained yield clause to play a meaningful role in 
resource management.16   But at the same time, they believed that 
calculating a specific numerical yield for fisheries would be 
impossible.  The framers underscored this belief in the glossary 
that they prepared for use during the constitutional convention, 
 which includes the following discussion of the sustained yield 
principle:

As to forests, timber volume, rate of growth, 
and acreage of timber type can be determined 
with some degree of accuracy.  For fish, for 
wildlife, and for some other replenishable 
resources such as huckleberries, as an 
example, it is difficult or even impossible to 
measure accurately the factors by which a 
calculated sustained yield could be 
determined.  Yet the term "sustained yield 
principle"is used in connection with 
management of such resources.  When so used it 
denotes conscious application insofar as 
practicable of principles of management 
intended to sustain the yield of the resource 
being managed.  That broad meaning is the 
meaning of the term as used in the Article.[17]

Elim argues for rigid enforcement of this passage: 
resource managers must calculate a precise yield to be sustained 
where such a calculation is "practicable." But Elim reads this 
passage too literally.  The glossary is a useful tool for 
determining the framers' intent.  Yet when read in the context of 
the framers' discussions of resource management, the phrase 
"insofar as practicable"cannot fairly be construed to support the 
kind of mechanical application of the sustained yield principle 
that Elim proposes.  To the contrary, the primary emphasis of the 
framers' discussions and the glossary's definition of sustained 
yield is on the flexibility of the sustained yield requirement and 
its status as a guiding principle rather than a concrete, 
predefined process. 


The record supports the Board's contention that the 
nature of the fishery resource in this case precludes a 
mathematically precise calculation of sustained yield.  According 
to the record, much scientific uncertainty exists in fisheries 
management.  Moreover, as the Board argues, no scientific study has 
shown that the False Pass fishery has any significant impact on the 
subsistence fishery in Norton Sound.  Even if related, the two 
fisheries -- one near the Alaska Peninsula and the other in Norton 
Sound -- are separated by hundreds of miles of open ocean and 
international waters.  The salmon in these waters are subject to 
numerous pressures, any one of which could account for a population 
decrease in a given year.18   A short and incomplete list of these 
factors includes weather, natural predators, competition with other 
fish, international fishing efforts, water pollution, and improved 
efficiency of fleets and fishing methods.  Moreover, several 
different species of salmon travel through the False Pass fishery, 
thus creating a "mixed stock"that increases the challenges of 
management.  The record also shows that the salmon operate on a 
fluctuating cycle that makes estimating returns from year to year 
difficult even under the best conditions.  Elim concedes that the 
Board "did not have the detailed scientific data necessary to 
calculate a maximum sustainable level of yield for the[] chum 
stocks with mathematical precision." Given these limitations, the 
Board reasonably concluded that it need not calculate a precise 
numerical yield of salmon to be sustained, but need only apply 
principles intended to sustain yield. 

Here the record supports the conclusion that the False 
Pass fishery management plan applies the sustained yield principle 
"insofar as practical." In the management plan, the Board adopted 
seven principles intended to sustain yield.  These principles guide 
the Board's decision-making with respect to the False Pass 
fishery.19   The plan also contains specific statements setting forth 
the Board's intent to diminish the interception of salmon and, 
specifically, to disallow significant increases in the interception 
of chum salmon.20   And all evidence indicates that the Board relied 
on a rational approach to developing and implementing its 
management goals.  The Board commissioned studies and reviewed 
others to determine the health of the fisheries.  It also adopted 
a number of concrete measures designed to sustain the salmon runs 
when evidence indicated that they were in decline: closing and/or 
severely restricting the commercial, sport, and subsistence 
fisheries; modifying the fishing season; and imposing chum caps, a 
permit system, and restrictive gear requirements.  In its 1996 
review of these measures and scientific studies, the Board 
concluded that "further reductions in the June area M fishery would 
not alleviate the remaining conservation concerns for [the 
specific] rivers."     
The Board must balance economic, ecological, cultural, 
international, and other policy concerns when it makes decisions 
about Alaska's fisheries.  It must accommodate all of these 
legitimate interests in the face of substantial scientific 
uncertainty.  Moreover, it is the Board's role to reach this 
accommodation.  Courts are singularly ill-equipped to make natural 
resource management decisions.  Consequently, we do not substitute 
our judgment for that of the Board's.21   Our review of the record 
does not persuade us that the Board has abused its considerable 
discretion in developing a sustained yield policy for the False 
Pass fishery as promulgated in the Board's regulation, 5 AAC 
09.365.  In the absence of evidence that the Board reached its 
conclusions arbitrarily, we must defer to the Board's decision.
B.	The Subsistence Law Issues


