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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. O'Callaghan v. Rue (2/18/00) sp-5240

O'Callaghan v. Rue (2/18/00) sp-5240

     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.


MIKE O'CALLAGHAN,             )
                              )    Supreme Court Nos. S-8234/S-8274
             Appellant,       )
and                           )
MILFORD D. SWEAT,             )    Superior Court No.
                              )    3AN-96-8963 CI
             Appellant,       )
     v.                       )
FRANK RUE, in his official    )    O P I N I O N
capacity as Commissioner of   )
Fish & Game,                  )
             Appellee.        )    [No. 5240 - February 18, 2000]

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                      Dan A. Hensley, Judge.

          Appearances:  Mike O'Callaghan, pro se,
Anchorage.  William E. Caldwell, Alaska Legal Services Corporation,
Fairbanks, for Appellant Milford D. Sweat.  Steven A. Daughtery,
Assistant Attorney General, Bruce M. Botelho, Attorney General,
Juneau, for Appellee.

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

          MATTHEWS, Chief Justice.

          Alaska Statute 16.05.831 prohibits the waste of salmon,
meaning the failure to use most of the salmon carcass. [Fn. 1] 
This appeal concerns whether the Commissioner of Fish and Game had
the authority to promulgate 5 Alaska Administrative Code (AAC)
93.320, involving salmon roe stripping, and whether the regulation
is consistent with the salmon waste law.  We conclude that the
Commissioner had this authority and that 5 AAC 93.320 is valid. 
          The state legislature created Alaska's private non-profit
(PNP) salmon hatchery program in 1976 to boost Alaska's salmon
harvest.  A comprehensive statutory scheme governs PNP hatcheries;
[Fn. 2] currently, about thirty PNP salmon hatcheries in Alaska
operate under this program.  Yet since the start of the program,
market conditions for salmon have changed dramatically.  Worldwide
salmon production has tripled, and as overall numbers of salmon
increased and hatchery fish comprised a greater percentage of
available fish, market prices for some species of salmon have
dramatically declined.  Especially depressed are the markets for
pink and chum salmon.  The Department of Fish and Game (the
Department) and salmon hatchery operators thus claim that roe
stripping -- the practice challenged in this appeal -- is necessary
to the economic survival of both individual hatcheries and the
entire PNP program.
          Roe stripping occurs when a salmon's eggs -- the roe --
are removed from the fish (usually to be sold for human
consumption) and the flesh is discarded.  Although the practice was
traditionally disfavored, increases in the number of hatchery chum
and pink salmon and corresponding decreases in market value for
these fish, together with increasing value of caviar, have made roe
stripping more attractive.
          Salmon physiology also contributes to this trend.  Once
a salmon nears the end of its lifespan and becomes exposed to fresh
water, its flesh deteriorates in quality and can become extremely
difficult, sometimes impossible, to sell.  Yet because salmon at
this stage convert nutrients into egg production, the roe remains
of high quality even after the flesh has deteriorated.  With poor
market conditions, a high percentage of the value of a salmon can
come from its roe. 
          Additionally, in recent years the harvests of chum and
pink salmon have been so large that hatchery owners claim they have
been unable to sell all of their salmon.  Thus, faced with
unmarketable salmon filled with lucrative eggs, hatchery operators
find that their best economic option is to roe strip. 
          Before 1994, the Department of Fish and Game consistently
interpreted the salmon waste law to prohibit all forms of roe
stripping.  In 1994, in response to the growing problem of excess,
unmarketable hatchery salmon, the legislature considered -- but
failed to enact -- a bill that would have modified the salmon waste
law so as to authorize the Commissioner of Fish and Game to issue
permits for roe stripping from hatchery salmon determined to have
flesh that was "unfit for human consumption."[Fn. 3]
          When this legislation failed, the Department modified its
interpretation of the waste law and issued six permits allowing PNP
hatcheries to strip roe from surplus brood stock salmon. [Fn. 4] 
The Commissioner asserted that this policy was authorized by AS
16.05.831(b) because he had determined "that the salvage of roe
from surplus brood stock in the hatchery raceways is consistent
with maximum and wise use of the resource." No regulations were
enacted to govern the issuance of these permits. 
          After considering several interpretations of AS 16.05.231
(the salmon waste law) -- including one that would exempt all PNP
hatcheries from the roe stripping restriction -- the Department
formed a working group to formulate regulations interpreting the
salmon waste law.  The group was unable to reach agreement on
whether roe stripping should be authorized.  Then, the Department
again unsuccessfully sought to introduce legislation clarifying the
salmon waste law and authorizing some forms of roe stripping.
Finally, when this failed, the Department promulgated regulations
5 AAC 93.310-93.390 addressing roe stripping. [Fn. 5]  One of these
regulations, 5 AAC 93.320, is the focal point of this appeal.
          Regulation 5 AAC 93.320 authorizes the Commissioner to
issue permits allowing some salmon hatcheries to engage in roe
stripping of salmon:  
               (a) Notwithstanding AS 16.05.831(a) and 5
AAC 93.310, a hatchery operator may remove and sell pink and chum
salmon roe for cost recovery purposes, and dispose of the carcasses
of the salmon, under the terms of the authorization embodied in
this section.
               (b) This section's authorization applies
only to pink and chum salmon that 
               (1) originated from a hatchery;
               (2) are harvested by a hatchery operator
in a hatchery terminal area or hatchery special harvest area;
               (3) have matured to the point that their
flesh cannot be marketed without an unreasonable risk of incurring
a financial loss; and
               (4) cannot be put to other lawful use or
be given away despite compliance with the requirements of this
               . . . . 
               (o) In this section, "unreasonable risk
of incurring a financial loss"means that a hatchery permit holder
reasonably determines that, for a given lot of fish, as designated
by the hatchery, net profits from putting the salmon to lawful use
and from selling the roe removed from the salmon, could be lower
than needed to justify the diversion of hatchery personnel and
resources, including overhead and administrative resources, to deal
with the salmon.