Alaska Statute 16.05.258 ("the subsistence law") requires 
the Board to identify fish stocks that Alaskans traditionally use 
for subsistence and then implement measures to protect those stocks 
from overharvesting and other threats.22   Pursuant to this statute, 
the Board promulgated 5 AAC 01.186, which identified the 
subsistence resource in Norton Sound as "salmon, and all finfish 
other than salmon [except certain herring] in the Norton Sound-Port 
Clarence Area."23   

According to Elim, this regulation's shortcomings are 
threefold.  First, Elim argues that its geographic focus is too 
broad: the regulation identifies all of Norton Sound as the 
subsistence area, whereas Elim claims that the legally relevant 
areas are separately the Nome and Moses Point subdistricts.  
Second, Elim challenges the Board's decision to consolidate the 
subsistence resource into one group -- salmon -- instead of 
recognizing chum salmon within each subdistrict as a separate 
subsistence resource.  Third, Elim argues that the Board has a duty 
to apply the subsistence preference throughout the migratory range 
of a fish stock that it has identified as a subsistence resource.
This court reviews the Board's interpretation of its own 
regulation under the reasonable basis standard.24   To the extent 
that this court's review requires it to determine the meaning of 
the subsistence law, AS 16.05.258, this court exercises independent 
judgment.25 
1.	Geographic scope


Under the subsistence law, the Board makes subsistence 
determinations by studying the socio-economic characteristics of an 
"area or community"26  within which the Board proposes to regulate 
subsistence use.  The term "area or community"is broad enough to 
encompass several subdistricts grouped together.  The subsistence 
law leaves the determination of which geographic boundaries 
constitute a subsistence area or community to the discretion of the 
Board.
Our interpretation of the "area or community"standard is 
supported by the state attorney general, who commented in a 1992 
opinion that the subsistence law allowed the Board considerable 
discretion in fixing a geographical boundary.27   The attorney 
general maintained that the Board's discretion was limited by two 
principles: first, the boundaries that the Board ultimately adopts 
must be reasonably related to the twelve criteria; second, the 
boundaries must be consistent with the legislature's purpose to 
provide a preference for subsistence uses.28 
We agree with this statement of the Board's duties, and 
conclude that the Board fulfilled these duties here.  The 
geographical grouping in Norton Sound conforms to administrative 
subsistence management areas.  The same units are used for 
commercial and sport fishing management.  In fact, the subsistence 
area used to be much larger, but the Board divided it in 1993. 

To illustrate why the Board properly has discretion with 
respect to geographical boundaries, we note that some concerns 
support the identification of a larger area as opposed to a smaller 
area as the relevant subsistence base.  For example, commenting on 
the 1986 subsistence law, Senate staff noted that "[a]reas . . . 
should be large enough to include both where a particular stock or 
population is normally taken and where it is normally used . . . 
 the boundaries of areas should not pose a barrier to village 
residents who traditionally travel to a fish camp some distance 
from the village."29   The Board must have the discretion to draw 
boundaries that are appropriate for a given set of circumstances. 
 Given that the Board could reasonably draw the subsistence 
boundaries in various places, we find that the Board's decision, 
based on practical considerations and administrative expertise, 
reflects a reasoned choice.
2.	"Salmon"versus "chum salmon" 

The subsistence law requires the Board to identify "fish 
stocks . . . or portions of stocks or populations, that are 
customarily and traditionally taken or used for subsistence."30   The 
legislature defined "fish stock"as "a species, subspecies, 
geographic grouping or other category of fish manageable as a 
unit."31   Under this definition, manageability is the key element 
 in the classification of a category of fish as a "stock." In 
applying the subsistence law in Norton Sound, the Board identified 
the subsistence resource as simply "salmon."32   Elim argues that the 
subsistence law requires the Board to separate chum salmon from 
other types of salmon because chum salmon are "manageable as a 
unit"in Norton Sound.
We give the Board's identification of fish stocks under 
 the subsistence law considerable deference for two reasons.  
First, identifying a "fish stock"requires fisheries knowledge and 
experience and thus falls within the Board's expertise.  Second, 
the subsistence law defines "fish stocks"broadly, allowing the 
Board to identify any category of fish "manageable as a unit"as a 
"stock."33   This broad definition provides the Board with the 
flexibility it needs to accommodate the biological and ecological 
concerns that accompany multi-species fisheries management.  This 
flexibility is even more important where, as here, management 
issues are clouded by scientific uncertainty. 

Of course, the Board's discretion is not unlimited.  The 
Board's ultimate decisions must be reasonably related to the 
purposes of the subsistence law; in other words, the Board may not 
manipulate the identification of a "stock"-- whether because that 
"stock"is not "manageable as a unit"or otherwise -- simply to 
achieve a predetermined outcome.  While the Board may and should 
weigh a variety of factors in making stock identifications -- 
including practical factors such as administrative resources as 
well as scientific, cultural, economic, and ecological variables -- 
the Board's primary goal is to ensure that "subsistence uses of 
Alaska's fish and game resources are given the highest preference, 
in order to accommodate and perpetuate those uses."34   
As a general rule, the Board should analyze individual 
fish stocks for "customary and traditional"subsistence use.35   In 
some circumstances, however, it may be appropriate for the Board to 
group stocks together in applying the subsistence preference.  We 
review the record to determine whether the Board's decision to 
group stocks together here was based on careful consideration of 
relevant facts, and thus is reasonable.
Here, the Board determined that it was appropriate to 
group salmon stocks together because subsistence users themselves 
"customarily and traditionally"take the species interchangeably. 

In discussing the standard for salmon in Norton Sound, Board member 
Lyons noted that the all-salmon approach "acknowledges that [Norton 
Sound] subsistence users will and do harvest whatever is available 
to them to meet their needs." Lyons and Board Member Edfelt both 
commented that this interchangeability for subsistence purposes 
results from fluctuating salmon cycles in which different species 
"boom and bust on odd and even year cycles." Further, area 
biologist Lean confirmed that subsistence users "just call them big 
fish and little fish." Board member Angasan agreed that the Board 
should consider the species together because "you know you don't 
have pinks in the area there on an uneven year, and you still [have 
the same range of subsistence use]." The record thus confirms that 
the Board's decision to consolidate was reasonably based on 
evidence that the subsistence users themselves interchange salmon 
stocks.
Moreover, we note that the Board did consider a chum 
salmon component, albeit informally.  In 1992 and in 1994 the Board 
commented on the specific escapement counts for chum salmon in 
Norton Sound.  And in a 1996 meeting held to comply with the 
superior court's first summary judgment order, the Board 
recalculated the number of salmon needed to provide Norton Sound 
residents with a reasonable subsistence opportunity.  In these 
calculations the Board separated chum salmon out as a separate 
stock per the court's order.  Although the Board did not formalize 
this separation in a regulation, the record contains nothing to 
indicate that the Board will not continue to consider chum salmon 
as a separate stock when circumstances require. 
3.	The geographical reach of the subsistence regulation


Elim and the Board disagree with respect to the 
geographical reach of the subsistence preference.  Elim argues 
that, regardless of whether a stock is "manageable as a unit"
throughout its migratory range, the Board must apply the 
subsistence preference throughout a stock's migratory range once 
that stock is identified as a subsistence resource within a given 
area or community.  In contrast, the Board argues that application 
of the subsistence statute to a fish stock in a specific area or 
community can never require that stock to be regulated in a 
distant, mixed stock fishery.  We disagree with both of these 
positions.  
Here, the Board identified salmon generally as a species 
whose use was to be regulated for purposes of subsistence in the 
communities of Norton Sound.  It later informally acknowledged chum 
salmon as a separately identifiable fish stock. The Board's 
authority to manage that resource extended beyond the precise area 
of identified subsistence use, but only so long as it continued to 
believe that the species was "manageable as a unit"outside Norton 
Sound.
In the present case, the Board had two independent bases 
to justify its conclusion that in the context of the False Pass 
fishery, chum salmon were not manageable as a unit for purposes of 
subsistence use in the Norton Sound area: first, the lack of 
scientific certainty that False Pass chum runs actually migrate to 
Norton Sound; second, the impossibility of managing chums as a unit 
in False Pass, where their migration is mixed in with a strong, 
primary migration of sockeye salmon.  

According to the record, neither Elim nor any scientific 
study has proven that the False Pass fishery in fact consumptively 
uses Norton Sound subsistence stocks.  Elim itself acknowledges 
that there is a "paucity"of knowledge regarding the relationship 
between the False Pass fishery and Norton Sound returns.  The 
Board, which has fisheries expertise, thus has discretion to 
analyze and weigh available scientific information.  It 
commissioned studies, reviewed others, heard testimony from various 
experts, and decided that the available information was 
inconclusive.  In the absence of proof that the Board's judgment is 
arbitrary or capricious, we decline to second-guess its conclusions 
regarding the scientific data. 
Based on this scientific uncertainty and the difficulty 
inherent in managing single stocks within a mixed fishery, the 
Board reasonably concluded that, for purposes of the Norton Sound 
subsistence fishery, chums were not manageable as a unit in False 
Pass.  The Board thus justifiably decided to manage the False Pass 
chums under its mixed stock policy.  As long as the mixed stock 
policy itself is valid, the Board's choice was reasonable.
C. 	The Mixed Stock Policy Is Valid.        