The regulation requires a hatchery to document the estimated
numbers of salmon returning to the hatchery, any attempts made to
find lawful uses for the fish, and predicted financial losses if
not allowed to roe strip. [Fn. 6]  The regulation also mandates
specified efforts to distribute salmon to food banks and the
public, as well as record keeping. [Fn. 7]  This regulation became
effective on July 21, 1996, [Fn. 8] and the Commissioner issued
permits pursuant to it throughout the 1996 salmon season, allowing
PNP processors to strip roe from "unmarketable and otherwise
unusable chum salmon."

          Mike O'Callaghan, an officer of the non-profit
organization EARTH, sued the Commissioner of Fish and Game for
injunctive relief in November 1996.  O'Callaghan, a pro se
litigant, argued primarily that hatchery roe stripping violated the
salmon waste law, AS 16.05.831; he wanted EARTH to receive the
discarded salmon so that it could be used to feed the needy.
Milford Sweat, a commercial Yukon River fisher, intervened, seeking
declaratory relief invalidating the Commissioner's authorization of
roe stripping.  The superior court granted summary judgment in
favor of the Commissioner on the validity of the regulation.
          O'Callaghan and Sweat argue on appeal that the
Commissioner promulgated the roe stripping regulation (5 AAC
93.320) without the required statutory authority and that the
regulation violates the salmon waste law and other statutory and
constitutional provisions.  O'Callaghan and Sweat also argue that
the Department maintains a practice and policy generally permitting
roe stripping from excess brood stock salmon in violation of the
salmon waste law.  Finally, O'Callaghan contends that the superior
court erred by refusing to allow him to amend his complaint, by
relying on facts unsupported by the evidence, and by refusing to
mandate the enforcement of the salmon waste law.
     A.   The Validity of 5 AAC 93.320
          1.   Mootness
          Regulation 5 AAC 93.320, by its terms, applied only to
the 1996 and 1997 salmon seasons. [Fn. 9]  Therefore, we must
determine whether this question is moot.  "Ultimately the
determination of whether to review a moot question is left to the
discretion of the court."[Fn. 10]  The present issue is capable of
repetition and, because of the short-term nature of the regulation,
might repeatedly circumvent judicial review.  Furthermore,
precedent indicates that the issues involved in 5 AAC 93.320 are
sufficiently significant, because they are related to the
"allocation of Alaska's fishery resources."[Fn. 11]  Similarly, we
have noted that "the scope of the Commissioner's power is an issue
of public interest."[Fn. 12]  We thus review this case under the
public interest exception to the mootness doctrine.
          2.   Standard of review
          This court reviews grants of summary judgment de novo.
[Fn. 13]  To affirm, we must find that there are no material facts
at issue and that the movant is entitled to judgment as a matter of
law. [Fn. 14]  
          Here, we are asked to review the validity of
administrative regulations.  This court applies a three-part
analysis to this question.
          First, we must determine whether the legislature
delegated to the administrative agency the authority to promulgate
regulations. [Fn. 15]  Determining the extent of an agency's
authority involves the interpretation of statutory language, a
function uniquely within the competence of the courts. [Fn. 16] 
Thus, this court applies its independent judgment to the question
of the authority to adopt regulations. [Fn. 17]
          Once we are satisfied that the agency acted within the
scope of its delegated power, we then consider whether "the
regulation is consistent with and reasonably necessary to implement
the statutes authorizing its adoption"[Fn. 18] and whether it is
reasonable and not arbitrary. [Fn. 19]  In making the consistency
determination, the court exercises its independent judgment, unless
the issue involves agency expertise or the determination of
fundamental policy questions on subjects committed to an agency.
[Fn. 20]  In cases involving agency expertise or fundamental policy
questions, we employ a rational basis standard under which we defer
to the agency's determination so long as it is reasonable. [Fn. 21] 
We believe that the question of whether 5 AAC 93.320 is consistent
with the underlying salmon waste law is one of statutory
interpretation to which we should apply our independent judgment.
[Fn. 22]  Whether the regulation is necessary to implement the
statute involves fundamental policy determinations which we review
on a rational basis standard. [Fn. 23]  Likewise, we conduct the
"reasonable and not arbitrary"review using a deferential standard.
          Finally, we consider whether the regulation conflicts
with any other state statutes or constitutional provisions. [Fn.
24]  Whether a regulation violates a constitutional or statutory
provision is a legal question we review de novo. [Fn. 25]
          We presume the validity of an administrative regulation;
the challenger bears the burden of proving it is invalid. [Fn. 26] 

          3.   Does the Commissioner of Fish and Game have
authority to promulgate regulations?

          Statutory authority to promulgate rules may be either
express or implied. [Fn. 27]  O'Callaghan and Sweat argue that only
the Board of Fisheries (the Board), and not the Commissioner, has
the authority to promulgate regulations involving PNP hatchery
salmon and roe.  The Department claims that the Commissioner has
implied authority to promulgate rules under AS 16.05.020 and
express rulemaking powers under AS 16.05.831.  We agree with the
          Alaska Statute 16.05.020 outlines generally the functions
of the Commissioner, directing him to "manage, protect, maintain,
improve, and extend the fish . . . resources of the state in the
interest of the economy and general well-being of the state"and
giving him the "necessary power to accomplish"those directives.
[Fn. 28]  This language grants the Commissioner broad authority
"relat[ing] principally to administration and budgeting,"while
primary rulemaking authority is allocated to the Board. [Fn. 29]
          Nevertheless, subsection (b) of the salmon waste law
explicitly delegates to the Commissioner the authority to enforce
and interpret the law: "The commissioner, upon request, may
authorize other uses of salmon that would be consistent with
maximum and wise use of the resource."[Fn. 30]  Subsection (c)
specifically envisions the promulgation of rules under section .831
by prescribing civil and criminal penalties for "[a] person who
violates this section or a regulation adopted under it."[Fn. 31] 
Subsections (b) and (c) reflect a clear legislative intent that
regulations should be adopted under AS 16.05.831 and that the
Commissioner is the official responsible for the law's
implementation.  Together with the Commissioner's general authority
to manage fishery resources in the state, this statute delegates
rulemaking authority to the Commissioner.
          We note that the Board has authority to "adopt
regulations it considers advisable in accordance with AS 44.62
(Administrative Procedure Act)"in a wide variety of fishery-
related areas, including "regulating commercial, sport, guided
sport, subsistence, and personal use fishing as needed for the
conservation, development, and utilization of fisheries."[Fn. 32] 
However, the PNP hatchery program is permit-based.  To operate a
hatchery, a non-profit organization must obtain a permit and comply
with a variety of statutory conditions regulating hatchery
development and operation. [Fn. 33]  The statutes place the
responsibility for issuing, suspending, and revoking permits with
the Commissioner, not the Board. [Fn. 34]  The power to modify
permit terms is shared.  It lies with the Commissioner in the first
instance, [Fn. 35] but is subject to ultimate control by the Board.
[Fn. 36]
          Sweat argues that the Commissioner's promulgation of 5
AAC 93.320 is invalid because, under Peninsula Marketing
Association v. Rosier, [Fn. 37] "[e]ven where the Commissioner has
been given specific regulatory authority . . . the Commissioner is
not endowed with a 'veto power' over the Board." But the present
case is not analogous to Rosier.  In Rosier, the Board evaluated
and, after public testimony, rejected the Commissioner's proposed
cap on chum fishing, implementing instead a set of alternative
conservation measures. [Fn. 38]  Subsequently, on the governor's
instruction, the Commissioner instituted his originally proposed
cap using his emergency powers. [Fn. 39]  We held that to allow the
Commissioner the "veto power"to override the Board's reasoned
rejection of the chum cap would "eviscerate powers explicitly
granted to the Board."[Fn. 40]  But there is no evidence that the
Board ever considered enacting the presently contested regulation. 
Furthermore, that the legislature considered legislation but failed
to act also does not change this result; Rosier only concerned the
balance of power between the Commissioner and the Board.
          Because the legislature granted the Commissioner
authority to promulgate rules under AS 16.05.020 and 16.05.831, we
hold that the Commissioner has the authority to promulgate the
regulation in question.
          4.   Is 5 AAC 93.320 consistent with the salmon waste