The Board had previously adopted a mixed stock policy 
that this court invalidated because the Board failed to follow the 
requirements of the Administrative Procedure Act in adopting the 
policy as a regulation.36   Consequently, in 1992 the Alaska 
legislature adopted AS 16.05.251(h), which required the Board to 
"adopt by regulation a policy for the management of mixed stock 
fisheries. . . . consistent with sustained yield of wild fish 
stocks."37   In response, the Board adopted the mixed stock policy 
at issue here, 5 AAC 39.220.  That regulation requires that 
"conservation of wild salmon stocks consistent with sustained yield 
shall be accorded the highest priority,"and that "[a]llocation of 
salmon resources will be consistent with the subsistence preference 
in AS 16.05.258, and the allocation criteria set out [in the 
Board's regulations]."38   The regulation also expresses the Board's 
preference for assigning conservation burdens in mixed stock 
fisheries through the application of specific fisheries management 
plans set out in regulations.  In the absence of a regulatory 
management plan, and when it is necessary to restrict fisheries 
where there are known conservation problems, the regulation 
provides for the burden of conservation to be shared among all 
fisheries in proportion to the fisheries' respective harvests on 
the declining salmon stocks.  The regulation also restricts new or 
expanding mixed stock fisheries in many circumstances.
Elim argues that the regulation is devoid of substance, 
and expresses unenforceable "preferences"rather than true 
management "principles." Elim also criticizes the regulation 
because it is not worded in definite, certain terms, but instead 
allows the Board discretion to address a variety of individual 
circumstances.  Elim argues that in mandating the Board to adopt 
the policy "by regulation,"the legislature envisioned a policy 
that would bind the Board in all circumstances.  PMA and the Board, 
on the other hand, argue that the Board has appropriately retained 
the discretion to distribute conservation burdens 
disproportionately in any given management plan.

As noted, this court invalidated the Board's previous 
mixed stock policy due to the Board's failure to follow required 
administrative procedures.39   It was this deficiency that the Alaska 
legislature addressed when it required the Board to adopt "by 
regulation"a mixed stock policy.  In fact, the legislature 
rejected a bill that would have spelled out a substantive policy.40  
PMA and the Board argue that by rejecting a comprehensive bill for 
a more general one, the legislature intended to leave the Board 
with broad discretion in formulating a mixed-stock regulation.  We 
agree.

The development of a mixed stock policy involves the 
Board's expertise, and therefore the court reviews the regulation 
for a reasonable basis.41   Moreover, as the Board notes, a 
regulation adopted under Alaska's administrative procedure statute, 
AS 44.62.100, is presumed to be valid, and a challenger has the 
burden to demonstrate that the regulation is invalid.  Elim has not 
met this burden.  Elim insists that this regulation should have a 
different substance, but we may not overturn a regulation simply 
because one group of resource users believes that a different 
standard is more desirable.  The mixed stock regulation is the 
product of a four-day meeting in which the Board took a hard look 
at the issues and justified its decisions through written findings. 
 The regulation is not so indefinite and uncertain that we may 
overturn it as facially vague or devoid of substance.  If the 
management principles that the regulation articulates do not 
satisfy the legislature, then it certainly may address those 
shortcomings.  But for purposes of our judicial review, the 
regulation is a valid exercise of the Board's discretion.  
III.	CONCLUSION
We AFFIRM the grant of summary judgment for the Board on 
all grounds.

Footnotes:
  
1 	 See Peninsula Mktg. Ass'n v. State, 817 P.2d 917, 918 
(Alaska 1991). 
2 	The Peninsula Marketing Association is a non-profit 
corporation that represents the interests of commercial fishers of 
the Alaska Peninsula.  See id. at 918 n.2.  
3 	See Peninsula Mktg. Ass'n v. Rosier, 890 P.2d 567 (Alaska 
1995); Peninsula Mktg. Ass'n v. State, 817 P.2d 917 (Alaska 1991). 
4 	See Rosier, 890 P.2d at 568 (discussing history of the 
Board's actions with respect to the relationship between the False 
Pass fishery and the northern subsistence fisheries).

5 	See id. at 568-70 (describing these events in detail).
 
6 	Elim also alleged that the Board had violated the equal 
access provision of the Alaska constitution, the Open Meetings Act, 
 AS 44.62.310-.312, and the Administrative Procedure Act, 
AS 44.62.010-.950.  Elim eventually abandoned these claims.
7 	See Rosier, 890 P.2d at 569-70.
8 	See Stepovak-Shumagin Set Net Ass'n v. State, Bd. of 
Fisheries, 886 P.2d 632, 636 (Alaska 1994). 