          O'Callaghan and Sweat urge us to view the discretionary
powers authorized by subsection (b) of the salmon waste law [Fn.
41] as narrowly limited.  They contend that subsection (a)
constitutes a wholesale prohibition of any use of salmon that does
not utilize most of the carcass and that the Commissioner has no
discretion under subsection (b) to authorize any use which entails
discarding carcasses.  O'Callaghan and Sweat argue that AS
16.05.831(a) unambiguously defines waste in a way that clearly
precludes roe stripping.  Under this reading, the Commissioner
could, for example, allow salmon flesh to be used for fertilizer,
bait, or fish meal, [Fn. 42] but could not authorize any activity
-- such as roe stripping -- which does not use most of the flesh.
          The Department argues that subsection (b) authorizes the
Commissioner to permit uses of salmon which may entail the disposal
of salmon carcasses so long as the permitted use is consistent with
the "maximum and wise use of the [salmon] resource."[Fn. 43]  It
contends that many scientific, educational, and display purposes
involve the disposal of salmon carcasses, offering as examples the
study of salmon digestive and reproductive systems and mounting of
trophy salmon.  Since these uses are presumably permissible under
subsection (a), the Department argues that other uses which also
involve disposal of carcasses may be permitted under (b).  It also
contends that hatchery brood stock salmon carcasses have long been
discarded after roe or milt is extracted. Under the appellants'
reading of the statute this practice would be forbidden even though
the carcasses are without economic value.  
          The superior court held that "the statute clearly
authorizes the Commissioner to promulgate regulations authorizing
any activity which reasonably results in the 'maximum and wise use
of the resource.'" (Emphasis in original.)  The court viewed
subsection (b) as a "broad legislative authorization to the
Commissioner to act in the public interest in response to a variety
of circumstances."
          We believe that the question presented is both close and
difficult.  Section .831 is not clearly written.  Taken literally,
subsection (a) seems to prohibit the failure to utilize only the
carcasses of salmon intended for the purposes enumerated in
subparagraphs (1) through (3).  What does this imply about the
utilization of carcasses of salmon taken for other purposes, such
as hatchery propagation or bait?  There are at least two
possibilities.  One possibility is that the carcasses of salmon
taken or "intended"for other purposes need not be utilized. 
Another possibility is that subparagraphs (1) through (3) are meant
to define the permissible purposes for which salmon may be
harvested.  The first would permit the waste of any salmon not
intended for the enumerated purposes.  The latter reading is less
literal, but it is more likely what the legislature intended. 
Under this latter reading, subsection (a) has two functions: it
defines permissible purposes for which salmon may be harvested (and
thus impliedly prohibits their harvest for other purposes) and
requires that the carcasses of salmon taken for permitted purposes
be utilized for those purposes.
          If we accept that subsection (a) both defines permitted
purposes and mandates carcass use for those purposes, what is to be
made of subparagraph (a)(3)?  As the Department represents, this
provision authorizes some uses which ultimately involve the
disposal of salmon carcasses.  One possible answer is that
scientific, educational, or display purposes "utilize"salmon
carcasses within the meaning of the statute even if the only use of
the carcass is as a disposable holder of the viscera or skin. 
Alternatively, the statute may imply that the flesh must be saved
for other permitted uses to the extent that this is practical given
the uses permitted under subparagraph .831(a)(3). [Fn. 44]  For our
purposes in this case, this is an issue that needs only to be
noted, not resolved.
          Turning to subsection (b), it most literally seems to be
a grant of authority to the Commissioner to add other uses to those
listed in subparagraphs (1) through (3) of subsection (a).  If we
accept the dual purpose interpretation of subsection (a) -- that it
both defines permitted purposes for which salmon may be taken and
requires that the carcasses of salmon taken for permitted purposes
be utilized -- the same applies to additional uses authorized by
the Commissioner pursuant to subsection (b).  For discussion
purposes, assume that the Commissioner added "hatchery propagation"
to the list.  Could carcasses of salmon be discarded after roe or
milt were extracted?  This question is much the same as that posed
by subparagraph (a)(3), discussed above.  Either hatchery
propagation is a permitted utilization of the salmon carcass in
itself, even though the carcass is eventually thrown away, or the
flesh must be used for other permitted purposes to the extent
practical given the intended hatchery propagation use.
          Now consider the current case.  The Commissioner has
defined as a use the taking and sale of roe from hatchery salmon
caught by hatcheries in terminal or special harvest areas if the
salmon have no other practical use.  Can the carcasses of these
salmon be discarded?  Based on the preceding discussion, the answer
is "yes." Either the taking and sale of roe is a permitted
utilization of the carcass in itself, in the same way that a
carcass can be said to be utilized in hatchery propagation, or the
carcass must be used to the extent practical in association with
the taking and sale of roe.  If the law only requires the former
alternative, the taking of roe is a satisfactory utilization of the
carcass.  If the law requires the latter alternative, the contested
regulation complies because the Commissioner has only permitted roe
stripping where there are no other practical permitted uses of the
carcass.  We therefore conclude that regulation 5 AAC 93.320 is
consistent with AS 16.05.831.
          We also hold that the Department could rationally find
the contested regulation reasonably necessary to implement the
salmon waste law.  The Department argues that, due to the current
market conditions for hatchery salmon, roe stripping is the wisest,
and the least wasteful, use for salmon that would otherwise not be
used at all: "harvesting and recovering value from the unmarketable
salmon was less wasteful -- and more consistent with protection of
the salmon resource -- than allowing the salmon to remain in the
water, completely unused, where they could interfere with natural
salmon stocks and could also cause public nuisances." We defer to
the Commissioner's determination that sale of roe from unmarketable
fish is a "maximum and wise use"of salmon. [Fn. 45]
          Finally, we hold that the regulation is reasonable and
not arbitrary.  This inquiry considers whether "the agency has
taken a 'hard look' at the salient problems and has 'genuinely
engaged in reasoned decision making.'"[Fn. 46]  The regulation
clearly passes this test.  The Department engaged in extensive
correspondence with other state agencies regarding its proposed
regulations, promulgated them under the Administrative Procedure
Act, revised the proposed regulations in response to public notice
and comment, and formed a working group (in which O'Callaghan
participated) to review policies on the sale of salmon roe.  Under
these circumstances, the Department's process for promulgating 5
AAC 93.320 was reasonable. [Fn. 47]
          5.   Does 5 AAC 93.320 violate any other state statute
or constitutional provisions?
          To be valid, an administrative regulation must not
violate existing state statutes or constitutional provisions. 
Sweat and O'Callaghan assert that 5 AAC 93.320 violates the common
use clause of the Alaska Constitution, [Fn. 48] the statutory
market parity requirement, [Fn. 49] and the Pacific Marine
Fisheries Compact. [Fn. 50]  We find these contentions
               i.   The common use clause
          O'Callaghan claims that 5 AAC 93.320 violates the Alaska
Constitution's common use clause, article VIII, section 3, which
mandates that "[w]herever occurring in their natural state, fish,
game, waters and wildlife are reserved to the people for their
common use." But the challenged roe stripping regulation does not
apply to salmon which are caught while "occurring in their natural
state." Instead, the regulations apply only to hatchery-produced
salmon once they have returned to a special hatchery area. [Fn. 51] 
Pursuant to AS 16.10.440, [Fn. 52] the salmon remain subject to the
common use clause while in the natural waters of the state.  Since
the common use clause by its terms does not apply to hatchery fish
in terminal areas, this claim lacks merit.
               ii.  The market parity requirement
          Sweat and O'Callaghan also contend that allowing roe
stripping contravenes the statutory requirement of "market parity"
for hatchery fish.  We disagree.
          Alaska Statute 16.10.450(b) mandates that "[f]ish
returning to hatcheries and sold for human consumption shall be of
comparable quality to fish harvested by commercial fisheries in the
area and shall be sold at prices commensurate with the current
market."[Fn. 53]  Since the salmon carcasses in question are not
"sold for human consumption,"this requirement is inapplicable to
the carcasses.
          With regard to the roe, O'Callaghan and Sweat complain
that PNP hatcheries should not be able to sell roe that is only
available if the fish mature to the point of being unmarketable.
O'Callaghan argues that the roe increase in number and quality as
the flesh decays, and thus roe sold from stripped fish is not of
comparable quality to those produced by other fishers.  Sweat
similarly argues that the relevant "current market"for salmon is
one in which the salmon flesh can be put to some use other than
being discarded.  Essentially, this is an argument that 5 AAC
93.320 allows PNP hatcheries to obtain unfair market advantage by
producing roe that is of higher quality than can be obtained by
traditional means, thus violating the market parity requirement. 
In our view this argument lacks merit.  The aim of subsection
.450(b) is to prevent hatcheries from over-saturating the market
with poor quality salmon and thus adversely affecting the
reputation of Alaska salmon. [Fn. 54]  It was not intended to and
does not prevent hatcheries from selling a superior product. 
               iii. The Pacific Marine Fisheries Compact
          Third, O'Callaghan argues that 5 AAC 93.320 violates the
Pacific Marine Fisheries Compact, codified at AS 16.45.020.  He
points to provisions in the Compact which promote "prevention of
physical waste of the fisheries,"[Fn. 55] "prevention of the
depletion"of fish resources, [Fn. 56] and "protection [of
fisheries] against overfishing, waste, depletion, or any abuse
whatsoever."[Fn. 57]  But the salmon waste law is both more recent
and more specific to the salmon resource. [Fn. 58]  The salmon
waste law reiterates the prohibition against wasting salmon and
grants the Commissioner authority to "authorize other uses of
salmon that would be consistent with maximum and wise use of the
resource."[Fn. 59]  The meaning of the salmon waste law controls
this case to the extent that it may be inconsistent with the
     B.   Excess Brood Stock Roe Stripping
          O'Callaghan and Sweat also raise claims specifically
related to roe stripping of brood stock salmon.  They allege that
the Department maintains an informal policy and practice of
allowing roe stripping of excess brood stock salmon and that the
policy violates the salmon waste law and the Administrative
Procedure Act.
          The Department contends that except under the conditions
specified in 5 AAC 93.320 it no longer permits roe stripping from
excess brood stock, i.e., salmon that were caught for purposes of
propagation but whose roe were never used.  The Department
distinguishes between surplus brood stock and roe that are
unsuitable for fertilization: 
          A hatchery operator will normally collect more
fish for brood stock than ultimately is needed and used for this
propagative purpose.  This is not an abuse, but simply is the
result of the prudent management practice of ensuring the
collection of a sufficient number of fish for propagative purposes. 
Because of uncertainties surrounding brood stock collection . . .
, it is necessary to provide for some margin of error. . . .  