9 	See Moore v. State, Dep't of Transp. and Pub. Facilities, 
875 P.2d 765, 767-68 (Alaska 1994). 

10 	See Alaska Wildlife Alliance v. Rue, 948 P.2d 976, 979 
(Alaska 1997).

11 	See Hammer v. City of Fairbanks, 953 P.2d 500, 504 
(Alaska 1998).

12 	Id. (quoting Tesoro Alaska Petroleum Co. v. Kenai Pipe 
Line Co., 746 P.2d 896, 903 (Alaska 1987)).

13 	See id.
14 	Alaska Const. art. VIII,  4.

15 	5 AAC 09.365 provides in part:

(a)	Mixed stocks of salmon bound for distant 
systems have historically been intercepted in 
significant numbers along the Alaska 
Peninsula. To ensure that none of these runs 
are overharvested it is necessary to restrain 
their interception as provided for in the 
management plan for the South Unimak and 
Shumagin Islands June fisheries, set out in 
this section.
(b)	The Alaska Board of Fisheries (board) has 
established sockeye salmon guideline harvest 
levels on the South Unimak and Shumagin 
Islands interception fisheries during June, 
which are based on percentages of the latest 
projected Bristol Bay inshore sockeye salmon 
harvest as published by the department. . . .
(2)	. . . Consistent with the board's Policy 
for the Management of Mixed Stock Salmon 
Fisheries set out in 5 AAC 39.220 and 
traditional harvest patterns, the maximum 
percentage of the sockeye salmon harvest 
allowed for the South Unimak fishery is 6.8 
percent and for the Shumagin Islands fishery, 
1.5 percent. The forecasts for Bristol Bay are 
sometimes updated as more information becomes 
available, just before the South Unimak and 
Shumagin Islands season, and exact numbers of 
fish cannot be given before the opening of 
each fishery.
. . . .
(d)	On June 10, the commissioner may open, by 
emergency order, a commercial fishing period 
for sockeye salmon for six hours. If the ratio 
of sockeye salmon to chum salmon is two to one 
or greater, the commissioner may extend the 
fishing period by emergency order. Subsequent 
fishing periods for the South Unimak and 
Shumagin Islands June fisheries shall be 
established to allow commercial fishing when 
the ratio of sockeye salmon to chum salmon 
indicates that chum salmon harvest will be 
minimized. Fishing time for commercial set 
gillnet gear is specified in (g) of this 
section.
(e)	The South Unimak and Shumagin Island June 
salmon fisheries target on the more abundant 
and valuable sockeye salmon. The board 
recognizes that the harvest of other salmon 
species is incidental to the sockeye salmon 
harvest. The board has determined that this 
incidental harvest is unavoidable and cannot 
be regulated with the present level of 
knowledge regarding these fisheries. The board 
will not support any significant increase in 
the interception rate of chum salmon taken in 
the South Unimak and Shumagin Islands June 
salmon fisheries. These stocks are probably 
fully utilized in existing terminal fisheries 
of long standing. This determination is 
consistent with the philosophy contained in 
the board's Policy For The Management of Mixed 
Stock Salmon Fisheries (5 AAC 39.220). The 
board recognizes that the conservation and 
allocation of nontargeted salmon stocks may be 
a concern during some years, but does not have 
the data to ensure specific corrective action 
at this time (January 1990).
(f)	The commissioner shall close, by 
emergency order, the June fisheries before the 
sockeye salmon guideline harvest levels are 
taken if the guideline harvest level of chum 
salmon specified in (k) is reached. The 
department shall take appropriate inseason 
management action under AS 16.05.060 to manage 
the chum salmon harvest within the guideline 
harvest established by the board while 
attempting to allow full harvest of the 
sockeye salmon guideline harvest level.
(g)	In taking management action under (f) of 
this section to reduce the chum salmon 
harvest, the commissioner may not set fishing 
periods for set gillnet gear of less than 16 
hours unless a fishing period of 16 hours or 
more would result in a harvest that exceeds 
the guideline harvest level for chum salmon 
specified in (k) of this section. If the ratio 
of sockeye salmon to chum salmon in a 
commercial fishing period for set gillnet gear 
is equal to or greater than the recent 10-year 
average, as determined by the department, the 
commissioner may establish additional or 
extended fishing periods by emergency order.
(h)	After June 24, in either the South Unimak 
or Shumagin Islands fishery, if the sockeye 
salmon guideline harvest level under (b) of 
this section and the maximum allowable 
incidental harvest of chum salmon under (f) of 
this section have not been attained, and if 
the ratio of sockeye salmon to chum salmon is 
two to one or less on any day, the next daily 
fishing period for seine and drift gillnet 
gear shall be of six-hour duration in that 
fishery. After June 24, the South Unimak or 
Shumagin Islands fishery shall close for all 
gear types if the ratio of sockeye salmon to 
chum salmon is two to one or less for any 
three aggregate days. It is the board's intent 
to demonstrate by this subsection that the 
maximum or less harvest of 700,000 chum salmon 
supersedes attempts to reach the sockeye 
salmon guideline harvest levels.
(i)	All salmon caught by a CFEC permit holder 
must be retained, and each CFEC permit holder 
must report the number of salmon caught, 
including those taken but not sold, on an 
ADF&G fish ticket. For the purposes of this 
section, "caught"means brought on board the 
vessel.
(j)	The board will, to the extent 
practicable, consider the following guiding 
principles when taking actions associated with 
the adoption of regulations regarding chum 
salmon stocks in the South Unimak and Shumagin 
Islands June Salmon Management Plan:
(1)	the conservation and sustained yield of 
healthy salmon resources and maintenance of 
the habitat and ecosystem on which salmon and 
allied species depend for survival throughout 
their life-cycle;
(2)	the maintenance of viable and diverse 
fish species and stocks;
(3)	the maintenance of the genetic diversity 
of fish species and stocks;
(4)	the best available information presented 
to the board;
(5)	the capability of being implemented and 
evaluated, including factors such as flexible 
and adaptive management, conflict with other 
law, and mixed stock management;
(6)	the capability of providing tangible 
benefits to user groups or conservation, with 
the least risk to existing fisheries and to 
conservation; and
(7)	the stability and viability of 
subsistence, commercial, sport, and personal 
use fisheries.
(k)	If the harvest projection of the 
Arctic-Yukon-Kuskokwim summer chum salmon 
index group is
(1)	less than the 33 percentile of the 
catches of the index group from 1970 to the 
present, the chum salmon guideline harvest 
level is from 350,000 to 450,000 chum salmon; 
the department shall manage for a guideline 
harvest level of 400,000 to 450,000 chum 
salmon; if the department identifies a 
management concern for summer chum salmon 
within the Arctic-Yukon-Kuskokwim region, the 
department shall manage the June fishery 
inseason for a guideline harvest level of 
350,000 to 400,000 chum salmon;
(2)	more than the 33 percentile, but less 
than the 67 percentile, of the catches of the 
index group from 1970 to the present, the chum 
salmon guideline harvest level is from 450,001 
to 550,000 chum salmon; the department shall 
manage for a guideline harvest level of 
500,000 to 550,000; if the department 
identifies a management concern for summer 
chum salmon within the Arctic-Yukon-Kuskokwim 
region, the department shall manage the June 
fishery inseason for a guideline harvest level 
of 450,001 to 500,000 chum salmon;
(3)	more than the 67 percentile of the 
catches of the index group from 1970 to the 
present, the chum salmon guideline harvest 
level is from 550,001 to 650,000; the 
department shall manage for a guideline 
harvest level of 600,000 to 650,000; if the 
department identifies a management concern for 
summer chum salmon within the 
Arctic-Yukon-Kuskokwim region, the department 
shall manage the June fishery inseason for a 
guideline harvest level of 550,001 to 600,000 
chum salmon.
(l)	For the purposes of this section,
(1)	"management concern"means a chronic 
inability, despite the use of specific 
management measures, to maintain escapement 
objectives; the term "chronic"refers to the 
continuing or anticipated inability to meet 
escapement objectives over a four year period, 
which is generally equivalent to a life cycle 
or generation of chum salmon;
(2)	"Arctic-Yukon-Kuskokwim summer chum 
salmon index group"includes salmon taken in 
the Yukon summer chum salmon commercial and 
subsistence fisheries, the Kotzebue commercial 
fishery, the Norton Sound commercial fishery, 
and Kuskokwim commercial fishery. 