          . . . .  If fish are set aside for brood stock
purposes but ultimately are not used during brood stock operations,
a hatchery operator must now comply with AS 16.05.831 and the new
salmon waste regulations . . . in the use and/or disposal of the
carcasses of these fish. 

On the other hand, "[d]uring brood stock operations a number of
salmon selected as brood stock are found to contain unripe eggs
that are not suitable for fertilization.  The percentage of unripe
eggs frequently approaches ten percent." Under 5 AAC 40.010(b),
hatchery operators may discard the carcasses of salmon actually
used for propagative purposes. [Fn. 60]  According to the
Department's interpretation, this includes "the discard of fish
that are found to contain unripe eggs that are not suitable for
          Although hatcheries were allowed to strip roe from excess
brood stock salmon under 5 AAC 40.010(b) before 1995, the
Department's current interpretation of that regulation is that
excess brood stock are subject to 5 AAC 93.320.  As an issue
separate from the validity of this regulation, appellants'
arguments concerning excess brood stock roe stripping are moot.
          Sweat also argues that the Department may not authorize
the commercial sale of roe, in light of AS 16.10.420(7).  He
contends that this statute only permits the sale of salmon eggs to
the Department or to another hatchery for propagative purposes.
[Fn. 61] But this statute does not prohibit the commercial sale of
roe; rather, the statute prioritizes to whom the roe may be sold. 
So long as the statutory priorities are observed, AS 16.10.420(7)
does not prohibit general commercial sale.
     C.   Refusal to Allow Amendment of O'Callaghan's Complaint

          O'Callaghan also claims the superior court erred when it
declined to allow him to amend his prayer for relief to include
invalidation of a set of guidelines issued by the Department of
Environmental Conservation (DEC) in May 1997.  Alaska Civil Rule
15(a), governing amendment of pleadings, states that leave to amend
pleadings "shall be freely given when justice so requires."
Although leave should be liberally granted, trial courts have
discretion to grant or deny leave to amend pleadings, and this
court will reverse only if we are left with a definite and firm
conviction that the trial court erred. [Fn. 62]
          The trial court must ensure that neither party is
prejudiced by granting or denying leave to amend; factors relevant
to a finding of prejudice toward the non-moving party include added
expense and delay, a longer or more burdensome trial, or "if the
issues being raised in the amendment are remote from the scope of
the original case."[Fn. 63]  Moreover, "courts are normally
hesitant to allow amendments after summary judgment motions"and
other dispositive motions have been filed. [Fn. 64]
          O'Callaghan's motion was filed on May 25, 1997,
approximately one month after the State moved for summary judgment
and after briefing and oral argument on all other issues had been
completed.  Moreover, although the DEC regulations at issue deal
with hatchery salmon and their disposal, the legal question --
whether DEC has "authority to issue edicts related to the
suitableness or fitness of food"-- is at best tangentially related
to the primary claims in this lawsuit.  Therefore, the superior
court did not abuse its discretion by refusing to allow O'Callaghan
to amend his pleadings. 
     D.   The Existence of Disputed Material Facts
          Finally, O'Callaghan argues that the superior court
"err[ed] by including so many alleged facts unsupported by the
evidence as to render the opinion meaningless." We understand this
as a contention that factual questions should have precluded
summary judgment.  However, O'Callaghan has not pointed to the
existence of any disputed facts that are material.  Any alleged
factual disputes are irrelevant to the questions of law which are
dispositive in this appeal.  Therefore, summary judgment was
          We conclude that the Commissioner of the Department of
Fish and Game has authority to promulgate regulations under AS
16.05.831.  The contested regulation -- 5 AAC 93.320 -- is
consistent with this statute, as well as other constitutional and
statutory provisions. [Fn. 65]  Accordingly, we AFFIRM the superior
court's grant of summary judgment in favor of the Commissioner.


Footnote 1:

          AS 16.05.831 provides as follows:

               (a) A person may not waste salmon
intentionally, knowingly, or with reckless disregard for the
consequences.  In this section, "waste"means the failure to
utilize the majority of the carcass, excluding viscera and sex
parts, of a salmon intended for
               (1) sale to a commercial buyer or
               (2) consumption by humans or domesticated
animals; or
               (3) scientific, educational, or display
               (b) The commissioner, upon request, may
authorize other uses of salmon that would be consistent with
maximum and wise use of the resource.
               (c) A person who violates this section or
a regulation adopted under it is punishable by a fine of not more
than $10,000, or by imprisonment for not more than six months, or
by both.  In addition, a person who violates this section is
subject to a civil action by the state for the cost of replacing
the salmon wasted.  

Footnote 2:

     See AS 16.10.375 - 16.10.480; 5 AAC Ch. 40.

Footnote 3:

          House Bill (H.B.) 448, 18th Leg., 2nd Sess. sec. 1 (Feb.

Footnote 4:

          Brood stock refers to salmon used to repopulate hatchery
fish stocks.  Both the Food and Drug Administration and the Alaska
Department of Environmental Conservation classify brood stock
salmon at this stage of life as unfit for human consumption.

Footnote 5:

          For a brief period before the permanent regulations
became effective, roe stripping was governed by emergency
regulations of essentially the same substance.  These temporary
regulations are not challenged on appeal.  Nor is there any claim
that the permanent regulations do not comply with the
Administrative Procedure Act, AS 44.62.

Footnote 6:

     See 5 AAC 93.320(c)(1).

Footnote 7:

          See 5 AAC 93.320(d).  Alternatively, the hatchery
operator may transport 100 salmon carcasses or an amount sufficient
to meet public and food bank demand, whichever is greater, and then
may immediately dispose of other pink or chum salmon carcasses. 
The hatchery operator must keep the transported salmon
refrigerated, maintain fresh supplies by replacing the salmon at
least every 72 hours, and replenish the supply of salmon in
quantities sufficient to meet public and food bank demand.  See 5
AAC 93.320(e).

Footnote 8:

     See 5 AAC 93.320.

Footnote 9:

          5 AAC 93.320(p) provides that "[t]he provisions of this
section do not apply after December 31, 1997."

Footnote 10:

     Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191, 1196
(Alaska 1995) (citations omitted).

Footnote 11:

          Peninsula Mktg. Ass'n v. State, 817 P.2d 917, 920 (Alaska

Footnote 12:

     Kodiak Seafood, 900 P.2d at 1196.

Footnote 13:

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

Footnote 14:

     See Alaska Fish Spotters Ass'n v. State, Dep't of Fish & Game,
838 P.2d 798, 800 (Alaska 1992).

Footnote 15:

     See Warner v. State, 819 P.2d 28, 30-31 (Alaska 1991).

Footnote 16:

     See Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746
P.2d 896, 903-04 (Alaska 1987) (quoting Union Oil Co. of Cal. v.
Department of Revenue, 560 P.2d 21, 23 (Alaska 1977)).

Footnote 17:

     See id. at 904.

Footnote 18:

     Chevron U.S.A. Inc. v. LeResche, 663 P.2d 923, 927 (Alaska
1983); see also AS 44.62.030 (providing that "a regulation adopted
is not valid or effective unless consistent with the statute and
reasonably necessary to carry out the purpose of the statute").

Footnote 19:

     See State v. Anderson, 749 P.2d 1342, 1344 (Alaska 1988);
Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971).

Footnote 20:

          See Gunderson v. University of Alaska, Fairbanks, 922
P.2d 229, 233 (Alaska 1996); Tesoro, 746 P.2d at 903.

Footnote 21:

          See Gunderson, 922 P.2d at 233; Tesoro, 746 P.2d at 903.

Footnote 22:

          See Board of Trade, Inc. v. State, Dep't of Labor, Wage
& Hour Admin., 968 P.2d 86, 89 (Alaska 1998).

Footnote 23:

          See State, Dep't of Revenue v. Cosio, 858 P.2d 621, 624
n.1 (Alaska 1993).

Footnote 24:

     See Anderson, 749 P.2d at 1344.

Footnote 25:

          See Church v. State, Dep't of Revenue, 973 P.2d 1125,
1127 (Alaska 1999); Alaska Fish Spotters, 838 P.2d at 800.

Footnote 26:

          See Cosio, 858 P.2d at 624.

Footnote 27:

     See AS 44.62.030; see also Usibelli Coal Mine, Inc. v. State,
Dep't of Natural Resources, 921 P.2d 1134, 1143 (Alaska 1996).

Footnote 28:

     AS 16.05.020(2)-(3).

Footnote 29:

     Peninsula Mktg. Ass'n v. Rosier, 890 P.2d 567, 572 (Alaska

Footnote 30:

     AS 16.05.831(b).

Footnote 31:

     AS 16.05.831(c) (emphasis added).

Footnote 32:

     AS 16.05.251(a)(12).

Footnote 33:

     See generally AS 16.10.400-16.10.470.

Footnote 34:

          See AS 16.10.400(a)(1) ("The commissioner or a designee
may issue a permit, subject to the restrictions imposed by statute
or regulation under AS 16.10.400-16.10.470 . . . [for] the
construction and operation of a salmon hatchery . . . . "); AS
16.10.430(a) ("If a permit holder fails to comply with the
conditions and terms of the permit . . . , the permit may be
suspended or revoked, in the discretion of the
commissioner . . . .").

Footnote 35:

          See AS 16.10.430(b) ("If the commissioner finds that the
operation of the hatchery is not in the best interests of the
public, the commissioner may alter the conditions of the permit to
mitigate the adverse effects . . . .").

Footnote 36:

          See AS 16.10.440(b) ("The Board of Fisheries
may . . . amend by regulation . . . the terms of the
permit . . . .").

Footnote 37:

     890 P.2d 567 (Alaska 1995).

Footnote 38:

     See id. at 568-69.

Footnote 39:

     See id. at 569.

Footnote 40:

     Id. at 573.

Footnote 41:

     The text of the salmon waste law is set forth in note 1,

Footnote 42:

          The Commissioner has indeed authorized these uses of
salmon under AS 16.05.831(b).  See 5 AAC 93.350(a)-(b).