16 	See 4 Proceedings of the Alaska Constitutional Convention 
(PACC) 2456-57 (January 17, 1956). 
17 	Papers of Alaska Constitutional Convention, 1955-1956, 
Folder 210, Terms; see also Hootch v. Alaska State-Operated Sch. 
Sys., 536 P.2d 793, 800 (Alaska 1973) (while framers' purposes are 
not necessarily conclusive, a historical perspective is essential 
to an enlightened contemporary interpretation of the Constitution); 
State v. Gonzalez, 825 P.2d 920 (Alaska App. 1992), aff'd, 853 P.2d 
526 (Alaska 1993).  
18 	See Alaska Dep't of Fish & Game, Issue Paper on Mixed 
Stock Management (Mar. 16, 1993) 7-8. ("It should be recognized 
that changes in mixed stock fisheries can occur in several ways. 
 An increase in the number of gear units, changes in the 
distribution of effort within the available fishing area or fishing 
season, and fleet improvements in terms of vessel capacity, gear, 
and technological advances can all increase fleet efficiency.  
Effort in a mixed stock fishery may expand as a result of increases 
in salmon abundance resulting from enhancement activities or 
natural fluctuations. . . . In reviewing the conduct of mixed stock 
fisheries, it may be difficult to precisely measure changes due to 
data uncertainties.").

19 	See 5 AAC 09.365(j), supra note 15.

20 	See 5 AAC 09.365(a), (d)-(h), supra note 15.

21 	See Stepovak-Shumagin Set Net Ass'n v. State, Bd. of 
Fisheries, 886 P.2d 632, 637 (Alaska 1994); Meier v. State, Bd. of 
Fisheries, 739 P.2d 172, 174 (Alaska 1987).

22 	AS 16.05.258 provides in relevant part:

(a)	Except in nonsubsistence areas, the Board 
of Fisheries and the Board of Game shall 
identify the fish stocks and game populations, 
or portions of stocks or populations, that are 
customarily and traditionally taken or used 
for subsistence. . . .
(b)	The appropriate board shall determine 
whether a portion of a fish stock or game 
population identified under (a) of this 
section can be harvested consistent with 
sustained yield.  If a portion of a stock or 
population can be harvested consistent with 
sustained yield, the board shall determine the 
amount of the harvestable portion that is 
reasonably necessary for subsistence uses and
(1)	if the harvestable portion of the stock 
or population is sufficient to provide for all 
consumptive uses, the appropriate board
(A)	shall adopt regulations that provide a 
reasonable opportunity for subsistence uses of 
those stocks or populations;
(B)	shall adopt regulations that provide for 
other uses of those stocks or populations, 
subject to preferences among beneficial uses; 
and 
(C)	may adopt regulations to differentiate 
among uses;
(2)	if the harvestable portion of the stock 
or population is sufficient to provide for 
subsistence uses and some, but not all, other 
consumptive uses, the appropriate board
(A)	shall adopt regulations that provide  
reasonable opportunity for subsistence uses of 
those stocks or populations;
(B)	may adopt regulations that provide for 
other consumptive uses of those stocks or 
populations; and
(C)	shall adopt regulations to differentiate 
among consumptive uses that provide for a 
preference for the subsistence uses, if 
regulations are adopted under (B) of this 
paragraph;
(3)	if the harvestable portion of the stock 
or population is sufficient to provide for 
subsistence uses, but no other consumptive 
uses, the appropriate board shall
(A)	determine the portion of stocks or 
populations that can be harvested consistent 
with sustained yield; and
(B)	adopt regulations that eliminate other 
consumptive uses in order to provide a 
reasonable opportunity for subsistence uses; 
and
(4)	if the harvestable portion of the stock 
or population is not sufficient to provide a 
reasonable opportunity for subsistence uses, 
the appropriate board shall
(A)	adopt regulations eliminating consumptive 
uses, other than subsistence uses;
(B)	distinguish among subsistence users . . . .

23 	5 AAC 01.186 (1993) provided:

The Alaska Board of Fisheries finds that 
herring and herring roe along the coast 
between Point Romanof and Cape Prince of Wales 
and along the coast of Saint Lawrence Island, 
and salmon in the Norton Sound-Port Clarence 
Area, are customarily and traditionally taken 
or used for subsistence.

See also 5 AAC 01.150 ("The Norton Sound-Port Clarence 
Area includes all waters of Alaska between the latitude of the 
westernmost tip of Cape Prince of Wales and the latitude of Canal 
Point Light, including the waters of Alaska surrounding St. 
Lawrence Island and those waters draining into the Bering Sea."). 
   		
5 AAC 01.186 was amended in 1996 and again in 1998, and 
currently provides: 

(a)	The Alaska Board of Fisheries (board) 
finds that the following fish stocks are 
customarily and traditionally taken or used 
for subsistence:
(1)	herring and herring roe along the coast 
between Point Romanof and Cape Prince of Wales 
and along the coast of Saint Lawrence Island; 
and
(2)	salmon, and all finfish other than 
salmon, except as specified in (1) of this 
subsection, in the Norton Sound-Port Clarence 
Area.
(b)	The board finds that 96,000 - 160,000 
salmon are reasonably necessary for 
subsistence uses in the Norton Sound-Port 
Clarence Area. 