Footnote 43:

     AS 16.05.831(b).

Footnote 44:

          Compare AS 16.10.173(d)(3), which prohibits herring waste
but contains language that seems to exclude from the definition of
waste loss of flesh inherent in permitted uses:

          "waste"means the failure to use the flesh of
commercially taken herring for reduction to meal, production of
fish food, human consumption, food for domestic animals, scientific
or educational purposes, or round herring bait.  Normal,
inadvertent loss of flesh associated with the uses described in
this subsection that cannot be prevented by practical means does
not constitute waste.  The commissioner may authorize other uses of
commercially taken herring consistent with the intent of this
section and AS 16.10.172 upon receipt of a request accompanied by
a detailed justification.

Footnote 45:

          As we said in State, Department of Revenue, Permanent
Fund Dividend Division v. Cosio, 858 P.2d 621, 624 n.1 (Alaska

               If we find the proper nexus between the
challenged regulation and the statutory purpose (i.e., the
regulation is consistent with the statutory purpose), we do not
generally require a separate showing of reasonable necessity. 
Strictly applied, inquiry into whether a regulation is necessary as
a means to a legislative end would mire this court in questions of
public policy and the advisability of possible alternatives.  Such
a searching inquiry is beyond our authority and expertise.  It is
a rare case where a regulation, although not inconsistent with the
purpose of the statute, is wholly superfluous to the achievement of
that purpose.

(Emphasis in original.)

Footnote 46:

          Stepovak-Shumagin Set Net Ass'n v. State, Bd. of
Fisheries, 886 P.2d 632, 637 (Alaska 1994) (quoting Gilbert v.
State, Dep't of Fish & Game, 803 P.2d 391, 398 (Alaska 1990)). 

Footnote 47:

          On December 16, 1998, this court issued a sua sponte
order asking the parties to file supplemental briefs to address
whether AS 16.10.440(a) exempts hatchery fish from generally
applicable laws, including the salmon waste law, once the fish
return to the designated harvest areas.  Alaska Statute
16.10.440(a) provides:

               Fish released into the natural waters of
the state by a hatchery operated under AS 16.10.400 - 16.10.470 are
available to the people for common use and are subject to
regulation under applicable law in the same way as fish occurring
in their natural state until they return to the specific location
designated by the department for harvest by the hatchery operator.

(Emphasis added.)  Because none of the parties argue in favor of
this application, we express no opinion as to whether this statute

Footnote 48:

     See Alaska Const., art. VIII, sec. 3.

Footnote 49:

     See AS 16.10.450(b).

Footnote 50:

     See AS 16.45.020.

Footnote 51:

     See 5 AAC 93.320(b)(2).

Footnote 52:

          AS 16.10.440(a) is set forth in note 47, supra.

Footnote 53:

     AS 16.10.450(b).

Footnote 54:

          See Operation of Private Non-Profit Hatcheries, Hearings
on H.B. 830 Before the House Judiciary Comm., 8th Leg., 2d Sess.
(April 15, 1974) (minutes of the committee meeting).

Footnote 55:

     AS 16.45.020, art. I.

Footnote 56:

     Id. at art. IV. 

Footnote 57:


Footnote 58:

          Generally, "a more specific statute governs over an
otherwise applicable general statute." Jenkins v. Daniels, 751
P.2d 19, 22 (Alaska 1988).

Footnote 59:

     AS 16.05.831(b). 

Footnote 60:

          Regulation 5 AAC 40.010(b) provides:

               Hatchery permit holders harvesting salmon
within a special harvest area, to the extent those salmon are used
as egg sources for brood stock, will be exempted by the
commissioner from the provisions of AS 16.05.831 if the permit
holder so requests. The commissioner may condition the exemption on
terms he considers necessary to carry out the intent of AS

See also 5 AAC 93.350(c) ("Notwithstanding AS 16.05.831(a) and 5
AAC 93.310, a person may dispose of the carcass of a salmon from
which milt or eggs are extracted under a permit issued under AS
16.10.400- 16.10.480 for lawful use as brood stock."). 

Footnote 61:

          AS 16.10.420(7) provides, "The department shall require,
in a permit issued to a hatchery operator, that . . . surplus eggs
from salmon returning to the hatchery be made available for sale
first to the department and then, after inspection and approval by
the department, to operators of other hatcheries . . . ."

Footnote 62:

          See Alaska R. Civ. P. 15(a); Siemion v. Rumfelt, 825 P.2d
896, 898 n.2 (Alaska 1992).

Footnote 63:

          Gamble v. Northstore Partnership, 907 P.2d 477, 484
(Alaska 1995) (quoting Estate of Thompson v. Mercedes-Benz, Inc.,
514 P.2d 1269, 1271 (Alaska 1973)).

Footnote 64:

     Jennings v. State, 566 P.2d 1304, 1312 (Alaska 1977).  

Footnote 65:

          Because we find the Department's practice legal, we need
not address O'Callaghan's claim that we order enforcement.