24 	See Payton v. State, 938 P.2d 1036, 1041 (Alaska 1997).

25 	See id. 

26 	AS 16.05.258(c) (as amended in 1992).  This section 
provides in relevant part:

In determining whether dependence upon 
subsistence is a principal characteristic of 
the economy, culture, and way of life of an 
area or community under this subsection, the 
boards shall jointly consider the relative 
importance of subsistence in the context of 
the totality of the following socio-economic 
characteristics of the area or community:
(1)	the social and economic structure;
(2)	the stability of the economy;
(3)	the extent and the kinds of employment 
for wages, including full-time, part-time, 
temporary, and seasonal employment;
(4)	the amount and distribution of cash 
income among those domiciled in the area or 
community;
(5)	the cost and availability of goods and 
services to those domiciled in the area or 
community;
(6)	the variety of fish and game species used 
by those domiciled in the area or community;
(7)	the seasonal cycle of economic activity;
(8)	the percentage of those domiciled in the 
area or community participating in hunting and 
fishing activities or using wild fish and 
game;
(9)	the harvest levels of fish and game by 
those domiciled in the area or community;
(10)	the cultural, social, and economic values 
associated with the taking and use of fish and 
game;
(11)	the geographic locations where those 
domiciled in the area or community hunt and 
fish;
(12)	the extent of sharing and exchange of 
fish and game by those domiciled in the area 
or community;
(13)	additional similar factors the boards 
establish by regulation to be relevant to 
their determinations under this subsection. 

27 	See 1992 Informal Op. Att'y Gen. 77.  This court 
exercises its independent judgment on matters of statutory 
interpretation.  However, the court may properly consider the 
opinions of the Attorney General for guidance.  See Grimes v. 
Kinney Shoe Corp., 938 P.2d 997, 1000 n.7 (Alaska 1997); Carney v. 
State Bd. of Fisheries, 785 P.2d 544, 548 (Alaska 1990) (stating 
that opinions of attorney general, while not controlling on matters 
of statutory interpretation, are entitled to some deference). 

28 	See AS 16.05.258(b)(2) (as amended).

29 	1990 Informal Op. Att'y Gen. 149.

30 	AS 16.05.258(a). 

31 	AS 16.05.940(16); see also AS 16.05.258(a).

32 	See 5 AAC 01.186.

33 	AS 16.05.940(16); see also AS 16.05.258(a).
34 	Ch. 1,  1(c)(1), 2d Special Sess. Sess. Laws 1992.

35 	See 1990 Informal Op. Att'y Gen. 149 ("It is evident that 
customary and traditional uses are to be evaluated on particular 
fish stocks and particular game populations; substitution of stocks 
by the board is not permissible. . . . [E]ach stock or population 
is to be evaluated on its own merits to determine whether it is 
subject to customary and traditional uses."); see also Bobby v. 
State, 718 F. Supp. 764, 776-81 (D. Alaska 1989) (explaining that 
1986 subsistence law was intended to comply with the federal Alaska 
National Interest Lands Conservation Act, and that the federal 
legislative history evidenced a similar approach; "[n]eed is not 
the standard. . . . [I]t matters not that other food sources may be 
available at any given time or place."). 

36 	See Gilbert v. State, Dep't of Fish & Game, Bd. of 
Fisheries, 803 P.2d 391, 395-97 (Alaska 1990); see also AS 44.62 
(Alaska's Administrative Procedure Act).

37 	See Ch. 93,  1, SLA 1992.

38 	5 AAC 39.220 provides in part:

(a)	In applying this statewide mixed stock 
salmon policy for all users, conservation of 
wild salmon stocks consistent with sustained 
yield shall be accorded the highest priority. 
 Allocation of salmon resources under this 
policy will be consistent with the subsistence 
preference in AS 16.05.258, and the allocation 
criteria set out in 5 AAC 39.205, 5 AAC 
75.017, and 5 AAC 77.007.
(b)	In the absence of a regulatory management 
plan that otherwise allocates or restricts 
harvest, and when it is necessary to restrict 
fisheries on stocks where there are known 
conservation problems, the burden of 
conservation shall be shared among all 
fisheries in close proportion to their 
respective harvest on the stock of concern.  
The board recognized that precise sharing of 
conservation among fisheries is dependent on 
the amount of stock-specific information 
available.
(c)	The board's preference in assigning 
conservation burdens in mixed stock fisheries 
is through the application of specific fishery 
management plans set out in the regulations. 
 A management plan incorporates conservation 
burden and allocation of harvest opportunity.
(d)	Most wild Alaska salmon stocks are fully 
allocated to fisheries capable of harvesting 
available surpluses.  Consequently, the board 
will restrict new or expanding mixed stock 
fisheries unless otherwise provided for by 
management plans or by application of the 
board's allocation criteria.  Natural 
fluctuations in the abundance of stocks 
harvested in a fishery will not be the single 
factor that identifies a fishery as expanding 
or new.
39 	See Gilbert, 803 P.2d at 395-97.

40 	See House Bill (H.B.) 541, 17th Leg., 2d Sess. (Feb. 18, 
1992).

 41 	See Storrs v. State Med. Bd., 664 P.2d 547, 552 (Alaska 
1983).  

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